[Federal Register Volume 83, Number 192 (Wednesday, October 3, 2018)]
[Notices]
[Pages 49977-49979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21541]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2017-0133]


Commercial Driver's License (CDL): Application for Exemption; 
U.S. Custom Harvesters, Inc. (USCHI)

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

ACTION: Notice of final disposition; grant of application for 
exemption.

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SUMMARY: FMCSA announces its decision to grant the U.S. Custom 
Harvesters, Inc. (USCHI) an exemption from the ``K'' intrastate 
restriction on commercial driver's licenses (CDLs) held by custom 
harvester drivers operating in interstate commerce. The Federal Motor 
Carrier Safety Regulations (FMCSRs) exempt drivers of commercial motor 
vehicles (CMVs) controlled and operated by a person engaged in 
interstate custom harvesting, including the requirement that drivers be 
at least 21 years old. However, many younger custom harvester drivers 
hold CDLs with an intrastate-only (or ``K'') restriction. This has 
caused drivers of USCHI member companies to be cited during roadside 
inspections in a different State, as the ``K'' restriction means that 
the license is invalid outside the State of issuance, even when the 
younger driver is operating under the custom harvester exemption. FMCSA 
has analyzed the exemption application and the public comments and has 
determined that the exemption, subject to the terms and conditions 
imposed, will achieve a level of safety that is equivalent to, or 
greater than, the level that would be achieved absent such exemption.

DATES: The exemption is effective from October 3, 2018 through October 
3, 2023.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver 
and Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; Telephone: 614-942-6477. Email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from the Federal Motor Carrier Safety Regulations (FMCSRs). 
FMCSA must publish a notice of each exemption request in the Federal 
Register (49 CFR 381.315(a)). The Agency must provide the public an 
opportunity to inspect the information relevant to the application, 
including any safety analyses that have been conducted. The Agency must 
also provide an opportunity for public comment on the request.
    The Agency reviews the safety analyses and public comments 
submitted, and determines whether granting the exemption would likely 
achieve a level of safety equivalent to, or greater than, the level 
that would be achieved by the current regulation (49 CFR 381.305). The 
decision of the Agency must be published in the Federal Register (49 
CFR 381.315(b)) with the reason for the grant or denial, and, if 
granted, the specific person or class of persons receiving the 
exemption, and the regulatory provision or provisions from which the 
exemption is granted. The notice must also specify the effective period 
and explain the terms and conditions of the exemption. The exemption 
may be renewed (49 CFR 381.300(b)).

Request for Exemption

    Custom harvesters are businesses that supply the equipment and 
labor to assist farmers with harvesting during their busiest seasons. 
Typically, there are two different classes of operations, grain 
harvesting and forage harvesting. A grain harvester uses combines to 
harvest wheat, corn, barley, canola, sunflowers, soybeans, and grain 
sorghum, among others. These crop products are transported to an 
elevator or on-farm storage, where the crop is stored and later 
transported elsewhere to be processed into products for public use. A 
forage harvester uses a chopper to harvest whole-plant crops such as 
corn, sorghum, milo, triticale, and alfalfa. These crops are used for 
silage to feed livestock in dairies and feedlots. Custom harvesters 
travel from State to State and can spend from a few days to several 
months cutting crops for one farmer.
    USCHI stated that custom harvesters are experiencing a problem with 
the exemption in 49 CFR 391.2(a). It was adopted by the Federal Highway 
Administration on December 22, 1971 [34 FR 24218] and has been widely 
used by custom harvesters since then. Under this provision, drivers of 
commercial motor vehicles (CMVs) controlled and operated by a person 
engaged in custom harvesting are exempt from all of part 391, including 
the requirement to be at least 21 years of age to operate a CMV in 
interstate commerce. USCHI member companies frequently employ drivers 
18-21 years of age, who are issued commercial driver's licenses (CDLs) 
with a ``K'' restriction that makes the license valid only for 
operations within the issuing State (49 CFR 383.23(a)(2) and 
383.153(a)(10)(vii)). The problem arises because the CDL regulations, 
adopted long after 1971, were not drafted to include an exemption 
corresponding to section 391.2(a). As a result, the ``K'' restriction 
means that the license is invalid outside the issuing State, even 
though section 391.2(a) exempts younger custom harvester drivers from 
the 21-year-old age requirement when operating in interstate commerce. 
Section 391.2(a) does not preempt State CDL regulations, like 
requirement in section 383.23(a)(2) to ``possess a CDL which meets the 
standards contained in subpart J of this part,'' including any ``K'' 
restriction imposed under section 383.153(a)(10)(vii) of subpart J. 
This has caused drivers employed by USCHI's members to be cited for CDL 
violations during inspections, which is an issue not only for the 
individual driver, but also for the custom harvester employer, whose 
safety record is adversely affected.

Public Comments

    On May 1, 2017, FMCSA published notice of the USCHI application for 
exemption and requested public comment (82 FR 20415). The Agency 
received a total of thirteen sets of comments. Ten comments--all 
submitted by custom harvesters--supported the exemption. Two 
commenters--the Oregon Department of Transportation (ODOT) and the 
American Association of Motor Vehicle Administrators (AAMVA) expressed 
various concerns with the request. One other commenter did not take a 
position on the exemption.
    Those filing in support of the request stated that a large 
percentage of their employees have been under the age of 21. They rely 
on the rule allowing 18-

[[Page 49978]]

year-olds to obtain a CDL for intrastate (``K'' restricted) operations 
[49 CFR 383.25(a)(4) and 383.71(a)(2)(i)] to have enough employees to 
effectively run their businesses. This provision has allowed workers 
under the age of 21 to obtain experience with truck driving. The 
commenters said that many of these individuals have gone on to be 
professional, full-time truck drivers, and that all of them would cite 
the harvest work as pivotal to their training as a CDL driver. They 
argued that the exemption from the ``K'' restriction is incredibly 
important to their businesses, as well as to the development of 
quality, responsible truck drivers for America's highways.
    Others commenting in favor of the exemption said that the way the 
current law is interpreted causes much difficulty. Custom harvesters 
can hire and train entry-level drivers, but it is difficult to find 
employees who are willing to work seasonal jobs. In many cases, the 
individuals most likely to work in these entry-level positions are 18- 
to 20-year-olds. Many custom harvesters feel that 49 CFR 391.2(a) is 
very clear; however, some States have different interpretations of the 
exemption.
    The Oregon Department of Transportation (ODOT) was concerned that 
the remedy sought by USCHI will have unintended consequences on 
interstate commerce, is cumbersome for State driver licensing agencies 
(SDLAs) responsible for issuing the CDL, and addresses only a symptom 
of the identified problem while ignoring the root cause. ODOT states 
that this exemption would create a burden for SDLAs in the licensing 
process. Accommodating this exemption would require time consuming and 
costly programming work with no nexus to highway safety.
    The American Association of Motor Vehicle Administrators (AAMVA) 
also expressed concern with the USCHI exemption request. AAMVA 
commented that retaining State discretion on age limitations for 
intrastate drivers should remain within the purview of the States. 
Further, utilizing the ``K'' restriction on a restricted CDL ensures 
underage operators of CMVs do not fully participate, unrestricted, in 
interstate commerce. At issue is the removal of an intrastate 
restriction that could allow an untested, younger driver, access to the 
full interstate system without restriction.

FMCSA Decision

    FMCSA has evaluated USCHI's application for exemption and the 
public comments and decided to grant the exemption. One requirement of 
any exemption issued under 49 CFR part 381 is that it be likely to 
achieve a level of safety equivalent to, or greater than, the level 
that would be achieved by the current regulation. In this case 
interstate operations by custom harvester drivers below the age of 21 
is already authorized by 49 CFR 391.2(a), and has been since 1971. 
However, it conflicts with, but does not preempt, the subsequently 
adopted requirements of 49 CFR 383.23(a)(2) and 383.153(a)(10)(vii). 
FMCSA believes this exemption, by removing the obstacle posed by 
sections 383.23(a)(2) and 383.153(a)(10)(vii), would not have any 
impact on the safe operation of CMVs and is therefore likely to achieve 
a level of safety equivalent to, or greater than, the level that would 
be achieved by the current regulation (49 CFR 391.2(a)).
    It should be noted that this exemption does not require any special 
action or processing by the State driver licensing agencies. They will 
continue to place the ``K'' restriction when called for, but 
enforcement officers will disregard it in situations involving drivers 
who can demonstrate eligibility for the custom harvester exemption.

Stakeholders

    The information below is provided to clarify what impact or meaning 
this exemption will have on the following stakeholders.

Custom Harvester Drivers

    Custom harvester drivers will be able to display this exemption 
notice to help explain that when operating in that capacity, they are 
permitted to operate outside the State issuing their CDL even though 
the license has a ``K'' (intrastate only) restriction.

Enforcement Officers

    This exemption notice will explain to law enforcement officers that 
49 CFR 391.2(a) authorizes custom harvester drivers to operate in 
interstate commerce even though under 21 years of age. The notice will 
explain that a ``K'' restriction on these drivers' CDLs does not limit 
them from driving outside the license-issuing State when they are 
operating as custom harvesters in accordance with 49 CFR 391.2(a).

State Driver Licensing Agencies

    This exemption requires no action or inaction on the part of State 
driver-licensing agencies. They will continue to issue CDLs with a 
``K'' restriction to drivers under the age of 21.

Terms and Conditions of the Exemption

    (1) Drivers for custom harvesters operating in interstate commerce 
shall be exempt from any intrastate-only ``K'' restriction on their 
CDLs when operating under the provisions of this exemption.
    (2) Drivers must have a copy of this notice in their possession 
while operating under the terms of the exemption. The exemption 
document must be presented to law enforcement officials upon request.
    (3) Drivers to be included in this exemption are identified in 49 
CFR 391.2 as those operating a CMV to transport farm machinery, 
supplies, or both, to or from a farm for custom-harvesting operations 
on a farm; or transport custom-harvested crops to storage or market.
    (4) To ensure that the driver is authentically operating as a 
custom harvester, he/she should be able to provide at least three of 
the following methods of verification:
    (a) The driver may have on hand a valid custom harvesting document 
such as a current date agricultural commodity scale sheet, a current 
date custom harvesting load sheet, an official company document stating 
the company purpose, etc.;
    (b) The CMV may have license plates specific to custom harvesting, 
or the verbiage ``Harvesting'' may be part of the business signage on 
the vehicle;
    (c) The CMV may be designed to haul a harvested agricultural 
commodity or equipment for harvesting, or be a support vehicle for 
custom-harvesting operations such as a service truck;
    (d) The CMV may be hauling a harvested agricultural commodity or 
equipment for the purpose of custom harvesting;
    (e) The CMV may have newly harvested commodity or remnants on 
board;
    (f) The driver will be able to provide a verifiable location of the 
current harvesting operation or delivery location for a harvested 
commodity.

Period of the Exemption

    This exemption from the requirements of 49 CFR 383.23(a)(2) and 
383.153(a)(10)(vii) is effective from October 3, 2018 through October 
3, 2023.

Preemption

    In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR 
381.600, during the period this exemption is in effect, no State shall 
enforce any law or regulation applicable to interstate commerce that 
conflicts

[[Page 49979]]

with or is inconsistent with this exemption with respect to a firm or 
person operating under the exemption. States may, but are not required 
to, adopt the same exemption with respect to operations in intrastate 
commerce.

Notification to FMCSA

    Under this exemption, the custom harvester employer 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 exemption. The notification must include the 
following information:
    (a) Identity of Exemption: ``USCHI''
    (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,
    (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 shall be emailed to [email protected].

Termination

    FMCSA believes that the drivers of custom harvesting vehicles will 
continue to maintain their previous safety record while operating under 
this exemption. However, should problems occur, FMCSA will take all 
steps necessary to protect the public interest, including revocation or 
restriction of the exemption. FMCSA will immediately revoke or restrict 
the exemption for failure to comply with its terms and conditions.

    Issued on: September 26, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-21541 Filed 10-2-18; 8:45 am]
 BILLING CODE 4910-EX-P