Hours of Service of Drivers: American Concrete Pavement Association, Inc.; Application for Exemption

Larry W. Minor
Federal Motor Carrier Safety Administration
6 September 2018

[Federal Register Volume 83, Number 173 (Thursday, September 6, 2018)]
[Notices]
[Pages 45300-45301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19257]



[[Page 45300]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0237]


Hours of Service of Drivers: American Concrete Pavement 
Association, Inc.; 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 
American Concrete Pavement Association, Inc. (ACPA) requesting 
exemptions from two requirements of the hours-of-service (HOS) 
regulations for drivers of certain commercial motor vehicles (CMVs) 
operated by ACPA members: The 30-minute rest break provision; and the 
requirement that short-haul drivers utilizing the record of duty status 
(RODS) exception return to their work-reporting location within 12 
hours of coming on duty. The first exemption would enable drivers 
engaged in the transportation of ready-mixed concrete in vehicles, 
other than those outfitted with rotating mixer drums, and related 
materials and equipment to 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 
second exemption would allow these drivers to use the short-haul 
exception but return to their work-reporting location within 14 hours 
instead of the usual 12 hours. FMCSA requests public comment on ACPA's 
application for exemptions.

DATES: Comments must be received on or before October 9, 2018.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-0237-0237 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: 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. ET, 
Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Each submission must include the Agency name and the docket number 
for this notice. 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 Room W12-140 
on the ground level of the West Building, 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, 
except Federal holidays. The on-line FDMS is available 24 hours each 
day, 365 days each year.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, 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 at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
notice, please contact Mr. Richard Clemente, FMCSA Driver and Carrier 
Operations Division; Telephone: (202) 366-2722; Email: MCPSD@dot.gov. 
If you have questions on viewing or submitting material to the docket, 
contact Docket Services, telephone (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-2018-0237), 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-2018-0237'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on ``Comment 
Now!'' button and type your comment into the text box in the following 
screen. Choose whether you are submitting your comment as an individual 
or on behalf of a third party and then submit. 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 and may grant or not grant this application 
based on your comments.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain Federal Motor Carrier Safety Regulations 
(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 (up to 5 
years) and explain the terms and conditions of the exemption. The 
exemption may be renewed (49 CFR 381.300(b)).

III. Request for Exemption

    ACPA seeks exemptions for all drivers of member companies 
transporting ready-mixed concrete and related materials and equipment 
from the HOS 30-minute rest break provision in 49 CFR 395.3(a)(3)(ii) 
and the restriction of the RODS exception for short-haul operations to 
drivers who return to their normal work-reporting location within 12 
hours [49 CFR 395.1(e)(1)(ii)(A)].
    The first exemption from the HOS rest break provision, if granted, 
would enable drivers engaged in the transportation of ready-mixed 
concrete in vehicles, other than those outfitted with rotating mixer 
drums, and related materials to use 30 minutes or more of

[[Page 45301]]

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. According to ACPA, a typical mainline paving project (i.e., 
pavement for highways, airports, streets, and large industrial 
facilities) involves mixing of concrete at a central mix batch plant 
located 3-10 miles from the paving site, transport of the freshly mixed 
concrete to the paving machine, placement of the concrete pavement, 
texturing of the slab surface, curing of the concrete slab, and finally 
saw-cutting of the pavement. ACPA advises that all steps in this 
process are time-critical, as concrete mixtures are extremely 
perishable. Employees must coordinate and direct a complex series of 
logistical steps, one of the most important elements of which is the 
delivery of the concrete within a time frame specified by the 
transportation agency or owner. The concrete is essentially made to 
order, then delivered by end-dump trucks so there is a steady and 
constant delivery of material that keeps pace with the paving 
equipment. Any issue that that delays the well-orchestrated, just-in-
time delivery of batches of concrete can result in batches being turned 
away by inspectors, the paving operation being shut down temporarily, 
and ultimately, cause time and cost overruns. According to ACPA, the 
criticality of concrete delivery from plant to paving site is arguably 
one of the most important factors in a paving process.
    The second exemption, if granted, would allow these same drivers to 
use the short-haul RODS exception, but with a 14-hour duty period 
instead of 12 hours. ACPA advises that, while some short-haul drivers 
will be able to take advantage of the exception from the 30-minute 
break, other drivers are often required to be on duty more than 12 
hours in a day and therefore are not eligible to use the short-haul 
exception.
    Although drivers using the short-haul exception in 49 CFR 
395.1(e)(1) are not required to take the minimum 30-minute rest break 
[49 CFR 395.3(a)(3)(ii)], the extension of the short-haul 12 hour limit 
to 14 hours, if granted, might be construed by some to require the 30-
minute break; therefore, ACPA is requesting the second exemption from 
the rest break requirement.
    ACPA mentioned that drivers of ready-mixed concrete delivery 
vehicles were previously granted an exemption from the minimum 30-
minute rest break provision.\1\ FMCSA granted the National Ready Mixed 
Concrete Association a limited exemption from the 30-minute break 
requirement of the driver HOS regulations [80 FR 17819 April 2, 2015]. 
Similarly, on January 26, 2018, FMCSA granted an exemption to the 
National Asphalt Pavement Association for drivers engaged in the 
transportation of asphalt and related materials and equipment from: (1) 
The 30-minute rest break requirement; and (2) the 12-hour daily on-duty 
limit on the short-haul exception, which was expanded to 14 hours [83 
FR 3864]. ACPA states that ``the same reasoning supporting the 
exemptions from the 30-minute break time rule and allowing a 14-hour 
daily duty-period for drivers of ready-mixed concrete vehicles, and 
drivers engaged in the transportation of asphalt and related materials, 
applies to drivers engaged in the transportation of ready-mixed 
concrete in vehicles, other than those outfitted with rotating mixer 
drums, and related materials and equipment. These are all perishable 
products that are not useable if they are not dropped and spread within 
a brief delivery window. Because of this short delivery window, the 
routes from the production facility to the delivery site for both 
products are limited, usually between 3-10 miles, and the time spent 
actually driving a commercial motor vehicle is typically only a few 
hours per day. Thus, the drivers do not face the same fatigue factors 
as drivers of long-haul trucks, and therefore do not pose the same risk 
of a fatigue-related accident as long-haul drivers.''
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    \1\ The hours-of-service regulations define ``ready mixed 
concrete delivery vehicle'' to mean ``a vehicle designed to deliver 
ready-mixed concrete on a daily basis and equipped with a mechanism 
under which the vehicle's propulsion engine provides the power to 
operate a mixer drum to agitate and mix the product en route to the 
delivery site.'' 49 CFR 395.2.
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    ACPA states in its application that the exemptions would not have 
any adverse impacts on operational safety, as drivers would remain 
subject to the HOS regulations in 49 CFR 395.3, and would receive 
sufficient rest due to the nature of their operations that limit 
driving to an average of only 80-100 miles per day during the paving 
season. ACPA believes that granting these exemptions would achieve the 
same level of safety provided by the two HOS rules. The term of the 
requested exemptions is for 5 years, subject to renewal upon 
application. A copy of ACPA's application for exemptions is available 
for review in the docket for this notice.

    Issued on: August 28, 2018.
 Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2018-19257 Filed 9-5-18; 8:45 am]
 BILLING CODE 4910-EX-P