Hours of Service of Drivers; Definition of Agricultural Commodity

Hours of Service of Drivers; Definition of Agricultural Commodity

Hours of Service of Drivers; Definition of Agricultural Commodity

James W. Deck
Federal Motor Carrier Safety Administration
24 November 2020

[Federal Register Volume 85, Number 227 (Tuesday, November 24, 2020)]
[Rules and Regulations]
[Pages 74909-74919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25971]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2018-0348]
RIN 2126-AC24

Hours of Service of Drivers; Definition of Agricultural Commodity

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

ACTION: Interim final rule with request for comment.

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SUMMARY: FMCSA clarifies the definition of the terms ``any agricultural
commodity,'' ``livestock,'' and ``non-processed food,'' as the terms
are used in the definition of ``agricultural commodity'' for the
purposes of the Agency's ``Hours of Service (HOS) of Drivers''
regulations. Under current regulations, drivers transporting
agricultural commodities, including livestock, from the source of the
commodities to a location within 150 air miles of the source, during
harvest and planting seasons as defined by each State, are exempt from
the HOS requirements. Furthermore, the HOS requirement for a 30-minute
rest break does not apply to drivers transporting livestock in
interstate commerce while the livestock are on the commercial motor
vehicle. This interim final rule (IFR) clarifies the meaning of these
existing definitional terms to ensure that the HOS exemptions are
utilized as Congress intended.

DATES: This IFR is effective December 9, 2020. You must submit comments
on or before December 24, 2020.
Petitions for Reconsideration of this IFR must be submitted to the
FMCSA Administrator no later than December 24, 2020.

ADDRESSES: You may submit comments identified by docket number FMCSA-
2018-0348 using any one of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=FMCSA-2018-0348. Follow the online
instructions for submitting comments.
Fax: (202) 493-2251.
Mail: Dockets Operations, U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001.
Hand delivery: Same as mail address above, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Driver and
Carrier Operations Division, FMCSA, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, (202) 366-4325, MCPSD@dot.gov. If you have
questions on viewing or submitting material to the docket, contact
Dockets Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: This IFR is organized as follows:

I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Executive Summary
III. Legal Basis for the Rulemaking
IV. Background
V. Discussion of Interim Final Rule
VI. Questions
VII. International Impacts
VIII. Section-by-Section Analysis
IX. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulations
B. E.O.13771 (Reducing Regulation and Controlling Regulatory
Costs)
C. Congressional Review Act
D. Regulatory Flexibility Act (Small Entities)
E. Assistance for Small Entities
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
H. E.O. 13132 (Federalism)
I. Privacy
J. E.O. 13175 (Indian Tribal Governments)
K. Environment

I. Public Participation and Request for Comments

A. Submitting Comments

If you submit a comment, please include the docket number for this
IFR (FMCSA-2018-0348), indicate the specific section of this document
to which your comment applies, and provide a reason for each suggestion
or recommendation. You may submit your comments and material online or
by fax, mail, or hand delivery, but please use only one of these means.
FMCSA recommends that you include your name and a mailing address, an
email address, or a phone number in the body of your document so that
FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to: http://www.regulations.gov/#!docketDetail;D=FMCSA-2018-0348, click on the ``Comment Now!'' button,
and type your comment into the text box on the following screen. Choose
whether you are submitting your comment as an individual or on behalf
of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they have reached the facility, please enclose a
stamped, self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this IFR based on your comments. FMCSA
may issue a final rule at any time after the close of the comment
period.
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA, 5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this IFR contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this IFR, it is important that you
clearly designate the submitted comments as CBI. Please mark each page
of your submission that constitutes CBI as ``PROPIN'' to indicate it
contains proprietary information. FMCSA will treat such marked
submissions as confidential under the FOIA, and they will not be placed
in the public docket of this IFR. Submissions containing CBI should be
sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, Federal
Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington DC 20590. Any comments that FMCSA receives which are not
specifically designated as CBI will be placed in the public docket for
this rulemaking.

B. Viewing Comments and Documents

To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov/#!docketDetail;D=FMCSA-2018-0348

[[Page 74910]]

and choose the document to review. If you do not have access to the
internet, you may view the docket online by visiting Dockets Operations
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.,
Monday through Friday, except Federal holidays. To be sure someone is
there to help you, please call (202) 366-9317 or (202) 366-9826 before
visiting Dockets Operations.

C. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better 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 https://www.transportation.gov/privacy.

II. Executive Summary

Purpose of the Regulatory Action

Congress defined ``agricultural commodity'' as ``any agricultural
commodity, non-processed food, feed, fiber, or livestock (including
livestock as defined in [7 U.S.C. 1471] and insects.)'' The existing
regulatory text in 49 CFR 395.2 adopts, without substantive change, the
statutory definition of ``agricultural commodity.'' Currently, under
Federal statute and regulation, commercial motor vehicle (CMV) drivers
transporting agricultural commodities from the source of the
commodities to a location within 150 air miles of the source, during
harvest and planting seasons as defined by each State, are exempt from
the HOS requirements (49 CFR 395.1(k)(1)). Furthermore, Sec. 395.1(v)
exempts drivers transporting livestock in interstate commerce from the
30-minute rest break requirement while the livestock are on the CMV.
The definition of ``livestock'' in Sec. 395.2 restates the definition
in sec. 602 of the Emergency Livestock Feed Assistance Act of 1988 (the
1988 Act), as amended in 7 U.S.C. 1471.
In July 2019, FMCSA published an Advance Notice of Proposed
Rulemaking (ANPRM) requesting assistance from stakeholders in
determining whether, and to what extent, the Agency should clarify key
terms used in the definition of ``agricultural commodity'' in Sec.
395.2 (84 FR 36559 (July 29, 2019)). The Agency, noted, for example,
that broad terms such as ``any agricultural commodity'' are subject to
multiple interpretations, and have led to inconsistent application of
the HOS exemption in Sec. 395.1(k)(1). Based on comments to the ANPRM,
discussed further below, as well as ongoing inquiries from the State
enforcement partners, FMCSA codifies its interpretation of the meaning
of the following terms in Sec. 395.2: ``any agricultural commodity,''
``non-processed food,'' and ``livestock.'' The purpose of the
definitional clarifications is to ensure that the HOS exemptions in
Sec. Sec. 395.1(k)(1) and 395.1(v) are consistently understood and
enforced. The definitional clarifications may affect the extent to
which the HOS exemptions apply to transporters of certain agricultural
commodities, including livestock. For reasons identified below, FMCSA
currently does not have sufficient information to estimate the
quantitative impact of these clarifications on carriers or drivers who
use the exemptions or on the vehicle miles traveled (VMT). As discussed
further below, the Agency asks stakeholders to address these issues
when commenting on the impact of the IFR on their operations.

Benefits and Costs

The ambiguity associated with the definitions of the exemptions in
Sec. Sec. 395.1(k)(1) and 395.1(v) currently may be hindering
consistent enforcement practices, thereby impacting business-related
decisions for the hauling of agricultural commodities and livestock,
resulting in unnecessary costs and disbenefits. By clarifying the
definitions of ``agricultural commodity,'' ``non-processed food,'' and
``livestock,'' the IFR will create a common understanding between
FMCSA, motor carriers, drivers, and enforcement officials.
While this rule merely clarifies an ambiguous definition without
changing any substantive requirements, some regulated entities and
enforcement officials may change their behavior in response to this
rule. In theory, there are two groups of CMV drivers whose behavior may
be impacted by this IFR: (1) Those to whom the definitions of
``agricultural commodity,'' ``non-processed food,'' and ``livestock''
apply but who currently do not use an exemption due to the existing
definitional ambiguity, and (2) those who currently use an exemption in
Sec. Sec. 395.1(k)(1) or 395.1(v), and may no longer do so as a result
of the clarifications. Drivers who use these exemptions as a result of
the clarification provided in this interpretative rule may potentially
realize cost savings, and those who no longer use an exemption as a
result of this clarification may incur costs.
The Agency does not collect information on the number of drivers
currently using the agricultural commodity or livestock exemptions, nor
do we know the extent to which State-based enforcement practices vary
due to definitional ambiguity. There is uncertainty surrounding the
number of drivers who are currently not utilizing an exemption due to
definitional ambiguity and may therefore realize the associated cost
savings as a result of this rule. The Agency does not, therefore,
estimate quantitative impacts associated with this IFR, opting instead
for a qualitative analysis. Specifically, FMCSA expects any increase in
the number of exemptions used will be by transporters of perishable
horticultural commodities, non-processed food, or livestock, including
aquatic animals.

III. Legal Basis for the Rulemaking

Section 204(a) of the Motor Carrier Act of 1935 (Pub. L. 74-255, 49
Stat. 543, 546, August 9, 1935), as codified at 49 U.S.C. 31502(b),
authorizes the Secretary of Transportation (Secretary) to ``prescribe
requirements for--(1) qualifications and maximum hours of service of
employees of, and safety of operation and equipment of, a motor
carrier; and (2) qualifications and maximum hours of service of
employees of, and standards of equipment of, a motor private carrier,
when needed to promote safety of operation.'' This IFR pertains to the
maximum HOS of drivers transporting agricultural commodities by CMV.
The Motor Carrier Safety Act of 1984 provides concurrent authority
to regulate drivers, motor carriers, CMVs, and vehicle equipment.
Section 206(a) of the Act (98 Stat. 2834), codified at 49 U.S.C.
31136(a), grants the Secretary broad authority to issue regulations
``on commercial motor vehicle safety.'' The regulations must ensure
that ``(1) commercial motor vehicles are maintained, equipped, loaded,
and operated safely; (2) the responsibilities imposed on operators of
commercial motor vehicles do not impair their ability to operate the
vehicles safely; (3) the physical condition of operators of commercial
motor vehicles is adequate to enable them to operate the vehicles
safely. . .; (4) the operation of commercial motor vehicles does not
have a deleterious effect on the physical condition of the operators;
and (5) an operator of a commercial motor vehicle is not coerced by a
motor carrier, shipper, receiver, or transportation intermediary to
operate a commercial motor vehicle in violation of a regulation
promulgated under this

[[Page 74911]]

section, or chapter 51 or chapter 313 of this title.'' (49 U.S.C.
31136(a)(1)-(5)).
This IFR primarily addresses the safety of the vehicle and driver
(49 U.S.C. 31136(a)(1)-(2)), and secondarily, the health of the driver
(section 31136(a)(4)). This IFR does not directly address medical
standards for drivers (section 31136(a)(3)). FMCSA does not anticipate
that drivers would be coerced as a result of the proposed clarifying
changes (section 31136(a)(5)).
More specifically, this IFR is based on a statutory exemption from
HOS requirements for CMV drivers transporting ``agricultural
commodities . . . during planting and harvesting periods, as determined
by each State.'' The exemption was initially enacted as Sec. 345(a)(1)
of the National Highway System (NHS) Designation Act of 1995 (Pub. L.
104-59, 109 Stat. 568, 613, November 28, 1995).
Section 4115 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Pub. L. 109-
59, 119 Stat. 1144, 1726, August 10, 2005) retroactively amended the
Motor Carrier Safety Improvement Act of 1999 (MCSIA, Pub. L. 106-159,
113 Stat. 1748, December 9, 1999) by transferring Sec. 345 to new Sec.
229 of MCSIA (113 Stat. 1773). Section 4130 of SAFETEA-LU then revised
section 229, as transferred by section 4115, mainly by adding
definitions of ``agricultural commodity'' and ``farm supplies for
agricultural purposes'' (119 Stat. 1743), as discussed further below.
These definitions are codified at 49 CFR 395.2. Section 32101(d) of the
Moving Ahead for Progress in the 21st Century Act (MAP-21, Pub. L. 112-
141, 126 Stat. 405, 778, July 6, 2012) revised section 229 again,
mainly by expanding the 100 air-mile radius of the exemption to 150 air
miles.
The IFR is also based on a statutory exemption from the HOS
requirement for a 30-minute rest break for CMV drivers transporting
livestock in interstate commerce, set forth in section 5206(b)(1)(C) of
the Fixing America's Surface Transportation Act (FAST Act, Pub. L. 114-
94, 129 Stat. 1312, 1537, December 4, 2015).
Before prescribing any regulations, FMCSA must also consider the
``costs and benefits'' of its proposal (49 U.S.C. 31136(c)(2)(A) and
31502(d)).
This IFR is consistent with DOT's regulations on rulemaking
procedures set forth at 5 CFR part 5, subpart B. Specifically, the IFR
embodies the regulatory policies that regulations should be
straightforward and clear (49 CFR 5.5(d)) and that ``[o]nce issued,
regulations and other agency actions should be reviewed periodically
and revised to ensure that they continue to meet the needs they were
designed to address and remain cost-effective and cost-justified'' (49
CFR 5.5(h)). This IFR also complies with the requirements that final
rules shall be written in plain and understandable English (49 CFR
5.13(k)(3)(i)) and based on a reasonable and well-founded
interpretation of relevant statutory text (49 CFR 5.13(k)(3)(ii)).
The Administrator of FMCSA is delegated authority under 49 CFR
1.87(f) and (i) to carry out the functions vested in the Secretary by
49 U.S.C. chapters 311 and 315, respectively, as they relate to CMV
operators, programs, and safety.

Prior Notice and Comment Not Required for Interpretative Rule

The Administrative Procedure Act (APA) (Pub. L. 79-404, 60 Stat.
237), codified at 5 U.S.C. 553, provides that notice and public comment
procedures are not applicable to ``interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice'' (5 U.S.C. 553(b)(A)). Furthermore, DOT's rulemaking
procedures provide that prior notice and an opportunity for comment are
not required for rules of interpretation (49 CFR 5.13(j)(1)(i)). The
APA defines ``rule'' as ``the whole or part of an agency statement of
general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy'' (5 U.S.C. 551(4))
(emphasis added). The Attorney General's Manual on the Administrative
Procedure Act further defines interpretative rules as ``rules or
statements issued by an agency to advise the public of the agency's
construction of the statutes and rules which it administers.'' \1\
Because this IFR is an interpretative rule within the meaning of the
APA, prior notice and public comment are not required.
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\1\ Attorney General's Manual on the Administrative Procedure
Act (1947), at 30, n.3.
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In determining whether a rule is ``legislative'' (and thus
generally subject to the APA's notice and comment requirements) rather
than ``interpretative,'' among the factors courts consider are whether,
in the absence of a legislative rule, an agency has adequate basis for
enforcement action; whether the rule leaves the agency with any
discretion; and whether the rule repudiates or is irreconcilable with a
prior legislative rule. Each of these factors is addressed briefly
below.
As explained below in Section V. Discussion of Interim Final Rule,
the IFR clarifies the terms ``any agricultural commodity,'' ``non-
processed food,'' and ``livestock,'' currently included in the
definition of ``agricultural commodity'' in 49 CFR 395.2. The IFR does
not establish any new terms not already included in the existing
statutory and regulatory definitions of ``agricultural commodity,'' and
does not create any new rights or impose new regulatory burdens.\2\ Nor
does the IFR expand the Agency's existing authority to enforce the
exemptions set forth in 49 CFR 395.1(k) and (v); as noted in the Legal
Basis discussion above, FMCSA currently has delegated authority to
determine and enforce compliance with the exemptions.\3\ FMCSA codifies
these definitional clarifications to promote more consistent
understanding of existing terms so the exemptions are utilized and
applied consistently. Because this IFR amends the regulatory text in 49
CFR 395.2, the IFR has ``binding effect'' in the same sense that the
existing definitions have binding effect. The Agency notes, however,
the clarifications set forth in the IFR are inclusive rather than
exclusive, and therefore permit the Agency continued discretion to
determine whether the exemptions apply in specific circumstances \4\ as
discussed further below in Section V. Lastly, the IFR does not
contradict a prior legislative rule

[[Page 74912]]

simply by clarifying the meaning of current definitional terms.\5\
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\2\ ``An interpretative rule simply states what the
administrative agency thinks the [underlying] statute means, and
only ```reminds' affected parties of existing duties.'' On the other
hand, if by its action the agency intends to create new law, rights
or duties, the rule is properly considered to be a legislative
rule.'' General Motors Corp. v. Ruckelshaus, 742 F. 2d 1561, 1565
(DC Cir. 1984) (final rule amending CFR by interpreting Clean Air
Act provision authorizing recall of all members of a non-conforming
class was an interpretative rule not subject to prior notice and
comment), quoting Citizens to Save Spencer County v. U.S.
Environmental Protection Agency, et al., 600 F. 2d 844, 876 n. 153
(DC Cir. 1979) (final rule by which EPA amended the CFR by
incorporating and explaining the immediately effective ``prevention
of significant deterioration'' requirements identified in the Clean
Air Act was an interpretative not a legislative rule; notice and
comment not required), quoting Pesikoff v. Secretary of Labor, 501
F. 2d 757, 763, n. 12 (DC Cir. 1974).
\3\ For example, on August 5, 2020 (85 FR 47565), FMCSA denied
as moot the application of Turfgrass Producers International to
extend the HOS exemption in 49 CFR 395.1(k) to CMV drivers
transporting turfgrass sod. The Agency determined that, because sod
falls within the current definition of ``agricultural commodity'' in
49 CFR 395.2, transporters of sod are already eligible for the
exemption.
\4\ ``[A]n action is not a [legislative] rule if it leaves the
agency and its decision-makers free to exercise discretion.''
Patriot, Inc. v. U.S. Dept. of Housing and Urban Development, 963 F.
Supp. 1, 4 (D.D.C. 1997), citing American Bus Association v. United
States, 627 F. 2d 525, 529 (DC Cir. 1980).
\5\ ``A rule does not. . .become an amendment [to a prior
legislative rule] merely because it supplies crisper and more
detailed lines than the authority being interpreted.'' American Min.
Congress v. Mine Safety & Health Admin., 995 F. 2d 1106, 1112 (D.C.
Cir. 1993).
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This IFR includes a 30-day post-publication comment period, and the
Agency seeks input on specified issues. FMCSA will consider and address
submitted comments in the final rule that will follow this IFR and may
make changes to the rule in response to comments received.
In accordance with 5 U.S.C. 553(d)(2), this IFR will become
effective less than 30 days after publication. As noted above, the
effective date is December 9, 2020.

IV. Background

A. HOS Regulations

The HOS regulations, as set forth in 49 CFR part 395, limit
property-carrying CMV drivers to 11 hours of driving time within a 14-
hour period after coming on duty following 10 consecutive hours off
duty. On June 1, 2020, the FMCSA published a final rule updating the
HOS regulations for CMV drivers [85 FR 33396]. The rule, effective on
September 29, 2020, revises the HOS requirements to provide greater
flexibility for drivers without adversely affecting safety. The Agency
expanded the short-haul exception to 150 air-miles and allows a 14-hour
work shift to take place as part of the exception.
Under the HOS regulations, drivers may not drive after accumulating
60 hours of on-duty time in any 7 consecutive days, or 70 hours in any
8 consecutive days. Generally, drivers of property-carrying CMVs may
restart the 60- or 70-hour clock by taking 34 consecutive hours off
duty. As discussed further below, the time spent transporting an
agricultural commodity within the 150 air-mile radius from the source
does not count against the limits on maximum driving. On-duty time does
not apply during harvest and planting periods, as determined by each
State, to drivers transporting agricultural commodities (and farm
supplies for agricultural purposes) from the source of the commodities
to a location within a 150 air-mile radius of the source. In addition,
the 30-minute rest break requirement does not apply, even outside of
the 150-air-mile radius, to CMV drivers transporting livestock while
the livestock are on the vehicle.

B. June 2018 Regulatory Guidance--Application of the 150 Air-Mile HOS
Exemption

On June 7, 2018, FMCSA issued regulatory guidance on the
transportation of agricultural commodities as defined in Sec. 395.2
(83 FR 26374). The guidance addressed various issues related to the
statutory term ``source of the commodities,'' but it did not directly
address the scope or meaning of the term ``agricultural commodity.''
Specifically, the June 2018 guidance addressed: Drivers operating
unladen CMVs en route to pick up an agricultural commodity or returning
from a delivery point; drivers engaged in trips beyond the 150 air
miles of the source of the commodity; determining the ``source'' of
agricultural commodities for purposes of the exemption; and how the
exemption applies when agricultural commodities are loaded at multiple
sources during a trip.

C. Statutory/Regulatory Definitions of ``Agricultural Commodity'' and
``Livestock''

As noted above in Section III. Legal Basis for the Rulemaking,
Congress initially adopted the HOS exemption for the transportation of
agricultural commodities, during harvesting and planting seasons as
defined by each State, in 1995 as part of the NHS Designation Act.
Congress did not, however, define the term ``agricultural commodities''
at that time. The Agency added, verbatim, the statutory exemption to
its HOS regulations (61 FR 14677, April 3, 1996). In 2005, as part of
SAFETEA-LU, Congress adopted the current definition of agricultural
commodity: ``The term `agricultural commodity' means any agricultural
commodity, 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), and any product thereof.''
The Agency subsequently added this statutory definition of
``agricultural commodity,'' verbatim, to Sec. 395.2 (72 FR 36760, July
5, 2007). At that time, section 602 of the 1988 Act, cross-referenced
in the SAFETEA-LU definition of ``agricultural commodity,'' defined
``livestock'' as ``cattle, elk, reindeer, bison, horses, deer, sheep,
goats, swine, poultry (including egg-producing poultry), fish used for
food, and other animals designated by the Secretary of Agriculture that
are part of a foundation herd (including dairy producing cattle) or
offspring; or are purchased as part of a normal operation and not to
obtain additional benefits under the 1988 Act, as amended.''
On July 22, 2016, the Agency amended Sec. 395.2 by adding a free-
standing definition for the term ``livestock,'' which restated, without
substantive change, the definition of livestock set forth in the 1988
Act, referenced above (81 FR 47721). The addition of a separate
definition of the term ``livestock'' to Sec. 395.2 was part of FMCSA's
final rule implementing certain requirements of the FAST Act. Section
5206(b)(1)(C) of the FAST Act made permanent a regulatory exemption \6\
from the 30-minute rest break required under the HOS regulations (Sec.
395.3(a)(3)(ii)), for drivers transporting livestock. The 2016 final
rule implemented this FAST Act requirement by adding new Sec.
395.1(v).
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\6\ On June 12, 2015, FMCSA renewed an exemption, granted to the
Agricultural and Food Transporters Conference of the American
Trucking Associations, from the 30-minute rest break provision of
the HOS regulations for CMV drivers transporting livestock (80 FR
33584). The Agency granted and renewed the exemption to protect the
health and safety of livestock during interstate transportation by
CMV. The exemption applied only during the transportation of
livestock, as defined in the 1988 Act, and did not cover the
operation of the CMV after livestock are unloaded from the vehicle.
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In section 12104 of the Agricultural Improvement Act of 2018 (2018
farm bill, Pub. L. 115-334, 132 Stat. 4490, December 20, 2018),
Congress amended the definition of ``livestock'' in the 1988 Act by
removing the term ``fish used for food'' and adding ``llamas, alpacas,
live fish, crawfish, and other animals that'' to the phrase ``are part
of a foundation herd (including dairy producing cattle) or offspring;
or are purchased as part of a normal operation and not to obtain
additional benefits [under the Act of 1988].'' The 2018 farm bill also
removed the Secretary of Agriculture's discretion to designate animals
as livestock in addition to those specifically listed in the statute.
On September 30, 2019, FMCSA conformed the text of the definition of
``livestock'' in Sec. 395.2 to the change made to the 1988 Act by the
2018 farm bill (84 FR 51427, 51430). The Agency's conforming change
added llamas, alpacas, live fish and crawfish, and deleted the term
``fish used for food,'' and removed the reference to the Secretary of
Agriculture's discretion to designate additional animals.

D. 2019 ANPRM Regarding Definitions of ``Agricultural Commodity'' and
``Livestock''

As noted above, in July 2019, FMCSA issued an ANPRM requesting
input from stakeholders in determining how the Agency could clarify the
definitions of

[[Page 74913]]

the terms ``agricultural commodity'' or ``livestock'' in the HOS
regulations, while remaining consistent with the underlying statutory
requirement for a limited exemption from the HOS requirements for CMV
drivers transporting these commodities. The ANPRM posed questions
specifically addressing the need for FMCSA to clarify the current
definitions of the terms ``agricultural commodity'' or ``livestock'' in
Sec. 395.2, and the benefits and costs of clarifying or revising these
definitions, including related impacts on highway safety. Additionally,
FMCSA requested comment on the extent to which the current definitions
(as understood or applied) conflict, or are otherwise inconsistent,
with regulations administered by the U.S. Department of Agriculture
(USDA), such as the Perishable Agricultural Commodities Act (PACA) (7
U.S.C. 449a(1)).
The Agency received 140 comments in response to the ANPRM.\7\
Commenters represented the following industries/organizational types:
12 commenters represented State agricultural bureaus; six from State
agricultural trade associations; eight represented haulers of sod; 10
represented private-sector agricultural trade associations; two were
from trucking associations; one from a trade safety organization;
another represented a private company; and 100 others responded as
individual commenters.
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\7\ The comments may be accessed at https://www.regulations.gov/docket?D=FMCSA-2018-0348.
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In the ANPRM, FMCSA asked how specific commodities, such as sod or
other types of horticulture, fit within the definition of the term
``any agricultural commodity.''
Nearly half of the comments addressed Question 1, which asked
whether specific products, such as sod or other types of horticulture,
should be included in the definition of ``agricultural commodity.''
Commenters stated that various forms of horticulture, such as flowers,
shrubs, sod, and Christmas trees, are agricultural commodities and
that, due to the risk of perishability in transit, drivers transporting
these products should be eligible for the HOS exemption in Sec.
395.1(k)(1). Most commenters opposed including a finite list of types
of agricultural commodities as part of the definition in Sec. 395.2,
though some favored cross-referencing the list of ``perishable''
commodities recognized by USDA under the PACA regulations.
The Agency received no information concerning the average and
maximum length of trip for specific agricultural commodities, as
requested in Question 5. Question 5 also asked whether the definition
of ``livestock'' should include specific animals in addition to those
already identified in the 1988 Act (including those added by the 2018
farm bill). While some commenters supported the idea of including a
finite list of animals in the definition of ``livestock'' (in addition
to the species already identified in the 1988 Act, as amended), most
who addressed this issue said that FMCSA should interpret the term
comprehensively to include all living animals. The Agency received
limited response to question 10, concerning a motor carrier's exposure
to financial liability resulting directly from a driver's compliance
with the HOS regulations.
Several commenters noted that confusion caused by the current
definition of ``agricultural commodity'' impacts safety by undermining
uniformity of enforcement and the underlying safety benefits of the HOS
regulations. One commenter suggested that FMCSA adopt a more specific
definition of the term, but not in a way that could adversely impact
safety by increasing the number of drivers eligible for the HOS
exemption in Sec. 395.1(k)(1). FMCSA notes that additional comments to
the ANPRM, addressing specific aspects of the terms the Agency
clarifies, are discussed below.

V. Discussion of Interim Final Rule

Based on issues raised by commenters to the ANPRM, summarized
above, as well as ongoing inquiries from FMCSA's State partners who
enforce State HOS requirements compatible with the Federal rules, the
Agency concludes that the definitions of ``agricultural commodity'' and
``livestock,'' as used in Sec. 395.2, are not uniformly understood
among stakeholders. To facilitate more consistent understanding of
these terms, and therefore more consistent enforcement of the HOS
exemption in Sec. 395.1(k)(1) and the 30-minute rest break exemption
in Sec. 395.1(v), FMCSA codifies its interpretation of their meaning.
The Agency notes that the current regulatory definitions of
``agricultural commodity'' and ``livestock,'' restate, without
substantive change, the text of the underlying statutes identified
above. The Agency's interpretation of these terms does not
fundamentally alter that statutory framework.
As noted above, Congress adopted the current definition of
``agricultural commodity'' in 2005, as currently restated in Sec.
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 Agency notes that, in setting
forth this statutory definition, Congress drew from existing references
in Title 7 (Agriculture) of the United States Code (U.S.C.): (1) The
Agricultural Trade Act of 1978 (7 U.S.C. 5602); \8\ and (2) the Act of
1988 (7 U.S.C. 1471(2)). In seeking to clarify the meaning of three key
terms used in the definition of ``agricultural commodity,'' FMCSA also
looks to Title 7 for guidance, as discussed below.
---------------------------------------------------------------------------

\8\ 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 Act of
1988]) and any product thereof'' (emphasis added). Congress, when
adopting the definition of ``agricultural commodity'' in 2005 (119
Stat. 1743), to be used in applying the HOS exemption, inserted the
phrase ``non-processed'' before ``food,'' and did not include the
phrase ``and any product thereof.''
---------------------------------------------------------------------------

A. ``Any Agricultural Commodity''

In Sec. 395.2, ``agricultural commodity'' is defined, in part, as
``any agricultural commodity.'' As noted in the ANPRM, this definition
is ambiguous. On one hand, the term ``any agricultural commodity'' is
broad. On the other hand, the term must be understood and interpreted
within the context of the HOS requirements, which are intended to
prevent CMV-involved crashes caused by driver fatigue due to working
long hours. The exemption in Sec. 395.1(k)(1), which allows additional
driving and working hours for drivers transporting agricultural
commodities, is intended to facilitate timely delivery of agricultural
commodities during State-defined harvest and planting seasons. Because
the statute includes the term ``any agricultural commodity,'' in the
definition of ``agricultural commodity,'' the most direct reading of
the statute is that the definition also covers agricultural products
not otherwise considered to be ``non-processed food, feed, fiber, or
livestock.'' \9\ The IFR therefore clarifies the meaning of ``any
agricultural commodity'' when determining whether a driver is eligible
for the HOS exemption in Sec. 395.1(k)(1).
---------------------------------------------------------------------------

\9\ A well-established canon of construction favors an
interpretation that avoids rendering any statutory phrase or clause
as ``surplusage.'' See Freeman v. Quicken Loans, Inc., 566 U.S. 624,
636 (2012).
---------------------------------------------------------------------------

In the ANPRM, FMCSA asked how specific commodities, such as sod or
other types of horticulture, fit within the definition of the term
``any agricultural commodity.'' Most commenters addressing this
question urged FMCSA to clarify that perishable horticultural products
are included in the definition

[[Page 74914]]

of ``any agricultural commodity.'' A number of commenters provided
documentation that horticultural products not used for food or feed,
and not sources of fiber, are nevertheless defined or considered as
agricultural commodities in various statutes and programs administered
by USDA, as well as by other Federal agencies (e.g., the Internal
Revenue Service, the Environmental Protection Agency). The New Jersey
Department of Agriculture stated, for example, that ``sod is defined as
an agricultural product by State Departments of Agriculture across the
country, including the New Jersey Department of Agriculture.''
In addition, some commenters provided information, as requested in
the ANPRM, addressing the perishability, or degradation in quality, of
certain horticultural products during transport by CMV. They explained
the impact of post-harvest transportation on factors that determine
plant health, such as temperature, exposure to light, and humidity
levels. Industry groups noted that plant health largely dictates the
commercial value of these products. According to the University of
Georgia's College of Agriculture & Environmental Science, Department of
Horticulture (the University), although certain horticultural products,
such as ornamental plants, are typically transported in a refrigerated
environment, reducing the temperature in the cargo container does not
prevent damage to plant tissue caused by the release of ethylene, it
merely slows that process. The University concluded that ``[l]ive
plants must be transported as quickly as possible from the producer to
the consumer to mitigate damage.'' The Agency also heard from industry
groups documenting the importance of transporting and laying sod within
24 hours of harvest to ensure ``quality establishment.''
The IFR clarifies that horticultural products subject to
perishability or significant degradation in product quality during
transport by CMV fall within the meaning of ``any agricultural
commodity,'' as the term is used in the definition of ``agricultural
commodity'' in Sec. 395.2. For example, the Agency considers plants,
including sod, flowers, ornamentals, seedlings, shrubs, live trees, and
Christmas trees, within the scope of the definition. The definition
does not include those horticultural products which are not sensitive
to temperature and climate and do not risk perishability while in
transit, such as timber harvested for lumber, or wood pulp or related
products. FMCSA invites comment on whether this clarification, i.e.,
``horticultural products subject to perishability or significant
degradation in product quality during transport by CMV,'' sufficiently
delineates which products fall within the definition of ``any
agricultural commodity'' for purposes of the exemption in Sec.
395.1(k)(1).
Additionally, the Agency requests assistance in determining the
number of CMV drivers transporting perishable horticultural commodities
who currently use the exemption in Sec. 395.1(k); the extent to which
that number would be higher or lower as a result of the clarification;
and the average and maximum times CMV drivers travel when transporting
specific perishable horticultural commodities, as described above.

B. ``Non-Processed Food''

The ANPRM requested comment on how the term ``non-processed'' as
used in the definition of ``agricultural commodity'' in Sec. 395.2, is
currently understood and applied.
All commenters who addressed this issue stated or implied that, in
their understanding, ``non-processed'' modifies only the term ``food''
and does not modify ``feed, fiber, or livestock.'' The Agency agrees
with this interpretation, and with commenters who noted that, as a
matter of grammatical construction, the placement of a comma after
``non-processed food'' separates it from the other items listed.
The ANPRM also asked commenters to address the distinction between
``processed'' and ``non-processed,'' and requested specific examples of
``non-processed'' products. In response, some commenters noted
confusion and inconsistency among State enforcement personnel
concerning the extent to which certain types of ``processing'' render a
food commodity to be considered ``processed'' instead of ``non-
processed.'' For example, in some areas fresh fruits or vegetables are
considered ``processed'' if they are bagged or cut (e.g., cut and
bagged lettuce) while in other locations, commodities subject to this
type of minimal processing are deemed ``non-processed'' for the purpose
of applying the HOS exemption.
In the ANPRM, FMCSA noted that USDA statutes and regulations define
``agricultural commodity'' in a variety of ways, depending on the
underlying statutory framework. We asked whether transporters subject
to both the HOS and USDA regulations, such as PACA,\10\ are impacted by
not having consistent definitions of the term ``agricultural
commodity.'' FMCSA also asked whether specific food commodities, such
as fresh fruits and vegetables (in non-frozen form) individually
identified in the PACA regulations, should be added to the definition
of ``agricultural commodity'' in Sec. 395.2. Most commenters who
responded to these questions believed FMCSA should identify the
categories of non-processed food included in the definition, rather
than adopt, or incorporate by reference, a specific list of fruits and
vegetables and other non-processed food commodities.
---------------------------------------------------------------------------

\10\ The Perishable Agricultural Commodities Act (``PACA''), 7
U.S.C. 499a-499t, was enacted in 1930 to regulate the marketing of
fresh and frozen fruits and vegetables by establishing and enforcing
a code of fair business practices and by helping companies resolve
business disputes. The primary purposes of the PACA are to prevent
unfair and fraudulent conduct in the marketing and selling of these
commodities in interstate and foreign commerce. The PACA
regulations, set forth in 7 CFR part 46, are administered by the
Agricultural Marketing Service, an agency within USDA.
---------------------------------------------------------------------------

When considering this issue, FMCSA relied on the relevant statutory
limitations: To use the HOS exemption in Sec. 395.1(k)(1), the CMV
driver must be transporting non-processed food products; and the
transportation must occur within planting and harvesting seasons, as
defined by each State. Harvest denotes the time of year that a crop is
ripe, ready, and needs to be gathered or reaped, to avoid losses in
quality and commercial value; the exemption is thus intended to
accommodate the transportation of ``harvested'' food commodities. In
keeping with the statutory parameters noted above, the Agency clarifies
that ``non-processed food'' means food commodities in a raw or natural
state and not subjected to significant post-harvest changes to enhance
shelf life. For definitional purposes, it is difficult to determine
precisely the point at which food commodities are no longer ``non-
processed'' within the meaning of the exemption; indeed, that point may
vary depending on the nature of the food product. Therefore, some
degree of enforcement discretion must be expected in determining
whether the exemption applies to CMV drivers transporting these
products.
The guiding principle here is whether the product has been
processed to the point that it loses its original post-harvest identity
and becomes a different item. Accordingly, FMCSA clarifies that ``non-
processed food,'' as the term is used in Sec. 395.2, includes fruits,
vegetables, and cereal and oilseed crops which have been minimally
processed by cleaning, cooling, trimming, cutting, shucking, chopping,
bagging, or

[[Page 74915]]

packaging to facilitate transport by CMV. Products subject to post-
harvest changes, such as jarring, canning, drying, or freezing, are not
``non-processed food.'' This clarification is consistent with FMCSA's
regulatory guidance addressing application of the 150 air-mile
exemption in Sec. 395.1(k)(1), in which the Agency noted that a
``source'' of the commodity may be an intermediate storage or handling
location away from the farm or field, ``provided the commodity retains
its original form and is not significantly changed by any processing or
packing.'' \11\
---------------------------------------------------------------------------

\11\ 83 FR 26374, 26376 (June 7, 2018) (emphasis added).
---------------------------------------------------------------------------

The Agency's interpretation of the term ``non-processed food'' is
also generally consistent with the definition of fresh fruits and
vegetables in the PACA regulations, except that frozen fruits and
vegetables do not fall within the definition of ``non-processed food''
\12\ described above. Accordingly, drivers transporting non-frozen
fresh fruits and vegetables subject to the PACA regulations in 7 CFR
part 46 are eligible for the exemption in Sec. 395.1(k)(1), as long as
the fruits and vegetables are ``non-processed food'' within the meaning
of Sec. 395.2.
---------------------------------------------------------------------------

\12\ The PACA regulations define fresh fruits and vegetables, in
part, as ``all produce in fresh form generally considered as
perishable fruits and vegetables, whether or not packed in ice or
held in common or cold storage, but does not include those
perishable fruits and vegetables which have been manufactured into
articles of food of a different kind or character.'' (7 CFR
46.2(u).) As FMCSA noted in the ANPRM, ``because frozen fruits and
vegetables are processed and packaged, Congress did not intend to
include frozen commodities within the scope of the definition [of
`agricultural commodity'] as codified in Sec. 395.2'' (84 FR 36559,
36562, July 29, 2019).
---------------------------------------------------------------------------

The Agency requests comment on whether the clarification will
result in more consistent application of the HOS exemption for drivers
transporting ``non-processed food.'' If not, how could the meaning of
the term be further clarified? FMCSA also seeks qualitative and
quantitative data to determine whether the clarification will affect
the number of CMV drivers transporting ``non-processed food'' who would
use the HOS exemption in Sec. 395.1(k)(1), and the average and maximum
travel times when transporting ``non-processed food,'' as described
above.

C. ``Livestock''

As previously discussed, the definition of ``livestock'' in Sec.
395.2 restates, without substantive change the current definition of
the term in Sec. 602 of the 1988 Act, as amended by the 2018 farm bill:
``Livestock means cattle, elk, reindeer, bison, horses, deer, sheep,
goats, swine, poultry (including egg-producing poultry), llamas,
alpacas, live fish, crawfish, and other animals that are part of a
foundation herd (including dairy producing cattle) or offspring; or are
purchased as part of a normal operation and not to obtain additional
benefits under the Emergency Livestock Feed Assistance Act of 1988, as
amended.''
In the ANPRM, FMCSA noted that the definition of the term
``livestock,'' as used in the statutory definition of ``agricultural
commodity'' and restated in Sec. 395.2, includes, but is not limited
to, the animals identified in the 1988 Act. In other words, when
Congress adopted the statutory definition of ``agricultural commodity''
in 2005, it set a definitional floor for the term ``livestock'' by
including the animals identified in the 1988 Act but did not limit the
term only to those animals. Accordingly, FMCSA asked whether other
animals, including aquatic animals, should be included within the
definition of ``livestock'' in Sec. 395.2. Most commenters who
responded to this question supported the inclusion of aquatic animals,
and rather than recommending additional species, suggested that all
living animals be included in the definition of ``livestock.''
The Agency notes the HOS exemptions in Sec. 395.1(k)(1) and the
30-minute rest break exemption in Sec. 395.1(v) recognize that live
animals being transported in a CMV are a unique form of cargo, subject
to distinct health and safety risks while in transit. Considering the
expansive list of animals included in the definition of ``livestock''
in the 1988 Act, and the inclusive use of the term ``livestock'' in the
statutory definition of ``agricultural commodity,'' codified in Sec.
395.2, the most direct reading of the statute is that the exemptions be
broadly applied when livestock are being transported. The Agency
therefore interprets the term to include all living animals cultivated,
grown, or raised for commercial purposes, including aquatic animals, in
addition to those animals already identified in the 1988 Act, and
amends the definition ``livestock'' in Sec. 395.2 accordingly. Because
the current list of animals in the 1988 Act already includes most
animals likely to be transported by CMV, FMCSA anticipates that the
revised definition will only minimally increase the number of CMV
drivers using the exemptions, if at all. The Agency requests comment on
this issue, particularly regarding the number of drivers transporting
aquatic animals, including live shellfish, and as previously noted
``crawfish,'' and their average and maximum travel times.

VI. Questions

When submitting comments, the Agency requests that commenters
number their responses to correspond with the questions as stated
below.
1. Will the clarifications of the terms ``any agricultural
commodity,'' ``non-processed food,'' and ``livestock'' result in more
consistent application of the HOS exemptions in Sec. Sec. 395.1(k)(1)
and 395.1(v)? Why or why not? Please address each term separately when
answering this question.
2. Will the clarifications impact the number of drivers who would
use the exemptions in Sec. 395.1(k)(1) or 395.1(v)? If so, how and to
what extent? For example, how, if at all, will including all living
animals cultivated, grown, or raised for commercial purposes, including
aquatic animals, within the definition of ``livestock'' impact the
number of drivers? Please provide data to support your answer.
3. Will any of the clarifications result in higher or lower costs
for the transportation of agricultural commodities and livestock?
Please provide data to support your answer.
4. Will any of the clarifications result in other benefits to
stakeholders, including consumers and State enforcement personnel?
Please explain your answer by providing specific examples.

VII. International Impacts

The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries in which they operate, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations in which they operate. Canada- and
Mexico-domiciled drivers must ensure compliance with U.S. HOS
requirements while they are driving in the U.S.
A driver domiciled in the United States may comply with the
Canadian hours of service regulations while driving in Canada. Upon re-
entering the United States, however, the driver is subject to all the
requirements of Part 395, including the 11- and 14-hour rules, and the
60- or 70-hour rules applicable to the previous 7 or 8 consecutive
days. In other words, a driver who takes full advantage of Canadian
requirements may have to stop driving for a time immediately after
returning to the U.S. to restore

[[Page 74916]]

compliance with Part 395. Despite its possible effect on decisions a
U.S. driver must make while in Canada, this interpretation does not
involve an exercise of extraterritorial jurisdiction (62 FR 16379,
16424 (Apr. 4, 1997)).
Currently, under Federal statute and regulation, CMV drivers
transporting agricultural commodities from the source of the
commodities to a location within 150 air miles of the source, during
harvest and planting seasons as defined by each State, are exempt from
the HOS requirements (49 CFR 395.1(k)(1)). Furthermore, Sec. 395.1(v)
exempts drivers transporting livestock in interstate commerce from the
required 30-minute rest break requirement while the livestock are on
the CMV.

VIII. Section-by-Section Analysis

FMCSA amends 49 CFR part 395 by revising the definition of
``agricultural commodity'' in Sec. 395.2 by: (1) Deleting the
parenthetical phrase after the word ``livestock'' and adding in its
place the following: ``as defined in this section.''; and (2) adding to
the end of the definition of ``agricultural commodity'' the following:
``As used in this definition, the term `any agricultural commodity'
means horticultural products at risk of perishing, or degrading in
quality, during transport by commercial motor vehicle, including
plants, sod, flowers, shrubs, ornamentals, seedlings, live trees, and
Christmas trees.''
FMCSA amends the definition of ``livestock'' in Sec. 395.2 by
deleting all text that appears after ``livestock means'' and adding in
its place the following: ``livestock as defined in sec. 602 of the
Emergency Livestock Feed Assistance Act of 1988 [7 U.S.C. 1471], as
amended, insects, and all other living animals cultivated, grown, or
raised for commercial purposes, including aquatic animals.''
FMCSA adds the term ``non-processed food'' to Sec. 395.2, to be
defined as follows: ``Non-processed food means food commodities in a
raw or natural state and not subjected to significant post-harvest
changes to enhance shelf life, such as canning, jarring, freezing, or
drying. The term `non-processed food' includes fresh fruits and
vegetables, and cereal and oilseed crops which have been minimally
processed by cleaning, cooling, trimming, cutting, chopping, shucking,
bagging, or packaging to facilitate transport by commercial motor
vehicle.''

IX. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulations

OIRA has determined this rulemaking is a significant regulatory
action under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory
Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan.
21, 2011), Improving Regulation and Regulatory Review. This IFR is also
significant within the meaning of DOT regulations (49 CFR 5.13(a))
because of the substantial Congressional and public interest concerning
the transportation of agricultural commodities, including livestock.
Agriculture, food, and related industries contributed $1.053
trillion to U.S. gross domestic product (GDP) in 2017, a 5.4 percent
share. Output from farms contributed $132.8 billion of this sum--about
1 percent of GDP. The overall contribution of the agriculture sector to
GDP is larger than this because sectors related to agriculture--
forestry, fishing, and related activities; food, beverages, textiles,
and leather products; food and beverage stores; and food service--rely
on agricultural inputs in order to contribute added value to the
economy.\13\ Truck transportation is an integral component of the
supply chain for agricultural commodities and livestock, constituting
the sole mode of transportation for 66.2 percent (715.9 million tons)
of the 1,080.7 million tons of agricultural commodities and livestock
transported annually as of 2012.\14\
---------------------------------------------------------------------------

\13\ USDA Economic Research Service. ``Ag and Food Statistics:
Charting the Essentials, Ag and Food Sectors and the Economy.''
https://www.ers.usda.gov/data-products/ag-and-food-statistics-
charting-the-essentials/ag-and-food-sectors-and-the-economy/
#:~:text=Agriculture%2C%20food%2C%20and%20related%20industries,about%
201%20percent%20of%20GDP (accessed June 12, 2020).
\14\ Based on data from the 2012 Commodity Flow Survey (CFS),
which is the most recent publication of the CFS for which data
specific to mode of transportation by commodity are available.
Available at: https://www.census.gov/library/publications/2015/econ/ec12tcf-us.html (accessed July 14, 2020).
---------------------------------------------------------------------------

This IFR clarifies the definition of ``agricultural commodity'' to
ensure carriers are aware that drivers transporting perishable
horticultural commodities, non-processed food, or livestock, including
aquatic animals, are eligible for the HOS exemptions in Sec. Sec.
395.1(k)(1) and 395.1(v). The exemption in Sec. 395.1(k)(1), which
allows additional driving and working hours for drivers transporting
agricultural commodities, is intended to facilitate timely delivery of
such commodities during State-defined harvest and planting seasons.
Section 395.1(v), which exempts drivers transporting livestock in
interstate commerce from the 30-minute rest break requirement, is
intended to protect the health and welfare of live animals.
This rule will help ensure that all affected entities understand
how FMCSA interprets the terms ``agricultural commodity'' and
``livestock,'' and how the Agency applies the exemptions when these
commodities are transported by CMV. The clarifications could provide
additional flexibility to transporters of certain commodities.
Currently, during harvesting and planting seasons as determined by
each State, drivers transporting agricultural commodities are exempt
from the HOS requirements from the source of the commodities to a
location within a 150 air-mile radius from the source. As noted above,
the current definition in Sec. 395.2 states that an ``Agricultural
commodity means any agricultural commodity, non-processed food, feed,
fiber, or livestock . . . .'' Commenters to the ANPRM confirmed that
broad terms such as ``any agricultural commodity'' are not consistently
understood or applied. Differences in interpretation between regulated
entities and enforcement officials may be hindering consistent
enforcement practices, thereby impacting business-related decisions for
the hauling of agricultural commodities and livestock. The IFR will
create a common understanding between FMCSA, motor carriers, drivers,
and enforcement officials.
In theory, there are two groups of CMV drivers whose behavior will
be affected by this IFR: (1) Those to whom the definitions of
``agricultural commodity'' and ``livestock'' apply, but who currently
do not use an exemption due to the existing definitional ambiguity; and
(2) those who currently use an exemption in Sec. Sec. 395.1(k)(1) or
395.1(v), and may no longer do so as a result of the definitional
clarifications. There is uncertainty surrounding the number of drivers
who are, or are not, currently utilizing an exemption due to the
current definitional ambiguity, as FMCSA does not collect quantitative
data on the use of these exemptions. The Agency does not, therefore,
estimate quantitative impacts associated with this IFR, opting instead
for a qualitative analysis. FMCSA relies on the Motor Carrier
Management Information System (MCMIS) database

[[Page 74917]]

to obtain information on commercial motor carriers subject to the
FMCSRs. While MCMIS does contain data on certain cargo classifications,
it does not track individual cargo carried or hours traveled, nor
whether cargo is transported during State-defined planting and
harvesting seasons. Consequently, the Agency knows neither the degree
to which CMV drivers are currently using the exemptions, nor the
magnitude of the population that will be affected by this IFR. However,
as noted above, the IFR clarifies that transporters of non-perishable
horticultural commodities are not eligible for the exemption in Sec.
395.1(k)(1). FMCSA is aware that at least one State includes ``wood
chips'' within its definition of agricultural commodity, and several
States categorize timber as an agricultural product. If these States
currently permit transporters of those products to use the HOS
exemption, they will no longer be permitted to do so under the IFR.
The Agency assumes that drivers will elect to utilize an
agricultural commodity exemption only if the cost impact to them is
less than or equal to zero. Moreover, these changes will not require
new forms of training for enforcement personnel, as the HOS exemptions
for agricultural commodities and livestock currently exist. The Agency
expects that the definitional clarifications set forth in this IFR will
be communicated to FMCSA personnel and the Agency's State-based
enforcement partners through existing means, such as policy updates and
ongoing training.
Though requested in the ANPRM, FMCSA did not receive relevant data
related to average and maximum transportation times of specific
commodities, nor did the Agency receive relevant information addressing
financial liability resulting from HOS compliance. In Section VI.
Questions, the Agency requests data on the number of drivers impacted
by the clarifications.
The rule could conceivably impact the number of drivers utilizing
the exemptions; however, as noted above, the Agency does not collect
data regarding the use of these exemptions, nor can we predict whether
the number of drivers using the exemption would increase or decrease as
a result of the clarifications. FMCSA requests information on this
issue in Section VI.
Congress, when enacting both exemptions, implicitly recognized the
trade-off between the purpose of the HOS regulations--CMV safety--and
other economic costs of transporting agricultural commodities and
livestock by truck. On the one hand, the HOS requirements are intended
to improve safety by preventing driver fatigue. On the other hand,
there are certain circumstances, such as hauling live animals or
transporting agricultural commodities during planting and harvesting
seasons, where those requirements may pose significant additional
costs. Congress determined that the exemptions, set forth in Sec. Sec.
395.1(k)(1) and 395.1(v), are justified in these situations.
The rule may provide consumers with access to agricultural
commodities of higher quality. For example, as discussed above in
Section V. Discussion of Interim Final Rule, some commenters described
perishability, or degradation in quality, of certain horticultural
products during transport by CMV. The effects of post-harvest
transportation such as exposure to changes in temperature, light, and
humidity levels can impact plant health. Plant health significantly
affects the commercial value of these products, and reduced time in
transit from the producer to the consumer helps to mitigate damage. The
Agency sought input from the USDA regarding these potential benefits.
USDA does not have a model with which to quantify these impacts, but,
in informal discussions with FMCSA, USDA confirmed that incrementally
shorter transit times generally improve the freshness, quality,
nutrition, and safety of food, reduce weight loss for livestock, and
enhance animal welfare. If producers choose to adjust their behavior
based on reduced travel times resulting from this IFR, there may be
benefits to consumers from having access to higher quality products on
the market; there may also be disbenefits from additional usage of the
exemption due to possible longer drive times or limited breaks.

B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

This IFR is neither a regulatory nor deregulatory action under E.O.
13771.

C. Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
OIRA designated this rule as not a ``major rule,'' as defined by 5
U.S.C. 804(2).\15\
---------------------------------------------------------------------------

\15\ A ``major rule'' means any rule that the Administrator of
Office of Information and Regulatory Affairs at the Office of
Management and Budget finds has resulted in or is likely to result
in (a) an annual effect on the economy of $100 million or more; (b)
a major increase in costs or prices for consumers, individual
industries, Federal agencies, State agencies, local government
agencies, or geographic regions; or (c) significant adverse effects
on competition, employment, investment, productivity, innovation, or
on the ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets (5 U.S.C.
804(2)).
---------------------------------------------------------------------------

D. Regulatory Flexibility Act (Small Entities)

The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94
Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat.
857, March 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L.
111-240, 124 Stat. 2504, September 27, 2010), requires Federal agencies
to consider the effects of the regulatory action on small business and
other small entities and to minimize any significant economic impact.
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of fewer than 50,000. In addition, the DOT policy requires
an analysis of the impact of all regulations on small entities, and
mandates that agencies strive to lessen any adverse effects on these
businesses.
FMCSA is not required to complete a regulatory flexibility
analysis, because, as discussed earlier in Section III. Legal Basis,
this IFR is an interpretative rule not subject to prior notice and
comment under section 553(b)(A) of the APA.

E. Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this IFR so that they can better evaluate its effects
on themselves and participate in the rulemaking initiative. If the IFR
will affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance; please consult the person listed under FOR
FURTHER INFORMATION CONTACT.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement

[[Page 74918]]

fairness and an explicit policy against retaliation for exercising
these rights.

F. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $168 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2019 levels) or more in any one year. Though this IFR will not result
in such an expenditure, the Agency does discuss the effects of this
rule elsewhere in this preamble.

G. Paperwork Reduction Act

This IFR does not call for any new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Part 395 of
the Federal Motor Carrier Safety Regulations, ``Hours of Service of
Drivers,'' requires drivers and motor carriers to collect, transmit and
maintain information about driver daily activities. The part 395 ICR is
assigned OMB Control Number 2126-0001. On July 31, 2019, OMB approved
the Agency's estimate of 99.5 million burden hours as the annual IC
burden of part 395. As explained earlier, there are two groups of CMV
drivers whose behavior may change as a result of this IFR: (1) Those to
whom the definitions of ``agricultural commodity'' and ``livestock''
apply, but who currently do not use an exemption due to the existing
definitional ambiguity; and (2) those who currently use an exemption in
Sec. Sec. 395.1(k)(1) or 395.1(v), and may no longer do so as a result
of the definitional clarifications. Those in the former group could see
a reduction in their paperwork burden under this IFR, and those in the
latter group could see an increase in their paperwork burden. As FMCSA
does not have data on the number of drivers using the exemptions, or
the extent to which their behavior will change as a result of this IFR,
the Agency is not estimating any changes to the paperwork burden at
this time. FMCSA will be in a better position to estimate the use of
these exemptions when the currently approved collection is renewed in
2022.

H. E.O. 13132 (Federalism)

A rule has implications for federalism under section 1(a) of E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' FMCSA determined that this IFR does not have substantial
direct costs on or for States, nor would it limit the policymaking
discretion of States. Nothing in this document preempts any State law
or regulation; the HOS requirements do not have preemptive effect. As
set forth in 49 U.S.C. 31102, States and other political jurisdictions
are eligible to participate in the Motor Carrier Safety Assistance
Program, by, among other things, adopting and enforcing State
regulations, that are compatible with Federal regulations on CMV
safety, including the HOS requirements in part 395, and the safe
transportation of hazardous materials. Therefore, this rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.

I. Privacy

The Consolidated Appropriations Act, 2005,\16\ requires the Agency
to conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals.
---------------------------------------------------------------------------

\16\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency which receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002 \17\ requires Federal agencies to
conduct a PIA for new or substantially changed technology that
collects, maintains, or disseminates information in an identifiable
form.
---------------------------------------------------------------------------

\17\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec.
17, 2002).
---------------------------------------------------------------------------

No new or substantially changed technology would collect, maintain,
or disseminate information as a result of this rule. Accordingly, FMCSA
has not conducted a PIA.
In addition, the Agency submitted a Privacy Threshold Assessment to
evaluate the risks and effects the IFR might have on collecting,
storing, and sharing personally identifiable information. The DOT
Privacy Office has determined that this rulemaking does not create
privacy risk.

J. E.O. 13175 (Indian Tribal Governments)

This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
Tribes, on the relationship between the Federal government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.

K. Environment

FMCSA analyzed this IFR consistent with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action
is categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph (6)(b).
The Categorical Exclusion (CE) in paragraph (6)(b) relates to
regulations which are editorial or procedural, such as those updating
addresses or establishing application procedures, and procedures for
acting on petitions for waivers, exemptions and reconsiderations,
including technical or other minor amendments to existing FMCSA
regulations. The requirements in this rule are covered by this CE,
there are no extraordinary circumstances present, and this action does
not have the potential to affect the quality of the environment
significantly. The CE determination is available from the person listed
under FOR FURTHER INFORMATION CONTACT.

List of Subjects in 49 CFR Part 395

Highway safety, Motor carriers, Reporting and recordkeeping
requirements.

FMCSA amends 49 CFR chapter 3, part 395 as follows:

PART 395--HOURS OF SERVICE OF DRIVERS

0
1. The authority citation for part 395 continues to read as follows:

Authority: 49 U.S.C. 504, 31133, 31136, 31137, 31502; sec. 113,
Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-159 (as
added and transferred by sec. 4115 and amended by secs. 4130-4132,
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub.
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122
Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830;
sec. 5206(b), Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR 1.87.

0
2. Amending Sec. 395.2 by:
0
a. Revising the definitions of the terms ``Agricultural commodity'' and
``Livestock'' and
0
b. Adding, in alphabetical order, a definition of ``Non-processed
food.''
The addition and revisions read as follows:

Sec. 395.2 Definitions.

* * * * *
Agricultural commodity means:

[[Page 74919]]

(1) Any agricultural commodity, non-processed food, feed, fiber, or
livestock as defined in this section.
(2) As used in this definition, the term ``any agricultural
commodity'' means horticultural products at risk of perishing, or
degrading in quality, during transport by commercial motor vehicle,
including plants, sod, flowers, shrubs, ornamentals, seedlings, live
trees, and Christmas trees.
* * * * *
Livestock means livestock as defined in sec. 602 of the Emergency
Livestock Feed Assistance Act of 1988 [7 U.S.C. 1471], as amended,
insects, and all other living animals cultivated, grown, or raised for
commercial purposes, including aquatic animals.
* * * * *
Non-processed food means food commodities in a raw or natural state
and not subjected to significant post-harvest changes to enhance shelf
life, such as canning, jarring, freezing, or drying. The term ``non-
processed food'' includes fresh fruits and vegetables, and cereal and
oilseed crops which have been minimally processed by cleaning, cooling,
trimming, cutting, chopping, shucking, bagging, or packaging to
facilitate transport by commercial motor vehicle.
* * * * *

Issued under authority delegated in 49 CFR 1.87.
James W. Deck,
Deputy Administrator.
[FR Doc. 2020-25971 Filed 11-20-20; 4:15 pm]
BILLING CODE 4910-EX-P