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

T. F. Scott Darling, III
Federal Motor Carrier Safety Administration
April 2, 2015

[Federal Register Volume 80, Number 63 (Thursday, April 2, 2015)]
[Notices]
[Pages 17819-17821]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-07567]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0317]


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

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

ACTION: Notice of final disposition; grant of application for 
exemption.

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SUMMARY: FMCSA announces its decision to grant the National Ready Mixed 
Concrete Association (NRMCA) a limited exemption from the minimum 30-
minute rest break provision of the Agency's hours-of-service (HOS) 
regulations for commercial motor vehicle (CMV) drivers. Under the terms 
and conditions of this exemption, drivers operating ready-mixed 
concrete trucks may use 30 minutes or more of on-duty ``waiting time'' 
to satisfy the requirement for the 30 minute rest break, provided they 
do not perform any other work during the break. The exemption giving 
these drivers the same regulatory flexibility that 49 CFR 395.1(q) 
provides for drivers transporting explosives. The FMCSA has determined 
that granting these drivers an exemption from the 30-minute rest break 
requirement is likely to achieve a level of safety equivalent to or 
greater than the level of safety that would be obtained in the absence 
of the exemption.

DATES: The exemption is effective from 12:01 a.m., April 2, 2015 
through 11:59 p.m., April 3, 2017.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver, and Vehicle 
Safety Standards; 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 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 public comments, 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 specific 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 of the 
exemption (up to 2 years), and explain the terms and conditions of the 
exemption. The exemption may be renewed (49 CFR 381.300(b)).

[[Page 17820]]

Request for Exemption

    The National Ready Mixed Concrete Association (NRMCA) is an 
industry trade association that represents more than 2,000 member 
companies and subsidiaries that manufacture and deliver ready-mixed 
concrete. They estimate that there are roughly 68,000 drivers of ready-
mixed concrete mixer trucks. According to NRMCA, approximately 5 
percent of ready-mixed concrete deliveries--with around 3,400 drivers--
involve interstate commerce.
    NRMCA requests an exemption from the hours-of-service (HOS) 
regulation pertaining to rest breaks [Sec.  395.3(a)(3)(ii)]. 
Membership in NRMCA would not be required to be eligible for the 
exemption, it would apply industry-wide to all motor carriers and 
drivers operating ready-mixed concrete trucks. NRMCA requests the 
exemption because it states that most concrete-mixer drivers operate 
for at least 8 hours per day; however 10 hours or more per day during 
the busy construction season is common. They indicate that less than 
40% of this time is actual driving time. Furthermore, 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 
while transporting a perishable product during the busy season.
    Mixer drivers take numerous rest breaks throughout each work 
period; however, those breaks are not ``off duty'' under 
interpretations of the Federal regulations and therefore do not count 
as the minimum 30-minute breaks. According to NRMCA, a common example 
of this is a mixer driver merely sitting inside the cab of the truck, 
at the controls, waiting to move the truck into position and unload. 
This very common occurrence within the industry is not considered a 
valid off-duty break under the current regulations and guidance because 
the mixer driver still has ``responsibility for the care and custody of 
the vehicle, its accessories, and any cargo or passengers it may be 
carrying'' (Sec.  395.2 definition of on-duty time.)
    Regarding the Sec.  395.1(e)(1) exemption from the 30-minute rest 
break provision for short-haul carriers, NRMCA added that mixer drivers 
often work past the 12-hour reporting time limit for the exemption, and 
therefore are unable to utilize it. According to NRMCA, when a mixer 
driver is forced to work past the 12-hour reporting time limit, there 
is currently no method to show that a driver intended to comply with 
the 100 air-mile logging exemption and therefore did take or log a 30-
minute break. This causes a ``compliance conundrum'' for the ready-
mixed concrete driver.
    Further details regarding the industry's safety controls can be 
found in the application for exemption, which can be accessed in the 
docket identified at the beginning of this notice. NRMCA asserted that 
granting the exemption would achieve the same level of safety provided 
by the rule because ready-mixed concrete drivers routinely receive 
numerous 10-, 15-, and 20-minute breaks throughout the work day. NRMCA 
claimed that extending one of these breaks to 30 minutes and only 
``attending'' the vehicle during this period would have no negative 
safety impact. NRMCA further added that the ready-mixed concrete 
industry ensures mixer-truck drivers are as safe as possible and 
continues to use practices that emphasize safety. This attention to 
safety is achieved through mandating rigorous training for concrete 
mixer-truck drivers; daily, weekly, monthly, quarterly and annual 
safety checks; and self-imposed random safety audits. The proposed 
exemption would be effective for 2 years, the maximum period allowed by 
Sec.  381.300.

Public Comments

    On August 20, 2013, FMCSA published notice of this application, and 
requested public comment (78 FR 51267). Over 250 comments were 
submitted, with more than 87% in support of the exemption request. 
These comments came mainly from various ready-mixed concrete companies. 
Nine industry trade associations--primarily concrete-related State 
associations--filed comments in support of the NRMCA exemption. Fifteen 
other individuals (drivers, etc.) commented: 11 Favored the exemption 
request; 3 were opposed; and 1 took no position.
    The comments stated that requiring ready-mixed concrete truck 
drivers to comply with the 30-minute rest break provision causes an 
undue hardship on the drivers, the delivery of their product, service 
to their customers, and the bottom-line finances of their company. The 
primary reasons for requesting the exemption were: (1) Concrete mixer 
drivers deliver a perishable product and spend less than 40% of their 
on-duty time driving; (2) industry-wide, mixer drivers on average drive 
14 miles from the ready-mixed concrete plant to the job, do not have 
the fatigue-inducing work conditions long-haul truckers experience; and 
(3) while some concrete mixer drivers will be able to take advantage of 
the exception from the 30-minute break for certain short-haul drivers, 
many drivers often work more than 12 hours in a day, and therefore 
cannot utilize the short-haul exemption.
    Some comments opposed to the NRMCA exemption saw no safety benefit 
in a 30-minute break in the first place, while others believed that 
this segment of the industry should not be granted relief from the 30-
minute break while other industry segments have to comply with the 
rule.

FMCSA Decision

    FMCSA has evaluated NRMCA's application and the public comments and 
decided to grant the exemption. The Agency believes that the exempted 
ready-mixed concrete drivers will likely achieve a level of safety that 
is equivalent to or greater than, the level of safety achieved without 
the exemption [49 CFR 381.305(a)]. It is important to note that the 
Agency is not granting a complete exemption from the 30-minute rest 
break provision required by 49 CFR 395.3(a)(3)(ii). Instead, FMCSA is 
granting an exemption for ready-mixed concrete trucks and drivers who 
remain with the CMV (i.e., wait) while not performing any other work-
related activities. The only subject of the exemption is the duty 
status of the driver while ``waiting'' with the vehicle during a 
required rest break. Like drivers of trucks carrying certain kinds of 
explosives (Sec.  395.1(q)) drivers of ready-mixed concrete trucks will 
be allowed to use 30-minutes on-duty periods in attendance on the 
vehicles, while performing no other work, to meet the requirement for a 
rest break. Therefore, the Agency grants the exemption request subject 
to the terms and conditions in this Federal Register notice.

Terms of the Exemption

    1. Drivers of ready-mixed concrete trucks subject to the 
requirement for a 30-minute rest break in Sec.  395.3(a)(3)(ii) may use 
30 minutes or more of ``waiting time'' to meet the requirements for a 
rest break. ``Waiting time'' means time spent while waiting with the 
CMV at a job site or terminal and performing no other on-duty 
activities during this time.
    2. Drivers must have a copy of this exemption document in their 
possession while operating under the terms of the exemption. The 
exemption document must be presented to law enforcement officials upon 
request.
    3. All motor carriers operating under this exemption must have a 
``Satisfactory'' safety rating with FMCSA, or be ``unrated.'' Motor 
carriers with ``Conditional'' or ``Unsatisfactory''

[[Page 17821]]

FMCSA safety ratings are prohibited from using this exemption.
    4. All motor carriers operating under this exemption must have 
Safety Measurement System (SMS) scores below FMCSA's intervention 
thresholds, as displayed at http://ai.fmcsa.dot.gov/sms/.

Period of the Exemption

    This exemption from the requirements of 49 CFR 395.3(a)(3)(ii) is 
granted for the period from 12:01 a.m., April 2, 2015 through 11:59 
p.m., April 3, 2017.

Extent of the Exemption

    This exemption is limited to the provisions of 49 CFR 
395.3(a)(3)(ii). These drivers must comply with all other applicable 
provisions of the FMCSRs.

Preemption

    In accordance with 49 U.S.C. 31315(d), 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.

Notification to FMCSA

    Any motor carrier utilizing this exemption must notify FMCSA within 
5 business days of any accident (as defined in 49 CFR 390.5), involving 
any of the motor carrier's CMV drivers operating under the terms of 
this exemption. The notification must include the following 
information:
    a. Date of the accident,
    b. City or town, and State, in which the accident occurred, or 
closest to the accident scene,
    c. Driver's name and license number and State of issuance,
    d. Vehicle number and State license plate number,
    e. Number of individuals suffering physical injury,
    f. Number of fatalities,
    g. The police-reported cause of the accident,
    h. Whether the driver was cited for violation of any traffic laws 
or motor carrier safety regulations, and
    i. The driver's total driving time and total on-duty time period 
prior to the accident.
    Reports filed under this provision shall be emailed to 
MCPSD@DOT.GOV.

Termination

    FMCSA does not believe the drivers covered by this exemption will 
experience any deterioration of their safety record. However, should 
this occur, FMCSA will take all steps necessary to protect the public 
interest, including revocation or restriction of the exemption. The 
FMCSA will immediately revoke or restrict the exemption for failure to 
comply with its terms and conditions.

     Issued on: March 26, 2015.
T. F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-07567 Filed 4-1-15; 8:45 am]
BILLING CODE CODE 4910-EX-P