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
9 October 2019
[Federal Register Volume 84, Number 196 (Wednesday, October 9, 2019)]
[Notices]
[Pages 54267-54269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22065]
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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 renewal of exemption; request for comments.
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SUMMARY: FMCSA announces its decision to renew the American Concrete
Pumping Association (ACPA) 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 renewed exemption is effective October 9, 2019 and will
expire October 9, 2024. Comments must be received November 8, 2019.
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. Follow
the online instructions for submitting comments.
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, contact Ms. Pearlie Robinson, FMCSA Driver and Carrier
Operations Division; Office of Carrier, Driver and Vehicle Safety
Standards; 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 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
[[Page 54268]]
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.
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 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 specify the effective period and explain the
terms and conditions of the exemption. The exemption may be renewed (49
CFR 381.300(b)).
Because this document renews without substantive change an
exemption previously granted after public notice and consideration of
the comments received, FMCSA finds, pursuant to the good-cause
exception in 49 U.S.C. 553(b), that additional notice and opportunity
for comment are unnecessary. Since this notice grants an exemption and
relieves a restriction, 49 U.S.C. 553(d)(1) allows the exemption to be
made effective upon publication.
III. Background
On December 27, 2011 (76 FR 81133), FMCSA published a final rule
amending its HOS regulations for drivers of property-carrying CMVs. The
final rule adopted several changes to the HOS regulations including a
new provision requiring drivers to take a rest break of at least 30
minutes during the work day under certain circumstances.
FMCSA did not specify when drivers must take the break but the rule
requires that they wait no longer than 8 hours after the last off-duty
period of 30 minutes or more to take it if they want to drive a CMV.
Drivers who already take shorter breaks during the work day could
comply with the rule by extending one of those breaks to 30 minutes.
The new requirement took effect on July 1, 2013.
IV. Request for Exemption
On March 21, 2017, FMCSA granted ACPA an exemption from the 30-
minute break rule in 49 CFR 395.3(a)(3)(ii) (82 FR 14595). On November
1, 2018, the Agency granted ACPA an exemption from the requirements of
49 CFR 395.1(e)(1)(ii)(A) concerning the 12-hour limit in the short-
haul exception, allowing drivers up to 14 hours to return to the work-
reporting location. At that time, the Agency believed the short-haul
exemption eliminated the need for a separate exemption from the 30-
minute rest break provision. Subsequently, the Agency learned that some
ACPA members continue to need relief from the 30-minute rest break
despite the newly granted exemption from the short-haul 12-hour limit.
Therefore, ACPA applied for renewal of an exemption from the 30-minute
rest break provision [49 CFR 395.3(a)(3)(ii)].
The previously granted exemption excused qualifying concrete pump
operators, concrete pumping companies, and drivers who operate concrete
pumps in interstate commerce from the requirement to take the 30-minute
break. The ACPA represents more than 600 member companies who employ
over 7,000 workers nationwide. The renewed exemption applies to all
interstate operations of 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 cross State lines routinely.\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 the exemption because it states that the mandatory
30-minute rest break increases the risk of technical complications and
potentially costly problems at job sites. A mandatory 30-minute break
during which the concrete pump operator is ``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 the pump operator and any personnel within reach of the hose.
According to ACPA, concrete pump operators take rest breaks throughout
the day; therefore, an additional 30-minute rest break does not enhance
job safety.
ACPA added that concrete is a perishable product which creates
difficult schedule coordination issues since it is needed on a just-in-
time basis. ACPA continues to explain that 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. Per ACPA, 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.
ACPA asserts that renewing 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. ACPA's 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.
[[Page 54269]]
V. FMCSA Decision
FMCSA has received no reports of accidents attributable to the
previous 30-minute exemption. The renewal of 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. 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. The Agency grants the exemption
request subject to the terms and conditions in this notice.
VI. Terms and Conditions of the Exemption
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.
Drivers must possess a copy of this exemption while
operating under the terms of the exemption. The exemption document must
be presented to law enforcement officials upon request.
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) has
a retroactive effective date of March 17, 2019 through March 17, 2024,
11:59 p.m. local time.
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 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 prior to
the accident.
Reports filed under this provision shall be emailed to
MCPSD@DOT.GOV.
VII. 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: September 17, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-22065 Filed 10-8-19; 8:45 am]
BILLING CODE 4910-EX-P