Hours of Service of Drivers: Turfgrass Producers International; Application for Exemption

James A. Mullen
Federal Motor Carrier Safety Administration
5 August 2020

[Federal Register Volume 85, Number 151 (Wednesday, August 5, 2020)]
[Notices]
[Pages 47465-47466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17087]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0093]


Hours of Service of Drivers: Turfgrass Producers International; 
Application for Exemption

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

ACTION: Notice of final disposition; denial of application for 
exemption as moot.

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SUMMARY: FMCSA announces its decision to deny as moot the application 
of Turfgrass Producers International (TPI) to extend the hours-of-
service (HOS) exemption for ``agricultural commodities'' to drivers 
transporting turfgrass sod. FMCSA has analyzed the application, public 
comments, and applicable law and has determined that turfgrass sod is 
an agricultural commodity already subject to the HOS exemption.

DATES: FMCSA denies this application for exemption effective August 5, 
2020.

ADDRESSES:
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit Room W12-140 
on the ground level of the U.S. Department of Transportation, West 
Building, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 
5 p.m., ET, Monday through Friday, except Federal holidays. The online 
Federal Docket Management System (FDMS) is available 24 hours each day, 
365 days each year.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to help inform its rulemaking process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For information concerning this 
notice, contact La Tonya Mimms, Chief, FMCSA Driver and Carrier 
Operations Division; Office of Carrier, Driver and Vehicle; Telephone: 
(202) 366-4325; Email: MCPSD@dot.gov. If you have questions on viewing 
or submitting material to the docket, contact Docket Services, 
telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to www.regulations.gov and insert 
the docket number, ``FMCSA-2019-0093 in the ``Keyword'' box and click 
``Search.'' Next, click the ``Open Docket Folder'' button and choose 
the document to review. If you do not have access to the internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the DOT West Building, 1200 New 
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, 
Monday through Friday, except Federal holidays.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain Federal Motor Carrier Safety Regulations. 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, and provide an opportunity 
for public comment on the request.
    The Agency reviews the safety analyses, if any, 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 
Agency publishes its decision in the Federal Register (49 CFR 
381.315(b)) with the reasons for denying or granting the application 
and, if granted, the name of the person or class of persons receiving 
the exemption and the regulatory provision from which the exemption is 
granted. The notice must specify the effective period (up to 5 years) 
and explain the terms and conditions of the exemption. The exemption 
may be renewed (49 CFR 381.300(b)).

[[Page 47466]]

III. Request for Exemption

    Turfgrass Producers International (TPI) represents natural grass 
seed and sod farmers throughout the United States and abroad. TPI says 
it has promoted the benefits of natural grass for 51 years and has 
members in over 46 States and 25 countries that produce natural grass 
seed and sod. The natural grass product that farming members produce is 
delivered to urban and suburban areas where it is used for landscape 
services, home construction, and recreational industries, among others.
    TPI requests an exemption that would allow drivers transporting 
turfgrass sod to operate under the same HOS exemption provided for 
drivers transporting ``agricultural commodities,'' as defined in 49 CFR 
395.2. The agricultural commodities exemption is codified in 49 CFR 
395.1(k)(1).
    TPI asserts that its sod-producing members are concerned that the 
definition of ``agricultural commodity'' in 49 CFR 395.2 does not 
include sod and that the motor carriers cannot take advantage of the 
HOS relief provided by 49 CFR 395.1(k)(1), despite the similarities 
between sod and the other commodities that are considered agricultural 
in nature.
    According to TPI's application, turfgrass sod is recognized as a 
perishable agricultural commodity by the U.S. Department of Agriculture 
and, like many other agricultural commodities, is planted and harvested 
annually. Sod is cultivated and managed with techniques and equipment 
similar to those used for other agricultural crops and is subject to 
the same impacts of weather, weed infestations, insect pests, and plant 
disease. Similarly, once harvested for sale, it is also subject to 
perishing in transport. Specifically, sod often loses its color, 
moisture, and vigor due to transplant shock and can die if palleted too 
long. Sod's perishability depends on many of the same factors that 
impact the transportation of other agricultural commodities, including 
temperature, desiccation, oxygen and light deprivation, increased 
respiration, carbon starvation, etc., all of which negatively impact 
the quality of turfgrass sod.
    TPI asserts that the lack of the HOS exemption available to drivers 
transporting other agricultural commodities will heavily impact sod 
haulers' business. Their inability to deliver their perishable product 
to market in a timely manner will result in a decrease in the amount of 
product they can ship and an increase in the amount of product that 
either perishes in transport or is damaged in transport, resulting in 
customers who refuse delivery or are otherwise not satisfied with sod 
quality at delivery. If granted, TPI estimates that the exemption would 
cover between 2,400 drivers (400 farm baseline) and 10,428 drivers 
(1,738 farm maximum).

IV. Public Comment

    On June 19, 2019, FMCSA published notice of this application and 
requested public comment (84 FR 28621). Forty-six comments were 
received, all favoring the exemption. The commenters argued that 
because sod is a perishable product it requires flexibility when being 
transported and for that reason should be classified as an agricultural 
commodity. Commenter Preston Cavenaugh stated that ``Grass sod is 
considered an agricultural commodity by the U.S. Department of 
Agriculture, U.S. Environmental Protection Agency, Internal Revenue 
Service, Social Security Administration, Occupational Safety and Health 
Administrations, U.S. Department of Labor, and many [S]tate departments 
of agriculture.'' Commenter Kim Allen Boling stated, ``Employees on sod 
farms are considered to be agricultural workers under the Federal Wage 
& Hour rules. . . .''

V. Method To Ensure an Equivalent or Greater Level of Safety

    To ensure an equivalent level of safety, TPI proposes to educate 
natural grass sod haulers on the existing safety regulations regarding 
the operation of commercial motor vehicles. TPI contends that nothing 
about its weight, stacking configuration, etc., makes natural grass sod 
any less safe to haul than other agricultural commodities, as 
demonstrated by the proven safety record of drivers hauling sod grass.

VI. FMCSA Analysis

    FMCSA has analyzed the TPI application, public comments, and 
applicable law and has determined that turfgrass sod is an agricultural 
commodity already subject to the HOS exemption. We therefore deny as 
moot TPI's request for an exemption.
    Congress adopted the current definition of ``agricultural 
commodity'' in 2007, as currently restated in 49 CFR 395.2: 
``Agricultural commodity means any agricultural commodity, non-
processed food, feed, fiber, or livestock (including livestock as 
defined in sec. 602 of the Emergency Livestock Feed Assistance Act of 
1988 [7 U.S.C. 1471] and insects).''
    The Agricultural Trade Act of 1978 defines Agricultural commodity 
as ``any agricultural commodity, food, feed, fiber, or livestock 
(including livestock as it is defined in [the Emergency Livestock Feed 
Assistance Act of 1988] and any product thereof'' (emphasis added). In 
49 CFR 395.2, ``Agricultural commodity'' is defined, in part, as ``any 
agricultural commodity.'' The term ``any agricultural commodity'' is 
facially quite broad, and FMCSA concludes that that breadth encompasses 
sod grass. The Agency notes the common characteristics of sod and other 
agricultural commodities as further evidenced by arguments from 
commenters who point out that grass sod is considered an agricultural 
commodity by the U.S. Department of Agriculture, U.S. Environmental 
Protection Agency, Internal Revenue Service, Social Security 
Administration, Occupational Safety and Health Administrations, U.S. 
Department of Labor, and many State departments of agriculture.
    Because FMCSA has determined that sod is an agricultural commodity 
and an exemption is not required, FMCSA does not address other 
statutory requirements for the grant of an exemption application.
    FMCSA acknowledges its ongoing rulemaking to determine whether, 
and, if so, to what extent the definitions of ``agricultural 
commodity'' and ``livestock'' should be revised or otherwise clarified. 
See Hours of Service of Drivers; Definition of Agricultural Commodity 
Advance Notice of Proposed Rulemaking (ANPRM) [84 FR 36559, July 29, 
2019]. The July 2019 ANPRM was prompted by indications that the current 
definitions of these terms may not be understood or enforced 
consistently. The Agency's decision today to interpret agricultural 
commodity as already including sod grass for purposes of resolving 
TPI's exemption request is thus interim in nature and does not 
foreclose a revised or even contrary conclusion as a result of the 
related rulemaking.

VII. FMCSA Decision

    The FMCSA has evaluated TPI's application for exemption, and the 
public comments, and made the decision to deny the application. The 
exemption is denied as moot because sod grass is already an 
agricultural commodity for purposes of the HOS exemption at 49 CFR 
395.1(k)(1).

James A. Mullen,
Deputy Administrator.
[FR Doc. 2020-17087 Filed 8-4-20; 8:45 am]
BILLING CODE 4910-EX-P