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

G. Kelly Regal
Federal Motor Carrier Safety Administration
21 March 2017

[Federal Register Volume 82, Number 53 (Tuesday, March 21, 2017)]
[Notices]
[Pages 14595-14597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05522]


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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 final disposition; grant of application for 
exemption.

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SUMMARY: FMCSA announces its decision to grant the American Concrete 
Pumping Association (ACPA) and others an exemption from the 30-minute 
rest break requirement in the Agency's hours-of-service (HOS) 
regulations for commercial motor vehicle (CMV) drivers. The exemption 
enables all concrete pump operators, concrete pumping companies, and 
drivers who operate concrete pumps in interstate commerce to count on-
duty time while attending equipment but performing no other work-
related activity, toward the 30-minute rest break provision of the HOS 
regulations. 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: The exemption is effective on March 21, 2017 and expires on 
March 21, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver 
and Carrier Operations Division; Office of Carrier, Driver, and Vehicle 
Safety Standards; Telephone: (614) 942-6477. Email: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION: 

Background

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the Federal Motor Carrier Safety 
Regulations. 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 the safety analyses and public comments, 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 specific 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 of the 
exemption, and explain the terms and conditions of the exemption. The 
exemption may be renewed (49 CFR 381.300(b)).

Request for Exemption

    The American Concrete Pumping Association (ACPA) represents more 
than 600 member companies who employ over 7,000 workers nationwide. The 
exemption would be applied to all interstate concrete pumper trucks and 
their operators, regardless of the motor carrier or membership in ACPA. 
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 
transportation; 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 an exemption from the 30-minute rest break provision 
in 49 CFR 395.3(a)(3)(ii). The exemption would apply industry-wide to 
all concrete pump operators, concrete pumping companies and drivers who 
deliver, set-up, and operate concrete pumps in interstate commerce 
across the United States. ACPA requests the exemption because it states 
that the mandatory 30-minute rest break increases the risk of dangerous 
conditions on job sites. A mandatory break during which the concrete 
pump operator is considered to be ``off duty'' would require the 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 which in turn could cause hose-whipping that can injure not only 
the pump operator, but any personnel within reach of the hose. Concrete 
pump operators also already take rest breaks throughout the typical day 
that reflect the work flow at the job site, so an additional 30-minute 
rest break does not enhance job safety.
    ACPA added that 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. Concrete pump 
operators 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 to 
comply with 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 the 30-minute 
rest break, it would cause a ripple effect on the ready-mixed 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, 
according to ACPA. Once the concrete pump starts to receive a delivery, 
it must be completed without disruption

[[Page 14596]]

to conduct a safe and structurally sound pour.
    Further details regarding this industry's safety controls can be 
found in the application for exemption, which can be accessed in the 
docket identified at the beginning of this notice. ACPA asserted that 
granting this exemption would achieve the same level of safety provided 
by the rule requiring the 30-minute rest break. The Association stated 
that the concrete pumping industry has a ``solid'' safety record, and 
that concrete pump operators already receive numerous other breaks 
throughout the workday. ACPA's Operation Certification Program ensures, 
encourages, and educates the industry on safe pumping and placement 
procedures, and these safety practices allow concrete operators to 
maintain their safety record through careful training and well-
developed safety guidelines. The proposed exemption would be effective 
for 2 years.

Public Comments

    On October 25, 2016, FMCSA published notice of this application, 
and requested public comment (81 FR 73465); four responses were 
submitted. Comments in favor of the proposed exemption were submitted 
by the Western States Trucking Association (WSTA) (formerly known as 
the California Construction Trucking Association (CCTA)); and the 
National Ready Mixed Concrete Association (NRMCA). Comments in 
opposition to the proposed exemption were submitted by the 
International Brotherhood of Teamsters (IBT). One individual commenter 
took no formal position on the exemption request.
    WSTA stated that it ``is supportive of FMCSA granting the exemption 
requested by the ACPA from the 30-minute rest break provision in 49 CFR 
395.3(a) (3) (ii). Concrete is a perishable commodity and as such once 
the pump-operator begins pumping concrete, needing to comply with the 
30-minute break requirement can have significant negative ramifications 
for both the product and machinery.'' WSTA added that the ready-mixed 
concrete drivers delivering product to a work site that is dependent on 
the pump operator performing their job function are already exempted 
from the 30-minute break requirements. WSTA referenced their prior 
support of the ready-mixed concrete request several years earlier, and 
further noted that in those same comments they had requested FMCSA to 
expand the 30-minute break exemption to operators of concrete pumpers.
    NRMCA also supported the ACPA exemption request. As the 
representative of one of the primary material suppliers discharging 
into concrete pumps, NRMCA asserted that all the claims made and 
scenarios outlined by ACPA are legitimate and thus valid reasons for 
granting the requested exemption. NRMCA confirmed APCA's concerns about 
ready mixed concrete being a perishable product and thus requiring a 
30-minute break to be taken at a likely improbable time risks worker 
safety, equipment malfunctions and the delicate coordination required 
between ready mixed concrete deliveries and the concrete pump 
operators. Due to the nature of concrete pump operators' schedules and 
inherent work practices, NRMCA agreed that requiring a 30-minute break 
for concrete pump operators would not provide an increased level of 
safety on our nation's roadways, but in turn would likely create a 
potentially unsafe work environment.
    The International Brotherhood of Teamsters (IBT) opposed the 
proposed exemption. IBT strongly objected to allowing this class of 
drivers to use 30 minutes of on-duty ``waiting time'' to satisfy the 
requirement for the rest break. IBT cites APCA's argument that the 30-
minute rest break would require the concrete pump to be shut down and 
cleaned out. Stopping the concrete flow, according to ACPA, creates the 
risk of introducing air into the pipe system and the attendant risk of 
hose whipping. ACPA stated, according to the IBT, that a hose whipping 
violently could injure the pump operator and any other workers within 
reach of the discharge hose. However, IBT contends that ACPA failed to 
provide any data supporting the contention that this is a frequent 
occurrence that has caused accidents and even deaths. IBT states that 
the rest break provision has been in effect since 2011, more than 
sufficient time to collect data to support ACPA's claims of a safer 
workplace if the exemption was granted.

FMCSA Decision

    FMCSA has evaluated APCA'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)]. It is important to note that the Agency 
is not granting a complete exemption from the 30-minute rest break 
provision required by 49 CFR 395.3(a)(iii)(2). Instead, FMCSA is 
granting an exemption for concrete pump operators and drivers who 
remain with the CMV (i.e., wait) while not performing any other work-
related activities to count that time toward the 30-minute break. The 
only subject of the exemption is the duty status of the driver while 
``waiting'' with the vehicle during a required rest break. Like drivers 
of trucks carrying certain kinds of explosives (Sec.  395.1(q)) drivers 
of concrete pump trucks will be allowed to use the 30-minute on-duty 
periods in attendance of the vehicles, while performing no other work, 
to meet the requirement for a rest break. A similar exemption from the 
30-minute rest break was granted to the National Ready Mixed Concrete 
Association (NRMCA) on April 2, 2015 [80 FR 17819]. The Agency grants 
the exemption request subject to the terms and conditions in this 
notice.

Terms and Conditions of the Exemption

    (1) Drivers who deliver, set-up, and operate concrete pumps in 
interstate commerce across the United States, and all concrete pump 
operators and concrete pumping companies and drivers, are exempt from 
the requirement for a 30-minute rest break in Section 395.3(a)(3)(ii), 
in that they may count ``waiting'' periods when they are performing no 
work activity as the required 30-minute break.
    (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.

Period of the Exemption

    This exemption from the requirements of 49 CFR 395.3(a)(3)(ii) is 
granted for the period from March 21, 2017 through March 21, 2019.

Extent of the Exemption

    This exemption is limited to the provisions of 49 CFR 
395.3(a)(3)(ii). 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

[[Page 14597]]

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: March 10, 2017.
Daphne Y. Jefferson,
Deputy Administrator.
[FR Doc. 2017-05522 Filed 3-20-17; 8:45 am]
BILLING CODE 4910-EX-P