[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: [email protected]. 
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 
[email protected].

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