Hours of Service of Drivers: California Farm Bureau Federation; Granting of Application for Exemption |
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T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
June 19, 2015
[Federal Register Volume 80, Number 118 (Friday, June 19, 2015)]
[Notices]
[Pages 35425-35427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15088]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2014-0445]
Hours of Service of Drivers: California Farm Bureau Federation;
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 an exemption from the 30-
minute rest break provision of the Agency's hours-of-service (HOS)
regulations for certain commercial motor vehicle (CMV) drivers
transporting bees. FMCSA has analyzed both the exemption application
submitted by the California Farm Bureau Federation (CFBF) on behalf of
its members and other agricultural organizations and the public
comments received in response to the Agency's January 8, 2015, Federal
Register notice. The Agency has determined that it is appropriate to
grant an exemption to ensure the well-being of Nation's bees during
interstate transportation by CMV. The exemption is consistent with the
goals and strategies to protect the health of honey bees and other
pollinators as stated in the ``Presidential Memorandum Creating a
Federal Strategy to Promote the Health of Honey Bees and Other
Pollinators,'' issued on June 20, 2014. The exemption, subject to the
terms and conditions imposed, will likely achieve a level of safety
that is equivalent to, or greater than, the level that would be
achieved absent such exemption. This exemption preempts inconsistent
State and local requirements.
DATES: This exemption is effective June 19, 2015 and expires on June
19, 2017.
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)
authorized 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 (49 U.S.C. 31136(e), 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 CMV programs and safety regulation.
Background Information
On December 27, 2011, FMCSA published a final rule amending its
hours-of-service (HOS) regulations for drivers of property-carrying
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 (S/B) 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 S/B period of that length or
longer to take the break if they want to drive a CMV. This 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
[[Page 35426]]
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 July 2, 2014, the California Farm Bureau Federation (CFBF)
requested a 90-day waiver of the 30-minute rest-break requirement for
drivers of CMVs engaged in the transportation of domesticated honey
bees. CFBF is a trade organization representing various stakeholders in
the beekeeping industry, including those who provide and utilize bee-
pollination services. A copy of the request is included in the docket
referenced at the beginning of this notice. The CFBF cited as a
precedent for its request the 1-year exemption from the 30-minute break
requirement granted the National Pork Producers Council on behalf of
drivers transporting livestock. FMCSA regulations, however, do not
recognize honey bees as livestock. CFBF subsequently requested a two-
year exemption.
CFBF submitted its application on behalf of itself and the
following organizations:
American Beekeeping Federation;
Blue Diamond Growers;
California Beekeepers Association;
California Association of Nurseries and Garden Centers;
California Cherry Growers and Industry Foundation; and
California Seed Association.
Because of the reduced number of colonies available, bees are
transported long distances to provide crop pollination. CFBF said that
honey bees require cool, fresh air to maintain healthful temperatures
in the hives when being moved on trucks. CFBF stated that complying
with the 30-minute rest break rule would jeopardize the health and
welfare of the bees when excessive heat tends to build up during stops,
especially during daytime stops in warm weather. They believe that
every consideration should be given to provide the safest possible
journey, as bees are transported to pollinate crops throughout the
U.S., particularly in California which produces an abundance of fruits
and vegetables for American consumers.
CFBF explained that there is no substitute for the pollination
provided by bees, and cited a report concluding that in the absence of
bee pollination, the U.S. could lose one third of its crops. CFBF
stated that the number of bee colonies has been declining for several
decades--from 5 million in the 1940's to only 2.5 million today.
Furthermore, from late October to early February most migratory
beekeepers ship their bees to the Central Valley of California to
pollinate the more than 800,000 acres of almond trees which bloom in
February through mid-March. California hosts 1,620,000 hives each year
for the almond crop alone. Honey bees also pollinate apples, plums,
cherries, and a large variety of other crops in California and across
the nation.
CFBF maintained that if CMVs transporting hives were stopped for 30
minutes, particularly in warm weather, the risk of harm to the bees
would be significant, and possibly fatal. Protecting and providing for
the safe and healthy transportation of the bees is a priority for the
agricultural community, which is heavily dependent upon the essential
work of pollinating their crops. According to CFBF, there is simply no
substitute or viable alternative to honey bees.
Presidential Memorandum
On June 20, 2014, President Obama issued a ``Presidential
Memorandum Creating a Federal Strategy to Promote the Health of Honey
Bees and Other Pollinators.'' The memorandum recognized that ``Honey
bee pollination alone adds more than $15 billion in value to
agricultural crops each year in the United States.'' The Memorandum
referred to a serious loss of honey bees and other pollinators in
recent years and stated that ``The problem is serious and requires
immediate attention . . .''
A Pollinator Health Task Force was established by the President to
create an action plan and perform other duties relative to protecting
the health of pollinators. The Task Force, which is co-chaired by the
Secretary of Agriculture and the Administrator of the Environmental
Protection Agency, includes representatives of other departments
including the Department of Transportation.
This exemption complies with the goals and strategies to protect
pollinator health, as stated in the Presidential Memorandum.
Population of Carriers Engaged in the Transportation of Bees
According to CFBF, in a subsequent email to the Agency, there are
over 1,600 beekeepers that transport their hives all around the United
States.
Public Comments in Response to the Exemption Application
On January 8, 2015, FMCSA published notice of the CFBF application
for an exemption and requested public comment (80 FR 1069); 202
commenters responded, with 198 supporting the application (mainly
through identical form letters) and four opposing it.
The comments in favor of the exemption were submitted both by
individuals and by CFBF affiliates. These commenters essentially
reaffirmed the arguments made by CFBF. In addition, the Owner-Operator
Independent Drivers Association (OOIDA) filed a comment in support of
exemption application, stating that the request would provide a level
of safety equal to or greater than that achieved without the exemption.
Granting the exemption, OOIDA said, would allow bees to be moved with
the level of care which they deserve and to ensure that safety is the
primary driver of decisions regarding these moves.
The Advocates for Highway and Auto Safety (Advocates) and three
individuals opposed the exemption. Advocates stated that the CFBF
application is deficient in that it provides no explanation of ``how
[CFBF] would ensure that [the exempted operation] could achieve a level
of safety that is equivalent to, or greater than, the level of safety
that would be obtained by complying with the regulation.'' Advocates
further added that aside from any concern about the bees being
transported, the application fails to address the potential fatigue and
deleterious conditions imposed on the driver of the vehicle
transporting the bees. Some of the individuals opposing the application
contended that an exemption for any one group should be available to
all driver or company groups. Others suggested that CFBF companies
should hire additional drivers so that a 30-minute break would not be
necessary or wait until temperatures drop before transporting the bees.
FMCSA Response
FMCSA has evaluated CFBF's application for exemption and the public
comments submitted. Stakeholders in this industry have outlined in
detail the various risks associated with stopping a CMV transporting
bees.
The Agency finds the arguments in favor of the exemption to be
persuasive. Stopping a CMV with bees on board in severe weather
conditions, even for relatively brief periods, can jeopardize
[[Page 35427]]
the health and welfare of the bees. FMCSA believes there would be no
decrease in safety for the traveling public associated with an
exemption from the 30-minute rest break requirement. These drivers take
short breaks as necessary, but the breaks may not be long enough to
qualify under the rest-break regulatory requirement, or the breaks may
not occur during the time periods specified in the regulation. Also,
drivers may not be in compliance with the definition of off duty, even
though they may be resting, similar to other drivers who are allowed to
``attend'' the parked vehicle if they perform no on-duty activities.
The number of beekeepers who transport hives around the country to
pollinate crops is small--1,600 according to the CFBF--and the number
of CMVs and drivers required for these operations is correspondingly
small. One of the commenters noted that local movements of hives often
occur at night, when temperatures have fallen and traffic has declined.
But when daytime movements are required, the risk of crashes remains
modest because exposure, i.e., the total miles traveled by CMVs serving
this economic niche, is so limited.
FMCSA Determination
In consideration of the above, FMCSA has determined that it is
appropriate to provide a two-year exemption from the 30-minute break
requirement for interstate motor carriers transporting bees. Based on
the terms and conditions imposed, the CFBF application for exemption
would likely 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 grant the exemption for a two-year period. 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
two-year period.
Terms and Conditions of the Exemption
Extent of the Exemption
This exemption is limited to drivers engaged in the interstate
transportation of bees by CMV. The exemption from the 30-minute rest-
break requirement is applicable during the transportation of bees and
does not cover the operation of the CMVs after the bees are unloaded
from the vehicle.
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 (CDL)
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.
Drivers must have a copy of the exemption document in their
possession while operating under the terms of the exemption. The
exemption document must be presented to law enforcement officials upon
request.
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. Identifier of the Exemption: ``BEES''
b. Name of operating 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,
f. Name of co-driver, if any, and license number
g. Vehicle number and state license number,
h. Number of individuals suffering physical injury,
i. Number of fatalities,
j. The police-reported cause of the accident,
k. Whether the driver was cited for violation of any traffic laws,
motor carrier safety regulations, and
l. 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 19, 2015 through
June 19, 2017.
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.
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 8, 2015.
T.F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-15088 Filed 6-18-15; 8:45 am]
BILLING CODE 4910-EX-P