Hours of Service of Drivers: California Farm Bureau Federation; Granting of Application for Exemption, 35425-35427 [2015-15088]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 80, Number 118 (Friday, June 19, 2015)]
[Notices]
[Pages 35425-35427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-15088]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0445]


Hours of Service of Drivers: California Farm Bureau Federation; 
Granting of Application for Exemption

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

ACTION: Notice of final disposition; granting of application for 
exemption.

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SUMMARY: FMCSA announces the granting of an exemption from the 30-
minute rest break provision of the Agency's hours-of-service (HOS) 
regulations for certain commercial motor vehicle (CMV) drivers 
transporting bees. FMCSA has analyzed both the exemption application 
submitted by the California Farm Bureau Federation (CFBF) on behalf of 
its members and other agricultural organizations and the public 
comments received in response to the Agency's January 8, 2015, Federal 
Register notice. The Agency has determined that it is appropriate to 
grant an exemption to ensure the well-being of Nation's bees during 
interstate transportation by CMV. The exemption is consistent with the 
goals and strategies to protect the health of honey bees and other 
pollinators as stated in the ``Presidential Memorandum Creating a 
Federal Strategy to Promote the Health of Honey Bees and Other 
Pollinators,'' issued on June 20, 2014. The exemption, subject to the 
terms and conditions imposed, will likely achieve a level of safety 
that is equivalent to, or greater than, the level that would be 
achieved absent such exemption. This exemption preempts inconsistent 
State and local requirements.

DATES: This exemption is effective June 19, 2015 and expires on June 
19, 2017.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver 
and Carrier Operations Division; Office of Carrier, Driver, and Vehicle 
Safety Standards; Telephone: 202-366-4325. Email: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION:

Legal Basis

    Section 4007(a) of the Transportation Equity Act for the 21st 
Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998) 
authorized exemptions from any of the Federal Motor Carrier Safety 
Regulations (FMCSRs) issued under chapter 313 or section 31136 of title 
49 of the United States Code (49 U.S.C. 31136(e), 31315(b)). Prior to 
granting an exemption, the Secretary must request public comment and 
make a determination that the exemption 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 exemption. Exemptions may be 
granted for a period of up to 2 years and may be renewed.
    The FMCSA Administrator has been delegated authority under 49 CFR 
1.87(e)(1) and (f) to carry out the functions vested in the Secretary 
by 49 U.S.C. chapter 313 and subchapters I and III of chapter 311, 
relating, respectively, to the commercial driver's license program and 
to CMV programs and safety regulation.

Background Information

    On December 27, 2011, FMCSA published a final rule amending its 
hours-of-service (HOS) regulations for drivers of property-carrying 
CMVs. The final rule included a new provision requiring drivers to take 
a rest break during the work day under certain circumstances. Drivers 
may drive a CMV only if a period of 8 hours or less has passed since 
the end of their last off-duty or sleeper-berth (S/B) period of at 
least 30 minutes. FMCSA did not specify when drivers must take the 
minimum 30-minute break, but the rule requires that they wait no longer 
than 8 hours after the last off-duty or S/B period of that length or 
longer to take the break if they want to drive a CMV. This requirement 
took effect on July 1, 2013.
    On August 2, 2013, the U.S. Court of Appeals for the District of 
Columbia Circuit issued its opinion on petitions for review of the 2011 
HOS rule filed by the American Trucking Associations, Public Citizen, 
and others [American Trucking Associations, Inc., v. Federal Motor 
Carrier Safety Administration, 724 F.3d 243 (D.C. Cir. 2013)]. The 
Court upheld the 2011 HOS regulations in all respects except for the 
30-minute break provision as it applies to short-haul drivers.
    The Court vacated the rest-break requirement of 49 CFR 
395.3(a)(3)(ii) with respect to any driver qualified to operate under 
either of the ``short haul' '' exceptions outlined in 49 CFR 
395.1(e)(1) or (2). Specifically, the following drivers are no longer 
subject to the 30-minute break requirement:
     All drivers (whether they hold a commercial driver's 
license (CDL) or not) who operate within 100 air-miles of their normal 
work reporting location and satisfy the time limitations and 
recordkeeping requirements of 49 CFR 395.1(e)(1), and

[[Page 35426]]

     All non-CDL drivers who operate within a 150 air-mile 
radius of the location where the driver reports for duty and satisfy 
the time limitations and recordkeeping requirements of 49 CFR 
395.1(e)(2).
    On October 28, 2013, the Agency published a final rule codifying 
the court decision (78 FR 64179).

Application for Exemption

    On July 2, 2014, the California Farm Bureau Federation (CFBF) 
requested a 90-day waiver of the 30-minute rest-break requirement for 
drivers of CMVs engaged in the transportation of domesticated honey 
bees. CFBF is a trade organization representing various stakeholders in 
the beekeeping industry, including those who provide and utilize bee-
pollination services. A copy of the request is included in the docket 
referenced at the beginning of this notice. The CFBF cited as a 
precedent for its request the 1-year exemption from the 30-minute break 
requirement granted the National Pork Producers Council on behalf of 
drivers transporting livestock. FMCSA regulations, however, do not 
recognize honey bees as livestock. CFBF subsequently requested a two-
year exemption.
    CFBF submitted its application on behalf of itself and the 
following organizations:
     American Beekeeping Federation;
     Blue Diamond Growers;
     California Beekeepers Association;
     California Association of Nurseries and Garden Centers;
     California Cherry Growers and Industry Foundation; and
     California Seed Association.
    Because of the reduced number of colonies available, bees are 
transported long distances to provide crop pollination. CFBF said that 
honey bees require cool, fresh air to maintain healthful temperatures 
in the hives when being moved on trucks. CFBF stated that complying 
with the 30-minute rest break rule would jeopardize the health and 
welfare of the bees when excessive heat tends to build up during stops, 
especially during daytime stops in warm weather. They believe that 
every consideration should be given to provide the safest possible 
journey, as bees are transported to pollinate crops throughout the 
U.S., particularly in California which produces an abundance of fruits 
and vegetables for American consumers.
    CFBF explained that there is no substitute for the pollination 
provided by bees, and cited a report concluding that in the absence of 
bee pollination, the U.S. could lose one third of its crops. CFBF 
stated that the number of bee colonies has been declining for several 
decades--from 5 million in the 1940's to only 2.5 million today. 
Furthermore, from late October to early February most migratory 
beekeepers ship their bees to the Central Valley of California to 
pollinate the more than 800,000 acres of almond trees which bloom in 
February through mid-March. California hosts 1,620,000 hives each year 
for the almond crop alone. Honey bees also pollinate apples, plums, 
cherries, and a large variety of other crops in California and across 
the nation.
    CFBF maintained that if CMVs transporting hives were stopped for 30 
minutes, particularly in warm weather, the risk of harm to the bees 
would be significant, and possibly fatal. Protecting and providing for 
the safe and healthy transportation of the bees is a priority for the 
agricultural community, which is heavily dependent upon the essential 
work of pollinating their crops. According to CFBF, there is simply no 
substitute or viable alternative to honey bees.

Presidential Memorandum

    On June 20, 2014, President Obama issued a ``Presidential 
Memorandum Creating a Federal Strategy to Promote the Health of Honey 
Bees and Other Pollinators.'' The memorandum recognized that ``Honey 
bee pollination alone adds more than $15 billion in value to 
agricultural crops each year in the United States.'' The Memorandum 
referred to a serious loss of honey bees and other pollinators in 
recent years and stated that ``The problem is serious and requires 
immediate attention . . .''
    A Pollinator Health Task Force was established by the President to 
create an action plan and perform other duties relative to protecting 
the health of pollinators. The Task Force, which is co-chaired by the 
Secretary of Agriculture and the Administrator of the Environmental 
Protection Agency, includes representatives of other departments 
including the Department of Transportation.
    This exemption complies with the goals and strategies to protect 
pollinator health, as stated in the Presidential Memorandum.

Population of Carriers Engaged in the Transportation of Bees

    According to CFBF, in a subsequent email to the Agency, there are 
over 1,600 beekeepers that transport their hives all around the United 
States.

Public Comments in Response to the Exemption Application

    On January 8, 2015, FMCSA published notice of the CFBF application 
for an exemption and requested public comment (80 FR 1069); 202 
commenters responded, with 198 supporting the application (mainly 
through identical form letters) and four opposing it.
    The comments in favor of the exemption were submitted both by 
individuals and by CFBF affiliates. These commenters essentially 
reaffirmed the arguments made by CFBF. In addition, the Owner-Operator 
Independent Drivers Association (OOIDA) filed a comment in support of 
exemption application, stating that the request would provide a level 
of safety equal to or greater than that achieved without the exemption. 
Granting the exemption, OOIDA said, would allow bees to be moved with 
the level of care which they deserve and to ensure that safety is the 
primary driver of decisions regarding these moves.
    The Advocates for Highway and Auto Safety (Advocates) and three 
individuals opposed the exemption. Advocates stated that the CFBF 
application is deficient in that it provides no explanation of ``how 
[CFBF] would ensure that [the exempted operation] could achieve a level 
of safety that is equivalent to, or greater than, the level of safety 
that would be obtained by complying with the regulation.'' Advocates 
further added that aside from any concern about the bees being 
transported, the application fails to address the potential fatigue and 
deleterious conditions imposed on the driver of the vehicle 
transporting the bees. Some of the individuals opposing the application 
contended that an exemption for any one group should be available to 
all driver or company groups. Others suggested that CFBF companies 
should hire additional drivers so that a 30-minute break would not be 
necessary or wait until temperatures drop before transporting the bees.

FMCSA Response

    FMCSA has evaluated CFBF's application for exemption and the public 
comments submitted. Stakeholders in this industry have outlined in 
detail the various risks associated with stopping a CMV transporting 
bees.
    The Agency finds the arguments in favor of the exemption to be 
persuasive. Stopping a CMV with bees on board in severe weather 
conditions, even for relatively brief periods, can jeopardize

[[Page 35427]]

the health and welfare of the bees. FMCSA believes there would be no 
decrease in safety for the traveling public associated with an 
exemption from the 30-minute rest break requirement. These drivers take 
short breaks as necessary, but the breaks may not be long enough to 
qualify under the rest-break regulatory requirement, or the breaks may 
not occur during the time periods specified in the regulation. Also, 
drivers may not be in compliance with the definition of off duty, even 
though they may be resting, similar to other drivers who are allowed to 
``attend'' the parked vehicle if they perform no on-duty activities.
    The number of beekeepers who transport hives around the country to 
pollinate crops is small--1,600 according to the CFBF--and the number 
of CMVs and drivers required for these operations is correspondingly 
small. One of the commenters noted that local movements of hives often 
occur at night, when temperatures have fallen and traffic has declined. 
But when daytime movements are required, the risk of crashes remains 
modest because exposure, i.e., the total miles traveled by CMVs serving 
this economic niche, is so limited.

FMCSA Determination

    In consideration of the above, FMCSA has determined that it is 
appropriate to provide a two-year exemption from the 30-minute break 
requirement for interstate motor carriers transporting bees. Based on 
the terms and conditions imposed, the CFBF application for exemption 
would likely achieve a level of safety that is equivalent to, or 
greater than, the level that would be achieved absent such exemption. 
The Agency has decided to grant the exemption for a two-year period. As 
noted below, carriers utilizing the exemption will be required to 
report any accidents, as defined in 49 CFR 390.5, to FMCSA. The 
exemption would be eligible for renewal consideration at the end of the 
two-year period.

Terms and Conditions of the Exemption

Extent of the Exemption

    This exemption is limited to drivers engaged in the interstate 
transportation of bees by CMV. The exemption from the 30-minute rest-
break requirement is applicable during the transportation of bees and 
does not cover the operation of the CMVs after the bees are unloaded 
from the vehicle.
    The exemption is further limited to motor carriers that have a 
``satisfactory'' safety rating or are ``unrated;'' motor carriers with 
``conditional'' or ``unsatisfactory'' safety ratings are prohibited 
from utilizing this exemption.

Safety Rating

    Motor carriers that have received compliance reviews are required 
to have a ``satisfactory'' rating to qualify for this exemption. 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 (CDL) 
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 use the 
exemption. Unrated motor carriers are those that have not received a 
compliance review. It would be unfair to exclude such carriers simply 
because they were not selected by for a compliance review, especially 
since carriers are prioritized for compliance reviews on the basis of 
known safety deficiencies.
    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 exemption.
    Drivers must have a copy of the exemption document in their 
possession while operating under the terms of the exemption. The 
exemption document must be presented to law enforcement officials upon 
request.

Accident Reporting

    Motor carriers must notify FMCSA by email addressed to 
MCPSD@DOT.GOV with 5 business days of any accident (as defined in 49 
CFR 390.5) that occurs while its driver is operating under the terms of 
this exemption. The notification must include:
a. Identifier of the Exemption: ``BEES''
b. Name of operating carrier and USDOT number,
c. Date of the accident,
d. City or town, and State, in which the accident occurred, or closest 
to the accident scene,
e. Driver's name and license number,
f. Name of co-driver, if any, and license number
g. Vehicle number and state license number,
h. Number of individuals suffering physical injury,
i. Number of fatalities,
j. The police-reported cause of the accident,
k. Whether the driver was cited for violation of any traffic laws, 
motor carrier safety regulations, and
l. The total driving time and total on-duty time prior to the accident.

Period of the Exemption

    FMCSA provides an exemption from the 30-minute break requirement 
[49 CFR 395.3(a)(3)(ii)] during the period of June 19, 2015 through 
June 19, 2017.

Safety Oversight of Carriers Operating Under the Exemption

    FMCSA expects each motor carrier operating under the terms and 
conditions of this exemption to maintain its safety record. However, 
should safety deteriorate, FMCSA will, consistent with the statutory 
requirements of 49 U.S.C. 31315, take all steps necessary to protect 
the public interest. Authorization of the exemption is discretionary, 
and FMCSA will immediately revoke the exemption of any motor carrier or 
driver for failure to comply with the terms and conditions of the 
exemption.

Preemption

    During the period the exemption is in effect, no State may enforce 
any law or regulation that conflicts with or is inconsistent with this 
exemption with respect to a person or entity operating under the 
exemption [49 U.S.C. 31315(d)].

    Issued on: June 8, 2015.
T.F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-15088 Filed 6-18-15; 8:45 am]
 BILLING CODE 4910-EX-P