Hours of Service; Limited Exemption for the Distribution of Anhydrous Ammonia in Agricultural Operations |
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Topics: Federal Motor Carrier Safety Administration
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Anne S. Ferro
October 6, 2010
[Federal Register: October 6, 2010 (Volume 75, Number 193)]
[Rules and Regulations]
[Page 61626-61631]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc10-16]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 395
[Docket No. FMCSA-2010-0230]
Hours of Service; Limited Exemption for the Distribution of
Anhydrous Ammonia in Agricultural Operations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of final disposition; granting of exemption.
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SUMMARY: FMCSA grants a 2-year, limited exemption from the Federal
hours-of-service (HOS) regulations for the transportation of anhydrous
ammonia from any distribution point to a local farm retailer or to the
ultimate consumer, and from a local farm retailer to the ultimate
consumer, as long as the transportation takes place within a 100 air-
mile radius of the retail or wholesale distribution point. This
exemption extends the agricultural operations exemption established by
section 345 of the National Highway System Designation Act of 1995, as
amended by sections 4115 and 4130 of the Safe, Accountable, Flexible,
Efficient Transportation Equity: A Legacy for Users (SAFETEA-LU), to
certain drivers and motor carriers engaged in the distribution of
anhydrous ammonia during the planting and harvesting seasons, as
defined by the States in which the carriers and drivers operate. The
Agency believes that the exemption will achieve a level of safety that
is equivalent to, or greater than, the level that would be achieved
absent such exemption, based on the terms and conditions imposed. The
exemption preempts inconsistent State and local requirements applicable
to interstate commerce.
DATES: The exemption is effective October 6, 2010. The exemption will
remain in effect until October 9, 2012 unless revoked earlier by FMCSA.
FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, Driver and
Carrier Operations Division, Office of Bus and Truck Standards and
Operations, Federal Motor Carrier Safety Administration, 1200 New
Jersey Ave., SE., Washington, DC 20590.
E-mail: MCPSD@dot.gov. Phone (202) 366-4325.
SUPPLEMENTARY INFORMATION:
Legal Basis
Section 4007(a) of the Transportation Equity Act for the 21st
Century (TEA-
[[Page 61627]]
21) (Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998) provided the
Secretary of Transportation (the Secretary) the authority to grant
exemptions from any of the Federal Motor Carrier Safety Regulations
(FMCSRs) issued under chapter 313 or section 31136 of title 49 of the
United States Code, to a person(s) seeking regulatory relief (49 U.S.C.
31136, 31315(b)). Prior to granting an exemption, the Secretary must
request public comment and make a determination that the exemption is
likely to achieve a level of safety that is equivalent to, or greater
than, the level of safety that would be obtained in the absence of the
exemption. Exemptions may be granted for a period of up to 2 years and
may be renewed.
The FMCSA Administrator has been delegated authority under 49 CFR
1.73(e)(1) and (g) to carry out the functions vested in the Secretary
by 49 U.S.C. chapter 313 and subchapters I and III of chapter 311,
relating, respectively, to the commercial driver's license program and
to commercial motor vehicle (CMV) programs and safety regulation.
Background
On July 14, 2010, FMCSA published a notice in the Federal Register
proposing a 2-year limited exemption from the Federal hours-of-service
(HOS) regulations for the transportation of anhydrous ammonia from any
distribution point to a local farm retailer or to the ultimate
consumer, and from a local farm retailer to the ultimate consumer, as
long as the transportation takes place within a 100 air-mile radius of
the retail or wholesale distribution point (75 FR 40765). The Agency
explained its rationale for proposing the exemption, set forth the
proposed terms and conditions to be imposed on motor carriers and
drivers operating under the exemption, and requested public comments on
the proposal.
Discussion of Public Comments
The FMCSA received 28 comments to the public docket, with 2 of the
comments submitted on behalf of multiple organizations. The comments
included a letter signed by 23 members of the United States House of
Representatives who expressed support for the exemption. Only 3 of the
commenters (including 1 anonymous individual) opposed the exemption. A
list of the commenters is provided below:
1. Agricultural and Food Transporters Conference of the American
Trucking Associations (with the following organizations listed in
its submission to the docket):
Agricultural Retailers Association; American Sugarbeet Growers
Association; National Agricultural Aviation Association; National
Association of Wheat Growers; National Barley Growers Association;
National Corn Growers Association; National Cotton Council; National
Council of Farmer Cooperatives; National Farmers Union; National
Sunflower Association; North American Equipment Dealers Association;
The Fertilizer Institute; USA Rice Federal; U.S. Canola Association.
2. Agricultural Retailers Association.
3. Agriculture Education Group.
4. Agrium.
5. Cabery Fertilizer Company.
6. Commercial Vehicle Safety Alliance (CVSA).
7. Cooperative Network.
8. Denis Brandon.
9. Donovan Farmers Co-Op Elevator, Inc.
10. E. Albert Allen.
11. Far West Agribusiness Association.
12. Growmark.
13. Huellinghoff Brothers, Inc.
14. Illinois Department of Agriculture.
15. Illinois Fertilizer and Chemical Association.
16. Kohlbrecher Truck Service, Inc.
17. Kova Fertilizer (with the following organizations listed in
its submission to the docket): Agricultural Education Group;
Agricultural Food and Transporters Conference; Agricultural
Retailers Association; The Fertilizer Institute; National Council of
Farmer Cooperatives.
18. Missouri Agribusiness Association.
19. North American Equipment Dealers Association.
20. Northern Partners Cooperative.
21. Oregon Wheat Growers League.
22. Patrick W. Herbert.
23. Perry Feed and Fertilizer.
24. Raymond J. Schroeder.
25. Transport America.
26. United Farmers Cooperative.
A list of the Members of Congress who signed a joint docket
submission is provided below, in alphabetical order:
Rep. Leonard Boswell; Rep. Howard Coble; Rep. Jerry Costello;
Rep. Jo Ann Emerson; Rep. Sam Graves; Rep. Deborah Halvorson; Rep.
Phil Hare; Rep. Lyn Jenkins; Rep. Tim Johnson; Rep. Steve King; Rep.
Tom Latham; Rep. Dave Loebsack; Rep. Blaine Luetkemeyer; Rep.
Cynthia Lummis; Rep. Donald Manzullo; Rep. Betsy Markey; Rep. Jerry
Moran; Rep. Collin Peterson; Rep. Aaron Schock; Rep. John Shimkus;
Rep. Ike Skelton; Rep. Adrian Smith; Rep. Lee Terry.
Comments in Support of the Exemption
Generally, the comments in favor of the exemption either
categorically supported the exemption, requested that it be expanded to
include liquid and dry fertilizers, or asked that it include all
agricultural products. For example, the North American Equipment
Dealers Association stated:
We believe Congress, when it authorized the HOS agricultural
exemptions in 1995, intended to address the special needs of the
nation's agricultural industry and rural communities. The HOS
agricultural exemption is critical for the timely delivery and
transportation of agricultural inputs during peak planting and
harvesting seasons defined by each state.
Farmers and ranchers expect their equipment dealers to provide
parts, repairs and service of planting and harvesting equipment and,
as such, should also be included in a HOS agricultural exemption.
The Illinois Fertilizer and Chemical Association also expressed an
interest in expanding the scope of the proposal. The association
stated:
While the exemption for the movement of anhydrous ammonia is
very critical due to the extra scrutiny placed on ammonia
transporters and the permit requirements for this product, the HOS
exemption is also critically essential for the timely movement of
non-hazardous fertilizers.
If FMCSA is willing to grant an HOS exemption for the delivery
of ammonia, which is DOT regulated as an extremely hazardous
substance and an inhalation hazard, then it makes even more sense to
apply the exemption to the shipments of bulk non-hazardous
fertilizers which are equally important to the growth of Illinois
crops.
Cooperative Network indicated that the exemption is a more
appropriate means of addressing the agricultural industry's needs than
the use of FMCSA's emergency relief provision under 49 CFR 390.23(a).
It offered the following comment:
For the past three years, Cooperative Network has requested and
received a declaration of emergency in each instance following the
provisions of Sec. 390.23(a) to increase anhydrous ammonia supply
during periods of extremely high demand. The repeated acts of the
governors of Minnesota and Wisconsin in issuing emergency
declarations, and thereby lifting the hours-of-service requirements
for farm supply shipments, demonstrates the supply challenges
farmers and their suppliers endure during the planting and
harvesting seasons.
The CVSA supports the exemption but suggests that, in evaluating
the proposal, FMCSA look for data in addition to that which the Agency
discussed in the July notice. The CVSA also requested that the Agency
consider more stringent terms and conditions for the exemption.
CVSA believes the terms and conditions should be strengthened so
that a more robust safety determination can be made during and after
this 2-year exemption period. CRs [compliance reviews] should be
conducted on all carriers seeking to take advantage of the exemption
so a current Safety Rating can be assigned; carriers must maintain a
``Satisfactory'' safety rating. FMCSA should require that the
carrier have a credential to be carried on the vehicle.
[[Page 61628]]
The CVSA also suggested that FMCSA monitor carriers' safety
performance during the exemption.
FMCSA Response
First, FMCSA acknowledges the concerns of commenters that believe
the scope of the exemption should be expanded to include either dry and
liquid fertilizers, or all agricultural products. The Agency, however,
continues to believe that would be inappropriate at this time.
The FMCSA is committed to being responsive to the needs of the
agricultural community in delivering products for American consumers,
but the Agency must also fulfill its safety mission. The safety mission
requires that the Agency exercise sparingly its authority to grant
exemptions. No matter what the substance being shipped, the Agency must
be extremely sensitive to the number of drivers and trucks that it
allows to operate outside of the HOS regulations, for any period of
time.
By granting of the proposed exemption, FMCSA extends to certain
drivers and motor carriers engaged in the distribution of anhydrous
ammonia the agricultural operations exemption established by section
345(a) of the National Highway System Designation Act of 1995 (NHS Act)
(Pub. L. 104-59, November 28, 1995, 109 Stat. 568, 613, 49 U.S.C. 31136
note, as amended by section 4130, redesignated by section 4115(a)(2) of
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005, 119
Stat. 1144, 1726) and implemented by 49 CFR 395.1(k)).
The July 14 notice proposing this exemption indicated that FMCSA
had been contacted by Members of Congress on behalf of their
constituents concerning the Agency's interpretation of the agricultural
exemption provided by section 345(a)(1) of the NHS Act. Motor carriers
engaged in the transportation of farm supplies--particularly anhydrous
ammonia--argued that FMCSA's reading of the agricultural exemption
denied certain distribution activities the regulatory relief intended
by Congress. At the time the Agency was contacted, the emphasis was on
the transportation of anhydrous ammonia rather than all fertilizers or
all agricultural commodities. Therefore, the Agency focused its
attention on anhydrous ammonia.
Second, with regard to the interpretation of the NHS Act exemption,
the Agency acknowledges that the legislative history adds an
explanation of the sponsors' intent that was not incorporated into the
statutory language itself. The Agency has consistently held that the
agricultural operations exemption applies to the transportation of farm
supplies from the local farm retailer to the ultimate consumer within a
100 air-mile radius. The FMCSA's interpretation, however, has not
extended the HOS exemption to deliveries from wholesalers to either
local farm retailers or farms. (See Question 33, 49 CFR 395.1 on the
Agency's Web site: http://www.fmcsa.dot.gov.) Question 33 reads as
follows:
Question 33: How is ``point of origin'' defined for the purpose
of Sec. 395.1(k)?
Guidance: The term ``point of origin'' is not used in the NHS
Designation Act; the statutory term is ``source of the
[agricultural] commodities.'' The exemption created by the Act
applies to two types of transportation. The first type is
transportation from the source of the agricultural commodity--where
the product is grown or raised--to a location within a 100 air-mile
radius of the source. The second type is transportation from a
retail distribution point of the farm supply to a location (farm or
other location where the farm supply product would be used) within a
100 air-mile radius of the retail distribution point.
The legislative history of the agricultural exemption indicates
it was intended to only apply to retail store deliveries. Thus, it
is clear Congress intended to limit this exemption to retail
distributors of farm supplies.
Second-stage movements, such as grain hauled from an elevator
(or sugar beets from a cold storage facility) to a processing plant,
are more likely to fall outside the exempt radius. Similarly, the
exemption does not apply to a wholesaler's transportation of an
agricultural chemical to a local cooperative because this is not a
retail delivery to an ultimate consumer, even if it is within the
100 air-mile radius.
There is substantial controversy about the weight to be assigned to
legislative history in the interpretation of statutes. Because the
exemption being granted today responds to the most immediate needs of
the agricultural community, FMCSA will not revisit its previous
guidance at this time.
Third, in response to Cooperative Network's reference to States'
emergency declarations, FMCSA cautions all interstate motor carriers
subject to the FMCSRs to adhere to safety regulations unless the
declaration by a State or local official is for an ``emergency'' as
defined under 49 CFR 390.5. The FMCSA does not question the authority
of State and local officials to make declarations about matters within
their jurisdiction.
Motor carriers subject to the FMCSRs, however, have a
responsibility for determining whether the ``emergency'' referenced by
the State or local official is one that ``* * * interrupts the delivery
of essential services (such as, electricity, medical care, sewer,
water, telecommunications, and telecommunication transmissions) or
essential supplies (such as, food and fuel) or otherwise immediately
threatens human life or public welfare, * * *'' \1\ Also, any motor
carrier that intends to operate under the emergency relief provision
must ensure that it is engaged in providing ``direct assistance,'' as
defined in 49 CFR 390.5, in responding to the emergency. Therefore,
motor carriers that have exceeded the applicable HOS requirements for
the purpose of applying fertilizer during the planting and harvesting
seasons should cease such practices as they clearly do not fall within
scope of FMCSA's emergency relief provision.
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\1\ See definition of the term ``emergency'' in 49 CFR 390.5.
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Finally, FMCSA acknowledges the CVSA's concerns. As explained in
the July notice, however, the Agency has considered the data available,
including its experience from the 90-day limited waiver granted earlier
this year. On March 22, 2010, FMCSA published a notice in the Federal
Register announcing a limited 90-day waiver from the Federal HOS
regulations for the transportation of anhydrous ammonia from any
distribution point to a local farm retailer or to the ultimate
consumer, and from a local farm retailer to the ultimate consumer, as
long as the transportation takes place within a 100 air-mile radius of
the retail or wholesale distribution point (54 FR 13441). As explained
in the Agency's July notice, there were no crashes or incidents
reported as a result of the waiver. FMCSA also sought information from
the Pipeline and Hazardous Materials Safety Administration's (PHMSA)
Hazardous Materials Incident Reporting Systems and from FMCSA field
offices concerning the safety performance of anhydrous ammonia
transporters and received no negative reports. In addition, none of the
commenters responding to the July notice provided information
suggesting safety performance problems associated with the motor
carriers and drivers engaged in the transportation of anhydrous
ammonia.
Based on a review of the available information, the Agency believes
it is appropriate to grant the exemption.
With respect to CVSA's recommendation that FMCSA impose more
stringent terms and conditions for motor carriers and drivers that
would operate under the exemption, the
[[Page 61629]]
Agency does not believe such action is warranted at this time. There is
no basis for requiring that each carrier undergo a compliance review
prior to being allowed to operate under the exemption. If the carrier's
safety performance were suspect, it is likely that it would be
considered a ``high-risk'' carrier under the current Agency safety
monitoring system, which takes into account roadside inspection data
and crash data. The Agency would have prioritized the carrier for a
compliance review or investigation, and would take appropriate
enforcement action to address the safety performance problems. If the
problems were such that the carrier receives a rating of
``conditional'' or ``unsatisfactory,'' the carrier would be precluded
from operating under the exemption.
Comments in Opposition to the Exemption
Transport America, one of three commenters opposed to the
exemption, believes that all motor carriers should operate under the
same regulations. Transport America stated:
It [the exemption] has nothing to do with safety but caters to a
large farming special interest group. The just in time justification
is no more relevant than retailers would have for Christmas,
building products companies would have for construction season, snow
blower manufacturers would have for the start of winter and the list
goes on and on.
Patrick W. Herbert also expressed opposition to the exemption. Mr.
Herbert believes that exceeding the HOS rules increases the risk of
fatigue. He bases his views on his experience as a truck driver who has
operated within a 100 air-mile radius for 30 years.
FMCSA Response
FMCSA acknowledges the concerns of the commenters. The Agency
continues to believe the exemption is appropriate because local
retailers and farms have limited storage capacity and therefore must
constantly replenish certain supplies during the planting and
harvesting seasons. They are part of the ``just in time'' distribution
system that extends from a wholesaler to the ultimate consumer of the
supplies. Because of storage constraints and the demand for the
transportation of anhydrous ammonia to support agricultural operations,
and the likelihood that such conditions will continue for some time,
FMCSA believes the 2-year, limited exemption is necessary to provide
regulatory relief for the transportation of anhydrous ammonia during
the planting and harvesting seasons, as defined by the States in which
the anhydrous ammonia transporters operate. The Agency emphasizes that
the exemption provides limited regulatory relief to facilitate planting
activities that will ultimately result in the production of
agricultural commodities at prices to which consumers have become
accustomed, with no foreseeable degradation of safety. The Agency will
continue to monitor the safety performance of motor carriers and
drivers engaged in the transportation of anhydrous ammonia. It will
take appropriate action at any time it appears that a motor carrier or
driver should be prohibited from operating under the exemption or that
the entire exemption should be reconsidered because of poor safety
performance.
Safety Determination for Granting the Exemption
FMCSA is committed to ensuring high standards of motor carrier
safety. As explained in the July notice, the Agency has considered the
available data concerning the safety performance of agricultural
operations in general and the safety performance of anhydrous ammonia
transporters during the 90-day, limited waiver referenced above. FMCSA
compared safety performance data for agricultural carriers currently
operating under the statutory HOS exemption provided by the NHS Act, as
amended, with the data for non-agricultural carriers that are not
exempt from HOS regulations to determine whether the exemption would be
likely to achieve a level of safety that is equivalent to, or greater
than, the level of safety that would be obtained in the absence of the
exemption. The data were collected as part of a study, ``Agricultural
Commodity and Utility Carriers Hours of Service Exemption Analysis,''
May 2010, FMCSA-RRA-10-448. A copy of the report has been placed in the
public docket identified at the beginning of this notice.
The study was conducted in two phases. Phase 1 compares the safety
performance of agricultural and non-agricultural carriers for the
period 2005 through 2008, and also examines two additional industries,
livestock and utility carriers, whose operations were not exempt from
HOS regulations prior to the passage of SAFETEA-LU.\2\ The Phase 1
analysis used carrier registration, inspection and crash data from
FMCSA's Motor Carrier Management Information System (MCMIS). The study
used cargo classification information on the FMCSA Motor Carrier
Identification Report (Form MCS-150) in MCMIS to identify the carrier's
industry group (agricultural, livestock, or utility carrier), and used
MCS-150 information to identify carriers operating within and beyond a
100-air-mile radius. The operating radius information was used to
create two agricultural carrier subgroups: (1) Agricultural carriers
with 100 percent of drivers operating within a 100-air-mile radius; and
(2) agricultural carriers with 100 percent of drivers operating beyond
a 100-air-mile radius. The analysis used the first subgroup as
representative of agricultural carriers exempt from the HOS
requirements, and the second subgroup as representative of agricultural
carriers not exempt from the HOS requirements.
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\2\ Section 4130(a).
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For the Phase 2 analysis, inspection data of agricultural commodity
and utility carriers (which are also exempt from HOS regulations) were
collected during an FMCSA special study of a sample of States. These
data included only those inspections occurring during the States'
planting and harvesting seasons and indicated both the commodity being
transported and whether the driver was operating within or beyond the
100-air-mile radius exempt from HOS regulations. The Phase 2 analysis
assessed the safety performance of the HOS exempt agricultural
commodity and utility service carriers identified in the survey in
comparison with non-HOS-exempt carriers based on their out-of-service
(OOS) violation rates and crash rates.
The Agency did not place as much emphasis on the OOS rates because
there were no HOS violation data to consider, given that the
agricultural carriers for which data were available were operating
under a statutory exemption from the HOS rule. Differences between the
OOS rates for other issues such as driver qualifications and vehicle
defects and deficiencies, while important in considering overall safety
management controls of the carriers, were not necessarily related to
the potential safety impact of the exemption.
The Phase 1 analysis indicates that nationally, agricultural
carriers operating within a 100-air-mile radius had lower crash rates
per 100 power units than those operating beyond this radius, except for
in 2008, when there was no difference in the crash rates.
To provide additional validation of the crash analysis, which uses
power unit data reported on the Form MCS-150, a separate analysis was
performed using data only for carriers domiciled in States
participating in FMCSA's Performance and Registration Information
Systems Management (PRISM) program that enforces MCS-
[[Page 61630]]
150 updating.\3\ PRISM links State motor vehicle registration systems
with carrier safety data in order to identify unsafe commercial motor
carriers. The PRISM State carriers are required to update their MCS-150
annually. By contrast, non-PRISM State carriers are required by FMCSA
to update their MCS-150 biennially. As a result, the PRISM State data
are considered more current and reliable than non-PRISM State data
where there are no direct consequences for not updating the data. Data
from PRISM States that enforce MCS-150 updating show that agricultural
carriers operating within a 100-air-mile radius had more varied
results, with crash rates higher than carriers operating beyond a 100-
air-mile radius in 2008, lower in 2006 and 2007, and nearly the same in
2005.
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\3\ Current PRISM States that enforce the MCS-150 updating
requirement are Alabama, Arizona, Arkansas, Connecticut, Georgia,
Iowa, Kentucky, Louisiana, Maine, Minnesota, Missouri, Nebraska, New
Hampshire, New Mexico, North Carolina, Ohio, South Carolina, South
Dakota, Tennessee, Utah, Vermont, Washington, and West Virginia.
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The Phase 2 analysis indicates that in the four States
participating in the survey (Idaho, Kansas, Maryland, Michigan),
agricultural carriers that were subject to the HOS requirements had
higher crash rates per 100 power units than agricultural carriers
exempt from the HOS requirements.
In addition to the study, the Agency considered information from
the PHMSA Hazardous Materials Incident Reporting Systems and from FMCSA
field offices concerning the safety performance of anhydrous ammonia
transporters during the limited 90-day waiver mentioned above.
With regard to information from FMCSA's field offices, the Agency
did not receive any information about accidents, as defined in 49 CFR
390.5, involving motor carriers transporting anhydrous ammonia using
drivers operating under the limited 90-day waiver. The Agency
acknowledges that there is a gap between the date that a crash occurs
and the date the States would typically submit crash reports. However,
because FMCSA sought information through its field offices rather than
relying solely on routine crash reporting by State enforcement
agencies, it is unlikely that there have been any crashes resulting in
fatalities or injuries, involving a driver operating under the limited
90-day waiver, referenced above.
In the absence of any data or information to the contrary, the
Agency continues to believe the real-world experience of anhydrous
ammonia transporters during the 90-day limited waiver suggests that the
level of safety under an exemption would be equivalent to, or greater
than, the level that would be achieved absent such exemption.
FMCSA Decision
In light of the information presented in the July 14, 2010, notice
and after considering all the comments submitted in response to the
notice, FMCSA grants a 2-year, limited exemption from the Federal HOS
regulations for interstate motor carriers engaged in the distribution
of anhydrous ammonia during the planting and harvesting seasons as
defined by the States. As indicated in the July 14, 2010, notice, the
Agency's review of the available crash data comparing exempt and non-
exempt motor carriers, and a review of crash data from anhydrous
ammonia transporters operating during the limited 90-day waiver provide
a reasonable basis to believe that the limited exemption is likely to
achieve a level of safety that is equivalent to, or greater than, the
level that would be achieved absent such exemption, based on the terms
and conditions that rare being imposed.
Terms and Conditions of the Exemption
The FMCSA provides a 2-year, limited exemption from the
requirements of 49 CFR part 395 concerning the HOS requirements for
drivers of property-carrying vehicles engaged in the distribution of
anhydrous ammonia during the planting and harvesting seasons, as
determined by the State(s) in which the transportation takes place.
This limited exemption extends the agricultural operations exemption
from the Federal HOS regulations to drivers used by motor carriers in
the distribution system, provided that: (1) The driver is delivering
anhydrous ammonia; (2) none of the transportation movements within the
distribution chain exceeds a 100 air-mile radius--whether from the
retail or wholesale distribution point; and (3) the motor carrier using
the driver has a ``satisfactory'' safety rating or is ``unrated;''
drivers for motor carriers with ``conditional'' or ``unsatisfactory''
safety ratings are prohibited from taking advantage of the exemption.
The exemption allows drivers for ``unrated'' motor carriers and
those with a satisfactory safety rating to use the HOS exemption when
the drivers are delivering anhydrous ammonia from any distribution
point to a local farm retailer or to the ultimate consumer, and from a
local farm retailer to the ultimate consumer, as long as the
transportation takes place within a 100 air-mile radius of the retail
or wholesale distribution point.
Safety Rating
Motor carriers that have received compliance reviews and want their
drivers to be exempt from the HOS regulations are required to have a
``satisfactory'' rating. The compliance review is an on-site
examination of a motor carrier's operations, including records on
drivers' HOS, maintenance and inspection, driver qualification,
commercial driver's license requirements, financial responsibility,
accidents, hazardous materials, and other safety and transportation
records to determine whether a motor carrier meets the safety fitness
standard. The assignment of a ``satisfactory'' rating means the motor
carrier has in place adequate safety management controls to comply with
the Federal safety regulations, and that the safety management controls
are appropriate for the size and type of operation of the motor
carrier.
FMCSA will allow drivers for ``unrated'' carriers to take advantage
of the exemption. Unrated motor carriers are those that have not
received a compliance review. FMCSA is allowing drivers for unrated
motor carriers to participate because it is unfair to exclude them
simply because these carriers were not selected by the Agency for a
compliance review. The absence of a compliance review is in no way an
indication that the carrier has done anything wrong or has safety
problems.
The Agency will not allow drivers for motor carriers with
conditional or unsatisfactory ratings to participate because both of
those ratings indicate that the carrier has safety management control
problems. There is little reason to believe that carriers rated either
``unsatisfactory'' or ``conditional'' could be relied upon to comply
with the terms and conditions of the exemption.
Accident and Hazardous Materials Reporting Requirement
Within 10 business days following an accident (as defined in 49 CFR
390.5) or any unintentional discharge of anhydrous ammonia that
requires the submission of the Department of Transportation Hazardous
Materials Incident Report (DOT Form F 5800.1) (see 49 CFR 171.16)
involving any of the CMVs operated by a motor carrier whose drivers are
using the exemption, irrespective of whether the CMV involved in the
accident or discharge was being operated by a driver using the
exemption, the motor carrier must submit the following information:
[[Page 61631]]
(a) Date of the accident;
(b) City or town in which the accident occurred, or city or town
closest to the scene of the accident;
(c) Driver's name and license number;
(d) Vehicle number and State license number;
(e) Number of injuries;
(f) Number of fatalities;
(g) Whether hazardous materials, other than fuel spilled from the
fuel tanks of the motor vehicles involved in the accident, were
released;
(h) The police-reported cause of the accident;
(i) Whether the driver was cited for violating any traffic laws,
motor carrier safety regulations, or hazardous materials discharge; and
(j) Whether the driver was operating under the exemption, and if
so, an estimate of the total driving time, on-duty time for the day of
the accident and each of the seven calendar days prior to the accident.
Duration of the Exemption
The exemption is effective October 6, 2010 and will remain in
effect until October 9, 2012 unless revoked earlier by FMCSA. The
exemption may be renewed by the Agency; the Agency will provide notice
and an opportunity for public comment prior to renewing the exemption.
The exemption preempts inconsistent State or local requirements
applicable to interstate commerce.
Safety Oversight of Carriers Operating Under the Exemption
FMCSA expects that any drivers and their employing motor carrier
operating under the terms and conditions of the exemption will maintain
their safety record. Should any deterioration occur, however, FMCSA
will, consistent with the statutory requirements of TEA-21, take all
steps necessary to protect the public interest. Use of the exemption is
voluntary, and FMCSA will immediately revoke the exemption for any
interstate driver or motor carrier for failure to comply with the terms
and conditions exemption.
Issued on: September 30, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-25207 Filed 10-5-10; 8:45 am]
BILLING CODE 4910-EX-P