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Commercial Driver's License (CDL): Application for Exemption Renewal; U.S. Custom Harvesters, Inc. Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Sue Lawless Date: 18 June 2024 Subjects: American Government  , Driver Licensing, Trucking
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[Federal Register Volume 89, Number 118 (Tuesday, June 18, 2024)]
[Notices]
[Pages 51589-51592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13323]
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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
Renewal; U.S. Custom Harvesters, Inc.
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of final disposition; renewal of exemption.
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SUMMARY: FMCSA announces its final decision to renew the U.S. Custom
Harvesters, Inc. (USCHI) exemption from the intrastate restriction
(``K'') on commercial driver's licenses (CDLs) for custom harvester
drivers operating in interstate commerce for a two-year period, with
additional terms and conditions. FMCSA's regulations currently provide
an exception to the minimum age requirements for drivers of commercial
motor vehicles (CMVs) engaged in custom harvesting operations in
interstate commerce. However, under the Agency's CDL regulations,
States may impose an intrastate-only (or ``K'') restriction for these
drivers. On October 11, 2023, FMCSA announced its decision to
provisionally renew USCHI's exemption for two years, pending a review
of any comments received in response to that
[[Page 51590]]
notice. After reviewing the four comments submitted to the docket,
which are discussed later in this notice, the Agency believes that
drivers who qualify for the exemption will likely achieve a level of
safety that is equivalent to, or greater than, the level of safety that
would be achieved by complying with the ``K'' restriction.
DATES: This renewed exemption became effective October 3, 2023, and
continues through October 3, 2025.
FOR FURTHER INFORMATION CONTACT: La Tonya Mimms, Chief, Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards, FMCSA; (202) 366-9220; latonya.mimms@dot.gov. If you
have questions on viewing material to the docket, contact Dockets
Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation; Viewing Comments and Documents
To view comments, go to www.regulations.gov, insert the docket
number ``(FMCSA-2017-0133)'' in the keyword box, and click ``Search.''
Next, sort the results by ``Posted (Newer-Older),'' choose the first
notice listed, and click ``Browse Comments.''
To view documents mentioned in this notice as being available in
the docket, go to www.regulations.gov, insert the docket number
``FMCSA-2017-0133'' in the keyword box, click ``Search,'' 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 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.
To be sure someone is there to help you, please call (202) 366-9317 or
(202) 366-9826 before visiting Dockets Operations.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant
exemptions from 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 the applicant's safety analyses. The Agency must provide an
opportunity for public comment on the request.
The Agency reviews safety analyses and public comments submitted
and determines whether granting the exemption would likely maintain a
level of safety equivalent to, or greater than, the level that would be
achieved by the current regulation (49 CFR 381.305(a)). The Agency must
publish its decision in the Federal Register (49 CFR 381.315(b)). If
granted, the notice will identify the regulatory provision(s) from
which the applicant will be exempt, the effective period, and all terms
and conditions of the exemption (49 CFR 381.315(c)(1)). If the
exemption is denied, the notice will explain the reasons for the denial
(49 CFR 381.315(c)(2)).
III. Background
Current Regulatory Requirements
The Federal Highway Administration adopted section 391.2(a) of
title 49 of the Code of Federal Regulations (CFR) on December 22, 1971
(36 FR 24218). Under this provision, drivers of CMVs 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. State Driver Licensing Agencies (SDLAs)
issue a ``K'' restriction on drivers who are under the age of 21 to
permit these drivers to operate a CMV within the issuing State only.
Section 391.2(a) does not preempt State CDL regulations, such as the
requirement in 49 CFR 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 49 CFR 383.153(a)(10)(vii) of subpart J.
Original Exemption
On October 3, 2018, FMCSA published a notice granting USCHI an
exemption from 49 CFR 383.23(a)(2) and 49 CFR 383.153(a)(10)(vii) for a
period of five years; the exemption expired on October 3, 2023 (83 FR
49977). In its 2018 decision, FMCSA noted that although it was granting
the exemption, the exemption ``did not require any special action or
processing'' by the SDLAs who would continue to place the ``K''
restriction when called for, but enforcement officers would disregard
it in situations involving drivers who can demonstrate eligibility for
the custom harvester exemption set forth in 49 CFR 391.2(a).
Application for Renewal of Exemption
USCHI requested a renewal of its exemption for a five-year period.
USCHI stated that it frequently employs drivers younger than 21 years
of age, who are issued CDLs with a ``K'' restriction. Under an
exception in place since 1971, the requirement that CMV drivers must be
at least 21-years old does not apply to a CMV driver who drives a CMV
while engaged in custom-harvesting operations, provided that certain
conditions are met (49 CFR 391.2(a)). Under the exemption, drivers
under 21 are therefore allowed to drive in interstate custom harvesting
operations, notwithstanding the ``K'' restriction on their licenses.
USCHI states that, even though CMV drivers engaged in custom
harvesting are excepted from the 21-year-old requirement, they are
frequently cited during roadside inspections because of the presence of
the ``K'' restriction on their licenses. USCHI states that this issue
negatively impacts the safety records of drivers and employers.
USCHI asks the Agency to renew its exemption for another five-year
period, subject to terms and conditions, that would allow law
enforcement officers to determine that the driver is operating in
custom harvester operations. For example, USCHI proposes that the
driver be required to provide at least three methods of verification
while en route. A copy of USCHI's request for an exemption renewal is
available for review in the docket for this notice.
IV. Provisional Renewal of Exemption
On October 11, 2023, after review of USCHI's renewal application,
FMCSA published its decision to provisionally grant a two-year renewal
of the exemption effective October 3, 2023, through October 3, 2025,
and requested public comment (88 FR 70431). The Agency makes that
renewal final for the remainder of the two-year period.
The October 11 notice of provisional renewal announced terms and
conditions that applied to operations for the first 90 days after the
notice and, separately, certain replacement or additional requirements
that would apply beginning 90 days later, i.e., after January 9, 2024
(88 FR at 70433). Today's notice supersedes the October 11, 2023,
notice and finalizes the provisionally granted two-year exemption,
through October 3, 2025.
V. Public Comments
Four comments were submitted to the docket, all in support of
renewing the exemption. USCHI acknowledged the terms and conditions in
the exemption renewal, stating ``USCHI understands the required and
critical need to achieve a level of safety equivalent to, or greater
than, the level that would be achieved by the currently (sic)
regulation under this exemption.'' USCHI also contended that its
members operate with the utmost regard for safety and responsibility,
stating that USCHI members ``provide additional
[[Page 51591]]
mentorship and on the job training for younger drivers once they
receive their CDL. USCHI also hosts multiple safety events for its
members each year.'' Heil Harvesting, LLC's supporting comment
emphasized the need for the exemption stating that ``[w]orkers to help
harvest the nation's crops are increasingly difficult to locate and
hire, and eliminating drivers younger than age 21 from the employee
pool creates a severe hardship for harvesters' businesses.'' Beau
Froese said ``[w]e travel through Texas, Oklahoma, Kansas, Colorado and
Nebraska and would have a serious problem meeting the harvesting needs
of the producers that we serve were we unable to use 18, 19 and 20 year
old drivers.'' Lastly, Mychal Neumiller provided the following
supporting statement: ``[o]ur business spends many hours training young
employees on back roads and around our farm before allowing any of them
to get on the road with us. Without these young people, most harvesters
wouldn't be able to get the crops out of the fields for our farmers.''
VI. Response to Public Comments and Agency Decision
FMCSA has evaluated the public comments and now issues this final
decision affirming its provisional decision to renew the exemption for
a two-year period. USCHI fulfilled the 30-day requirement of the
provisional exemption's terms and conditions and has provided a list of
USDOT numbers of the motor carriers that will be operating under this
exemption; this list is available in the docket. FMCSA is not aware of
any evidence showing that allowing the exemption from the intrastate-
only ``K'' restriction has resulted in any degradation in safety.
Interstate operations for non-CDL custom harvester drivers younger than
21 are currently allowed pursuant to 49 CFR 391.2(a), and intrastate
operations for CDL custom harvester drivers under the age of 21 can be
accomplished under 49 CFR 383.23(a)(2) and 383.153(a)(10)(vii).
The Agency notes that, likely through miscommunications and
misunderstandings among the Agency, USCHI, and its membership, certain
crashes involving the drivers operating under the exemption were not
reported to the Agency during the first five-year exemption. FMCSA's
review of USCHI members' data indicates there have been crashes that
could be considered preventable. The Agency obtained 14 police crash
reports involving custom harvester operators under the age of 21.
However, given the five-year period of the previous exemption, the size
of USCHI's membership,\1\ and a lack of information on the age peer
group within the agricultural driver population as a baseline, the
Agency does not find sufficient information to conclude that the
previous 5-year exemption resulted in a degradation of safety.
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\1\ USCHI's website indicates they have approximately 420
Regular members and 180 Associate members.
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Nevertheless, as a safety precaution, FMCSA is extending the
exemption for two years instead of the requested five years and
enhancing the terms and conditions of the exemption to assist the
Agency's oversight. Under the modified exemption, custom harvester
drivers will likely maintain a level of safety that is equivalent to,
or greater than, the level of safety that would be achieved without the
exemption.
During the two-year period of the extended exemption, in addition
to enhancing the terms and conditions of the exemption, FMCSA will
initiate a data analysis project to examine the safety performance of
custom harvester drivers under the age of 21, in comparison to other
drivers in the agriculture sector of the motor carrier industry. The
data collection for this project has been initiated, and FMCSA has
begun analyzing the data as referenced in the provisional exemption
notice. The Agency currently has violation data on motor carriers that
utilize the transportation of agricultural commodities exception to the
hours-of-service rules, and the new study will assist the Agency in
conducting a more in-depth analysis of their safety performance as a
group and the safety performance of the subset of custom harvester
drivers under the age of 21. This information will aid in assessing the
safety impacts of the USCHI exemption prior to the expiration of the
two-year renewal.
VII. Exemption Decision
A. Grant of Two-Year Exemption
FMCSA renews the exemption for a period of two years, subject to
the terms and conditions of this decision. The exemption from the ``K''
intrastate restriction on CDLs held by custom harvester drivers
operating in interstate commerce is otherwise effective October 3,
2023, through October 3, 2025, at 11:59 p.m. local time, unless renewed
or rescinded.
B. Applicability of Exemption
Custom Harvester Drivers
Custom harvester drivers under 21 years of age 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 they are 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 CDL-issuing State when
they are operating as custom harvesters in accordance with 49 CFR
391.2(a) and this exemption.
State Driver Licensing Agencies
This exemption requires no action or inaction on the part of the
SDLAs. They will continue to issue CDLs with a ``K'' restriction to
drivers under the age of 21.
C. Terms and Conditions
Motor carriers and drivers operating under the exemption are
subject to the following terms and conditions:
(1) Drivers engaged in custom harvesting operations 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 whom this exemption applies are identified in 49 CFR
391.2(a) 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 transporting custom-harvested crops to storage or market.
(4) To ensure that the drivers are legitimately operating as a
custom harvester, they 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's purpose, etc.;
(b) The CMV may have license plates specific to custom, or the
verbiage ``Harvesting'' may be part of the business signage on the
vehicle;
[[Page 51592]]
(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 a 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.
(5) The USCHI must provide FMCSA with a list of motor carrier USDOT
numbers that are engaged in custom farm operations every 90 days. The
driver must be working for a motor carrier with a USDOT number
identified in the most current list provided to FMCSA by USCHI. See
additional FMCSA notification requirements in Section VII.E below. This
exemption applies to USCHI members only.
D. Preemption
In accordance with 49 U.S.C. 31315(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 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.
E. Notification to FMCSA
Starting in May of 2024 and every 90 days thereafter, USCHI must
provide FMCSA with the USDOT numbers of the motor carriers that will be
operating under this exemption. The USCHI must notify FMCSA within five
business days of any crash (as defined in 49 CFR 390.5), involving any
of the drivers operating under the terms of the exemption. The
notification must include the following information:
(a) Identity of Exemption: ``USCHI Renewal,''
(b) Name of the custom harvester employer and USDOT number,
(c) Date of the crash,
(d) Origin and intended destination of the USCHI driver's trip and
the distance (in miles) of the crash from the driver's home terminal,
(e) Driver's name, license number, and age,
(f) Vehicle number and State license number,
(g) Number of individuals suffering physical injury
(h) Number of fatalities,
(i) The police-reported circumstances of the crash,
(j) Whether the driver was cited for violation of any traffic laws
or motor carrier safety regulations,
(k) The driver's total driving time and total on-duty time period
prior to the accident,
(l) Information about what safety training, if any, was provided to
drivers operating under this exemption after the driver obtained a CDL,
and
(m) A scanned copy of the police accident report.
Reports filed under this provision shall be emailed to
MCPSD@DOT.GOV.
F. Termination
The exemption will be rescinded if: (1) the USCHI, motor carriers,
and drivers operating under the exemption fail to comply with the terms
and conditions of the exemption; (2) the exemption has resulted in a
lower level of safety than was maintained before it was granted; or (3)
continuation of the exemption would not be consistent with the goals
and objects of 49 U.S.C. 31136(e) and 31315.
Should FMCSA receive notice of any potential adverse safety
impacts, FMCSA will take all steps necessary to protect the public
interest, including revocation or restriction of the exemption if
necessary. FMCSA may immediately revoke or restrict the exemption for
failure to comply with its terms and conditions.
Sue Lawless,
Acting Deputy Administrator.
[FR Doc. 2024-13323 Filed 6-17-24; 8:45 am]
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