[Federal Register Volume 88, Number 195 (Wednesday, October 11, 2023)]
[Notices]
[Pages 70431-70434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22442]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2017-0133]


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

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

ACTION: Notice of provisional renewal of exemption; request for 
comments.

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SUMMARY: FMCSA announces its decision to provisionally renew a U.S. 
Custom Harvesters, Inc. (USCHI) exemption from the ``K'' intrastate 
restriction on commercial driver's licenses (CDLs) for custom harvester 
drivers operating in interstate commerce for a two-year period, with 
additional terms and conditions. FMCSA's regulations currently provide 
an exception to the minimum age requirements for drivers of commercial 
motor vehicles (CMVs) controlled and operated by a person engaged in 
interstate custom harvesting. However, under the Agency's CDL 
regulations, States may include an intrastate-only (or ``K'') 
restriction for these drivers. This provisional renewal of the 
exemption continues relief from the CDL provision for two years.

DATES: This renewed exemption is effective October 3, 2023, through 
October 3, 2025. Comments must be received on or before November 13, 
2023.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System (FDMS) Number FMCSA-2017-0133 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, 
Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
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-2017-0133) 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 Act heading 
below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time or visit 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 Act: 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, the comments are searchable by 
the name of the submitter.

FOR FURTHER INFORMATION CONTACT: Ms. La Tonya Mimms, Chief, Driver and 
Carrier Operations Division, Office of Carrier, Driver and Vehicle 
Safety Standards, FMCSA, at (202) 366-9220 or [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.

[[Page 70432]]

Submitting Comments

    If you submit a comment, please include the docket number for this 
notice (FMCSA-2017-0133), indicate the specific section of this 
document to which the comment applies, and provide a reason for your 
suggestions or recommendations. You may submit your comments and 
material online, 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, put the 
docket number ``FMCSA-2017-0133'' in the keyword box, and click 
``Search.'' Next, sort the results by ``Posted (Newer-Older),'' choose 
the first notice listed, click the ``Comment'' 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 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 the 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 with 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 maintain a 
level of safety equivalent to, or greater than, the level that would be 
achieved by the current regulation (49 CFR 381.305(a)). The Agency must 
publish its decision in the Federal Register (49 CFR 381.315(b)). If 
granted, the notice will identify the name of the person or class of 
persons receiving the exemption and the regulatory provision from which 
that party is exempt, the effective period, and all terms and 
conditions of the exemption (49 CFR 381.315(c)(1)). If the exemption is 
denied, the notice will explain the reason for the denial (49 CFR 
381.315(c)(2)). The exemption may be renewed (49 CFR 381.300(b)).

III. Background

    USCHI describes the operations of its member companies as supplying 
equipment and labor to assist farmers with harvesting during their 
busiest seasons and provides the following summary of the nature of 
these operations:

    Typically, there are two different classes of operations, grain 
harvesting and forage harvesting. A grain harvester uses combines to 
harvest wheat, corn, barley, canola, sunflowers, soybeans, and grain 
sorghum, among others. These crop products are transported to an 
elevator or on-farm storage, where the crop is stored and later 
transported elsewhere to be processed into products for public use. 
A forage harvester uses a chopper to harvest whole-plant crops such 
as corn, sorghum, milo, triticale, and alfalfa. These crops are used 
for silage to feed livestock in dairies and feedlots. Some operators 
harvest crops such as cotton that require other specialized 
equipment. Custom harvesters travel from State to State and can 
spend from a few days to several months cutting crops for one 
farmer.

    Customer harvesters frequently employ drivers younger than 21 years 
of age, who are issued CDLs with a ``K'' restriction that makes the 
license valid only for operations within the issuing state (49 CFR 
383.23(a)(2) and 49 CFR 383.153(a)(10)(vii)). Under an exception in 
place since 1971, the 21-year-old age requirement, however, does not 
apply to a CMV driver who drives a CMV controlled and operated by a 
person engaged in custom-harvesting operations, provided that certain 
conditions are met. (49 CFR 391.2). Those drivers are therefore allowed 
to drive in interstate custom harvesting operations notwithstanding the 
``K'' restriction on their licenses.
    USCHI states that even though CMV drivers engaged in custom 
harvesting are excepted from the 21-year-old requirement, they are 
frequently cited during roadside inspections because of the presence of 
the ``K'' restriction on their license. USCHI states that this issue 
impacts the safety records of drivers and employers.
    On October 3, 2018, FMCSA granted USCHI's original exemption 
request, providing relief from the requirements of 49 CFR 383.23(a)(2) 
and 49 CFR 383.153(a)(10)(vii) for a period of five years (expiring 
October 3, 3023). FMCSA noted that although it was granting the 
exemption, the exemption did not require any special action or 
processing by the state driver licensing agencies, who will continue to 
place the ``K'' restriction when called for, but enforcement officers 
will disregard it in situations involving drivers who can demonstrate 
eligibility for the custom harvester exemption. (83 FR 49977, 49978).
    USCHI asks the Agency to renew its exemption for another five-year 
period, subject to terms and conditions, to allow law enforcement 
officers to determine that the driver is operating in custom harvester 
operations. For example, USCHI proposes that the driver be required to 
provide at least three methods of verification while en route. A copy 
of USCHI's request for an exemption renewal is available for review in 
the docket for this notice.

IV. Equivalent Level of Safety

    FMCSA is not aware of any evidence showing that allowing the 
exemption concerning the intrastate-only ``K'' restriction, has 
resulted in any degradation in safety. Interstate operations for non-
CDL custom harvester drivers younger than 21 are allowed pursuant to 49 
CFR 391.2(a), and intrastate operations for CDL custom harvester 
drivers under the age of 21 can be accomplished under 49 CFR 
383.23(a)(2) and 383.153(a)(10)(vii). The requested exemption allows 
interstate CDL custom harvester drivers under the age of 21, which 
mirror what these drivers are allowed to do in intrastate custom 
harvester operations.
    The Agency notes that, likely through miscommunications and 
misunderstandings between the Agency, USCHI and its membership, certain 
crashes involving the drivers operating under the exemption were not 
reported to the Agency during the first 5-year exemption. FMCSA's 
review of USCHI members' data indicates there have been crashes which 
could be considered preventable. The Agency obtained 14 police crash 
reports involving custom harvester operators under the age of 21. 
However, given the 5-year period of the exemption, and a lack of 
information on the age peer group within the agricultural driver 
population, there is insufficient information to conclude that the 
exemption has resulted in a degradation of safety.
    FMCSA therefore concludes that provisionally extending the 
exemption for two years and enhancing the terms and conditions to 
assist the Agency's oversight of the exemption will likely maintain a 
level of safety that is equivalent to, or greater than, the level of 
safety that would be achieved without the exemption. During the two-
year period of the provisionally extended exemption, in addition to

[[Page 70433]]

enhancing the terms and conditions of the exemption, FMCSA will 
initiate a data analysis project to examine the safety performance of 
custom harvester drivers under the age of 21, in comparison to other 
drivers in the agriculture sector of the motor carrier industry. The 
data collection period will occur during the fall of 2023, after which 
FMCSA will begin analyzing the data. The Agency currently has violation 
data on motor carriers that utilize the transportation of agricultural 
commodities exception to the hours-of-service rules, and the new study 
will assist the Agency in conducting a more in-depth analysis of their 
safety performance as a group and the safety performance of the subset 
of custom harvester drivers under the age of 21. This information will 
aid in assessing the safety impacts of the USCHI exemption prior to the 
expiration of the two-year provisional renewal.

V. Exemption Decision

A. Grant of Two-Year Exemption

    FMCSA provisionally renews the exemption for a period of two years, 
subject to the new terms and conditions of this decision and the 
absence of public comments and data that would cause the Agency to 
terminate the exemption under Sec. V.E. below. The exemption from the 
``K'' intrastate restriction on CDLs held by custom harvester drivers 
operating in interstate commerce is otherwise effective October 3, 
2023, through October 3, 2025, at 11:59 p.m. local time, unless renewed 
or rescinded.

B. Applicability of Exemption

Custom Harvester Drivers
    Custom harvester drivers will be able to display this exemption 
notice to help explain that when operating in that capacity, they are 
permitted to operate outside the state issuing their CDL even though 
the license has a ``K'' (intrastate only) restriction.
Enforcement Officers
    This exemption notice will explain to law enforcement officers that 
49 CFR 391.2(a) authorizes custom harvester drivers to operate in 
interstate commerce even though they are under 21 years of age. The 
notice will explain that a ``K'' restriction on these drivers' CDLs 
does not limit them from driving outside the license-issuing state when 
they are operating as custom harvesters in accordance with 49 CFR 
391.2(a).
State Driver Licensing Agencies
    This exemption requires no action or inaction on the part of the 
state driver licensing agencies. They will continue to issue CDLs with 
a ``K'' restriction to drivers under the age of 21.

C. Terms and Conditions

Requirements for the First 90 Days of Provisional Two-Year Renewal
    For the first 90 days of this provisional two-year renewal of the 
exemption, motor carriers and drivers are subject to the following 
terms and conditions:
    (1) Drivers for custom harvesters operating in interstate commerce 
shall be exempt from any intrastate-only ``K'' restriction on their 
CDLs when operating under the provisions of this exemption.
    (2) Drivers must have a copy of this notice in their possession 
while operating under the terms of the exemption. The exemption 
document must be presented to law enforcement officials upon request.
    (3) Drivers to be included in this exemption are identified in 49 
CFR 391.2 as those operating a CMV to transport farm machinery, 
supplies, or both, to or from a farm for custom harvesting operations 
on a farm; or transport custom-harvested crops to storage or market.
    (4) To ensure that the driver is authentically operating as a 
custom harvester, he or she should be able to provide at least three of 
the following methods of verification:
    (a) The driver may have on hand a valid custom harvesting document 
such as a current-date agricultural commodity scale sheet, a current-
date custom harvesting load sheet, an official company document stating 
the company's purpose, etc.;
    (b) The CMV may have license plates specific to custom harvesting, 
or the verbiage ``Harvesting'' may be part of the business signage on 
the vehicle;
    (c) The CMV may be designed to haul a harvested agricultural 
commodity or equipment for harvesting or be a support vehicle for 
custom-harvesting operations, such as a service truck;
    (d) The CMV may be hauling a harvested agricultural commodity or 
equipment for the purpose of custom harvesting;
    (e) The CMV may have a newly harvested commodity or remnants on 
board;
    (f) The driver will be able to provide a verifiable location of the 
current harvesting operation or delivery location for a harvested 
commodity.
Requirements After the First 90 Days of the Provisional Renewal
    After the first 90 days of this exemption notice, motor carriers 
and drivers are subject to the following terms and conditions:
    (1) Drivers for custom harvesters operating in interstate commerce 
shall be exempt from any intrastate-only ``K'' restriction on their 
CDLs when operating under the provisions of this exemption.
    (2) Drivers must have a copy of this notice in their possession 
while operating under the terms of the exemption. The exemption 
document must be presented to law enforcement officials upon request.
    (3) Drivers to be included in this exemption are identified in 49 
CFR 391.2 as those operating a CMV to transport farm machinery, 
supplies, or both, to or from a farm for custom harvesting operations 
on a farm; or transport custom-harvested crops to storage or market.
    (4) The USCHI must provide FMCSA with a list of motor carrier USDOT 
numbers that are engaged in custom farm operations. The driver must be 
working for a motor carrier with a USDOT number identified in the most 
current list provided to FMCSA by USCHI.
Requirements for Notification to FMCSA
    Within 30 days of this notice, the USCHI must provide FMCSA with 
the USDOT numbers of the motor carriers that will be operating under 
this exemption. The USCHI must notify FMCSA within five business days 
of any crash (as defined in 49 CFR 390.5), involving any of the drivers 
operating under the terms of the exemption. The notification must 
include the following information:
    (a) Identity of Exemption: ``USCHI Renewal,''
    (b) Name of the custom harvester employer and USDOT number,
    (c) Date of the crash,
    (d) Origin and intended destination of the USCHI driver's trip and 
the distance (in miles) of the crash from the driver's home terminal,
    (e) Driver's name, license number, and age,
    (f) Vehicle number and State license number,
    (g) Number of individuals suffering physical injury (including 
fatalities),
    (h) Number of fatalities,
    (i) The police-reported circumstances of the crash,
    (j) Whether the driver was cited for violation of any traffic laws 
or motor carrier safety regulations,
    (k) The driver's total driving time and total on-duty time period 
prior to the accident,
    (l) Information about what safety training, if any, was provided to 
the

[[Page 70434]]

under-21 years of age farm custom operator driver after the driver 
obtained a CDL, and
    (m) A scanned copy of the police accident report.
    Reports filed under this provision shall bee-mailed to 
[email protected].

D. Preemption

    In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 
381.600, during the period this exemption is in effect, no state shall 
enforce any law or regulation applicable to interstate commerce that 
conflicts with or is inconsistent with this exemption with respect to a 
firm or person operating under the exemption. States may, but are not 
required to, adopt the same exemption with respect to operations in 
intrastate commerce.

E. Termination

    The exemption will be rescinded if: (1) the USCHI, motor carriers, 
and drivers operating under the exemption fail to comply with the terms 
and conditions of the exemption; (2) the exemption has resulted in a 
lower level of safety than was maintained before it was granted; or (3) 
continuation of the exemption would not be consistent with the goals 
and objects of 49 U.S.C. 31136(e) and 31315.
    Should FMCSA receive notice of any potential adverse safety 
impacts, FMCSA will take all steps necessary to protect the public 
interest, including revocation or restriction of the exemption if 
necessary. FMCSA may immediately revoke or restrict the exemption for 
failure to comply with its terms and conditions.

VI. Request for Comments

    In accordance with 49 U.S.C. 31315(b), FMCSA requests public 
comment from all interested parties on USCHI's application for 
exemption renewal. All comments received before the close of business 
on the comment closing date indicated at the beginning of this notice 
will be considered and will be available for examination in the docket 
at the location listed under the ADDRESSES section of this notice. 
Comments received after the comment closing date will be filed in the 
public docket and will be considered to the extent practicable. In 
addition to late comments, FMCSA will also continue to file, in the 
public docket, relevant information that becomes available after the 
comment closing date. Interested persons should continue to examine the 
public docket for new material.

Robin Hutcheson,
Administrator.
[FR Doc. 2023-22442 Filed 10-10-23; 8:45 am]
BILLING CODE 4910-EX-P