Hours of Service; Limited 90-Day Waiver From the 30-Minute Rest Break Requirement for the Transportation of Livestock |
|---|
|
Anne S. Ferro
Federal Motor Carrier Safety Administration
July 11, 2013
[Federal Register Volume 78, Number 133 (Thursday, July 11, 2013)]
[Rules and Regulations]
[Pages 41716-41718]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16679]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 395
[FMCSA-2013-0283]
Hours of Service; Limited 90-Day Waiver From the 30-Minute Rest
Break Requirement for the Transportation of Livestock
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice; grant of waiver.
-----------------------------------------------------------------------
SUMMARY: FMCSA grants a limited 90-day waiver from the 30-minute rest
break provision of the Federal hours-of-service (HOS) regulations for
the transportation of livestock. Several associations representing
various segments of the livestock industry raised concerns about the
risks to the health of animals from rising temperatures inside
livestock trucks during drivers' mandatory 30-minute break, especially
in light of long-range weather forecasts for above-normal temperatures
for July, August and September 2013. The industry requested relief, and
the Agency has determined that it is appropriate to grant a limited 90-
day waiver for this period to ensure the well-being of the Nation's
livestock during interstate transportation. The Agency has determined
that the waiver, based on the terms and conditions imposed, would
likely achieve a level of safety that is equivalent to, or greater
than, the level that would be achieved absent such waiver. This waiver
preempts inconsistent State and local requirements.
DATES: The waiver is effective July 11, 2013. The waiver expires on
October 9, 2013.
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. Email: MCPSD@dot.gov. Phone
(202) 366-4325.
SUPPLEMENTARY INFORMATION:
Legal Basis
The Transportation Equity Act for the 21st Century (TEA-21) (Public
Law 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
section 31136 or chapter 313 of title 49, United States Code, 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 1.87(f) 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
On December 27, 2011 (76 FR 81133), FMCSA published a final rule
amending its hours-of-service regulations for drivers of property-
carrying commercial motor vehicles (CMVs). The final rule included
several changes to the HOS regulations including a new provision
requiring drivers to take a rest break during the work day under
certain circumstances. Drivers may drive only if 8 hours or less have
passed since the end of the driver's last off-duty period of at least
30 minutes. FMCSA did not specify when drivers must take the 30-minute
break, but the rule requires that they wait no longer than 8 hours
after the last off-duty period of that length or longer to take that
break. Drivers that already take shorter breaks during the work day
could comply with the rule by taking one of the shorter breaks and
extending it to 30 minutes. The new requirement took effect on July 1,
2013.
National Pork Producers Council Waiver Request
On June 19, 2013, FMCSA received a request for a 90-day waiver and
application for an exemption from the National Pork Producers Council
(the Council) on behalf of 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 Pork Producers Council;
National Turkey Federation;
North American Meat Association;
Professional Rodeo Cowboys Association; and,
U.S. Poultry and Egg Association.
The Council stated that complying with the 30-minute rest break
rule will 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 their drivers to choose between the humane handling of animals or
compliance with the rule.
The Council explained that the process of transporting livestock,
whether to slaughter, transfer of ownership, or for 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 these animals do not
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 safety becomes an issue. 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
[[Page 41717]]
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. A
copy of the Council's waiver request is included in the docket
referenced at the beginning of this notice.
Long-Range Weather Forecasts
The FMCSA reviewed information from the National Oceanic and
Atmospheric Administration's National Weather Service (NOAA). The NOAA
posts long-range weather forecasts at its Web site, http://www.nws.noaa.gov. NOAA forecasts for the Western half of the United
States for July, August and September predict above normal
temperatures. Above normal temperatures are also forecast for the
northeastern part of the Nation as well as the southern half of
Florida. FMCSA believes the weather forecasts increase the need to
protect livestock during transportation this summer.
Population of Drivers and Carriers Engaged in Livestock Transportation
Although the Council did not provide information on the number of
carriers and drivers to be included in the waiver 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 July 3,
2013, MCMIS lists 64,892 motor carriers that identified livestock as a
type (though not necessarily the only type) of cargo they transported.
These carriers operate 187,606 vehicles and employ 242,676 drivers. And
126,471 of these drivers operate within a 100 air-mile radius of their
work-reporting location--a fact that is important because existing
statutory exemptions provide 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, the waiver would not be applicable
to them, leaving fewer than 116,205 drivers likely to utilize this
relief from the 30-minute rest break provision.
Section 345 of the National Highway System Designation Act of 1995
(the NHS Act) (Pub. L. 104-69, 109 Stat. 613), enacted on November 28,
1995, implemented by 49 CFR 395.1(k), provided relief from the HOS
requirements for drivers transporting agricultural commodities or farm
supplies for agricultural purposes in a State if ``the 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 and is
during the planting and harvesting seasons within such State, as
determined by the State.''
Section 32101(d) of ``Moving Ahead for Progress in the 21st Century
Act'' (MAP-21) (Pub. L. 112-141, 126 Stat. 405), enacted on July 6,
2012, expanded that 100 air-mile radius provided by the NHS Act to 150
air miles; FMCSA implemented the provision with a final rule published
on March 14, 2013 (78 FR 16189).
In addition, section 32934 of MAP-21 provides statutory exemptions
from most of the FMCSRs, including those pertaining to HOS, the
commercial driver's license and driver qualification requirements, for
drivers of ``covered farm vehicles'' (CFVs), a term defined in detail
by MAP-21. Among other things, CFV drivers must be owners or operators
of farms or ranches, or their employees or family members; for-hire
motor carriers are not eligible for the exemptions provided by section
32934. These exemptions are explained in the March 14, 2013, final rule
mentioned above.
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. A copy of this publication is included in
the docket referenced at the beginning of this notice.
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 at
the time of the fatal crash involved CMVs with a body type reported as
something other than livestock, based on the information above.
About one-third of the 2008 crashes involving livestock
transporters occurred on trips of 100 miles or less so 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 radius.
Fatal Truck Involvements by Trip Type and Livestock Cargo Body Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cargo body:
livestock,
Trip type (distance in miles) tractor Statutory exemption from HOS rules (< 150 miles)
combination
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.
201-500.................................... 10 No.
>500 miles................................. 4 No.
Unknown.................................... 1 Unknown.
------------------------------------------------------------------------------------------------------------
Total.................................. 26 ----
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 41718]]
Given this information, FMCSA does not believe a limited 90-day
waiver from the 30-minute rest break requirement would decrease the
level of safety on the Nation's highways.
FMCSA Determination
In consideration of the above, FMCSA has determined that it is in
the public interest to provide a limited waiver from the 30-minute
break requirement in the Federal HOS regulations for interstate motor
carriers transporting livestock. A review of the most recent MCMIS and
TIFA data provides a basis for determining that a limited waiver, 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.
Terms and Conditions of the Waiver
The FMCSA provides a limited 90-day waiver from the 30-minute break
provision of the HOS rules for 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 waiver 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 waiver 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 waiver.
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. 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 waiver.
Accident Reporting Requirement
Within 10 business days following an accident (as defined in 49 CFR
390.5), irrespective of whether the CMV was being operated under the
this waiver, 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) The police-reported cause of the accident;
(h) Whether the driver was cited for violating any traffic laws,
motor carrier safety regulations, or hazardous materials discharge; and
(i) Whether the driver was operating under the waiver, and if so,
an estimate of the total on-duty and driving time between the last
break of at least 15 minutes and the accident.
Duration of the Waiver
The waiver is effective upon publication in the Federal Register
and is valid until October 9, 2013, unless revoked earlier by the
FMCSA. The exemption preempts inconsistent State or local requirements.
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 49 U.S.C. 31315, 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
of the waiver
Issued on: July 5, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-16679 Filed 7-8-13; 4:15 pm]
BILLING CODE 4910-EX-P