[Federal Register Volume 89, Number 118 (Tuesday, June 18, 2024)]
[Notices]
[Pages 51589-51592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13323]


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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), Department 
of Transportation (DOT).

ACTION: Notice of final disposition; renewal of exemption.

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SUMMARY: FMCSA announces its final decision to renew the U.S. Custom 
Harvesters, Inc. (USCHI) exemption from the intrastate restriction 
(``K'') 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) engaged in custom harvesting operations in 
interstate commerce. However, under the Agency's CDL regulations, 
States may impose an intrastate-only (or ``K'') restriction for these 
drivers. On October 11, 2023, FMCSA announced its decision to 
provisionally renew USCHI's exemption for two years, pending a review 
of any comments received in response to that

[[Page 51590]]

notice. After reviewing the four comments submitted to the docket, 
which are discussed later in this notice, the Agency believes that 
drivers who qualify for the exemption will likely achieve a level of 
safety that is equivalent to, or greater than, the level of safety that 
would be achieved by complying with the ``K'' restriction.

DATES: This renewed exemption became effective October 3, 2023, and 
continues through October 3, 2025.

FOR FURTHER INFORMATION CONTACT: La Tonya Mimms, Chief, Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards, FMCSA; (202) 366-9220; [email protected]. If you 
have questions on viewing material to the docket, contact Dockets 
Operations at (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation; Viewing Comments and Documents

    To view comments, go to www.regulations.gov, insert 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, and click ``Browse Comments.''
    To view documents mentioned in this notice as being available in 
the docket, go to www.regulations.gov, insert the docket number 
``FMCSA-2017-0133'' in the keyword box, click ``Search,'' 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 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., 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.

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 the applicant's safety analyses. 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 regulatory provision(s) from 
which the applicant will be 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 reasons for the denial 
(49 CFR 381.315(c)(2)).

III. Background

Current Regulatory Requirements

    The Federal Highway Administration adopted section 391.2(a) of 
title 49 of the Code of Federal Regulations (CFR) on December 22, 1971 
(36 FR 24218). Under this provision, drivers of CMVs operated by a 
person engaged in custom harvesting are exempt from all of part 391, 
including the requirement to be at least 21 years of age to operate a 
CMV in interstate commerce. State Driver Licensing Agencies (SDLAs) 
issue a ``K'' restriction on drivers who are under the age of 21 to 
permit these drivers to operate a CMV within the issuing State only. 
Section 391.2(a) does not preempt State CDL regulations, such as the 
requirement in 49 CFR 383.23(a)(2) to ``[possess] a CDL which meets the 
standards contained in subpart J of this part,'' including any ``K'' 
restriction imposed under 49 CFR 383.153(a)(10)(vii) of subpart J.

Original Exemption

    On October 3, 2018, FMCSA published a notice granting USCHI an 
exemption from 49 CFR 383.23(a)(2) and 49 CFR 383.153(a)(10)(vii) for a 
period of five years; the exemption expired on October 3, 2023 (83 FR 
49977). In its 2018 decision, FMCSA noted that although it was granting 
the exemption, the exemption ``did not require any special action or 
processing'' by the SDLAs who would continue to place the ``K'' 
restriction when called for, but enforcement officers would disregard 
it in situations involving drivers who can demonstrate eligibility for 
the custom harvester exemption set forth in 49 CFR 391.2(a).

Application for Renewal of Exemption

    USCHI requested a renewal of its exemption for a five-year period. 
USCHI stated that it frequently employs drivers younger than 21 years 
of age, who are issued CDLs with a ``K'' restriction. Under an 
exception in place since 1971, the requirement that CMV drivers must be 
at least 21-years old does not apply to a CMV driver who drives a CMV 
while engaged in custom-harvesting operations, provided that certain 
conditions are met (49 CFR 391.2(a)). Under the exemption, drivers 
under 21 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 licenses. USCHI states that this issue 
negatively impacts the safety records of drivers and employers.
    USCHI asks the Agency to renew its exemption for another five-year 
period, subject to terms and conditions, that would 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. Provisional Renewal of Exemption

    On October 11, 2023, after review of USCHI's renewal application, 
FMCSA published its decision to provisionally grant a two-year renewal 
of the exemption effective October 3, 2023, through October 3, 2025, 
and requested public comment (88 FR 70431). The Agency makes that 
renewal final for the remainder of the two-year period.
    The October 11 notice of provisional renewal announced terms and 
conditions that applied to operations for the first 90 days after the 
notice and, separately, certain replacement or additional requirements 
that would apply beginning 90 days later, i.e., after January 9, 2024 
(88 FR at 70433). Today's notice supersedes the October 11, 2023, 
notice and finalizes the provisionally granted two-year exemption, 
through October 3, 2025.

V. Public Comments

    Four comments were submitted to the docket, all in support of 
renewing the exemption. USCHI acknowledged the terms and conditions in 
the exemption renewal, stating ``USCHI understands the required and 
critical need to achieve a level of safety equivalent to, or greater 
than, the level that would be achieved by the currently (sic) 
regulation under this exemption.'' USCHI also contended that its 
members operate with the utmost regard for safety and responsibility, 
stating that USCHI members ``provide additional

[[Page 51591]]

mentorship and on the job training for younger drivers once they 
receive their CDL. USCHI also hosts multiple safety events for its 
members each year.'' Heil Harvesting, LLC's supporting comment 
emphasized the need for the exemption stating that ``[w]orkers to help 
harvest the nation's crops are increasingly difficult to locate and 
hire, and eliminating drivers younger than age 21 from the employee 
pool creates a severe hardship for harvesters' businesses.'' Beau 
Froese said ``[w]e travel through Texas, Oklahoma, Kansas, Colorado and 
Nebraska and would have a serious problem meeting the harvesting needs 
of the producers that we serve were we unable to use 18, 19 and 20 year 
old drivers.'' Lastly, Mychal Neumiller provided the following 
supporting statement: ``[o]ur business spends many hours training young 
employees on back roads and around our farm before allowing any of them 
to get on the road with us. Without these young people, most harvesters 
wouldn't be able to get the crops out of the fields for our farmers.''

VI. Response to Public Comments and Agency Decision

    FMCSA has evaluated the public comments and now issues this final 
decision affirming its provisional decision to renew the exemption for 
a two-year period. USCHI fulfilled the 30-day requirement of the 
provisional exemption's terms and conditions and has provided a list of 
USDOT numbers of the motor carriers that will be operating under this 
exemption; this list is available in the docket. FMCSA is not aware of 
any evidence showing that allowing the exemption from the intrastate-
only ``K'' restriction has resulted in any degradation in safety. 
Interstate operations for non-CDL custom harvester drivers younger than 
21 are currently 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 Agency notes that, likely through miscommunications and 
misunderstandings among the Agency, USCHI, and its membership, certain 
crashes involving the drivers operating under the exemption were not 
reported to the Agency during the first five-year exemption. FMCSA's 
review of USCHI members' data indicates there have been crashes that 
could be considered preventable. The Agency obtained 14 police crash 
reports involving custom harvester operators under the age of 21. 
However, given the five-year period of the previous exemption, the size 
of USCHI's membership,\1\ and a lack of information on the age peer 
group within the agricultural driver population as a baseline, the 
Agency does not find sufficient information to conclude that the 
previous 5-year exemption resulted in a degradation of safety.
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    \1\ USCHI's website indicates they have approximately 420 
Regular members and 180 Associate members.
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    Nevertheless, as a safety precaution, FMCSA is extending the 
exemption for two years instead of the requested five years and 
enhancing the terms and conditions of the exemption to assist the 
Agency's oversight. Under the modified exemption, custom harvester 
drivers 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 extended exemption, in addition 
to 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 for this project has been initiated, and FMCSA has 
begun analyzing the data as referenced in the provisional exemption 
notice. 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 renewal.

VII. Exemption Decision

A. Grant of Two-Year Exemption

    FMCSA renews the exemption for a period of two years, subject to 
the terms and conditions of this decision. 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 under 21 years of age 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 CDL-issuing State when 
they are operating as custom harvesters in accordance with 49 CFR 
391.2(a) and this exemption.
State Driver Licensing Agencies
    This exemption requires no action or inaction on the part of the 
SDLAs. They will continue to issue CDLs with a ``K'' restriction to 
drivers under the age of 21.

C. Terms and Conditions

    Motor carriers and drivers operating under the exemption are 
subject to the following terms and conditions:
    (1) Drivers engaged in custom harvesting operations 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 whom this exemption applies are identified in 49 CFR 
391.2(a) 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 transporting custom-harvested crops to storage or market.
    (4) To ensure that the drivers are legitimately operating as a 
custom harvester, they 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, or the 
verbiage ``Harvesting'' may be part of the business signage on the 
vehicle;

[[Page 51592]]

    (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.
    (5) The USCHI must provide FMCSA with a list of motor carrier USDOT 
numbers that are engaged in custom farm operations every 90 days. The 
driver must be working for a motor carrier with a USDOT number 
identified in the most current list provided to FMCSA by USCHI. See 
additional FMCSA notification requirements in Section VII.E below. This 
exemption applies to USCHI members only.

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. Notification to FMCSA

    Starting in May of 2024 and every 90 days thereafter, 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
    (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 
drivers operating under this exemption after the driver obtained a CDL, 
and
    (m) A scanned copy of the police accident report.
    Reports filed under this provision shall be emailed to 
[email protected].

F. 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.

Sue Lawless,
Acting Deputy Administrator.
[FR Doc. 2024-13323 Filed 6-17-24; 8:45 am]
BILLING CODE 4910-EX-P