
[Federal Register: July 14, 2010 (Volume 75, Number 134)]
[Proposed Rules]               
[Page 40765-40769]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jy10-19]                         

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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), DOT.

[[Page 40766]]


ACTION: Proposed exemption; request for public comment.

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SUMMARY: FMCSA announces its proposal to grant a 2-year, limited 
exemption from the Federal hours-of-service 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 would extend the agricultural 
operations exemption established by section 345 of the National Highway 
System Designation Act of 1995, as amended, by the 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 
would likely 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. This exemption would preempt 
inconsistent State and local requirements applicable to interstate 
commerce.

DATES: Comments must be received on or before August 13, 2010.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2010-0230 by any of the following 
methods
     Web site: http://www.regulations.gov. Follow the 
instructions for submitting comments on the Federal electronic docket 
site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, Room W-12-140, 1200 New Jersey Avenue, SE., 20590-0001.
     Hand Delivery: Ground Floor, Room W12-140, DOT Building, 
1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. 
e.t., Monday through Friday, except Federal Holidays.
    Instructions: All submissions must include the Agency name and 
docket number. For detailed instructions on submitting comments and 
additional information on the exemption process, see the ``Public 
Participation'' heading below. Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the ``Privacy Act'' heading 
below.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
the ground floor, room W12-140, DOT Building, 1200 New Jersey Avenue, 
SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through 
Friday, except Federal holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
Privacy Act Statement for the Federal Docket Management System 
published in the Federal Register on January 17, 2008 (73 FR 3316), or 
you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
    Public Participation: The www.regulations.gov Web site is generally 
available 24 hours each day, 365 days each year. You can obtain 
electronic submission and retrieval help and guidelines under the 
``help'' section of the http://www.regulations.gov Web site and also at 
the DOT's http://docketsinfo.dot.gov Web site. If you want us to notify 
you that we received your comments, please include a self-addressed, 
stamped envelope or postcard or print the acknowledgement page that 
appears after submitting comments online.

DATES: Comments must be received on or before August 13, 2010.

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 (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 of title 49 of the United States Code 
or 49 U.S.C. 31136, 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 two 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 March 22, 2010, FMCSA published a notice in the Federal Register 
announcing a limited 90-day waiver 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 (54 FR 13441). The waiver 
extended 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)) to certain 
drivers and motor carriers engaged in the distribution of anhydrous 
ammonia during the 2010 spring planting season.
    The FMCSA's notice indicated that the Agency had been contacted by 
members of Congress concerning the Agency's interpretation of the 
agricultural exemption provided in section 345(a) of the NHS. 
Constituents engaged in the transportation of farm supplies--
particularly anhydrous ammonia--contacted the members to express 
concerns that the Agency's interpretation of the agricultural exemption 
results in the exclusion of certain distribution activities from the 
regulatory relief intended by Congress.
    As amended by section 4130(a) of SAFETEA-LU, the agricultural 
provision reads as follows:

    Transportation of agricultural commodities and farm supplies.--
Regulations prescribed by the Secretary under sections 31136 and

[[Page 40767]]

31502 regarding maximum driving and on-duty time for drivers used by 
motor carriers shall not apply during planting and harvest periods, 
as determined by each State, to drivers transporting agricultural 
commodities or farm supplies for agricultural purposes in a State if 
such transportation is limited to an area within a 100 air mile 
radius from the source of the commodities or the distribution point 
for the farm supplies (119 Stat. 1743).

    In its Notice, the Agency indicated that it has long understood 
that limited farm storage capacity necessitates a ``just in time'' 
delivery system from retail distributors of certain farm supplies to 
farms (or other locations where the farm supply product will be used) 
during the busy planting and harvesting seasons. Longstanding FMCSA 
guidance on its HOS regulations 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. 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 the100 
air-mile radius.

    The Agency believes that the exclusive emphasis of its regulatory 
guidance on deliveries from local retailers to the ultimate farm 
consumer may not reflect today's economic reality as it pertains to the 
transportation of anhydrous ammonia during planting and harvesting 
seasons. Like farms, local retailers 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 and time constraints on the demand for the 
transportation of anhydrous ammonia to support agricultural operations, 
and the likelihood that such constraints will continue for some time, 
FMCSA is proposing a two-year, limited exemption 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. This action would provide 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 exemption would extend the agricultural operations exemption 
from the Federal HOS regulations to 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 driver is employed by a motor carrier 
that 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. 
Therefore, the exemption would allow drivers for motor carriers with a 
satisfactory safety rating or unrated motor carriers to use the HOS 
exemption when 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. This exemption would take effect on the date of 
publication of a final decision.

Safety Determination

    FMCSA is committed to ensuring high standards of motor carrier 
safety. 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 granted earlier this year.
    FMCSA compared safety performance data for agricultural carriers 
currently operating under the statutory HOS exemption provided by the 
NHS Act, as amended, with 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.\1\ 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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    \1\ 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) was 
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

[[Page 40768]]

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 of an 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 the Performance and Registration Information Systems 
Management (PRISM) program that enforces MCS-150 updating.\2\ 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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    \2\ 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 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 during the limited 90-day waiver mentioned above. With 
respect to information from PHMSA, the Agency received information 
about five anhydrous ammonia incidents. Only one of the five involved a 
crash and that crash involved a driver who had been on duty only two 
hours after having two consecutive days off duty. Copies of all five 
incident reports are included in the docket referenced at the beginning 
of this notice.
    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. The Agency requests comments from all interested parties 
that may have information concerning any crashes involving drivers 
operating under the limited 90-day waiver.
    In the absence of any data or information to the contrary, the 
Agency believes 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 Proposal

    In light of the information described above, FMCSA is proposing a 
two-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. A 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 a limited exemption would 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 would be imposed.

Proposed Terms and Conditions of the Exemption

    The FMCSA would provide a two-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 relevant planting and harvesting seasons. 
This limited exemption would extend 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 would allow 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' hours of service, maintenance and inspection, driver 
qualification, commercial driver's license requirements, financial 
responsibility, accidents, hazardous materials, and other safety and

[[Page 40769]]

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 would also 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 would be 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 would 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:
    (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 would be effective upon publication in the Federal 
Register and would be valid for up to two years unless revoked earlier 
by FMCSA. The exemption may be renewed by the Agency; the Agency would 
provide notice and an opportunity for public comment prior to renewing 
the exemption. The exemption would preempt 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 
would, consistent with the statutory requirements of TEA-21, take all 
steps necessary to protect the public interest. Use of the exemption 
would be 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.

Request for Comments

    In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA 
requests public comment on the proposed exemption from the HOS 
requirements of 49 CFR part 395 for drivers and their employing motor 
carriers transporting anhydrous ammonia. The Agency will consider all 
comments received by close of business on August 13, 2010. Comments 
will be available for examination in the docket at the location listed 
under the ADDRESSES section of this notice. The Agency will consider to 
the extent practicable comments received in the public docket after the 
closing date of the comment period.

    Issued on: July 8, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-17138 Filed 7-13-10; 8:45 am]
BILLING CODE 4910-EX-P

