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

Raymond P. Martinez
Federal Motor Carrier Safety Administration
6 February 2019

[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Notices]
[Pages 2307-2309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-01267]


-----------------------------------------------------------------------

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 Exemptions

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

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

-----------------------------------------------------------------------

SUMMARY: FMCSA announces its decision to grant the American Concrete 
Pavement Association, Inc. (ACPA) exemptions from two requirements of 
the hours-of-service (HOS) regulations for drivers of certain 
commercial motor vehicles (CMVs): 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 will enable 
drivers transporting ready-mixed concrete and related materials and 
equipment in vehicles other than those outfitted with rotating mixer 
drums, 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 will 
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.

DATES: This exemption is applicable February 6, 2019 and expires 
February 6, 2024.

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

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-2018-0237'' 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 compliance with the current regulation (49 CFR 381.305). 
The decision of the Agency must be published in the Federal Register 
(49 CFR 381.315(b))

[[Page 2308]]

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 Exemptions

    ACPA seeks two exemptions for drivers transporting ready-mixed 
concrete and related materials and equipment from the hours-of-service 
(HOS) 30-minute rest break provision in 49 CFR 395.3(a)(3)(ii) and the 
restriction of the record of duty status (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)].
    ACPA requested the first exemption from the HOS rest break 
provision to allow drivers transporting ready-mixed concrete and 
related materials in vehicles other than those outfitted with rotating 
mixer drums, 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. According to ACPA, 
concrete mixtures are extremely perishable, as all steps in the process 
of a typical mainline paving project are time-critical. 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 delays the well-
orchestrated, just-in-time delivery 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. The 
criticality of concrete delivery from plant to paving site is arguably 
one of the most important factors in a paving process, according to 
ACPA.
    ACPA requested the second exemption to allow the 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.
    ACPA pointed out that FMCSA granted drivers of ready-mixed concrete 
delivery vehicles an exemption from the minimum 30-minute rest break 
provision (80 FR17819, April 2, 2015).\1\ Section 5206(b)(1)(A) of the 
Fixing America's Surface Transportation Act made that exemption 
permanent (Pub. L. 114-94, 129 Stat. 1312, 1537, Dec. 4, 2015). 
Similarly, on January 26, 2018, FMCSA granted an exemption to the 
National Asphalt Pavement Association (NAPA) for drivers transporting 
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 reasoning supporting the NAPA exemption is equally 
applicable to drivers of ready-mixed concrete vehicles. The ACPA stated 
that the same reasoning supporting the exemptions from the 30-minute 
break time rule and allowing a 14-hour daily on-duty period for drivers 
engaged in the transportation of asphalt and related materials and 
equipment applies to drivers of ready-mixed concrete vehicles.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    ACPA stated that drivers would remain subject to all other HOS 
regulations and would receive sufficient rest due to the nature of 
their operations that limit driving to an average of 80-100 miles per 
day during the paving season. ACPA believes that granting these 
exemptions would achieve the same level of safety provided by 
compliance with the two HOS rules. The requested exemptions are for 5 
years. A copy of ACPA's application for exemptions is available for 
review in the docket for this notice.

V. Public Comments

    On September 6, 2018, FMCSA published notice of this application 
and requested public comment (83 FR 45300). The Agency received 29 
comments. Nearly all the respondents supported the requested 
exemptions, including the Associated General Contractors of America 
(AGC), the American Road and Transportation Builders Association 
(ARTBA), Koss Construction Company (Koss), trucking companies, and 
individuals affiliated with the concrete paving industry.
    AGC said, ``In further recognition of the unique nature of 
construction operations and its outstanding safety record, Congress in 
the FAST Act provided the same two exemptions ACPA is seeking to 
drivers of ready-mixed concrete delivery vehicles. Both are perishable 
products that are not usable 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 to less than 40 miles, and the time spent driving 
a CMV is typically only a few hours per day. Thus, in both cases, 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.''
    ARTBA commented: ``Transportation construction industry drivers are 
not long-haul operators who consistently spend many consecutive hours 
on the road in a given day. They are short-haul drivers who typically 
travel less than 20 miles one way. Many of our drivers spend 
substantial amounts of time off the road during the work day, loading 
and unloading materials or equipment. Others may be responsible for 
positioning a piece of mobile equipment at the beginning of the work 
day, but may not be back behind the wheel until day's end, so that 
their daily drive time is actually minimal.''
    Koss echoed that comment: ``Concrete being delivered to our 
jobsites is time sensitive and the 30-minute rest period impacts the 
ability of our drivers to deliver our highly perishable material to the 
jobsite within the required time frame to meet each owner's stringent 
quality requirements. This needless loss of material is frustrating 
since production and delivery methods create significant rest periods 
throughout the day for our drivers that exceed the 30-minute DOT rest 
requirement. . . . Due to the limited construction season, we must 
maximize every available hour of daylight. Limiting our drivers to 12 
hours of on duty time creates additional cost by carrying extra 
resources to deploy creative shifts to maximize up time of our fleet.''
    One anonymous respondent opposed the requested exemptions. 
According to this individual, ``I ask that the 30-minute break remain a 
requirement. Further, I ask that the department consider revising the 
rules so that drivers engaged in physically demanding unloading within 
a 100-air mile radius are limited to 12 hours on duty rather than 14 or 
16.''

[[Page 2309]]

VI. FMCSA Decision

    FMCSA has evaluated ACPA's application and the public comments and 
decided to grant the exemptions. The Agency believes that all drivers 
transporting ready-mixed concrete and related materials and equipment 
in vehicles other than those outfitted with rotating mixer drums, will 
likely achieve a level of safety that is equivalent to or greater than, 
the level of safety achieved without the exemptions [49 CFR 
381.305(a)].
    The first exemption from the HOS 30-minute break provision will 
allow drivers transporting ready-mixed concrete and related materials 
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 will allow 
drivers to use the short-haul RODS exception but with a 14-hour duty 
period instead of the usual 12 hours.

VII. Terms and Conditions for the Exemptions

     Drivers must have a copy of this notice or equivalent 
signed FMCSA exemption document in their possession while operating 
under the terms of the exemptions. The exemption document must be 
presented to law enforcement officials upon request.
     Drivers must return to the work reporting location and be 
released from work within 14 consecutive hours.

Preemption

    In accordance with 49 U.S.C. 31315(d), during the period these 
exemptions are in 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 exemptions.

Notification to FMCSA

    Exempt motor carriers must notify FMCSA within 5 business days of 
any accident (as defined in 49 CFR 390.5), involving any of its CMVs 
operating under the terms of the exemptions. The notification must 
include the following information:
    (a) Name of the exemption: ``ACPA''
    (b) Name of the operating motor carrier,
    (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,
    (f) Vehicle number and State license 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, 
motor carrier safety regulations, and
    (k) The driver's 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 these exemptions will 
experience any deterioration of their safety record.
    Interested parties or organizations possessing information that 
would show that any or all of these motor carriers are not achieving 
the requisite level of safety should immediately notify FMCSA. The 
Agency will evaluate any information submitted and, if safety is being 
compromised or if the continuation of the exemptions is inconsistent 
with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA will immediately take 
steps to revoke the exemptions of the company or companies and drivers 
in question.

    Issued on: January 30, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-01267 Filed 2-5-19; 8:45 am]
 BILLING CODE 4910-EX-P