Commercial Driver's License (CDL): Application for Exemption Renewal; U.S. Custom Harvesters, Inc.
| Citation | 88 FR 70431 |
| Published date | 11 October 2023 |
| Record Number | 2023-22442 |
| Court | Federal Motor Carrier Safety Administration,Transportation Department |
| Section | Notices |
Federal Register, Volume 88 Issue 195 (Wednesday, October 11, 2023)
[Federal Register Volume 88, Number 195 (Wednesday, October 11, 2023)]
[Notices]
[Pages 70431-70434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22442]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2017-0133]
Commercial Driver's License (CDL): Application for Exemption
Renewal; U.S. Custom Harvesters, Inc.
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of provisional renewal of exemption; request for
comments.
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SUMMARY: FMCSA announces its decision to provisionally renew a U.S.
Custom Harvesters, Inc. (USCHI) exemption from the ``K'' intrastate
restriction on commercial driver's licenses (CDLs) for custom harvester
drivers operating in interstate commerce for a two-year period, with
additional terms and conditions. FMCSA's regulations currently provide
an exception to the minimum age requirements for drivers of commercial
motor vehicles (CMVs) controlled and operated by a person engaged in
interstate custom harvesting. However, under the Agency's CDL
regulations, States may include an intrastate-only (or ``K'')
restriction for these drivers. This provisional renewal of the
exemption continues relief from the CDL provision for two years.
DATES: This renewed exemption is effective October 3, 2023, through
October 3, 2025. Comments must be received on or before November 13,
2023.
ADDRESSES: You may submit comments identified by Federal Docket
Management System (FDMS) Number FMCSA-2017-0133 by any of the following
methods:
Federal eRulemaking Portal: www.regulations.gov. See the
Public Participation and Request for Comments section below for further
information.
Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m. E.T., Monday
through Friday, except Federal holidays.
Fax: (202) 493-2251.
Each submission must include the Agency name and the docket number
(FMCSA-2017-0133) for this notice. Note that DOT posts all comments
received without change to www.regulations.gov, including any personal
information included in a comment. Please see the Privacy Act heading
below.
Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time or visit the ground
level of the West Building, 1200 New Jersey Avenue SE, Washington, DC,
between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal
holidays. To be sure someone is there to help you, please call (202)
366-9317 or (202) 366-9826 before visiting Dockets Operations.
Privacy Act: In accordance with 49 U.S.C. 31315(b), DOT solicits
comments from the public to better inform its exemption process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov. As described in the
system of records notice DOT/ALL 14-FDMS, which can be reviewed at
https://www.transportation.gov/privacy, the comments are searchable by
the name of the submitter.
FOR FURTHER INFORMATION CONTACT: Ms. La Tonya Mimms, Chief, Driver and
Carrier Operations Division, Office of Carrier, Driver and Vehicle
Safety Standards, FMCSA, at (202) 366-9220 or [email protected]. If
you have questions on viewing or submitting material to the docket,
contact Dockets Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
FMCSA encourages you to participate by submitting comments and
related materials.
[[Page 70432]]
Submitting Comments
If you submit a comment, please include the docket number for this
notice (FMCSA-2017-0133), indicate the specific section of this
document to which the comment applies, and provide a reason for your
suggestions or recommendations. You may submit your comments and
material online, 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 the agency can contact you if it has questions
regarding your submission.
To submit your comment online, go to www.regulations.gov, put the
docket number ``FMCSA-2017-0133'' in the keyword box, and click
``Search.'' Next, sort the results by ``Posted (Newer-Older),'' choose
the first notice listed, click the ``Comment'' button, and type your
comment into the text box on the following screen. Choose whether you
are submitting your comment as an individual or on behalf of a third
party, and then submit. 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. FMCSA
will consider all comments and material received during the comment
period.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant
exemptions from the FMCSRs. FMCSA must publish a notice of each
exemption request in the Federal Register (49 CFR 381.315(a)). The
Agency must provide the public with an opportunity to inspect the
information relevant to the application, including any safety analyses
that have been conducted. The Agency must provide an opportunity for
public comment on the request.
The Agency reviews safety analyses and public comments submitted
and determines whether granting the exemption would likely maintain a
level of safety equivalent to, or greater than, the level that would be
achieved by the current regulation (49 CFR 381.305(a)). The Agency must
publish its decision in the Federal Register (49 CFR 381.315(b)). If
granted, the notice will identify the name of the person or class of
persons receiving the exemption and the regulatory provision from which
that party is exempt, the effective period, and all terms and
conditions of the exemption (49 CFR 381.315(c)(1)). If the exemption is
denied, the notice will explain the reason for the denial (49 CFR
381.315(c)(2)). The exemption may be renewed (49 CFR 381.300(b)).
III. Background
USCHI describes the operations of its member companies as supplying
equipment and labor to assist farmers with harvesting during their
busiest seasons and provides the following summary of the nature of
these operations:
Typically, there are two different classes of operations, grain
harvesting and forage harvesting. A grain harvester uses combines to
harvest wheat, corn, barley, canola, sunflowers, soybeans, and grain
sorghum, among others. These crop products are transported to an
elevator or on-farm storage, where the crop is stored and later
transported elsewhere to be processed into products for public use.
A forage harvester uses a chopper to harvest whole-plant crops such
as corn, sorghum, milo, triticale, and alfalfa. These crops are used
for silage to feed livestock in dairies and feedlots. Some operators
harvest crops such as cotton that require other specialized
equipment. Custom harvesters travel from State to State and can
spend from a few days to several months cutting crops for one
farmer.
Customer harvesters frequently employ drivers younger than 21 years
of age, who are issued CDLs with a ``K'' restriction that makes the
license valid only for operations within the issuing state (49 CFR
383.23(a)(2) and 49 CFR 383.153(a)(10)(vii)). Under an exception in
place since 1971, the 21-year-old age requirement, however, does not
apply to a CMV driver who drives a CMV controlled and operated by a
person engaged in custom-harvesting operations, provided that certain
conditions are met. (49 CFR 391.2). Those drivers are therefore allowed
to drive in interstate custom harvesting operations notwithstanding the
``K'' restriction on their licenses.
USCHI states that even though CMV drivers engaged in custom
harvesting are excepted from the 21-year-old requirement, they are
frequently cited during roadside inspections because of the presence of
the ``K'' restriction on their license. USCHI states that this issue
impacts the safety records of drivers and employers.
On October 3, 2018, FMCSA granted USCHI's original exemption
request, providing relief from the requirements of 49 CFR 383.23(a)(2)
and 49 CFR 383.153(a)(10)(vii) for a period of five years (expiring
October 3, 3023). FMCSA noted that although it was granting the
exemption, the exemption did not require any special action or
processing by the state driver licensing agencies, who will continue to
place the ``K'' restriction when called for, but enforcement officers
will disregard it in situations involving drivers who can demonstrate
eligibility for the custom harvester exemption. (83 FR 49977, 49978).
USCHI asks the Agency to renew its exemption for another five-year
period, subject to terms and conditions, to allow law enforcement
officers to determine that the driver is operating in custom harvester
operations. For example, USCHI proposes that the driver be required to
provide at least three methods of verification while en route. A copy
of USCHI's request for an exemption renewal is available for review in
the docket for this notice.
IV. Equivalent Level of Safety
FMCSA is not aware of any evidence showing that allowing the
exemption concerning the intrastate-only ``K'' restriction, has
resulted in any degradation in safety. Interstate operations for non-
CDL custom harvester drivers younger than 21 are allowed pursuant to 49
CFR 391.2(a), and intrastate operations for CDL custom harvester
drivers under the age of 21 can be accomplished under 49 CFR
383.23(a)(2) and 383.153(a)(10)(vii). The requested exemption allows
interstate CDL custom harvester drivers under the age of 21, which
mirror what these drivers are allowed to do in intrastate custom
harvester operations.
The Agency notes that, likely through miscommunications and
misunderstandings between the Agency, USCHI and its membership, certain
crashes involving the drivers operating under the exemption were not
reported to the Agency during the first 5-year exemption. FMCSA's
review of USCHI members' data indicates there have been crashes which
could be considered preventable. The Agency obtained 14 police crash
reports involving custom harvester operators under the age of 21.
However, given the 5-year period of the exemption, and a lack of
information on the age peer group within the agricultural driver
population, there is insufficient information to conclude that the
exemption has resulted in a degradation of safety.
FMCSA therefore concludes that provisionally extending the
exemption for two years and enhancing the terms and conditions to
assist the Agency's oversight of the exemption will likely maintain a
level of safety that is equivalent to, or greater than, the level of
safety that would be achieved without the exemption. During the two-
year period of the provisionally extended exemption, in addition to
[[Page 70433]]
enhancing the terms and conditions of the exemption, FMCSA will
initiate a data analysis project to examine the safety performance of
custom harvester drivers under the age of 21, in comparison to other
drivers in the agriculture sector of the motor carrier industry. The
data collection period will occur during the fall of 2023, after which
FMCSA will begin analyzing the data. The Agency currently has violation
data on motor carriers that utilize the transportation of agricultural
commodities exception to the hours-of-service rules, and the new study
will assist the Agency in conducting a more in-depth analysis of their
safety performance as a group and the safety performance of the subset
of custom harvester drivers under the age of 21. This information will
aid in assessing the safety impacts of the USCHI exemption prior to the
expiration of the two-year provisional renewal.
V. Exemption Decision
A. Grant of Two-Year Exemption
FMCSA provisionally renews the exemption for a period of two years,
subject to the new terms and conditions of this decision and the
absence of public comments and data that would cause the Agency to
terminate the exemption under Sec. V.E. below. The exemption from the
``K'' intrastate restriction on CDLs held by custom harvester drivers
operating in interstate commerce is otherwise effective October 3,
2023, through October 3, 2025, at 11:59 p.m. local time, unless renewed
or rescinded.
B. Applicability of Exemption
Custom Harvester Drivers
Custom harvester drivers will be able to display this exemption
notice to help explain that when operating in that capacity, they are
permitted to operate outside the state issuing their CDL even though
the license has a ``K'' (intrastate only) restriction.
Enforcement Officers
This exemption notice will explain to law enforcement officers that
49 CFR 391.2(a) authorizes custom harvester drivers to operate in
interstate commerce even though they are under 21 years of age. The
notice will explain that a ``K'' restriction on these drivers' CDLs
does not limit them from driving outside the license-issuing state when
they are operating as custom harvesters in accordance with 49 CFR
391.2(a).
State Driver Licensing Agencies
This exemption requires no action or inaction on the part of the
state driver licensing agencies. They will continue to issue CDLs with
a ``K'' restriction to drivers under the age of 21.
C. Terms and Conditions
Requirements for the First 90 Days of Provisional Two-Year Renewal
For the first 90 days of this provisional two-year renewal of the
exemption, motor carriers and drivers are subject to the following
terms and conditions:
(1) Drivers for custom harvesters operating in interstate commerce
shall be exempt from any intrastate-only ``K'' restriction on their
CDLs when operating under the provisions of this exemption.
(2) Drivers must have a copy of this notice in their possession
while operating under the terms of the exemption. The exemption
document must be presented to law enforcement officials upon request.
(3) Drivers to be included in this exemption are identified in 49
CFR 391.2 as those operating a CMV to transport farm machinery,
supplies, or both, to or from a farm for custom harvesting operations
on a farm; or transport custom-harvested crops to storage or market.
(4) To ensure that the driver is authentically operating as a
custom harvester, he or she should be able to provide at least three of
the following methods of verification:
(a) The driver may have on hand a valid custom harvesting document
such as a current-date agricultural commodity scale sheet, a current-
date custom harvesting load sheet, an official company document stating
the company's purpose, etc.;
(b) The CMV may have license plates specific to custom harvesting,
or the verbiage ``Harvesting'' may be part of the business signage on
the vehicle;
(c) The CMV may be designed to haul a harvested agricultural
commodity or equipment for harvesting or be a support vehicle for
custom-harvesting operations, such as a service truck;
(d) The CMV may be hauling a harvested agricultural commodity or
equipment for the purpose of custom harvesting;
(e) The CMV may have a newly harvested commodity or remnants on
board;
(f) The driver will be able to provide a verifiable location of the
current harvesting operation or delivery location for a harvested
commodity.
Requirements After the First 90 Days of the Provisional Renewal
After the first 90 days of this exemption notice, motor carriers
and drivers are subject to the following terms and conditions:
(1) Drivers for custom harvesters operating in interstate commerce
shall be exempt from any intrastate-only ``K'' restriction on their
CDLs when operating under the provisions of this exemption.
(2) Drivers must have a copy of this notice in their possession
while operating under the terms of the exemption. The exemption
document must be presented to law enforcement officials upon request.
(3) Drivers to be included in this exemption are identified in 49
CFR 391.2 as those operating a CMV to transport farm machinery,
supplies, or both, to or from a farm for custom harvesting operations
on a farm; or transport custom-harvested crops to storage or market.
(4) The USCHI must provide FMCSA with a list of motor carrier USDOT
numbers that are engaged in custom farm operations. The driver must be
working for a motor carrier with a USDOT number identified in the most
current list provided to FMCSA by USCHI.
Requirements for Notification to FMCSA
Within 30 days of this notice, the USCHI must provide FMCSA with
the USDOT numbers of the motor carriers that will be operating under
this exemption. The USCHI must notify FMCSA within five business days
of any crash (as defined in 49 CFR 390.5), involving any of the drivers
operating under the terms of the exemption. The notification must
include the following information:
(a) Identity of Exemption: ``USCHI Renewal,''
(b) Name of the custom harvester employer and USDOT number,
(c) Date of the crash,
(d) Origin and intended destination of the USCHI driver's trip and
the distance (in miles) of the crash from the driver's home terminal,
(e) Driver's name, license number, and age,
(f) Vehicle number and State license number,
(g) Number of individuals suffering physical injury (including
fatalities),
(h) Number of fatalities,
(i) The police-reported circumstances of the crash,
(j) Whether the driver was cited for violation of any traffic laws
or motor carrier safety regulations,
(k) The driver's total driving time and total on-duty time period
prior to the accident,
(l) Information about what safety training, if any, was provided to
the
[[Page 70434]]
under-21 years of age farm custom operator driver after the driver
obtained a CDL, and
(m) A scanned copy of the police accident report.
Reports filed under this provision shall bee-mailed to
[email protected].
D. Preemption
In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR
381.600, during the period this exemption is in effect, no state shall
enforce any law or regulation applicable to interstate commerce that
conflicts with or is inconsistent with this exemption with respect to a
firm or person operating under the exemption. States may, but are not
required to, adopt the same exemption with respect to operations in
intrastate commerce.
E. Termination
The exemption will be rescinded if: (1) the USCHI, motor carriers,
and drivers operating under the exemption fail to comply with the terms
and conditions of the exemption; (2) the exemption has resulted in a
lower level of safety than was maintained before it was granted; or (3)
continuation of the exemption would not be consistent with the goals
and objects of 49 U.S.C. 31136(e) and 31315.
Should FMCSA receive notice of any potential adverse safety
impacts, FMCSA will take all steps necessary to protect the public
interest, including revocation or restriction of the exemption if
necessary. FMCSA may immediately revoke or restrict the exemption for
failure to comply with its terms and conditions.
VI. Request for Comments
In accordance with 49 U.S.C. 31315(b), FMCSA requests public
comment from all interested parties on USCHI's application for
exemption renewal. All comments received before the close of business
on the comment closing date indicated at the beginning of this notice
will be considered and will be available for examination in the docket
at the location listed under the ADDRESSES section of this notice.
Comments received after the comment closing date will be filed in the
public docket and will be considered to the extent practicable. In
addition to late comments, FMCSA will also continue to file, in the
public docket, relevant information that becomes available after the
comment closing date. Interested persons should continue to examine the
public docket for new material.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-22442 Filed 10-10-23; 8:45 am]
BILLING CODE 4910-EX-P
