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

Raymond P. Martinez
Federal Motor Carrier Safety Administration
23 March 2018

[Federal Register Volume 83, Number 57 (Friday, March 23, 2018)]
[Rules and Regulations]
[Pages 12685-12687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05865]


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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 has 
determined that the waiver is in the public interest and will 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 provides the Agency additional time 
to complete its analysis of the public responses to its December 20, 
2017, notice of proposed regulatory guidance to clarify the 
applicability of the ``Agricultural commodity'' exception to the hours-
of-service regulations and issue final guidance which in turn, would 
have an impact on which drivers transporting agricultural commodities 
are required to use ELDs, and the public responses to its October 31, 
2017, document announcing receipt of the NPPC's application for an 
exemption from the ELD requirements and to issue a decision whether to 
grant NPPC's request for longer-term relief from the ELD rule. The 
Agency has determined through its preliminary analysis of the public 
comments submitted to the public dockets that the issues raised by 
transporters of agricultural commodities are more complex than those 
raised by other segments of the industry seeking relief from the ELD 
requirements and that it is appropriate to take additional time to 
bring these matters to closure.

DATES: This waiver is applicable beginning March 18, 2018, and expires 
on June 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

[[Page 12686]]

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 Agency received 997 
responses to the document announcing receipt of the NPPC exemption 
application.
    FMCSA 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 for agricultural purposes not be required to use ELDs during 
an exemption period. Notice of that request was published in the 
Federal Register on December 28, 2017 (82 FR 61531). Comments to that 
document were due by January 29, 2018 (www.regulations.gov, Docket 
FMCSA-2017-0336). The Agency received 115 responses to the document 
announcing receipt of the ARA exemption application.
    In addition to NPPC's and ARA's applications, FMCSA received 
numerous public comments in response to the Agency's December 20, 2017 
(82 FR 60360), notice of proposed regulatory guidance concerning the 
applicability of the HOS requirements to drivers transporting 
agricultural commodities. Comments were due by January 19, 2018, but 
the comment period was subsequently extended to February 20, 2018, in 
response to a request by the American Trucking Associations. The Agency 
received 565 responses to that document.

Safety Determination

    Although FMCSA does not have an estimate of the number of carriers 
and drivers that would be covered by this waiver, the Agency believes 
the population represents a relatively small percentage of the carriers 
and drivers subject to its oversight and, more specifically, of those 
subject to the ELD requirements. This belief is based primarily on an 
analysis the Agency conducted in 2013 when it evaluated a request for a 
waiver from the 30-minute rest break requirement for the transportation 
of livestock (July 11, 2013, 78 FR 41716).
    FMCSA reviewed its Motor Carrier Management Information System 
(MCMIS) to determine this information at that time. 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 listed 64,892 motor carriers that 
identified livestock as a type (though not necessarily the only type) 
of cargo they transported. These carriers operated 187,606 vehicles and 
employed 242,676 drivers. And 126,471 of those drivers operated within 
a 100 air-mile radius of their work-reporting location--a fact that is 
important because the existing statutory exemptions provide relief from 
the HOS requirements for these drivers. Therefore, the Agency concluded 
at that time, the 2013 livestock waiver would not have been applicable 
to them, leaving fewer than 116,205 drivers likely to utilize this 
relief from the 30-minute rest break provision.
    The Agency explained in its document granting the waiver that 
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 the 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.
    While the 2013 analysis was targeted at estimating the population 
of carriers and drivers that would be covered by a livestock waiver 
from the 30-minute rest break requirement, the Agency believes a 
similar analysis looking at agricultural commodities in general would 
also show that the population likely to need relief from the ELD 
requirement during the 90-day waiver remains a small fraction of the 
motor carrier and driver populations subject to the ELD rule. Because 
of the urgency with which FMCSA must issue decisions on the matters 
discussed above, the Agency was unable to complete an up-to-date 
analysis of its MCMIS data before the March 18, 2018, expiration of the 
2017 waiver for the transportation of agricultural commodities. 
However, the Agency will complete that analysis of the MCMIS data 
within 30 days and place a copy in the docket referenced at the 
beginning of this notification.
    In addition to the 2013 data analysis, the Agency considered 
information reviewed in reaching a decision to grant a limited 90-day 
waiver from the HOS requirements for the distribution of an 
agricultural supply, anhydrous ammonia. The analysis was discussed in 
depth in an October 6, 2010, Federal Register document (75 FR 61626), 
granting the waiver, and in the Agency's 2017 document granting a 
limited 90-day waiver from the ELD requirements for motor carriers 
transporting agricultural commodities. The Agency continues to believe 
the study results are relevant to the discussion of temporary 
regulatory relief from the ELD requirements for the transportation of 
agricultural commodities.
    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 the 2010 
studies did not focus on benefits achieved by use of ELDS, given the 
limited population of

[[Page 12687]]

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 transporters of agricultural commodities will be equivalent to the 
safety of operations that would be obtained absent the granting of a 
waiver.

FMCSA Determination

    Considering the above studies, the ongoing review of the public 
comments submitted in response to the proposed regulatory guidance on 
the agricultural commodities exception to the HOS rules, and the 
pending exemption requests from NPPC and ARA, 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. The Agency 
believes 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. This waiver will allow FMCSA time to evaluate the HOS 
exception applicable to the transport of agricultural commodities and 
to review the concerns unique to the agricultural industry. FMCSA 
grants the waiver to all motor carriers transporting agricultural 
commodities.

Terms and Conditions of the Waiver

    (1) Duration of the waiver. This waiver is applicable March 18, 
2018, through June 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.
    (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: March 16, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-05865 Filed 3-22-18; 8:45 am]
BILLING CODE 4910-EX-P