[Federal Register Volume 75, Number 54 (Monday, March 22, 2010)]
[Rules and Regulations]
[Pages 13441-13444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6244]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 395
Hours of Service; Limited 90-Day Waiver for the Distribution of
Anhydrous Ammonia in Agricultural Operations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Grant of waiver.
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SUMMARY: FMCSA grants 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. This waiver
extends 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 motor carriers engaged in the distribution of anhydrous ammonia
during the 2010 spring planting season. The Agency has determined that
the waiver 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 waiver
preempts inconsistent State and local requirements applicable to
interstate commerce.
DATES: The waiver is effective March 22, 2010. The waiver expires on
June 21, 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
The Transportation Equity Act for the 21st Century (TEA-21) (Pub.
L. 105-178, 112 Stat. 107, June 9, 1998) provides the Secretary of
Transportation (the Secretary) the authority to grant waivers 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(a))
The Secretary must make a determination that the waiver is in the
public interest, and that it 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 waiver. Individual waivers may only
be granted to a person for a specific unique, non-emergency event, for
a period up to three months. TEA-21 authorizes the Secretary to grant
waivers without requesting public comment, and without providing public
notice.
The Administrator of FMCSA has been delegated authority under 49
CFR
[[Page 13442]]
1.73(g) to carry out the functions vested in the Secretary by 49 U.S.C.
chapter 311, subchapters I and III, relating to commercial motor
vehicle programs and safety regulation.
Background
The FMCSA has been contacted by members of Congress concerning the
Agency's interpretation of the agricultural exemption provided in
section 345(a) of the National Highway System (NHS) Designation Act of
1995, Public Law 104-59, November 28, 1995, 109 Stat. 568, 613, 49
U.S.C. 31136 note. Constituents engaged in the transportation of farm
supplies--particularly anhydrous ammonia--contacted the members to
express concerns that the Agency's implementation of the agricultural
exemption results in the exclusion of certain distribution activities
from the regulatory relief intended by Congress.
As amended by SAFETEA-LU, the agricultural provision reads as
follows:
Transportation of agricultural commodities and farm supplies.--
Regulations prescribed by the Secretary under sections 31136 and
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.
The Agency has long understood that limited farm storage capacity
necessitates a ``just in time'' delivery system from retail
distributors of 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 allowed 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 located at port or terminal facilities 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 the
100 air-mile radius.
The Agency's re-examination of the issue has made it clear that the
exclusive emphasis of the Agency's regulatory guidance on deliveries
from local retailers to the ultimate farm consumer may not reflect
today's economic reality. Like farms, local retailers have limited
storage capacity and therefore must constantly replenish their 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.
Given this reality, FMCSA has determined that is in the public
interest to issue a waiver to provide regulatory relief for the
transportation of anhydrous ammonia during the 2010 spring planting
season. This action is in the public interest because it provides
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, without compromising
safety.
This waiver extends the agricultural operations exemption from the
Federal HOS regulations to motor carriers in the distribution system,
provided that: (1) The motor carrier is delivering anhydrous ammonia;
(2) none of the transportation movements within the distribution chain
exceed a 100 air-mile radius--whether from the retail or wholesale
distribution point; and (3) the motor carrier has a ``satisfactory''
safety rating or is unrated; motor carriers with ``conditional'' or
``unsatisfactory'' safety ratings are prohibited from taking advantage
of the waiver. Therefore, the waiver allows motor carriers with a
satisfactory safety rating or unrated motor carriers to use the HOS
exemption when their 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. This waiver is effective
immediately.
Safety Determination
The FMCSA compared safety performance data for agricultural
carriers currently operating under the statutory HOS exemption provided
by the NHS, as amended, with non-agricultural carriers that are not
exempt from HOS regulations to determine whether the waiver 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
waiver. The data were collected as part of a study, ``Agricultural
Commodity and Utility Carriers Hours of Service Exemption Analysis.''
The final report from the study will be published later this year.
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
[[Page 13443]]
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 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.
For the purposes of considering whether to issue a limited waiver,
FMCSA focused on the crash rate data from the study. 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 waiver.
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 is no direct
implication 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 (ID, KS, MD, MI), 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.
FMCSA Determination
In consideration of the above, FMCSA has determined that it is in
the public interest to provide a limited waiver from the Federal HOS
regulations for interstate motor carriers engaged in the distribution
of anhydrous ammonia during the 2010 spring planting season. A review
of the available crash data comparing motor carriers currently
operating under the NHS exemption from the HOS regulations provides a
basis for determining that a limited waiver 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
imposed.
Terms and Conditions of the Waiver
The FMCSA is providing a waiver from the requirements of 49 CFR
part 395 concerning the HOS requirements for drivers of property-
carrying vehicles for certain motor carriers engaged in the
distribution of anhydrous ammonia during the 2010 spring planting
season.
This waiver extends the agricultural operations exemption from the
Federal HOS regulations to motor carriers in the distribution system,
provided that: (1) The motor carrier is delivering anhydrous ammonia;
(2) none of the transportation movements within the distribution chain
exceed a 100 air-mile radius--whether from the retail or wholesale
distribution point; and (3) the motor carrier has a ``satisfactory''
safety rating or is ``unrated;'' motor carriers with ``conditional'' or
``unsatisfactory'' safety ratings are prohibited from taking advantage
of the waiver.
The waiver allows ``unrated'' motor carriers and those with a
satisfactory safety rating to use the HOS exemption when their 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 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
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.
The FMCSA will also allow ``unrated'' carriers to take advantage of
the waiver. Unrated motor carriers are those that have not received a
compliance review. The FMCSA is allowing unrated motor carriers to
participate because it would be unfair to exclude them simply because
they 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 is not allowing 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 waiver.
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 motor carrier's CMVs, irrespective of whether the
CMV was being operated by a participating driver, 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;
[[Page 13444]]
(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 waiver, 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 Waiver
The waiver is effective upon publication in the Federal Register
and is valid until June 21, 2010, unless revoked earlier by the FMCSA.
The exemption preempts inconsistent State or local requirements
applicable to interstate commerce.
Safety Oversight of Carriers Operating Under the Waiver
The FMCSA expects that any motor carrier operating under the terms
and conditions of the waiver will maintain its safety record. However,
should any deterioration occur, the FMCSA will, consistent with the
statutory requirements of TEA-21, take all steps necessary to protect
the public interest. Use of the waiver is voluntary, and the FMCSA will
immediately revoke the waiver for any interstate motor carrier or
driver for failure to comply with the terms and conditions waiver.
Issued on: March 17, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-6244 Filed 3-19-10; 8:45 am]
BILLING CODE 4910-EX-P