[Federal Register Volume 78, Number 133 (Thursday, July 11, 2013)]
[Rules and Regulations]
[Pages 41716-41718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16679]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[FMCSA-2013-0283]


Hours of Service; Limited 90-Day Waiver From the 30-Minute Rest 
Break Requirement for the Transportation of Livestock

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

ACTION: Notice; grant of waiver.

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SUMMARY: FMCSA grants a limited 90-day waiver from the 30-minute rest 
break provision of the Federal hours-of-service (HOS) regulations for 
the transportation of livestock. Several associations representing 
various segments of the livestock industry raised concerns about the 
risks to the health of animals from rising temperatures inside 
livestock trucks during drivers' mandatory 30-minute break, especially 
in light of long-range weather forecasts for above-normal temperatures 
for July, August and September 2013. The industry requested relief, and 
the Agency has determined that it is appropriate to grant a limited 90-
day waiver for this period to ensure the well-being of the Nation's 
livestock during interstate transportation. The Agency has determined 
that the waiver, based on the terms and conditions imposed, would 
likely achieve a level of safety that is equivalent to, or greater 
than, the level that would be achieved absent such waiver. This waiver 
preempts inconsistent State and local requirements.

DATES: The waiver is effective July 11, 2013. The waiver expires on 
October 9, 2013.

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: [email protected]. Phone 
(202) 366-4325.

SUPPLEMENTARY INFORMATION:

Legal Basis

    The Transportation Equity Act for the 21st Century (TEA-21) (Public 
Law 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 
section 31136 or chapter 313 of title 49, United States Code, 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 1.87(f) 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

    On December 27, 2011 (76 FR 81133), FMCSA published a final rule 
amending its hours-of-service regulations for drivers of property-
carrying commercial motor vehicles (CMVs). The final rule included 
several changes to the HOS regulations including a new provision 
requiring drivers to take a rest break during the work day under 
certain circumstances. Drivers may drive only if 8 hours or less have 
passed since the end of the driver's last off-duty period of at least 
30 minutes. FMCSA did not specify when drivers must take the 30-minute 
break, but the rule requires that they wait no longer than 8 hours 
after the last off-duty period of that length or longer to take that 
break. Drivers that already take shorter breaks during the work day 
could comply with the rule by taking one of the shorter breaks and 
extending it to 30 minutes. The new requirement took effect on July 1, 
2013.

National Pork Producers Council Waiver Request

    On June 19, 2013, FMCSA received a request for a 90-day waiver and 
application for an exemption from the National Pork Producers Council 
(the Council) on behalf of the following organizations:
     Agricultural and Food Transporters Conference of the 
American Trucking Associations;
     American Farm Bureau Federation;
     American Feed Industry Association;
     American Meat Institute;
     Livestock Marketing Association;
     National Cattlemen's Beef Association;
     National Chicken Council;
     National Milk Producers Federation;
     National Pork Producers Council;
     National Turkey Federation;
     North American Meat Association;
     Professional Rodeo Cowboys Association; and,
     U.S. Poultry and Egg Association.
    The Council stated that complying with the 30-minute rest break 
rule will cause livestock producers and their drivers irreparable harm, 
place the health and welfare of the livestock at risk, and provide no 
apparent benefit to public safety, while forcing the livestock industry 
and their drivers to choose between the humane handling of animals or 
compliance with the rule.
    The Council explained that the process of transporting livestock, 
whether to slaughter, transfer of ownership, or for purposes of 
breeding or simply finding forage for feed, is a significant concern to 
the agricultural industry. The animals face a variety of stresses 
including temperature, humidity, and weather conditions.
    During the summer months, exposure to heat is one of the greatest 
concerns in maintaining the animals' well-being. This is especially 
challenging for the transportation of pigs because these animals do not 
sweat and are subject to heat stress. When heat stress occurs, a pig's 
body temperature rises to a level that it cannot control through its 
normal panting mechanisms. Under the industry's guidelines, drivers are 
directed to avoid stopping in temperatures greater than 80 degrees. 
Drivers are advised to stop only when animals will be immediately 
unloaded or when safety becomes an issue. If the vehicle must be 
stopped, drivers are required to stay with the animals and provide them 
with water to help keep them cool.
    When temperature and humidity result in a heat index greater than 
or

[[Page 41717]]

equal to 100 degrees Fahrenheit, cattle are also placed at significant 
health risk. When cattle are stressed under extreme heat conditions, 
they are more likely to become non-ambulatory, sick, and even die. Non-
ambulatory cattle are banned from entering the food system. Current 
industry guidelines recommend that drivers avoid stopping as internal 
trailer temperatures will then increase rapidly because of the loss of 
airflow through the trailer and heat production from the animals. A 
copy of the Council's waiver request is included in the docket 
referenced at the beginning of this notice.

Long-Range Weather Forecasts

    The FMCSA reviewed information from the National Oceanic and 
Atmospheric Administration's National Weather Service (NOAA). The NOAA 
posts long-range weather forecasts at its Web site, http://www.nws.noaa.gov. NOAA forecasts for the Western half of the United 
States for July, August and September predict above normal 
temperatures. Above normal temperatures are also forecast for the 
northeastern part of the Nation as well as the southern half of 
Florida. FMCSA believes the weather forecasts increase the need to 
protect livestock during transportation this summer.

Population of Drivers and Carriers Engaged in Livestock Transportation

    Although the Council did not provide information on the number of 
carriers and drivers to be included in the waiver it requested, FMCSA 
reviewed its Motor Carrier Management Information System (MCMIS) to 
determine this information. 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 lists 64,892 motor carriers that identified livestock as a 
type (though not necessarily the only type) of cargo they transported. 
These carriers operate 187,606 vehicles and employ 242,676 drivers. And 
126,471 of these drivers operate within a 100 air-mile radius of their 
work-reporting location--a fact that is important because existing 
statutory exemptions provide relief from the HOS requirements for these 
drivers. A final rule published on March 14, 2013, extended the 100 
air-mile radius previously in effect to 150 air miles (see 49 CFR 
395.1(k), 78 FR 16189). Therefore, the waiver would not be applicable 
to them, leaving fewer than 116,205 drivers likely to utilize this 
relief from the 30-minute rest break provision.
    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 ``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.

Analysis of Fatal Crashes Involving Carriers Transporting Livestock

    FMCSA reviewed ``Trucks Involved in Fatal Accidents Factbook 2008'' 
(UMTRI-2011-15, March 2011) published by the University of Michigan 
Transportation Research Institute's Center for National Truck and Bus 
Statistics to determine the prevalence of crashes involving the 
transportation of livestock. A copy of this publication is included in 
the docket referenced at the beginning of this notice.
    In 2008, there were 4,352 trucks involved in fatal crashes and 20 
of those vehicles were transporting live animals, with 13 of the 
vehicles reported as having a livestock cargo body. There were 13 other 
vehicles with an empty livestock cargo body involved in fatal crashes. 
Overall, trucks transporting live animals represent less than one half 
of one percent of the trucks involved in fatal crashes.
    The Trucks Involved in Fatal Accidents (TIFA) report showed that 26 
livestock cargo body vehicles, all of them tractor-semitrailer 
combinations, were involved in fatal crashes. Of that number, 13 
livestock vehicles were transporting live animals at the time of the 
crash. Seven instances of vehicles transporting live animals being at 
the time of the fatal crash involved CMVs with a body type reported as 
something other than livestock, based on the information above.
    About one-third of the 2008 crashes involving livestock 
transporters occurred on trips of 100 miles or less so the driver 
probably was exempt from the HOS requirements. With the recent 
expansion of the HOS exemption from 100 air-miles to 150 air-miles, any 
crashes that occur in the future are even more likely to occur within 
the exempt radius.

                                           Fatal Truck Involvements by Trip Type and Livestock Cargo Body Type
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                                                Cargo body:
                                                livestock,
       Trip type (distance in miles)              tractor                           Statutory exemption from HOS rules (< 150 miles)
                                                combination
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Local......................................                 3  Yes.
51-100.....................................                 2  Yes.
101-150....................................                 3  Yes.
151-200....................................                 3  No. Drivers may be able to achieve compliance with the 30-minute break requirement
                                                                because of limited distance.
201-500....................................                10  No.
>500 miles.................................                 4  No.
Unknown....................................                 1  Unknown.
                                            ------------------------------------------------------------------------------------------------------------
    Total..................................                26  ----
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[[Page 41718]]

    Given this information, FMCSA does not believe a limited 90-day 
waiver from the 30-minute rest break requirement would decrease the 
level of safety on the Nation's highways.

FMCSA Determination

    In consideration of the above, FMCSA has determined that it is in 
the public interest to provide a limited waiver from the 30-minute 
break requirement in the Federal HOS regulations for interstate motor 
carriers transporting livestock. A review of the most recent MCMIS and 
TIFA data provides a basis for determining that a limited waiver, based 
on the terms and conditions imposed, would achieve a level of safety 
that is equivalent to, or greater than, the level that would be 
achieved absent such exemption.

Terms and Conditions of the Waiver

    The FMCSA provides a limited 90-day waiver from the 30-minute break 
provision of the HOS rules for drivers transporting livestock as 
defined in the Emergency Livestock Feed Assistance Act of 1988, as 
amended (the 1988 Act) [7 U.S.C. 1471(2)]. The term ``livestock'' as 
used in this waiver means ``cattle, elk, reindeer, bison, horses, deer, 
sheep, goats, swine, poultry (including egg-producing poultry), fish 
used for food, and other animals designated by the Secretary of 
Agriculture that are part of a foundation herd (including dairy 
producing cattle) or offspring, or are purchased as part of a normal 
operation and not to obtain additional benefits under [the 1988 Act].''
    The waiver is further limited to motor carriers that have a 
``satisfactory'' safety rating or are ``unrated;'' motor carriers with 
``conditional'' or ``unsatisfactory'' safety ratings are prohibited 
from utilizing this waiver.

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. It would be unfair to exclude such carriers simply 
because they were not selected by for a compliance review, especially 
since carriers are prioritized for compliance reviews on the basis of 
known safety deficiencies.
    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 Reporting Requirement

    Within 10 business days following an accident (as defined in 49 CFR 
390.5), irrespective of whether the CMV was being operated under the 
this waiver, the motor carrier must submit the following information:
    (a) Date of the accident;
    (b) City or town in which the accident occurred, or city or town 
closest to the scene of the accident;
    (c) Driver's name and license number;
    (d) Vehicle number and State license number;
    (e) Number of injuries;
    (f) Number of fatalities;
    (g) The police-reported cause of the accident;
    (h) Whether the driver was cited for violating any traffic laws, 
motor carrier safety regulations, or hazardous materials discharge; and
    (i) Whether the driver was operating under the waiver, and if so, 
an estimate of the total on-duty and driving time between the last 
break of at least 15 minutes and the accident.

Duration of the Waiver

    The waiver is effective upon publication in the Federal Register 
and is valid until October 9, 2013, unless revoked earlier by the 
FMCSA. The exemption preempts inconsistent State or local requirements.

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 49 U.S.C. 31315, 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 
of the waiver

    Issued on: July 5, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-16679 Filed 7-8-13; 4:15 pm]
BILLING CODE 4910-EX-P