Hours of Service of Drivers: American Concrete Pumping Association (ACPA); Application for Exemption |
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Raymond P. Martinez
Federal Motor Carrier Safety Administration
1 November 2018
[Federal Register Volume 83, Number 212 (Thursday, November 1, 2018)]
[Notices]
[Pages 54975-54977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23881]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2018-0175]
Hours of Service of Drivers: American Concrete Pumping
Association (ACPA); Application for Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
[[Page 54976]]
ACTION: Notice of final disposition.
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SUMMARY: FMCSA announces its decision to grant the American Concrete
Pumping Association (ACPA) request for exemption from the requirement
that short-haul drivers utilizing the records of duty status (RODS)
exception return to their normal work-reporting location within 12
hours of coming on duty. The exemption enables all concrete pump
operators, concrete pumping companies, and drivers who operate concrete
pumps to use the short-haul exception but return to their work-
reporting location within 14 hours instead of the usual 12 hours. FMCSA
has analyzed the exemption application and the public comments and has
determined that the exemption, subject to the terms and conditions
imposed, will achieve a level of safety that is equivalent to, or
greater than, the level that would be achieved absent such exemption.
DATES: This exemption is effective November 1, 2018 and expires October
31, 2023.
FOR FURTHER INFORMATION CONTACT: For information concerning this
notice, please contact Ms. Pearlie Robinson, FMCSA Driver and Carrier
Operations Division; Telephone: (202) 366-4225; 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
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to www.regulations.gov and insert
the docket number, FMCSA-2018-0175 in the ``Keyword'' box and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document to review. If you do not have access to the internet, you
may view the docket online by visiting the Docket Management Facility
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays.
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)) exemption may be renewed
(49 CFR 381.300(b)).
III. Request for Exemption
ACPA seeks an exemption from the restriction of the RODS exception
for short-haul drivers who return to their normal work reporting
location and are released from work within 12 hours [49 CFR
395.1(e)(1)(ii)(A)]. Specifically, ACPA requests that concrete pump
operators be treated the same as drivers operating ready-mixed concrete
delivery vehicles as provided in 49 CFR 395.1(e)(1)(ii)(B). Section
395.1(e)(1)(ii)(B) allows drivers of ready-mixed concrete delivery
vehicles to rely on the short-haul exception provided they return to
their work-reporting locations and are released from work within 14
consecutive hours. The requested exemption would apply industry-wide to
all concrete pump operators, concrete pumping companies, and drivers
who deliver, set-up, and operate concrete pumps across the United
States.
ACPA currently represents more than 600 member companies employing
over 7,000 workers nationwide. The exemption would be applied to all
interstate concrete pumper trucks and their operators. Although many of
the trucks operate intrastate and would therefore not be covered by an
FMCSA exemption, an unknown number of the pumping trucks are operated
in metropolitan areas and do routinely cross State lines.\1\
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\1\ FMCSA does not generally have jurisdiction over intrastate
transportation; however, most States have commercial motor vehicle
statutes and regulations that are compatible with Federal
regulations. With few exceptions, an FMCSA exemption only applies to
interstate transportation, although some States honor them for
intrastate traffic.
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ACPA explained that, like ready-mixed concrete delivery trucks and
asphalt pavement delivery trucks, concrete pumps work with a perishable
product delivered on a just-in-time basis. Timing and scheduling are
critical to ensure a high-quality result. Allowing concrete pump
drivers to use the short-haul exception, but return to their reporting
location within 14 hours instead of 12 hours, would harmonize the
hours-of-service rules for drivers of concrete pumps with the rules for
drivers of the vehicles that supply the concrete.
ACPA explained that only a small percentage of the concrete pump
operator's time is spent driving. On average, concrete pump operators
spend between 25-32% of their time driving during a shift, and average
daily driving distances are 20-25 miles. A pump operator has plenty of
rest time with breaks ranging from 33%-55% of their total time pumping.
The majority of an operator's time is spent waiting on ready-mixed
concrete for them to pump.
ACPA further explained that a concrete pump cannot operate without
concrete supplied by a ready-mixed truck. Having conflicting
requirements creates confusion on job sites. Clear and consistent
requirements between the concrete pumps and the ready-mixed trucks will
help ensure an equivalent level of safety on the job site. ACPA adds
that concrete pumping and placement companies work in collaboration
with ready-mixed companies. Scheduling local business contracts in
compliance with State and Federal regulations is complicated, given
that some concrete companies operate under different FMCSA rules.
ACPA asserts that the concrete pumping industry has a solid safety
record. Break periods, spent waiting for the ready-mixed truck
deliveries, provide opportunity for concrete pump operators to rest and
relax. The ACPA Operator Certification Program ensures, encourages, and
educates the concrete pump operators on safe concrete pumping and
placement procedures. These safety practices allow concrete operators
to maintain their safety record through careful training and well-
developed safety guidelines. Because of the concrete pump operators'
training and preparation and numerous rest breaks, providing the
additional 2 duty hours to concrete pump operators will have no impact
on the level of safety provided under the short-haul exception. The
requested exemption is for 5 years. A copy of the ACPA's
[[Page 54977]]
application for exemption is available for review in the docket for
this notice.
IV. Public Comments
On June 21, 2018, FMCSA published notice of this application and
requested public comment (83 FR 28898). The Agency received four
comments. One individual and the National Ready Mixed Concrete
Association (NRMCA) filed comments in support of the proposed
exemption. The Advocates for Highway and Auto Safety (Advocates) and
the Alliance for Driver Safety & Security (Trucking Alliance) filed
joint comments in opposition to the proposed exemption.
NRMCA wrote, ``As outlined in ACPA's request, due to the nature of
concrete pump operators' schedules and inherent work practices that are
closely aligned with the ready mixed concrete industry, NRMCA agrees
that increasing the return to work-reporting location threshold from 12
to 14 hours would not diminish safety on our nation's roadways and
ready mixed concrete construction sites.''
Mr. Jake Ford stated, ``I feel the FMCSA should look into expanding
the 12-hour short-haul exemption to 14 hours to more than just Concrete
Pumps. I work in the oilfield industry as a DOT/Fleet/Compliance
Manager. Just like the concrete pump operators my drivers drive very
little and spend 85% of their time on an oilfield service location
operating equipment.''
``The Advocates and the Trucking Alliance oppose the ACPA
Application for exemption on the grounds that the Application fails to
meet the statutory and regulatory requirements of applications for
exemption. The Application is defective in several respects since it
does not justify the need for the exemption, does not access the safety
impacts of the exemption, and does not explain or document how an
equivalent level of safety would be achieved. All of which are
statutory requirements of a valid exemption application.''
V. FMCSA Decision
FMCSA has evaluated ACPA's application and the public comments and
decided to grant the exemption. The Agency believes that the exempted
concrete pump 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)]. The Agency granted similar exemptions to
the National Asphalt Paving Association [January 26, 2018, (83 FR
3864)], and the Motion Picture Association of America [January 19,
2018, (83 FR 2869)]. In each of these situations, the driver spends
relatively little time driving and is off duty for substantial periods
of time during the day, making cumulative fatigue unlikely. In any
case, a 14-hour driving window has been allowed for most drivers since
early 2004, with no evidence of adverse effects. There is no reason to
believe that the experience of drivers of concrete pump vehicles will
be different.
VI. Terms and Conditions for the Exemption
(1) Drivers must return to the work reporting location and be
released from work within 14 consecutive hours of coming on duty.
(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'' FMCSA safety
ratings are prohibited from using this exemption.
Extent of the Exemption
This exemption is limited to the provisions of 49 CFR
395.1(e)(1)(ii)(A). These drivers must comply will all other applicable
provisions of the FMCSRs.
Preemption
In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR
381.600, during the period this exemption is in effect, no State shall
enforce any law or regulation applicable to interstate commerce that
conflicts with or is inconsistent with this exemption with respect to a
firm or person operating under the exemption. States may, but are not
required to, adopt the same exemption with respect to operations in
intrastate commerce.
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 CMVs operating under the terms of this
exemption. The notification must include the following information:
(a) Identity of the exemption: ``ACPA''
(b) Name of operating motor carrier and USDOT number,
(c) Date of the accident,
(d) City or town, and State, in which the accident occurred, or
closest to the accident scene,
(e) Driver's name and license number and State of issuance
(f) Vehicle number and State license plate number,
(g) Number of individuals suffering physical injury,
(h) Number of fatalities,
(i) The police-reported cause of the accident,
(j) Whether the driver was cited for violation of any traffic laws
or motor carrier safety regulations, and
(k) 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 of the exemption. The FMCSA will
immediately revoke or restrict the exemption for failure to comply with
its terms and conditions.
Issued on: October 25, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-23881 Filed 10-31-18; 8:45 am]
BILLING CODE 4910-EX-P