Maximum Driving and On-Duty Time; Hours of Service for Farmers and Retail Farm Suppliers

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 395

[FHWA Docket No. MC-94-32]

RIN 2125-AD44

Maximum Driving and On-Duty Time; Hours of Service for Farmers

and Retail Farm Suppliers

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: This action is being taken in response to section 118 of the

Hazardous Materials Transportation Authorization Act of 1994, which

requires the Secretary of Transportation to initiate a rulemaking

proceeding on whether the maximum driving and on duty time requirements

of the Federal Motor Carrier Safety Regulations (FMCSRs) should be

waived for farmers and retail farm suppliers transporting crops or farm

supplies for agricultural purposes within a 50-mile radius of their

distribution point or farm. The FHWA requests public comment from

interested persons on this action and specifically the questions set

forth below.

DATES: Comments must be received on or before February 6, 1995.

ADDRESSES: All signed, written comments should refer to the docket

number that appears at the top of this document and must be submitted

to HCC-10, Room 4232, Office of the Chief Counsel, Federal Highway

Administration, 400 Seventh Street, SW., Washington DC 20590. All

comments received will be available for examination at the above

address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,

except Federal holidays. Those desiring notification of receipt of

comments must include a self-addressed stamped postcard or envelope.

FOR FURTHER INFORMATION CONTACT: Mr. Larry G. Slade, Office of Motor

Carrier Standards, (202) 366-5721, or Mr. Charles Medalen, Office of

the Chief Counsel, (202) 366-1354, Federal Highway Administration,

Department of Transportation, 400 Seventh Street, SW., Washington, DC

20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday

through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

The Congressional Mandate

The FHWA is initiating this rulemaking in response to a

Congressional mandate contained in section 118 of the Hazardous

Materials Transportation Authorization Act of 1994, (Pub. L. 103-311,

108 Stat. 1673, August 26, 1994). The Act requires the agency to

``determine whether or not the requirements of Sec. 395.3 of title 49,

Code of Federal Regulations, relating to hours of service, may be

waived for farmers and retail farm suppliers when such farmers and

retail farm suppliers are transporting crops or farm supplies for

agricultural purposes within a 50-mile radius of their distribution

point or farm.''

Section 206 of the Motor Carrier Safety Act of 1984 (49 U.S.C.

31136(e)), authorizes the Secretary of Transportation to waive, in

whole or in part, any or all of the provisions of the FMCSRs if it is

determined that such waiver is consistent with the public interest and

the safe operation of commercial motor vehicles. The questions provided

later in this notice are designed to solicit substantive data to assist

the agency in determining whether or not an hours of service waiver for

farmers and retail farm suppliers meets the statutory two-prong test

for the granting of waivers.

The Hours of Service Requirements

The regulations governing maximum driving and on-duty time (49 CFR

395.3) apply to drivers of commercial motor vehicles (as defined in

Sec. 390.5 of the FMCSRs) that operate in interstate commerce. These

regulations specify that no motor carrier shall permit or require any

driver used by it to drive, nor shall any such driver drive:

(1) More than 10 hours following 8 consecutive hours off duty; or

(2) For any period after having been on duty 15 hours following 8

consecutive hours off duty; or

(3) For any period after having been on duty 60 hours in any 7

consecutive days if the employing motor carrier does not operate every

day of the week; or

(4) For any period after having been on duty 70 hours in any period

of 8 consecutive days if the employing motor carrier operates motor

vehicles every day of the week.

Very limited exceptions to hours of service requirements are

contained in Secs. 395.1(b) through 395.1(k). These sections allow

certain drivers additional hours of driving time under some

circumstances. None of these exemptions, however, is applicable to

farmers and retail farm suppliers.

Public Reaction to Exemptions From Regulations

In late 1992 and early 1993, the FHWA held a series of public

hearings at eleven sites across the country as part of its zero base

review of the FMCSRs (see 57 FR 37392, August 18, 1992). The concept of

the zero base review is to take a completely fresh look at the safety

regulations governing the interstate motor carrier industry. The

objective of this project is to adopt revised regulations that: (1)

Will enhance safety and further reduce accidents; (2) are more easily

understood by the industry; (3) have a greater performance orientation;

and (4) are easier to interpret and enforce. During the zero base

hearings, the FHWA obtained information, views, and opinions from

representatives of the motor carrier industry, State and local

enforcement officials, insurance company representatives, college and

university professors, and other interested persons (see 57 FR 53089,

November 6, 1994). An analysis of the hearings revealed that the

elimination of regulatory exemptions was an issue of major concern to

the public. Some respondents objected to specific exemptions they

considered unwarranted, others objected to any exemptions whatsoever,

contending that any vehicle over a certain weight and any individual

driving such a vehicle should be regulated, if engaged in a commercial

endeavor.

Response to Hours of Service Notice of Proposed Rulemaking

On August 19, 1992, the FHWA published a notice of proposed

rulemaking (NPRM) which would have permitted the 60 or 70 hour on duty

time limitation in Sec. 395.3(b) to begin anew after the driver had an

off-duty recovery period of 24 consecutive hours or more (57 FR 37504).

The FHWA received 67,922 comments and signatures on petitions in

response to the NPRM. Because of the impact of the proposal on motor

carriers' operations, the FHWA specifically asked 11 questions

soliciting views, opinions, information, and data. Virtually none of

the commenters in favor of the proposal provided substantive responses

to the critical, fundamental questions posed in the NPRM, offering

instead opinions unsupported by empirical or even anecdotal material.

Except in the most general terms, there were no discussions of

potential impacts on highway safety which could result from increasing

the available on-duty hours.

Because of a lack of substantive information the FHWA withdrew its

NPRM addressing hours of service regulations for commercial motor

vehicles drivers (58 FR 6937, February 3, 1993). This action was taken

since the FHWA could not conclusively determine whether or not a driver

could drive safely with the hours of service relief as proposed.

Hours of Service Petitions

Since the Motor Carrier Safety Act of 1984 established the two-

prong test for the granting of waivers, the FHWA has received numerous

petitions requesting waiver from the hours of service regulations. The

statutory test, described earlier in this notice, is extremely

difficult to meet and as of this date none of these petitions has been

granted.

Request for Public Comment

The FHWA is requesting written comments, information, and data on

whether the maximum driving and on duty time requirements of the

Federal Motor Carrier Safety Regulations should be waived for farmers

and retail farm suppliers transporting crops and farm supplies for

agricultural purposes within a 50-mile radius of their distribution

point or farm. In addition, commenters are also encouraged to provide

written comments, information and data which respond to specific

questions listed below.

Specific Questions

The FHWA seeks comments and data to assist the agency in answering

the specific questions stated below. Commenters are also encouraged to

discuss any other matters related to maximum driving and on-duty time

for farmers and retail farm suppliers which they believe the FHWA

should address.

1. What are the accident rates (frequency, ratio) for farm and farm

supplier vehicles and how are these rates different (comparative

figures) from other operators covered by Sec. 395.3?

2. How many farm-related accidents involving injuries or death

occur in the field (e.g., during planting, plowing, seeding or

harvesting) on an annual basis?

3. What is the size of the motor carrier population (number of

drivers, vehicles, and businesses) which would be affected by the

waiver described above?

4. What studies or data are available on (from a safety standpoint)

hours of service exemptions for farmers and retail farm suppliers?

5. How are duties and driving conditions of farm and retail farm

supplier drivers different from those of drivers in other industries,

such as utility drivers, cable company drivers, and the like?

6. What should be included in any proposed definitions of ``crops''

in the FMCSRs?

7. Should retail farm suppliers and farmers be granted an exemption

for every distribution point that they engage in the commercial

distribution of crops and/or farm supplies? For example, if XYZ Company

operates three distribution centers in one State and five distribution

centers in another State, should XYZ Company be granted an exemption in

eight locations within a 50-mile radius of each location?

8. Do any States have hours of service exemptions for farmers and

retail farm suppliers during the intrastate transportation of crops and

farm supplies? Is it based on a mileage radius? In States that do have

exemptions, what data are available on the safety of these operations?

9. What on-road performance data is available for carriers that

transport crops and retail farm supplies?

10. Would an exemption for farmers and retail farm suppliers result

in a higher degree of driver fatigue than for other segments of the

motor carrier population, thereby adversely impacting safe operation of

commercial motor vehicles?

11. Would an exemption for farmers and retail farm suppliers

improve safety and reduce accidents on the Nations' highways? Would it

degrade safety and increase accidents?

12. Recognizing the rural nature of the midwest and western regions

of the United States, is a 50 mile radius adequate coverage for

exemption relief?

13. Would this potential exemption, which is based on a 50-mile

radius, be consistent with previous Congressional directions regarding

the elimination of the radius-based commercial zone exemptions (Pub. L.

100-690, November 18, 1988, 102 Stat. 4528)?

Rulemaking Analyses and Notices

All comments received before the end of business on the closing

date for comment indicated above will be considered and will be

available for examination in the docket at the above address. Comments

received after the comment closing date will be filed in the docket and

will be considered to the extent practical. In addition to late

comments, the FHWA will also continue to file relevant information in

the docket as it becomes available after the closing date. Interested

persons should continue to examine the docket for new material.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

Due to the preliminary nature of this document and lack of

necessary information on costs the FHWA is unable at this time to

evaluate in detail the economic and safety impacts of potential changes

to regulatory requirements concerning the hours of service for farmers

and retail farm suppliers. Based on the information received in

response to this notice, the FHWA intends to again consider whether

this is a significant regulatory action. Comments, information, and

data are solicited on the economic and safety impacts of the potential

changes described herein.

Regulatory Flexibility Act

Due to the preliminary nature of this document and lack of

necessary information on costs, the FHWA is unable at this time to

evaluate the effects of the potential regulatory changes on small

entities. Based on the information received in response to this notice,

the FHWA intends, in compliance with the Regulatory Flexibility Act (5

U.S.C. 601 et seq.), to carefully consider the economic impacts of

these potential changes on small entities. The FHWA solicits comments,

information, and data on these impacts.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this action does not have sufficient federalism implications to

warrant the preparation of a federalism assessment.

Nothing in this document preempts any state law or regulation. The

proposed rule, if adopted, would not limit the policymaking discretion

of the states. States would not be required as part of the Motor

Carrier Safety Assistance Program to adopt this rule. The issues

addressed in this proposal, therefore, have no federalism implications.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities apply to this program.

Paperwork Reduction Act

This action does not contain a collection of information

requirement for purposes of the Paperwork Reduction Act of 1980 (44

U.S.C. 3501 et seq.).

National Environmental Policy Act

This agency has analyzed this action for the purpose of the

National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and

has determined that this action would not have any effect on the

quality of the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

(49 U.S.C. 31136, 315022; 49 CFR 1.48).

Issued on: November 30, 1994.

Rodney E. Slater,

Federal Highway Administrator.

[FR Doc. 94-30112 Filed 12-7-94; 8:45 am]

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