[Federal Register Volume 85, Number 227 (Tuesday, November 24, 2020)]
[Rules and Regulations]
[Pages 74909-74919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25971]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-2018-0348]
RIN 2126-AC24


Hours of Service of Drivers; Definition of Agricultural Commodity

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

ACTION: Interim final rule with request for comment.

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SUMMARY: FMCSA clarifies the definition of the terms ``any agricultural 
commodity,'' ``livestock,'' and ``non-processed food,'' as the terms 
are used in the definition of ``agricultural commodity'' for the 
purposes of the Agency's ``Hours of Service (HOS) of Drivers'' 
regulations. Under current regulations, drivers transporting 
agricultural commodities, including livestock, from the source of the 
commodities to a location within 150 air miles of the source, during 
harvest and planting seasons as defined by each State, are exempt from 
the HOS requirements. Furthermore, the HOS requirement for a 30-minute 
rest break does not apply to drivers transporting livestock in 
interstate commerce while the livestock are on the commercial motor 
vehicle. This interim final rule (IFR) clarifies the meaning of these 
existing definitional terms to ensure that the HOS exemptions are 
utilized as Congress intended.

DATES: This IFR is effective December 9, 2020. You must submit comments 
on or before December 24, 2020.
    Petitions for Reconsideration of this IFR must be submitted to the 
FMCSA Administrator no later than December 24, 2020.

ADDRESSES: You may submit comments identified by docket number FMCSA-
2018-0348 using any one of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=FMCSA-2018-0348. Follow the online 
instructions for submitting comments.
     Fax: (202) 493-2251.
     Mail: Dockets Operations, U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE, Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Driver and 
Carrier Operations Division, FMCSA, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, (202) 366-4325, [email protected]. If you have 
questions on viewing or submitting material to the docket, contact 
Dockets Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: This IFR is organized as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Executive Summary
III. Legal Basis for the Rulemaking
IV. Background
V. Discussion of Interim Final Rule
VI. Questions
VII. International Impacts
VIII. Section-by-Section Analysis
IX. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), and DOT Regulations
    B. E.O.13771 (Reducing Regulation and Controlling Regulatory 
Costs)
    C. Congressional Review Act
    D. Regulatory Flexibility Act (Small Entities)
    E. Assistance for Small Entities
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act
    H. E.O. 13132 (Federalism)
    I. Privacy
    J. E.O. 13175 (Indian Tribal Governments)
    K. Environment

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
IFR (FMCSA-2018-0348), indicate the specific section of this document 
to which your comment applies, and provide a reason for each suggestion 
or recommendation. You may submit your comments and material online or 
by fax, mail, or hand delivery, but please use only one of these means. 
FMCSA recommends that you include your name and a mailing address, an 
email address, or a phone number in the body of your document so that 
FMCSA can contact you if there are questions regarding your submission.
    To submit your comment online, go to: http://www.regulations.gov/#!docketDetail;D=FMCSA-2018-0348, click on the ``Comment Now!'' button, 
and type your comment into the text box on the following screen. Choose 
whether you are submitting your comment as an individual or on behalf 
of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they have reached the facility, please enclose a 
stamped, self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period and may change this IFR based on your comments. FMCSA 
may issue a final rule at any time after the close of the comment 
period.
Confidential Business Information
    Confidential Business Information (CBI) is commercial or financial 
information that is both customarily and actually treated as private by 
its owner. Under the Freedom of Information Act (FOIA, 5 U.S.C. 552), 
CBI is exempt from public disclosure. If your comments responsive to 
this IFR contain commercial or financial information that is 
customarily treated as private, that you actually treat as private, and 
that is relevant or responsive to this IFR, it is important that you 
clearly designate the submitted comments as CBI. Please mark each page 
of your submission that constitutes CBI as ``PROPIN'' to indicate it 
contains proprietary information. FMCSA will treat such marked 
submissions as confidential under the FOIA, and they will not be placed 
in the public docket of this IFR. Submissions containing CBI should be 
sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, Federal 
Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, 
Washington DC 20590. Any comments that FMCSA receives which are not 
specifically designated as CBI will be placed in the public docket for 
this rulemaking.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this 
preamble as being available in the docket, go to http://www.regulations.gov/#!docketDetail;D=FMCSA-2018-0348

[[Page 74910]]

and choose the document to review. If you do not have access to the 
internet, you may view the docket online by visiting Dockets Operations 
in Room W12-140 on the ground floor of the DOT West Building, 1200 New 
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. To be sure someone is 
there to help you, please call (202) 366-9317 or (202) 366-9826 before 
visiting Dockets Operations.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice DOT/ALL-14 FDMS, which can be reviewed at https://www.transportation.gov/privacy.

II. Executive Summary

Purpose of the Regulatory Action

    Congress defined ``agricultural commodity'' as ``any agricultural 
commodity, non-processed food, feed, fiber, or livestock (including 
livestock as defined in [7 U.S.C. 1471] and insects.)'' The existing 
regulatory text in 49 CFR 395.2 adopts, without substantive change, the 
statutory definition of ``agricultural commodity.'' Currently, under 
Federal statute and regulation, commercial motor vehicle (CMV) drivers 
transporting agricultural commodities from the source of the 
commodities to a location within 150 air miles of the source, during 
harvest and planting seasons as defined by each State, are exempt from 
the HOS requirements (49 CFR 395.1(k)(1)). Furthermore, Sec.  395.1(v) 
exempts drivers transporting livestock in interstate commerce from the 
30-minute rest break requirement while the livestock are on the CMV. 
The definition of ``livestock'' in Sec.  395.2 restates the definition 
in sec. 602 of the Emergency Livestock Feed Assistance Act of 1988 (the 
1988 Act), as amended in 7 U.S.C. 1471.
    In July 2019, FMCSA published an Advance Notice of Proposed 
Rulemaking (ANPRM) requesting assistance from stakeholders in 
determining whether, and to what extent, the Agency should clarify key 
terms used in the definition of ``agricultural commodity'' in Sec.  
395.2 (84 FR 36559 (July 29, 2019)). The Agency, noted, for example, 
that broad terms such as ``any agricultural commodity'' are subject to 
multiple interpretations, and have led to inconsistent application of 
the HOS exemption in Sec.  395.1(k)(1). Based on comments to the ANPRM, 
discussed further below, as well as ongoing inquiries from the State 
enforcement partners, FMCSA codifies its interpretation of the meaning 
of the following terms in Sec.  395.2: ``any agricultural commodity,'' 
``non-processed food,'' and ``livestock.'' The purpose of the 
definitional clarifications is to ensure that the HOS exemptions in 
Sec. Sec.  395.1(k)(1) and 395.1(v) are consistently understood and 
enforced. The definitional clarifications may affect the extent to 
which the HOS exemptions apply to transporters of certain agricultural 
commodities, including livestock. For reasons identified below, FMCSA 
currently does not have sufficient information to estimate the 
quantitative impact of these clarifications on carriers or drivers who 
use the exemptions or on the vehicle miles traveled (VMT). As discussed 
further below, the Agency asks stakeholders to address these issues 
when commenting on the impact of the IFR on their operations.

Benefits and Costs

    The ambiguity associated with the definitions of the exemptions in 
Sec. Sec.  395.1(k)(1) and 395.1(v) currently may be hindering 
consistent enforcement practices, thereby impacting business-related 
decisions for the hauling of agricultural commodities and livestock, 
resulting in unnecessary costs and disbenefits. By clarifying the 
definitions of ``agricultural commodity,'' ``non-processed food,'' and 
``livestock,'' the IFR will create a common understanding between 
FMCSA, motor carriers, drivers, and enforcement officials.
    While this rule merely clarifies an ambiguous definition without 
changing any substantive requirements, some regulated entities and 
enforcement officials may change their behavior in response to this 
rule. In theory, there are two groups of CMV drivers whose behavior may 
be impacted by this IFR: (1) Those to whom the definitions of 
``agricultural commodity,'' ``non-processed food,'' and ``livestock'' 
apply but who currently do not use an exemption due to the existing 
definitional ambiguity, and (2) those who currently use an exemption in 
Sec. Sec.  395.1(k)(1) or 395.1(v), and may no longer do so as a result 
of the clarifications. Drivers who use these exemptions as a result of 
the clarification provided in this interpretative rule may potentially 
realize cost savings, and those who no longer use an exemption as a 
result of this clarification may incur costs.
    The Agency does not collect information on the number of drivers 
currently using the agricultural commodity or livestock exemptions, nor 
do we know the extent to which State-based enforcement practices vary 
due to definitional ambiguity. There is uncertainty surrounding the 
number of drivers who are currently not utilizing an exemption due to 
definitional ambiguity and may therefore realize the associated cost 
savings as a result of this rule. The Agency does not, therefore, 
estimate quantitative impacts associated with this IFR, opting instead 
for a qualitative analysis. Specifically, FMCSA expects any increase in 
the number of exemptions used will be by transporters of perishable 
horticultural commodities, non-processed food, or livestock, including 
aquatic animals.

III. Legal Basis for the Rulemaking

    Section 204(a) of the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 
Stat. 543, 546, August 9, 1935), as codified at 49 U.S.C. 31502(b), 
authorizes the Secretary of Transportation (Secretary) to ``prescribe 
requirements for--(1) qualifications and maximum hours of service of 
employees of, and safety of operation and equipment of, a motor 
carrier; and (2) qualifications and maximum hours of service of 
employees of, and standards of equipment of, a motor private carrier, 
when needed to promote safety of operation.'' This IFR pertains to the 
maximum HOS of drivers transporting agricultural commodities by CMV.
    The Motor Carrier Safety Act of 1984 provides concurrent authority 
to regulate drivers, motor carriers, CMVs, and vehicle equipment. 
Section 206(a) of the Act (98 Stat. 2834), codified at 49 U.S.C. 
31136(a), grants the Secretary broad authority to issue regulations 
``on commercial motor vehicle safety.'' The regulations must ensure 
that ``(1) commercial motor vehicles are maintained, equipped, loaded, 
and operated safely; (2) the responsibilities imposed on operators of 
commercial motor vehicles do not impair their ability to operate the 
vehicles safely; (3) the physical condition of operators of commercial 
motor vehicles is adequate to enable them to operate the vehicles 
safely. . .; (4) the operation of commercial motor vehicles does not 
have a deleterious effect on the physical condition of the operators; 
and (5) an operator of a commercial motor vehicle is not coerced by a 
motor carrier, shipper, receiver, or transportation intermediary to 
operate a commercial motor vehicle in violation of a regulation 
promulgated under this

[[Page 74911]]

section, or chapter 51 or chapter 313 of this title.'' (49 U.S.C. 
31136(a)(1)-(5)).
    This IFR primarily addresses the safety of the vehicle and driver 
(49 U.S.C. 31136(a)(1)-(2)), and secondarily, the health of the driver 
(section 31136(a)(4)). This IFR does not directly address medical 
standards for drivers (section 31136(a)(3)). FMCSA does not anticipate 
that drivers would be coerced as a result of the proposed clarifying 
changes (section 31136(a)(5)).
    More specifically, this IFR is based on a statutory exemption from 
HOS requirements for CMV drivers transporting ``agricultural 
commodities . . . during planting and harvesting periods, as determined 
by each State.'' The exemption was initially enacted as Sec. 345(a)(1) 
of the National Highway System (NHS) Designation Act of 1995 (Pub. L. 
104-59, 109 Stat. 568, 613, November 28, 1995).
    Section 4115 of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Pub. L. 109-
59, 119 Stat. 1144, 1726, August 10, 2005) retroactively amended the 
Motor Carrier Safety Improvement Act of 1999 (MCSIA, Pub. L. 106-159, 
113 Stat. 1748, December 9, 1999) by transferring Sec. 345 to new Sec. 
229 of MCSIA (113 Stat. 1773). Section 4130 of SAFETEA-LU then revised 
section 229, as transferred by section 4115, mainly by adding 
definitions of ``agricultural commodity'' and ``farm supplies for 
agricultural purposes'' (119 Stat. 1743), as discussed further below. 
These definitions are codified at 49 CFR 395.2. Section 32101(d) of the 
Moving Ahead for Progress in the 21st Century Act (MAP-21, Pub. L. 112-
141, 126 Stat. 405, 778, July 6, 2012) revised section 229 again, 
mainly by expanding the 100 air-mile radius of the exemption to 150 air 
miles.
    The IFR is also based on a statutory exemption from the HOS 
requirement for a 30-minute rest break for CMV drivers transporting 
livestock in interstate commerce, set forth in section 5206(b)(1)(C) of 
the Fixing America's Surface Transportation Act (FAST Act, Pub. L. 114-
94, 129 Stat. 1312, 1537, December 4, 2015).
    Before prescribing any regulations, FMCSA must also consider the 
``costs and benefits'' of its proposal (49 U.S.C. 31136(c)(2)(A) and 
31502(d)).
    This IFR is consistent with DOT's regulations on rulemaking 
procedures set forth at 5 CFR part 5, subpart B. Specifically, the IFR 
embodies the regulatory policies that regulations should be 
straightforward and clear (49 CFR 5.5(d)) and that ``[o]nce issued, 
regulations and other agency actions should be reviewed periodically 
and revised to ensure that they continue to meet the needs they were 
designed to address and remain cost-effective and cost-justified'' (49 
CFR 5.5(h)). This IFR also complies with the requirements that final 
rules shall be written in plain and understandable English (49 CFR 
5.13(k)(3)(i)) and based on a reasonable and well-founded 
interpretation of relevant statutory text (49 CFR 5.13(k)(3)(ii)).
    The Administrator of FMCSA is delegated authority under 49 CFR 
1.87(f) and (i) to carry out the functions vested in the Secretary by 
49 U.S.C. chapters 311 and 315, respectively, as they relate to CMV 
operators, programs, and safety.

Prior Notice and Comment Not Required for Interpretative Rule

    The Administrative Procedure Act (APA) (Pub. L. 79-404, 60 Stat. 
237), codified at 5 U.S.C. 553, provides that notice and public comment 
procedures are not applicable to ``interpretative rules, general 
statements of policy, or rules of agency organization, procedure, or 
practice'' (5 U.S.C. 553(b)(A)). Furthermore, DOT's rulemaking 
procedures provide that prior notice and an opportunity for comment are 
not required for rules of interpretation (49 CFR 5.13(j)(1)(i)). The 
APA defines ``rule'' as ``the whole or part of an agency statement of 
general or particular applicability and future effect designed to 
implement, interpret, or prescribe law or policy'' (5 U.S.C. 551(4)) 
(emphasis added). The Attorney General's Manual on the Administrative 
Procedure Act further defines interpretative rules as ``rules or 
statements issued by an agency to advise the public of the agency's 
construction of the statutes and rules which it administers.'' \1\ 
Because this IFR is an interpretative rule within the meaning of the 
APA, prior notice and public comment are not required.
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    \1\ Attorney General's Manual on the Administrative Procedure 
Act (1947), at 30, n.3.
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    In determining whether a rule is ``legislative'' (and thus 
generally subject to the APA's notice and comment requirements) rather 
than ``interpretative,'' among the factors courts consider are whether, 
in the absence of a legislative rule, an agency has adequate basis for 
enforcement action; whether the rule leaves the agency with any 
discretion; and whether the rule repudiates or is irreconcilable with a 
prior legislative rule. Each of these factors is addressed briefly 
below.
    As explained below in Section V. Discussion of Interim Final Rule, 
the IFR clarifies the terms ``any agricultural commodity,'' ``non-
processed food,'' and ``livestock,'' currently included in the 
definition of ``agricultural commodity'' in 49 CFR 395.2. The IFR does 
not establish any new terms not already included in the existing 
statutory and regulatory definitions of ``agricultural commodity,'' and 
does not create any new rights or impose new regulatory burdens.\2\ Nor 
does the IFR expand the Agency's existing authority to enforce the 
exemptions set forth in 49 CFR 395.1(k) and (v); as noted in the Legal 
Basis discussion above, FMCSA currently has delegated authority to 
determine and enforce compliance with the exemptions.\3\ FMCSA codifies 
these definitional clarifications to promote more consistent 
understanding of existing terms so the exemptions are utilized and 
applied consistently. Because this IFR amends the regulatory text in 49 
CFR 395.2, the IFR has ``binding effect'' in the same sense that the 
existing definitions have binding effect. The Agency notes, however, 
the clarifications set forth in the IFR are inclusive rather than 
exclusive, and therefore permit the Agency continued discretion to 
determine whether the exemptions apply in specific circumstances \4\ as 
discussed further below in Section V. Lastly, the IFR does not 
contradict a prior legislative rule

[[Page 74912]]

simply by clarifying the meaning of current definitional terms.\5\
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    \2\ ``An interpretative rule simply states what the 
administrative agency thinks the [underlying] statute means, and 
only ```reminds' affected parties of existing duties.'' On the other 
hand, if by its action the agency intends to create new law, rights 
or duties, the rule is properly considered to be a legislative 
rule.'' General Motors Corp. v. Ruckelshaus, 742 F. 2d 1561, 1565 
(DC Cir. 1984) (final rule amending CFR by interpreting Clean Air 
Act provision authorizing recall of all members of a non-conforming 
class was an interpretative rule not subject to prior notice and 
comment), quoting Citizens to Save Spencer County v. U.S. 
Environmental Protection Agency, et al., 600 F. 2d 844, 876 n. 153 
(DC Cir. 1979) (final rule by which EPA amended the CFR by 
incorporating and explaining the immediately effective ``prevention 
of significant deterioration'' requirements identified in the Clean 
Air Act was an interpretative not a legislative rule; notice and 
comment not required), quoting Pesikoff v. Secretary of Labor, 501 
F. 2d 757, 763, n. 12 (DC Cir. 1974).
    \3\ For example, on August 5, 2020 (85 FR 47565), FMCSA denied 
as moot the application of Turfgrass Producers International to 
extend the HOS exemption in 49 CFR 395.1(k) to CMV drivers 
transporting turfgrass sod. The Agency determined that, because sod 
falls within the current definition of ``agricultural commodity'' in 
49 CFR 395.2, transporters of sod are already eligible for the 
exemption.
    \4\ ``[A]n action is not a [legislative] rule if it leaves the 
agency and its decision-makers free to exercise discretion.'' 
Patriot, Inc. v. U.S. Dept. of Housing and Urban Development, 963 F. 
Supp. 1, 4 (D.D.C. 1997), citing American Bus Association v. United 
States, 627 F. 2d 525, 529 (DC Cir. 1980).
    \5\ ``A rule does not. . .become an amendment [to a prior 
legislative rule] merely because it supplies crisper and more 
detailed lines than the authority being interpreted.'' American Min. 
Congress v. Mine Safety & Health Admin., 995 F. 2d 1106, 1112 (D.C. 
Cir. 1993).
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    This IFR includes a 30-day post-publication comment period, and the 
Agency seeks input on specified issues. FMCSA will consider and address 
submitted comments in the final rule that will follow this IFR and may 
make changes to the rule in response to comments received.
    In accordance with 5 U.S.C. 553(d)(2), this IFR will become 
effective less than 30 days after publication. As noted above, the 
effective date is December 9, 2020.

IV. Background

A. HOS Regulations

    The HOS regulations, as set forth in 49 CFR part 395, limit 
property-carrying CMV drivers to 11 hours of driving time within a 14-
hour period after coming on duty following 10 consecutive hours off 
duty. On June 1, 2020, the FMCSA published a final rule updating the 
HOS regulations for CMV drivers [85 FR 33396]. The rule, effective on 
September 29, 2020, revises the HOS requirements to provide greater 
flexibility for drivers without adversely affecting safety. The Agency 
expanded the short-haul exception to 150 air-miles and allows a 14-hour 
work shift to take place as part of the exception.
    Under the HOS regulations, drivers may not drive after accumulating 
60 hours of on-duty time in any 7 consecutive days, or 70 hours in any 
8 consecutive days. Generally, drivers of property-carrying CMVs may 
restart the 60- or 70-hour clock by taking 34 consecutive hours off 
duty. As discussed further below, the time spent transporting an 
agricultural commodity within the 150 air-mile radius from the source 
does not count against the limits on maximum driving. On-duty time does 
not apply during harvest and planting periods, as determined by each 
State, to drivers transporting agricultural commodities (and farm 
supplies for agricultural purposes) from the source of the commodities 
to a location within a 150 air-mile radius of the source. In addition, 
the 30-minute rest break requirement does not apply, even outside of 
the 150-air-mile radius, to CMV drivers transporting livestock while 
the livestock are on the vehicle.

B. June 2018 Regulatory Guidance--Application of the 150 Air-Mile HOS 
Exemption

    On June 7, 2018, FMCSA issued regulatory guidance on the 
transportation of agricultural commodities as defined in Sec.  395.2 
(83 FR 26374). The guidance addressed various issues related to the 
statutory term ``source of the commodities,'' but it did not directly 
address the scope or meaning of the term ``agricultural commodity.'' 
Specifically, the June 2018 guidance addressed: Drivers operating 
unladen CMVs en route to pick up an agricultural commodity or returning 
from a delivery point; drivers engaged in trips beyond the 150 air 
miles of the source of the commodity; determining the ``source'' of 
agricultural commodities for purposes of the exemption; and how the 
exemption applies when agricultural commodities are loaded at multiple 
sources during a trip.

C. Statutory/Regulatory Definitions of ``Agricultural Commodity'' and 
``Livestock''

    As noted above in Section III. Legal Basis for the Rulemaking, 
Congress initially adopted the HOS exemption for the transportation of 
agricultural commodities, during harvesting and planting seasons as 
defined by each State, in 1995 as part of the NHS Designation Act. 
Congress did not, however, define the term ``agricultural commodities'' 
at that time. The Agency added, verbatim, the statutory exemption to 
its HOS regulations (61 FR 14677, April 3, 1996). In 2005, as part of 
SAFETEA-LU, Congress adopted the current definition of agricultural 
commodity: ``The term `agricultural commodity' means any agricultural 
commodity, food, feed, fiber, or livestock (including livestock as 
defined in sec. 602 of the Emergency Livestock Feed Assistance Act of 
1988 [7 U.S.C. 1471] and insects), and any product thereof.''
    The Agency subsequently added this statutory definition of 
``agricultural commodity,'' verbatim, to Sec.  395.2 (72 FR 36760, July 
5, 2007). At that time, section 602 of the 1988 Act, cross-referenced 
in the SAFETEA-LU definition of ``agricultural commodity,'' defined 
``livestock'' as ``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, as amended.''
    On July 22, 2016, the Agency amended Sec.  395.2 by adding a free-
standing definition for the term ``livestock,'' which restated, without 
substantive change, the definition of livestock set forth in the 1988 
Act, referenced above (81 FR 47721). The addition of a separate 
definition of the term ``livestock'' to Sec.  395.2 was part of FMCSA's 
final rule implementing certain requirements of the FAST Act. Section 
5206(b)(1)(C) of the FAST Act made permanent a regulatory exemption \6\ 
from the 30-minute rest break required under the HOS regulations (Sec.  
395.3(a)(3)(ii)), for drivers transporting livestock. The 2016 final 
rule implemented this FAST Act requirement by adding new Sec.  
395.1(v).
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    \6\ On June 12, 2015, FMCSA renewed an exemption, granted to the 
Agricultural and Food Transporters Conference of the American 
Trucking Associations, from the 30-minute rest break provision of 
the HOS regulations for CMV drivers transporting livestock (80 FR 
33584). The Agency granted and renewed the exemption to protect the 
health and safety of livestock during interstate transportation by 
CMV. The exemption applied only during the transportation of 
livestock, as defined in the 1988 Act, and did not cover the 
operation of the CMV after livestock are unloaded from the vehicle.
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    In section 12104 of the Agricultural Improvement Act of 2018 (2018 
farm bill, Pub. L. 115-334, 132 Stat. 4490, December 20, 2018), 
Congress amended the definition of ``livestock'' in the 1988 Act by 
removing the term ``fish used for food'' and adding ``llamas, alpacas, 
live fish, crawfish, and other animals that'' to the phrase ``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 Act of 1988].'' The 2018 farm bill also 
removed the Secretary of Agriculture's discretion to designate animals 
as livestock in addition to those specifically listed in the statute. 
On September 30, 2019, FMCSA conformed the text of the definition of 
``livestock'' in Sec.  395.2 to the change made to the 1988 Act by the 
2018 farm bill (84 FR 51427, 51430). The Agency's conforming change 
added llamas, alpacas, live fish and crawfish, and deleted the term 
``fish used for food,'' and removed the reference to the Secretary of 
Agriculture's discretion to designate additional animals.

D. 2019 ANPRM Regarding Definitions of ``Agricultural Commodity'' and 
``Livestock''

    As noted above, in July 2019, FMCSA issued an ANPRM requesting 
input from stakeholders in determining how the Agency could clarify the 
definitions of

[[Page 74913]]

the terms ``agricultural commodity'' or ``livestock'' in the HOS 
regulations, while remaining consistent with the underlying statutory 
requirement for a limited exemption from the HOS requirements for CMV 
drivers transporting these commodities. The ANPRM posed questions 
specifically addressing the need for FMCSA to clarify the current 
definitions of the terms ``agricultural commodity'' or ``livestock'' in 
Sec.  395.2, and the benefits and costs of clarifying or revising these 
definitions, including related impacts on highway safety. Additionally, 
FMCSA requested comment on the extent to which the current definitions 
(as understood or applied) conflict, or are otherwise inconsistent, 
with regulations administered by the U.S. Department of Agriculture 
(USDA), such as the Perishable Agricultural Commodities Act (PACA) (7 
U.S.C. 449a(1)).
    The Agency received 140 comments in response to the ANPRM.\7\ 
Commenters represented the following industries/organizational types: 
12 commenters represented State agricultural bureaus; six from State 
agricultural trade associations; eight represented haulers of sod; 10 
represented private-sector agricultural trade associations; two were 
from trucking associations; one from a trade safety organization; 
another represented a private company; and 100 others responded as 
individual commenters.
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    \7\ The comments may be accessed at https://www.regulations.gov/docket?D=FMCSA-2018-0348.
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    In the ANPRM, FMCSA asked how specific commodities, such as sod or 
other types of horticulture, fit within the definition of the term 
``any agricultural commodity.''
    Nearly half of the comments addressed Question 1, which asked 
whether specific products, such as sod or other types of horticulture, 
should be included in the definition of ``agricultural commodity.'' 
Commenters stated that various forms of horticulture, such as flowers, 
shrubs, sod, and Christmas trees, are agricultural commodities and 
that, due to the risk of perishability in transit, drivers transporting 
these products should be eligible for the HOS exemption in Sec.  
395.1(k)(1). Most commenters opposed including a finite list of types 
of agricultural commodities as part of the definition in Sec.  395.2, 
though some favored cross-referencing the list of ``perishable'' 
commodities recognized by USDA under the PACA regulations.
    The Agency received no information concerning the average and 
maximum length of trip for specific agricultural commodities, as 
requested in Question 5. Question 5 also asked whether the definition 
of ``livestock'' should include specific animals in addition to those 
already identified in the 1988 Act (including those added by the 2018 
farm bill). While some commenters supported the idea of including a 
finite list of animals in the definition of ``livestock'' (in addition 
to the species already identified in the 1988 Act, as amended), most 
who addressed this issue said that FMCSA should interpret the term 
comprehensively to include all living animals. The Agency received 
limited response to question 10, concerning a motor carrier's exposure 
to financial liability resulting directly from a driver's compliance 
with the HOS regulations.
    Several commenters noted that confusion caused by the current 
definition of ``agricultural commodity'' impacts safety by undermining 
uniformity of enforcement and the underlying safety benefits of the HOS 
regulations. One commenter suggested that FMCSA adopt a more specific 
definition of the term, but not in a way that could adversely impact 
safety by increasing the number of drivers eligible for the HOS 
exemption in Sec.  395.1(k)(1). FMCSA notes that additional comments to 
the ANPRM, addressing specific aspects of the terms the Agency 
clarifies, are discussed below.

V. Discussion of Interim Final Rule

    Based on issues raised by commenters to the ANPRM, summarized 
above, as well as ongoing inquiries from FMCSA's State partners who 
enforce State HOS requirements compatible with the Federal rules, the 
Agency concludes that the definitions of ``agricultural commodity'' and 
``livestock,'' as used in Sec.  395.2, are not uniformly understood 
among stakeholders. To facilitate more consistent understanding of 
these terms, and therefore more consistent enforcement of the HOS 
exemption in Sec.  395.1(k)(1) and the 30-minute rest break exemption 
in Sec.  395.1(v), FMCSA codifies its interpretation of their meaning. 
The Agency notes that the current regulatory definitions of 
``agricultural commodity'' and ``livestock,'' restate, without 
substantive change, the text of the underlying statutes identified 
above. The Agency's interpretation of these terms does not 
fundamentally alter that statutory framework.
    As noted above, Congress adopted the current definition of 
``agricultural commodity'' in 2005, as currently restated in Sec.  
395.2: ``Agricultural commodity means any agricultural commodity, non-
processed food, feed, fiber, or livestock (including livestock as 
defined in sec. 602 of the Emergency Livestock Feed Assistance Act of 
1988 [7 U.S.C. 1471] and insects).'' The Agency notes that, in setting 
forth this statutory definition, Congress drew from existing references 
in Title 7 (Agriculture) of the United States Code (U.S.C.): (1) The 
Agricultural Trade Act of 1978 (7 U.S.C. 5602); \8\ and (2) the Act of 
1988 (7 U.S.C. 1471(2)). In seeking to clarify the meaning of three key 
terms used in the definition of ``agricultural commodity,'' FMCSA also 
looks to Title 7 for guidance, as discussed below.
---------------------------------------------------------------------------

    \8\ The Agricultural Trade Act of 1978 defines ``agricultural 
commodity'' as ``any agricultural commodity, food, feed, fiber, or 
livestock (including livestock as it is defined in [the Act of 
1988]) and any product thereof'' (emphasis added). Congress, when 
adopting the definition of ``agricultural commodity'' in 2005 (119 
Stat. 1743), to be used in applying the HOS exemption, inserted the 
phrase ``non-processed'' before ``food,'' and did not include the 
phrase ``and any product thereof.''
---------------------------------------------------------------------------

A. ``Any Agricultural Commodity''

    In Sec.  395.2, ``agricultural commodity'' is defined, in part, as 
``any agricultural commodity.'' As noted in the ANPRM, this definition 
is ambiguous. On one hand, the term ``any agricultural commodity'' is 
broad. On the other hand, the term must be understood and interpreted 
within the context of the HOS requirements, which are intended to 
prevent CMV-involved crashes caused by driver fatigue due to working 
long hours. The exemption in Sec.  395.1(k)(1), which allows additional 
driving and working hours for drivers transporting agricultural 
commodities, is intended to facilitate timely delivery of agricultural 
commodities during State-defined harvest and planting seasons. Because 
the statute includes the term ``any agricultural commodity,'' in the 
definition of ``agricultural commodity,'' the most direct reading of 
the statute is that the definition also covers agricultural products 
not otherwise considered to be ``non-processed food, feed, fiber, or 
livestock.'' \9\ The IFR therefore clarifies the meaning of ``any 
agricultural commodity'' when determining whether a driver is eligible 
for the HOS exemption in Sec.  395.1(k)(1).
---------------------------------------------------------------------------

    \9\ A well-established canon of construction favors an 
interpretation that avoids rendering any statutory phrase or clause 
as ``surplusage.'' See Freeman v. Quicken Loans, Inc., 566 U.S. 624, 
636 (2012).
---------------------------------------------------------------------------

    In the ANPRM, FMCSA asked how specific commodities, such as sod or 
other types of horticulture, fit within the definition of the term 
``any agricultural commodity.'' Most commenters addressing this 
question urged FMCSA to clarify that perishable horticultural products 
are included in the definition

[[Page 74914]]

of ``any agricultural commodity.'' A number of commenters provided 
documentation that horticultural products not used for food or feed, 
and not sources of fiber, are nevertheless defined or considered as 
agricultural commodities in various statutes and programs administered 
by USDA, as well as by other Federal agencies (e.g., the Internal 
Revenue Service, the Environmental Protection Agency). The New Jersey 
Department of Agriculture stated, for example, that ``sod is defined as 
an agricultural product by State Departments of Agriculture across the 
country, including the New Jersey Department of Agriculture.''
    In addition, some commenters provided information, as requested in 
the ANPRM, addressing the perishability, or degradation in quality, of 
certain horticultural products during transport by CMV. They explained 
the impact of post-harvest transportation on factors that determine 
plant health, such as temperature, exposure to light, and humidity 
levels. Industry groups noted that plant health largely dictates the 
commercial value of these products. According to the University of 
Georgia's College of Agriculture & Environmental Science, Department of 
Horticulture (the University), although certain horticultural products, 
such as ornamental plants, are typically transported in a refrigerated 
environment, reducing the temperature in the cargo container does not 
prevent damage to plant tissue caused by the release of ethylene, it 
merely slows that process. The University concluded that ``[l]ive 
plants must be transported as quickly as possible from the producer to 
the consumer to mitigate damage.'' The Agency also heard from industry 
groups documenting the importance of transporting and laying sod within 
24 hours of harvest to ensure ``quality establishment.''
    The IFR clarifies that horticultural products subject to 
perishability or significant degradation in product quality during 
transport by CMV fall within the meaning of ``any agricultural 
commodity,'' as the term is used in the definition of ``agricultural 
commodity'' in Sec.  395.2. For example, the Agency considers plants, 
including sod, flowers, ornamentals, seedlings, shrubs, live trees, and 
Christmas trees, within the scope of the definition. The definition 
does not include those horticultural products which are not sensitive 
to temperature and climate and do not risk perishability while in 
transit, such as timber harvested for lumber, or wood pulp or related 
products. FMCSA invites comment on whether this clarification, i.e., 
``horticultural products subject to perishability or significant 
degradation in product quality during transport by CMV,'' sufficiently 
delineates which products fall within the definition of ``any 
agricultural commodity'' for purposes of the exemption in Sec.  
395.1(k)(1).
    Additionally, the Agency requests assistance in determining the 
number of CMV drivers transporting perishable horticultural commodities 
who currently use the exemption in Sec.  395.1(k); the extent to which 
that number would be higher or lower as a result of the clarification; 
and the average and maximum times CMV drivers travel when transporting 
specific perishable horticultural commodities, as described above.

B. ``Non-Processed Food''

    The ANPRM requested comment on how the term ``non-processed'' as 
used in the definition of ``agricultural commodity'' in Sec.  395.2, is 
currently understood and applied.
    All commenters who addressed this issue stated or implied that, in 
their understanding, ``non-processed'' modifies only the term ``food'' 
and does not modify ``feed, fiber, or livestock.'' The Agency agrees 
with this interpretation, and with commenters who noted that, as a 
matter of grammatical construction, the placement of a comma after 
``non-processed food'' separates it from the other items listed.
    The ANPRM also asked commenters to address the distinction between 
``processed'' and ``non-processed,'' and requested specific examples of 
``non-processed'' products. In response, some commenters noted 
confusion and inconsistency among State enforcement personnel 
concerning the extent to which certain types of ``processing'' render a 
food commodity to be considered ``processed'' instead of ``non-
processed.'' For example, in some areas fresh fruits or vegetables are 
considered ``processed'' if they are bagged or cut (e.g., cut and 
bagged lettuce) while in other locations, commodities subject to this 
type of minimal processing are deemed ``non-processed'' for the purpose 
of applying the HOS exemption.
    In the ANPRM, FMCSA noted that USDA statutes and regulations define 
``agricultural commodity'' in a variety of ways, depending on the 
underlying statutory framework. We asked whether transporters subject 
to both the HOS and USDA regulations, such as PACA,\10\ are impacted by 
not having consistent definitions of the term ``agricultural 
commodity.'' FMCSA also asked whether specific food commodities, such 
as fresh fruits and vegetables (in non-frozen form) individually 
identified in the PACA regulations, should be added to the definition 
of ``agricultural commodity'' in Sec.  395.2. Most commenters who 
responded to these questions believed FMCSA should identify the 
categories of non-processed food included in the definition, rather 
than adopt, or incorporate by reference, a specific list of fruits and 
vegetables and other non-processed food commodities.
---------------------------------------------------------------------------

    \10\ The Perishable Agricultural Commodities Act (``PACA''), 7 
U.S.C. 499a-499t, was enacted in 1930 to regulate the marketing of 
fresh and frozen fruits and vegetables by establishing and enforcing 
a code of fair business practices and by helping companies resolve 
business disputes. The primary purposes of the PACA are to prevent 
unfair and fraudulent conduct in the marketing and selling of these 
commodities in interstate and foreign commerce. The PACA 
regulations, set forth in 7 CFR part 46, are administered by the 
Agricultural Marketing Service, an agency within USDA.
---------------------------------------------------------------------------

    When considering this issue, FMCSA relied on the relevant statutory 
limitations: To use the HOS exemption in Sec.  395.1(k)(1), the CMV 
driver must be transporting non-processed food products; and the 
transportation must occur within planting and harvesting seasons, as 
defined by each State. Harvest denotes the time of year that a crop is 
ripe, ready, and needs to be gathered or reaped, to avoid losses in 
quality and commercial value; the exemption is thus intended to 
accommodate the transportation of ``harvested'' food commodities. In 
keeping with the statutory parameters noted above, the Agency clarifies 
that ``non-processed food'' means food commodities in a raw or natural 
state and not subjected to significant post-harvest changes to enhance 
shelf life. For definitional purposes, it is difficult to determine 
precisely the point at which food commodities are no longer ``non-
processed'' within the meaning of the exemption; indeed, that point may 
vary depending on the nature of the food product. Therefore, some 
degree of enforcement discretion must be expected in determining 
whether the exemption applies to CMV drivers transporting these 
products.
    The guiding principle here is whether the product has been 
processed to the point that it loses its original post-harvest identity 
and becomes a different item. Accordingly, FMCSA clarifies that ``non-
processed food,'' as the term is used in Sec.  395.2, includes fruits, 
vegetables, and cereal and oilseed crops which have been minimally 
processed by cleaning, cooling, trimming, cutting, shucking, chopping, 
bagging, or

[[Page 74915]]

packaging to facilitate transport by CMV. Products subject to post-
harvest changes, such as jarring, canning, drying, or freezing, are not 
``non-processed food.'' This clarification is consistent with FMCSA's 
regulatory guidance addressing application of the 150 air-mile 
exemption in Sec.  395.1(k)(1), in which the Agency noted that a 
``source'' of the commodity may be an intermediate storage or handling 
location away from the farm or field, ``provided the commodity retains 
its original form and is not significantly changed by any processing or 
packing.'' \11\
---------------------------------------------------------------------------

    \11\ 83 FR 26374, 26376 (June 7, 2018) (emphasis added).
---------------------------------------------------------------------------

    The Agency's interpretation of the term ``non-processed food'' is 
also generally consistent with the definition of fresh fruits and 
vegetables in the PACA regulations, except that frozen fruits and 
vegetables do not fall within the definition of ``non-processed food'' 
\12\ described above. Accordingly, drivers transporting non-frozen 
fresh fruits and vegetables subject to the PACA regulations in 7 CFR 
part 46 are eligible for the exemption in Sec.  395.1(k)(1), as long as 
the fruits and vegetables are ``non-processed food'' within the meaning 
of Sec.  395.2.
---------------------------------------------------------------------------

    \12\ The PACA regulations define fresh fruits and vegetables, in 
part, as ``all produce in fresh form generally considered as 
perishable fruits and vegetables, whether or not packed in ice or 
held in common or cold storage, but does not include those 
perishable fruits and vegetables which have been manufactured into 
articles of food of a different kind or character.'' (7 CFR 
46.2(u).) As FMCSA noted in the ANPRM, ``because frozen fruits and 
vegetables are processed and packaged, Congress did not intend to 
include frozen commodities within the scope of the definition [of 
`agricultural commodity'] as codified in Sec.  395.2'' (84 FR 36559, 
36562, July 29, 2019).
---------------------------------------------------------------------------

    The Agency requests comment on whether the clarification will 
result in more consistent application of the HOS exemption for drivers 
transporting ``non-processed food.'' If not, how could the meaning of 
the term be further clarified? FMCSA also seeks qualitative and 
quantitative data to determine whether the clarification will affect 
the number of CMV drivers transporting ``non-processed food'' who would 
use the HOS exemption in Sec.  395.1(k)(1), and the average and maximum 
travel times when transporting ``non-processed food,'' as described 
above.

C. ``Livestock''

    As previously discussed, the definition of ``livestock'' in Sec.  
395.2 restates, without substantive change the current definition of 
the term in Sec. 602 of the 1988 Act, as amended by the 2018 farm bill: 
``Livestock means cattle, elk, reindeer, bison, horses, deer, sheep, 
goats, swine, poultry (including egg-producing poultry), llamas, 
alpacas, live fish, crawfish, and other animals 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 Emergency Livestock Feed Assistance Act of 1988, as 
amended.''
    In the ANPRM, FMCSA noted that the definition of the term 
``livestock,'' as used in the statutory definition of ``agricultural 
commodity'' and restated in Sec.  395.2, includes, but is not limited 
to, the animals identified in the 1988 Act. In other words, when 
Congress adopted the statutory definition of ``agricultural commodity'' 
in 2005, it set a definitional floor for the term ``livestock'' by 
including the animals identified in the 1988 Act but did not limit the 
term only to those animals. Accordingly, FMCSA asked whether other 
animals, including aquatic animals, should be included within the 
definition of ``livestock'' in Sec.  395.2. Most commenters who 
responded to this question supported the inclusion of aquatic animals, 
and rather than recommending additional species, suggested that all 
living animals be included in the definition of ``livestock.''
    The Agency notes the HOS exemptions in Sec.  395.1(k)(1) and the 
30-minute rest break exemption in Sec.  395.1(v) recognize that live 
animals being transported in a CMV are a unique form of cargo, subject 
to distinct health and safety risks while in transit. Considering the 
expansive list of animals included in the definition of ``livestock'' 
in the 1988 Act, and the inclusive use of the term ``livestock'' in the 
statutory definition of ``agricultural commodity,'' codified in Sec.  
395.2, the most direct reading of the statute is that the exemptions be 
broadly applied when livestock are being transported. The Agency 
therefore interprets the term to include all living animals cultivated, 
grown, or raised for commercial purposes, including aquatic animals, in 
addition to those animals already identified in the 1988 Act, and 
amends the definition ``livestock'' in Sec.  395.2 accordingly. Because 
the current list of animals in the 1988 Act already includes most 
animals likely to be transported by CMV, FMCSA anticipates that the 
revised definition will only minimally increase the number of CMV 
drivers using the exemptions, if at all. The Agency requests comment on 
this issue, particularly regarding the number of drivers transporting 
aquatic animals, including live shellfish, and as previously noted 
``crawfish,'' and their average and maximum travel times.

VI. Questions

    When submitting comments, the Agency requests that commenters 
number their responses to correspond with the questions as stated 
below.
    1. Will the clarifications of the terms ``any agricultural 
commodity,'' ``non-processed food,'' and ``livestock'' result in more 
consistent application of the HOS exemptions in Sec. Sec.  395.1(k)(1) 
and 395.1(v)? Why or why not? Please address each term separately when 
answering this question.
    2. Will the clarifications impact the number of drivers who would 
use the exemptions in Sec.  395.1(k)(1) or 395.1(v)? If so, how and to 
what extent? For example, how, if at all, will including all living 
animals cultivated, grown, or raised for commercial purposes, including 
aquatic animals, within the definition of ``livestock'' impact the 
number of drivers? Please provide data to support your answer.
    3. Will any of the clarifications result in higher or lower costs 
for the transportation of agricultural commodities and livestock? 
Please provide data to support your answer.
    4. Will any of the clarifications result in other benefits to 
stakeholders, including consumers and State enforcement personnel? 
Please explain your answer by providing specific examples.

VII. International Impacts

    The FMCSRs, and any exceptions to the FMCSRs, apply only within the 
United States (and, in some cases, United States territories). Motor 
carriers and drivers are subject to the laws and regulations of the 
countries in which they operate, unless an international agreement 
states otherwise. Drivers and carriers should be aware of the 
regulatory differences among nations in which they operate. Canada- and 
Mexico-domiciled drivers must ensure compliance with U.S. HOS 
requirements while they are driving in the U.S.
    A driver domiciled in the United States may comply with the 
Canadian hours of service regulations while driving in Canada. Upon re-
entering the United States, however, the driver is subject to all the 
requirements of Part 395, including the 11- and 14-hour rules, and the 
60- or 70-hour rules applicable to the previous 7 or 8 consecutive 
days. In other words, a driver who takes full advantage of Canadian 
requirements may have to stop driving for a time immediately after 
returning to the U.S. to restore

[[Page 74916]]

compliance with Part 395. Despite its possible effect on decisions a 
U.S. driver must make while in Canada, this interpretation does not 
involve an exercise of extraterritorial jurisdiction (62 FR 16379, 
16424 (Apr. 4, 1997)).
    Currently, under Federal statute and regulation, CMV drivers 
transporting agricultural commodities from the source of the 
commodities to a location within 150 air miles of the source, during 
harvest and planting seasons as defined by each State, are exempt from 
the HOS requirements (49 CFR 395.1(k)(1)). Furthermore, Sec.  395.1(v) 
exempts drivers transporting livestock in interstate commerce from the 
required 30-minute rest break requirement while the livestock are on 
the CMV.

VIII. Section-by-Section Analysis

    FMCSA amends 49 CFR part 395 by revising the definition of 
``agricultural commodity'' in Sec.  395.2 by: (1) Deleting the 
parenthetical phrase after the word ``livestock'' and adding in its 
place the following: ``as defined in this section.''; and (2) adding to 
the end of the definition of ``agricultural commodity'' the following: 
``As used in this definition, the term `any agricultural commodity' 
means horticultural products at risk of perishing, or degrading in 
quality, during transport by commercial motor vehicle, including 
plants, sod, flowers, shrubs, ornamentals, seedlings, live trees, and 
Christmas trees.''
    FMCSA amends the definition of ``livestock'' in Sec.  395.2 by 
deleting all text that appears after ``livestock means'' and adding in 
its place the following: ``livestock as defined in sec. 602 of the 
Emergency Livestock Feed Assistance Act of 1988 [7 U.S.C. 1471], as 
amended, insects, and all other living animals cultivated, grown, or 
raised for commercial purposes, including aquatic animals.''
    FMCSA adds the term ``non-processed food'' to Sec.  395.2, to be 
defined as follows: ``Non-processed food means food commodities in a 
raw or natural state and not subjected to significant post-harvest 
changes to enhance shelf life, such as canning, jarring, freezing, or 
drying. The term `non-processed food' includes fresh fruits and 
vegetables, and cereal and oilseed crops which have been minimally 
processed by cleaning, cooling, trimming, cutting, chopping, shucking, 
bagging, or packaging to facilitate transport by commercial motor 
vehicle.''

IX. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), and DOT Regulations

    OIRA has determined this rulemaking is a significant regulatory 
action under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory 
Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 
21, 2011), Improving Regulation and Regulatory Review. This IFR is also 
significant within the meaning of DOT regulations (49 CFR 5.13(a)) 
because of the substantial Congressional and public interest concerning 
the transportation of agricultural commodities, including livestock.
    Agriculture, food, and related industries contributed $1.053 
trillion to U.S. gross domestic product (GDP) in 2017, a 5.4 percent 
share. Output from farms contributed $132.8 billion of this sum--about 
1 percent of GDP. The overall contribution of the agriculture sector to 
GDP is larger than this because sectors related to agriculture--
forestry, fishing, and related activities; food, beverages, textiles, 
and leather products; food and beverage stores; and food service--rely 
on agricultural inputs in order to contribute added value to the 
economy.\13\ Truck transportation is an integral component of the 
supply chain for agricultural commodities and livestock, constituting 
the sole mode of transportation for 66.2 percent (715.9 million tons) 
of the 1,080.7 million tons of agricultural commodities and livestock 
transported annually as of 2012.\14\
---------------------------------------------------------------------------

    \13\ USDA Economic Research Service. ``Ag and Food Statistics: 
Charting the Essentials, Ag and Food Sectors and the Economy.'' 
https://www.ers.usda.gov/data-products/ag-and-food-statistics-
charting-the-essentials/ag-and-food-sectors-and-the-economy/
#:~:text=Agriculture%2C%20food%2C%20and%20related%20industries,about%
201%20percent%20of%20GDP (accessed June 12, 2020).
    \14\ Based on data from the 2012 Commodity Flow Survey (CFS), 
which is the most recent publication of the CFS for which data 
specific to mode of transportation by commodity are available. 
Available at: https://www.census.gov/library/publications/2015/econ/ec12tcf-us.html (accessed July 14, 2020).
---------------------------------------------------------------------------

    This IFR clarifies the definition of ``agricultural commodity'' to 
ensure carriers are aware that drivers transporting perishable 
horticultural commodities, non-processed food, or livestock, including 
aquatic animals, are eligible for the HOS exemptions in Sec. Sec.  
395.1(k)(1) and 395.1(v). The exemption in Sec.  395.1(k)(1), which 
allows additional driving and working hours for drivers transporting 
agricultural commodities, is intended to facilitate timely delivery of 
such commodities during State-defined harvest and planting seasons. 
Section 395.1(v), which exempts drivers transporting livestock in 
interstate commerce from the 30-minute rest break requirement, is 
intended to protect the health and welfare of live animals.
    This rule will help ensure that all affected entities understand 
how FMCSA interprets the terms ``agricultural commodity'' and 
``livestock,'' and how the Agency applies the exemptions when these 
commodities are transported by CMV. The clarifications could provide 
additional flexibility to transporters of certain commodities.
    Currently, during harvesting and planting seasons as determined by 
each State, drivers transporting agricultural commodities are exempt 
from the HOS requirements from the source of the commodities to a 
location within a 150 air-mile radius from the source. As noted above, 
the current definition in Sec.  395.2 states that an ``Agricultural 
commodity means any agricultural commodity, non-processed food, feed, 
fiber, or livestock . . . .'' Commenters to the ANPRM confirmed that 
broad terms such as ``any agricultural commodity'' are not consistently 
understood or applied. Differences in interpretation between regulated 
entities and enforcement officials may be hindering consistent 
enforcement practices, thereby impacting business-related decisions for 
the hauling of agricultural commodities and livestock. The IFR will 
create a common understanding between FMCSA, motor carriers, drivers, 
and enforcement officials.
    In theory, there are two groups of CMV drivers whose behavior will 
be affected by this IFR: (1) Those to whom the definitions of 
``agricultural commodity'' and ``livestock'' apply, but who currently 
do not use an exemption due to the existing definitional ambiguity; and 
(2) those who currently use an exemption in Sec. Sec.  395.1(k)(1) or 
395.1(v), and may no longer do so as a result of the definitional 
clarifications. There is uncertainty surrounding the number of drivers 
who are, or are not, currently utilizing an exemption due to the 
current definitional ambiguity, as FMCSA does not collect quantitative 
data on the use of these exemptions. The Agency does not, therefore, 
estimate quantitative impacts associated with this IFR, opting instead 
for a qualitative analysis. FMCSA relies on the Motor Carrier 
Management Information System (MCMIS) database

[[Page 74917]]

to obtain information on commercial motor carriers subject to the 
FMCSRs. While MCMIS does contain data on certain cargo classifications, 
it does not track individual cargo carried or hours traveled, nor 
whether cargo is transported during State-defined planting and 
harvesting seasons. Consequently, the Agency knows neither the degree 
to which CMV drivers are currently using the exemptions, nor the 
magnitude of the population that will be affected by this IFR. However, 
as noted above, the IFR clarifies that transporters of non-perishable 
horticultural commodities are not eligible for the exemption in Sec.  
395.1(k)(1). FMCSA is aware that at least one State includes ``wood 
chips'' within its definition of agricultural commodity, and several 
States categorize timber as an agricultural product. If these States 
currently permit transporters of those products to use the HOS 
exemption, they will no longer be permitted to do so under the IFR.
    The Agency assumes that drivers will elect to utilize an 
agricultural commodity exemption only if the cost impact to them is 
less than or equal to zero. Moreover, these changes will not require 
new forms of training for enforcement personnel, as the HOS exemptions 
for agricultural commodities and livestock currently exist. The Agency 
expects that the definitional clarifications set forth in this IFR will 
be communicated to FMCSA personnel and the Agency's State-based 
enforcement partners through existing means, such as policy updates and 
ongoing training.
    Though requested in the ANPRM, FMCSA did not receive relevant data 
related to average and maximum transportation times of specific 
commodities, nor did the Agency receive relevant information addressing 
financial liability resulting from HOS compliance. In Section VI. 
Questions, the Agency requests data on the number of drivers impacted 
by the clarifications.
    The rule could conceivably impact the number of drivers utilizing 
the exemptions; however, as noted above, the Agency does not collect 
data regarding the use of these exemptions, nor can we predict whether 
the number of drivers using the exemption would increase or decrease as 
a result of the clarifications. FMCSA requests information on this 
issue in Section VI.
    Congress, when enacting both exemptions, implicitly recognized the 
trade-off between the purpose of the HOS regulations--CMV safety--and 
other economic costs of transporting agricultural commodities and 
livestock by truck. On the one hand, the HOS requirements are intended 
to improve safety by preventing driver fatigue. On the other hand, 
there are certain circumstances, such as hauling live animals or 
transporting agricultural commodities during planting and harvesting 
seasons, where those requirements may pose significant additional 
costs. Congress determined that the exemptions, set forth in Sec. Sec.  
395.1(k)(1) and 395.1(v), are justified in these situations.
    The rule may provide consumers with access to agricultural 
commodities of higher quality. For example, as discussed above in 
Section V. Discussion of Interim Final Rule, some commenters described 
perishability, or degradation in quality, of certain horticultural 
products during transport by CMV. The effects of post-harvest 
transportation such as exposure to changes in temperature, light, and 
humidity levels can impact plant health. Plant health significantly 
affects the commercial value of these products, and reduced time in 
transit from the producer to the consumer helps to mitigate damage. The 
Agency sought input from the USDA regarding these potential benefits. 
USDA does not have a model with which to quantify these impacts, but, 
in informal discussions with FMCSA, USDA confirmed that incrementally 
shorter transit times generally improve the freshness, quality, 
nutrition, and safety of food, reduce weight loss for livestock, and 
enhance animal welfare. If producers choose to adjust their behavior 
based on reduced travel times resulting from this IFR, there may be 
benefits to consumers from having access to higher quality products on 
the market; there may also be disbenefits from additional usage of the 
exemption due to possible longer drive times or limited breaks.

B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

    This IFR is neither a regulatory nor deregulatory action under E.O. 
13771.

C. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
OIRA designated this rule as not a ``major rule,'' as defined by 5 
U.S.C. 804(2).\15\
---------------------------------------------------------------------------

    \15\ A ``major rule'' means any rule that the Administrator of 
Office of Information and Regulatory Affairs at the Office of 
Management and Budget finds has resulted in or is likely to result 
in (a) an annual effect on the economy of $100 million or more; (b) 
a major increase in costs or prices for consumers, individual 
industries, Federal agencies, State agencies, local government 
agencies, or geographic regions; or (c) significant adverse effects 
on competition, employment, investment, productivity, innovation, or 
on the ability of United States-based enterprises to compete with 
foreign-based enterprises in domestic and export markets (5 U.S.C. 
804(2)).
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D. Regulatory Flexibility Act (Small Entities)

    The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94 
Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 
857, March 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 
111-240, 124 Stat. 2504, September 27, 2010), requires Federal agencies 
to consider the effects of the regulatory action on small business and 
other small entities and to minimize any significant economic impact. 
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with 
populations of fewer than 50,000. In addition, the DOT policy requires 
an analysis of the impact of all regulations on small entities, and 
mandates that agencies strive to lessen any adverse effects on these 
businesses.
    FMCSA is not required to complete a regulatory flexibility 
analysis, because, as discussed earlier in Section III. Legal Basis, 
this IFR is an interpretative rule not subject to prior notice and 
comment under section 553(b)(A) of the APA.

E. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this IFR so that they can better evaluate its effects 
on themselves and participate in the rulemaking initiative. If the IFR 
will affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance; please consult the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights 
of small entities to regulatory enforcement

[[Page 74918]]

fairness and an explicit policy against retaliation for exercising 
these rights.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $168 million (which is the 
value equivalent of $100,000,000 in 1995, adjusted for inflation to 
2019 levels) or more in any one year. Though this IFR will not result 
in such an expenditure, the Agency does discuss the effects of this 
rule elsewhere in this preamble.

G. Paperwork Reduction Act

    This IFR does not call for any new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Part 395 of 
the Federal Motor Carrier Safety Regulations, ``Hours of Service of 
Drivers,'' requires drivers and motor carriers to collect, transmit and 
maintain information about driver daily activities. The part 395 ICR is 
assigned OMB Control Number 2126-0001. On July 31, 2019, OMB approved 
the Agency's estimate of 99.5 million burden hours as the annual IC 
burden of part 395. As explained earlier, there are two groups of CMV 
drivers whose behavior may change as a result of this IFR: (1) Those to 
whom the definitions of ``agricultural commodity'' and ``livestock'' 
apply, but who currently do not use an exemption due to the existing 
definitional ambiguity; and (2) those who currently use an exemption in 
Sec. Sec.  395.1(k)(1) or 395.1(v), and may no longer do so as a result 
of the definitional clarifications. Those in the former group could see 
a reduction in their paperwork burden under this IFR, and those in the 
latter group could see an increase in their paperwork burden. As FMCSA 
does not have data on the number of drivers using the exemptions, or 
the extent to which their behavior will change as a result of this IFR, 
the Agency is not estimating any changes to the paperwork burden at 
this time. FMCSA will be in a better position to estimate the use of 
these exemptions when the currently approved collection is renewed in 
2022.

H. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 
13132 if it has ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' FMCSA determined that this IFR does not have substantial 
direct costs on or for States, nor would it limit the policymaking 
discretion of States. Nothing in this document preempts any State law 
or regulation; the HOS requirements do not have preemptive effect. As 
set forth in 49 U.S.C. 31102, States and other political jurisdictions 
are eligible to participate in the Motor Carrier Safety Assistance 
Program, by, among other things, adopting and enforcing State 
regulations, that are compatible with Federal regulations on CMV 
safety, including the HOS requirements in part 395, and the safe 
transportation of hazardous materials. Therefore, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
Federalism Impact Statement.

I. Privacy

    The Consolidated Appropriations Act, 2005,\16\ requires the Agency 
to conduct a privacy impact assessment (PIA) of a regulation that will 
affect the privacy of individuals.
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    \16\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5 
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------

    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency which receives records contained in a system 
of records from a Federal agency for use in a matching program.
    The E-Government Act of 2002 \17\ requires Federal agencies to 
conduct a PIA for new or substantially changed technology that 
collects, maintains, or disseminates information in an identifiable 
form.
---------------------------------------------------------------------------

    \17\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 
17, 2002).
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    No new or substantially changed technology would collect, maintain, 
or disseminate information as a result of this rule. Accordingly, FMCSA 
has not conducted a PIA.
    In addition, the Agency submitted a Privacy Threshold Assessment to 
evaluate the risks and effects the IFR might have on collecting, 
storing, and sharing personally identifiable information. The DOT 
Privacy Office has determined that this rulemaking does not create 
privacy risk.

J. E.O. 13175 (Indian Tribal Governments)

    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

K. Environment

    FMCSA analyzed this IFR consistent with the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action 
is categorically excluded from further analysis and documentation in an 
environmental assessment or environmental impact statement under FMCSA 
Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph (6)(b). 
The Categorical Exclusion (CE) in paragraph (6)(b) relates to 
regulations which are editorial or procedural, such as those updating 
addresses or establishing application procedures, and procedures for 
acting on petitions for waivers, exemptions and reconsiderations, 
including technical or other minor amendments to existing FMCSA 
regulations. The requirements in this rule are covered by this CE, 
there are no extraordinary circumstances present, and this action does 
not have the potential to affect the quality of the environment 
significantly. The CE determination is available from the person listed 
under FOR FURTHER INFORMATION CONTACT.

List of Subjects in 49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping 
requirements.

    FMCSA amends 49 CFR chapter 3, part 395 as follows:

PART 395--HOURS OF SERVICE OF DRIVERS

0
1. The authority citation for part 395 continues to read as follows:

    Authority:  49 U.S.C. 504, 31133, 31136, 31137, 31502; sec. 113, 
Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-159 (as 
added and transferred by sec. 4115 and amended by secs. 4130-4132, 
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. 
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 
Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; 
sec. 5206(b), Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR 1.87.


0
2. Amending Sec.  395.2 by:
0
a. Revising the definitions of the terms ``Agricultural commodity'' and 
``Livestock'' and
0
b. Adding, in alphabetical order, a definition of ``Non-processed 
food.''
    The addition and revisions read as follows:


Sec.  395.2  Definitions.

* * * * *
    Agricultural commodity means:

[[Page 74919]]

    (1) Any agricultural commodity, non-processed food, feed, fiber, or 
livestock as defined in this section.
    (2) As used in this definition, the term ``any agricultural 
commodity'' means horticultural products at risk of perishing, or 
degrading in quality, during transport by commercial motor vehicle, 
including plants, sod, flowers, shrubs, ornamentals, seedlings, live 
trees, and Christmas trees.
* * * * *
    Livestock means livestock as defined in sec. 602 of the Emergency 
Livestock Feed Assistance Act of 1988 [7 U.S.C. 1471], as amended, 
insects, and all other living animals cultivated, grown, or raised for 
commercial purposes, including aquatic animals.
* * * * *
    Non-processed food means food commodities in a raw or natural state 
and not subjected to significant post-harvest changes to enhance shelf 
life, such as canning, jarring, freezing, or drying. The term ``non-
processed food'' includes fresh fruits and vegetables, and cereal and 
oilseed crops which have been minimally processed by cleaning, cooling, 
trimming, cutting, chopping, shucking, bagging, or packaging to 
facilitate transport by commercial motor vehicle.
* * * * *

    Issued under authority delegated in 49 CFR 1.87.
James W. Deck,
Deputy Administrator.
[FR Doc. 2020-25971 Filed 11-20-20; 4:15 pm]
BILLING CODE 4910-EX-P