[Federal Register Volume 75, Number 54 (Monday, March 22, 2010)]
[Rules and Regulations]
[Pages 13441-13444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6244]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395


Hours of Service; Limited 90-Day Waiver for the Distribution of 
Anhydrous Ammonia in Agricultural Operations

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

ACTION: Grant of waiver.

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SUMMARY: FMCSA grants a limited 90-day waiver from the Federal hours-
of-service (HOS) regulations for the transportation of anhydrous 
ammonia from any distribution point to a local farm retailer or to the 
ultimate consumer, and from a local farm retailer to the ultimate 
consumer, as long as the transportation takes place within a 100 air-
mile radius of the retail or wholesale distribution point. This waiver 
extends the agricultural operations exemption established by section 
345 of the National Highway System Designation Act of 1995, as amended 
by the sections 4115 and 4130 of the Safe, Accountable, Flexible, 
Efficient Transportation Equity: A Legacy for Users (SAFETEA-LU) to 
certain motor carriers engaged in the distribution of anhydrous ammonia 
during the 2010 spring planting season. The Agency has determined that 
the waiver would likely achieve a level of safety that is equivalent 
to, or greater than, the level that would be achieved absent such 
exemption, based on the terms and conditions imposed. This waiver 
preempts inconsistent State and local requirements applicable to 
interstate commerce.

DATES: The waiver is effective March 22, 2010. The waiver expires on 
June 21, 2010.

FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations, Federal Motor Carrier Safety Administration, 1200 New 
Jersey Ave., SE., Washington, DC 20590.
    E-mail: [email protected]. Phone (202) 366-4325.

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 Federal Motor Carrier Safety Regulations (FMCSRs) issued under 
Chapter 313 of Title 49 of the United States Code or 49 U.S.C. 31136, 
to a person(s) seeking regulatory relief. (49 U.S.C. 31136, 31315(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 only 
be granted to a person 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

[[Page 13442]]

1.73(g) 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 has been contacted by members of Congress concerning the 
Agency's interpretation of the agricultural exemption provided in 
section 345(a) of the National Highway System (NHS) Designation Act of 
1995, Public Law 104-59, November 28, 1995, 109 Stat. 568, 613, 49 
U.S.C. 31136 note. Constituents engaged in the transportation of farm 
supplies--particularly anhydrous ammonia--contacted the members to 
express concerns that the Agency's implementation of the agricultural 
exemption results in the exclusion of certain distribution activities 
from the regulatory relief intended by Congress.
    As amended by SAFETEA-LU, the agricultural provision reads as 
follows:

    Transportation of agricultural commodities and farm supplies.--
Regulations prescribed by the Secretary under sections 31136 and 
31502 regarding maximum driving and on-duty time for drivers used by 
motor carriers shall not apply during planting and harvest periods, 
as determined by each State, to drivers transporting agricultural 
commodities or farm supplies for agricultural purposes in a State if 
such transportation is limited to an area within a 100 air mile 
radius from the source of the commodities or the distribution point 
for the farm supplies.

    The Agency has long understood that limited farm storage capacity 
necessitates a ``just in time'' delivery system from retail 
distributors of farm supplies to farms (or other locations where the 
farm supply product will be used) during the busy planting and 
harvesting seasons. Longstanding FMCSA guidance on its HOS regulations 
has consistently allowed that the agricultural operations exemption 
applies to the transportation of farm supplies from the local farm 
retailer to the ultimate consumer within a 100 air-mile radius. FMCSA's 
interpretation, however, has not extended the HOS exemption to 
deliveries from wholesalers located at port or terminal facilities to 
either local farm retailers or farms. (See Question 33, 49 CFR 395.1 on 
the Agency's Web site: http://www.fmcsa.dot.gov.) Question 33 reads as 
follows:

    Question 33: How is ``point of origin'' defined for the purpose 
of Sec.  395.1(k)?
    Guidance: The term ``point of origin'' is not used in the NHS 
Designation Act; the statutory term is ``source of the 
[agricultural] commodities.'' The exemption created by the Act 
applies to two types of transportation. The first type is 
transportation from the source of the agricultural commodity--where 
the product is grown or raised--to a location within a 100 air-mile 
radius of the source. The second type is transportation from a 
retail distribution point of the farm supply to a location (farm or 
other location where the farm supply product would be used) within a 
100 air-mile radius of the retail distribution point.
    The legislative history of the agricultural exemption indicates 
it was intended to only apply to retail store deliveries. Thus, it 
is clear Congress intended to limit this exemption to retail 
distributors of farm supplies.
    Second-stage movements, such as grain hauled from an elevator 
(or sugar beets from a cold storage facility) to a processing plant, 
are more likely to fall outside the exempt radius. Similarly, the 
exemption does not apply to a wholesaler's transportation of an 
agricultural chemical to a local cooperative because this is not a 
retail delivery to an ultimate consumer, even if it is within the 
100 air-mile radius.

    The Agency's re-examination of the issue has made it clear that the 
exclusive emphasis of the Agency's regulatory guidance on deliveries 
from local retailers to the ultimate farm consumer may not reflect 
today's economic reality. Like farms, local retailers have limited 
storage capacity and therefore must constantly replenish their supplies 
during the planting and harvesting seasons. They are part of the ``just 
in time'' distribution system that extends from a wholesaler to the 
ultimate consumer of the supplies.
    Given this reality, FMCSA has determined that is in the public 
interest to issue a waiver to provide regulatory relief for the 
transportation of anhydrous ammonia during the 2010 spring planting 
season. This action is in the public interest because it provides 
limited regulatory relief to facilitate planting activities that will 
ultimately result in the production of agricultural commodities at 
prices to which consumers have become accustomed, without compromising 
safety.
    This waiver extends the agricultural operations exemption from the 
Federal HOS regulations to motor carriers in the distribution system, 
provided that: (1) The motor carrier is delivering anhydrous ammonia; 
(2) none of the transportation movements within the distribution chain 
exceed a 100 air-mile radius--whether from the retail or wholesale 
distribution point; and (3) the motor carrier has a ``satisfactory'' 
safety rating or is unrated; motor carriers with ``conditional'' or 
``unsatisfactory'' safety ratings are prohibited from taking advantage 
of the waiver. Therefore, the waiver allows motor carriers with a 
satisfactory safety rating or unrated motor carriers to use the HOS 
exemption when their drivers are delivering anhydrous ammonia from any 
distribution point to a local farm retailer or to the ultimate 
consumer, and from a local farm retailer to the ultimate consumer, as 
long as the transportation takes place within a 100 air-mile radius of 
the retail or wholesale distribution point. This waiver is effective 
immediately.

Safety Determination

    The FMCSA compared safety performance data for agricultural 
carriers currently operating under the statutory HOS exemption provided 
by the NHS, as amended, with non-agricultural carriers that are not 
exempt from HOS regulations to determine whether the waiver would be 
likely to achieve a level of safety that is equivalent to, or greater 
than, the level of safety that would be obtained in the absence of the 
waiver. The data were collected as part of a study, ``Agricultural 
Commodity and Utility Carriers Hours of Service Exemption Analysis.'' 
The final report from the study will be published later this year.
    The study was conducted in two phases. Phase 1 compares the safety 
performance of agricultural and non-agricultural carriers for the 
period 2005 through 2008, and also examines two additional industries, 
livestock and utility carriers, whose operations were not exempt from 
HOS regulations prior to the passage of SAFETEA-LU.\1\ The Phase 1 
analysis used carrier registration, inspection and crash data from 
FMCSA's Motor Carrier Management Information System (MCMIS). The study 
used cargo classification information on the FMCSA Motor Carrier 
Identification Report (Form MCS-150) in MCMIS to identify the carrier's 
industry group (agricultural, livestock, or utility carrier), and used 
MCS-150 information to identify carriers operating within and beyond a 
100-air-mile radius. The operating radius information was used to 
create two agricultural carrier subgroups: (1) Agricultural carriers 
with 100 percent of drivers operating within a 100-air-mile radius; and 
(2) agricultural carriers with 100 percent of drivers operating beyond 
a 100-air-mile radius. The analysis used the first subgroup as 
representative of agricultural carriers exempt from the HOS 
requirements, and the second subgroup as representative of agricultural 
carriers not exempt from the HOS requirements.
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    \1\ Section 4130(a).
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    For the Phase 2 analysis, inspection data of agricultural commodity 
and utility carriers (which are also exempt

[[Page 13443]]

from HOS regulations) was collected during an FMCSA special study of a 
sample of states. These data included only those inspections occurring 
during the states' planting and harvesting seasons and indicated both 
the commodity being transported and whether the driver was operating 
within or beyond the 100-air-mile radius exempt from HOS regulations. 
The Phase 2 analysis assessed the safety performance of the HOS exempt 
agricultural commodity and utility service carriers identified in the 
survey in comparison with non-HOS exempt carriers based on their out of 
service (OOS) violation rates and crash rates.
    For the purposes of considering whether to issue a limited waiver, 
FMCSA focused on the crash rate data from the study. The Agency did not 
place as much of an emphasis on the OOS rates because there were no HOS 
violation data to consider given that the agricultural carriers for 
which data were available were operating under a statutory exemption 
from the HOS rule. Differences between the OOS rates for other issues 
such as driver qualifications and vehicle defects and deficiencies, 
while important in considering overall safety management controls of 
the carriers, were not necessarily related to the potential safety 
impact of the waiver.
    The Phase 1 analysis indicates that nationally, agricultural 
carriers operating within a 100-air-mile radius had lower crash rates 
per 100 power units than those operating beyond this radius, except for 
in 2008, when there was no difference in the crash rates.
    To provide additional validation of the crash analysis, which uses 
power unit data reported on the Form MCS-150, a separate analysis was 
performed using data only for carriers domiciled in states 
participating in the Performance and Registration Information Systems 
Management (PRISM) program that enforces MCS-150 updating.\2\ PRISM 
links state motor vehicle registration systems with carrier safety data 
in order to identify unsafe commercial motor carriers. The PRISM state 
carriers are required to update their MCS-150 annually. By contrast, 
non-PRISM state carriers are required by FMCSA to update their MCS-150 
biennially. As a result, the PRISM state data are considered more 
current and reliable than non-PRISM state data where there is no direct 
implication for not updating the data. Data from PRISM states that 
enforce MCS-150 updating show that agricultural carriers operating 
within a 100-air-mile radius had more varied results, with crash rates 
higher than carriers operating beyond a 100-air-mile radius in 2008, 
lower in 2006 and 2007, and nearly the same in 2005.
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    \2\ Current PRISM states that enforce the MCS-150 updating 
requirement are Alabama, Arizona, Arkansas, Connecticut, Georgia, 
Iowa, Kentucky, Louisiana, Maine, Minnesota, Missouri, Nebraska, New 
Hampshire, New Mexico, North Carolina, Ohio, South Carolina, South 
Dakota, Tennessee, Utah, Vermont, Washington, and West Virginia.
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    The Phase 2 analysis indicates that in the four states 
participating in the survey (ID, KS, MD, MI), agricultural carriers 
that were subject to the HOS requirements had higher crash rates per 
100 power units than agricultural carriers exempt from the HOS 
requirements.

FMCSA Determination

    In consideration of the above, FMCSA has determined that it is in 
the public interest to provide a limited waiver from the Federal HOS 
regulations for interstate motor carriers engaged in the distribution 
of anhydrous ammonia during the 2010 spring planting season. A review 
of the available crash data comparing motor carriers currently 
operating under the NHS exemption from the HOS regulations provides a 
basis for determining that a limited waiver would achieve a level of 
safety that is equivalent to, or greater than, the level that would be 
achieved absent such exemption, based on the terms and conditions 
imposed.

Terms and Conditions of the Waiver

    The FMCSA is providing a waiver from the requirements of 49 CFR 
part 395 concerning the HOS requirements for drivers of property-
carrying vehicles for certain motor carriers engaged in the 
distribution of anhydrous ammonia during the 2010 spring planting 
season.
    This waiver extends the agricultural operations exemption from the 
Federal HOS regulations to motor carriers in the distribution system, 
provided that: (1) The motor carrier is delivering anhydrous ammonia; 
(2) none of the transportation movements within the distribution chain 
exceed a 100 air-mile radius--whether from the retail or wholesale 
distribution point; and (3) the motor carrier has a ``satisfactory'' 
safety rating or is ``unrated;'' motor carriers with ``conditional'' or 
``unsatisfactory'' safety ratings are prohibited from taking advantage 
of the waiver.
    The waiver allows ``unrated'' motor carriers and those with a 
satisfactory safety rating to use the HOS exemption when their drivers 
are delivering anhydrous ammonia from any distribution point to a local 
farm retailer or to the ultimate consumer, and from a local farm 
retailer to the ultimate consumer, as long as the transportation takes 
place within a 100 air-mile radius of the retail or wholesale 
distribution point.

Safety Rating

    Motor carriers that have received compliance reviews are required 
to have a ``satisfactory'' rating. The compliance review is an on-site 
examination of a motor carrier's operations, including records on 
drivers' hours of service, maintenance and inspection, driver 
qualification, commercial driver's license requirements, financial 
responsibility, accidents, hazardous materials, and other safety and 
transportation records to determine whether a motor carrier meets the 
safety fitness standard. The assignment of a ``satisfactory'' rating 
means the motor carrier has in place adequate safety management 
controls to comply with the Federal safety regulations, and that the 
safety management controls are appropriate for the size and type of 
operation of the motor carrier.
    The FMCSA will also allow ``unrated'' carriers to take advantage of 
the waiver. Unrated motor carriers are those that have not received a 
compliance review. The FMCSA is allowing unrated motor carriers to 
participate because it would be unfair to exclude them simply because 
they were not selected by the Agency for a compliance review. The 
absence of a compliance review is in no way an indication that the 
carrier has done anything wrong or has safety problems.
    The Agency is not allowing motor carriers with conditional or 
unsatisfactory ratings to participate because both of those ratings 
indicate that the carrier has safety management control problems. There 
is little reason to believe that carriers rated either unsatisfactory 
or conditional could be relied upon to comply with the terms and 
conditions of the waiver.

Accident and Hazardous Materials Reporting Requirement

    Within 10 business days following an accident (as defined in 49 CFR 
390.5) or any unintentional discharge of anhydrous ammonia that 
requires the submission of the Department of Transportation Hazardous 
Materials Incident Report (DOT Form F 5800.1) (see 49 CFR 171.16) 
involving any of the motor carrier's CMVs, irrespective of whether the 
CMV was being operated by a participating driver, the motor carrier 
must submit the following information:
    (a) Date of the accident;
    (b) City or town in which the accident occurred, or city or town 
closest to the scene of the accident;
    (c) Driver's name and license number;

[[Page 13444]]

    (d) Vehicle number and State license number;
    (e) Number of injuries;
    (f) Number of fatalities;
    (g) Whether hazardous materials, other than fuel spilled from the 
fuel tanks of the motor vehicles involved in the accident, were 
released;
    (h) The police-reported cause of the accident;
    (i) Whether the driver was cited for violating any traffic laws, 
motor carrier safety regulations, or hazardous materials discharge; and
    (j) Whether the driver was operating under the waiver, and if so, 
an estimate of the total driving time, on-duty time for the day of the 
accident and each of the seven calendar days prior to the accident.

Duration of the Waiver

    The waiver is effective upon publication in the Federal Register 
and is valid until June 21, 2010, unless revoked earlier by the FMCSA. 
The exemption preempts inconsistent State or local requirements 
applicable to interstate commerce.

Safety Oversight of Carriers Operating Under the Waiver

    The FMCSA expects that any motor carrier operating under the terms 
and conditions of the waiver will maintain its safety record. However, 
should any deterioration occur, the FMCSA will, consistent with the 
statutory requirements of TEA-21, take all steps necessary to protect 
the public interest. Use of the waiver is voluntary, and the FMCSA will 
immediately revoke the waiver for any interstate motor carrier or 
driver for failure to comply with the terms and conditions waiver.

    Issued on: March 17, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-6244 Filed 3-19-10; 8:45 am]
BILLING CODE 4910-EX-P