[Federal Register Volume 89, Number 233 (Wednesday, December 4, 2024)]
[Proposed Rules]
[Pages 96176-96186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28097]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 383
[Docket No. FMCSA-2024-0121]
RIN 2126-AC59
Transportation of Fuel for Agricultural Aircraft Operations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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[[Page 96177]]
SUMMARY: This proposed rule would amend the Federal Motor Carrier
Safety Regulations (FMCSRs) to allow States to waive the hazardous
materials (HM) endorsement requirement for holders of Class A
commercial driver's licenses (CDL) who transport no more than 1,000
gallons of aviation grade jet fuel in support of seasonal agricultural
operations.
DATES: Comments must be received on or before February 3, 2025.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2024-0121 using any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2024-0121/document. Follow the online
instructions for submitting comments.
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: Dockets Operations, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, West Building,
Ground Floor, Washington, DC 20590-0001, 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.
Fax: (202) 493-2251.
FOR FURTHER INFORMATION CONTACT: Ms. Rebecca Rehberg, Transportation
Specialist, CDL Division, Office of Safety Programs, FMCSA; (850)-728-
2034; [email protected]. If you have questions on viewing or
submitting material to the docket, call Dockets Operations at (202)
366-9826.
SUPPLEMENTARY INFORMATION: FMCSA organizes this NPRM as follows:
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Costs and Benefits
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
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), E.O. 14094
(Modernizing Regulatory Review), and DOT Regulatory Policies and
Procedures
B. Advance Notice of Proposed Rulemaking
C. Regulatory Flexibility Act
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act
G. E.O. 13132 (Federalism)
H. Privacy
I. E.O. 13175 (Indian Tribal Governments)
J. National Environmental Policy Act of 1969
K. Rulemaking Summary
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
NPRM (FMCSA-2024-0121), 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 FMCSA
can contact you if there are questions regarding your submission.
To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2024-0121/document, click on this NPRM, click ``Comment,''
and type your comment into the text box on the following screen.
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.
FMCSA will consider all comments and material received during the
comment period.
Confidential Business Information (CBI)
CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure.
If your comments responsive to the NPRM contain commercial or financial
information that is customarily treated as private, that you actually
treat as private, and that is relevant or responsive to the NPRM, 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 Freedom of
Information Act, and they will not be placed in the public docket of
the NPRM. Submissions containing CBI should be sent to Brian Dahlin,
Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200
New Jersey Avenue SE, Washington, DC 20590-0001 or via email at
[email protected]. At this time, you need not send a duplicate
hardcopy of your electronic CBI submissions to FMCSA headquarters. Any
comments FMCSA receives not specifically designated as CBI will be
placed in the public docket for this rulemaking.
B. Viewing Comments and Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2024-0121/document and
choose the document to review. To view comments, click this NPRM, then
click ``Browse Comments.'' 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 20590-0001, 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
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its regulatory process. DOT posts these
comments, including any personal information the commenter provides, to
www.regulations.gov as described in the system of records notice DOT/
ALL 14 (Federal Docket Management System (FDMS)), which can be reviewed
at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices. The comments are posted without edit and are
searchable by the name of the submitter.
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
FMCSA proposes to amend the commercial driver's license (CDL)
regulations to allow States additional flexibility to waive the
hazardous materials (HM) endorsement \1\ requirement for certain
drivers transporting aviation fuel in furtherance of agricultural
aviation operations. Many farm operations rely on aircraft to apply
pesticides or fertilizers to their
[[Page 96178]]
crops. Agricultural aviation companies often deliver aircraft fuel to
staging areas some distance from their headquarters. These companies,
particularly in remote, rural areas, have difficulty finding CDL
holders with HM endorsements to complete these deliveries. Under the
current regulations, most CDL holders must obtain an HM endorsement
before transporting fuels. However, 49 CFR 383.3(i) provides a limited
exception to this requirement and allows States to waive the
requirement of an HM endorsement if the holder of a Class A CDL is
transporting diesel fuel in the CDL holder's State of domicile as an
employee of four specific agriculture-related businesses. FMCSA
proposes to give States authority to waive the HM endorsement
requirement for Class A CDL holders who transport up to 1,000 gallons
of aviation grade jet fuel (often called Jet A, referred to as jet fuel
for the purposes of this preamble) in the CDL holder's State of
domicile and in support of agricultural aircraft operations.
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\1\ Endorsement as defined in Sec. 383.5 means an authorization
to an individual's commercial learner's permit (CLP) or CDL required
to permit the individual to operate certain types of commercial
motor vehicles.
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B. Costs and Benefits
This proposal could result in costs to States and their State
driver licensing agencies (SDLAs) and may result in cost savings to
drivers and to agricultural aviation operators. States and their SDLAs
may incur costs for updating their websites and other informational
materials to reflect the changes in requirements for Class A CDL
holders transporting hazardous materials and for training roadside
officers. The proposal would result in cost savings for agricultural
aviation operators and the drivers these operators hire to mix, load,
and transport jet fuel in quantities of 1,000 gallons or less in
participating States. Class A CDL holders would avoid approximately
$261 in costs associated with each driver obtaining an HM endorsement,
and agricultural aviation operators would be able to run their
businesses more efficiently by making use of satellite airstrips. FMCSA
does not expect that this proposed rule would negatively impact CMV
safety. For various reasons, drivers who transport jet fuel operate in
low-risk safety conditions and rarely experience crashes. More in depth
discussion of the potential impacts resulting from this rule are found
in the regulatory analyses section below.
III. Abbreviations
ANPRM Advanced notice of proposed rulemaking
BLS Bureau of Labor Statistics
CBI Confidential business information
CDL Commercial driver's license
CFR Code of Federal Regulations
CE Categorical exclusion
CLP Commercial learner's permit
CMV Commercial motor vehicle
CMVSA Commercial Motor Vehicle Safety Act
DOT Department of Transportation
ELOS Equivalent level of safety
FAST Act Fixing America's Surface Transportation Act
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
HM Hazardous materials
HMRs Hazardous materials regulations
IRFA Initial regulatory flexibility analysis
MCMIS Motor Carrier Management Information System
NAAA National Agricultural Aviation Association
NAICS North American Industry Classification System
NEPA National Environmental Policy Act
NHTSA National Highway Traffic Safety Administration
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
PHMSA Pipeline and Hazardous Materials Safety Administration
PIA Privacy impact assessment
PTA Privacy threshold assessment
RFA Regulatory Flexibility Act
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act
SDLA State driver's licensing agency
STA Security Threat Assessment
TPR Training Provider Registry
TSA Transportation Security Administration
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code
IV. Legal Basis
The CDL regulations are based on the authority of the Commercial
Motor Vehicle Safety Act of 1986 (CMVSA). Section 12013 of the CMVSA
allowed the Federal Highway Administration (FHWA), FMCSA's predecessor
agency, to ``waive, in whole or in part, application of any provision
of this title or any regulation issued under this title with respect to
class of persons or class of commercial motor vehicles if the Secretary
of Transportation (the Secretary) determines that such waiver is not
contrary to the public interest and does not diminish the safe
operation of commercial motor vehicles'' (Pub. L. 99-570, Title XII,
100 Stat. 3207-170, 3207-186, Oct. 27, 1986, codified at 49 U.S.C. app.
2711).
On the basis of section 12013, FHWA authorized the States to waive
the knowledge and skills tests otherwise required to obtain a CDL for
employees of custom harvesters, farm retail outlets and suppliers,
agrichemical businesses, and livestock feeders (57 FR 13650, Apr. 17,
1992). CDL applicants in States that exercised this waiver option were
required to meet certain conditions, including a prohibition on
carrying any placarded quantities of HM, except for diesel fuel in
quantities of 1,000 gallons or less (57 FR 13650, 13654). The 1992 CDL
waiver option, with the 1,000-gallon restriction on the transportation
of diesel fuel, was codified originally as 49 CFR 383.3(f)(3)(v) (61 FR
9546, March 8, 1996).
Following statutory amendments,\2\ the language of the CMVSA's
section 12013--that a waiver must be ``not contrary to the public
interest'' and ``not diminish the safe operation of commercial motor
vehicles''--has been replaced by the standard that a waiver or
exemption must ``likely achieve a level of safety that is equivalent
to, or greater than, the level that would be achieved in the absence of
the waiver'' (49 U.S.C. 31315(a)) or ``absent such exemption'' (49
U.S.C. 31315d(b)(1)).
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\2\ Title 49, United States Code, was recodified in 1994, the
waiver authority in 49 U.S.C. app. 2711 was redesignated as 49
U.S.C. 31315 (Pub. L. 103-272, 108 Stat. 745, 1029, July 5, 1994),
and the Transportation Equity Act for the 21st Century (TEA-21)
revised 49 U.S.C. 31315 as ``Waivers, exemptions, and pilot
programs'' (Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998).
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Section 7208 of the Fixing America's Surface Transportation (FAST)
Act (Pub. L. 114-94, Dec. 4, 2015, 129 Stat. 1312, 1593) allowed the
States to waive the requirement that a holder of a Class A CDL obtain
the HM endorsement required by 49 CFR 383.93(b)(4), provided the Class
A CDL holder is an employee of one of the four categories of business
specified in FHWA's 1992 waiver who transports diesel fuel in
quantities of 1,000 gallons or less. As thus amended, the State waiver
authority is now codified at 49 CFR 383.3(i).
FMCSA believes that the equivalent-level-of-safety (ELOS) standard
required by the waiver and exemption provisions in 49 U.S.C. 31315 and
49 CFR part 381 is the appropriate standard for this NPRM. The 1992
rule required that the State waiver option not diminish the safe
operation of CMVs, and all subsequent versions of the statute and
regulation have retained that ELOS concept. Congress itself clearly
embraced that standard when section 7208 was explicitly limited to the
same four agriculture-related businesses covered by the 1992 exemption.
Pursuant to 49 U.S.C. 31305(a), which sets forth the general
standards for the CDL rules, also provides that FMCSA ``shall prescribe
regulations on minimum standards for testing and ensuring the fitness
of an individual
[[Page 96179]]
operating a commercial motor vehicle.'' Implicit in that provision is
the authority to decide whether certain CDL holders may meet the
``fitness'' requirement without complying with every part of the CDL
regulations. FMCSA believes that exempting employees of agricultural
aviation companies who hold Class A CDLs and transport jet fuel from
the requirement to obtain an HM endorsement is consistent both with the
standard of the CMVSA's section 12013 and with the current ELOS and
``fitness'' standards enacted by Congress. A waiver granted by a State
under this proposal, as under section 7208 of the FAST Act, would also
exempt eligible drivers from the Transportation Security
Administration's (TSA) background records check in 49 CFR part 1572,
subpart B.
V. Background
A. Commercial Driver's License
Since April 1, 1992, drivers have been required to obtain and hold
a CDL if they operate in interstate, intrastate, or foreign commerce
and drive a vehicle that meets one or more of the classifications of a
CMV in 49 U.S.C. 31301(4).\3\ The physical requirements and knowledge
and skills testing are intended to help to ensure safe operations of
CMVs. FHWA and, since 2000, FMCSA have developed and issued standards
for State licensing and testing of CDL applicants. Under Sec.
383.133(c)(6) of the FMCSRs, States must administer a three-part CDL
skills test to CDL applicants in the following order: (1) pre-trip
inspection, (2) basic vehicle control skills, and (3) on-road skills.
Drivers who operate special types of CMVs, such as school buses,
vehicles carrying HM, double/triple trailers, tank vehicles, and
combination vehicles, must pass additional tests to obtain the relevant
endorsement for their CDLs. Endorsement testing requirements are found
in Sec. 383.93(c). The HM endorsement requires a knowledge test.
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\3\ Commercial Motor Vehicle Safety Act of 1986, Public Law 99-
570, Title XII, 100 Stat. 3207-170, 49 U.S.C. chapter 313.
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B. National Agricultural Aviation Association Interactions With FMCSA
The National Agricultural Aviation Association (NAAA) is a trade
association that represents over 1,900 members in 46 States. NAAA
member operators/pilots are licensed as commercial applicators who use
aircraft to enhance food and fiber production and control health-
threatening pests. According to NAAA's petition for rulemaking,
aircraft operations are often the only, or the only economical, method
to apply pesticides or fertilizers. Almost 28 percent of crop
protection product applications to commercial farmland are made
aerially. As a result, NAAA estimates that 127 million acres of
cropland are treated via aerial application in the U.S. each year.\4\
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\4\ Industry Facts, Environmental Benefits and FAQs--National
Agricultural Aviation Association (agaviation.org) (accessed June
11, 2024).
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While fueling, mixing, and loading of crop-protection products
(e.g., fertilizers, insecticides, fungicides, or herbicides) are
normally conducted at a location where agriculture aviation operators
have permanent fuel tanks and mixing and loading facilities, at times
operators and pilots work so far from their permanent facility that it
is cost-effective to use a satellite landing strip and an on-site fuel
truck. In such scenarios, fuel is pumped from the fixed-base tanks into
the fuel truck that transports it to the satellite landing strip.
Additional trips are made to the satellite strip as needed, and the CMV
returns to the fixed-base location at the end of the day. Some CMVs may
also be loaded with crop-protection products (e.g., insecticides,
fungicides, or herbicides). The driver may serve both as a ``mixer
loader'' of the fertilizers or pesticides and of the aircraft fuel.
2005 Exemption Request
On June 17, 2005, NAAA requested an exemption \5\ under 49 CFR
381.310 on behalf of its members. NAAA asked that CMV drivers
supporting agricultural aircraft operations be exempted from the
required knowledge and skills tests required for a CDL and that they be
eligible to receive restricted CDLs allowed for certain drivers in
farm-related service industries, as described in Sec. 383.3(f). In
addition, NAAA sought an exemption from Sec. 383.3(f)(3)(v) to allow
these restricted CDL holders to transport fuel used to power crop-
sprayer aircraft, if transported in quantities of 1,000 gallons or
less. NAAA argued that the exemptions would provide parity with the CDL
regulations for other, nearly identical farm-related services. NAAA did
not offer any countermeasures to ensure an ELOS, as required by 49
U.S.C. 31315(b)(5)(D), but it argued that compliance with all other DOT
requirements would ensure safe CMV operations.
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\5\ The request for exemption and other associated documents may
be found at https://www.regulations.gov/docket/FMCSA-2007-28480.
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2007 Federal Register Notice
On July 5, 2007, FMCSA issued a Federal Register notice (72 FR
36748) soliciting comments on the NAAA application. The Agency received
a total of 17 comments, 9 supporting and 6 opposing the exemption. Two
comments were out of scope. All comments that supported the request
were from agricultural entities. Opponents included a safety
association and State safety agencies.
Supporters of the request noted that they were experiencing the
same shortage of qualified CDL drivers as NAAA members, creating a
hardship for the industry. Commenters also mentioned CMVs transporting
jet fuel and pesticides operate primarily in rural areas, where low
population and traffic density reduced crash risk. These trips usually
occur within a 50-mile radius or less of their permanent facilities.
One farmer indicated that agriculture relies on crop spraying
operations.
The NAAA's application was opposed by Advocates for Highway and
Auto Safety and safety agencies of Missouri, Virginia, and Ohio. The
commenters pointed out that, if this exemption were in place, NAAA
drivers would be transporting HM more dangerous than that permitted by
Sec. 383.3(f)(3)(v) and would be doing so without demonstrating basic
competency in CMV operations. The drivers would also avoid two
requirements for the HM endorsement: successful completion of the
written HM test required by Sec. 383.135, and a determination by the
TSA pursuant to Sec. 383.141(b) that the driver is ``not a security
threat.'' The commenters also pointed out that NAAA failed to propose
an alternative method of assessing the knowledge and skills of these
CMV drivers, as required by Sec. 381.415(c)(6) through (c)(8).
2010 Denial
After reviewing NAAA's request for exemption and the public
comments received, FMCSA concluded that NAAA had failed to demonstrate
how it would ensure that the operations of its members under the
exemption would achieve an ELOS. The Agency published the notice of
denial in the Federal Register on June 10, 2010 (75 FR 32983).
FAST Act Implementation
Section 7208 of the FAST Act directed the Secretary to allow a
State, at its discretion, to waive the requirement that a Class A CDL
holder obtain an HM endorsement when that individual is transporting
3,785 liters (1,000 gallons) or less of diesel fuel, marked
``flammable'' or ``combustible,'' as appropriate, as an employee of a
custom harvester operation,
[[Page 96180]]
agrichemical business, farm retail outlet and supplier, or livestock
feeder.
On July 22, 2016, FMCSA implemented this and other provisions of
the FAST Act (81 FR 47714). The final rule amended Sec. 383.3 by
adding a new paragraph (i), providing that a State may waive the
requirement that a driver obtain a HM endorsement to transport diesel
fuel under certain circumstances.
2018 NAAA Petition
In April of 2018, NAAA submitted a petition to amend Sec.
383.3(i), which FMCSA treated as a petition for rulemaking under Sec.
389.31. NAAA argued that expanding the exemption options allowed by
section 7208 of the FAST Act to include an HM exception for drivers
with a Class A CDL transporting 1,000 gallons or less of jet fuel would
provide an economic benefit to agriculture aviation operators while
keeping America's roads safe. NAAA asserted that the similar chemical
properties of jet fuel and diesel fuel, along with infrequency of trips
involving aviation fuel, the rural environments in which these trips
typically occur, and exceptional weather conditions would provide an
ELOS while reducing regulatory burdens on agriculture aviation
operators.
NAAA emphasized the cost to agriculture aviation operators, almost
all of them small businesses, of paying drivers to obtain an HM
endorsement when they already have the knowledge and skills required to
hold a CDL. NAAA noted that retaining drivers with an HM endorsement is
extremely difficult due to the seasonal nature of agriculture aviation
work. NAAA indicated that a shortage of available drivers with such an
endorsement may block the transportation of jet fuel to a satellite
airstrip closer to the application site. In December of 2022, after
review of the petition and consultation with technical staff from the
Pipeline and Hazardous Materials Safety Administration (PHMSA), FMCSA
granted NAAA's petition for rulemaking to amend Sec. 383.3(i).\6\
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\6\ The grant letter and all other correspondence with NAAA
related to this rulemaking can be found in the docket for this rule.
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VI. Discussion of Proposed Rulemaking
Pursuant to Sec. Sec. 383.93(a)(1) and (b)(4), a CDL holder may
not drive a vehicle used to transport HM without obtaining a State-
issued HM endorsement. The term hazardous materials is defined in Sec.
383.5 to include materials for which placarding is required under
subpart F of 49 CFR part 172. Current regulations generally require a
CDL holder to obtain an HM endorsement in order to transport fuel,
including jet fuel.
This NPRM would amend Sec. 383(i) to allow States to waive the HM
requirement for Class A CDL holders who are employed by agricultural
aviation operators in their State of domicile and drive a vehicle
transporting up to 3,785 liters (1,000 gallons) of jet fuel (clearly
marked with a ``flammable'' or ``combustible'' placard) for use in
agricultural aviation operations. The Agency also proposes to add a
definition of jet fuel to mean ``fuel, aviation, turbine engine'' as
listed in the Hazardous Materials Table in 49 CFR 172.101 that is
reclassed as a combustible liquid in accordance with 49 CFR part 173.
FMCSA developed the proposal in this NPRM based on evaluation and
review of available data relating to the similarity of jet fuel and
diesel fuel, the safety of the trucking operations of the agricultural
aviation industry, NAAA's petition content, existing exemptions to
subpart H of 49 CFR part 383, potential impact on the States, and the
ELOS for an addition of a jet fuel exemption. These topic areas are
discussed individually below. In addition to the specific areas
detailed below, FMCSA also requests comment on other questions
regarding the agricultural aviation industry transport of fuel in
general which can be found in Section VI.6. Issues on Which the Agency
Seeks Further Comment.
1. Jet Fuel and Diesel Fuel
Both diesel and jet fuel are kerosene-based fuels and have similar
chemical characteristics, transportation requirements, and related
exceptions. Under the HM regulations, both diesel fuel and jet fuel are
classified as flammable liquids in the hazardous materials table (Sec.
172.101), but in most instances, may be reclassed as combustible
liquids if they have a flash point at or above 100 [deg]F (38[deg]C).
If properly reclassed as combustible liquids and transported in non-
bulk packaging, as defined in Sec. 171.8, diesel and jet fuel are not
subject to the requirements of Subchapter C of the HM regulations
unless the combustible liquid is a hazardous substance, a hazardous
waste, or a marine pollutant. This exception allows drivers to
potentially transport more than 1,000 gallons of diesel or jet fuel in
multiple non-bulk packagings without an HM endorsement. However, when
diesel or jet fuel are properly reclassed as combustible liquids but
transported in a bulk packaging, as defined in Sec. 171.8, they are
subject to some of the HM regulations including the placarding
requirements of subpart F of 49 CFR part 172 and the HM endorsement.
Additionally, PHMSA's Emergency Response Guidebook provides emergency
responders the same guidance on what to do during the initial stages of
a HM transportation incident.
2. Safety of the Trucking Operations of the Agricultural Aviation
Industry
FMCSA reviewed the supporting evidence provided by NAAA in its
petition. NAAA indicated that several factors support the safety of its
proposed HM exemption, primarily the similarity of jet fuel to diesel
fuel, for which an exemption option is already available. Additionally,
agriculture aviation operations typically take place in rural areas
with minimal traffic and during fair weather conditions. In many cases,
driving occurs only once or twice a week to a satellite facility. These
factors, in addition to the knowledge and skills required to obtain a
Class A CDL, create low-risk safety conditions. FMCSA agrees diesel
fuel is similar to jet fuel, as defined in this NPRM, and that
agricultural aviation transport of jet fuel generally occurs in lower
traffic areas which are linked to lower incident rates. In the FAST
Act, Congress implicitly determined that allowing States the option to
waive the HM endorsement for drivers transporting diesel fuel for the
four agriculture-related businesses now listed in Sec. 383.3(i), would
not adversely affect safety. Because jet fuel is chemically very
similar to diesel fuel and because agricultural aviation companies
transport jet fuel in the same rural areas, on roads with low traffic
density, as drivers transporting diesel fuel for the four agricultural
businesses listed in the FAST Act, FMCSA concludes that the ELOS
determination underlying the FAST Act waiver option is equally valid
and applicable to the option for a State waiver of the HM endorsement
proposed by this rulemaking.
3. Impact on the States
FMCSA is aware that States may have concerns if the HM knowledge
test were allowed to be waived. These concerns could include
undermining the purpose of a CDL and its intended level of safety,
opening the possibility for other industries to request such
exemptions, and inconsistency across the States that exercise
discretion with the proposed jet fuel exemption.
The Agency notes that, regardless of whether any State exercises
its discretion, a driver may still be required to obtain an HM
endorsement when
[[Page 96181]]
operating a CMV in a State that has not opted to waive the requirement.
This scenario could occur when jet fuel is transported across a State
line. As detailed earlier in the section V. B. Background, most
satellite locations utilizing exempted CMVs are expected to be within a
50-mile radius of the permanent facility. FMCSA therefore believes that
such discrepancies in endorsement requirements would be uncommon.
The Agency's experience with SDLAs' responses to codification of
the diesel fuel exemption indicate that 16 of 50 \7\ States choose to
grant the exemption. FMCSA believes that States with economies heavily
dependent on agriculture would be most likely to exercise a jet fuel
exemption. The Agency expects a similar level of use if this proposal
were to be made final, but requests comment on that assumption.
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\7\ FMCSA contacted the States, 50 of which responded as of July
25, 2024, to determine which States choose to grant the exemption
for diesel. The 16 States that grant the diesel exemption are:
Alabama, Connecticut, Iowa, Kansas, Kentucky, Minnesota,
Mississippi, Nebraska, North Dakota, New Mexico, New Jersey,
Oklahoma, Pennsylvania, South Dakota, Texas, and Wisconsin.
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States utilizing the exemption would need to provide training to
roadside officers on the application of the new rule. The added
development cost of the training would be minimal, however, due to the
similarity of the existing diesel fuel exemption.
4. Equivalent Level of Safety
As part of evaluating the NAAA petition, FMCSA considered whether
granting the exemption for jet fuel would likely maintain a level of
safety equivalent to, or greater than, the level achieved by the
current regulations. The Agency reviewed available safety records,
reports, and statistics to evaluate the safety of the proposal
presented in this NPRM.
In addition to other analysis, FMCSA evaluated the existing diesel
fuel exemption to determine if jet fuel has similar risk
characteristics. FMCSA reviewed the conference report that accompanied
the FAST Act, and found no indication that Congress intentionally
excluded the transportation of kerosene-based fuels other than diesel
fuels, such as fuels used in support of agriculture aviation
operations.\8\
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\8\ FAST Act Conference Report to Accompany H.R. 22. Dec. 1,
2015. https://www.congress.gov/114/crpt/hrpt357/CRPT-114hrpt357.pdf
(accessed June 21, 2024).
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FMCSA analyzed existing data sources available in the National
Highway Traffic Safety Administration's (NHTSA) Fatality Analysis
Reporting System and FMCSA's Motor Carrier Management Information
System (MCMIS) as well completing a 47-question survey of Agency field
staff directly involved in the enforcement of, and compliance with,
Federal regulations. The study did not return evidence of safety or
enforcement impacts directly attributable to the FAST Act provisions,
which include the HM endorsement exemption for diesel fuel.\9\
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\9\ FMCSA Congress Safety and Enforcement Impacts Report to
Congress. Feb. 2023. This document is available at: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2023-03/Safety%20and%20Enforcement%20Impacts%20Report%20Final%20February%202023.pdf and in the docket for this rulemaking (last accessed May 24,
2024).
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NAAA indicated that agricultural aviation fuel transportation
occurs most commonly in rural agricultural areas where there is less
traffic. This is supported by research which indicates, for example,
that 16.4 percent of crashes are on roads with 10,000 vehicles/day or
fewer, compared to 36.9 percent of crashes on roads with 10,000-50,000
vehicles, and 46.7 percent of crashes on roads with 50,000+
vehicles.\10\ Likewise, the 2005 FMCSA Report to Congress on the Large
Truck Crash Causation Study reviewed crashes by roadway type and
indicated the following: Interstate (25.1 percent), U.S. highway (24.2
percent), State highway (30.3 percent), country road (9.1 percent),
township (1.5 percent), municipality (6.8 percent), and other (2.6
percent).\11\
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\10\ Dong, Chunjiao, Qiao Dong, Baoshan Huang, Wei Hu, and
Shashi S. Nambisan. ``Estimating factors contributing to frequency
and severity of large truck-involved crashes.'' 2017. Journal of
Transportation Engineering, Part A: Systems 143, no. 8: 04017032.
\11\ Report to Congress on the Large Truck Crash Causation
Study. Federal Motor Carrier Safety Administration, U.S. Department
of Transportation: Washington, DC, USA (2005).
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Finally, the FAST Act addition of Sec. 383.3(i) does not provide
exemptions from additional regulatory requirements related to the
transportation of diesel fuel and, for the purposes of this rulemaking,
jet fuel. Because drivers transporting jet fuel are hazmat employees as
defined in 49 CFR 171.8, hazmat training is still required under parts
172 and 177 for the agricultural aviation industry.
PHMSA initial and recurring HM training requirements, found in
Sec. 172.704, include general awareness/familiarization with HM,
function specific training, safety training including emergency
response, and security awareness. Additionally, Sec. 177.816 requires
driver training that is very similar to the training required to obtain
the HM endorsement.
FMCSA finds that initiation of a rulemaking to provide States the
option to grant relief from the HM endorsement for agriculture aviation
operators seeking a Class A CDL to be reasonable, given the similarity
of diesel fuel to jet fuel and the available research.
5. Issues on Which the Agency Seeks Further Comment
The Agency requests comment on certain aspects of the agriculture
aviation industry and the use of CMVs to transport jet fuel.
a. FMCSA believes that States with economies heavily dependent on
agriculture would be most likely to exercise a jet fuel exemption. Is
this an accurate assumption?
b. Will this proposal lead to additional burden or costs to SDLAs
and/or roadside officers and any other law enforcement officials
responsible for enforcing CDL and HM endorsement compliance?
c. How many Class A CDL holders with HM endorsements are currently
involved in transporting jet fuel in quantities of 1,000 gallons or
less for agriculture aviation operations?
d. How many CMV drivers will enter the market for transporting jet
fuel in quantities of 1,000 gallons or less in participating States due
to relaxed requirements?
e. As part of the initial petition for rulemaking, the NAAA claimed
that a shortage of available drivers may prevent the use of a satellite
airstrip closer to the application site. How many satellite airstrips
would be available for use if this proposal were to be finalized? How
many refueling trips from application sites back to operational bases
(mixing-loading sites) do aircraft currently make, and how much fuel do
these trips require?
f. How much revenue do agriculture aviation operators lose as a
result of not having an available CMV driver with a Class A CDL and HM
endorsement? In a survey from 2005 cited in its initial petition for
rulemaking, the NAAA mentioned that one operator claimed that he loses
$2,500 to $5,000 per day as a result of not having an available CDL
holder and loses work as a result of this shortage. FMCSA is seeking an
estimate of the revenue the typical (average) agriculture aviation
operator loses per day by not having an available CMV driver to
transport jet fuel and therefore occasionally being unable to work.
[[Page 96182]]
VII. International Impacts
Motor carriers and drivers are subject to the laws and regulations
of the countries that they operate in, unless an international
agreement states otherwise. Drivers and carriers should be aware of the
regulatory differences between nations.
VIII. Section-by-Section Analysis
This section-by-section analysis describes the proposed changes in
numerical order. Part 383 ``Applicability'' would be amended in five
locations. Paragraph (i) of Sec. 383.3 would be amended to add ``or
jet fuel'' to the commodities States may exempt from the subpart H CDL
requirement. Paragraph (i)(1) would be amended by adding ``agriculture
aviation operation'' to the list of industries to which the hazardous
material endorsement exemption applies. Paragraph (i)(2)(i) would be
amended to add operators of vehicles transporting jet fuel in a
quantity of 1,000 or less gallons to the conditions of the hazardous
material exemption. Paragraph (i)(2)(ii) would be revised to indicate
that jet fuel or diesel fuel transported under this hazardous material
endorsement exemption must be clearly placarded in accordance with Part
172 subpart F and all other applicable HMRs.
Finally, section 383.5 ``Definitions'' would be amended to add a
definition for jet fuel. The definition includes all classes of fuel,
aviation, turbine engine as listed in the Hazardous Materials Table in
49 CFR 172.101, including Jet A, that are reclassed as a combustible
liquid in accordance with 49 CFR part 173.
IX. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), E.O. 14094
(Modernizing Regulatory Review), and DOT Regulatory Policies and
Procedures
FMCSA has considered the impact of this NPRM under E.O. 12866 (58
FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76
FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review,
and E.O. 14094 (88 FR 21879, Apr. 11, 2023) Modernizing Regulatory
Review. The Office of Information and Regulatory Affairs within the
Office of Management and Budget (OMB) determined that this NPRM is not
a significant regulatory action under section 3(f) of E.O. 12866, as
supplemented by E.O. 13563 and E.O. 14094, and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that order. Accordingly, OMB has not reviewed it under that E.O.
This proposal would amend the CDL regulations to allow States
additional flexibility to waive the HM endorsement requirement for
holders of a Class A CDL who are transporting aviation fuel in
quantities of 1,000 gallons or less in service of agricultural aviation
operations. Under the current regulations, before undertaking this
task, drivers working for agricultural aviation operators must obtain
an HM endorsement, which requires training, testing, and a TSA
background check. This proposal would allow flexibility for a limited
population of drivers while operating within their State of domicile to
provide services to agricultural aviation operations without obtaining
an HM endorsement.
This proposed rule is voluntary in nature and does not require that
States adopt any flexibilities contained herein. This proposed rule
could impact States, SDLAs, agricultural aviation operators, and
drivers. The analysis below discusses these affected entities, the need
for the regulation, and the costs and benefits that could result from
the proposed rule.
Affected Entities
States
States could be impacted by this proposal; however, FMCSA does not
know how many States would opt to waive the HM endorsement for
agricultural aviation businesses and their drivers under this proposal.
In response to Section 7208 of the FAST Act, 16 of 50 States chose to
grant the exemption for diesel fuel, which is similar to the jet fuel
exemption specified in this proposal. FMCSA assumes that there would be
a similar level of adoption for this proposal, and that the majority of
participating States would be those with agriculture-dependent
economies.
SDLAs
This proposal would impact SDLAs in States that choose to waive the
requirement for HM endorsements for Class A CDL holders employed by
agricultural aviation operators. SDLAs are responsible for
administering CDLs and endorsements for the motor carrier driver
population. SDLAs in participating States would need to become familiar
with these new requirements and update information on requirements for
CDL holders.
Drivers
This proposal would impact Class A CDL holders who are employed by
agricultural aviation operators in participating States and are
responsible for transporting jet fuel in quantities of 1,000 gallons or
less. Drivers serve as ``mixer-loaders'' for crop protection products
and load agricultural aircrafts with these products and fuel. Drivers
pump fuel from fixed base tanks into the fuel truck then transport it
to the satellite airstrip to load into agricultural aircraft. Under
this proposal, drivers operating Group A vehicles would still need to
hold a Class A CDL since this proposal would only allow States to waive
the HM endorsement requirement. These drivers would still be required
to obtain an HM endorsement when transferring jet fuel across State
lines.
FMCSA anticipates that any impacted drivers would work in the same
North American Industry Classification System (NAICS) industry as
agricultural aviation operators; 11511--support activities for crop
production. As of May 2023, Bureau of Labor Statistics (BLS) reports
that there are 5,430 heavy tractor-trailer drivers working in the 1151
industry.\12\ The 1151 industry is broader than agricultural aviation
operations, and as such drivers impacted by this rule would be a subset
of the 5,430 within this industry. Further, FMCSA does not know how
many drivers are employed by agricultural aviation operators in the
States that would waive the HM endorsement requirement. FMCSA requests
comment on the size of this population.
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\12\ BLS, date extracted: July 11, 2024.
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Agricultural Aviation Operators
According to the NAAA, there are approximately 1,560 agricultural
aviation businesses and 3,400 agricultural pilots (approximately 2,000
are hired pilots and 1,400 are owner/operators) operating in the United
States.\13\ FMCSA does not know how many agricultural aviation
businesses would be impacted by this rule.
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\13\ https://www.agaviation.org/about/about-ag-aviation/industry-facts-faqs/.
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Need for the Regulation
While both fueling and mixing and loading of crop-protection
products (e.g., fertilizers, insecticides, fungicides, or herbicides)
are normally conducted at a location where agriculture aviation
operators have permanent fuel tanks and mixing and loading facilities,
at times operators and pilots work so far from their permanent facility
that it is cost-effective to use a satellite landing strip and an on-
site fuel truck. When on-site fuel trucks or drivers are not available,
pilots must fly agricultural
[[Page 96183]]
aircraft back to their permanent mixing and loading facilities, which
limits the amount of land pilots can spray on a given day and increases
fuel costs, leading to reduced revenue for businesses.
Agricultural aviation businesses face a shortage of qualified
drivers because for a Class A CDL an HM endorsement is a marketable
asset, and these drivers are likely to find consistent, non-seasonal
work. Furthermore, these businesses tend to operate in remote, rural
areas that may be hundreds of miles away from the nearest SDLA. These
factors limit agricultural aviation businesses from meeting their
workforce needs.
Costs and Benefits
Costs
This proposal could result in costs to States and their licensing
agencies and may result in cost savings to drivers and to agricultural
aviation operators. Under this proposal, States and their SDLAs may
incur costs. SDLAs in participating States may need to update their
websites to reflect the changes in requirements for Class A CDL holders
transporting hazardous materials. Also, roadside officers in
participating States would need to undergo training to be able to
determine which drivers are operating under the waiver. FMCSA
anticipates that States would update their biannual training to include
a module on any changes to the CDL regulations and model any changes
resulting from this rule after the training for the diesel fuel
exemption. Because this training is ongoing, FMCSA anticipates that any
additional costs related to this change would be de minimis. The Agency
does not have data with which to estimate these potential State and
SDLA costs and requests comments on the scope and magnitude of costs in
participating States as a result of this proposal.
The proposal would result in cost savings for agricultural aviation
operators and the drivers these operators hire to mix, load, and
transport jet fuel in quantities of 1,000 gallons or less in
participating States. Under the proposal, Class A CDL holders would not
need to undergo the 4-step process of obtaining an HM endorsement:
completing a theory training module, passing a written exam, passing a
TSA Security Threat Assessment (STA), and paying an SDLA fee, if
applicable. As outlined below, the total cost per driver to obtain an
HM endorsement is $261.
Drivers must take theory training from training providers listed on
the FMCSA Training Provider Registry (TPR). FMCSA anticipates that
drivers impacted by this rule would opt to take online theory training
because they live in remote areas. There are over 1,000 providers
listed on the TPR that provide online HM endorsement training. FMCSA
took a random sample of approximately 180 providers and researched
websites to develop estimates of training cost and time. Based on those
websites that provided information, FMCSA found that the theory
training cost ranges from $16 to $200, with a mean cost of $96 and a
median cost of $99. These trainings tend to be self-paced, so few
companies advertise the average length of time to complete the
training. From those companies that provided information, the time
ranges from 1 hour to 16 hours, with a mean of 5 and a median of 2
hours. For estimation purposes, FMCSA anticipates that drivers impacted
by this rule would save a $99 theory training fee and 2 hours of
training, valued at $61.50. The opportunity cost of training time is
valued at the rate at which drivers would accept in exchange for it,
$30.75 per hour ($20.75 median hourly wage x 48.19 percent fringe
benefit rate).14 15
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\14\ Department of Labor (DOL), BLS. Occupational Employment
Statistics (OES). May 2023. Median hourly wage for Heavy and
Tractor-Trailer truck drivers in the 115110 occupation is $20.75.
Available at: http://www.bls.gov/oes/tables.htm (accessed July 11,
2024).
\15\ DOL, BLS. Employer Cost for Employee Compensation for
Transportation and Warehousing, Table 4: Table 4: Employer Costs for
Employee Compensation for private industry workers by occupational
and industry group. March 17, 2023. Available at: https://www.bls.gov/news.release/pdf/ecec.pdf (accessed Apr. 22, 2024).
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Drivers seeking an HM endorsement must complete a background
investigation through the TSA HM Endorsement Threat Assessment Program
on-line application, visiting an application center, and paying a non-
refundable fee of $86.50. This process must be completed every 5 years
in order to maintain the HM endorsement. Drivers operating under the
waiver provided in the proposed rule would not be required to complete
this process.
Lastly, Class A CDL holders operating under the waiver provided in
the proposed rule would not need to return to the SDLA to obtain an HM
endorsement and would not be required to pay the associated SDLA fee.
The SDLA HM endorsement fee changes by jurisdiction, ranging from $0 to
over $40. For illustrative purposes, FMCSA estimates the average SDLA
fee to be $14. As displayed in the table below, the total per driver
cost to obtain an HM endorsement is $261.
Table 1--Costs To Obtain HM Endorsement
------------------------------------------------------------------------
Component Value
------------------------------------------------------------------------
Theory Training Fee........................................... $99.00
Driver Opportunity Cost of Training........................... 61.50
TSA Background Fee............................................ 86.50
SDLA HM Endorsement Fee....................................... 14.00
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Total Cost Savings for each Class A CDL Holder............ 261.00
------------------------------------------------------------------------
FMCSA does not expect this proposal would immediately impact
drivers who currently hold a Class A CDL and HM endorsement. The
proposal could impact these drivers at the time of renewal by
eliminating the fees for the HM endorsement.
These estimates do not include the costs associated with traveling
to a TSA appointment center for the STA or traveling to the SDLA to
take an HM knowledge test or obtain the HM endorsement. In rural areas
where aerial agricultural operations are based, an SDLA may be several
hundred miles away. FMCSA does not have data on how far drivers must
travel to a TSA appointment center or an SDLA to pass the requirements
to operate a vehicle transporting jet fuel but welcomes comment on the
costs associated with this process.
Agricultural aviation operators would gain efficiencies from this
proposal because pilots working for operators in participating States
would not need to expend time and fuel to travel back to their home
bases to refuel. Instead, they would rely on CMV drivers with Class A
CDLs to transport jet fuel and crop protection products from permanent
facilities, which are often far from the agricultural fields, to
satellite airstrips. According to an NAAA survey from 2005, operators
shared that in many cases they could not work because drivers were not
available. The NAAA maintains that a shortage of available drivers with
HM endorsements prevents the use of satellite airstrips, limiting the
amount of land that can be sprayed on a given day and resulting in
increased jet fuel costs. FMCSA does not know the current fuel or time
(opportunity) costs these trips entail. In addition, FMCSA does not
know how many more satellite facilities would be available as a result
of this proposal and how many trips to mixing-loading facilities would
be avoided by agricultural pilots. As such, FMCSA cannot estimate the
cost savings that could result from this provision but requests comment
on the impact of this proposed change as well as any data that the
Agency can use to quantify the impact of this provision.
[[Page 96184]]
Benefits
FMCSA does not expect this proposed rule would negatively impact
CMV safety. For various reasons, drivers who transport jet fuel operate
in low-risk safety conditions and rarely experience crashes. According
to the previously mentioned survey from 2005 cited in the NAAA's
initial application for endorsement, 95.3 percent of agricultural
aviation operations had never been involved in any type of accident,
and 92.9 percent travel on rural roads with minimal traffic. The NAAA
also noted in this survey that drivers transporting fuel and chemicals
travel an average of 57.81 miles per day, although they drive only once
or twice a week to a satellite facility. Furthermore, the NAAA
currently provides highway safety education for a large portion of the
small business owners of agricultural aircraft operations throughout
the country through its Professional Agricultural Aviation Support
System.
The Agency has not identified any other benefits to society that
would result from the proposed change to Sec. 383.3(i).
B. Advance Notice of Proposed Rulemaking
Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance
notice of proposed rulemaking (ANPRM) or proceed with a negotiated
rulemaking if a proposed rule is likely to lead to the promulgation of
a major rule.\16\ As this proposed rule is not likely to result in the
promulgation of a major rule, the Agency is not required to issue an
ANPRM or to proceed with a negotiated rulemaking.
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\16\ A major rule means any rule that 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,
geographic regions, Federal, State, or local government agencies; 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. 802(4)).
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C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act 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 (SBREFA) 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 less than 50,000. Accordingly, 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. Therefore, FMCSA is publishing this initial regulatory
flexibility analysis (IRFA) to aid the public in commenting on the
potential small business impacts of the proposals in this NPRM.
An IRFA must contain the following:
1. A description of the reasons why the action is being considered;
2. A succinct statement of the objectives of, and legal basis for,
the proposed rule;
3. A description--and where feasible, an estimate of the number of
small entities to which the rule will apply;
4. A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record; and
5. An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
(1) A description of the reasons why the action is being
considered.
FMCSA proposes to amend the CDL regulations to allow States
additional flexibility to waive the HM endorsement \17\ requirement for
certain drivers transporting aviation fuel in furtherance of
agricultural aviation operations. Many such operations rely on aircraft
to apply pesticides or fertilizers to their crops. Agricultural
aviation operators often deliver aircraft fuel to staging areas some
distance from their headquarters. These companies, particularly in
remote, rural areas, have difficulty finding CDL holders with HM
endorsements to complete these deliveries.
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\17\ Endorsement as defined in Sec. 383.5 means an
authorization to an individual's CLP or CDL required to permit the
individual to operate certain types of commercial motor vehicles.
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(2) A succinct statement of the objectives of, and legal basis for,
the proposed rule.
The CDL regulations are based on the authority of CMVSA. Section
12013 of the CMVSA allowed the FHWA, FMCSA's predecessor agency, to
``waive, in whole or in part, application of any provision of this
title or any regulation issued under this title with respect to class
of persons or class of commercial motor vehicles if the Secretary
determines that such waiver is not contrary to the public interest and
does not diminish the safe operation of commercial motor vehicles''
(Pub. L. 99-570, Title XII, 100 Stat. 3207-170, 3207-186, Oct. 27,
1986, codified at 49 U.S.C. app. 2711). Following statutory
amendments,\18\ the language of the CMVSA's section 12013--that a
waiver must be ``not contrary to the public interest'' and ``not
diminish the safe operation of commercial motor vehicles''--has been
replaced by the standard that a waiver or an exemption must ``likely
achieve a level of safety that is equivalent to, or greater than, the
level that would be achieved in the absence of the waiver'' (49 U.S.C.
31315(a) or ``absent such exemption'' (49 U.S.C. 31315(b)(1)).
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\18\ Title 49, United States Code, was recodified in 1994, the
waiver authority in 49 U.S.C. app. 2711 was redesignated as 49
U.S.C. 31315 (Pub. L. 103-272, 108 Stat. 745, 1029, July 5, 1994),
and the Transportation Equity Act for the 21st Century (TEA-21)
revised 49 U.S.C. 31315 as ``Waivers, exemptions, and pilot
programs'' (Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998).
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FMCSA believes that the ELOS standard required by the waiver and
exemption provisions is the appropriate standard for this NPRM. The
1992 FHWA rule authorized the States to waive the knowledge and skills
tests otherwise required to obtain a CDL for employees of custom
harvesters, farm retail outlets and suppliers, agrichemical businesses,
and livestock feeders (57 FR 13650, Apr. 17, 1992) and required that
the State waiver option not diminish the safe operation of CMVs, and
all subsequent versions of the statute and regulation have retained
that ELOS concept. Congress itself clearly embraced that standard when
section 7208 was explicitly limited to the same four agriculture-
related businesses covered by the 1992 exemption.
Pursuant to 49 U.S.C. 31305(a), which sets forth the general
standards for the CDL rules, FMCSA ``shall prescribe regulations on
minimum standards for testing and ensuring the fitness of an individual
operating a commercial motor vehicle.'' Implicit in that provision is
the authority to decide whether certain CDL holders may meet the
``fitness'' requirement without complying with every part of the CDL
regulations. FMCSA believes that exempting employees of agricultural
aviation companies who hold Class A CDLs and transport jet fuel from
the
[[Page 96185]]
requirement to obtain a HM endorsement is consistent, both with the
standard of the CMVSA's section 12013 and with the current ELOS and
``fitness'' standards enacted by Congress. A waiver granted by a State
under this proposal, as under section 7208 of the FAST Act, would also
exempt eligible drivers from the TSA background records check in 49 CFR
part 1572, subpart B.
(3) A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply.
Under the standards of the RFA, as amended by SBREFA, the
participating States are not small entities. States are not considered
small entities because they do not meet the definition of a small
entity in section 601 of the RFA. Specifically, States are not
considered small governmental jurisdictions under section 601(5) of the
RFA, both because State government is not included among the various
levels of government listed in section 601(5), and because, even if
this were the case, no State or the District of Columbia has a
population of less than 50,000, which is the criterion by which a
governmental jurisdiction is considered small under section 601(5) of
the RFA.
Drivers are not considered small entities because they do not meet
the definition of a small entity in section 601 of the RFA.
Specifically, drivers are considered neither a small business under
section 601(3) of the RFA, nor are they considered a small organization
under section 601(4) of the RFA.
The Small Business Administration (SBA) defines the size standards
used to classify entities as small. SBA establishes separate standards
for each industry, as defined by the NAICS. FMCSA expects that CMV
drivers transporting jet fuel would largely be employed by aerial
application operators that operate within the Agriculture, Forestry,
Fishing and Hunting sector (NAICS sector 11), and more specifically,
within NACIS industry 115110 (support activities for crop production).
Industry groups within the 1151 NAICS industry have size standards
based on the amount of annual revenue and ranging from $8.5 million in
revenue to $34 million in revenue. There is not a specific NAICS
national industry for aerial application operators, and therefore it is
not possible to narrow down the Census data to determine the number of
small entities that are potentially impacted by this rule. Based on the
NAAA membership, FMCSA estimates that, if adopted in all jurisdictions,
this rule could impact up to 1,900 aerial application operators.\19\
FMCSA requests comment on how many of these entities would be
considered small based on the SBA size standards.
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\19\ National Agricultural Aviation Association (NAAA), https://www.agaviation.org/about/. Accessed: July 18, 2024
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(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirements and the types of professional skills necessary for
preparation of the report or record.
This proposal would not result in reporting, recordkeeping, or
other compliance requirements. This proposed rule is voluntary in
nature and does not require that States adopt any flexibilities
provided in the proposed rule. Further, the Agency did not identify
significant alternatives that would lessen the burden on small entities
beyond the proposed exemption in Sec. 383.3(i).
(5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
FMCSA is not aware of any relevant Federal rules that may
duplicate, overlap, or conflict with the proposed rule.
D. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857),
FMCSA wants to assist small entities in understanding this proposed
rule so they can better evaluate its effects on themselves and
participate in the rulemaking initiative. If the proposed rule would
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 (Office of the National
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-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 fairness and an explicit policy against retaliation for
exercising these rights.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
(UMRA) requires Federal agencies to assess the effects of their
discretionary regulatory actions. 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 $200 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2023 levels) or more in any 1 year. Though this NPRM would not result
in such an expenditure, and the analytical requirements of UMRA do not
apply as a result, the Agency discusses the effects of this rule
elsewhere in this preamble.
F. Paperwork Reduction Act
This proposed rule contains no new information collection
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).
G. 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 has determined that this rule would 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. Therefore, this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Impact
Statement.
H. Privacy
The Consolidated Appropriations Act, 2005,\20\ requires the Agency
to assess the privacy impact of a regulation that will affect the
privacy of individuals. This NPRM would not require the collection of
personally identifiable information (PII).
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\20\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
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The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency that receives records contained in a system
of records from a Federal agency for use in a matching program.
[[Page 96186]]
The E-Government Act of 2002,\21\ requires Federal agencies to
conduct a Privacy Impact Assessment (PIA) for new or substantially
changed technology that collects, maintains, or disseminates
information in an identifiable form. 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.
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\21\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec.
17, 2002).
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In addition, the Agency submitted a Privacy Threshold Assessment
(PTA) to evaluate the risks and effects the proposed rulemaking might
have on collecting, storing, and sharing personally identifiable
information. The PTA has been submitted to FMCSA's Privacy Officer for
review and preliminary adjudication and to DOT's Privacy Officer for
review and final adjudication.
I. 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.
J. National Environmental Policy Act of 1969
FMCSA analyzed this proposed rule pursuant to the National
Environmental Policy Act of 1969 (NEPA) (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), Appendix 2,
paragraph (6)(t)(2). The categorical exclusion (CE) in paragraph
(6)(t)(2) covers requirements ensuring that States have the appropriate
regulations concerning the qualification and licensing of persons who
apply and are issued a commercial driver's license. The proposed
requirements in this rule are covered by this CE.
K. Rulemaking Summary
As required by 5 U.S.C. 553(b)(4), a summary of this rule can be
found in the Abstract section of the Department's Unified Agenda entry
for this rulemaking at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2126-AC59.
List of Subjects in 49 CFR Part 383
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Drug testing, Highway safety, Motor carriers, Penalties, Safety,
Transportation.
Accordingly, FMCSA proposes to amend 49 CFR chapter III, part 383
as follows:
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES
0
1. The authority citation for part 383 continues to read as follows:
Authority: 49 U.S.C. 521, 31136, 31301, et seq., and 31502;
secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767;
sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of
Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141,
126 Stat. 405, 830; sec. 23019 of Pub. L. 117-58, 135 Stat. 429,
777; and 49 CFR 1.87.
0
2. Amend Sec. 383.3 by revising paragraph (i) to read as follows:
Sec. 383.3 Applicability.
* * * * *
(i) Hazardous materials endorsement exemption for certain drivers
transporting diesel or jet fuel. A State may waive the requirement for
a holder of a Class A commercial driver's license to obtain a hazardous
materials endorsement under this part, if the license holder is:
(1) Acting within the scope of the license holder's employment, and
within the State of domicile (or another State with a hazardous
materials endorsement exemption) as an employee of a custom harvester
operation, agrichemical business, farm retail outlet and supplier,
livestock feeder, or agriculture aviation operation; and
(2) Operating a service vehicle that is:
(i) Transporting diesel or jet fuel in a quantity of 3,785 liters
(1,000 gallons) or less; and
(ii) Clearly placarded in accordance with 49 CFR part 172 subpart F
and all other applicable HMRs.
* * * * *
0
3. Amend Sec. 383.5 by adding in alphabetical order a definition for
jet fuel to read as follows:
Sec. 383.5 Definitions.
* * * * *
Jet fuel means ``fuel, aviation, turbine engine'' as listed in the
Hazardous Materials Table in Sec. 172.101 of this title that is
reclassed as a combustible liquid in accordance with part 173 of this
title.
* * * * *
Issued under authority delegated in 49 CFR 1.87.
Vincent G. White,
Deputy Administrator.
[FR Doc. 2024-28097 Filed 12-3-24; 8:45 am]
BILLING CODE 4910-EX-P