[Federal Register Volume 87, Number 228 (Tuesday, November 29, 2022)]
[Notices]
[Pages 73390-73392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25999]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2018-0334]
Hours of Service of Drivers: National Cattlemen's Beef
Association; Livestock Marketing Association; American Farm Bureau
Federation; American Beekeeping Federation; American Honey Producers
Association; and National Aquaculture Association; Application for
Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; denial of application for
exemption.
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SUMMARY: FMCSA announces its decision to deny the joint application
from the National Cattlemen's Beef Association, Livestock Marketing
Association, American Farm Bureau Federation, American Beekeeping
Federation, American Honey Producers Association and National
Aquaculture Association for an exemption from certain provisions in the
hours-of-service (HOS) rules. The requested exemption was made on
behalf of drivers who transport livestock, insects, and aquatic
animals. The applicants requested approval for drivers, after 10
consecutive hours off duty, to drive through the 16th consecutive hour
after coming on duty, and to drive a total of 15 hours during that 16-
hour period. FMCSA analyzed the application and public comments and has
determined that the exemption would not achieve a level of safety that
is equivalent to, or greater than, the level that would be achieved
absent such exemption.
DATES: FMCSA denied the application for exemption on November 29, 2022.
ADDRESSES: You may submit comments identified by Federal Docket
Management System (FDMS) Number FMCSA-2018-0334 by any of the following
methods:
Federal eRulemaking Portal: www.regulations.gov. See the
Public Participation and Request for Comments section below for further
information.
Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m.
E.T., Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
Each submission must include the Agency name and the docket number
(FMCSA-2018-0334) for this notice. Note that DOT posts all comments
received without change to www.regulations.gov, including any personal
information included in a comment. Please see the Privacy heading
below.
Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time or visit Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., ET, 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.
Privacy: In accordance with 49 U.S.C. 31315(b), DOT solicits
comments from the public to better inform its exemption 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.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards, FMCSA, at (202) 366-2722 or by email at
[email protected]. If you have questions on viewing or
submitting material to the docket, contact Dockets Operations at (202)
366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
FMCSA encourages you to participate by submitting comments and
related materials.
Submitting Comments
If you submit a comment, please include the docket number for this
notice (FMCSA-2018-0334), indicate the specific section of this
document to which the comment applies, and provide a reason for
suggestions or recommendations. 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 the Agency can contact you if it has questions
regarding your submission.
To submit your comment online, go to www.regulations.gov and put
the docket number (``FMCSA-2018-0334'') in the
[[Page 73391]]
``Keyword'' box, and click ``Search.'' When the new screen appears,
click on the ``Comment'' button and type your comment into the text box
in 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 reached the facility, please enclose a stamped,
self-addressed postcard or envelope. FMCSA will consider all comments
and material received during the comment period.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant
exemptions from 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
provide an opportunity for public comment on the request.
The Agency reviews 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 Agency must
publish its decision in the Federal Register (49 CFR 381.315(b)) with
the reasons for denying or granting the application and, if granted,
the name of the person or class of persons receiving the exemption and
the regulatory provision from which the exemption is granted. The
notice must specify the effective period and explain the terms and
conditions of the exemption. The exemption may be renewed (49 CFR
381.300(b)).
III. Request for Exemption
The National Cattlemen's Beef Association, Livestock Marketing
Association, American Farm Bureau Federation, American Beekeeping
Federation, American Honey Producers Association and National
Aquaculture Association (applicants) submitted a joint exemption
application from 49 CFR 395.3(a)(2) and (a)(3). The exemption would
allow covered drivers, after taking 10 consecutive hours off duty, to
drive through the 16th consecutive hour after coming on duty, and to
drive a total of 15 hours during that 16-hour period. They note that
livestock haulers are currently permitted to operate in ``an exempt
zone within a radius of 150 air miles'' of the source of an
agricultural commodity (49 CFR 395.1(k)(1)). FMCSA's published
regulatory guidance provides that time spent working within the 150
air-mile radius does not count toward the driver's daily and weekly HOS
limits (83 FR 26374). Accordingly, the 15- and 16-hour limits requested
by the applicants would begin after a livestock hauler travels outside
the 150 air-mile radius. The requested exemption would apply to all
livestock, insect, and aquatic animal transporters and their drivers.
The applicants state that the maximum driving and on-duty limits of
the HOS regulations as applied to their operations may place the well-
being of livestock at risk during transport and impose significant
burdens on livestock haulers, particularly in rural communities across
the country. They advise that their drivers would comply with all other
HOS rules, including the 60/70-hour limits.
The applicants add that while most of their trips fall within the
current HOS limits, some of the longer trips cannot be completed under
the 11- and 14-hour rules. These trips are affected by ``immutable
factors'' such as weather. In the cattle industry, the locations of
cow-calf operations, grazing lands, feedlots, and processing facilities
determine how far a livestock hauler must travel in a single trip.
Livestock haulers transport animals from farms and ranches to auction
markets, where the stock is sold. Once sold, the animals are often
transported to grazing lands and feed yards, mostly located in the
Central Plains and Southwest. After grazing and feeding, livestock are
transported a final time to processing facilities, where they are
transformed into consumable meat and sold. In addition, transportation
of bees necessary to pollinate numerous crops, tree nuts, fruits, and
vegetables requires some of the longest trips in the country. The
applicants estimate that 25-30 percent of livestock-hauling trips would
be conducted under the requested exemption.
The applicants suggest they could achieve a level of safety
equivalent to or greater than the level of safety that would be
obtained without the exemption by adopting fatigue risk management
systems. The applicants describe a fatigue management system for
livestock haulers developed in Australia. Specifically, the applicants
propose: participating in training to be developed by the livestock
industry, in consultation with FMCSA, that addresses fatigue
countermeasures; adopting fatigue risk management practices including
completing a safe driving plan before each trip and completing a
fitness for duty assessment before each trip; and adopting company
practices to support fatigue risk management, including internal
audits. The applicants included with their petition an appendix
including 54 supporting documents.
A copy of the application for exemption and appendices is available
for review in the docket for this notice.
IV. Public Comments
On February 6, 2019, FMCSA published notice of this application and
requested public comment (84 FR 2304). The Agency received 359 total
sets of comments, 43 opposed to the request. The following five
organizations opposed the exemption: the National Transportation Safety
Board (NTSB); Commercial Vehicle Safety Alliance (CVSA); Truckload
Carriers Association (TCA); Iowa Motor Truck Association (IMTA); and
the Animal Welfare Institute.
IMTA commented that livestock haulers should be held to the same
HOS standards as the rest of the industry. If these loads require the
truck to keep moving due to the live animals on the truck or trailer,
and the run can't be completed within the normal 11 hours of driving,
then the carrier should be required to put a team of two drivers into
the vehicle. That would enable them to get the load delivered, while
remaining in compliance with the standard HOS regulations. IMTA further
added that livestock haulers are already exempt from HOS under the
agricultural exemption when running within a 150-mile radius and from
the requirement to operate electronic logging devices (ELDs).
TCA raised a similar objection regarding the 150 air-mile radius-
from-the-source exemption for livestock haulers, adding that this
requested exemption would add significant driving and on-duty time to a
driver's trip, as the ``HOS clock'' does not start until they drive
outside of the exempt zone.
CVSA added that it opposes this exemption request, as it is both
unjustified and impractical. According to CVSA, exemptions from federal
safety regulations, first and foremost, have the potential to undermine
safety, while also complicating the enforcement process. For these
reasons, and to protect the safety of these truck drivers and the
general motoring public, CVSA requested the Agency to deny the
petition.
[[Page 73392]]
NTSB added that although the applicants propose implementing a
fatigue risk management system to provide an adequate level of safety
in lieu of the standard HOS requirements, FMCSA does not have a means
to track, evaluate, or validate the effectiveness of such a system.
NTSB said that FMCSA should therefore deny the requested exemption, and
any similar exemption.
Two hundred ninety-four comments were filed in support of the
request. Fifty-two were filed by State trucking associations related to
livestock and cattlemen, including comments from all the original
applicants. The remainder of the supporting comments were from
individuals and trucking companies, primarily those hauling livestock.
The supporters of the exemption reiterated the scenario provided in the
application and supported four additional hours of drive time to
facilitate longer hauls that are necessitated by the distances between
where cattle are born, fed, and harvested. The supporters referenced
industry guidelines that direct drivers to avoid stops while hauling
livestock, especially in warmer weather, as the trailers are designed
to cool the animals while in motion. According to many who supported
the request, the majority of livestock cannot withstand the stress of
10 hours stopped without airflow or the added time on the trailer
necessitated by such an extended rest. Sixteen commenters took no
position either for or against the exemption request, and 6 others
asked that livestock carriers be exempted from the ELD regulations.
V. FMCSA Safety Analysis and Decision
FMCSA evaluated the joint application and public comments and
denies the exemption request. Research studies demonstrate that long
work hours reduce sleep and harm driver health, and that crash risk
increases with work hours. The HOS regulations impose limits on when
and how long an individual may drive, to ensure that drivers stay awake
and alert, and to reduce the possibility of cumulative fatigue. As
stated by opponents of the exemption, livestock haulers have been
required to operate within the confines of the HOS regulations for over
80 years.
Livestock haulers are entirely exempt from all HOS regulations
under the agricultural commodities exemption in 49 CFR 395.1(k)(1),
which covers a 150 air-mile radius from the source of the agricultural
commodities. In addition, Section 23018 of the Bipartisan
Infrastructure Law, Public Law 117-58, 135 Stat. 429, Nov. 15, 2021,
enacted after applicants filed their exemption request, now provides
that drivers transporting livestock are also exempt from all HOS
regulations within a 150 air-mile radius from the final destination of
the livestock. Livestock haulers remain exempt from the requirement to
use ELDs.
If the Agency were to grant the exemption, drivers transporting
agricultural commodities would be allowed six or more hours of driving
time within the 150 air-mile exempt zones for the transportation of
agricultural commodities, in addition to the 15 hours of driving time
outside the zone. The Agency finds that allowing 21 or more hours of
driving during a work shift would not likely achieve a level of safety
that is equivalent to, or greater than, the level that would be
achieved absent the exemption.
Although the applicants suggest that they could adopt a fatigue
risk management system to ensure safety, fatigue risk management
systems must be scientifically validated. FMCSA has promoted the
voluntary adoption of fatigue management programs, including the North
American Fatigue Management Program. Those voluntary fatigue management
measures do not replace the safety benefits of compliance with the HOS
regulations.
For these reasons, and to protect the safety of these truck drivers
and the public, the FMCSA denies the request for exemption.
Robin Hutcheson,
Administrator.
[FR Doc. 2022-25999 Filed 11-28-22; 8:45 am]
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