Commercial Driver's License (CDL): Application for Exemption; U.S. Custom Harvesters, Inc. (USCHI) |
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Raymond P. Martinez
Federal Motor Carrier Safety Administration
3 October 2018
[Federal Register Volume 83, Number 192 (Wednesday, October 3, 2018)]
[Notices]
[Pages 49977-49979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21541]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2017-0133]
Commercial Driver's License (CDL): Application for Exemption;
U.S. Custom Harvesters, Inc. (USCHI)
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; grant of application for
exemption.
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SUMMARY: FMCSA announces its decision to grant the U.S. Custom
Harvesters, Inc. (USCHI) an exemption from the ``K'' intrastate
restriction on commercial driver's licenses (CDLs) held by custom
harvester drivers operating in interstate commerce. The Federal Motor
Carrier Safety Regulations (FMCSRs) exempt drivers of commercial motor
vehicles (CMVs) controlled and operated by a person engaged in
interstate custom harvesting, including the requirement that drivers be
at least 21 years old. However, many younger custom harvester drivers
hold CDLs with an intrastate-only (or ``K'') restriction. This has
caused drivers of USCHI member companies to be cited during roadside
inspections in a different State, as the ``K'' restriction means that
the license is invalid outside the State of issuance, even when the
younger driver is operating under the custom harvester exemption. FMCSA
has analyzed the exemption application and the public comments and has
determined that 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.
DATES: The exemption is effective from October 3, 2018 through October
3, 2023.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver
and Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; Telephone: 614-942-6477. Email: MCPSD@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant
exemptions from the Federal Motor Carrier Safety Regulations (FMCSRs).
FMCSA must publish a notice of each exemption request in the Federal
Register (49 CFR 381.315(a)). The Agency must provide the public an
opportunity to inspect the information relevant to the application,
including any safety analyses that have been conducted. The Agency must
also provide an opportunity for public comment on the request.
The Agency reviews the safety analyses and public comments
submitted, and determines whether granting the exemption would likely
achieve a level of safety equivalent to, or greater than, the level
that would be achieved by the current regulation (49 CFR 381.305). The
decision of the Agency must be published in the Federal Register (49
CFR 381.315(b)) with the reason for the grant or denial, and, if
granted, the specific person or class of persons receiving the
exemption, and the regulatory provision or provisions from which the
exemption is granted. The notice must also specify the effective period
and explain the terms and conditions of the exemption. The exemption
may be renewed (49 CFR 381.300(b)).
Request for Exemption
Custom harvesters are businesses that supply the equipment and
labor to assist farmers with harvesting during their busiest seasons.
Typically, there are two different classes of operations, grain
harvesting and forage harvesting. A grain harvester uses combines to
harvest wheat, corn, barley, canola, sunflowers, soybeans, and grain
sorghum, among others. These crop products are transported to an
elevator or on-farm storage, where the crop is stored and later
transported elsewhere to be processed into products for public use. A
forage harvester uses a chopper to harvest whole-plant crops such as
corn, sorghum, milo, triticale, and alfalfa. These crops are used for
silage to feed livestock in dairies and feedlots. Custom harvesters
travel from State to State and can spend from a few days to several
months cutting crops for one farmer.
USCHI stated that custom harvesters are experiencing a problem with
the exemption in 49 CFR 391.2(a). It was adopted by the Federal Highway
Administration on December 22, 1971 [34 FR 24218] and has been widely
used by custom harvesters since then. Under this provision, drivers of
commercial motor vehicles (CMVs) controlled and operated by a person
engaged in custom harvesting are exempt from all of part 391, including
the requirement to be at least 21 years of age to operate a CMV in
interstate commerce. USCHI member companies frequently employ drivers
18-21 years of age, who are issued commercial driver's licenses (CDLs)
with a ``K'' restriction that makes the license valid only for
operations within the issuing State (49 CFR 383.23(a)(2) and
383.153(a)(10)(vii)). The problem arises because the CDL regulations,
adopted long after 1971, were not drafted to include an exemption
corresponding to section 391.2(a). As a result, the ``K'' restriction
means that the license is invalid outside the issuing State, even
though section 391.2(a) exempts younger custom harvester drivers from
the 21-year-old age requirement when operating in interstate commerce.
Section 391.2(a) does not preempt State CDL regulations, like
requirement in section 383.23(a)(2) to ``possess a CDL which meets the
standards contained in subpart J of this part,'' including any ``K''
restriction imposed under section 383.153(a)(10)(vii) of subpart J.
This has caused drivers employed by USCHI's members to be cited for CDL
violations during inspections, which is an issue not only for the
individual driver, but also for the custom harvester employer, whose
safety record is adversely affected.
Public Comments
On May 1, 2017, FMCSA published notice of the USCHI application for
exemption and requested public comment (82 FR 20415). The Agency
received a total of thirteen sets of comments. Ten comments--all
submitted by custom harvesters--supported the exemption. Two
commenters--the Oregon Department of Transportation (ODOT) and the
American Association of Motor Vehicle Administrators (AAMVA) expressed
various concerns with the request. One other commenter did not take a
position on the exemption.
Those filing in support of the request stated that a large
percentage of their employees have been under the age of 21. They rely
on the rule allowing 18-
[[Page 49978]]
year-olds to obtain a CDL for intrastate (``K'' restricted) operations
[49 CFR 383.25(a)(4) and 383.71(a)(2)(i)] to have enough employees to
effectively run their businesses. This provision has allowed workers
under the age of 21 to obtain experience with truck driving. The
commenters said that many of these individuals have gone on to be
professional, full-time truck drivers, and that all of them would cite
the harvest work as pivotal to their training as a CDL driver. They
argued that the exemption from the ``K'' restriction is incredibly
important to their businesses, as well as to the development of
quality, responsible truck drivers for America's highways.
Others commenting in favor of the exemption said that the way the
current law is interpreted causes much difficulty. Custom harvesters
can hire and train entry-level drivers, but it is difficult to find
employees who are willing to work seasonal jobs. In many cases, the
individuals most likely to work in these entry-level positions are 18-
to 20-year-olds. Many custom harvesters feel that 49 CFR 391.2(a) is
very clear; however, some States have different interpretations of the
exemption.
The Oregon Department of Transportation (ODOT) was concerned that
the remedy sought by USCHI will have unintended consequences on
interstate commerce, is cumbersome for State driver licensing agencies
(SDLAs) responsible for issuing the CDL, and addresses only a symptom
of the identified problem while ignoring the root cause. ODOT states
that this exemption would create a burden for SDLAs in the licensing
process. Accommodating this exemption would require time consuming and
costly programming work with no nexus to highway safety.
The American Association of Motor Vehicle Administrators (AAMVA)
also expressed concern with the USCHI exemption request. AAMVA
commented that retaining State discretion on age limitations for
intrastate drivers should remain within the purview of the States.
Further, utilizing the ``K'' restriction on a restricted CDL ensures
underage operators of CMVs do not fully participate, unrestricted, in
interstate commerce. At issue is the removal of an intrastate
restriction that could allow an untested, younger driver, access to the
full interstate system without restriction.
FMCSA Decision
FMCSA has evaluated USCHI's application for exemption and the
public comments and decided to grant the exemption. One requirement of
any exemption issued under 49 CFR part 381 is that it be likely to
achieve a level of safety equivalent to, or greater than, the level
that would be achieved by the current regulation. In this case
interstate operations by custom harvester drivers below the age of 21
is already authorized by 49 CFR 391.2(a), and has been since 1971.
However, it conflicts with, but does not preempt, the subsequently
adopted requirements of 49 CFR 383.23(a)(2) and 383.153(a)(10)(vii).
FMCSA believes this exemption, by removing the obstacle posed by
sections 383.23(a)(2) and 383.153(a)(10)(vii), would not have any
impact on the safe operation of CMVs and is therefore likely to achieve
a level of safety equivalent to, or greater than, the level that would
be achieved by the current regulation (49 CFR 391.2(a)).
It should be noted that this exemption does not require any special
action or processing by the State driver licensing agencies. They will
continue to place the ``K'' restriction when called for, but
enforcement officers will disregard it in situations involving drivers
who can demonstrate eligibility for the custom harvester exemption.
Stakeholders
The information below is provided to clarify what impact or meaning
this exemption will have on the following stakeholders.
Custom Harvester Drivers
Custom harvester drivers will be able to display this exemption
notice to help explain that when operating in that capacity, they are
permitted to operate outside the State issuing their CDL even though
the license has a ``K'' (intrastate only) restriction.
Enforcement Officers
This exemption notice will explain to law enforcement officers that
49 CFR 391.2(a) authorizes custom harvester drivers to operate in
interstate commerce even though under 21 years of age. The notice will
explain that a ``K'' restriction on these drivers' CDLs does not limit
them from driving outside the license-issuing State when they are
operating as custom harvesters in accordance with 49 CFR 391.2(a).
State Driver Licensing Agencies
This exemption requires no action or inaction on the part of State
driver-licensing agencies. They will continue to issue CDLs with a
``K'' restriction to drivers under the age of 21.
Terms and Conditions of the Exemption
(1) Drivers for custom harvesters operating in interstate commerce
shall be exempt from any intrastate-only ``K'' restriction on their
CDLs when operating under the provisions of this exemption.
(2) Drivers must have a copy of this notice in their possession
while operating under the terms of the exemption. The exemption
document must be presented to law enforcement officials upon request.
(3) Drivers to be included in this exemption are identified in 49
CFR 391.2 as those operating a CMV to transport farm machinery,
supplies, or both, to or from a farm for custom-harvesting operations
on a farm; or transport custom-harvested crops to storage or market.
(4) To ensure that the driver is authentically operating as a
custom harvester, he/she should be able to provide at least three of
the following methods of verification:
(a) The driver may have on hand a valid custom harvesting document
such as a current date agricultural commodity scale sheet, a current
date custom harvesting load sheet, an official company document stating
the company purpose, etc.;
(b) The CMV may have license plates specific to custom harvesting,
or the verbiage ``Harvesting'' may be part of the business signage on
the vehicle;
(c) The CMV may be designed to haul a harvested agricultural
commodity or equipment for harvesting, or be a support vehicle for
custom-harvesting operations such as a service truck;
(d) The CMV may be hauling a harvested agricultural commodity or
equipment for the purpose of custom harvesting;
(e) The CMV may have newly harvested commodity or remnants on
board;
(f) The driver will be able to provide a verifiable location of the
current harvesting operation or delivery location for a harvested
commodity.
Period of the Exemption
This exemption from the requirements of 49 CFR 383.23(a)(2) and
383.153(a)(10)(vii) is effective from October 3, 2018 through October
3, 2023.
Preemption
In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR
381.600, during the period this exemption is in effect, no State shall
enforce any law or regulation applicable to interstate commerce that
conflicts
[[Page 49979]]
with or is inconsistent with this exemption with respect to a firm or
person operating under the exemption. States may, but are not required
to, adopt the same exemption with respect to operations in intrastate
commerce.
Notification to FMCSA
Under this exemption, the custom harvester employer 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 exemption. The notification must include the
following information:
(a) Identity of Exemption: ``USCHI''
(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,
(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 shall be emailed to MCPSD@dot.gov.
Termination
FMCSA believes that the drivers of custom harvesting vehicles will
continue to maintain their previous safety record while operating under
this exemption. However, should problems occur, FMCSA will take all
steps necessary to protect the public interest, including revocation or
restriction of the exemption. FMCSA will immediately revoke or restrict
the exemption for failure to comply with its terms and conditions.
Issued on: September 26, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-21541 Filed 10-2-18; 8:45 am]
BILLING CODE 4910-EX-P