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

American Government Special Collections Reference Desk

American Government Trucking

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

Anne S. Ferro
Federal Motor Carrier Safety Administration
June 11, 2014


[Federal Register Volume 79, Number 112 (Wednesday, June 11, 2014)]
[Notices]
[Pages 33634-33638]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13628]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0283]


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

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

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

-----------------------------------------------------------------------

SUMMARY: FMCSA announces the granting of a limited one-year exemption 
from the 30-minute rest break provision of the Agency's hours-of-
service (HOS) regulations for commercial motor vehicle (CMV) drivers 
transporting livestock. FMCSA has analyzed the exemption application 
submitted by the National Pork Producers Council (NPPC) on behalf of 
all livestock transporters and the public comments received in response 
to the Agency's August 12, 2013, notice announcing the application and 
requesting public comment. The Agency has determined that it is 
appropriate to grant a limited one-year exemption to ensure the well-
being of Nation's livestock during interstate transportation by CMV. 
The exemption, subject to the terms and conditions imposed, will 
achieve a level of safety that is equivalent to, or greater than, the 
level that would be achieved absent such exemption. This conclusion is 
supported by the real-world experience of the industry's operations 
under the limited 90-day waiver FMCSA granted in 2013. This exemption 
preempts inconsistent State and local requirements.

DATES: This exemption is effective June 11, 2014 and expires on June 
11, 2015.

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) 
provided the Secretary of Transportation (the Secretary) the authority 
to grant 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, to a person(s) seeking regulatory relief 
(49 U.S.C. 31136, 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 commercial

[[Page 33635]]

motor vehicle (CMV) programs and safety regulation.

Background Information

    On December 27, 2011, FMCSA published a final rule amending its HOS 
regulations for drivers of property-carrying commercial motor vehicles 
(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 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 sleeper-berth period of that 
length or longer to take the break. The new 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
     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 June 19, 2013, the National Pork Producers Council (NPPC) 
requested a limited 90-day waiver and a limited two-year exemption from 
the rest-break requirement for drivers of CMVs engaged in the 
transportation of livestock. A copy of the request is included in the 
docket referenced at the beginning of this notice.
    The NPPC submitted its application on behalf of itself and the 
following organizations:
     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 stated that complying with the 30-minute rest break rule 
would 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 its drivers to choose between the humane handling of animals or 
compliance with the rule.
    The NPPC explained that the process of transporting livestock, 
whether for slaughter, transfer of ownership, or 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 the animals cannot 
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 a safety issue arises. 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 greater than 
or equal to 100 degrees Fahrenheit, cattle are also 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.
    With regard to transporting livestock during the winter months, 
NPPC described the complications of keeping the animals warm without 
having them potentially overheat when the vehicle is stopped.
    FMCSA analyzed the request and on July 11, 2013, granted, subject 
to specific terms and conditions, a waiver from the rest break 
requirement for drivers transporting livestock. The waiver ended by its 
terms on October 9, 2013.

Population of Drivers and Carriers Engaged in Livestock Transportation

    Although NPPC did not provide information on the number of carriers 
and drivers to be included in the 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 May 13, 
2014, MCMIS listed 66,316 motor carriers that identified livestock as a 
type (though not necessarily the only type) of cargo they transported. 
These carriers operate 196,398 vehicles and employ 252,540 drivers. And 
130,896 of these drivers operate within a 100 air-mile radius of their 
work-reporting location--a fact that is important because previous 
statutory exemptions provided compete relief from the HOS requirements 
for these drivers. A final rule published on March 14, 2013, extended 
the 100 air-mile radius previously in effect to 150 air miles (see 49 
CFR 395.1(k), 78 FR 16189). Therefore, these 131,000 drivers would not 
need the exemption, leaving fewer than 122,000 drivers likely to 
utilize this relief from the 30-minute rest break provision. Of these, 
an unidentified portion may consist of team drivers, who would not need 
to take the required minimum 30-minute break, even without the 
exemption.

Public Comments in Response to the Exemption Application

    On August 12, 2013, FMCSA published notice of the NPPC application 
for an exemption and requested public comment (78 FR 48928). By the 
closing of the comment period, twenty-two commenters had

[[Page 33636]]

responded. Twenty of these commenters supported the application for 
exemption and two opposed it.
    The two comments opposing the application were from individuals. 
One opposed the 30-minute break rule in general, and the other 
questioned how farmers keep livestock under proper climate conditions 
when they are not being transported. The later indicated that if one 
commodity deserved an exemption, all did.
    The 20 comments favoring the application were submitted by various 
parties (mostly trade associations and livestock carriers) familiar 
with the transportation by CMV of various types of livestock, including 
cattle, pigs, and sheep. Several of these commenters submitted 
supporting data. In his comment to the docket, Scott George, President 
of the National Cattlemen's Beef Association, submitted data from the 
Livestock Marketing Information Center (LMIC). Six sub-agencies of the 
U.S. Department of Agriculture are members of LMIC, including the 
Agricultural Marketing Service, the Animal and Plant Health Inspection 
Service, and the Grain Inspection, Packers and Stockyards 
Administration. Many State extension services and land grant 
universities are also LMIC members.
    The comments favoring the application explain the importance of the 
safe, timely transportation of livestock. This transportation 
originates in all regions of the U.S. and the ultimate product is often 
shipped to global markets. The comments detail the various risks to the 
health and welfare of livestock being transported that are inherent in 
stopping during extreme hot or cold temperatures. Data in the docket 
show that the temperature inside a stopped livestock trailer can rise 
rapidly during hot summer days, and can drop rapidly on winter days, 
especially in windy conditions. Current industry standards strongly 
discourage drivers from stopping a CMV loaded with pigs when the 
temperature exceeds 80 degrees. Cattle are affected adversely if the 
vehicle stops when the heat and humidity have raised the heat index to 
100 degrees or more.
    Substandard transportation of livestock elevates the risk that the 
physical condition of the animals will deteriorate and that food 
products derived from the animals, if they accidentally remained in the 
human food chain, may be unsafe for human consumption. Comprehensive 
industry guidelines governing the safe movement of livestock have been 
submitted to the docket. These guidelines and comments describe stops 
of up to 30 minutes as problematic for many animals, even in favorable 
weather. Industry guidelines encourage drivers of livestock to keep the 
CMV moving ``if at all possible.'' For most livestock, the driver 
stopping a CMV en route is directed to offload the animals from the 
vehicle immediately. However, an appropriate facility for offloading is 
often not available. In these situations, the guidelines recommend that 
the stop be as brief as possible. Some commenters asserted that even 
under ideal conditions drivers transporting livestock should not stop 
the CMV for as long as 30 minutes because the risk of jeopardizing the 
health of the animals is too great.
    On September 11, 2013, and November 21, 2013, NPPC submitted 
supplemental comments to the docket for this matter. Although the 
November 21 submission was outside the comment period that ended on 
September 11, FMCSA determined that it did not differ in substance from 
the original application or the September 11 comments from NPPC, and 
therefore no need existed to reopen the comment period.

FMCSA Response

    FMCSA has evaluated NPPC's application for exemption, and reviewed 
the data, safety analyses, and public comments submitted. Stakeholders 
in this industry have provided substantial data supporting this 
application for exemption, and have outlined in detail the various 
risks associated with stopping a CMV transporting livestock.
    The Agency finds the arguments and data submitted by commenters 
supporting the application to be persuasive. Stopping a CMV with 
livestock on board in extreme weather conditions can seriously 
jeopardize the health and welfare of the animals, even when the CMV is 
stopped for as little as 10 minutes. The Agency recognizes that in many 
cases it is impractical for drivers to offload livestock in order to 
obtain the 30-minute break required by 49 CFR 395.3(a)(3)(ii).

Analysis of Fatal Crashes Involving Carriers Transporting Livestock

    FMCSA reviewed ``Trucks Involved in Fatal Accidents Factbook 2008'' 
(UMTRI-2011-15, March 2011) published by the University of Michigan 
Transportation Research Institute's Center for National Truck and Bus 
Statistics to determine the prevalence of crashes involving the 
transportation of livestock. In 2008, there were 4,352 trucks involved 
in fatal crashes and 20 of those vehicles were transporting live 
animals, with 13 of the vehicles reported as having a livestock cargo 
body. There were 13 other vehicles with an empty livestock cargo body 
involved in fatal crashes. Overall, trucks transporting live animals 
represent less than one half of one percent of the trucks involved in 
fatal crashes.
    The Trucks Involved in Fatal Accidents (TIFA) report showed that 26 
livestock cargo body vehicles, all of them tractor-semitrailer 
combinations, were involved in fatal crashes. Of that number, 13 
livestock vehicles were transporting live animals at the time of the 
crash. Seven instances of vehicles transporting live animals being 
involved in a fatal crash involved CMVs with a body type reported as 
something other than a livestock body, based on the information above.
    About one-third of the 2008 crashes involving livestock 
transporters occurred on trips sufficiently short that the driver 
probably was exempt from the HOS requirements. With the recent 
expansion of the HOS exemption from 100 air-miles to 150 air-miles, any 
crashes that occur in the future are even more likely to occur within 
the exempt zone.

   Fatal Truck Involvements by Trip Type and Livestock Cargo Body Type
------------------------------------------------------------------------
                                      Cargo body:
                                      livestock,     Statutory exemption
             Trip type                  tractor     from HOS rules (<150
                                      combination          miles)
------------------------------------------------------------------------
Local.............................               3  Yes.
51-100............................               2  Yes.
101-150...........................               3  Yes.
151-200...........................               3  No. Drivers may be
                                                     able to achieve
                                                     compliance with the
                                                     30-minute break
                                                     requirement because
                                                     of limited
                                                     distance.

[[Page 33637]]

 
201-500...........................              10  No.
>500 miles........................               4  No.
Unknown...........................               1  Unknown.
                                   ----------------
    Total.........................              26  ....................
------------------------------------------------------------------------

    Given the low number of fatal crashes involving carriers 
transporting live animals (e.g., 20 crashes for an industry sector that 
currently includes 66,316 active carriers), FMCSA believes there would 
be no decrease in safety for the traveling public associated with an 
exemption from the 30-minute rest break requirement.

FMCSA Determination

    In consideration of the above, FMCSA has determined that it is 
appropriate to provide a limited one-year exemption from the 30-minute 
break requirement in the FMCSRs for interstate motor carriers 
transporting livestock. A review of the most recent MCMIS and TIFA data 
provides a basis for determining that a limited exemption, based on the 
terms and conditions imposed, would 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 limit the exemption to a one-year period 
in order to gather additional data about the highway safety of 
operations under the exemption. 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 one-year period.

Terms and Conditions of the Exemption

Extent of the Exemption

    This exemption is limited to drivers engaged in the interstate 
transportation of livestock by CMV. The exemption from the 30-minute 
rest-break requirement is applicable during the transportation of 
livestock and does not cover the operation of the CMVs after the 
livestock are unloaded from the vehicle.
    This exemption is only available to 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)]. The term ``livestock'' as 
used in this exemption 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 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 
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.

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. Date of the accident,
    b. City or town, and State, in which the accident occurred, or 
closest to the accident scene,
    c. Driver's name and license number,
    d. Vehicle number and state license number,
    e. Number of individuals suffering physical injury,
    f. Number of fatalities,
    g. The police-reported cause of the accident,
    h. Whether the driver was cited for violation of any traffic laws, 
motor carrier safety regulations, and
    i. 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 11, 2014 through 
June 11, 2015.

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.

[[Page 33638]]

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 6, 2014.
Anne S. Ferro,
Administrator.
[FR Doc. 2014-13628 Filed 6-9-14; 8:45 am]
BILLING CODE 4910-EX-P

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