[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 
[email protected]

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


