Hours of Service of Drivers: American Concrete Pumping Association (ACPA); Application for Exemption

Larry W. Minor
Federal Motor Carrier Safety Administration
25 October 2016

[Federal Register Volume 81, Number 206 (Tuesday, October 25, 2016)]
[Notices]
[Pages 73465-73466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25755]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2016-0342]


Hours of Service of Drivers: American Concrete Pumping 
Association (ACPA); 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 Pumping Association (ACPA) for an exemption from the 
30-minute rest break provision of the Agency's hours-of-service (HOS) 
regulations for commercial motor vehicle (CMV) drivers. ACPA requests 
that concrete pump operators be allowed 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 requested exemption would apply industry-wide to all 
concrete pump operators, concrete pumping companies and drivers who 
operate concrete pumps. Due to the nature of pumper operations, ACPA 
believes that compliance with the 30-minute rest break rule increases 
the risk of dangerous conditions on job sites. ACPA also asserts that 
concrete pump operators already take regular rest breaks throughout the 
typical day, depending on the work flow at the job site, so an 
additional 30-minute rest break does not enhance overall job safety. 
FMCSA requests public comment on ACPA's application for exemption.

DATES: Comments must be received on or before November 25, 2016.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2016-0342 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. 
E.T., 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. Tom Yager, Chief, FMCSA Driver and Carrier 
Operations Division; Telephone: (614) 942-6477; 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-2016-0342), 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-2016-0342'' 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 and explain 
the terms and conditions of the exemption. The exemption may be renewed 
(49 CFR 381.300(b)).

[[Page 73466]]

III. Request for Exemption

    On December 27, 2011 (76 FR 81133), FMCSA published a final rule 
amending its hours-of-service (HOS) regulations for drivers of 
property-carrying CMVs. The final rule adopted several changes to the 
HOS regulations, including a provision requiring drivers to take a rest 
break during the work day under certain circumstances. Drivers may 
drive a CMV only if 8 hours or less have passed since the end of the 
driver's last off-duty or sleeper-berth period of at least 30 minutes. 
FMCSA did not specify when drivers must take the 30-minute break, but 
the rule requires that they wait no longer than 8 hours after the last 
off-duty or sleeper-berth period of that length or longer to take the 
break if they want to drive a CMV.
    ACPA seeks an exemption from the 30-minute rest break provision in 
49 CFR 395.3(a)(3)(ii). 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 have jurisdiction over intrastate 
transporation; however, most States have commercial motor vehicle 
statutes and regulations that are compatible with Federal 
regulations. An FMCSA exemption only applies to interstate 
transportation, although some States honor them for intrastate 
traffic.
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    ACPA requests the exemption for the following reasons: First, it 
argues that the mandatory 30-minute rest break increases the risk of 
dangerous conditions on job sites. A mandatory 30-minute rest break 
during which the concrete pump operator is considered to be ``off-
duty'' would require the concrete pump to be shut down, and likely 
cleaned out. Stopping the flow of concrete through the pump creates the 
risk of introducing air in the pump's pipe system. When air gets in the 
pump's pipe system, the risk of hose whipping is created, which can 
injure not only the pump operator, but any personnel within reach of 
the hose.
    Secondly, concrete pump operators already take rest breaks 
throughout the typical day that reflect the work flow at the job site, 
so an additional minimum 30-minute rest break does not enhance job 
safety.
    ACPA states that when concrete companies expect a 9-hour job and it 
ends up being 2-3 hours longer, most of that additional time is spent 
waiting on concrete and doing nothing more than recirculating the 
concrete in the pump about every 10-15 minutes to avoid hardening and 
the introduction of air pockets in the pipe system. 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. Another 30-minute break limits the operator's ability to return 
the concrete pump to the shop within the daily 14-hour driving window.
    According to ACPA, concrete is a perishable product. The perishable 
nature of concrete also creates difficult schedule coordination issues 
due to concrete being needed on a just-in-time basis. A concrete pump 
operator cannot plan the timing of the 30-minute break, as they cannot 
interrupt their work activity without the threat of failure--failure to 
accept and deliver concrete within its perishable limits and failure by 
violating their contracts. Once the ingredients of ready-mixed concrete 
have been combined, there is a brief window during which the product 
can be pumped (roughly 90 minutes before the concrete hardens). Should 
the concrete pump operator be required to take a 30-minute off-duty 
break, it would cause a ripple effect on the ready-mix concrete trucks 
in line to supply the pump. Such a delay could cost thousands of 
dollars to rectify and could potentially violate a delivery contract. 
Once the concrete pump starts to receive a delivery, it must be 
completed, without disruption to conduct a safe and structurally sound 
pour.
    Furthermore, 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 incorporating the 30-minute rest break is incredibly 
complicated, verging on impossible in cases when some concrete 
companies operate under different FMCSA rules. ACPA mentioned that the 
ready-mixed drivers were granted an exemption from the minimum 30-
minute rest break provision.\2\ As a result of this, if a concrete pump 
operator has worked 8 hours when the ready-mixed truck arrives, it is 
impossible for the concrete pump operator to take his or her 30-minute 
break since he/she has to place the concrete.
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    \2\ More precisely, section 5521 of the Fixing America's Surface 
Transportation (FAST) Act, exempts a ``driver of a ready mixed 
concrete delivery vehicle'' from all of the normal hours-of-service 
regulations, including the 30-minute break rule, who operates within 
a 100 air-mile radius of his/her normal work reporting location and 
meets certain other requirements [Pub. L. 114-94, 129 Stat. 1312, 
1559, Dec. 4, 2015, codified at 49 U.S.C. 31502(f)]. In addition, 
FMCSA granted drivers of ready mixed concrete trucks an exemption 
from the 30-minute break requirement [80 FR 17819, April 2, 2015], 
which section 5206(b)(1)(A) of the FAST Act made into permanent law 
[129 Stat. 1312, 1537].
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    ACPA believes that granting this exemption would achieve the same 
level of safety provided by the rule requiring the 30-minute rest 
break. The Association states that the concrete pumping industry has a 
solid safety record, and that concrete pump operators already receive 
numerous breaks throughout the work day. The ACPA Operation 
Certification Program ensures, encourages, and educates the industry on 
safe pumping and placement procedures. These safety practices allow 
concrete operators to maintain their safety record through careful 
training and well-developed safety guidelines.
    A copy of the ACPA's application for exemption is available for 
review in the docket for this notice.

    Issued on: October 17, 2016.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2016-25755 Filed 10-24-16; 8:45 am]
 BILLING CODE 4910-EX-P