83_FR_12742 83 FR 12685 - Hours of Service; Electronic Logging Devices; Limited 90-Day Waiver for the Transportation of Agricultural Commodities

83 FR 12685 - Hours of Service; Electronic Logging Devices; Limited 90-Day Waiver for the Transportation of Agricultural Commodities

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration

Federal Register Volume 83, Issue 57 (March 23, 2018)

Page Range12685-12687
FR Document2018-05865

FMCSA grants a limited 90-day waiver from the Federal hours- of-service (HOS) regulations pertaining to electronic logging devices (ELDs) for the transportation of agricultural commodities as defined in the Federal Motor Carrier Safety Regulations (FMCSRs). The Agency has determined that the waiver is in the public interest and will 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. The waiver provides the Agency additional time to complete its analysis of the public responses to its December 20, 2017, notice of proposed regulatory guidance to clarify the applicability of the ``Agricultural commodity'' exception to the hours- of-service regulations and issue final guidance which in turn, would have an impact on which drivers transporting agricultural commodities are required to use ELDs, and the public responses to its October 31, 2017, document announcing receipt of the NPPC's application for an exemption from the ELD requirements and to issue a decision whether to grant NPPC's request for longer-term relief from the ELD rule. The Agency has determined through its preliminary analysis of the public comments submitted to the public dockets that the issues raised by transporters of agricultural commodities are more complex than those raised by other segments of the industry seeking relief from the ELD requirements and that it is appropriate to take additional time to bring these matters to closure.

Federal Register, Volume 83 Issue 57 (Friday, March 23, 2018)
[Federal Register Volume 83, Number 57 (Friday, March 23, 2018)]
[Rules and Regulations]
[Pages 12685-12687]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-05865]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395


Hours of Service; Electronic Logging Devices; Limited 90-Day 
Waiver for the Transportation of Agricultural Commodities

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

ACTION: Notification; grant of waiver.

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SUMMARY: FMCSA grants a limited 90-day waiver from the Federal hours-
of-service (HOS) regulations pertaining to electronic logging devices 
(ELDs) for the transportation of agricultural commodities as defined in 
the Federal Motor Carrier Safety Regulations (FMCSRs). The Agency has 
determined that the waiver is in the public interest and will 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. The waiver provides the Agency additional time 
to complete its analysis of the public responses to its December 20, 
2017, notice of proposed regulatory guidance to clarify the 
applicability of the ``Agricultural commodity'' exception to the hours-
of-service regulations and issue final guidance which in turn, would 
have an impact on which drivers transporting agricultural commodities 
are required to use ELDs, and the public responses to its October 31, 
2017, document announcing receipt of the NPPC's application for an 
exemption from the ELD requirements and to issue a decision whether to 
grant NPPC's request for longer-term relief from the ELD rule. The 
Agency has determined through its preliminary analysis of the public 
comments submitted to the public dockets that the issues raised by 
transporters of agricultural commodities are more complex than those 
raised by other segments of the industry seeking relief from the ELD 
requirements and that it is appropriate to take additional time to 
bring these matters to closure.

DATES: This waiver is applicable beginning March 18, 2018, and expires 
on June 18, 2018.

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.
    Email: MCPSD@dot.gov. Phone: (614) 942-6477.

SUPPLEMENTARY INFORMATION:

Legal Basis

    The Transportation Equity Act for the 21st Century (TEA-21) (Pub. 
L. 105-178, 112 Stat. 107, June 9, 1998) provides the Secretary of 
Transportation (the Secretary) the authority to grant waivers from any 
of the 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(e), 31315(a)). The Secretary must make a determination 
that the waiver is in the public interest, and that it 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 waiver. 
Individual waivers may be granted only

[[Page 12686]]

for a specific unique, non-emergency event, for a period up to three 
months. TEA-21 authorizes the Secretary to grant waivers without 
requesting public comment, and without providing public notice.
    The Administrator of FMCSA has been delegated authority under 49 
CFR 1.87(e) to carry out the functions vested in the Secretary by 49 
U.S.C. chapter 311, subchapters I and III, relating to commercial motor 
vehicle programs and safety regulation.

Background

    The FMCSA received an application for an exemption and waiver from 
the NPPC on behalf of eight organizations that represent transporters 
of livestock and other agricultural commodities. Notice of the request 
for exemption from the requirement that a motor carrier require each of 
its drivers to use an electronic logging device (ELD) no later than 
December 18, 2017, to record the driver's hours-of-service (HOS), was 
published in the Federal Register on October 31, 2017 (82 FR 50358). 
Comments to that document were due by November 30, 2017 
(www.regulations.gov, Docket FMCSA-2017-0297). The Agency received 997 
responses to the document announcing receipt of the NPPC exemption 
application.
    FMCSA also received from the Agricultural Retailers Association 
(ARA) an exemption, waiver, and petition document dated October 25, 
2017, requesting that transporters of agricultural commodities and farm 
supplies for agricultural purposes not be required to use ELDs during 
an exemption period. Notice of that request was published in the 
Federal Register on December 28, 2017 (82 FR 61531). Comments to that 
document were due by January 29, 2018 (www.regulations.gov, Docket 
FMCSA-2017-0336). The Agency received 115 responses to the document 
announcing receipt of the ARA exemption application.
    In addition to NPPC's and ARA's applications, FMCSA received 
numerous public comments in response to the Agency's December 20, 2017 
(82 FR 60360), notice of proposed regulatory guidance concerning the 
applicability of the HOS requirements to drivers transporting 
agricultural commodities. Comments were due by January 19, 2018, but 
the comment period was subsequently extended to February 20, 2018, in 
response to a request by the American Trucking Associations. The Agency 
received 565 responses to that document.

Safety Determination

    Although FMCSA does not have an estimate of the number of carriers 
and drivers that would be covered by this waiver, the Agency believes 
the population represents a relatively small percentage of the carriers 
and drivers subject to its oversight and, more specifically, of those 
subject to the ELD requirements. This belief is based primarily on an 
analysis the Agency conducted in 2013 when it evaluated a request for a 
waiver from the 30-minute rest break requirement for the transportation 
of livestock (July 11, 2013, 78 FR 41716).
    FMCSA reviewed its Motor Carrier Management Information System 
(MCMIS) to determine this information at that time. MCMIS includes the 
information reported to the Agency by carriers submitting the Motor 
Carrier Identification Report (FMCSA Form MCS-150), required by 49 CFR 
390.19. As of July 3, 2013, MCMIS listed 64,892 motor carriers that 
identified livestock as a type (though not necessarily the only type) 
of cargo they transported. These carriers operated 187,606 vehicles and 
employed 242,676 drivers. And 126,471 of those drivers operated within 
a 100 air-mile radius of their work-reporting location--a fact that is 
important because the existing statutory exemptions provide relief from 
the HOS requirements for these drivers. Therefore, the Agency concluded 
at that time, the 2013 livestock waiver would not have been applicable 
to them, leaving fewer than 116,205 drivers likely to utilize this 
relief from the 30-minute rest break provision.
    The Agency explained in its document granting the waiver that 
section 345 of the National Highway System Designation Act of 1995 (the 
NHS Act) (Pub. L. 104-69, 109 Stat. 613), enacted on November 28, 1995, 
implemented by 49 CFR 395.1(k), provided relief from the HOS 
requirements for drivers transporting agricultural commodities or farm 
supplies for agricultural purposes in a State if ``the 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 and is 
during the planting and harvesting seasons within such State, as 
determined by the State.''
    Section 32101(d) of the Moving Ahead for Progress in the 21st 
Century Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405), enacted on July 
6, 2012, expanded that 100 air-mile radius provided by the NHS Act to 
150 air miles; FMCSA implemented the provision with a final rule 
published on March 14, 2013 (78 FR 16189).
    In addition, section 32934 of MAP-21 provides statutory exemptions 
from most of the FMCSRs, including those pertaining to HOS, the 
commercial driver's license and driver qualification requirements, for 
drivers of ``covered farm vehicles'' (CFVs), a term defined in detail 
by MAP-21. Among other things, CFV drivers must be owners or operators 
of farms or ranches, or their employees or family members; for-hire 
motor carriers are not eligible for the exemptions provided by section 
32934. These exemptions are explained in the March 14, 2013, final rule 
mentioned above.
    While the 2013 analysis was targeted at estimating the population 
of carriers and drivers that would be covered by a livestock waiver 
from the 30-minute rest break requirement, the Agency believes a 
similar analysis looking at agricultural commodities in general would 
also show that the population likely to need relief from the ELD 
requirement during the 90-day waiver remains a small fraction of the 
motor carrier and driver populations subject to the ELD rule. Because 
of the urgency with which FMCSA must issue decisions on the matters 
discussed above, the Agency was unable to complete an up-to-date 
analysis of its MCMIS data before the March 18, 2018, expiration of the 
2017 waiver for the transportation of agricultural commodities. 
However, the Agency will complete that analysis of the MCMIS data 
within 30 days and place a copy in the docket referenced at the 
beginning of this notification.
    In addition to the 2013 data analysis, the Agency considered 
information reviewed in reaching a decision to grant a limited 90-day 
waiver from the HOS requirements for the distribution of an 
agricultural supply, anhydrous ammonia. The analysis was discussed in 
depth in an October 6, 2010, Federal Register document (75 FR 61626), 
granting the waiver, and in the Agency's 2017 document granting a 
limited 90-day waiver from the ELD requirements for motor carriers 
transporting agricultural commodities. The Agency continues to believe 
the study results are relevant to the discussion of temporary 
regulatory relief from the ELD requirements for the transportation of 
agricultural commodities.
    Although this study was conducted in 2010 and relied upon data from 
2005 through 2008, FMCSA has no reason to believe that the conclusions 
would be different if updated using more recent data. Although the 2010 
studies did not focus on benefits achieved by use of ELDS, given the 
limited population of

[[Page 12687]]

motor carriers affected by the waiver and the brief period of time a 
waiver is in effect, FMCSA believes that the level of safety maintained 
by transporters of agricultural commodities will be equivalent to the 
safety of operations that would be obtained absent the granting of a 
waiver.

FMCSA Determination

    Considering the above studies, the ongoing review of the public 
comments submitted in response to the proposed regulatory guidance on 
the agricultural commodities exception to the HOS rules, and the 
pending exemption requests from NPPC and ARA, FMCSA has determined that 
it is in the public interest to provide a limited waiver from the use 
of ELDs for interstate motor carriers engaged in the transportation of 
agricultural commodities as defined in 49 CFR 395.2. The Agency 
believes this matter requires a decision based on the best available 
data, albeit dated, rather than delaying a decision until a new study 
can be conducted. This waiver will allow FMCSA time to evaluate the HOS 
exception applicable to the transport of agricultural commodities and 
to review the concerns unique to the agricultural industry. FMCSA 
grants the waiver to all motor carriers transporting agricultural 
commodities.

Terms and Conditions of the Waiver

    (1) Duration of the waiver. This waiver is applicable March 18, 
2018, through June 18, 2018.
    (2) Motor carriers transporting agricultural commodities under the 
provisions of 49 CFR 395.1(k)(1), are exempt from the ELD requirements 
in 49 CFR 395.8(a) during the period of this waiver, regardless of the 
distance traveled.
    (3) Carriers operating under this waiver must comply with all other 
applicable requirements of the Federal Motor Carrier Safety Regulations 
(49 CFR parts 390 through 399), including the preparation of records of 
duty status (RODS) for operations which are currently considered to be 
subject to the HOS rules and the record retention requirements 
associated with those RODS and supporting documents.
    (4) Motor carriers operating under this waiver must have a 
``satisfactory'' safety rating from FMCSA or be unrated; motor carriers 
with ``conditional'' or ``unsatisfactory'' safety ratings are 
prohibited from taking advantage of the waiver.
    (5) Drivers operating under this waiver must carry a copy of this 
Federal Register notification and present it to motor carrier safety 
enforcement officials upon request.
    (6) Crash Notification to FMCSA
    Carriers operating under this waiver must notify FMCSA within 5 
business days of any accident (as defined in 49 CFR 390.5), involving 
any of the motor carrier's drivers operating under the terms of this 
waiver. The notification must include the following information:
    (a) Identity of Waiver: ``AG''
    (b) Date of the accident,
    (c) City or town, and State, in which the accident occurred, or 
closest to the accident scene,
    (d) Driver's name and license number,
    (e) Co-driver's name and license number (if applicable),
    (f) Vehicle number and State license number,
    (g) Number of individuals suffering physical injury,
    (h) Number of fatalities,
    (i) The police-reported cause of the accident,
    (j) Whether the driver was cited for violation of any traffic laws, 
motor carrier safety regulations, and
    (k) The total driving time and total on-duty time period prior to 
the accident.
    Accident notifications must be emailed to MCPSD@dot.gov.

Safety Considerations

    Considering the limited period of this waiver and that it does not 
alter any of the HOS regulations other than the method of recording 
HOS, and the Agency's previous review of data concerning the safety 
performance of motor carriers engaged in the transportation of 
agricultural commodities, the Agency has determined that the waiver 
from the ELD requirements for 90 days is likely achieve a level of 
safety equivalent to, or greater than, the level that would be achieved 
by the current regulation.
    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 safety problems be discovered, however, 
FMCSA will take all steps necessary to protect the public interest. Use 
of this waiver is voluntary, and FMCSA will immediately revoke the 
waiver for any interstate driver or motor carrier for failure to comply 
with the terms and conditions of the waiver.

Preemption of State Requirements

    Consistent with 49 U.S.C. 31315(d), this waiver preempts 
inconsistent State or local requirements applicable to interstate 
commerce.

    Issued on: March 16, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-05865 Filed 3-22-18; 8:45 am]
BILLING CODE 4910-EX-P



                                                                  Federal Register / Vol. 83, No. 57 / Friday, March 23, 2018 / Rules and Regulations                                          12685

                                           including specific milestones for providing                   (xii) A narrative describing the following:        commodities as defined in the Federal
                                           each element of the identified assistance;                    (A) The success assistance provided under          Motor Carrier Safety Regulations
                                             (3) A description of the quantitative and                I–106(d) has had in addressing the                    (FMCSRs). The Agency has determined
                                           qualitative benefits to DoD from the                       developmental needs of the protégé firm.
                                                                                                         (B) The impact on DoD contracts.
                                                                                                                                                            that the waiver is in the public interest
                                           agreement, if applicable; and
                                             (4) Goals for additional awards for which                   (C) Any problems encountered.                      and will likely achieve a level of safety
                                           the protégé firm can compete outside the                    (D) Any milestones achieved in the protégé       that is equivalent to, or greater than, the
                                           Program;                                                   firm’s developmental program.                         level that would be achieved absent
                                           *       *       *       *      *                              (E) Impact of the agreement in terms of            such exemption, based on the terms and
                                                                                                      capabilities enhanced, certifications received,       conditions imposed. The waiver
                                           I–109       Reimburseable Agreements                       and technology transferred.                           provides the Agency additional time to
                                           *       *       *       *      *                              (3) In accordance with section 861,                complete its analysis of the public
                                             (e) DoD may not reimburse any fee to the                 paragraph (b)(2), of the National Defense
                                                                                                                                                            responses to its December 20, 2017,
                                           mentor firm for services provided to the                   Authorization Act for Fiscal Year 2016 (Pub.
                                                                                                      L. 114–92), the reporting requirements                notice of proposed regulatory guidance
                                           protégé firm pursuant to I–106(d)(6) or for
                                                                                                      specified in paragraphs (a)(2)(iv) through            to clarify the applicability of the
                                           business development expenses incurred by
                                           the mentor firm under a contract awarded to                (a)(2)(xii)(C) of this section apply                  ‘‘Agricultural commodity’’ exception to
                                           the mentor firm while participating in a joint             retroactively to mentor-protégé agreements          the hours-of-service regulations and
                                           venture with the protégé firm.                           that were in effect on November 25, 2015.             issue final guidance which in turn,
                                                                                                      Mentors must submit reports as described in           would have an impact on which drivers
                                           *       *       *       *      *                           paragraph (a) of this section.                        transporting agricultural commodities
                                           I–112.2 Program Specific Reporting                            (4) A recommended reporting format and
                                                                                                                                                            are required to use ELDs, and the public
                                           Requirements                                               guidance for its submission are available at:
                                                                                                      http://www.acq.osd.mil/osbp/sb/programs/              responses to its October 31, 2017,
                                              (a) Mentors must report on the progress                                                                       document announcing receipt of the
                                           made under active mentor-protégé                         mpp/resources.shtml.
                                                                                                         (b) The protégé must provide data,               NPPC’s application for an exemption
                                           agreements semiannually for the periods
                                                                                                      annually by October 31st, on the progress             from the ELD requirements and to issue
                                           ending March 31st and September 30th
                                           throughout the Program participation term of               made during the prior fiscal year by the              a decision whether to grant NPPC’s
                                           the agreement. The September 30th report                   protégé in employment, revenues, and                request for longer-term relief from the
                                           must address the entire fiscal year.                       participation in DoD contracts during—                ELD rule. The Agency has determined
                                              (1) Reports are due 30 days after the close                (1) Each fiscal year of the Program                through its preliminary analysis of the
                                           of each reporting period.                                  participation term; and
                                                                                                                                                            public comments submitted to the
                                              (2) Each report must include the following                 (2) Each of the 2 fiscal years following the
                                                                                                      expiration of the Program participation term.         public dockets that the issues raised by
                                           data on performance under the mentor-                                                                            transporters of agricultural commodities
                                           protégé agreement:                                          (c) The protégé report required by
                                                                                                      paragraph (b) of this section may be provided         are more complex than those raised by
                                              (i) Dollars obligated (for reimbursable
                                           agreements).                                               as part of the mentor report for the period           other segments of the industry seeking
                                              (ii) Expenditures.                                      ending September 30th required by                     relief from the ELD requirements and
                                              (iii) Dollars credited, if any, toward                  paragraph (a) of this section.                        that it is appropriate to take additional
                                           applicable subcontracting goals as a result of                (d) Progress reports must be submitted—            time to bring these matters to closure.
                                           developmental assistance provided to the                      (1) For credit agreements, to the cognizant
                                                                                                                                                            DATES: This waiver is applicable
                                           protégé and a copy of the ISR or SF 294 and/             Component Director, SBP, that approved the
                                                                                                      agreement, and the mentor’s cognizant                 beginning March 18, 2018, and expires
                                           or SSR for each contract where
                                                                                                      DCMA administrative contracting officer; and          on June 18, 2018.
                                           developmental assistance was credited.
                                              (iv) Any new awards of subcontracts on a                   (2) For reimbursable agreements, to the            FOR FURTHER INFORMATION CONTACT:
                                           competitive or noncompetitive basis to the                 cognizant Component Director, SBP, the                Thomas L. Yager, Chief, Driver and
                                           protégé firm under DoD contracts or other                contracting officer, the DCMA administrative          Carrier Operations Division, Office of
                                           contracts, including the value of such                     contracting officer, and the program manager.         Bus and Truck Standards and
                                           subcontracts.                                              *      *      *      *       *                        Operations, Federal Motor Carrier Safety
                                              (v) All technical or management assistance              [FR Doc. 2018–05937 Filed 3–22–18; 8:45 am]           Administration, 1200 New Jersey Ave.
                                           provided by mentor firm personnel for the
                                           purposes described in I–106(d).
                                                                                                      BILLING CODE 5001–06–P                                SE, Washington, DC 20590.
                                              (vi) Any extensions, increases in the scope                                                                      Email: MCPSD@dot.gov. Phone: (614)
                                           of work, or additional payments not                                                                              942–6477.
                                           previously reported for prior awards of                    DEPARTMENT OF TRANSPORTATION                          SUPPLEMENTARY INFORMATION:
                                           subcontracts on a competitive or
                                           noncompetitive basis to the protégé firm                 Federal Motor Carrier Safety                          Legal Basis
                                           under DoD contracts or other contracts,                    Administration                                           The Transportation Equity Act for the
                                           including the value of such subcontracts.                                                                        21st Century (TEA–21) (Pub. L. 105–
                                              (vii) The amount of any payment of                      49 CFR Part 395                                       178, 112 Stat. 107, June 9, 1998)
                                           progress payments or advance payments
                                           made to the protégé firm for performance
                                                                                                                                                            provides the Secretary of Transportation
                                                                                                      Hours of Service; Electronic Logging                  (the Secretary) the authority to grant
                                           under any subcontract made under the
                                                                                                      Devices; Limited 90-Day Waiver for the                waivers from any of the FMCSRs issued
                                           Program.
                                              (viii) Any loans made by the mentor firm                Transportation of Agricultural                        under Chapter 313 of Title 49 of the
                                           to the protégé firm.                                     Commodities                                           United States Code or 49 U.S.C. 31136,
                                              (ix) All Federal contracts awarded to the               AGENCY: Federal Motor Carrier Safety                  to a person(s) seeking regulatory relief.
                                           mentor firm and the protégé firm as a joint                                                                    (49 U.S.C. 31136(e), 31315(a)). The
                                                                                                      Administration (FMCSA), DOT.
                                           venture, designating whether the award was                                                                       Secretary must make a determination
amozie on DSK30RV082PROD with RULES




                                           a restricted competition or a full and open                ACTION: Notification; grant of waiver.
                                                                                                                                                            that the waiver is in the public interest,
                                           competition.
                                              (x) Any assistance obtained by the mentor               SUMMARY:   FMCSA grants a limited 90-                 and that it is likely to achieve a level of
                                           firm for the protégé firm from the entities              day waiver from the Federal hours-of-                 safety that is equivalent to, or greater
                                           listed at I–106(d)(6).                                     service (HOS) regulations pertaining to               than, the level of safety that would be
                                              (xi) Whether there have been any changes                electronic logging devices (ELDs) for the             obtained in the absence of the waiver.
                                           to the terms of the mentor-protégé agreement.            transportation of agricultural                        Individual waivers may be granted only


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                                           12686               Federal Register / Vol. 83, No. 57 / Friday, March 23, 2018 / Rules and Regulations

                                           for a specific unique, non-emergency                    Safety Determination                                  provision with a final rule published on
                                           event, for a period up to three months.                                                                       March 14, 2013 (78 FR 16189).
                                           TEA–21 authorizes the Secretary to                         Although FMCSA does not have an                       In addition, section 32934 of MAP–21
                                           grant waivers without requesting public                 estimate of the number of carriers and                provides statutory exemptions from
                                           comment, and without providing public                   drivers that would be covered by this                 most of the FMCSRs, including those
                                           notice.                                                 waiver, the Agency believes the                       pertaining to HOS, the commercial
                                                                                                   population represents a relatively small              driver’s license and driver qualification
                                             The Administrator of FMCSA has
                                                                                                   percentage of the carriers and drivers                requirements, for drivers of ‘‘covered
                                           been delegated authority under 49 CFR
                                                                                                   subject to its oversight and, more                    farm vehicles’’ (CFVs), a term defined in
                                           1.87(e) to carry out the functions vested
                                                                                                   specifically, of those subject to the ELD             detail by MAP–21. Among other things,
                                           in the Secretary by 49 U.S.C. chapter
                                                                                                   requirements. This belief is based                    CFV drivers must be owners or
                                           311, subchapters I and III, relating to
                                                                                                   primarily on an analysis the Agency                   operators of farms or ranches, or their
                                           commercial motor vehicle programs and
                                                                                                   conducted in 2013 when it evaluated a                 employees or family members; for-hire
                                           safety regulation.
                                                                                                   request for a waiver from the 30-minute               motor carriers are not eligible for the
                                           Background                                              rest break requirement for the                        exemptions provided by section 32934.
                                                                                                   transportation of livestock (July 11,                 These exemptions are explained in the
                                             The FMCSA received an application
                                                                                                   2013, 78 FR 41716).                                   March 14, 2013, final rule mentioned
                                           for an exemption and waiver from the
                                           NPPC on behalf of eight organizations                      FMCSA reviewed its Motor Carrier                   above.
                                           that represent transporters of livestock                Management Information System                            While the 2013 analysis was targeted
                                           and other agricultural commodities.                     (MCMIS) to determine this information                 at estimating the population of carriers
                                           Notice of the request for exemption from                at that time. MCMIS includes the                      and drivers that would be covered by a
                                           the requirement that a motor carrier                    information reported to the Agency by                 livestock waiver from the 30-minute rest
                                           require each of its drivers to use an                   carriers submitting the Motor Carrier                 break requirement, the Agency believes
                                           electronic logging device (ELD) no later                Identification Report (FMCSA Form                     a similar analysis looking at agricultural
                                                                                                   MCS–150), required by 49 CFR 390.19.                  commodities in general would also
                                           than December 18, 2017, to record the
                                                                                                   As of July 3, 2013, MCMIS listed 64,892               show that the population likely to need
                                           driver’s hours-of-service (HOS), was
                                                                                                   motor carriers that identified livestock              relief from the ELD requirement during
                                           published in the Federal Register on
                                                                                                   as a type (though not necessarily the                 the 90-day waiver remains a small
                                           October 31, 2017 (82 FR 50358).
                                                                                                   only type) of cargo they transported.                 fraction of the motor carrier and driver
                                           Comments to that document were due
                                                                                                   These carriers operated 187,606 vehicles              populations subject to the ELD rule.
                                           by November 30, 2017
                                                                                                   and employed 242,676 drivers. And                     Because of the urgency with which
                                           (www.regulations.gov, Docket FMCSA–
                                                                                                   126,471 of those drivers operated within              FMCSA must issue decisions on the
                                           2017–0297). The Agency received 997
                                                                                                   a 100 air-mile radius of their work-                  matters discussed above, the Agency
                                           responses to the document announcing
                                                                                                   reporting location—a fact that is                     was unable to complete an up-to-date
                                           receipt of the NPPC exemption                                                                                 analysis of its MCMIS data before the
                                           application.                                            important because the existing statutory
                                                                                                   exemptions provide relief from the HOS                March 18, 2018, expiration of the 2017
                                             FMCSA also received from the                                                                                waiver for the transportation of
                                           Agricultural Retailers Association                      requirements for these drivers.
                                                                                                   Therefore, the Agency concluded at that               agricultural commodities. However, the
                                           (ARA) an exemption, waiver, and                                                                               Agency will complete that analysis of
                                           petition document dated October 25,                     time, the 2013 livestock waiver would
                                                                                                   not have been applicable to them,                     the MCMIS data within 30 days and
                                           2017, requesting that transporters of                                                                         place a copy in the docket referenced at
                                           agricultural commodities and farm                       leaving fewer than 116,205 drivers
                                                                                                   likely to utilize this relief from the 30-            the beginning of this notification.
                                           supplies for agricultural purposes not be                                                                        In addition to the 2013 data analysis,
                                           required to use ELDs during an                          minute rest break provision.
                                                                                                                                                         the Agency considered information
                                           exemption period. Notice of that request                   The Agency explained in its                        reviewed in reaching a decision to grant
                                           was published in the Federal Register                   document granting the waiver that                     a limited 90-day waiver from the HOS
                                           on December 28, 2017 (82 FR 61531).                     section 345 of the National Highway                   requirements for the distribution of an
                                           Comments to that document were due                      System Designation Act of 1995 (the                   agricultural supply, anhydrous
                                           by January 29, 2018                                     NHS Act) (Pub. L. 104–69, 109 Stat.                   ammonia. The analysis was discussed in
                                           (www.regulations.gov, Docket FMCSA–                     613), enacted on November 28, 1995,                   depth in an October 6, 2010, Federal
                                           2017–0336). The Agency received 115                     implemented by 49 CFR 395.1(k),                       Register document (75 FR 61626),
                                           responses to the document announcing                    provided relief from the HOS                          granting the waiver, and in the Agency’s
                                           receipt of the ARA exemption                            requirements for drivers transporting                 2017 document granting a limited 90-
                                           application.                                            agricultural commodities or farm                      day waiver from the ELD requirements
                                             In addition to NPPC’s and ARA’s                       supplies for agricultural purposes in a               for motor carriers transporting
                                           applications, FMCSA received                            State if ‘‘the transportation is limited to           agricultural commodities. The Agency
                                           numerous public comments in response                    an area within a 100 air-mile radius                  continues to believe the study results
                                           to the Agency’s December 20, 2017 (82                   from the source of the commodities or                 are relevant to the discussion of
                                           FR 60360), notice of proposed                           the distribution point for the farm                   temporary regulatory relief from the
                                           regulatory guidance concerning the                      supplies and is during the planting and               ELD requirements for the transportation
                                           applicability of the HOS requirements to                harvesting seasons within such State, as              of agricultural commodities.
                                           drivers transporting agricultural                       determined by the State.’’                               Although this study was conducted in
                                           commodities. Comments were due by                          Section 32101(d) of the Moving                     2010 and relied upon data from 2005
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                                           January 19, 2018, but the comment                       Ahead for Progress in the 21st Century                through 2008, FMCSA has no reason to
                                           period was subsequently extended to                     Act (MAP–21) (Pub. L. 112–141, 126                    believe that the conclusions would be
                                           February 20, 2018, in response to a                     Stat. 405), enacted on July 6, 2012,                  different if updated using more recent
                                           request by the American Trucking                        expanded that 100 air-mile radius                     data. Although the 2010 studies did not
                                           Associations. The Agency received 565                   provided by the NHS Act to 150 air                    focus on benefits achieved by use of
                                           responses to that document.                             miles; FMCSA implemented the                          ELDS, given the limited population of


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                                                               Federal Register / Vol. 83, No. 57 / Friday, March 23, 2018 / Rules and Regulations                                               12687

                                           motor carriers affected by the waiver                      (3) Carriers operating under this                    (j) Whether the driver was cited for
                                           and the brief period of time a waiver is                waiver must comply with all other                     violation of any traffic laws, motor
                                           in effect, FMCSA believes that the level                applicable requirements of the Federal                carrier safety regulations, and
                                           of safety maintained by transporters of                 Motor Carrier Safety Regulations (49                    (k) The total driving time and total on-
                                           agricultural commodities will be                        CFR parts 390 through 399), including                 duty time period prior to the accident.
                                           equivalent to the safety of operations                  the preparation of records of duty status               Accident notifications must be
                                           that would be obtained absent the                       (RODS) for operations which are                       emailed to MCPSD@dot.gov.
                                           granting of a waiver.                                   currently considered to be subject to the
                                                                                                                                                         Safety Considerations
                                                                                                   HOS rules and the record retention
                                           FMCSA Determination
                                                                                                   requirements associated with those                       Considering the limited period of this
                                              Considering the above studies, the                   RODS and supporting documents.                        waiver and that it does not alter any of
                                           ongoing review of the public comments                      (4) Motor carriers operating under this            the HOS regulations other than the
                                           submitted in response to the proposed                   waiver must have a ‘‘satisfactory’’ safety            method of recording HOS, and the
                                           regulatory guidance on the agricultural                 rating from FMCSA or be unrated; motor                Agency’s previous review of data
                                           commodities exception to the HOS                        carriers with ‘‘conditional’’ or                      concerning the safety performance of
                                           rules, and the pending exemption                        ‘‘unsatisfactory’’ safety ratings are                 motor carriers engaged in the
                                           requests from NPPC and ARA, FMCSA                       prohibited from taking advantage of the               transportation of agricultural
                                           has determined that it is in the public                 waiver.                                               commodities, the Agency has
                                           interest to provide a limited waiver from                  (5) Drivers operating under this                   determined that the waiver from the
                                           the use of ELDs for interstate motor                    waiver must carry a copy of this Federal              ELD requirements for 90 days is likely
                                           carriers engaged in the transportation of               Register notification and present it to               achieve a level of safety equivalent to,
                                           agricultural commodities as defined in                  motor carrier safety enforcement                      or greater than, the level that would be
                                           49 CFR 395.2. The Agency believes this                  officials upon request.                               achieved by the current regulation.
                                           matter requires a decision based on the                    (6) Crash Notification to FMCSA                       FMCSA expects that any drivers and
                                           best available data, albeit dated, rather                  Carriers operating under this waiver               their employing motor carrier operating
                                           than delaying a decision until a new                    must notify FMCSA within 5 business                   under the terms and conditions of the
                                           study can be conducted. This waiver                     days of any accident (as defined in 49                exemption will maintain their safety
                                           will allow FMCSA time to evaluate the                   CFR 390.5), involving any of the motor                record. Should any safety problems be
                                           HOS exception applicable to the                         carrier’s drivers operating under the                 discovered, however, FMCSA will take
                                           transport of agricultural commodities                   terms of this waiver. The notification                all steps necessary to protect the public
                                           and to review the concerns unique to                    must include the following information:               interest. Use of this waiver is voluntary,
                                           the agricultural industry. FMCSA grants                    (a) Identity of Waiver: ‘‘AG’’                     and FMCSA will immediately revoke
                                           the waiver to all motor carriers                           (b) Date of the accident,                          the waiver for any interstate driver or
                                           transporting agricultural commodities.                     (c) City or town, and State, in which              motor carrier for failure to comply with
                                                                                                   the accident occurred, or closest to the              the terms and conditions of the waiver.
                                           Terms and Conditions of the Waiver
                                                                                                   accident scene,                                       Preemption of State Requirements
                                              (1) Duration of the waiver. This                        (d) Driver’s name and license number,
                                           waiver is applicable March 18, 2018,                                                                            Consistent with 49 U.S.C. 31315(d),
                                                                                                      (e) Co-driver’s name and license
                                           through June 18, 2018.                                                                                        this waiver preempts inconsistent State
                                                                                                   number (if applicable),
                                                                                                                                                         or local requirements applicable to
                                              (2) Motor carriers transporting                         (f) Vehicle number and State license               interstate commerce.
                                           agricultural commodities under the                      number,
                                           provisions of 49 CFR 395.1(k)(1), are                      (g) Number of individuals suffering                  Issued on: March 16, 2018.
                                           exempt from the ELD requirements in                     physical injury,                                      Raymond P. Martinez,
                                           49 CFR 395.8(a) during the period of                       (h) Number of fatalities,                          Administrator.
                                           this waiver, regardless of the distance                    (i) The police-reported cause of the               [FR Doc. 2018–05865 Filed 3–22–18; 8:45 am]
                                           traveled.                                               accident,                                             BILLING CODE 4910–EX–P
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Document Created: 2018-11-01 08:53:39
Document Modified: 2018-11-01 08:53:39
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionNotification; grant of waiver.
DatesThis waiver is applicable beginning March 18, 2018, and expires on June 18, 2018.
ContactThomas 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.
FR Citation83 FR 12685 

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