[Federal Register Volume 59, Number 235 (Thursday, December 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30112]


[[Page Unknown]]

[Federal Register: December 8, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 395

[FHWA Docket No. MC-94-32]
RIN 2125-AD44

 

Maximum Driving and On-Duty Time; Hours of Service for Farmers 
and Retail Farm Suppliers

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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

SUMMARY: This action is being taken in response to section 118 of the 
Hazardous Materials Transportation Authorization Act of 1994, which 
requires the Secretary of Transportation to initiate a rulemaking 
proceeding on whether the maximum driving and on duty time requirements 
of the Federal Motor Carrier Safety Regulations (FMCSRs) should be 
waived for farmers and retail farm suppliers transporting crops or farm 
supplies for agricultural purposes within a 50-mile radius of their 
distribution point or farm. The FHWA requests public comment from 
interested persons on this action and specifically the questions set 
forth below.

DATES: Comments must be received on or before February 6, 1995.

ADDRESSES: All signed, written comments should refer to the docket 
number that appears at the top of this document and must be submitted 
to HCC-10, Room 4232, Office of the Chief Counsel, Federal Highway 
Administration, 400 Seventh Street, SW., Washington DC 20590. All 
comments received will be available for examination at the above 
address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed stamped postcard or envelope.

FOR FURTHER INFORMATION CONTACT: Mr. Larry G. Slade, Office of Motor 
Carrier Standards, (202) 366-5721, or Mr. Charles Medalen, Office of 
the Chief Counsel, (202) 366-1354, Federal Highway Administration, 
Department of Transportation, 400 Seventh Street, SW., Washington, DC 
20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

The Congressional Mandate

    The FHWA is initiating this rulemaking in response to a 
Congressional mandate contained in section 118 of the Hazardous 
Materials Transportation Authorization Act of 1994, (Pub. L. 103-311, 
108 Stat. 1673, August 26, 1994). The Act requires the agency to 
``determine whether or not the requirements of Sec. 395.3 of title 49, 
Code of Federal Regulations, relating to hours of service, may be 
waived for farmers and retail farm suppliers when such farmers and 
retail farm suppliers are transporting crops or farm supplies for 
agricultural purposes within a 50-mile radius of their distribution 
point or farm.''
    Section 206 of the Motor Carrier Safety Act of 1984 (49 U.S.C. 
31136(e)), authorizes the Secretary of Transportation to waive, in 
whole or in part, any or all of the provisions of the FMCSRs if it is 
determined that such waiver is consistent with the public interest and 
the safe operation of commercial motor vehicles. The questions provided 
later in this notice are designed to solicit substantive data to assist 
the agency in determining whether or not an hours of service waiver for 
farmers and retail farm suppliers meets the statutory two-prong test 
for the granting of waivers.

The Hours of Service Requirements

    The regulations governing maximum driving and on-duty time (49 CFR 
395.3) apply to drivers of commercial motor vehicles (as defined in 
Sec. 390.5 of the FMCSRs) that operate in interstate commerce. These 
regulations specify that no motor carrier shall permit or require any 
driver used by it to drive, nor shall any such driver drive:
    (1) More than 10 hours following 8 consecutive hours off duty; or
    (2) For any period after having been on duty 15 hours following 8 
consecutive hours off duty; or
    (3) For any period after having been on duty 60 hours in any 7 
consecutive days if the employing motor carrier does not operate every 
day of the week; or
    (4) For any period after having been on duty 70 hours in any period 
of 8 consecutive days if the employing motor carrier operates motor 
vehicles every day of the week.
    Very limited exceptions to hours of service requirements are 
contained in Secs. 395.1(b) through 395.1(k). These sections allow 
certain drivers additional hours of driving time under some 
circumstances. None of these exemptions, however, is applicable to 
farmers and retail farm suppliers.

Public Reaction to Exemptions From Regulations

    In late 1992 and early 1993, the FHWA held a series of public 
hearings at eleven sites across the country as part of its zero base 
review of the FMCSRs (see 57 FR 37392, August 18, 1992). The concept of 
the zero base review is to take a completely fresh look at the safety 
regulations governing the interstate motor carrier industry. The 
objective of this project is to adopt revised regulations that: (1) 
Will enhance safety and further reduce accidents; (2) are more easily 
understood by the industry; (3) have a greater performance orientation; 
and (4) are easier to interpret and enforce. During the zero base 
hearings, the FHWA obtained information, views, and opinions from 
representatives of the motor carrier industry, State and local 
enforcement officials, insurance company representatives, college and 
university professors, and other interested persons (see 57 FR 53089, 
November 6, 1994). An analysis of the hearings revealed that the 
elimination of regulatory exemptions was an issue of major concern to 
the public. Some respondents objected to specific exemptions they 
considered unwarranted, others objected to any exemptions whatsoever, 
contending that any vehicle over a certain weight and any individual 
driving such a vehicle should be regulated, if engaged in a commercial 
endeavor.

Response to Hours of Service Notice of Proposed Rulemaking

    On August 19, 1992, the FHWA published a notice of proposed 
rulemaking (NPRM) which would have permitted the 60 or 70 hour on duty 
time limitation in Sec. 395.3(b) to begin anew after the driver had an 
off-duty recovery period of 24 consecutive hours or more (57 FR 37504). 
The FHWA received 67,922 comments and signatures on petitions in 
response to the NPRM. Because of the impact of the proposal on motor 
carriers' operations, the FHWA specifically asked 11 questions 
soliciting views, opinions, information, and data. Virtually none of 
the commenters in favor of the proposal provided substantive responses 
to the critical, fundamental questions posed in the NPRM, offering 
instead opinions unsupported by empirical or even anecdotal material. 
Except in the most general terms, there were no discussions of 
potential impacts on highway safety which could result from increasing 
the available on-duty hours.
    Because of a lack of substantive information the FHWA withdrew its 
NPRM addressing hours of service regulations for commercial motor 
vehicles drivers (58 FR 6937, February 3, 1993). This action was taken 
since the FHWA could not conclusively determine whether or not a driver 
could drive safely with the hours of service relief as proposed.

Hours of Service Petitions

    Since the Motor Carrier Safety Act of 1984 established the two-
prong test for the granting of waivers, the FHWA has received numerous 
petitions requesting waiver from the hours of service regulations. The 
statutory test, described earlier in this notice, is extremely 
difficult to meet and as of this date none of these petitions has been 
granted.

Request for Public Comment

    The FHWA is requesting written comments, information, and data on 
whether the maximum driving and on duty time requirements of the 
Federal Motor Carrier Safety Regulations should be waived for farmers 
and retail farm suppliers transporting crops and farm supplies for 
agricultural purposes within a 50-mile radius of their distribution 
point or farm. In addition, commenters are also encouraged to provide 
written comments, information and data which respond to specific 
questions listed below.

Specific Questions

    The FHWA seeks comments and data to assist the agency in answering 
the specific questions stated below. Commenters are also encouraged to 
discuss any other matters related to maximum driving and on-duty time 
for farmers and retail farm suppliers which they believe the FHWA 
should address.
    1. What are the accident rates (frequency, ratio) for farm and farm 
supplier vehicles and how are these rates different (comparative 
figures) from other operators covered by Sec. 395.3?
    2. How many farm-related accidents involving injuries or death 
occur in the field (e.g., during planting, plowing, seeding or 
harvesting) on an annual basis?
    3. What is the size of the motor carrier population (number of 
drivers, vehicles, and businesses) which would be affected by the 
waiver described above?
    4. What studies or data are available on (from a safety standpoint) 
hours of service exemptions for farmers and retail farm suppliers?
    5. How are duties and driving conditions of farm and retail farm 
supplier drivers different from those of drivers in other industries, 
such as utility drivers, cable company drivers, and the like?
    6. What should be included in any proposed definitions of ``crops'' 
in the FMCSRs?
    7. Should retail farm suppliers and farmers be granted an exemption 
for every distribution point that they engage in the commercial 
distribution of crops and/or farm supplies? For example, if XYZ Company 
operates three distribution centers in one State and five distribution 
centers in another State, should XYZ Company be granted an exemption in 
eight locations within a 50-mile radius of each location?
    8. Do any States have hours of service exemptions for farmers and 
retail farm suppliers during the intrastate transportation of crops and 
farm supplies? Is it based on a mileage radius? In States that do have 
exemptions, what data are available on the safety of these operations?
    9. What on-road performance data is available for carriers that 
transport crops and retail farm supplies?
    10. Would an exemption for farmers and retail farm suppliers result 
in a higher degree of driver fatigue than for other segments of the 
motor carrier population, thereby adversely impacting safe operation of 
commercial motor vehicles?
    11. Would an exemption for farmers and retail farm suppliers 
improve safety and reduce accidents on the Nations' highways? Would it 
degrade safety and increase accidents?
    12. Recognizing the rural nature of the midwest and western regions 
of the United States, is a 50 mile radius adequate coverage for 
exemption relief?
    13. Would this potential exemption, which is based on a 50-mile 
radius, be consistent with previous Congressional directions regarding 
the elimination of the radius-based commercial zone exemptions (Pub. L. 
100-690, November 18, 1988, 102 Stat. 4528)?

Rulemaking Analyses and Notices

    All comments received before the end of business on the closing 
date for comment indicated above will be considered and will be 
available for examination in the docket at the above address. Comments 
received after the comment closing date will be filed in the docket and 
will be considered to the extent practical. In addition to late 
comments, the FHWA will also continue to file relevant information in 
the docket as it becomes available after the closing date. Interested 
persons should continue to examine the docket for new material.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    Due to the preliminary nature of this document and lack of 
necessary information on costs the FHWA is unable at this time to 
evaluate in detail the economic and safety impacts of potential changes 
to regulatory requirements concerning the hours of service for farmers 
and retail farm suppliers. Based on the information received in 
response to this notice, the FHWA intends to again consider whether 
this is a significant regulatory action. Comments, information, and 
data are solicited on the economic and safety impacts of the potential 
changes described herein.

Regulatory Flexibility Act

    Due to the preliminary nature of this document and lack of 
necessary information on costs, the FHWA is unable at this time to 
evaluate the effects of the potential regulatory changes on small 
entities. Based on the information received in response to this notice, 
the FHWA intends, in compliance with the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), to carefully consider the economic impacts of 
these potential changes on small entities. The FHWA solicits comments, 
information, and data on these impacts.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this action does not have sufficient federalism implications to 
warrant the preparation of a federalism assessment.
    Nothing in this document preempts any state law or regulation. The 
proposed rule, if adopted, would not limit the policymaking discretion 
of the states. States would not be required as part of the Motor 
Carrier Safety Assistance Program to adopt this rule. The issues 
addressed in this proposal, therefore, have no federalism implications.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1980 (44 
U.S.C. 3501 et seq.).

National Environmental Policy Act

    This agency has analyzed this action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
has determined that this action would not have any effect on the 
quality of the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

(49 U.S.C. 31136, 315022; 49 CFR 1.48).

    Issued on: November 30, 1994.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 94-30112 Filed 12-7-94; 8:45 am]
BILLING CODE 4910-22-P