[Federal Register Volume 75, Number 134 (Wednesday, July 14, 2010)]
[Proposed Rules]
[Pages 40765-40769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17138]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 395
[Docket No. FMCSA-2010-0230]
Hours of Service; Limited Exemption for the Distribution of
Anhydrous Ammonia in Agricultural Operations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
[[Page 40766]]
ACTION: Proposed exemption; request for public comment.
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SUMMARY: FMCSA announces its proposal to grant a 2-year, limited
exemption from the Federal hours-of-service regulations for the
transportation of anhydrous ammonia from any distribution point to a
local farm retailer or to the ultimate consumer, and from a local farm
retailer to the ultimate consumer, as long as the transportation takes
place within a 100 air-mile radius of the retail or wholesale
distribution point. This exemption would extend the agricultural
operations exemption established by section 345 of the National Highway
System Designation Act of 1995, as amended, by the sections 4115 and
4130 of the Safe, Accountable, Flexible, Efficient Transportation
Equity: A Legacy for Users (SAFETEA-LU) to certain drivers and motor
carriers engaged in the distribution of anhydrous ammonia during the
planting and harvesting seasons, as defined by the States in which the
carriers and drivers operate. The Agency believes that the exemption
would likely achieve a level of safety that is equivalent to, or
greater than, the level that would be achieved absent such exemption,
based on the terms and conditions imposed. This exemption would preempt
inconsistent State and local requirements applicable to interstate
commerce.
DATES: Comments must be received on or before August 13, 2010.
ADDRESSES: You may submit comments identified by Federal Docket
Management System Number FMCSA-2010-0230 by any of the following
methods
Web site: http://www.regulations.gov. Follow the
instructions for submitting comments on the Federal electronic docket
site.
Fax: 1-202-493-2251.
Mail: Docket Management Facility; U.S. Department of
Transportation, Room W-12-140, 1200 New Jersey Avenue, SE., 20590-0001.
Hand Delivery: Ground Floor, Room W12-140, DOT Building,
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.
e.t., Monday through Friday, except Federal Holidays.
Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments and
additional information on the exemption process, see the ``Public
Participation'' heading below. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the ``Privacy Act'' heading
below.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
the ground floor, room W12-140, DOT Building, 1200 New Jersey Avenue,
SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through
Friday, except Federal holidays.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
Privacy Act Statement for the Federal Docket Management System
published in the Federal Register on January 17, 2008 (73 FR 3316), or
you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Public Participation: The www.regulations.gov Web site is generally
available 24 hours each day, 365 days each year. You can obtain
electronic submission and retrieval help and guidelines under the
``help'' section of the http://www.regulations.gov Web site and also at
the DOT's http://docketsinfo.dot.gov Web site. If you want us to notify
you that we received your comments, please include a self-addressed,
stamped envelope or postcard or print the acknowledgement page that
appears after submitting comments online.
DATES: Comments must be received on or before August 13, 2010.
FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, Driver and
Carrier Operations Division, Office of Bus and Truck Standards and
Operations, Federal Motor Carrier Safety Administration, 1200 New
Jersey Ave., SE., Washington, DC 20590.
E-mail: [email protected]. Phone (202) 366-4325.
SUPPLEMENTARY INFORMATION:
Legal Basis
Section 4007(a) of the Transportation Equity Act for the 21st
Century (Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998) provided
the Secretary of Transportation (the Secretary) the authority to grant
exemptions from any of the Federal Motor Carrier Safety Regulations
(FMCSRs) issued under chapter 313 of title 49 of the United States Code
or 49 U.S.C. 31136, to a person(s) seeking regulatory relief (49 U.S.C.
31136, 31315(b)). Prior to granting an exemption, the Secretary must
request public comment and make a determination that the exemption is
likely to achieve a level of safety that is equivalent to, or greater
than, the level of safety that would be obtained in the absence of the
exemption. Exemptions may be granted for a period of up to two years
and may be renewed.
The FMCSA Administrator has been delegated authority under 49 CFR
1.73(e)(1) and (g) to carry out the functions vested in the Secretary
by 49 U.S.C. chapter 313 and subchapters I and III of chapter 311,
relating, respectively, to the commercial driver's license program and
to commercial motor vehicle (CMV) programs and safety regulation.
Background
On March 22, 2010, FMCSA published a notice in the Federal Register
announcing a limited 90-day waiver from the Federal hours-of-service
(HOS) regulations for the transportation of anhydrous ammonia from any
distribution point to a local farm retailer or to the ultimate
consumer, and from a local farm retailer to the ultimate consumer, as
long as the transportation takes place within a 100 air-mile radius of
the retail or wholesale distribution point (54 FR 13441). The waiver
extended the agricultural operations exemption established by section
345(a) of the National Highway System Designation Act of 1995 (NHS Act)
(Pub. L. 104-59, November 28, 1995, 109 Stat. 568, 613, 49 U.S.C. 31136
note, as amended by section 4130, redesignated by section 4115(a)(2) of
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005, 119
Stat. 1144, 1726) and implemented by 49 CFR 395.1(k)) to certain
drivers and motor carriers engaged in the distribution of anhydrous
ammonia during the 2010 spring planting season.
The FMCSA's notice indicated that the Agency had been contacted by
members of Congress concerning the Agency's interpretation of the
agricultural exemption provided in section 345(a) of the NHS.
Constituents engaged in the transportation of farm supplies--
particularly anhydrous ammonia--contacted the members to express
concerns that the Agency's interpretation of the agricultural exemption
results in the exclusion of certain distribution activities from the
regulatory relief intended by Congress.
As amended by section 4130(a) of SAFETEA-LU, the agricultural
provision reads as follows:
Transportation of agricultural commodities and farm supplies.--
Regulations prescribed by the Secretary under sections 31136 and
[[Page 40767]]
31502 regarding maximum driving and on-duty time for drivers used by
motor carriers shall not apply during planting and harvest periods,
as determined by each State, to drivers transporting agricultural
commodities or farm supplies for agricultural purposes in a State if
such transportation is limited to an area within a 100 air mile
radius from the source of the commodities or the distribution point
for the farm supplies (119 Stat. 1743).
In its Notice, the Agency indicated that it has long understood
that limited farm storage capacity necessitates a ``just in time''
delivery system from retail distributors of certain farm supplies to
farms (or other locations where the farm supply product will be used)
during the busy planting and harvesting seasons. Longstanding FMCSA
guidance on its HOS regulations has consistently held that the
agricultural operations exemption applies to the transportation of farm
supplies from the local farm retailer to the ultimate consumer within a
100 air-mile radius. FMCSA's interpretation, however, has not extended
the HOS exemption to deliveries from wholesalers to either local farm
retailers or farms. (See Question 33, 49 CFR 395.1 on the Agency's Web
site: http://www.fmcsa.dot.gov.) Question 33 reads as follows:
Question 33: How is ``point of origin'' defined for the purpose
of Sec. 395.1(k)?
Guidance: The term ``point of origin'' is not used in the NHS
Designation Act; the statutory term is ``source of the
[agricultural] commodities.'' The exemption created by the Act
applies to two types of transportation. The first type is
transportation from the source of the agricultural commodity -where
the product is grown or raised--to a location within a 100 air-mile
radius of the source. The second type is transportation from a
retail distribution point of the farm supply to a location (farm or
other location where the farm supply product would be used) within a
100 air-mile radius of the retail distribution point.
The legislative history of the agricultural exemption indicates
it was intended to only apply to retail store deliveries. Thus, it
is clear Congress intended to limit this exemption to retail
distributors of farm supplies.
Second-stage movements, such as grain hauled from an elevator
(or sugar beets from a cold storage facility) to a processing plant,
are more likely to fall outside the exempt radius. Similarly, the
exemption does not apply to a wholesaler's transportation of an
agricultural chemical to a local cooperative because this is not a
retail delivery to an ultimate consumer, even if it is within the100
air-mile radius.
The Agency believes that the exclusive emphasis of its regulatory
guidance on deliveries from local retailers to the ultimate farm
consumer may not reflect today's economic reality as it pertains to the
transportation of anhydrous ammonia during planting and harvesting
seasons. Like farms, local retailers have limited storage capacity and
therefore must constantly replenish certain supplies during the
planting and harvesting seasons. They are part of the ``just in time''
distribution system that extends from a wholesaler to the ultimate
consumer of the supplies.
Because of storage and time constraints on the demand for the
transportation of anhydrous ammonia to support agricultural operations,
and the likelihood that such constraints will continue for some time,
FMCSA is proposing a two-year, limited exemption to provide regulatory
relief for the transportation of anhydrous ammonia during the planting
and harvesting seasons, as defined by the States in which the anhydrous
ammonia transporters operate. This action would provide limited
regulatory relief to facilitate planting activities that will
ultimately result in the production of agricultural commodities at
prices to which consumers have become accustomed, with no foreseeable
degradation of safety.
The exemption would extend the agricultural operations exemption
from the Federal HOS regulations to motor carriers in the distribution
system, provided that: (1) The driver is delivering anhydrous ammonia;
(2) none of the transportation movements within the distribution chain
exceeds a 100 air-mile radius--whether from the retail or wholesale
distribution point; and (3) the driver is employed by a motor carrier
that has a ``satisfactory'' safety rating or is unrated; drivers for
motor carriers with ``conditional'' or ``unsatisfactory'' safety
ratings are prohibited from taking advantage of the exemption.
Therefore, the exemption would allow drivers for motor carriers with a
satisfactory safety rating or unrated motor carriers to use the HOS
exemption when delivering anhydrous ammonia from any distribution point
to a local farm retailer or to the ultimate consumer, and from a local
farm retailer to the ultimate consumer, as long as the transportation
takes place within a 100 air-mile radius of the retail or wholesale
distribution point. This exemption would take effect on the date of
publication of a final decision.
Safety Determination
FMCSA is committed to ensuring high standards of motor carrier
safety. The Agency has considered the available data concerning the
safety performance of agricultural operations in general, and the
safety performance of anhydrous ammonia transporters during the 90-day,
limited waiver granted earlier this year.
FMCSA compared safety performance data for agricultural carriers
currently operating under the statutory HOS exemption provided by the
NHS Act, as amended, with non-agricultural carriers that are not exempt
from HOS regulations to determine whether the exemption would be likely
to achieve a level of safety that is equivalent to, or greater than,
the level of safety that would be obtained in the absence of the
exemption. The data were collected as part of a study, ``Agricultural
Commodity and Utility Carriers Hours of Service Exemption Analysis,''
May 2010, FMCSA-RRA-10-448 A copy of the report has been placed in the
public docket identified at the beginning of this notice.
The study was conducted in two phases. Phase 1 compares the safety
performance of agricultural and non-agricultural carriers for the
period 2005 through 2008, and also examines two additional industries,
livestock and utility carriers, whose operations were not exempt from
HOS regulations prior to the passage of SAFETEA-LU.\1\ The Phase 1
analysis used carrier registration, inspection and crash data from
FMCSA's Motor Carrier Management Information System (MCMIS). The study
used cargo classification information on the FMCSA Motor Carrier
Identification Report (Form MCS-150) in MCMIS to identify the carrier's
industry group (agricultural, livestock, or utility carrier), and used
MCS-150 information to identify carriers operating within and beyond a
100-air-mile radius. The operating radius information was used to
create two agricultural carrier subgroups: (1) Agricultural carriers
with 100 percent of drivers operating within a 100-air-mile radius; and
(2) agricultural carriers with 100 percent of drivers operating beyond
a 100-air-mile radius. The analysis used the first subgroup as
representative of agricultural carriers exempt from the HOS
requirements, and the second subgroup as representative of agricultural
carriers not exempt from the HOS requirements.
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\1\ Section 4130(a).
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For the Phase 2 analysis, inspection data of agricultural commodity
and utility carriers (which are also exempt from HOS regulations) was
collected during an FMCSA special study of a sample of States. These
data included only those inspections occurring during the States'
planting and harvesting seasons and indicated both the commodity being
transported and
[[Page 40768]]
whether the driver was operating within or beyond the 100-air-mile
radius exempt from HOS regulations. The Phase 2 analysis assessed the
safety performance of the HOS exempt agricultural commodity and utility
service carriers identified in the survey in comparison with non-HOS-
exempt carriers based on their out of service (OOS) violation rates and
crash rates.
The Agency did not place as much of an emphasis on the OOS rates
because there were no HOS violation data to consider, given that the
agricultural carriers for which data were available were operating
under a statutory exemption from the HOS rule. Differences between the
OOS rates for other issues such as driver qualifications and vehicle
defects and deficiencies, while important in considering overall safety
management controls of the carriers, were not necessarily related to
the potential safety impact of the exemption.
The Phase 1 analysis indicates that nationally, agricultural
carriers operating within a 100-air-mile radius had lower crash rates
per 100 power units than those operating beyond this radius, except for
in 2008, when there was no difference in the crash rates.
To provide additional validation of the crash analysis, which uses
power unit data reported on the Form MCS-150, a separate analysis was
performed using data only for carriers domiciled in States
participating in the Performance and Registration Information Systems
Management (PRISM) program that enforces MCS-150 updating.\2\ PRISM
links State motor vehicle registration systems with carrier safety data
in order to identify unsafe commercial motor carriers. The PRISM State
carriers are required to update their MCS-150 annually. By contrast,
non-PRISM State carriers are required by FMCSA to update their MCS-150
biennially. As a result, the PRISM State data are considered more
current and reliable than non-PRISM State data where there are no
direct consequences for not updating the data. Data from PRISM States
that enforce MCS-150 updating show that agricultural carriers operating
within a 100-air-mile radius had more varied results, with crash rates
higher than carriers operating beyond a 100-air-mile radius in 2008,
lower in 2006 and 2007, and nearly the same in 2005.
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\2\ Current PRISM States that enforce the MCS-150 updating
requirement are Alabama, Arizona, Arkansas, Connecticut, Georgia,
Iowa, Kentucky, Louisiana, Maine, Minnesota, Missouri, Nebraska, New
Hampshire, New Mexico, North Carolina, Ohio, South Carolina, South
Dakota, Tennessee, Utah, Vermont, Washington, and West Virginia.
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The Phase 2 analysis indicates that in the four States
participating in the survey (Idaho, Kansas, Maryland, Michigan),
agricultural carriers that were subject to the HOS requirements had
higher crash rates per 100 power units than agricultural carriers
exempt from the HOS requirements.
In addition to the study, the Agency considered information from
the Pipeline and Hazardous Materials Safety Administration's (PHMSA)
Hazardous Materials Incident Reporting Systems and from FMCSA field
offices concerning the safety performance of anhydrous ammonia
transporters during the limited 90-day waiver mentioned above. With
respect to information from PHMSA, the Agency received information
about five anhydrous ammonia incidents. Only one of the five involved a
crash and that crash involved a driver who had been on duty only two
hours after having two consecutive days off duty. Copies of all five
incident reports are included in the docket referenced at the beginning
of this notice.
With regard to information from FMCSA's field offices, the Agency
did not receive any information about accidents, as defined in 49 CFR
390.5, involving motor carriers transporting anhydrous ammonia using
drivers operating under the limited 90-day waiver. The Agency
acknowledges that there is a gap between the date that a crash occurs
and the date the States would typically submit crash reports. However,
because FMCSA sought information through its field offices rather than
relying solely on routine crash reporting by State enforcement
agencies, it is unlikely that there have been any crashes resulting in
fatalities or injuries, involving a driver operating under the limited
90-day waiver. The Agency requests comments from all interested parties
that may have information concerning any crashes involving drivers
operating under the limited 90-day waiver.
In the absence of any data or information to the contrary, the
Agency believes the real-world experience of anhydrous ammonia
transporters during the 90-day limited waiver suggests that the level
of safety under an exemption would be equivalent to, or greater than,
the level that would be achieved absent such exemption.
FMCSA Proposal
In light of the information described above, FMCSA is proposing a
two-year limited exemption from the Federal HOS regulations for
interstate motor carriers engaged in the distribution of anhydrous
ammonia during the planting and harvesting seasons as defined by the
States. A review of the available crash data comparing exempt and non-
exempt motor carriers, and a review of crash data from anhydrous
ammonia transporters operating during the limited 90-day waiver provide
a reasonable basis to believe that a limited exemption would achieve a
level of safety that is equivalent to, or greater than, the level that
would be achieved absent such exemption, based on the terms and
conditions that would be imposed.
Proposed Terms and Conditions of the Exemption
The FMCSA would provide a two-year, limited exemption from the
requirements of 49 CFR part 395 concerning the HOS requirements for
drivers of property-carrying vehicles engaged in the distribution of
anhydrous ammonia during the relevant planting and harvesting seasons.
This limited exemption would extend the agricultural operations
exemption from the Federal HOS regulations to drivers used by motor
carriers in the distribution system, provided that: (1) The driver is
delivering anhydrous ammonia; (2) none of the transportation movements
within the distribution chain exceeds a 100 air-mile radius--whether
from the retail or wholesale distribution point; and (3) the motor
carrier using the driver has a ``satisfactory'' safety rating or is
``unrated;'' drivers for motor carriers with ``conditional'' or
``unsatisfactory'' safety ratings are prohibited from taking advantage
of the exemption.
The exemption would allow drivers for ``unrated'' motor carriers
and those with a satisfactory safety rating to use the HOS exemption
when the drivers are delivering anhydrous ammonia from any distribution
point to a local farm retailer or to the ultimate consumer, and from a
local farm retailer to the ultimate consumer, as long as the
transportation takes place within a 100 air-mile radius of the retail
or wholesale distribution point.
Safety Rating
Motor carriers that have received compliance reviews and want their
drivers to be exempt from the HOS regulations are required to have a
``satisfactory'' rating. The compliance review is an on-site
examination of a motor carrier's operations, including records on
drivers' hours of service, maintenance and inspection, driver
qualification, commercial driver's license requirements, financial
responsibility, accidents, hazardous materials, and other safety and
[[Page 40769]]
transportation records to determine whether a motor carrier meets the
safety fitness standard. The assignment of a ``satisfactory'' rating
means the motor carrier has in place adequate safety management
controls to comply with the Federal safety regulations, and that the
safety management controls are appropriate for the size and type of
operation of the motor carrier.
FMCSA would also allow drivers for ``unrated'' carriers to take
advantage of the exemption. Unrated motor carriers are those that have
not received a compliance review. FMCSA is allowing drivers for unrated
motor carriers to participate because it would be unfair to exclude
them simply because these carriers were not selected by the Agency for
a compliance review. The absence of a compliance review is in no way an
indication that the carrier has done anything wrong or has safety
problems.
The Agency would not allow drivers for motor carriers with
conditional or unsatisfactory ratings to participate because both of
those ratings indicate that the carrier has safety management control
problems. There is little reason to believe that carriers rated either
unsatisfactory or conditional could be relied upon to comply with the
terms and conditions of the exemption.
Accident and Hazardous Materials Reporting Requirement
Within 10 business days following an accident (as defined in 49 CFR
390.5) or any unintentional discharge of anhydrous ammonia that
requires the submission of the Department of Transportation Hazardous
Materials Incident Report (DOT Form F 5800.1) (see 49 CFR 171.16)
involving any of the CMVs operated by a motor carrier whose drivers are
using the exemption, irrespective of whether the CMV involved in the
accident or discharge was being operated by a driver using the
exemption, the motor carrier must submit the following information:
(a) Date of the accident;
(b) City or town in which the accident occurred, or city or town
closest to the scene of the accident;
(c) Driver's name and license number;
(d) Vehicle number and State license number;
(e) Number of injuries;
(f) Number of fatalities;
(g) Whether hazardous materials, other than fuel spilled from the
fuel tanks of the motor vehicles involved in the accident, were
released;
(h) The police-reported cause of the accident;
(i) Whether the driver was cited for violating any traffic laws,
motor carrier safety regulations, or hazardous materials discharge; and
(j) Whether the driver was operating under the exemption, and if
so, an estimate of the total driving time, on-duty time for the day of
the accident and each of the seven calendar days prior to the accident.
Duration of the Exemption
The exemption would be effective upon publication in the Federal
Register and would be valid for up to two years unless revoked earlier
by FMCSA. The exemption may be renewed by the Agency; the Agency would
provide notice and an opportunity for public comment prior to renewing
the exemption. The exemption would preempt inconsistent State or local
requirements applicable to interstate commerce.
Safety Oversight of Carriers Operating Under the Exemption
FMCSA expects that any drivers and their employing motor carrier
operating under the terms and conditions of the exemption will maintain
their safety record. Should any deterioration occur, however, FMCSA
would, consistent with the statutory requirements of TEA-21, take all
steps necessary to protect the public interest. Use of the exemption
would be voluntary, and FMCSA will immediately revoke the exemption for
any interstate driver or motor carrier for failure to comply with the
terms and conditions exemption.
Request for Comments
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA
requests public comment on the proposed exemption from the HOS
requirements of 49 CFR part 395 for drivers and their employing motor
carriers transporting anhydrous ammonia. The Agency will consider all
comments received by close of business on August 13, 2010. Comments
will be available for examination in the docket at the location listed
under the ADDRESSES section of this notice. The Agency will consider to
the extent practicable comments received in the public docket after the
closing date of the comment period.
Issued on: July 8, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-17138 Filed 7-13-10; 8:45 am]
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