Hours of Service of Drivers: National Pork Producers Council; Granting of Application for Exemption |
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Anne S. Ferro
Federal Motor Carrier Safety Administration
June 11, 2014
[Federal Register Volume 79, Number 112 (Wednesday, June 11, 2014)]
[Notices]
[Pages 33634-33638]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13628]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2013-0283]
Hours of Service of Drivers: National Pork Producers Council;
Granting of Application for Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; granting of application for
exemption.
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SUMMARY: FMCSA announces the granting of a limited one-year exemption
from the 30-minute rest break provision of the Agency's hours-of-
service (HOS) regulations for commercial motor vehicle (CMV) drivers
transporting livestock. FMCSA has analyzed the exemption application
submitted by the National Pork Producers Council (NPPC) on behalf of
all livestock transporters and the public comments received in response
to the Agency's August 12, 2013, notice announcing the application and
requesting public comment. The Agency has determined that it is
appropriate to grant a limited one-year exemption to ensure the well-
being of Nation's livestock during interstate transportation by CMV.
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. This conclusion is
supported by the real-world experience of the industry's operations
under the limited 90-day waiver FMCSA granted in 2013. This exemption
preempts inconsistent State and local requirements.
DATES: This exemption is effective June 11, 2014 and expires on June
11, 2015.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver
and Carrier Operations Division; Office of Carrier, Driver, and Vehicle
Safety Standards; Telephone: 202-366-4325. Email: MCPSD@dot.gov.
SUPPLEMENTARY INFORMATION:
Legal Basis
Section 4007(a) of the Transportation Equity Act for the 21st
Century (TEA-21) (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 or section 31136 of title
49 of the United States Code, 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 2 years and may be renewed.
The FMCSA Administrator has been delegated authority under 49 CFR
1.87(e)(1) and (f) 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
[[Page 33635]]
motor vehicle (CMV) programs and safety regulation.
Background Information
On December 27, 2011, FMCSA published a final rule amending its HOS
regulations for drivers of property-carrying commercial motor vehicles
(CMVs). The final rule included a new provision requiring drivers to
take a rest break during the work day under certain circumstances.
Drivers may drive a CMV only if a period of 8 hours or less has passed
since the end of their last off-duty or sleeper-berth period of at
least 30 minutes. FMCSA did not specify when drivers must take the
minimum 30-minute break, but the rule requires that they wait no longer
than 8 hours after the last off-duty or sleeper-berth period of that
length or longer to take the break. The new requirement took effect on
July 1, 2013.
On August 2, 2013, the U.S. Court of Appeals for the District of
Columbia Circuit issued its opinion on petitions for review of the 2011
HOS rule filed by the American Trucking Associations, Public Citizen,
and others [American Trucking Associations, Inc., v. Federal Motor
Carrier Safety Administration, 724 F.3d 243 (D.C. Cir. 2013)]. The
Court upheld the 2011 HOS regulations in all respects except for the
30-minute break provision as it applies to short haul drivers.
The Court vacated the rest-break requirement of 49 CFR
395.3(a)(3)(ii) with respect to any driver qualified to operate under
either of the ``short haul'' exceptions outlined in 49 CFR 395.1(e)(1)
or (2). Specifically, the following drivers are no longer subject to
the 30-minute break requirement:
All drivers (whether they hold a commercial driver's
license (CDL) or not) who operate within 100 air-miles of their normal
work reporting location and satisfy the time limitations and
recordkeeping requirements of 49 CFR 395.1(e)(1), and
All non-CDL drivers who operate within a 150 air-mile
radius of the location where the driver reports for duty and satisfy
the time limitations and recordkeeping requirements of 49 CFR
395.1(e)(2).
On October 28, 2013, the Agency published a final rule codifying
the court decision (78 FR 64179).
Application for Exemption
On June 19, 2013, the National Pork Producers Council (NPPC)
requested a limited 90-day waiver and a limited two-year exemption from
the rest-break requirement for drivers of CMVs engaged in the
transportation of livestock. A copy of the request is included in the
docket referenced at the beginning of this notice.
The NPPC submitted its application on behalf of itself and the
following organizations:
Agricultural and Food Transporters Conference of the
American Trucking Associations;
American Farm Bureau Federation;
American Feed Industry Association;
American Meat Institute;
Livestock Marketing Association;
National Cattlemen's Beef Association;
National Chicken Council;
National Milk Producers Federation;
National Turkey Federation;
North American Meat Association;
Professional Rodeo Cowboys Association; and,
U.S. Poultry and Egg Association.
The NPPC stated that complying with the 30-minute rest break rule
would cause livestock producers and their drivers irreparable harm,
place the health and welfare of the livestock at risk, and provide no
apparent benefit to public safety, while forcing the livestock industry
and its drivers to choose between the humane handling of animals or
compliance with the rule.
The NPPC explained that the process of transporting livestock,
whether for slaughter, transfer of ownership, or purposes of breeding
or simply finding forage for feed, is a significant concern to the
agricultural industry. The animals face a variety of stresses including
temperature, humidity, and weather conditions.
During the summer months, exposure to heat is one of the greatest
concerns in maintaining the animals' well-being. This is especially
challenging for the transportation of pigs because the animals cannot
sweat and are subject to heat stress. When heat stress occurs, a pig's
body temperature rises to a level that it cannot control through its
normal panting mechanisms. Under the industry's guidelines, drivers are
directed to avoid stopping in temperatures greater than 80 degrees.
Drivers are advised to stop only when animals will be immediately
unloaded or when a safety issue arises. If the vehicle must be stopped,
drivers are required to stay with the animals and provide them with
water to help keep them cool.
When temperature and humidity result in a heat index greater than
or equal to 100 degrees Fahrenheit, cattle are also placed at
significant health risk. When cattle are stressed under extreme heat
conditions, they are more likely to become non-ambulatory, sick, and
even die. Non-ambulatory cattle are banned from entering the food
system. Current industry guidelines recommend that drivers avoid
stopping, as internal trailer temperatures will then increase rapidly
because of the loss of airflow through the trailer and heat production
from the animals.
With regard to transporting livestock during the winter months,
NPPC described the complications of keeping the animals warm without
having them potentially overheat when the vehicle is stopped.
FMCSA analyzed the request and on July 11, 2013, granted, subject
to specific terms and conditions, a waiver from the rest break
requirement for drivers transporting livestock. The waiver ended by its
terms on October 9, 2013.
Population of Drivers and Carriers Engaged in Livestock Transportation
Although NPPC did not provide information on the number of carriers
and drivers to be included in the exemption it requested, FMCSA
reviewed its Motor Carrier Management Information System (MCMIS) to
determine this information. MCMIS includes the information reported to
the Agency by carriers submitting the Motor Carrier Identification
Report (FMCSA Form MCS-150), required by 49 CFR 390.19. As of May 13,
2014, MCMIS listed 66,316 motor carriers that identified livestock as a
type (though not necessarily the only type) of cargo they transported.
These carriers operate 196,398 vehicles and employ 252,540 drivers. And
130,896 of these drivers operate within a 100 air-mile radius of their
work-reporting location--a fact that is important because previous
statutory exemptions provided compete relief from the HOS requirements
for these drivers. A final rule published on March 14, 2013, extended
the 100 air-mile radius previously in effect to 150 air miles (see 49
CFR 395.1(k), 78 FR 16189). Therefore, these 131,000 drivers would not
need the exemption, leaving fewer than 122,000 drivers likely to
utilize this relief from the 30-minute rest break provision. Of these,
an unidentified portion may consist of team drivers, who would not need
to take the required minimum 30-minute break, even without the
exemption.
Public Comments in Response to the Exemption Application
On August 12, 2013, FMCSA published notice of the NPPC application
for an exemption and requested public comment (78 FR 48928). By the
closing of the comment period, twenty-two commenters had
[[Page 33636]]
responded. Twenty of these commenters supported the application for
exemption and two opposed it.
The two comments opposing the application were from individuals.
One opposed the 30-minute break rule in general, and the other
questioned how farmers keep livestock under proper climate conditions
when they are not being transported. The later indicated that if one
commodity deserved an exemption, all did.
The 20 comments favoring the application were submitted by various
parties (mostly trade associations and livestock carriers) familiar
with the transportation by CMV of various types of livestock, including
cattle, pigs, and sheep. Several of these commenters submitted
supporting data. In his comment to the docket, Scott George, President
of the National Cattlemen's Beef Association, submitted data from the
Livestock Marketing Information Center (LMIC). Six sub-agencies of the
U.S. Department of Agriculture are members of LMIC, including the
Agricultural Marketing Service, the Animal and Plant Health Inspection
Service, and the Grain Inspection, Packers and Stockyards
Administration. Many State extension services and land grant
universities are also LMIC members.
The comments favoring the application explain the importance of the
safe, timely transportation of livestock. This transportation
originates in all regions of the U.S. and the ultimate product is often
shipped to global markets. The comments detail the various risks to the
health and welfare of livestock being transported that are inherent in
stopping during extreme hot or cold temperatures. Data in the docket
show that the temperature inside a stopped livestock trailer can rise
rapidly during hot summer days, and can drop rapidly on winter days,
especially in windy conditions. Current industry standards strongly
discourage drivers from stopping a CMV loaded with pigs when the
temperature exceeds 80 degrees. Cattle are affected adversely if the
vehicle stops when the heat and humidity have raised the heat index to
100 degrees or more.
Substandard transportation of livestock elevates the risk that the
physical condition of the animals will deteriorate and that food
products derived from the animals, if they accidentally remained in the
human food chain, may be unsafe for human consumption. Comprehensive
industry guidelines governing the safe movement of livestock have been
submitted to the docket. These guidelines and comments describe stops
of up to 30 minutes as problematic for many animals, even in favorable
weather. Industry guidelines encourage drivers of livestock to keep the
CMV moving ``if at all possible.'' For most livestock, the driver
stopping a CMV en route is directed to offload the animals from the
vehicle immediately. However, an appropriate facility for offloading is
often not available. In these situations, the guidelines recommend that
the stop be as brief as possible. Some commenters asserted that even
under ideal conditions drivers transporting livestock should not stop
the CMV for as long as 30 minutes because the risk of jeopardizing the
health of the animals is too great.
On September 11, 2013, and November 21, 2013, NPPC submitted
supplemental comments to the docket for this matter. Although the
November 21 submission was outside the comment period that ended on
September 11, FMCSA determined that it did not differ in substance from
the original application or the September 11 comments from NPPC, and
therefore no need existed to reopen the comment period.
FMCSA Response
FMCSA has evaluated NPPC's application for exemption, and reviewed
the data, safety analyses, and public comments submitted. Stakeholders
in this industry have provided substantial data supporting this
application for exemption, and have outlined in detail the various
risks associated with stopping a CMV transporting livestock.
The Agency finds the arguments and data submitted by commenters
supporting the application to be persuasive. Stopping a CMV with
livestock on board in extreme weather conditions can seriously
jeopardize the health and welfare of the animals, even when the CMV is
stopped for as little as 10 minutes. The Agency recognizes that in many
cases it is impractical for drivers to offload livestock in order to
obtain the 30-minute break required by 49 CFR 395.3(a)(3)(ii).
Analysis of Fatal Crashes Involving Carriers Transporting Livestock
FMCSA reviewed ``Trucks Involved in Fatal Accidents Factbook 2008''
(UMTRI-2011-15, March 2011) published by the University of Michigan
Transportation Research Institute's Center for National Truck and Bus
Statistics to determine the prevalence of crashes involving the
transportation of livestock. In 2008, there were 4,352 trucks involved
in fatal crashes and 20 of those vehicles were transporting live
animals, with 13 of the vehicles reported as having a livestock cargo
body. There were 13 other vehicles with an empty livestock cargo body
involved in fatal crashes. Overall, trucks transporting live animals
represent less than one half of one percent of the trucks involved in
fatal crashes.
The Trucks Involved in Fatal Accidents (TIFA) report showed that 26
livestock cargo body vehicles, all of them tractor-semitrailer
combinations, were involved in fatal crashes. Of that number, 13
livestock vehicles were transporting live animals at the time of the
crash. Seven instances of vehicles transporting live animals being
involved in a fatal crash involved CMVs with a body type reported as
something other than a livestock body, based on the information above.
About one-third of the 2008 crashes involving livestock
transporters occurred on trips sufficiently short that the driver
probably was exempt from the HOS requirements. With the recent
expansion of the HOS exemption from 100 air-miles to 150 air-miles, any
crashes that occur in the future are even more likely to occur within
the exempt zone.
Fatal Truck Involvements by Trip Type and Livestock Cargo Body Type
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Cargo body:
livestock, Statutory exemption
Trip type tractor from HOS rules (<150
combination miles)
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Local............................. 3 Yes.
51-100............................ 2 Yes.
101-150........................... 3 Yes.
151-200........................... 3 No. Drivers may be
able to achieve
compliance with the
30-minute break
requirement because
of limited
distance.
[[Page 33637]]
201-500........................... 10 No.
>500 miles........................ 4 No.
Unknown........................... 1 Unknown.
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Total......................... 26 ....................
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Given the low number of fatal crashes involving carriers
transporting live animals (e.g., 20 crashes for an industry sector that
currently includes 66,316 active carriers), FMCSA believes there would
be no decrease in safety for the traveling public associated with an
exemption from the 30-minute rest break requirement.
FMCSA Determination
In consideration of the above, FMCSA has determined that it is
appropriate to provide a limited one-year exemption from the 30-minute
break requirement in the FMCSRs for interstate motor carriers
transporting livestock. A review of the most recent MCMIS and TIFA data
provides a basis for determining that a limited exemption, based on the
terms and conditions imposed, would achieve a level of safety that is
equivalent to, or greater than, the level that would be achieved absent
such exemption.
The Agency has decided to limit the exemption to a one-year period
in order to gather additional data about the highway safety of
operations under the exemption. As noted below, carriers utilizing the
exemption will be required to report any accidents, as defined in 49
CFR 390.5, to FMCSA. The exemption would be eligible for renewal
consideration at the end of the one-year period.
Terms and Conditions of the Exemption
Extent of the Exemption
This exemption is limited to drivers engaged in the interstate
transportation of livestock by CMV. The exemption from the 30-minute
rest-break requirement is applicable during the transportation of
livestock and does not cover the operation of the CMVs after the
livestock are unloaded from the vehicle.
This exemption is only available to drivers transporting livestock
as defined in the Emergency Livestock Feed Assistance Act of 1988, as
amended (the 1988 Act) [7 U.S.C. 1471(2)]. The term ``livestock'' as
used in this exemption means ``cattle, elk, reindeer, bison, horses,
deer, sheep, goats, swine, poultry (including egg-producing poultry),
fish used for food, and other animals designated by the Secretary of
Agriculture that are part of a foundation herd (including dairy
producing cattle) or offspring, or are purchased as part of a normal
operation and not to obtain additional benefits under [the 1988 Act].''
The exemption is further limited to motor carriers that have a
``satisfactory'' safety rating or are ``unrated;'' motor carriers with
``conditional'' or ``unsatisfactory'' safety ratings are prohibited
from utilizing this exemption.
Safety Rating
Motor carriers that have received compliance reviews are required
to have a ``satisfactory'' rating to qualify for this exemption. 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 use the
exemption. Unrated motor carriers are those that have not received a
compliance review. It would be unfair to exclude such carriers simply
because they were not selected by for a compliance review, especially
since carriers are prioritized for compliance reviews on the basis of
known safety deficiencies.
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 exemption.
Accident Reporting
Motor carriers must notify FMCSA by email addressed to
MCPSD@DOT.GOV with 5 business days of any accident (as defined in 49
CFR 390.5) that occurs while its driver is operating under the terms of
this exemption. The notification must include:
a. Date of the accident,
b. City or town, and State, in which the accident occurred, or
closest to the accident scene,
c. Driver's name and license number,
d. Vehicle number and state license number,
e. Number of individuals suffering physical injury,
f. Number of fatalities,
g. The police-reported cause of the accident,
h. Whether the driver was cited for violation of any traffic laws,
motor carrier safety regulations, and
i. The total driving time and total on-duty time prior to the
accident.
Period of the Exemption
FMCSA provides an exemption from the 30-minute break requirement
(49 CFR 395.3(a)(3)(ii)) during the period of June 11, 2014 through
June 11, 2015.
Safety Oversight of Carriers Operating Under the Exemption
FMCSA expects each motor carrier operating under the terms and
conditions of this exemption to maintain its safety record. However,
should safety deteriorate,
FMCSA will, consistent with the statutory requirements of 49 U.S.C.
31315, take all steps necessary to protect the public interest.
Authorization of the exemption is discretionary, and FMCSA will
immediately revoke the exemption of any motor carrier or driver for
failure to comply with the terms and conditions of the exemption.
[[Page 33638]]
Preemption
During the period the exemption is in effect, no State may enforce
any law or regulation that conflicts with or is inconsistent with this
exemption with respect to a person or entity operating under the
exemption [49 U.S.C. 31315(d)].
Issued on: June 6, 2014.
Anne S. Ferro,
Administrator.
[FR Doc. 2014-13628 Filed 6-9-14; 8:45 am]
BILLING CODE 4910-EX-P