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Hours of Service of Drivers: National Pork Producers Council; Application for Exemption

American Government Special Collections Reference Desk

American Government

Hours of Service of Drivers: National Pork Producers Council; Application for Exemption

Larry W. Minor
Federal Motor Carrier Safety Administration
August 12, 2013

[Federal Register Volume 78, Number 155 (Monday, August 12, 2013)]
[Pages 48928-48930]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19387]



Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0283]

Hours of Service of Drivers: National Pork Producers Council; 
Application for Exemption

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

ACTION: Notice of application for exemption; request for comments.


SUMMARY: FMCSA announces that it has received an application from the 
National Pork Producers Council (NPPC) on behalf of its members and 
other agricultural organizations for an exemption from the 30-minute 
rest break provision of the Agency's hours-of-service (HOS) regulations 
for commercial motor vehicle (CMV) drivers. The exemption would enable 

[[Page 48929]]

CMV drivers transporting livestock to operate without taking a 30-
minute break during the work day if 8 hours have passed since the last 
off-duty period of at least 30 minutes. FMCSA considers the request to 
be on behalf of all motor carriers and drivers when transporting 
livestock. FMCSA requests public comment on the application for 

DATES: Comments must be received on or before September 11, 2013.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2013-0283 by any of the following 
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and 
docket number. For detailed instructions on submitting comments and 
additional information on the exemption process, see the Public 
Participation heading below. Note that all comments received will be 
posted without change to www.regulations.gov, including any personal 
information provided. Please see the Privacy Act heading below.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review a 
Privacy Act notice regarding our public dockets in the January 17, 
2008, issue of the Federal Register (73 FR 3316).
    Public Participation: The Federal eRulemaking Portal is available 
24 hours each day, 365 days each year. You can get electronic 
submission and retrieval help and guidelines under the ``help'' section 
of the Federal eRulemaking Portal Web site. If you want us to notify 
you that we received your comments, please include a self-addressed, 
stamped envelope or postcard, or print the acknowledgement page that 
appears after submitting comments online.
    Submitting Comments: 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 that FMCSA can contact you if there are questions regarding 
your submission.
    To submit your comment online, go to www.regulations.gov and in the 
search box insert the docket number ``FMCSA-2013-0283'' and click the 
SEARCH button. When the new screen appears, click on the blue ``Comment 
Now!'' button on the right hand side of the page. On the new page, 
enter information required including the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. If you submit your comments by mail or 
hand delivery, submit them in an unbound format, no larger than 8\1/2\ 
by 11 inches, suitable for copying and electronic filing. If you submit 
comments by mail and would like to know that they reached the facility, 
please enclose a stamped, self-addressed postcard or envelope.
    Viewing Comments and Documents: To view comments, as well as any 
documents mentioned in this notice, go to www.regulations.gov and in 
the search box insert the docket number ``FMCSA-2013-0283'' and click 
``Search.'' Next, click ``Open Docket Folder'' and you will find all 
documents and comments related to the proposed rulemaking.

and Carrier Operations Division; Office of Bus and Truck Standards and 
Operations; Telephone: 202-366-4325. Email: MCPSD@dot.gov.



    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the Federal Motor Carrier Safety 
Regulations. FMCSA must publish a notice of each exemption request in 
the Federal Register (49 CFR 381.315(a)). The Agency must provide the 
public an opportunity to inspect the information relevant to the 
application, including any safety analyses that have been conducted. 
The Agency must also provide an opportunity for public comment on the 
    The Agency reviews safety analyses and public comments submitted, 
and determines whether granting the exemption would likely achieve a 
level of safety equivalent to, or greater than, the level that would be 
achieved by the current regulation (49 CFR 381.305). The decision of 
the Agency must be published in the Federal Register (49 CFR 
381.315(b)) with the reasons for denying or granting the application 
and, if granted, the name of the person or class of persons receiving 
the exemption, and the regulatory provision from which the exemption is 
granted. The notice must also specify the effective period and explain 
the terms and conditions of the exemption. The exemption may be renewed 
(49 CFR 381.300(b)).

National Pork Producers Council Waiver and Exemption Request

    On December 27, 2011 (76 FR 81133), FMCSA published a final rule 
amending its hours-of-service (HOS) regulations for drivers of 
property-carrying commercial motor vehicles (CMVs). The final rule 
adopted several changes to the HOS regulations, including 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 the driver's last off-
duty or sleeper-berth period of at least 30 minutes. FMCSA did not 
specify when drivers must take the 30-minute break, but the rule 
requires that they wait no longer than 8 hours after the last off-duty 
or sleeper-berth period of that length or longer to take the break. 
Drivers who already take shorter breaks during the work day could 
comply with the rule by taking one of the shorter breaks and extending 
it to 30 minutes. The new requirement took effect on July 1, 2013.
    On June 19, 2013, FMCSA received a combined request for a 90-day 
waiver and an application for an exemption from the National Pork 
Producers Council (NPPC) on behalf of itself and the following 
     Agricultural and Food Transporters Conference of the 
American Trucking Associations;
     American Farm Bureau Federation;
     American Feed Industry Association;
     American Meat Institute;
     Livestock Marketing Association;
     National Cattlemen's Beef Association;
     National Chicken Council;
     National Milk Producers Federation;
     National Turkey Federation;
     North American Meat Association;
     Professional Rodeo Cowboys Association; and,
     U.S. Poultry and Egg Association.
    The NPPC requested a waiver and exemption from the minimum 30-
minute ``rest break'' provisions of 49 CFR 395.3(a)(3)(ii) for drivers

[[Page 48930]]

transporting livestock. A copy of the NPPC's waiver and exemption 
request is included in the docket referenced at the beginning of this 
    The NPPC stated that complying with the 30-minute rest break rule 
will cause livestock producers and their drivers irreparable harm, 
place the health and welfare of the livestock at risk, and provide no 
apparent benefit to public safety, while forcing the livestock industry 
and their drivers to choose between the humane handling of animals or 
compliance with the rule.
    The NPPC explained that the process of transporting livestock, 
whether to slaughter, for transfer of ownership, or for purposes of 
breeding or simply finding forage for feed, is a significant concern to 
the agricultural industry. The animals face a variety of stresses 
including temperature, humidity, and weather conditions.
    During the summer months, exposure to heat is one of the greatest 
concerns in maintaining the animals' well-being. This is especially 
challenging for the transportation of pigs because these animals do not 
sweat and are subject to heat stress. When heat stress occurs, a pig's 
body temperature rises to a level that it cannot control through its 
normal panting mechanisms. Under the industry's guidelines, drivers are 
directed to avoid stopping in temperatures greater than 80 degrees. 
Drivers are advised to stop only when animals will be immediately 
unloaded or when safety becomes an issue. If the vehicle must be 
stopped, drivers are required to stay with the animals and provide them 
with water to help keep them cool.
    When temperature and humidity result in a heat index equal to or 
greater than 100 degrees Fahrenheit, cattle also are placed at 
significant health risk. When cattle are stressed under extreme heat 
conditions, they are more likely to become non-ambulatory, sick, and 
even die. Non-ambulatory cattle are banned from entering the food 
system. Current industry guidelines recommend that drivers avoid 
stopping as internal trailer temperatures will then increase rapidly 
because of the loss of airflow through the trailer and heat production 
from the animals.
    During the winter months, exposure of the animals to cold is also a 
serious concern in maintaining the animals' well-being. Extremely low 
temperatures combined with wind can result in dangerous wind-chills. 
These can be especially harmful to pigs, but are also risk factors for 
the transportation of other livestock.

Population of Drivers and Carriers Engaged in Livestock Transportation

    Although the NPPC did not provide information on the number of 
carriers and drivers to be included in the waiver and exemption it 
requested, FMCSA reviewed its Motor Carrier Management Information 
System (MCMIS) to determine this information. MCMIS includes the 
information reported to the Agency by carriers submitting the Motor 
Carrier Identification Report (FMCSA Form MCS-150), required by 49 CFR 
390.19. As of July 3, 2013, MCMIS lists 64,892 motor carriers that 
identified livestock as a type (though not necessarily the only type) 
of cargo they transported. These carriers operate 187,606 vehicles and 
employ 242,676 drivers. And 126,471 of these drivers operate within a 
100 air-mile radius of their work-reporting location--a fact that is 
important because existing statutory exemptions provide relief from the 
HOS requirements for these drivers.\1\

    \1\ Section 345 of the National Highway System Designation Act 
of 1995 (the NHS Act) (Pub. L. 104-69, 109 Stat. 613), enacted on 
November 28, 1995, implemented by 49 CFR 395.1(k), provided relief 
from the HOS requirements for drivers transporting agricultural 
commodities or farm supplies for agricultural purposes in a State if 
``the 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 and is during the planting and harvesting 
seasons within such State, as determined by the State.''

    Section 32101(d) of ``Moving Ahead for Progress in the 21st Century 
Act'' (MAP-21) (Pub. L. 112-141, 126 Stat. 405), enacted on July 6, 
2012, expanded that 100 air-mile radius provided by the National 
Highway System Designation Act of 1995 to 150 air miles; FMCSA 
implemented the provision with a final rule published on March 14, 2013 
(78 FR 16189). Therefore, the exemption would not be applicable to 
drivers whose operation is limited to 150 air-miles of their work-
reporting location, leaving fewer than 116,205 drivers likely to 
utilize the requested relief from the 30-minute rest break provision.
    In addition, section 32934 of MAP-21 provides statutory exemptions 
from most of the FMCSRs, including those pertaining to HOS, the 
commercial driver's license and driver qualification requirements, for 
drivers of ``covered farm vehicles'' (CFVs), a term defined in detail 
by MAP-21. Among other things, CFV drivers must be owners or operators 
of farms or ranches, or their employees or family members; for-hire 
motor carriers are not eligible for the exemptions provided by section 
32934. These exemptions are explained in the March 14, 2013, final rule 
mentioned above.

Waiver Granted

    Based on the NPPC's application and additional analysis by FMCSA, 
on July 11, 2013, the Agency granted a 90-day waiver, effective from 
July 11, 2013, through October 9, 2013, from the rest break requirement 
of 49 CFR 395.3(a)(3)(ii) for drivers transporting livestock as defined 
in the Emergency Livestock Feed Assistance Act of 1988, as amended (the 
1988 Act) [7 U.S.C. 1471(2)] (78 FR 41716.) The term ``livestock'' 
means ``cattle, elk, reindeer, bison, horses, deer, sheep, goats, 
swine, poultry (including egg-producing poultry), fish used for food, 
and other animals designated by the Secretary of Agriculture that are 
part of a foundation herd (including dairy producing cattle) or 
offspring, or are purchased as part of a normal operation and not to 
obtain additional benefits under [the 1988 Act].''
    The waiver is further limited to motor carriers that have a 
``satisfactory'' FMCSA safety rating or are ``unrated;'' motor carriers 
with ``conditional'' or ``unsatisfactory'' safety ratings are 
prohibited from utilizing this waiver.
    Because a waiver may not be granted for more than 90 days and may 
not be renewed, the NPPC also requested an exemption, which may extend 
up to 2 years and may be renewed (49 CFR part 381). The exemption would 
be issued to the same carriers and drivers and under the same terms and 
conditions as the waiver, except that the exemption would be for a 2-
year period.

Request for Comments

    In accordance with 49 U.S.C. 31136(e) and 31315(b)(4), FMCSA 
requests public comment on NPPC's application for an exemption from 
certain provisions of the driver's hours-of-service rules in 49 CFR 
part 395. The Agency will consider all comments received by close of 
business on September 11, 2013. Comments will be available for 
examination in the docket at the location listed under the ADDRESSES 
section of this notice. The Agency will consider to the extent 
practicable comments received in the public docket after the closing 
date of the comment period.

    Issued on: August 6, 2013.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2013-19387 Filed 8-9-13; 8:45 am]

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