Hours of Service; Electronic Logging Devices; Limited 90-Day Waiver for the Transportation of Agricultural Commodities

Cathy F. Gautreaux
Federal Motor Carrier Safety Administration
20 December 2017

[Federal Register Volume 82, Number 243 (Wednesday, December 20, 2017)]
[Rules and Regulations]
[Pages 60323-60325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27311]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395


Hours of Service; Electronic Logging Devices; Limited 90-Day 
Waiver for the Transportation of Agricultural Commodities

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notification; grant of waiver.

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SUMMARY: FMCSA grants a limited 90-day waiver from the Federal hours-
of-service (HOS) regulations pertaining to electronic logging devices 
(ELDs) for the transportation of agricultural commodities as defined in 
the Federal Motor Carrier Safety Regulations (FMCSRs). The Agency takes 
this action in response to a waiver request from the National Pork 
Producers Council (NPPC) on behalf of eight organizations representing 
transporters of livestock and other agricultural commodities, as 
defined in the FMCSRs. The Agency has determined that the waiver is in 
the public interest and 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. The waiver 
will also through notice and public comment, provide FMCSA with time to 
consider certain exemption applications from segments of the 
agricultural industry concerning the use of ELDs to document drivers' 
hours of service and clarify applicability of the requirements and the 
need for certain carriers to begin using ELDs by the December 18, 2017, 
deadline.

DATES: This waiver is applicable beginning December 18, 2017, and 
expires on March 18, 2018.

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: 
(614) 942-6477.

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 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(e), 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 be granted only 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(e) 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 received an application for an exemption and waiver from 
the NPPC on behalf of eight organizations that represent transporters 
of livestock and other agricultural commodities. Notice of the request 
for exemption from the requirement that a motor carrier require each of 
its drivers to use an electronic logging device (ELD) no later than 
December 18, 2017, to record the driver's hours-of-service (HOS), was 
published in the Federal Register on October 31, 2017 (82 FR 50358). 
Comments to that document were due by November 30, 2017 
(www.regulations.gov, Docket FMCSA-2017-0297).
    The NPPC focused on the impact of the ELD requirement on its 
members, given unique aspects of its industry, including ``exposed 
incompatibilities between the HOS rules and the . . . industry . . . 
causing disruption . . . and endangering the health and welfare of . . 
. animals transported . . .''
    FMCSA has also received from the Agricultural Retailers Association 
(ARA) an exemption, waiver, and petition document dated October 25, 
2017, requesting that transporters of agricultural commodities and farm 
supplies not be required to use ELDs during an exemption period. That 
exemption request has not yet been published for comment. While this 
waiver is issued in response to the application submitted by the NPPC, 
it also applies to other eligible motor carriers, including ARA 
members, to the extent they are handling agricultural commodities as 
defined under 49 CFR 395.2, as discussed in the Terms and Conditions of 
the Waiver section below.
    In addition to NPPC's request, FMCSA received numerous inquiries 
from parties involved in the transport of agricultural commodities 
about the correct application of the HOS agricultural exception in 49 
CFR 395.1(k)(1), leading to an ongoing review of the exception. FMCSA 
is considering providing new guidance on the agricultural exception in 
the near future.

Safety Determination

    In an October 6, 2010, Federal Register document (75 FR 61626), 
FMCSA granted a limited 90-day waiver from the HOS requirements for the

[[Page 60324]]

distribution of an agricultural supply--anhydrous ammonia. At that 
time, the Agency compared safety performance data for agricultural 
carriers then operating under the statutory HOS agricultural exception 
in 49 CFR 395.1(k) to non-agricultural carriers that were 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 is available online.\1\
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    \1\ https://ntlrepository.blob.core.windows.net/lib/42000/42700/42776/FMCSA-RRA-10-048.pdf.
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    The study was conducted in two phases. Phase 1 compared the safety 
performance of agricultural and non-agricultural carriers for the 
period 2005 through 2008, and also examined two additional industries, 
livestock and utility carriers, whose operations were not exempt from 
HOS regulations prior to the passage of SAFETEA-LU. 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) \2\ 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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    \2\ This registration form has subsequently been replaced with 
Form MCSA-1.
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    For the Phase 2 analysis, inspection data of agricultural commodity 
and utility carriers (which are also exempt from HOS regulations) were 
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 placed 
less emphasis on the out-of-service (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 indicated 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 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. 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.
    The Phase 2 analysis indicated 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.
    Although this study was conducted in 2010 and relied upon data from 
2005 through 2008, FMCSA has no reason to believe that the conclusions 
would be different if updated using more recent data. Although these 
studies did not focus on benefits achieved by use of ELDS, given the 
limited population of motor carriers affected by the waiver and the 
brief period of time a waiver is in effect, FMCSA believes that the 
level of safety maintained by haulers of agricultural commodities will 
be equivalent to the safety of operations that would be obtained absent 
the granting of a waiver. Furthermore, the Agency believes the sense of 
urgency in this matter requires a decision based on the best available 
data, albeit dated, rather than delaying a decision until a new study 
can be conducted.

FMCSA Determination

    Considering the above study, the ongoing review of the HOS 
agricultural commodities exception, and the pending exemption request 
from NPPC, FMCSA has determined that it is in the public interest to 
provide a limited waiver from the use of ELDs for interstate motor 
carriers engaged in the transportation of agricultural commodities as 
defined in 49 CFR 395.2. This waiver will allow FMCSA time to evaluate 
the HOS exception applicable to the transport of agricultural 
commodities and review the concerns unique to the agricultural industry 
identified by NPPC and others. FMCSA grants the waiver requested by 
NPPC, but also extends it to all motor carriers transporting an 
agricultural commodity.

Terms and Conditions of the Waiver

    (1) Duration of the waiver. This waiver is applicable December 18, 
2017, through March 18, 2018.
    (2) Motor carriers transporting agricultural commodities under the 
provisions of 49 CFR 395.1(k)(1), are exempt from the ELD requirements 
in 49 CFR 395.8(a) during the period of this waiver, regardless of the 
distance traveled.
    (3) Carriers operating under this waiver must comply with all other 
applicable requirements of the Federal Motor Carrier Safety Regulations 
(49 CFR parts 390 through 399), including the preparation of records of 
duty status (RODS) for operations which are currently considered to be 
subject to the HOS rules and the record retention requirements 
associated with those RODs and supporting documents.

[[Page 60325]]

    (4) Motor carriers operating under this waiver must have a 
``satisfactory'' safety rating from FMCSA or be unrated; motor carriers 
with ``conditional'' or ``unsatisfactory'' safety ratings are 
prohibited from taking advantage of the waiver.
    (5) Drivers operating under this waiver must carry a copy of this 
Federal Register notification and present it to motor carrier safety 
enforcement officials upon request.
    (6) Crash Notification to FMCSA
    Carriers operating under this waiver must notify FMCSA within 5 
business days of any accident (as defined in 49 CFR 390.5), involving 
any of the motor carrier's drivers operating under the terms of this 
waiver. The notification must include the following information:
    (a) Identity of Waiver: ``AG''
    (b) Date of the accident,
    (c) City or town, and State, in which the accident occurred, or 
closest to the accident scene,
    (d) Driver's name and license number,
    (e) Co-driver's name and license number (if applicable),
    (f) Vehicle number and State license number,
    (g) Number of individuals suffering physical injury,
    (h) Number of fatalities,
    (i) The police-reported cause of the accident,
    (j) Whether the driver was cited for violation of any traffic laws, 
motor carrier safety regulations, and
    (k) The total driving time and total on-duty time period prior to 
the accident.
    Accident notifications must be emailed to MCPSD@dot.gov.

Safety Considerations

    Considering the limited period of this waiver and that it does not 
alter any of the HOS regulations other than the method of recording 
HOS, and the Agency's previous review of data concerning the safety 
performance of motor carriers engaged in the transportation of 
agricultural commodities, the Agency has determined that the waiver 
from the ELD requirements for 90 days is likely achieve a level of 
safety equivalent to, or greater than, the level that would be achieved 
by the current regulation.
    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 safety problems be discovered, however, 
FMCSA will take all steps necessary to protect the public interest. Use 
of this waiver is voluntary, and FMCSA will immediately revoke the 
waiver for any interstate driver or motor carrier for failure to comply 
with the terms and conditions of the waiver.

Preemption of State Requirements

    Consistent with 49 U.S.C. 31315(d), this waiver preempts 
inconsistent State or local requirements applicable to interstate 
commerce.

    Issued on: December 13, 2017.
 Cathy F. Gautreaux,
Deputy Administrator.
[FR Doc. 2017-27311 Filed 12-19-17; 8:45 am]
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