82_FR_60603 82 FR 60360 - Hours of Service of Drivers of Commercial Motor Vehicles; Proposed Regulatory Guidance Concerning the Transportation of Agricultural Commodities

82 FR 60360 - Hours of Service of Drivers of Commercial Motor Vehicles; Proposed Regulatory Guidance Concerning the Transportation of Agricultural Commodities

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration

Federal Register Volume 82, Issue 243 (December 20, 2017)

Page Range60360-60362
FR Document2017-27310

FMCSA announces regulatory guidance to clarify the applicability of the ``Agricultural commodity'' exception to the ``Hours of Service of Drivers'' regulations, and requests public comments. This regulatory guidance is being proposed to ensure consistent understanding and application of the exception by motor carriers and State officials enforcing hours of service rules identical to or compatible with FMCSA's requirements.

Federal Register, Volume 82 Issue 243 (Wednesday, December 20, 2017)
[Federal Register Volume 82, Number 243 (Wednesday, December 20, 2017)]
[Proposed Rules]
[Pages 60360-60362]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-27310]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2017-0360]


Hours of Service of Drivers of Commercial Motor Vehicles; 
Proposed Regulatory Guidance Concerning the Transportation of 
Agricultural Commodities

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

ACTION: Notice of proposed regulatory guidance; request for public 
comment.

-----------------------------------------------------------------------

SUMMARY: FMCSA announces regulatory guidance to clarify the 
applicability of the ``Agricultural commodity'' exception to the 
``Hours of Service of Drivers'' regulations, and requests public 
comments. This regulatory guidance is being proposed to ensure 
consistent understanding and application of the exception by motor 
carriers and State officials enforcing hours of service rules identical 
to or compatible with FMCSA's requirements.

DATES: Comments must be received on or before January 19, 2018. This 
guidance would expire no later than 5 years after it is finalized.

ADDRESSES: You may insert comments identified by Federal Docket 
Management System Number FMCSA-2017-0360 by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and 
Carrier Operations Division, Federal Motor Carrier Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE, Washington, DC 20590, phone (614) 942-6477, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number listed 
above, 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. 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, 
put the docket number, FMCSA-2017-0360, in the keyword box, and click 
``Search.'' When the new screen appears, 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 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 guidance based on your comments.

B. Viewing Comments and Documents

    To view comments, go to http://www.regulations.gov. Insert the 
docket number, FMCSA-2017-0360, in the keyword box, and click 
``Search.'' Next, click the ``Open Docket Folder'' button and choose 
the document to review. If you do not have access to the internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the DOT West Building, 1200 New 
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., 
e.t., Monday through Friday, except Federal holidays.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its regulatory process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.transportation.gov/privacy.

II. Legal Basis

    The National Highway System Designation Act of 1995, Public Law 
104-59, 345, 109 Stat. 568. 613 (Nov. 28, 1995), provided the initial 
exception for drivers transporting agricultural commodities or farm 
supplies for agricultural purposes. This Act limited the exception to a 
100 air-mile radius from the source of the commodities or distribution 
point for the farm supplies

[[Page 60361]]

and during the planting and harvesting seasons as determined by the 
applicable State.
    In enacting the Safe, Accountable, Flexible, Efficient 
Transportation Act: A Legacy for Users (SAFETEA-LU), Congress revised 
this provision, enacted it to be new section 229 of Title II of the 
Motor Carrier Safety Improvement Act of 1999, and defined the terms 
``agricultural commodity'' and ``farm supplies for agricultural 
purposes.'' Public Law 109-59, Sec. Sec.  4115 and 4130, 119 Stat. 
1144, 1726, 1743 (Aug. 10, 2005). These terms are now defined in 49 CFR 
395.2.
    Most recently, the statute was amended by section 32101(d) of the 
Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 
112-141, 126 Stat. 405, 778 (July 6, 2012). This provision revised the 
description of the exception's scope and extended the applicable 
distance from 100 air-miles to 150 air-miles from the source.

III. Background

    The focus of today's guidance is limited to the transportation of 
agricultural commodities, 49 CFR 395.1(k)(1). It does not address 
``farm supplies for agricultural purposes'' under 49 CFR 395.1(k)(2) or 
(3) given that the applicable range under these latter two provisions 
is specifically addressed. While the regulatory provision governing the 
agricultural commodity exception (49 CFR 395.1(k)(1)) closely tracks 
the statutory provisions discussed above, the language is susceptible 
to multiple interpretations, and the Agency acknowledges that various 
stakeholders and enforcement officials in different States have 
expressed inconsistent understandings of the exception from time to 
time.
    This proposed regulatory guidance would clarify the exception with 
regard to: (1) Drivers operating unladen vehicles traveling either to 
pick up an agricultural commodity, as defined in 49 CFR 395.2, or 
returning from a delivery point; and (2) drivers engaged in trips 
beyond 150 air-miles from the source of the agricultural commodity. In 
addition, the Agency seeks public comment on (1) whether grain 
elevators and/or livestock sale barns should be considered a ``source'' 
of agricultural commodities under section 395.1(k)(1); and (2) how the 
exception should apply when agricultural commodities are loaded at 
multiple sources during a trip.
    FMCSA's final rule ``Electronic Logging Devices and Hours of 
Service Supporting Documents'' (80 FR 78292; December 16, 2015), will 
require most drivers who use paper logs to document their hours of 
service to switch to electronic logging devices. That rule did not 
alter the hours of service rules or the agricultural commodity 
exception. However, FMCSA has received questions from regulated motor 
carriers about the agricultural commodity exception and application of 
the hours of service rules due to the practical ramifications of that 
rule, and the approaching December 18, 2017 compliance date. Specific 
scenarios are addressed further below.

IV. Reason for This Notice of Regulatory Guidance

    Today's proposed regulatory guidance would provide clarity to the 
agricultural exception in 49 CFR 395.1(k)(1) and specifically addresses 
two scenarios: (1) Driving an unladen commercial motor vehicle to 
either pick up an agricultural commodity or on a return trip following 
the delivery of an agricultural commodity; and (2) application of the 
agricultural commodity exception to trips involving transportation of 
the commodity more than 150 air-miles from its source. In addition, the 
Agency seeks comment on (1) whether grain elevators and/or livestock 
sale barns should be considered a ``source'' of agricultural 
commodities under section 395.1(k)(1); and (2) scenarios where a trip 
involves the loading of agricultural commodities at multiple sources.
    Unladen vehicles: Interpreted literally, the agricultural commodity 
exception could be read as applicable only during the period during 
which the commodity is being transported, and not extended to movements 
of an unladen vehicle either heading to pick up a load or returning 
after a delivery. However, the Agency does not consider that view as 
consistent with legislative intent of providing round-trip relief to 
farmers, and has therefore informally advised stakeholders that both 
legs of a trip are covered. In today's proposed guidance (Question 34), 
FMCSA seeks to clarify how the agricultural commodity exception applies 
to a driver operating an unladen commercial motor vehicle used in 
transportation either to a source to pick up an agricultural commodity 
or on a return trip following delivery of an agricultural commodity.
    Loads beyond a 150 air-mile radius: The Agency recognizes that some 
motor carrier safety enforcement personnel and other stakeholders have 
interpreted the agricultural commodity exception as inapplicable to any 
portion of a trip if the destination exceeds 150 air-miles from the 
source. Under that reading, the word ``location'' in section 
395.1(k)(1) is interpreted as reflecting only the final destination of 
the load. FMCSA notes that the statutory language, as amended,\1\ and 
the implementing regulation \2\ are ambiguous, however, and considers 
this strict interpretation too narrow. In today's regulatory guidance 
(Question 35), the Agency proposes to clarify that ``location'' means 
the outer limit of the exception distance, i.e., 150 air-miles from the 
source. Thus, the Agency would interpret the exception as available to 
a driver transporting agricultural commodities for a distance up to 150 
air-miles from the source, regardless of the distance between the 
source and final destination or place of delivery. Once a driver 
crosses the 150 air-mile point, however, the driver would be subject to 
the hours of service rules for the remainder of the trip.
---------------------------------------------------------------------------

    \1\ SEE MAP-21, Public Law 112-141, 32101(d), 126 Stat. 778 
(July 6, 2012). . . .
    \2\ SEE 49 CFR 395.1(k)(1). The term ``agricultural commodity'' 
is defined in 49 CFR 395.2.
---------------------------------------------------------------------------

    Meaning of ``sources,'' and multiple sources: Several agricultural 
transporters have requested guidance on the extent to which grain 
elevators and/or livestock sale barns should be considered a ``source'' 
of agricultural commodities under section 395.1(k)(1). While these 
facilities are originating points for many agricultural commodity 
loads, they are not expressly encompassed within the statutory or 
regulatory terminology of the exception. Many of these transporters 
have also asked how the agricultural commodity exception would apply if 
the driver were to pick up partial loads at two or more locations. 
Specifically, they asked whether a pick-up at a subsequent source has 
the effect of extending the 150 air-mile radius, i.e., restarting the 
calculation of the 150 air-mile distance. Previous informal guidance 
has been that the 150 air-mile radius is based on the first source of 
an agricultural commodity on a particular trip, and that additional 
stops to load additional agricultural commodities do not extend the 
150-mile radius. The Agency invites public comment on this 
interpretation, however, and on how additional sources might affect the 
exception under 49 CFR 395.1(k)(1).

V. Regulatory Guidance

    FMCSA proposes Regulatory Guidance, Questions 34 and 35 to 49 CFR 
395.1 as follows:

[[Page 60362]]

PART 395--HOURS OF SERVICE OF DRIVERS


Section 395.1  Scope of the rules in this part

    Question 34: Does the agricultural commodity exception (Sec.  
395.1(k)(1)) apply to drivers while driving unloaded to a source where 
an agricultural commodity will be loaded, and to an unloaded return 
trip after delivering an agricultural commodity under the exception?
    Guidance: Yes, provided that the trip does not involve transporting 
other cargo and the sole purpose of the trip is to complete the 
delivery or pick up of agricultural commodities, as defined in Sec.  
395.2. In that case, driving and on-duty time are not limited, nor do 
other requirements of 49 CFR part 395 apply.
    Question 35: Does the agricultural commodity exception (Sec.  
395.1(k)(1)) apply if the destination for the commodity is beyond the 
150 air-mile radius from the source?
    Guidance: The exception applies to transportation during the 
initial 150 air-miles from the source of the commodity. Once a driver 
operates beyond the 150 air-mile radius of the source, part 395 
applies. Starting at zero from that point, the driver must then begin 
recording his or her duty time, and the limits under the 11-hour, 14-
hour, and the 60-/70-hour rules apply. Once the hours of service rules 
begin to apply on a given trip, they continue to apply for the duration 
of that trip, until the driver crosses back into the area within 150 
air-miles of the original source of the commodities and is returning to 
that source. If the driver is not returning to the original source, the 
HOS rules continue to apply, even if the driver reenters the 150-mile 
radius.

VI. Expiration Date for the Proposed Regulatory Guidance

    In accordance with section 5203(a)(2)(A) and (a)(3) of the Fixing 
America's Surface Transportation (FAST) Act, Public Law 114-94, 129 
Stat. 1312, 1535 (Dec. 4, 2015), the proposed regulatory guidance will 
be posted on FMCSA's website, www.fmcsa.dot.gov, if finalized. It would 
be reviewed by the Agency no later than five years after it is 
finalized. The Agency would consider at that time whether the guidance 
should be withdrawn, reissued for another period up to five years, or 
incorporated into the safety regulations.

VII. Request for Comments

    Refer to the ADDRESSES section above for instructions on submitting 
comments to the public docket concerning this regulatory guidance. The 
FMCSA will consider comments received by the closing date of the 
comment period to determine whether any further clarification of these 
regulatory provisions is necessary. In addition to comments concerning 
the proposed regulatory guidance above, including the issue of 
``sources'' of agricultural commodities, as outlined above, the Agency 
is seeking information on the following:
    1. Are there particular segments of the industry that would take 
advantage of this change more than others?
    2. How does the flexibility provided in this guidance impact a 
carrier's need for an electronic logging device?
    3. How many carriers and drivers are there transporting 
agricultural commodities in various segments (livestock, unprocessed 
food, others) that are impacted by this guidance?

    Issued on: December 13, 2017.
Cathy F. Gautreaux,
 Deputy Administrator.
[FR Doc. 2017-27310 Filed 12-19-17; 8:45 am]
 BILLING CODE 4910-EX-P



                                                 60360             Federal Register / Vol. 82, No. 243 / Wednesday, December 20, 2017 / Proposed Rules

                                                 accordance with this chapter. If the last               SUMMARY:   FMCSA announces regulatory                 number in the body of your document
                                                 training event occurs before FRA’s                      guidance to clarify the applicability of              so that FMCSA can contact you if there
                                                 approval of the employer’s training                     the ‘‘Agricultural commodity’’                        are questions regarding your
                                                 program, the employer shall provide                     exception to the ‘‘Hours of Service of                submission.
                                                 refresher training either within 3                      Drivers’’ regulations, and requests                     To submit your comment online, go to
                                                 calendar years from that prior training                 public comments. This regulatory                      http://www.regulations.gov, put the
                                                 event or no later than December 31,                     guidance is being proposed to ensure                  docket number, FMCSA–2017–0360, in
                                                 2024. Each employer shall ensure that,                  consistent understanding and                          the keyword box, and click ‘‘Search.’’
                                                 as part of each employee’s refresher                    application of the exception by motor                 When the new screen appears, click on
                                                 training, the employee is trained and                   carriers and State officials enforcing                the ‘‘Comment Now!’’ button and type
                                                 qualified on the application of any                     hours of service rules identical to or                your comment into the text box on the
                                                 Federal railroad safety laws, regulations,              compatible with FMCSA’s                               following screen. Choose whether you
                                                 and orders the person is required to                    requirements.                                         are submitting your comment as an
                                                 comply with, as well as any relevant                                                                          individual or on behalf of a third party
                                                                                                         DATES:  Comments must be received on
                                                 railroad rules and procedures                                                                                 and then submit.
                                                                                                         or before January 19, 2018. This
                                                 promulgated to implement those                                                                                  If you submit your comments by mail
                                                                                                         guidance would expire no later than 5
                                                 Federal railroad safety laws, regulations,                                                                    or hand delivery, submit them in an
                                                                                                         years after it is finalized.
                                                 and orders.                                                                                                   unbound format, no larger than 81⁄2 by
                                                    (2) Beginning May 1, 2023, each                      ADDRESSES: You may insert comments                    11 inches, suitable for copying and
                                                 employer with less than 400,000 total                   identified by Federal Docket                          electronic filing. If you submit
                                                 employee work hours annually shall                      Management System Number FMCSA–                       comments by mail and would like to
                                                 deliver refresher training at an interval               2017–0360 by any of the following                     know that they reached the facility,
                                                 not to exceed 3 calendar years from the                 methods:                                              please enclose a stamped, self-addressed
                                                 date of an employee’s last training                        • Federal eRulemaking Portal: http://              postcard or envelope.
                                                 event, except where refresher training is               www.regulations.gov. Follow the online                  FMCSA will consider all comments
                                                 specifically required more frequently in                instructions for submitting comments.                 and material received during the
                                                 accordance with this chapter. If the last                  • Mail: Docket Management Facility,                comment period and may change this
                                                 training event occurs before FRA’s                      U.S. Department of Transportation, 1200               guidance based on your comments.
                                                 approval of the employer’s training                     New Jersey Avenue SE, West Building,
                                                 program, the employer shall provide                     Ground Floor, Room W12–140,                           B. Viewing Comments and Documents
                                                 refresher training either within 3                      Washington, DC 20590–0001.                               To view comments, go to http://
                                                 calendar years from that prior training                    • Hand Delivery or Courier: West                   www.regulations.gov. Insert the docket
                                                 event or no later than December 31,                     Building, Ground Floor, Room W12–                     number, FMCSA–2017–0360, in the
                                                 2025. Each employer shall ensure that,                  140, 1200 New Jersey Avenue SE,                       keyword box, and click ‘‘Search.’’ Next,
                                                 as part of each employee’s refresher                    Washington, DC, between 9 a.m. and 5                  click the ‘‘Open Docket Folder’’ button
                                                 training, the employee is trained and                   p.m., Monday through Friday, except                   and choose the document to review. If
                                                 qualified on the application of any                     Federal holidays.                                     you do not have access to the internet,
                                                 Federal railroad safety laws, regulations,                 • Fax: (202) 493–2251.                             you may view the docket online by
                                                 and orders the person is required to                       To avoid duplication, please use only              visiting the Docket Management Facility
                                                 comply with, as well as any relevant                    one of these four methods. See the                    in Room W12–140 on the ground floor
                                                 railroad rules and procedures                           ‘‘Public Participation and Request for                of the DOT West Building, 1200 New
                                                 promulgated to implement those                          Comments’’ portion of the                             Jersey Avenue SE, Washington, DC
                                                 Federal railroad safety laws, regulations,              SUPPLEMENTARY INFORMATION section for                 20590, between 9 a.m. and 5 p.m., e.t.,
                                                 and orders.                                             instructions on submitting comments.                  Monday through Friday, except Federal
                                                 Juan D. Reyes III,                                      FOR FURTHER INFORMATION CONTACT: Mr.                  holidays.
                                                 Chief Counsel.
                                                                                                         Thomas Yager, Chief, Driver and Carrier               C. Privacy Act
                                                                                                         Operations Division, Federal Motor
                                                 [FR Doc. 2017–27272 Filed 12–19–17; 8:45 am]                                                                    In accordance with 5 U.S.C. 553(c),
                                                                                                         Carrier Safety Administration, U.S.
                                                 BILLING CODE 4910–06–P
                                                                                                         Department of Transportation, 1200                    DOT solicits comments from the public
                                                                                                         New Jersey Avenue SE, Washington, DC                  to better inform its regulatory process.
                                                                                                         20590, phone (614) 942–6477, email                    DOT posts these comments, without
                                                 DEPARTMENT OF TRANSPORTATION                                                                                  edit, including any personal information
                                                                                                         MCPSD@dot.gov.
                                                                                                         SUPPLEMENTARY INFORMATION:
                                                                                                                                                               the commenter provides, to
                                                 Federal Motor Carrier Safety
                                                                                                                                                               www.regulations.gov, as described in
                                                 Administration
                                                                                                         I. Public Participation and Request for               the system of records notice (DOT/ALL–
                                                                                                         Comments                                              14 FDMS), which can be reviewed at
                                                 49 CFR Part 395
                                                                                                         A. Submitting Comments                                www.transportation.gov/privacy.
                                                 [Docket No. FMCSA–2017–0360]
                                                                                                           If you submit a comment, please                     II. Legal Basis
                                                 Hours of Service of Drivers of                          include the docket number listed above,                  The National Highway System
                                                 Commercial Motor Vehicles; Proposed                     indicate the specific section of this                 Designation Act of 1995, Public Law
ethrower on DSK3G9T082PROD with PROPOSALS




                                                 Regulatory Guidance Concerning the                      document to which your comment                        104–59, 345, 109 Stat. 568. 613 (Nov.
                                                 Transportation of Agricultural                          applies, and provide a reason for each                28, 1995), provided the initial exception
                                                 Commodities                                             suggestion or recommendation. You                     for drivers transporting agricultural
                                                 AGENCY: Federal Motor Carrier Safety                    may submit your comments and                          commodities or farm supplies for
                                                 Administration (FMCSA), DOT.                            material online or by fax, mail, or hand              agricultural purposes. This Act limited
                                                                                                         delivery. FMCSA recommends that you                   the exception to a 100 air-mile radius
                                                 ACTION: Notice of proposed regulatory
                                                                                                         include your name and a mailing                       from the source of the commodities or
                                                 guidance; request for public comment.
                                                                                                         address, an email address, or a phone                 distribution point for the farm supplies


                                            VerDate Sep<11>2014   22:03 Dec 19, 2017   Jkt 244001   PO 00000   Frm 00027   Fmt 4702   Sfmt 4702   E:\FR\FM\20DEP1.SGM   20DEP1


                                                                   Federal Register / Vol. 82, No. 243 / Wednesday, December 20, 2017 / Proposed Rules                                                    60361

                                                 and during the planting and harvesting                  drivers who use paper logs to document                destination of the load. FMCSA notes
                                                 seasons as determined by the applicable                 their hours of service to switch to                   that the statutory language, as
                                                 State.                                                  electronic logging devices. That rule did             amended,1 and the implementing
                                                    In enacting the Safe, Accountable,                   not alter the hours of service rules or the           regulation 2 are ambiguous, however,
                                                 Flexible, Efficient Transportation Act: A               agricultural commodity exception.                     and considers this strict interpretation
                                                 Legacy for Users (SAFETEA–LU),                          However, FMCSA has received                           too narrow. In today’s regulatory
                                                 Congress revised this provision, enacted                questions from regulated motor carriers               guidance (Question 35), the Agency
                                                 it to be new section 229 of Title II of the             about the agricultural commodity                      proposes to clarify that ‘‘location’’
                                                 Motor Carrier Safety Improvement Act                    exception and application of the hours                means the outer limit of the exception
                                                 of 1999, and defined the terms                          of service rules due to the practical
                                                                                                                                                               distance, i.e., 150 air-miles from the
                                                 ‘‘agricultural commodity’’ and ‘‘farm                   ramifications of that rule, and the
                                                 supplies for agricultural purposes.’’                                                                         source. Thus, the Agency would
                                                                                                         approaching December 18, 2017
                                                 Public Law 109–59, §§ 4115 and 4130,                    compliance date. Specific scenarios are               interpret the exception as available to a
                                                 119 Stat. 1144, 1726, 1743 (Aug. 10,                    addressed further below.                              driver transporting agricultural
                                                 2005). These terms are now defined in                                                                         commodities for a distance up to 150
                                                 49 CFR 395.2.                                           IV. Reason for This Notice of                         air-miles from the source, regardless of
                                                    Most recently, the statute was                       Regulatory Guidance                                   the distance between the source and
                                                 amended by section 32101(d) of the                         Today’s proposed regulatory guidance               final destination or place of delivery.
                                                 Moving Ahead for Progress in the 21st                   would provide clarity to the agricultural             Once a driver crosses the 150 air-mile
                                                 Century Act (MAP–21), Public Law                        exception in 49 CFR 395.1(k)(1) and                   point, however, the driver would be
                                                 112–141, 126 Stat. 405, 778 (July 6,                    specifically addresses two scenarios: (1)             subject to the hours of service rules for
                                                 2012). This provision revised the                       Driving an unladen commercial motor                   the remainder of the trip.
                                                 description of the exception’s scope and                vehicle to either pick up an agricultural
                                                                                                                                                                  Meaning of ‘‘sources,’’ and multiple
                                                 extended the applicable distance from                   commodity or on a return trip following
                                                                                                         the delivery of an agricultural                       sources: Several agricultural
                                                 100 air-miles to 150 air-miles from the
                                                 source.                                                 commodity; and (2) application of the                 transporters have requested guidance on
                                                                                                         agricultural commodity exception to                   the extent to which grain elevators and/
                                                 III. Background                                                                                               or livestock sale barns should be
                                                                                                         trips involving transportation of the
                                                    The focus of today’s guidance is                     commodity more than 150 air-miles                     considered a ‘‘source’’ of agricultural
                                                 limited to the transportation of                        from its source. In addition, the Agency              commodities under section 395.1(k)(1).
                                                 agricultural commodities, 49 CFR                        seeks comment on (1) whether grain                    While these facilities are originating
                                                 395.1(k)(1). It does not address ‘‘farm                 elevators and/or livestock sale barns                 points for many agricultural commodity
                                                 supplies for agricultural purposes’’                    should be considered a ‘‘source’’ of                  loads, they are not expressly
                                                 under 49 CFR 395.1(k)(2) or (3) given                   agricultural commodities under section                encompassed within the statutory or
                                                 that the applicable range under these                   395.1(k)(1); and (2) scenarios where a                regulatory terminology of the exception.
                                                 latter two provisions is specifically                   trip involves the loading of agricultural             Many of these transporters have also
                                                 addressed. While the regulatory                         commodities at multiple sources.                      asked how the agricultural commodity
                                                 provision governing the agricultural                       Unladen vehicles: Interpreted                      exception would apply if the driver
                                                 commodity exception (49 CFR                             literally, the agricultural commodity                 were to pick up partial loads at two or
                                                 395.1(k)(1)) closely tracks the statutory               exception could be read as applicable                 more locations. Specifically, they asked
                                                 provisions discussed above, the                         only during the period during which the
                                                                                                                                                               whether a pick-up at a subsequent
                                                 language is susceptible to multiple                     commodity is being transported, and not
                                                                                                                                                               source has the effect of extending the
                                                 interpretations, and the Agency                         extended to movements of an unladen
                                                                                                         vehicle either heading to pick up a load              150 air-mile radius, i.e., restarting the
                                                 acknowledges that various stakeholders
                                                 and enforcement officials in different                  or returning after a delivery. However,               calculation of the 150 air-mile distance.
                                                 States have expressed inconsistent                      the Agency does not consider that view                Previous informal guidance has been
                                                 understandings of the exception from                    as consistent with legislative intent of              that the 150 air-mile radius is based on
                                                 time to time.                                           providing round-trip relief to farmers,               the first source of an agricultural
                                                    This proposed regulatory guidance                    and has therefore informally advised                  commodity on a particular trip, and that
                                                 would clarify the exception with regard                 stakeholders that both legs of a trip are             additional stops to load additional
                                                 to: (1) Drivers operating unladen                       covered. In today’s proposed guidance                 agricultural commodities do not extend
                                                 vehicles traveling either to pick up an                 (Question 34), FMCSA seeks to clarify                 the 150-mile radius. The Agency invites
                                                 agricultural commodity, as defined in                   how the agricultural commodity                        public comment on this interpretation,
                                                 49 CFR 395.2, or returning from a                       exception applies to a driver operating               however, and on how additional sources
                                                 delivery point; and (2) drivers engaged                 an unladen commercial motor vehicle                   might affect the exception under 49 CFR
                                                 in trips beyond 150 air-miles from the                  used in transportation either to a source             395.1(k)(1).
                                                 source of the agricultural commodity. In                to pick up an agricultural commodity or
                                                 addition, the Agency seeks public                       on a return trip following delivery of an             V. Regulatory Guidance
                                                 comment on (1) whether grain elevators                  agricultural commodity.                                 FMCSA proposes Regulatory
                                                 and/or livestock sale barns should be                      Loads beyond a 150 air-mile radius:
                                                                                                                                                               Guidance, Questions 34 and 35 to 49
                                                 considered a ‘‘source’’ of agricultural                 The Agency recognizes that some motor
                                                                                                                                                               CFR 395.1 as follows:
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                                                 commodities under section 395.1(k)(1);                  carrier safety enforcement personnel
                                                 and (2) how the exception should apply                  and other stakeholders have interpreted
                                                 when agricultural commodities are                       the agricultural commodity exception as
                                                 loaded at multiple sources during a trip.               inapplicable to any portion of a trip if
                                                    FMCSA’s final rule ‘‘Electronic                      the destination exceeds 150 air-miles                   1 SEE MAP–21, Public Law 112–141, 32101(d),

                                                 Logging Devices and Hours of Service                    from the source. Under that reading, the              126 Stat. 778 (July 6, 2012). . . .
                                                 Supporting Documents’’ (80 FR 78292;                    word ‘‘location’’ in section 395.1(k)(1) is             2 SEE 49 CFR 395.1(k)(1). The term ‘‘agricultural

                                                 December 16, 2015), will require most                   interpreted as reflecting only the final              commodity’’ is defined in 49 CFR 395.2.



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                                                 60362             Federal Register / Vol. 82, No. 243 / Wednesday, December 20, 2017 / Proposed Rules

                                                 PART 395—HOURS OF SERVICE OF                            concerning this regulatory guidance.                  issue 12-month findings on the
                                                 DRIVERS                                                 The FMCSA will consider comments                      petitions, which will address whether or
                                                                                                         received by the closing date of the                   not the petitioned action is warranted,
                                                 Section 395.1     Scope of the rules in this            comment period to determine whether                   in accordance with the Act. In addition,
                                                 part
                                                                                                         any further clarification of these                    we announce a correction to
                                                    Question 34: Does the agricultural                   regulatory provisions is necessary. In                information contained in the 90-day
                                                 commodity exception (§ 395.1(k)(1))                     addition to comments concerning the                   petition finding for the leopard
                                                 apply to drivers while driving unloaded                 proposed regulatory guidance above,                   (Panthera pardus), which clarifies the
                                                 to a source where an agricultural                       including the issue of ‘‘sources’’ of                 range and entity we are evaluating in
                                                 commodity will be loaded, and to an                     agricultural commodities, as outlined                 our status review of the species.
                                                 unloaded return trip after delivering an                above, the Agency is seeking
                                                 agricultural commodity under the                                                                                   These findings were made on
                                                                                                                                                               DATES:
                                                                                                         information on the following:                         December 20, 2017.
                                                 exception?                                                 1. Are there particular segments of the
                                                    Guidance: Yes, provided that the trip                industry that would take advantage of                 ADDRESSES:    Summaries of the bases for
                                                 does not involve transporting other                     this change more than others?                         the petition findings contained in this
                                                 cargo and the sole purpose of the trip is                  2. How does the flexibility provided               document are available on http://
                                                 to complete the delivery or pick up of                  in this guidance impact a carrier’s need              www.regulations.gov under the
                                                 agricultural commodities, as defined in                 for an electronic logging device?                     appropriate docket number (see table
                                                 § 395.2. In that case, driving and on-                     3. How many carriers and drivers are               under SUPPLEMENTARY INFORMATION).
                                                 duty time are not limited, nor do other                 there transporting agricultural                       Supporting information in preparing
                                                 requirements of 49 CFR part 395 apply.                  commodities in various segments                       these findings is available for public
                                                    Question 35: Does the agricultural                   (livestock, unprocessed food, others)                 inspection, by appointment, during
                                                 commodity exception (§ 395.1(k)(1))                     that are impacted by this guidance?                   normal business hours by contacting the
                                                 apply if the destination for the                                                                              appropriate person, as specified in FOR
                                                 commodity is beyond the 150 air-mile                      Issued on: December 13, 2017.
                                                                                                         Cathy F. Gautreaux,                                   FURTHER INFORMATION CONTACT. If you
                                                 radius from the source?                                                                                       have new information concerning the
                                                    Guidance: The exception applies to                   Deputy Administrator.
                                                                                                                                                               status of, or threats to, the species for
                                                 transportation during the initial 150 air-              [FR Doc. 2017–27310 Filed 12–19–17; 8:45 am]
                                                                                                                                                               which we made these petition findings,
                                                 miles from the source of the commodity.                 BILLING CODE 4910–EX–P
                                                                                                                                                               or their habitats, please submit that
                                                 Once a driver operates beyond the 150
                                                                                                                                                               information by one of the following
                                                 air-mile radius of the source, part 395
                                                                                                                                                               methods:
                                                 applies. Starting at zero from that point,              DEPARTMENT OF THE INTERIOR
                                                 the driver must then begin recording his                                                                         (1) Electronically: Go to the Federal
                                                 or her duty time, and the limits under                  Fish and Wildlife Service                             eRulemaking Portal: http://
                                                 the 11-hour, 14-hour, and the 60-/70-                                                                         www.regulations.gov. In the Search box,
                                                 hour rules apply. Once the hours of                     50 CFR Part 17                                        enter the appropriate docket number
                                                 service rules begin to apply on a given                                                                       (see table under SUPPLEMENTARY
                                                                                                         [4500030115]                                          INFORMATION). Then, click on the Search
                                                 trip, they continue to apply for the
                                                 duration of that trip, until the driver                                                                       button. After finding the correct
                                                                                                         Endangered and Threatened Wildlife
                                                 crosses back into the area within 150                                                                         document, you may submit information
                                                                                                         and Plants; 90-Day Findings for Five
                                                 air-miles of the original source of the                                                                       by clicking on ‘‘Comment Now!’’ If your
                                                                                                         Species
                                                 commodities and is returning to that                                                                          information will fit in the provided
                                                 source. If the driver is not returning to               AGENCY:   Fish and Wildlife Service,                  comment box, please use this feature of
                                                 the original source, the HOS rules                      Interior.                                             http://www.regulations.gov, as it is most
                                                 continue to apply, even if the driver                   ACTION: Notification of petition findings             compatible with our information review
                                                 reenters the 150-mile radius.                           and initiation of status reviews.                     procedures. If you attach your
                                                                                                                                                               information as a separate document, our
                                                 VI. Expiration Date for the Proposed                    SUMMARY:   We, the U.S. Fish and                      preferred file format is Microsoft Word.
                                                 Regulatory Guidance                                     Wildlife Service (Service), announce 90-              If you attach multiple comments (such
                                                    In accordance with section                           day findings on several petitions to list             as form letters), our preferred format is
                                                 5203(a)(2)(A) and (a)(3) of the Fixing                  or reclassify wildlife or plants under the            a spreadsheet in Microsoft Excel.
                                                 America’s Surface Transportation                        Endangered Species Act of 1973, as                       (2) By hard copy: Submit by U.S. mail
                                                 (FAST) Act, Public Law 114–94, 129                      amended (Act). Based on our review, we                or hand-delivery to: Public Comments
                                                 Stat. 1312, 1535 (Dec. 4, 2015), the                    find that the petitions present                       Processing, Attn: [Insert appropriate
                                                 proposed regulatory guidance will be                    substantial scientific or commercial                  docket number; see table under
                                                 posted on FMCSA’s website,                              information indicating that the                       SUPPLEMENTARY INFORMATION], U.S. Fish
                                                 www.fmcsa.dot.gov, if finalized. It                     petitioned actions may be warranted                   and Wildlife Service, MS: BPHC, 5275
                                                 would be reviewed by the Agency no                      with respect to the species mentioned in              Leesburg Pike; Falls Church, VA 22041–
                                                 later than five years after it is finalized.            this notification. Therefore, with the                3803.
                                                 The Agency would consider at that time                  publication of this document, we
                                                                                                         announce that we plan to initiate a                      We request that you send information
                                                 whether the guidance should be                                                                                only by the methods described above.
ethrower on DSK3G9T082PROD with PROPOSALS




                                                 withdrawn, reissued for another period                  review of the status of each of these
                                                                                                         species to determine if the petitioned                We will post all information we receive
                                                 up to five years, or incorporated into the                                                                    on http://www.regulations.gov. This
                                                 safety regulations.                                     actions are warranted. To ensure that
                                                                                                         these status reviews are comprehensive,               generally means that we will post any
                                                 VII. Request for Comments                               we are requesting scientific and                      personal information you provide us
                                                   Refer to the ADDRESSES section above                  commercial data and other information                 (see Request for Information for Status
                                                 for instructions on submitting                          regarding these species. After                        Reviews, below, for more information).
                                                 comments to the public docket                           completing the status reviews, we will                FOR FURTHER INFORMATION CONTACT:



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Document Created: 2018-10-25 10:58:13
Document Modified: 2018-10-25 10:58:13
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotice of proposed regulatory guidance; request for public comment.
DatesComments must be received on or before January 19, 2018. This guidance would expire no later than 5 years after it is finalized.
ContactMr. Thomas Yager, Chief, Driver and Carrier Operations Division, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, phone (614) 942-6477, email [email protected]
FR Citation82 FR 60360 

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