Hours of Service of Drivers: National Ready Mixed Concrete Association; Application for Exemption

Larry W. Minor
Federal Motor Carrier Safety Administration
August 20, 2013

[Federal Register Volume 78, Number 161 (Tuesday, August 20, 2013)]
[Notices]
[Pages 51267-51268]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20325]



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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA-2013-0317]


Hours of Service of Drivers: National Ready Mixed Concrete 
Association; Application for Exemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of application for exemption; request for comments.

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SUMMARY: FMCSA announces that it has received an application from the 
National Ready Mixed Concrete Association (NRMCA) for an exemption from 
the 30-minute rest break provision of the Agency's hours-of-service 
regulations for commercial motor vehicle (CMV) drivers. The requested 
exemption would apply industry-wide to all motor carriers and CMV 
drivers operating ready-mixed concrete trucks. Due to the nature of 
their operation, NRMCA believes that compliance with the 30-minute rest 
break rule is extremely difficult due to the numerous variables 
associated with delivery (e.g., weather, customer readiness, traffic) 
and becomes even more problematic and burdensome during periods of peak 
demand at construction sites. FMCSA requests public comment on NRMCA's 
application for exemption.

DATES: Comments must be received on or before September 19, 2013.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2013-0317 by any of the following 
methods:
     Federal eRulemaking Portal: www.regulations.gov. 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 www.regulations.gov, 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 www.regulations.gov, and follow the online 
instructions for accessing the dockets, or go to the street address 
listed above.
    Privacy Act: Anyone can search the electronic form of 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 a 
Privacy Act notice regarding our public dockets in the January 17, 
2008, issue of the Federal Register (73 FR 3316).
    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.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and 
Carrier Operations Division; Office of Bus and Truck Standards and 
Operations; 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 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 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)).

NRMCA Application for an Exemption

    On December 27, 2011 (76 FR 81133), FMCSA published a final rule 
amending its hours-of-service (HOS) regulations for drivers of 
property-carrying commercial motor vehicles (CMVs). The final rule 
adopted several changes to the HOS regulations, including a new 
provision requiring drivers to take a rest break during the work day 
under certain circumstances. Drivers may drive a CMV only if 8 hours or 
less have passed since the end of the driver's last off-duty or 
sleeper-berth period of at least 30 minutes. FMCSA did not specify when 
drivers must take the 30-minute break, but the rule requires that they 
wait no longer than 8 hours after the last off-duty or sleeper-berth 
period of that length or longer to take the break. Drivers who already 
take shorter breaks during the work day could comply with the rule by 
taking one of the shorter breaks and extending it to 30 minutes. The 
new requirement took effect on July 1, 2013.
    NRMCA seeks an exemption from the 30-minute rest break provision in 
49 CFR 395.3(a)(3)(ii). The requested exemption would apply industry-
wide to all motor carriers and drivers operating ready-mixed concrete 
trucks. This industry currently operates roughly 68,000 ready-mixed 
concrete trucks, driven by approximately 68,000 drivers. Approximately 
5 percent of ready-mixed concrete deliveries involve interstate 
commerce. NRMCA requests the exemption because it states that ready-
mixed concrete drivers almost always spend less than half of their on-
duty time actually driving the CMV. Most of the industry's drivers 
operate 8 hours per day, with 10 hours or more per day being a common 
schedule during the busy season.
    NRMCA states that, on average, a typical driver will carry 4 loads 
per day, each of roughly 2 hours round-trip, and drive an average of 
only 14 miles one-way away from the ready-mixed concrete plant. The 
remainder of the driver's ``duty day'' is spent at the plant waiting to 
be dispatched, at the jobsite waiting for the contractor to receive the 
concrete, unloading concrete, and performing various other 
administrative duties.
    According to NRMCA, concrete is a perishable product. Once the

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ingredients that comprise ready-mixed concrete have been mixed (or 
batched) there is a ``window'' of roughly 90 minutes before the 
concrete hardens and by specification is no longer usable. NRMCA 
indicated the American Society for Testing and Materials (ASTM) 
Standard Specification for Ready Mixed Concrete requires delivery and 
unloading within 90 minutes. Thus, once a delivery is started it must 
be completed quickly or the concrete may harden in the CMV, causing 
monetary damage to the company and potentially violating a delivery 
contract. An uninterrupted delivery is also necessary in case a driver 
is made to wait a long period of time on a construction site before 
unloading, which is a common occurrence. NRMCA states that adding a 30-
minute rest break to this process risks the integrity of the industry's 
delivered product, jeopardizing delivery contracts and creating the 
very real potential to cost concrete companies thousands of dollars in 
additional costs.
    NRMCA believes the exemption would achieve the same level of safety 
provided by the rule requiring the 30-minute rest break because ready-
mixed concrete drivers routinely receive numerous 10-, 15-, and 20-
minute breaks throughout the work day. It is common for these drivers 
to take breaks of up to 2 hours resulting from weather or unforeseen 
construction delays. NRMCA claims that these frequent breaks work to 
keep the drivers awake and alert throughout the course of their work 
day. One additional 30-minute break--as is now required by the FMCSRs--
would not add an additional level of safety for their operation. A copy 
of NRMCA's 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 NRMCA's application for an exemption from 
certain provisions of the driver's HOS regulations in 49 CFR part 395. 
The Agency will consider all comments received by close of business on 
September 19, 2013. 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.

    Issued on: August 14, 2013.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2013-20325 Filed 8-19-13; 8:45 am]
BILLING CODE 4910-EX-P