Hours of Service; Limited 90-Day Waiver for the Distribution of Anhydrous Ammonia in Agricultural Operations, 13441-13444 [2010-6244]
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Federal Register / Vol. 75, No. 54 / Monday, March 22, 2010 / Rules and Regulations
(5) State Air Quality Control Plan—
Vol. II Analysis of Problems, Control
Actions, Section III.B. Anchorage
Transportation Control Program,
September 19, 2006
(6) Vol. III. Appendix to Vol. II, Sec
II, September 19, 2006
(7) Vol. III. Appendix to Vol. II, Sec
III.A, September 19, 2006
Authority: 42 U.S.C. 7401 et seq.
(8) Vol. III. Appendix to Vol. II, Sec
III.B, September 19, 2006
(9) Vol. III. Appendix to Vol. II, Sec
III.C, September 19, 2006
4. In § 81.302, the table entitled
‘‘Alaska—Carbon Monoxide’’ is
amended by revising the entry for
‘‘Fairbanks Area Fairbanks Election
District (part)’’ to read as follows:
■
PART 81—[AMENDED]
§ 81.302
3. The authority citation for Part 81
continues to read as follows:
■
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Alaska.
*
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ALASKA—CARBON MONOXIDE
Designation
Classification
Designated area
Date i
*
Fairbanks Area
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Date 1
*
September 27,
2004.
*
*
*
Attainment.
Type
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Type
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Fairbanks Election District (part)
Fairbanks nonattainment area boundary:
1. Township 1 South, Range 1 West, Sections 2 through 23,
the portion of Section 1 west of the Fort Wainwright military
reservation boundary and the portions of Section 24 north of
the Old Richardson Highway and west of the military reservation boundary, also, Township 1 South, Range 2 West, Sections 13 and 24, the portion of Section 12 southwest of
Chena Pump Road and the portions of Sections 14 and 23
southeast of the Chena river. Also, Township 1 South, Range
1 East, Sections 7, 8, and 18 and the portion of Section 19
north of the Richardson Highway. (Fairbanks and Ft. Wainwright)
2. Township 2 South, Range 2 East, the portions of Sections 9
and 10 southwest of the Richardson Highway. (North Pole)
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1 This
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[FR Doc. 2010–3235 Filed 3–19–10; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 395
Hours of Service; Limited 90-Day
Waiver for the Distribution of
Anhydrous Ammonia in Agricultural
Operations
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Grant of waiver.
emcdonald on DSK2BSOYB1PROD with RULES
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date is November 15, 1990, unless otherwise noted.
SUMMARY: FMCSA grants a limited 90day waiver from the Federal hours-ofservice (HOS) regulations for the
transportation of anhydrous ammonia
from any distribution point to a local
farm retailer or to the ultimate
consumer, and from a local farm retailer
to the ultimate consumer, as long as the
transportation takes place within a 100
air-mile radius of the retail or wholesale
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14:18 Mar 19, 2010
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distribution point. This waiver extends
the agricultural operations exemption
established by section 345 of the
National Highway System Designation
Act of 1995, as amended by the sections
4115 and 4130 of the Safe, Accountable,
Flexible, Efficient Transportation
Equity: A Legacy for Users (SAFETEA–
LU) to certain motor carriers engaged in
the distribution of anhydrous ammonia
during the 2010 spring planting season.
The Agency has determined that the
waiver would likely achieve a level of
safety that is equivalent to, or greater
than, the level that would be achieved
absent such exemption, based on the
terms and conditions imposed. This
waiver preempts inconsistent State and
local requirements applicable to
interstate commerce.
DATES: The waiver is effective March 22,
2010. The waiver expires on June 21,
2010.
FOR FURTHER INFORMATION CONTACT:
Thomas L. Yager, Chief, Driver and
Carrier Operations Division, Office of
Bus and Truck Standards and
Operations, Federal Motor Carrier Safety
Administration, 1200 New Jersey Ave.,
SE., Washington, DC 20590.
PO 00000
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E-mail: MCPSD@dot.gov. Phone (202)
366–4325.
SUPPLEMENTARY INFORMATION:
Legal Basis
The Transportation Equity Act for the
21st Century (TEA–21) (Pub. L. 105–
178, 112 Stat. 107, June 9, 1998)
provides the Secretary of Transportation
(the Secretary) the authority to grant
waivers from any of the Federal Motor
Carrier Safety Regulations (FMCSRs)
issued under Chapter 313 of Title 49 of
the United States Code or 49 U.S.C.
31136, to a person(s) seeking regulatory
relief. (49 U.S.C. 31136, 31315(a)) The
Secretary must make a determination
that the waiver is in the public interest,
and that it is likely to achieve a level of
safety that is equivalent to, or greater
than, the level of safety that would be
obtained in the absence of the waiver.
Individual waivers may only be granted
to a person for a specific unique, nonemergency event, for a period up to
three months. TEA–21 authorizes the
Secretary to grant waivers without
requesting public comment, and
without providing public notice.
The Administrator of FMCSA has
been delegated authority under 49 CFR
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1.73(g) to carry out the functions vested
in the Secretary by 49 U.S.C. chapter
311, subchapters I and III, relating to
commercial motor vehicle programs and
safety regulation.
Background
The FMCSA has been contacted by
members of Congress concerning the
Agency’s interpretation of the
agricultural exemption provided in
section 345(a) of the National Highway
System (NHS) Designation Act of 1995,
Public Law 104–59, November 28, 1995,
109 Stat. 568, 613, 49 U.S.C. 31136 note.
Constituents engaged in the
transportation of farm supplies—
particularly anhydrous ammonia—
contacted the members to express
concerns that the Agency’s
implementation of the agricultural
exemption results in the exclusion of
certain distribution activities from the
regulatory relief intended by Congress.
As amended by SAFETEA–LU, the
agricultural provision reads as follows:
emcdonald on DSK2BSOYB1PROD with RULES
Transportation of agricultural commodities
and farm supplies.—Regulations prescribed
by the Secretary under sections 31136 and
31502 regarding maximum driving and onduty time for drivers used by motor carriers
shall not apply during planting and harvest
periods, as determined by each State, to
drivers transporting agricultural commodities
or farm supplies for agricultural purposes in
a State if such transportation is limited to an
area within a 100 air mile radius from the
source of the commodities or the distribution
point for the farm supplies.
The Agency has long understood that
limited farm storage capacity
necessitates a ‘‘just in time’’ delivery
system from retail distributors of farm
supplies to farms (or other locations
where the farm supply product will be
used) during the busy planting and
harvesting seasons. Longstanding
FMCSA guidance on its HOS
regulations has consistently allowed
that the agricultural operations
exemption applies to the transportation
of farm supplies from the local farm
retailer to the ultimate consumer within
a 100 air-mile radius. FMCSA’s
interpretation, however, has not
extended the HOS exemption to
deliveries from wholesalers located at
port or terminal facilities to either local
farm retailers or farms. (See Question
33, 49 CFR 395.1 on the Agency’s Web
site: https://www.fmcsa.dot.gov.)
Question 33 reads as follows:
Question 33: How is ‘‘point of origin’’
defined for the purpose of § 395.1(k)?
Guidance: The term ‘‘point of origin’’ is not
used in the NHS Designation Act; the
statutory term is ‘‘source of the [agricultural]
commodities.’’ The exemption created by the
Act applies to two types of transportation.
The first type is transportation from the
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14:18 Mar 19, 2010
Jkt 220001
source of the agricultural commodity—where
the product is grown or raised—to a location
within a 100 air-mile radius of the source.
The second type is transportation from a
retail distribution point of the farm supply to
a location (farm or other location where the
farm supply product would be used) within
a 100 air-mile radius of the retail distribution
point.
The legislative history of the agricultural
exemption indicates it was intended to only
apply to retail store deliveries. Thus, it is
clear Congress intended to limit this
exemption to retail distributors of farm
supplies.
Second-stage movements, such as grain
hauled from an elevator (or sugar beets from
a cold storage facility) to a processing plant,
are more likely to fall outside the exempt
radius. Similarly, the exemption does not
apply to a wholesaler’s transportation of an
agricultural chemical to a local cooperative
because this is not a retail delivery to an
ultimate consumer, even if it is within the
100 air-mile radius.
The Agency’s re-examination of the
issue has made it clear that the
exclusive emphasis of the Agency’s
regulatory guidance on deliveries from
local retailers to the ultimate farm
consumer may not reflect today’s
economic reality. Like farms, local
retailers have limited storage capacity
and therefore must constantly replenish
their supplies during the planting and
harvesting seasons. They are part of the
‘‘just in time’’ distribution system that
extends from a wholesaler to the
ultimate consumer of the supplies.
Given this reality, FMCSA has
determined that is in the public interest
to issue a waiver to provide regulatory
relief for the transportation of
anhydrous ammonia during the 2010
spring planting season. This action is in
the public interest because it provides
limited regulatory relief to facilitate
planting activities that will ultimately
result in the production of agricultural
commodities at prices to which
consumers have become accustomed,
without compromising safety.
This waiver extends the agricultural
operations exemption from the Federal
HOS regulations to motor carriers in the
distribution system, provided that: (1)
The motor carrier is delivering
anhydrous ammonia; (2) none of the
transportation movements within the
distribution chain exceed a 100 air-mile
radius—whether from the retail or
wholesale distribution point; and (3) the
motor carrier has a ‘‘satisfactory’’ safety
rating or is unrated; motor carriers with
‘‘conditional’’ or ‘‘unsatisfactory’’ safety
ratings are prohibited from taking
advantage of the waiver. Therefore, the
waiver allows motor carriers with a
satisfactory safety rating or unrated
motor carriers to use the HOS
exemption when their drivers are
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delivering anhydrous ammonia from
any distribution point to a local farm
retailer or to the ultimate consumer, and
from a local farm retailer to the ultimate
consumer, as long as the transportation
takes place within a 100 air-mile radius
of the retail or wholesale distribution
point. This waiver is effective
immediately.
Safety Determination
The FMCSA compared safety
performance data for agricultural
carriers currently operating under the
statutory HOS exemption provided by
the NHS, as amended, with nonagricultural carriers that are not exempt
from HOS regulations to determine
whether the waiver would be likely to
achieve a level of safety that is
equivalent to, or greater than, the level
of safety that would be obtained in the
absence of the waiver. The data were
collected as part of a study,
‘‘Agricultural Commodity and Utility
Carriers Hours of Service Exemption
Analysis.’’ The final report from the
study will be published later this year.
The study was conducted in two
phases. Phase 1 compares the safety
performance of agricultural and nonagricultural carriers for the period 2005
through 2008, and also examines two
additional industries, livestock and
utility carriers, whose operations were
not exempt from HOS regulations prior
to the passage of SAFETEA–LU.1 The
Phase 1 analysis used carrier
registration, inspection and crash data
from FMCSA’s Motor Carrier
Management Information System
(MCMIS). The study used cargo
classification information on the
FMCSA Motor Carrier Identification
Report (Form MCS–150) in MCMIS to
identify the carrier’s industry group
(agricultural, livestock, or utility
carrier), and used MCS–150 information
to identify carriers operating within and
beyond a 100-air-mile radius. The
operating radius information was used
to create two agricultural carrier
subgroups: (1) Agricultural carriers with
100 percent of drivers operating within
a 100-air-mile radius; and (2)
agricultural carriers with 100 percent of
drivers operating beyond a 100-air-mile
radius. The analysis used the first
subgroup as representative of
agricultural carriers exempt from the
HOS requirements, and the second
subgroup as representative of
agricultural carriers not exempt from the
HOS requirements.
For the Phase 2 analysis, inspection
data of agricultural commodity and
utility carriers (which are also exempt
1 Section
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Federal Register / Vol. 75, No. 54 / Monday, March 22, 2010 / Rules and Regulations
from HOS regulations) was collected
during an FMCSA special study of a
sample of states. These data included
only those inspections occurring during
the states’ planting and harvesting
seasons and indicated both the
commodity being transported and
whether the driver was operating within
or beyond the 100-air-mile radius
exempt from HOS regulations. The
Phase 2 analysis assessed the safety
performance of the HOS exempt
agricultural commodity and utility
service carriers identified in the survey
in comparison with non-HOS exempt
carriers based on their out of service
(OOS) violation rates and crash rates.
For the purposes of considering
whether to issue a limited waiver,
FMCSA focused on the crash rate data
from the study. The Agency did not
place as much of an emphasis on the
OOS rates because there were no HOS
violation data to consider given that the
agricultural carriers for which data were
available were operating under a
statutory exemption from the HOS rule.
Differences between the OOS rates for
other issues such as driver
qualifications and vehicle defects and
deficiencies, while important in
considering overall safety management
controls of the carriers, were not
necessarily related to the potential
safety impact of the waiver.
The Phase 1 analysis indicates that
nationally, agricultural carriers
operating within a 100-air-mile radius
had lower crash rates per 100 power
units than those operating beyond this
radius, except for in 2008, when there
was no difference in the crash rates.
To provide additional validation of
the crash analysis, which uses power
unit data reported on the Form MCS–
150, a separate analysis was performed
using data only for carriers domiciled in
states participating in the Performance
and Registration Information Systems
Management (PRISM) program that
enforces MCS–150 updating.2 PRISM
links state motor vehicle registration
systems with carrier safety data in order
to identify unsafe commercial motor
carriers. The PRISM state carriers are
required to update their MCS–150
annually. By contrast, non-PRISM state
carriers are required by FMCSA to
update their MCS–150 biennially. As a
result, the PRISM state data are
considered more current and reliable
than non-PRISM state data where there
2 Current PRISM states that enforce the MCS–150
updating requirement are Alabama, Arizona,
Arkansas, Connecticut, Georgia, Iowa, Kentucky,
Louisiana, Maine, Minnesota, Missouri, Nebraska,
New Hampshire, New Mexico, North Carolina,
Ohio, South Carolina, South Dakota, Tennessee,
Utah, Vermont, Washington, and West Virginia.
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14:18 Mar 19, 2010
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is no direct implication for not updating
the data. Data from PRISM states that
enforce MCS–150 updating show that
agricultural carriers operating within a
100-air-mile radius had more varied
results, with crash rates higher than
carriers operating beyond a 100-air-mile
radius in 2008, lower in 2006 and 2007,
and nearly the same in 2005.
The Phase 2 analysis indicates that in
the four states participating in the
survey (ID, KS, MD, MI), agricultural
carriers that were subject to the HOS
requirements had higher crash rates per
100 power units than agricultural
carriers exempt from the HOS
requirements.
FMCSA Determination
In consideration of the above, FMCSA
has determined that it is in the public
interest to provide a limited waiver from
the Federal HOS regulations for
interstate motor carriers engaged in the
distribution of anhydrous ammonia
during the 2010 spring planting season.
A review of the available crash data
comparing motor carriers currently
operating under the NHS exemption
from the HOS regulations provides a
basis for determining that a limited
waiver would achieve a level of safety
that is equivalent to, or greater than, the
level that would be achieved absent
such exemption, based on the terms and
conditions imposed.
Terms and Conditions of the Waiver
The FMCSA is providing a waiver
from the requirements of 49 CFR part
395 concerning the HOS requirements
for drivers of property-carrying vehicles
for certain motor carriers engaged in the
distribution of anhydrous ammonia
during the 2010 spring planting season.
This waiver extends the agricultural
operations exemption from the Federal
HOS regulations to motor carriers in the
distribution system, provided that: (1)
The motor carrier is delivering
anhydrous ammonia; (2) none of the
transportation movements within the
distribution chain exceed a 100 air-mile
radius—whether from the retail or
wholesale distribution point; and (3) the
motor carrier has a ‘‘satisfactory’’ safety
rating or is ‘‘unrated;’’ motor carriers
with ‘‘conditional’’ or ‘‘unsatisfactory’’
safety ratings are prohibited from taking
advantage of the waiver.
The waiver allows ‘‘unrated’’ motor
carriers and those with a satisfactory
safety rating to use the HOS exemption
when their drivers are delivering
anhydrous ammonia from any
distribution point to a local farm retailer
or to the ultimate consumer, and from
a local farm retailer to the ultimate
consumer, as long as the transportation
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13443
takes place within a 100 air-mile radius
of the retail or wholesale distribution
point.
Safety Rating
Motor carriers that have received
compliance reviews are required to have
a ‘‘satisfactory’’ rating. The compliance
review is an on-site examination of a
motor carrier’s operations, including
records on drivers’ hours of service,
maintenance and inspection, driver
qualification, commercial driver’s
license requirements, financial
responsibility, accidents, hazardous
materials, and other safety and
transportation records to determine
whether a motor carrier meets the safety
fitness standard. The assignment of a
‘‘satisfactory’’ rating means the motor
carrier has in place adequate safety
management controls to comply with
the Federal safety regulations, and that
the safety management controls are
appropriate for the size and type of
operation of the motor carrier.
The FMCSA will also allow ‘‘unrated’’
carriers to take advantage of the waiver.
Unrated motor carriers are those that
have not received a compliance review.
The FMCSA is allowing unrated motor
carriers to participate because it would
be unfair to exclude them simply
because they were not selected by the
Agency for a compliance review. The
absence of a compliance review is in no
way an indication that the carrier has
done anything wrong or has safety
problems.
The Agency is not allowing motor
carriers with conditional or
unsatisfactory ratings to participate
because both of those ratings indicate
that the carrier has safety management
control problems. There is little reason
to believe that carriers rated either
unsatisfactory or conditional could be
relied upon to comply with the terms
and conditions of the waiver.
Accident and Hazardous Materials
Reporting Requirement
Within 10 business days following an
accident (as defined in 49 CFR 390.5) or
any unintentional discharge of
anhydrous ammonia that requires the
submission of the Department of
Transportation Hazardous Materials
Incident Report (DOT Form F 5800.1)
(see 49 CFR 171.16) involving any of the
motor carrier’s CMVs, irrespective of
whether the CMV was being operated by
a participating driver, the motor carrier
must submit the following information:
(a) Date of the accident;
(b) City or town in which the accident
occurred, or city or town closest to the
scene of the accident;
(c) Driver’s name and license number;
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(d) Vehicle number and State license
number;
(e) Number of injuries;
(f) Number of fatalities;
(g) Whether hazardous materials,
other than fuel spilled from the fuel
tanks of the motor vehicles involved in
the accident, were released;
(h) The police-reported cause of the
accident;
(i) Whether the driver was cited for
violating any traffic laws, motor carrier
safety regulations, or hazardous
materials discharge; and
(j) Whether the driver was operating
under the waiver, and if so, an estimate
of the total driving time, on-duty time
for the day of the accident and each of
the seven calendar days prior to the
accident.
Duration of the Waiver
The waiver is effective upon
publication in the Federal Register and
is valid until June 21, 2010, unless
revoked earlier by the FMCSA. The
exemption preempts inconsistent State
or local requirements applicable to
interstate commerce.
Safety Oversight of Carriers Operating
Under the Waiver
The FMCSA expects that any motor
carrier operating under the terms and
conditions of the waiver will maintain
its safety record. However, should any
deterioration occur, the FMCSA will,
consistent with the statutory
requirements of TEA–21, take all steps
necessary to protect the public interest.
Use of the waiver is voluntary, and the
FMCSA will immediately revoke the
waiver for any interstate motor carrier or
driver for failure to comply with the
terms and conditions waiver.
Issued on: March 17, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010–6244 Filed 3–19–10; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 0910131363–0087–02]
emcdonald on DSK2BSOYB1PROD with RULES
RIN 0648–XV34
Fisheries of the Exclusive Economic
Zone Off Alaska; Reallocation of
Pacific Cod in the Bering Sea and
Aleutian Islands Management Area
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
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14:18 Mar 19, 2010
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Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; reallocation.
SUMMARY: NMFS is reallocating the
projected unused amount of Pacific cod
from vessels using jig gear to catcher
vessels less than 60 feet (18.3 meters)
length overall (LOA) using hook-andline or pot gear in the Bering Sea and
Aleutian Islands management area
(BSAI). This action is necessary to allow
the A season apportionment of the 2010
total allowable catch (TAC) of Pacific
cod to be harvested.
DATES: Effective March 17, 2010,
through 2400 hrs, Alaska local time
(A.l.t.), December 31, 2010.
FOR FURTHER INFORMATION CONTACT:
Mary Furuness, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
BSAI according to the Fishery
Management Plan for Groundfish of the
Bering Sea and Aleutian Islands
Management Area (FMP) prepared by
the North Pacific Fishery Management
Council under authority of the
Magnuson-Stevens Fishery
Conservation and Management Act.
Regulations governing fishing by U.S.
vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
The A season apportionment of the
2010 Pacific cod TAC specified for
vessels using jig gear in the BSAI is
1,266 metric tons (mt) as established by
the final 2010 and 2011 harvest
specifications for groundfish in the
BSAI (75 FR 11788, March 12, 2010) for
the period 1200 hrs, A.l.t., January 1,
2010, through 1200 hrs, A.l.t., April 30,
2010.
The Administrator, Alaska Region,
NMFS, has determined that jig vessels
will not be able to harvest 1,200 mt of
the A season apportionment of the 2010
Pacific cod TAC allocated to those
vessels under § 679.20(a)(7)(ii)(A)(1).
Therefore, in accordance with
§ 679.20(a)(7)(iii)(A), NMFS apportions
1,200 mt of Pacific cod from the A
season jig gear apportionment to catcher
vessels less than 60 feet (18.3 meters
(m)) LOA using hook-and-line or pot
gear.
The harvest specifications for Pacific
cod included in the final 2010 harvest
specifications for groundfish in the
BSAI (75 FR 11788, March 12, 2010) are
revised as follows: 66 mt to the A season
apportionment for vessels using jig gear
and 4,198 mt to catcher vessels less than
60 feet (18.3 m) LOA using hook-andline or pot gear.
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Classification
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA
(AA), finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) as such requirement is
impracticable and contrary to the public
interest. This requirement is
impracticable and contrary to the public
interest as it would prevent NMFS from
responding to the most recent fisheries
data in a timely fashion and would
delay the reallocation of Pacific cod
specified from jig vessels to catcher
vessels less than 60 feet (18.3 m) LOA
using hook-and-line or pot gear. Since
the fishery is currently open, it is
important to immediately inform the
industry as to the revised allocations.
Immediate notification is necessary to
allow for the orderly conduct and
efficient operation of this fishery, to
allow the industry to plan for the fishing
season, and to avoid potential
disruption to the fishing fleet as well as
processors. NMFS was unable to
publish a notice providing time for
public comment because the most
recent, relevant data only became
available as of March 16, 2010.
The AA also finds good cause to
waive the 30–day delay in the effective
date of this action under 5 U.S.C.
553(d)(3). This finding is based upon
the reasons provided above for waiver of
prior notice and opportunity for public
comment.
This action is required by § 679.20
and is exempt from review under
Executive Order 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: March 17, 2010.
Emily H. Menashes,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2010–6228 Filed 3–17–10; 4:15 pm]
BILLING CODE 3510–22–S
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]]>Agencies
[Federal Register Volume 75, Number 54 (Monday, March 22, 2010)]
[Rules and Regulations]
[Pages 13441-13444]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-6244]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 395
Hours of Service; Limited 90-Day Waiver for the Distribution of
Anhydrous Ammonia in Agricultural Operations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Grant of waiver.
-----------------------------------------------------------------------
SUMMARY: FMCSA grants a limited 90-day waiver from the Federal hours-
of-service (HOS) regulations for the transportation of anhydrous
ammonia from any distribution point to a local farm retailer or to the
ultimate consumer, and from a local farm retailer to the ultimate
consumer, as long as the transportation takes place within a 100 air-
mile radius of the retail or wholesale distribution point. This waiver
extends the agricultural operations exemption established by section
345 of the National Highway System Designation Act of 1995, as amended
by the sections 4115 and 4130 of the Safe, Accountable, Flexible,
Efficient Transportation Equity: A Legacy for Users (SAFETEA-LU) to
certain motor carriers engaged in the distribution of anhydrous ammonia
during the 2010 spring planting season. The Agency has determined that
the waiver would likely achieve a level of safety that is equivalent
to, or greater than, the level that would be achieved absent such
exemption, based on the terms and conditions imposed. This waiver
preempts inconsistent State and local requirements applicable to
interstate commerce.
DATES: The waiver is effective March 22, 2010. The waiver expires on
June 21, 2010.
FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, Driver and
Carrier Operations Division, Office of Bus and Truck Standards and
Operations, Federal Motor Carrier Safety Administration, 1200 New
Jersey Ave., SE., Washington, DC 20590.
E-mail: MCPSD@dot.gov. Phone (202) 366-4325.
SUPPLEMENTARY INFORMATION:
Legal Basis
The Transportation Equity Act for the 21st Century (TEA-21) (Pub.
L. 105-178, 112 Stat. 107, June 9, 1998) provides the Secretary of
Transportation (the Secretary) the authority to grant waivers from any
of the Federal Motor Carrier Safety Regulations (FMCSRs) issued under
Chapter 313 of Title 49 of the United States Code or 49 U.S.C. 31136,
to a person(s) seeking regulatory relief. (49 U.S.C. 31136, 31315(a))
The Secretary must make a determination that the waiver is in the
public interest, and that it is likely to achieve a level of safety
that is equivalent to, or greater than, the level of safety that would
be obtained in the absence of the waiver. Individual waivers may only
be granted to a person for a specific unique, non-emergency event, for
a period up to three months. TEA-21 authorizes the Secretary to grant
waivers without requesting public comment, and without providing public
notice.
The Administrator of FMCSA has been delegated authority under 49
CFR
[[Page 13442]]
1.73(g) to carry out the functions vested in the Secretary by 49 U.S.C.
chapter 311, subchapters I and III, relating to commercial motor
vehicle programs and safety regulation.
Background
The FMCSA has been contacted by members of Congress concerning the
Agency's interpretation of the agricultural exemption provided in
section 345(a) of the National Highway System (NHS) Designation Act of
1995, Public Law 104-59, November 28, 1995, 109 Stat. 568, 613, 49
U.S.C. 31136 note. Constituents engaged in the transportation of farm
supplies--particularly anhydrous ammonia--contacted the members to
express concerns that the Agency's implementation of the agricultural
exemption results in the exclusion of certain distribution activities
from the regulatory relief intended by Congress.
As amended by SAFETEA-LU, the agricultural provision reads as
follows:
Transportation of agricultural commodities and farm supplies.--
Regulations prescribed by the Secretary under sections 31136 and
31502 regarding maximum driving and on-duty time for drivers used by
motor carriers shall not apply during planting and harvest periods,
as determined by each State, to drivers transporting agricultural
commodities or farm supplies for agricultural purposes in a State if
such transportation is limited to an area within a 100 air mile
radius from the source of the commodities or the distribution point
for the farm supplies.
The Agency has long understood that limited farm storage capacity
necessitates a ``just in time'' delivery system from retail
distributors of farm supplies to farms (or other locations where the
farm supply product will be used) during the busy planting and
harvesting seasons. Longstanding FMCSA guidance on its HOS regulations
has consistently allowed that the agricultural operations exemption
applies to the transportation of farm supplies from the local farm
retailer to the ultimate consumer within a 100 air-mile radius. FMCSA's
interpretation, however, has not extended the HOS exemption to
deliveries from wholesalers located at port or terminal facilities to
either local farm retailers or farms. (See Question 33, 49 CFR 395.1 on
the Agency's Web site: https://www.fmcsa.dot.gov.) Question 33 reads as
follows:
Question 33: How is ``point of origin'' defined for the purpose
of Sec. 395.1(k)?
Guidance: The term ``point of origin'' is not used in the NHS
Designation Act; the statutory term is ``source of the
[agricultural] commodities.'' The exemption created by the Act
applies to two types of transportation. The first type is
transportation from the source of the agricultural commodity--where
the product is grown or raised--to a location within a 100 air-mile
radius of the source. The second type is transportation from a
retail distribution point of the farm supply to a location (farm or
other location where the farm supply product would be used) within a
100 air-mile radius of the retail distribution point.
The legislative history of the agricultural exemption indicates
it was intended to only apply to retail store deliveries. Thus, it
is clear Congress intended to limit this exemption to retail
distributors of farm supplies.
Second-stage movements, such as grain hauled from an elevator
(or sugar beets from a cold storage facility) to a processing plant,
are more likely to fall outside the exempt radius. Similarly, the
exemption does not apply to a wholesaler's transportation of an
agricultural chemical to a local cooperative because this is not a
retail delivery to an ultimate consumer, even if it is within the
100 air-mile radius.
The Agency's re-examination of the issue has made it clear that the
exclusive emphasis of the Agency's regulatory guidance on deliveries
from local retailers to the ultimate farm consumer may not reflect
today's economic reality. Like farms, local retailers have limited
storage capacity and therefore must constantly replenish their supplies
during the planting and harvesting seasons. They are part of the ``just
in time'' distribution system that extends from a wholesaler to the
ultimate consumer of the supplies.
Given this reality, FMCSA has determined that is in the public
interest to issue a waiver to provide regulatory relief for the
transportation of anhydrous ammonia during the 2010 spring planting
season. This action is in the public interest because it provides
limited regulatory relief to facilitate planting activities that will
ultimately result in the production of agricultural commodities at
prices to which consumers have become accustomed, without compromising
safety.
This waiver extends the agricultural operations exemption from the
Federal HOS regulations to motor carriers in the distribution system,
provided that: (1) The motor carrier is delivering anhydrous ammonia;
(2) none of the transportation movements within the distribution chain
exceed a 100 air-mile radius--whether from the retail or wholesale
distribution point; and (3) the motor carrier has a ``satisfactory''
safety rating or is unrated; motor carriers with ``conditional'' or
``unsatisfactory'' safety ratings are prohibited from taking advantage
of the waiver. Therefore, the waiver allows motor carriers with a
satisfactory safety rating or unrated motor carriers to use the HOS
exemption when their drivers are delivering anhydrous ammonia from any
distribution point to a local farm retailer or to the ultimate
consumer, and from a local farm retailer to the ultimate consumer, as
long as the transportation takes place within a 100 air-mile radius of
the retail or wholesale distribution point. This waiver is effective
immediately.
Safety Determination
The FMCSA compared safety performance data for agricultural
carriers currently operating under the statutory HOS exemption provided
by the NHS, as amended, with non-agricultural carriers that are not
exempt from HOS regulations to determine whether the waiver would be
likely to achieve a level of safety that is equivalent to, or greater
than, the level of safety that would be obtained in the absence of the
waiver. The data were collected as part of a study, ``Agricultural
Commodity and Utility Carriers Hours of Service Exemption Analysis.''
The final report from the study will be published later this year.
The study was conducted in two phases. Phase 1 compares the safety
performance of agricultural and non-agricultural carriers for the
period 2005 through 2008, and also examines two additional industries,
livestock and utility carriers, whose operations were not exempt from
HOS regulations prior to the passage of SAFETEA-LU.\1\ The Phase 1
analysis used carrier registration, inspection and crash data from
FMCSA's Motor Carrier Management Information System (MCMIS). The study
used cargo classification information on the FMCSA Motor Carrier
Identification Report (Form MCS-150) in MCMIS to identify the carrier's
industry group (agricultural, livestock, or utility carrier), and used
MCS-150 information to identify carriers operating within and beyond a
100-air-mile radius. The operating radius information was used to
create two agricultural carrier subgroups: (1) Agricultural carriers
with 100 percent of drivers operating within a 100-air-mile radius; and
(2) agricultural carriers with 100 percent of drivers operating beyond
a 100-air-mile radius. The analysis used the first subgroup as
representative of agricultural carriers exempt from the HOS
requirements, and the second subgroup as representative of agricultural
carriers not exempt from the HOS requirements.
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\1\ Section 4130(a).
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For the Phase 2 analysis, inspection data of agricultural commodity
and utility carriers (which are also exempt
[[Page 13443]]
from HOS regulations) was collected during an FMCSA special study of a
sample of states. These data included only those inspections occurring
during the states' planting and harvesting seasons and indicated both
the commodity being transported and whether the driver was operating
within or beyond the 100-air-mile radius exempt from HOS regulations.
The Phase 2 analysis assessed the safety performance of the HOS exempt
agricultural commodity and utility service carriers identified in the
survey in comparison with non-HOS exempt carriers based on their out of
service (OOS) violation rates and crash rates.
For the purposes of considering whether to issue a limited waiver,
FMCSA focused on the crash rate data from the study. The Agency did not
place as much of an emphasis on the OOS rates because there were no HOS
violation data to consider given that the agricultural carriers for
which data were available were operating under a statutory exemption
from the HOS rule. Differences between the OOS rates for other issues
such as driver qualifications and vehicle defects and deficiencies,
while important in considering overall safety management controls of
the carriers, were not necessarily related to the potential safety
impact of the waiver.
The Phase 1 analysis indicates that nationally, agricultural
carriers operating within a 100-air-mile radius had lower crash rates
per 100 power units than those operating beyond this radius, except for
in 2008, when there was no difference in the crash rates.
To provide additional validation of the crash analysis, which uses
power unit data reported on the Form MCS-150, a separate analysis was
performed using data only for carriers domiciled in states
participating in the Performance and Registration Information Systems
Management (PRISM) program that enforces MCS-150 updating.\2\ PRISM
links state motor vehicle registration systems with carrier safety data
in order to identify unsafe commercial motor carriers. The PRISM state
carriers are required to update their MCS-150 annually. By contrast,
non-PRISM state carriers are required by FMCSA to update their MCS-150
biennially. As a result, the PRISM state data are considered more
current and reliable than non-PRISM state data where there is no direct
implication for not updating the data. Data from PRISM states that
enforce MCS-150 updating show that agricultural carriers operating
within a 100-air-mile radius had more varied results, with crash rates
higher than carriers operating beyond a 100-air-mile radius in 2008,
lower in 2006 and 2007, and nearly the same in 2005.
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\2\ Current PRISM states that enforce the MCS-150 updating
requirement are Alabama, Arizona, Arkansas, Connecticut, Georgia,
Iowa, Kentucky, Louisiana, Maine, Minnesota, Missouri, Nebraska, New
Hampshire, New Mexico, North Carolina, Ohio, South Carolina, South
Dakota, Tennessee, Utah, Vermont, Washington, and West Virginia.
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The Phase 2 analysis indicates that in the four states
participating in the survey (ID, KS, MD, MI), agricultural carriers
that were subject to the HOS requirements had higher crash rates per
100 power units than agricultural carriers exempt from the HOS
requirements.
FMCSA Determination
In consideration of the above, FMCSA has determined that it is in
the public interest to provide a limited waiver from the Federal HOS
regulations for interstate motor carriers engaged in the distribution
of anhydrous ammonia during the 2010 spring planting season. A review
of the available crash data comparing motor carriers currently
operating under the NHS exemption from the HOS regulations provides a
basis for determining that a limited waiver would achieve a level of
safety that is equivalent to, or greater than, the level that would be
achieved absent such exemption, based on the terms and conditions
imposed.
Terms and Conditions of the Waiver
The FMCSA is providing a waiver from the requirements of 49 CFR
part 395 concerning the HOS requirements for drivers of property-
carrying vehicles for certain motor carriers engaged in the
distribution of anhydrous ammonia during the 2010 spring planting
season.
This waiver extends the agricultural operations exemption from the
Federal HOS regulations to motor carriers in the distribution system,
provided that: (1) The motor carrier is delivering anhydrous ammonia;
(2) none of the transportation movements within the distribution chain
exceed a 100 air-mile radius--whether from the retail or wholesale
distribution point; and (3) the motor carrier has a ``satisfactory''
safety rating or is ``unrated;'' motor carriers with ``conditional'' or
``unsatisfactory'' safety ratings are prohibited from taking advantage
of the waiver.
The waiver allows ``unrated'' motor carriers and those with a
satisfactory safety rating to use the HOS exemption when their drivers
are delivering anhydrous ammonia from any distribution point to a local
farm retailer or to the ultimate consumer, and from a local farm
retailer to the ultimate consumer, as long as the transportation takes
place within a 100 air-mile radius of the retail or wholesale
distribution point.
Safety Rating
Motor carriers that have received compliance reviews are required
to have a ``satisfactory'' rating. The compliance review is an on-site
examination of a motor carrier's operations, including records on
drivers' hours of service, maintenance and inspection, driver
qualification, commercial driver's license requirements, financial
responsibility, accidents, hazardous materials, and other safety and
transportation records to determine whether a motor carrier meets the
safety fitness standard. The assignment of a ``satisfactory'' rating
means the motor carrier has in place adequate safety management
controls to comply with the Federal safety regulations, and that the
safety management controls are appropriate for the size and type of
operation of the motor carrier.
The FMCSA will also allow ``unrated'' carriers to take advantage of
the waiver. Unrated motor carriers are those that have not received a
compliance review. The FMCSA is allowing unrated motor carriers to
participate because it would be unfair to exclude them simply because
they were not selected by the Agency for a compliance review. The
absence of a compliance review is in no way an indication that the
carrier has done anything wrong or has safety problems.
The Agency is not allowing motor carriers with conditional or
unsatisfactory ratings to participate because both of those ratings
indicate that the carrier has safety management control problems. There
is little reason to believe that carriers rated either unsatisfactory
or conditional could be relied upon to comply with the terms and
conditions of the waiver.
Accident and Hazardous Materials Reporting Requirement
Within 10 business days following an accident (as defined in 49 CFR
390.5) or any unintentional discharge of anhydrous ammonia that
requires the submission of the Department of Transportation Hazardous
Materials Incident Report (DOT Form F 5800.1) (see 49 CFR 171.16)
involving any of the motor carrier's CMVs, irrespective of whether the
CMV was being operated by a participating driver, the motor carrier
must submit the following information:
(a) Date of the accident;
(b) City or town in which the accident occurred, or city or town
closest to the scene of the accident;
(c) Driver's name and license number;
[[Page 13444]]
(d) Vehicle number and State license number;
(e) Number of injuries;
(f) Number of fatalities;
(g) Whether hazardous materials, other than fuel spilled from the
fuel tanks of the motor vehicles involved in the accident, were
released;
(h) The police-reported cause of the accident;
(i) Whether the driver was cited for violating any traffic laws,
motor carrier safety regulations, or hazardous materials discharge; and
(j) Whether the driver was operating under the waiver, and if so,
an estimate of the total driving time, on-duty time for the day of the
accident and each of the seven calendar days prior to the accident.
Duration of the Waiver
The waiver is effective upon publication in the Federal Register
and is valid until June 21, 2010, unless revoked earlier by the FMCSA.
The exemption preempts inconsistent State or local requirements
applicable to interstate commerce.
Safety Oversight of Carriers Operating Under the Waiver
The FMCSA expects that any motor carrier operating under the terms
and conditions of the waiver will maintain its safety record. However,
should any deterioration occur, the FMCSA will, consistent with the
statutory requirements of TEA-21, take all steps necessary to protect
the public interest. Use of the waiver is voluntary, and the FMCSA will
immediately revoke the waiver for any interstate motor carrier or
driver for failure to comply with the terms and conditions waiver.
Issued on: March 17, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-6244 Filed 3-19-10; 8:45 am]
BILLING CODE 4910-EX-P
