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[Federal Register Volume 89, Number 233 (Wednesday, December 4, 2024)]
[Proposed Rules]
[Pages 96176-96186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28097]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 383

[Docket No. FMCSA-2024-0121]
RIN 2126-AC59

Transportation of Fuel for Agricultural Aircraft Operations

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

ACTION: Notice of proposed rulemaking (NPRM).

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[[Page 96177]]

SUMMARY: This proposed rule would amend the Federal Motor Carrier 
Safety Regulations (FMCSRs) to allow States to waive the hazardous 
materials (HM) endorsement requirement for holders of Class A 
commercial driver's licenses (CDL) who transport no more than 1,000 
gallons of aviation grade jet fuel in support of seasonal agricultural 
operations.

DATES: Comments must be received on or before February 3, 2025.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2024-0121 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2024-0121/document. Follow the online 
instructions for submitting comments.
     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: Dockets Operations, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, West Building, 
Ground Floor, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., 
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.
     Fax: (202) 493-2251.

FOR FURTHER INFORMATION CONTACT: Ms. Rebecca Rehberg, Transportation 
Specialist, CDL Division, Office of Safety Programs, FMCSA; (850)-728-
2034; [email protected]. If you have questions on viewing or 
submitting material to the docket, call Dockets Operations at (202) 
366-9826.

SUPPLEMENTARY INFORMATION: FMCSA organizes this NPRM as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Costs and Benefits
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. International Impacts
VIII. Section-by-Section Analysis
IX. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), E.O. 14094 
(Modernizing Regulatory Review), and DOT Regulatory Policies and 
Procedures
    B. Advance Notice of Proposed Rulemaking
    C. Regulatory Flexibility Act
    D. Assistance for Small Entities
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act
    G. E.O. 13132 (Federalism)
    H. Privacy
    I. E.O. 13175 (Indian Tribal Governments)
    J. National Environmental Policy Act of 1969
    K. Rulemaking Summary

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
NPRM (FMCSA-2024-0121), indicate the specific section of this document 
to which your comment applies, and provide a reason for each suggestion 
or recommendation. 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 FMCSA 
can contact you if there are questions regarding your submission.
    To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2024-0121/document, click on this NPRM, click ``Comment,'' 
and type your comment into the text box on the following screen.
    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.
    FMCSA will consider all comments and material received during the 
comment period.
Confidential Business Information (CBI)
    CBI is commercial or financial information that is both customarily 
and actually treated as private by its owner. Under the Freedom of 
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. 
If your comments responsive to the NPRM contain commercial or financial 
information that is customarily treated as private, that you actually 
treat as private, and that is relevant or responsive to the NPRM, it is 
important that you clearly designate the submitted comments as 
CBI.Please mark each page of your submission that constitutes CBI as 
``PROPIN'' to indicate it contains proprietary information. FMCSA will 
treat such marked submissions as confidential under the Freedom of 
Information Act, and they will not be placed in the public docket of 
the NPRM. Submissions containing CBI should be sent to Brian Dahlin, 
Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200 
New Jersey Avenue SE, Washington, DC 20590-0001 or via email at 
[email protected]. At this time, you need not send a duplicate 
hardcopy of your electronic CBI submissions to FMCSA headquarters. Any 
comments FMCSA receives not specifically designated as CBI will be 
placed in the public docket for this rulemaking.

B. Viewing Comments and Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2024-0121/document and 
choose the document to review. To view comments, click this NPRM, then 
click ``Browse Comments.'' If you do not have access to the internet, 
you may view the docket online by visiting Dockets Operations on the 
ground floor of the DOT West Building, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, between 9 a.m. and 5 p.m., 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.

C. Privacy

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its regulatory process. DOT posts these 
comments, including any personal information the commenter provides, to 
www.regulations.gov as described in the system of records notice DOT/
ALL 14 (Federal Docket Management System (FDMS)), which can be reviewed 
at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices. The comments are posted without edit and are 
searchable by the name of the submitter.

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    FMCSA proposes to amend the commercial driver's license (CDL) 
regulations to allow States additional flexibility to waive the 
hazardous materials (HM) endorsement \1\ requirement for certain 
drivers transporting aviation fuel in furtherance of agricultural 
aviation operations. Many farm operations rely on aircraft to apply 
pesticides or fertilizers to their

[[Page 96178]]

crops. Agricultural aviation companies often deliver aircraft fuel to 
staging areas some distance from their headquarters. These companies, 
particularly in remote, rural areas, have difficulty finding CDL 
holders with HM endorsements to complete these deliveries. Under the 
current regulations, most CDL holders must obtain an HM endorsement 
before transporting fuels. However, 49 CFR 383.3(i) provides a limited 
exception to this requirement and allows States to waive the 
requirement of an HM endorsement if the holder of a Class A CDL is 
transporting diesel fuel in the CDL holder's State of domicile as an 
employee of four specific agriculture-related businesses. FMCSA 
proposes to give States authority to waive the HM endorsement 
requirement for Class A CDL holders who transport up to 1,000 gallons 
of aviation grade jet fuel (often called Jet A, referred to as jet fuel 
for the purposes of this preamble) in the CDL holder's State of 
domicile and in support of agricultural aircraft operations.
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    \1\ Endorsement as defined in Sec.  383.5 means an authorization 
to an individual's commercial learner's permit (CLP) or CDL required 
to permit the individual to operate certain types of commercial 
motor vehicles.
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B. Costs and Benefits

    This proposal could result in costs to States and their State 
driver licensing agencies (SDLAs) and may result in cost savings to 
drivers and to agricultural aviation operators. States and their SDLAs 
may incur costs for updating their websites and other informational 
materials to reflect the changes in requirements for Class A CDL 
holders transporting hazardous materials and for training roadside 
officers. The proposal would result in cost savings for agricultural 
aviation operators and the drivers these operators hire to mix, load, 
and transport jet fuel in quantities of 1,000 gallons or less in 
participating States. Class A CDL holders would avoid approximately 
$261 in costs associated with each driver obtaining an HM endorsement, 
and agricultural aviation operators would be able to run their 
businesses more efficiently by making use of satellite airstrips. FMCSA 
does not expect that this proposed rule would negatively impact CMV 
safety. For various reasons, drivers who transport jet fuel operate in 
low-risk safety conditions and rarely experience crashes. More in depth 
discussion of the potential impacts resulting from this rule are found 
in the regulatory analyses section below.

III. Abbreviations

ANPRM Advanced notice of proposed rulemaking
BLS Bureau of Labor Statistics
CBI Confidential business information
CDL Commercial driver's license
CFR Code of Federal Regulations
CE Categorical exclusion
CLP Commercial learner's permit
CMV Commercial motor vehicle
CMVSA Commercial Motor Vehicle Safety Act
DOT Department of Transportation
ELOS Equivalent level of safety
FAST Act Fixing America's Surface Transportation Act
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
HM Hazardous materials
HMRs Hazardous materials regulations
IRFA Initial regulatory flexibility analysis
MCMIS Motor Carrier Management Information System
NAAA National Agricultural Aviation Association
NAICS North American Industry Classification System
NEPA National Environmental Policy Act
NHTSA National Highway Traffic Safety Administration
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
PHMSA Pipeline and Hazardous Materials Safety Administration
PIA Privacy impact assessment
PTA Privacy threshold assessment
RFA Regulatory Flexibility Act
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act
SDLA State driver's licensing agency
STA Security Threat Assessment
TPR Training Provider Registry
TSA Transportation Security Administration
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code

IV. Legal Basis

    The CDL regulations are based on the authority of the Commercial 
Motor Vehicle Safety Act of 1986 (CMVSA). Section 12013 of the CMVSA 
allowed the Federal Highway Administration (FHWA), FMCSA's predecessor 
agency, to ``waive, in whole or in part, application of any provision 
of this title or any regulation issued under this title with respect to 
class of persons or class of commercial motor vehicles if the Secretary 
of Transportation (the Secretary) determines that such waiver is not 
contrary to the public interest and does not diminish the safe 
operation of commercial motor vehicles'' (Pub. L. 99-570, Title XII, 
100 Stat. 3207-170, 3207-186, Oct. 27, 1986, codified at 49 U.S.C. app. 
2711).
    On the basis of section 12013, FHWA authorized the States to waive 
the knowledge and skills tests otherwise required to obtain a CDL for 
employees of custom harvesters, farm retail outlets and suppliers, 
agrichemical businesses, and livestock feeders (57 FR 13650, Apr. 17, 
1992). CDL applicants in States that exercised this waiver option were 
required to meet certain conditions, including a prohibition on 
carrying any placarded quantities of HM, except for diesel fuel in 
quantities of 1,000 gallons or less (57 FR 13650, 13654). The 1992 CDL 
waiver option, with the 1,000-gallon restriction on the transportation 
of diesel fuel, was codified originally as 49 CFR 383.3(f)(3)(v) (61 FR 
9546, March 8, 1996).
    Following statutory amendments,\2\ the language of the CMVSA's 
section 12013--that a waiver must be ``not contrary to the public 
interest'' and ``not diminish the safe operation of commercial motor 
vehicles''--has been replaced by the standard that a waiver or 
exemption must ``likely achieve a level of safety that is equivalent 
to, or greater than, the level that would be achieved in the absence of 
the waiver'' (49 U.S.C. 31315(a)) or ``absent such exemption'' (49 
U.S.C. 31315d(b)(1)).
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    \2\ Title 49, United States Code, was recodified in 1994, the 
waiver authority in 49 U.S.C. app. 2711 was redesignated as 49 
U.S.C. 31315 (Pub. L. 103-272, 108 Stat. 745, 1029, July 5, 1994), 
and the Transportation Equity Act for the 21st Century (TEA-21) 
revised 49 U.S.C. 31315 as ``Waivers, exemptions, and pilot 
programs'' (Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998).
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    Section 7208 of the Fixing America's Surface Transportation (FAST) 
Act (Pub. L. 114-94, Dec. 4, 2015, 129 Stat. 1312, 1593) allowed the 
States to waive the requirement that a holder of a Class A CDL obtain 
the HM endorsement required by 49 CFR 383.93(b)(4), provided the Class 
A CDL holder is an employee of one of the four categories of business 
specified in FHWA's 1992 waiver who transports diesel fuel in 
quantities of 1,000 gallons or less. As thus amended, the State waiver 
authority is now codified at 49 CFR 383.3(i).
    FMCSA believes that the equivalent-level-of-safety (ELOS) standard 
required by the waiver and exemption provisions in 49 U.S.C. 31315 and 
49 CFR part 381 is the appropriate standard for this NPRM. The 1992 
rule required that the State waiver option not diminish the safe 
operation of CMVs, and all subsequent versions of the statute and 
regulation have retained that ELOS concept. Congress itself clearly 
embraced that standard when section 7208 was explicitly limited to the 
same four agriculture-related businesses covered by the 1992 exemption.
    Pursuant to 49 U.S.C. 31305(a), which sets forth the general 
standards for the CDL rules, also provides that FMCSA ``shall prescribe 
regulations on minimum standards for testing and ensuring the fitness 
of an individual

[[Page 96179]]

operating a commercial motor vehicle.'' Implicit in that provision is 
the authority to decide whether certain CDL holders may meet the 
``fitness'' requirement without complying with every part of the CDL 
regulations. FMCSA believes that exempting employees of agricultural 
aviation companies who hold Class A CDLs and transport jet fuel from 
the requirement to obtain an HM endorsement is consistent both with the 
standard of the CMVSA's section 12013 and with the current ELOS and 
``fitness'' standards enacted by Congress. A waiver granted by a State 
under this proposal, as under section 7208 of the FAST Act, would also 
exempt eligible drivers from the Transportation Security 
Administration's (TSA) background records check in 49 CFR part 1572, 
subpart B.

V. Background

A. Commercial Driver's License

    Since April 1, 1992, drivers have been required to obtain and hold 
a CDL if they operate in interstate, intrastate, or foreign commerce 
and drive a vehicle that meets one or more of the classifications of a 
CMV in 49 U.S.C. 31301(4).\3\ The physical requirements and knowledge 
and skills testing are intended to help to ensure safe operations of 
CMVs. FHWA and, since 2000, FMCSA have developed and issued standards 
for State licensing and testing of CDL applicants. Under Sec.  
383.133(c)(6) of the FMCSRs, States must administer a three-part CDL 
skills test to CDL applicants in the following order: (1) pre-trip 
inspection, (2) basic vehicle control skills, and (3) on-road skills. 
Drivers who operate special types of CMVs, such as school buses, 
vehicles carrying HM, double/triple trailers, tank vehicles, and 
combination vehicles, must pass additional tests to obtain the relevant 
endorsement for their CDLs. Endorsement testing requirements are found 
in Sec.  383.93(c). The HM endorsement requires a knowledge test.
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    \3\ Commercial Motor Vehicle Safety Act of 1986, Public Law 99-
570, Title XII, 100 Stat. 3207-170, 49 U.S.C. chapter 313.
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B. National Agricultural Aviation Association Interactions With FMCSA

    The National Agricultural Aviation Association (NAAA) is a trade 
association that represents over 1,900 members in 46 States. NAAA 
member operators/pilots are licensed as commercial applicators who use 
aircraft to enhance food and fiber production and control health-
threatening pests. According to NAAA's petition for rulemaking, 
aircraft operations are often the only, or the only economical, method 
to apply pesticides or fertilizers. Almost 28 percent of crop 
protection product applications to commercial farmland are made 
aerially. As a result, NAAA estimates that 127 million acres of 
cropland are treated via aerial application in the U.S. each year.\4\
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    \4\ Industry Facts, Environmental Benefits and FAQs--National 
Agricultural Aviation Association (agaviation.org) (accessed June 
11, 2024).
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    While fueling, mixing, and loading of crop-protection products 
(e.g., fertilizers, insecticides, fungicides, or herbicides) are 
normally conducted at a location where agriculture aviation operators 
have permanent fuel tanks and mixing and loading facilities, at times 
operators and pilots work so far from their permanent facility that it 
is cost-effective to use a satellite landing strip and an on-site fuel 
truck. In such scenarios, fuel is pumped from the fixed-base tanks into 
the fuel truck that transports it to the satellite landing strip. 
Additional trips are made to the satellite strip as needed, and the CMV 
returns to the fixed-base location at the end of the day. Some CMVs may 
also be loaded with crop-protection products (e.g., insecticides, 
fungicides, or herbicides). The driver may serve both as a ``mixer 
loader'' of the fertilizers or pesticides and of the aircraft fuel.
2005 Exemption Request
    On June 17, 2005, NAAA requested an exemption \5\ under 49 CFR 
381.310 on behalf of its members. NAAA asked that CMV drivers 
supporting agricultural aircraft operations be exempted from the 
required knowledge and skills tests required for a CDL and that they be 
eligible to receive restricted CDLs allowed for certain drivers in 
farm-related service industries, as described in Sec.  383.3(f). In 
addition, NAAA sought an exemption from Sec.  383.3(f)(3)(v) to allow 
these restricted CDL holders to transport fuel used to power crop-
sprayer aircraft, if transported in quantities of 1,000 gallons or 
less. NAAA argued that the exemptions would provide parity with the CDL 
regulations for other, nearly identical farm-related services. NAAA did 
not offer any countermeasures to ensure an ELOS, as required by 49 
U.S.C. 31315(b)(5)(D), but it argued that compliance with all other DOT 
requirements would ensure safe CMV operations.
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    \5\ The request for exemption and other associated documents may 
be found at https://www.regulations.gov/docket/FMCSA-2007-28480.
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2007 Federal Register Notice
    On July 5, 2007, FMCSA issued a Federal Register notice (72 FR 
36748) soliciting comments on the NAAA application. The Agency received 
a total of 17 comments, 9 supporting and 6 opposing the exemption. Two 
comments were out of scope. All comments that supported the request 
were from agricultural entities. Opponents included a safety 
association and State safety agencies.
    Supporters of the request noted that they were experiencing the 
same shortage of qualified CDL drivers as NAAA members, creating a 
hardship for the industry. Commenters also mentioned CMVs transporting 
jet fuel and pesticides operate primarily in rural areas, where low 
population and traffic density reduced crash risk. These trips usually 
occur within a 50-mile radius or less of their permanent facilities. 
One farmer indicated that agriculture relies on crop spraying 
operations.
    The NAAA's application was opposed by Advocates for Highway and 
Auto Safety and safety agencies of Missouri, Virginia, and Ohio. The 
commenters pointed out that, if this exemption were in place, NAAA 
drivers would be transporting HM more dangerous than that permitted by 
Sec.  383.3(f)(3)(v) and would be doing so without demonstrating basic 
competency in CMV operations. The drivers would also avoid two 
requirements for the HM endorsement: successful completion of the 
written HM test required by Sec.  383.135, and a determination by the 
TSA pursuant to Sec.  383.141(b) that the driver is ``not a security 
threat.'' The commenters also pointed out that NAAA failed to propose 
an alternative method of assessing the knowledge and skills of these 
CMV drivers, as required by Sec.  381.415(c)(6) through (c)(8).
2010 Denial
    After reviewing NAAA's request for exemption and the public 
comments received, FMCSA concluded that NAAA had failed to demonstrate 
how it would ensure that the operations of its members under the 
exemption would achieve an ELOS. The Agency published the notice of 
denial in the Federal Register on June 10, 2010 (75 FR 32983).
FAST Act Implementation
    Section 7208 of the FAST Act directed the Secretary to allow a 
State, at its discretion, to waive the requirement that a Class A CDL 
holder obtain an HM endorsement when that individual is transporting 
3,785 liters (1,000 gallons) or less of diesel fuel, marked 
``flammable'' or ``combustible,'' as appropriate, as an employee of a 
custom harvester operation,

[[Page 96180]]

agrichemical business, farm retail outlet and supplier, or livestock 
feeder.
    On July 22, 2016, FMCSA implemented this and other provisions of 
the FAST Act (81 FR 47714). The final rule amended Sec.  383.3 by 
adding a new paragraph (i), providing that a State may waive the 
requirement that a driver obtain a HM endorsement to transport diesel 
fuel under certain circumstances.
2018 NAAA Petition
    In April of 2018, NAAA submitted a petition to amend Sec.  
383.3(i), which FMCSA treated as a petition for rulemaking under Sec.  
389.31. NAAA argued that expanding the exemption options allowed by 
section 7208 of the FAST Act to include an HM exception for drivers 
with a Class A CDL transporting 1,000 gallons or less of jet fuel would 
provide an economic benefit to agriculture aviation operators while 
keeping America's roads safe. NAAA asserted that the similar chemical 
properties of jet fuel and diesel fuel, along with infrequency of trips 
involving aviation fuel, the rural environments in which these trips 
typically occur, and exceptional weather conditions would provide an 
ELOS while reducing regulatory burdens on agriculture aviation 
operators.
    NAAA emphasized the cost to agriculture aviation operators, almost 
all of them small businesses, of paying drivers to obtain an HM 
endorsement when they already have the knowledge and skills required to 
hold a CDL. NAAA noted that retaining drivers with an HM endorsement is 
extremely difficult due to the seasonal nature of agriculture aviation 
work. NAAA indicated that a shortage of available drivers with such an 
endorsement may block the transportation of jet fuel to a satellite 
airstrip closer to the application site. In December of 2022, after 
review of the petition and consultation with technical staff from the 
Pipeline and Hazardous Materials Safety Administration (PHMSA), FMCSA 
granted NAAA's petition for rulemaking to amend Sec.  383.3(i).\6\
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    \6\ The grant letter and all other correspondence with NAAA 
related to this rulemaking can be found in the docket for this rule.
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VI. Discussion of Proposed Rulemaking

    Pursuant to Sec. Sec.  383.93(a)(1) and (b)(4), a CDL holder may 
not drive a vehicle used to transport HM without obtaining a State-
issued HM endorsement. The term hazardous materials is defined in Sec.  
383.5 to include materials for which placarding is required under 
subpart F of 49 CFR part 172. Current regulations generally require a 
CDL holder to obtain an HM endorsement in order to transport fuel, 
including jet fuel.
    This NPRM would amend Sec.  383(i) to allow States to waive the HM 
requirement for Class A CDL holders who are employed by agricultural 
aviation operators in their State of domicile and drive a vehicle 
transporting up to 3,785 liters (1,000 gallons) of jet fuel (clearly 
marked with a ``flammable'' or ``combustible'' placard) for use in 
agricultural aviation operations. The Agency also proposes to add a 
definition of jet fuel to mean ``fuel, aviation, turbine engine'' as 
listed in the Hazardous Materials Table in 49 CFR 172.101 that is 
reclassed as a combustible liquid in accordance with 49 CFR part 173.
    FMCSA developed the proposal in this NPRM based on evaluation and 
review of available data relating to the similarity of jet fuel and 
diesel fuel, the safety of the trucking operations of the agricultural 
aviation industry, NAAA's petition content, existing exemptions to 
subpart H of 49 CFR part 383, potential impact on the States, and the 
ELOS for an addition of a jet fuel exemption. These topic areas are 
discussed individually below. In addition to the specific areas 
detailed below, FMCSA also requests comment on other questions 
regarding the agricultural aviation industry transport of fuel in 
general which can be found in Section VI.6. Issues on Which the Agency 
Seeks Further Comment.

1. Jet Fuel and Diesel Fuel

    Both diesel and jet fuel are kerosene-based fuels and have similar 
chemical characteristics, transportation requirements, and related 
exceptions. Under the HM regulations, both diesel fuel and jet fuel are 
classified as flammable liquids in the hazardous materials table (Sec.  
172.101), but in most instances, may be reclassed as combustible 
liquids if they have a flash point at or above 100 [deg]F (38[deg]C). 
If properly reclassed as combustible liquids and transported in non-
bulk packaging, as defined in Sec.  171.8, diesel and jet fuel are not 
subject to the requirements of Subchapter C of the HM regulations 
unless the combustible liquid is a hazardous substance, a hazardous 
waste, or a marine pollutant. This exception allows drivers to 
potentially transport more than 1,000 gallons of diesel or jet fuel in 
multiple non-bulk packagings without an HM endorsement. However, when 
diesel or jet fuel are properly reclassed as combustible liquids but 
transported in a bulk packaging, as defined in Sec.  171.8, they are 
subject to some of the HM regulations including the placarding 
requirements of subpart F of 49 CFR part 172 and the HM endorsement. 
Additionally, PHMSA's Emergency Response Guidebook provides emergency 
responders the same guidance on what to do during the initial stages of 
a HM transportation incident.

2. Safety of the Trucking Operations of the Agricultural Aviation 
Industry

    FMCSA reviewed the supporting evidence provided by NAAA in its 
petition. NAAA indicated that several factors support the safety of its 
proposed HM exemption, primarily the similarity of jet fuel to diesel 
fuel, for which an exemption option is already available. Additionally, 
agriculture aviation operations typically take place in rural areas 
with minimal traffic and during fair weather conditions. In many cases, 
driving occurs only once or twice a week to a satellite facility. These 
factors, in addition to the knowledge and skills required to obtain a 
Class A CDL, create low-risk safety conditions. FMCSA agrees diesel 
fuel is similar to jet fuel, as defined in this NPRM, and that 
agricultural aviation transport of jet fuel generally occurs in lower 
traffic areas which are linked to lower incident rates. In the FAST 
Act, Congress implicitly determined that allowing States the option to 
waive the HM endorsement for drivers transporting diesel fuel for the 
four agriculture-related businesses now listed in Sec.  383.3(i), would 
not adversely affect safety. Because jet fuel is chemically very 
similar to diesel fuel and because agricultural aviation companies 
transport jet fuel in the same rural areas, on roads with low traffic 
density, as drivers transporting diesel fuel for the four agricultural 
businesses listed in the FAST Act, FMCSA concludes that the ELOS 
determination underlying the FAST Act waiver option is equally valid 
and applicable to the option for a State waiver of the HM endorsement 
proposed by this rulemaking.

3. Impact on the States

    FMCSA is aware that States may have concerns if the HM knowledge 
test were allowed to be waived. These concerns could include 
undermining the purpose of a CDL and its intended level of safety, 
opening the possibility for other industries to request such 
exemptions, and inconsistency across the States that exercise 
discretion with the proposed jet fuel exemption.
    The Agency notes that, regardless of whether any State exercises 
its discretion, a driver may still be required to obtain an HM 
endorsement when

[[Page 96181]]

operating a CMV in a State that has not opted to waive the requirement. 
This scenario could occur when jet fuel is transported across a State 
line. As detailed earlier in the section V. B. Background, most 
satellite locations utilizing exempted CMVs are expected to be within a 
50-mile radius of the permanent facility. FMCSA therefore believes that 
such discrepancies in endorsement requirements would be uncommon.
    The Agency's experience with SDLAs' responses to codification of 
the diesel fuel exemption indicate that 16 of 50 \7\ States choose to 
grant the exemption. FMCSA believes that States with economies heavily 
dependent on agriculture would be most likely to exercise a jet fuel 
exemption. The Agency expects a similar level of use if this proposal 
were to be made final, but requests comment on that assumption.
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    \7\ FMCSA contacted the States, 50 of which responded as of July 
25, 2024, to determine which States choose to grant the exemption 
for diesel. The 16 States that grant the diesel exemption are: 
Alabama, Connecticut, Iowa, Kansas, Kentucky, Minnesota, 
Mississippi, Nebraska, North Dakota, New Mexico, New Jersey, 
Oklahoma, Pennsylvania, South Dakota, Texas, and Wisconsin.
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    States utilizing the exemption would need to provide training to 
roadside officers on the application of the new rule. The added 
development cost of the training would be minimal, however, due to the 
similarity of the existing diesel fuel exemption.

4. Equivalent Level of Safety

    As part of evaluating the NAAA petition, FMCSA considered whether 
granting the exemption for jet fuel would likely maintain a level of 
safety equivalent to, or greater than, the level achieved by the 
current regulations. The Agency reviewed available safety records, 
reports, and statistics to evaluate the safety of the proposal 
presented in this NPRM.
    In addition to other analysis, FMCSA evaluated the existing diesel 
fuel exemption to determine if jet fuel has similar risk 
characteristics. FMCSA reviewed the conference report that accompanied 
the FAST Act, and found no indication that Congress intentionally 
excluded the transportation of kerosene-based fuels other than diesel 
fuels, such as fuels used in support of agriculture aviation 
operations.\8\
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    \8\ FAST Act Conference Report to Accompany H.R. 22. Dec. 1, 
2015. https://www.congress.gov/114/crpt/hrpt357/CRPT-114hrpt357.pdf 
(accessed June 21, 2024).
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    FMCSA analyzed existing data sources available in the National 
Highway Traffic Safety Administration's (NHTSA) Fatality Analysis 
Reporting System and FMCSA's Motor Carrier Management Information 
System (MCMIS) as well completing a 47-question survey of Agency field 
staff directly involved in the enforcement of, and compliance with, 
Federal regulations. The study did not return evidence of safety or 
enforcement impacts directly attributable to the FAST Act provisions, 
which include the HM endorsement exemption for diesel fuel.\9\
---------------------------------------------------------------------------

    \9\ FMCSA Congress Safety and Enforcement Impacts Report to 
Congress. Feb. 2023. This document is available at: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2023-03/Safety%20and%20Enforcement%20Impacts%20Report%20Final%20February%202023.pdf and in the docket for this rulemaking (last accessed May 24, 
2024).
---------------------------------------------------------------------------

    NAAA indicated that agricultural aviation fuel transportation 
occurs most commonly in rural agricultural areas where there is less 
traffic. This is supported by research which indicates, for example, 
that 16.4 percent of crashes are on roads with 10,000 vehicles/day or 
fewer, compared to 36.9 percent of crashes on roads with 10,000-50,000 
vehicles, and 46.7 percent of crashes on roads with 50,000+ 
vehicles.\10\ Likewise, the 2005 FMCSA Report to Congress on the Large 
Truck Crash Causation Study reviewed crashes by roadway type and 
indicated the following: Interstate (25.1 percent), U.S. highway (24.2 
percent), State highway (30.3 percent), country road (9.1 percent), 
township (1.5 percent), municipality (6.8 percent), and other (2.6 
percent).\11\
---------------------------------------------------------------------------

    \10\ Dong, Chunjiao, Qiao Dong, Baoshan Huang, Wei Hu, and 
Shashi S. Nambisan. ``Estimating factors contributing to frequency 
and severity of large truck-involved crashes.'' 2017. Journal of 
Transportation Engineering, Part A: Systems 143, no. 8: 04017032.
    \11\ Report to Congress on the Large Truck Crash Causation 
Study. Federal Motor Carrier Safety Administration, U.S. Department 
of Transportation: Washington, DC, USA (2005).
---------------------------------------------------------------------------

    Finally, the FAST Act addition of Sec.  383.3(i) does not provide 
exemptions from additional regulatory requirements related to the 
transportation of diesel fuel and, for the purposes of this rulemaking, 
jet fuel. Because drivers transporting jet fuel are hazmat employees as 
defined in 49 CFR 171.8, hazmat training is still required under parts 
172 and 177 for the agricultural aviation industry.
    PHMSA initial and recurring HM training requirements, found in 
Sec.  172.704, include general awareness/familiarization with HM, 
function specific training, safety training including emergency 
response, and security awareness. Additionally, Sec.  177.816 requires 
driver training that is very similar to the training required to obtain 
the HM endorsement.
    FMCSA finds that initiation of a rulemaking to provide States the 
option to grant relief from the HM endorsement for agriculture aviation 
operators seeking a Class A CDL to be reasonable, given the similarity 
of diesel fuel to jet fuel and the available research.

5. Issues on Which the Agency Seeks Further Comment

    The Agency requests comment on certain aspects of the agriculture 
aviation industry and the use of CMVs to transport jet fuel.
    a. FMCSA believes that States with economies heavily dependent on 
agriculture would be most likely to exercise a jet fuel exemption. Is 
this an accurate assumption?
    b. Will this proposal lead to additional burden or costs to SDLAs 
and/or roadside officers and any other law enforcement officials 
responsible for enforcing CDL and HM endorsement compliance?
    c. How many Class A CDL holders with HM endorsements are currently 
involved in transporting jet fuel in quantities of 1,000 gallons or 
less for agriculture aviation operations?
    d. How many CMV drivers will enter the market for transporting jet 
fuel in quantities of 1,000 gallons or less in participating States due 
to relaxed requirements?
    e. As part of the initial petition for rulemaking, the NAAA claimed 
that a shortage of available drivers may prevent the use of a satellite 
airstrip closer to the application site. How many satellite airstrips 
would be available for use if this proposal were to be finalized? How 
many refueling trips from application sites back to operational bases 
(mixing-loading sites) do aircraft currently make, and how much fuel do 
these trips require?
    f. How much revenue do agriculture aviation operators lose as a 
result of not having an available CMV driver with a Class A CDL and HM 
endorsement? In a survey from 2005 cited in its initial petition for 
rulemaking, the NAAA mentioned that one operator claimed that he loses 
$2,500 to $5,000 per day as a result of not having an available CDL 
holder and loses work as a result of this shortage. FMCSA is seeking an 
estimate of the revenue the typical (average) agriculture aviation 
operator loses per day by not having an available CMV driver to 
transport jet fuel and therefore occasionally being unable to work.

[[Page 96182]]

VII. International Impacts

    Motor carriers and drivers are subject to the laws and regulations 
of the countries that they operate in, unless an international 
agreement states otherwise. Drivers and carriers should be aware of the 
regulatory differences between nations.

VIII. Section-by-Section Analysis

    This section-by-section analysis describes the proposed changes in 
numerical order. Part 383 ``Applicability'' would be amended in five 
locations. Paragraph (i) of Sec.  383.3 would be amended to add ``or 
jet fuel'' to the commodities States may exempt from the subpart H CDL 
requirement. Paragraph (i)(1) would be amended by adding ``agriculture 
aviation operation'' to the list of industries to which the hazardous 
material endorsement exemption applies. Paragraph (i)(2)(i) would be 
amended to add operators of vehicles transporting jet fuel in a 
quantity of 1,000 or less gallons to the conditions of the hazardous 
material exemption. Paragraph (i)(2)(ii) would be revised to indicate 
that jet fuel or diesel fuel transported under this hazardous material 
endorsement exemption must be clearly placarded in accordance with Part 
172 subpart F and all other applicable HMRs.
    Finally, section 383.5 ``Definitions'' would be amended to add a 
definition for jet fuel. The definition includes all classes of fuel, 
aviation, turbine engine as listed in the Hazardous Materials Table in 
49 CFR 172.101, including Jet A, that are reclassed as a combustible 
liquid in accordance with 49 CFR part 173.

IX. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), E.O. 14094 
(Modernizing Regulatory Review), and DOT Regulatory Policies and 
Procedures

    FMCSA has considered the impact of this NPRM under E.O. 12866 (58 
FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 
FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, 
and E.O. 14094 (88 FR 21879, Apr. 11, 2023) Modernizing Regulatory 
Review. The Office of Information and Regulatory Affairs within the 
Office of Management and Budget (OMB) determined that this NPRM is not 
a significant regulatory action under section 3(f) of E.O. 12866, as 
supplemented by E.O. 13563 and E.O. 14094, and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that order. Accordingly, OMB has not reviewed it under that E.O.
    This proposal would amend the CDL regulations to allow States 
additional flexibility to waive the HM endorsement requirement for 
holders of a Class A CDL who are transporting aviation fuel in 
quantities of 1,000 gallons or less in service of agricultural aviation 
operations. Under the current regulations, before undertaking this 
task, drivers working for agricultural aviation operators must obtain 
an HM endorsement, which requires training, testing, and a TSA 
background check. This proposal would allow flexibility for a limited 
population of drivers while operating within their State of domicile to 
provide services to agricultural aviation operations without obtaining 
an HM endorsement.
    This proposed rule is voluntary in nature and does not require that 
States adopt any flexibilities contained herein. This proposed rule 
could impact States, SDLAs, agricultural aviation operators, and 
drivers. The analysis below discusses these affected entities, the need 
for the regulation, and the costs and benefits that could result from 
the proposed rule.
Affected Entities
States
    States could be impacted by this proposal; however, FMCSA does not 
know how many States would opt to waive the HM endorsement for 
agricultural aviation businesses and their drivers under this proposal. 
In response to Section 7208 of the FAST Act, 16 of 50 States chose to 
grant the exemption for diesel fuel, which is similar to the jet fuel 
exemption specified in this proposal. FMCSA assumes that there would be 
a similar level of adoption for this proposal, and that the majority of 
participating States would be those with agriculture-dependent 
economies.
SDLAs
    This proposal would impact SDLAs in States that choose to waive the 
requirement for HM endorsements for Class A CDL holders employed by 
agricultural aviation operators. SDLAs are responsible for 
administering CDLs and endorsements for the motor carrier driver 
population. SDLAs in participating States would need to become familiar 
with these new requirements and update information on requirements for 
CDL holders.
Drivers
    This proposal would impact Class A CDL holders who are employed by 
agricultural aviation operators in participating States and are 
responsible for transporting jet fuel in quantities of 1,000 gallons or 
less. Drivers serve as ``mixer-loaders'' for crop protection products 
and load agricultural aircrafts with these products and fuel. Drivers 
pump fuel from fixed base tanks into the fuel truck then transport it 
to the satellite airstrip to load into agricultural aircraft. Under 
this proposal, drivers operating Group A vehicles would still need to 
hold a Class A CDL since this proposal would only allow States to waive 
the HM endorsement requirement. These drivers would still be required 
to obtain an HM endorsement when transferring jet fuel across State 
lines.
    FMCSA anticipates that any impacted drivers would work in the same 
North American Industry Classification System (NAICS) industry as 
agricultural aviation operators; 11511--support activities for crop 
production. As of May 2023, Bureau of Labor Statistics (BLS) reports 
that there are 5,430 heavy tractor-trailer drivers working in the 1151 
industry.\12\ The 1151 industry is broader than agricultural aviation 
operations, and as such drivers impacted by this rule would be a subset 
of the 5,430 within this industry. Further, FMCSA does not know how 
many drivers are employed by agricultural aviation operators in the 
States that would waive the HM endorsement requirement. FMCSA requests 
comment on the size of this population.
---------------------------------------------------------------------------

    \12\ BLS, date extracted: July 11, 2024.
---------------------------------------------------------------------------

Agricultural Aviation Operators
    According to the NAAA, there are approximately 1,560 agricultural 
aviation businesses and 3,400 agricultural pilots (approximately 2,000 
are hired pilots and 1,400 are owner/operators) operating in the United 
States.\13\ FMCSA does not know how many agricultural aviation 
businesses would be impacted by this rule.
---------------------------------------------------------------------------

    \13\ https://www.agaviation.org/about/about-ag-aviation/industry-facts-faqs/.
---------------------------------------------------------------------------

Need for the Regulation
    While both fueling and mixing and loading of crop-protection 
products (e.g., fertilizers, insecticides, fungicides, or herbicides) 
are normally conducted at a location where agriculture aviation 
operators have permanent fuel tanks and mixing and loading facilities, 
at times operators and pilots work so far from their permanent facility 
that it is cost-effective to use a satellite landing strip and an on-
site fuel truck. When on-site fuel trucks or drivers are not available, 
pilots must fly agricultural

[[Page 96183]]

aircraft back to their permanent mixing and loading facilities, which 
limits the amount of land pilots can spray on a given day and increases 
fuel costs, leading to reduced revenue for businesses.
    Agricultural aviation businesses face a shortage of qualified 
drivers because for a Class A CDL an HM endorsement is a marketable 
asset, and these drivers are likely to find consistent, non-seasonal 
work. Furthermore, these businesses tend to operate in remote, rural 
areas that may be hundreds of miles away from the nearest SDLA. These 
factors limit agricultural aviation businesses from meeting their 
workforce needs.
Costs and Benefits
Costs
    This proposal could result in costs to States and their licensing 
agencies and may result in cost savings to drivers and to agricultural 
aviation operators. Under this proposal, States and their SDLAs may 
incur costs. SDLAs in participating States may need to update their 
websites to reflect the changes in requirements for Class A CDL holders 
transporting hazardous materials. Also, roadside officers in 
participating States would need to undergo training to be able to 
determine which drivers are operating under the waiver. FMCSA 
anticipates that States would update their biannual training to include 
a module on any changes to the CDL regulations and model any changes 
resulting from this rule after the training for the diesel fuel 
exemption. Because this training is ongoing, FMCSA anticipates that any 
additional costs related to this change would be de minimis. The Agency 
does not have data with which to estimate these potential State and 
SDLA costs and requests comments on the scope and magnitude of costs in 
participating States as a result of this proposal.
    The proposal would result in cost savings for agricultural aviation 
operators and the drivers these operators hire to mix, load, and 
transport jet fuel in quantities of 1,000 gallons or less in 
participating States. Under the proposal, Class A CDL holders would not 
need to undergo the 4-step process of obtaining an HM endorsement: 
completing a theory training module, passing a written exam, passing a 
TSA Security Threat Assessment (STA), and paying an SDLA fee, if 
applicable. As outlined below, the total cost per driver to obtain an 
HM endorsement is $261.
    Drivers must take theory training from training providers listed on 
the FMCSA Training Provider Registry (TPR). FMCSA anticipates that 
drivers impacted by this rule would opt to take online theory training 
because they live in remote areas. There are over 1,000 providers 
listed on the TPR that provide online HM endorsement training. FMCSA 
took a random sample of approximately 180 providers and researched 
websites to develop estimates of training cost and time. Based on those 
websites that provided information, FMCSA found that the theory 
training cost ranges from $16 to $200, with a mean cost of $96 and a 
median cost of $99. These trainings tend to be self-paced, so few 
companies advertise the average length of time to complete the 
training. From those companies that provided information, the time 
ranges from 1 hour to 16 hours, with a mean of 5 and a median of 2 
hours. For estimation purposes, FMCSA anticipates that drivers impacted 
by this rule would save a $99 theory training fee and 2 hours of 
training, valued at $61.50. The opportunity cost of training time is 
valued at the rate at which drivers would accept in exchange for it, 
$30.75 per hour ($20.75 median hourly wage x 48.19 percent fringe 
benefit rate).14 15
---------------------------------------------------------------------------

    \14\ Department of Labor (DOL), BLS. Occupational Employment 
Statistics (OES). May 2023. Median hourly wage for Heavy and 
Tractor-Trailer truck drivers in the 115110 occupation is $20.75. 
Available at: http://www.bls.gov/oes/tables.htm (accessed July 11, 
2024).
    \15\ DOL, BLS. Employer Cost for Employee Compensation for 
Transportation and Warehousing, Table 4: Table 4: Employer Costs for 
Employee Compensation for private industry workers by occupational 
and industry group. March 17, 2023. Available at: https://www.bls.gov/news.release/pdf/ecec.pdf (accessed Apr. 22, 2024).
---------------------------------------------------------------------------

    Drivers seeking an HM endorsement must complete a background 
investigation through the TSA HM Endorsement Threat Assessment Program 
on-line application, visiting an application center, and paying a non-
refundable fee of $86.50. This process must be completed every 5 years 
in order to maintain the HM endorsement. Drivers operating under the 
waiver provided in the proposed rule would not be required to complete 
this process.
    Lastly, Class A CDL holders operating under the waiver provided in 
the proposed rule would not need to return to the SDLA to obtain an HM 
endorsement and would not be required to pay the associated SDLA fee. 
The SDLA HM endorsement fee changes by jurisdiction, ranging from $0 to 
over $40. For illustrative purposes, FMCSA estimates the average SDLA 
fee to be $14. As displayed in the table below, the total per driver 
cost to obtain an HM endorsement is $261.

                 Table 1--Costs To Obtain HM Endorsement
------------------------------------------------------------------------
                           Component                              Value
------------------------------------------------------------------------
Theory Training Fee...........................................    $99.00
Driver Opportunity Cost of Training...........................     61.50
TSA Background Fee............................................     86.50
SDLA HM Endorsement Fee.......................................     14.00
                                                               ---------
    Total Cost Savings for each Class A CDL Holder............    261.00
------------------------------------------------------------------------

    FMCSA does not expect this proposal would immediately impact 
drivers who currently hold a Class A CDL and HM endorsement. The 
proposal could impact these drivers at the time of renewal by 
eliminating the fees for the HM endorsement.
    These estimates do not include the costs associated with traveling 
to a TSA appointment center for the STA or traveling to the SDLA to 
take an HM knowledge test or obtain the HM endorsement. In rural areas 
where aerial agricultural operations are based, an SDLA may be several 
hundred miles away. FMCSA does not have data on how far drivers must 
travel to a TSA appointment center or an SDLA to pass the requirements 
to operate a vehicle transporting jet fuel but welcomes comment on the 
costs associated with this process.
    Agricultural aviation operators would gain efficiencies from this 
proposal because pilots working for operators in participating States 
would not need to expend time and fuel to travel back to their home 
bases to refuel. Instead, they would rely on CMV drivers with Class A 
CDLs to transport jet fuel and crop protection products from permanent 
facilities, which are often far from the agricultural fields, to 
satellite airstrips. According to an NAAA survey from 2005, operators 
shared that in many cases they could not work because drivers were not 
available. The NAAA maintains that a shortage of available drivers with 
HM endorsements prevents the use of satellite airstrips, limiting the 
amount of land that can be sprayed on a given day and resulting in 
increased jet fuel costs. FMCSA does not know the current fuel or time 
(opportunity) costs these trips entail. In addition, FMCSA does not 
know how many more satellite facilities would be available as a result 
of this proposal and how many trips to mixing-loading facilities would 
be avoided by agricultural pilots. As such, FMCSA cannot estimate the 
cost savings that could result from this provision but requests comment 
on the impact of this proposed change as well as any data that the 
Agency can use to quantify the impact of this provision.

[[Page 96184]]

Benefits
    FMCSA does not expect this proposed rule would negatively impact 
CMV safety. For various reasons, drivers who transport jet fuel operate 
in low-risk safety conditions and rarely experience crashes. According 
to the previously mentioned survey from 2005 cited in the NAAA's 
initial application for endorsement, 95.3 percent of agricultural 
aviation operations had never been involved in any type of accident, 
and 92.9 percent travel on rural roads with minimal traffic. The NAAA 
also noted in this survey that drivers transporting fuel and chemicals 
travel an average of 57.81 miles per day, although they drive only once 
or twice a week to a satellite facility. Furthermore, the NAAA 
currently provides highway safety education for a large portion of the 
small business owners of agricultural aircraft operations throughout 
the country through its Professional Agricultural Aviation Support 
System.
    The Agency has not identified any other benefits to society that 
would result from the proposed change to Sec.  383.3(i).

B. Advance Notice of Proposed Rulemaking

    Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance 
notice of proposed rulemaking (ANPRM) or proceed with a negotiated 
rulemaking if a proposed rule is likely to lead to the promulgation of 
a major rule.\16\ As this proposed rule is not likely to result in the 
promulgation of a major rule, the Agency is not required to issue an 
ANPRM or to proceed with a negotiated rulemaking.
---------------------------------------------------------------------------

    \16\ A major rule means any rule that the Office of Management 
and Budget finds has resulted in or is likely to result in (a)an 
annual effect on the economy of $100 million or more; (b)a major 
increase in costs or prices for consumers, individual industries, 
geographic regions, Federal, State, or local government agencies; or 
(c)significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based enterprises to compete with foreign-based enterprises 
in domestic and export markets (5 U.S.C. 802(4)).
---------------------------------------------------------------------------

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act of 1980, Public Law 96-354, 94 Stat. 
1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory 
Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121, 110 Stat. 
857, March 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 
111-240, 124 Stat. 2504 September 27, 2010), requires Federal agencies 
to consider the effects of the regulatory action on small business and 
other small entities and to minimize any significant economic impact. 
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. Accordingly, DOT policy requires an 
analysis of the impact of all regulations on small entities, and 
mandates that agencies strive to lessen any adverse effects on these 
businesses. Therefore, FMCSA is publishing this initial regulatory 
flexibility analysis (IRFA) to aid the public in commenting on the 
potential small business impacts of the proposals in this NPRM.
    An IRFA must contain the following:
    1. A description of the reasons why the action is being considered;
    2. A succinct statement of the objectives of, and legal basis for, 
the proposed rule;
    3. A description--and where feasible, an estimate of the number of 
small entities to which the rule will apply;
    4. A description of the projected reporting, recordkeeping, and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record; and
    5. An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
    (1) A description of the reasons why the action is being 
considered.
    FMCSA proposes to amend the CDL regulations to allow States 
additional flexibility to waive the HM endorsement \17\ requirement for 
certain drivers transporting aviation fuel in furtherance of 
agricultural aviation operations. Many such operations rely on aircraft 
to apply pesticides or fertilizers to their crops. Agricultural 
aviation operators often deliver aircraft fuel to staging areas some 
distance from their headquarters. These companies, particularly in 
remote, rural areas, have difficulty finding CDL holders with HM 
endorsements to complete these deliveries.
---------------------------------------------------------------------------

    \17\ Endorsement as defined in Sec.  383.5 means an 
authorization to an individual's CLP or CDL required to permit the 
individual to operate certain types of commercial motor vehicles.
---------------------------------------------------------------------------

    (2) A succinct statement of the objectives of, and legal basis for, 
the proposed rule.
    The CDL regulations are based on the authority of CMVSA. Section 
12013 of the CMVSA allowed the FHWA, FMCSA's predecessor agency, to 
``waive, in whole or in part, application of any provision of this 
title or any regulation issued under this title with respect to class 
of persons or class of commercial motor vehicles if the Secretary 
determines that such waiver is not contrary to the public interest and 
does not diminish the safe operation of commercial motor vehicles'' 
(Pub. L. 99-570, Title XII, 100 Stat. 3207-170, 3207-186, Oct. 27, 
1986, codified at 49 U.S.C. app. 2711). Following statutory 
amendments,\18\ the language of the CMVSA's section 12013--that a 
waiver must be ``not contrary to the public interest'' and ``not 
diminish the safe operation of commercial motor vehicles''--has been 
replaced by the standard that a waiver or an exemption must ``likely 
achieve a level of safety that is equivalent to, or greater than, the 
level that would be achieved in the absence of the waiver'' (49 U.S.C. 
31315(a) or ``absent such exemption'' (49 U.S.C. 31315(b)(1)).
---------------------------------------------------------------------------

    \18\ Title 49, United States Code, was recodified in 1994, the 
waiver authority in 49 U.S.C. app. 2711 was redesignated as 49 
U.S.C. 31315 (Pub. L. 103-272, 108 Stat. 745, 1029, July 5, 1994), 
and the Transportation Equity Act for the 21st Century (TEA-21) 
revised 49 U.S.C. 31315 as ``Waivers, exemptions, and pilot 
programs'' (Pub. L. 105-178, 112 Stat. 107, 401, June 9, 1998).
---------------------------------------------------------------------------

    FMCSA believes that the ELOS standard required by the waiver and 
exemption provisions is the appropriate standard for this NPRM. The 
1992 FHWA rule authorized the States to waive the knowledge and skills 
tests otherwise required to obtain a CDL for employees of custom 
harvesters, farm retail outlets and suppliers, agrichemical businesses, 
and livestock feeders (57 FR 13650, Apr. 17, 1992) and required that 
the State waiver option not diminish the safe operation of CMVs, and 
all subsequent versions of the statute and regulation have retained 
that ELOS concept. Congress itself clearly embraced that standard when 
section 7208 was explicitly limited to the same four agriculture-
related businesses covered by the 1992 exemption.
    Pursuant to 49 U.S.C. 31305(a), which sets forth the general 
standards for the CDL rules, FMCSA ``shall prescribe regulations on 
minimum standards for testing and ensuring the fitness of an individual 
operating a commercial motor vehicle.'' Implicit in that provision is 
the authority to decide whether certain CDL holders may meet the 
``fitness'' requirement without complying with every part of the CDL 
regulations. FMCSA believes that exempting employees of agricultural 
aviation companies who hold Class A CDLs and transport jet fuel from 
the

[[Page 96185]]

requirement to obtain a HM endorsement is consistent, both with the 
standard of the CMVSA's section 12013 and with the current ELOS and 
``fitness'' standards enacted by Congress. A waiver granted by a State 
under this proposal, as under section 7208 of the FAST Act, would also 
exempt eligible drivers from the TSA background records check in 49 CFR 
part 1572, subpart B.
    (3) A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply.
    Under the standards of the RFA, as amended by SBREFA, the 
participating States are not small entities. States are not considered 
small entities because they do not meet the definition of a small 
entity in section 601 of the RFA. Specifically, States are not 
considered small governmental jurisdictions under section 601(5) of the 
RFA, both because State government is not included among the various 
levels of government listed in section 601(5), and because, even if 
this were the case, no State or the District of Columbia has a 
population of less than 50,000, which is the criterion by which a 
governmental jurisdiction is considered small under section 601(5) of 
the RFA.
    Drivers are not considered small entities because they do not meet 
the definition of a small entity in section 601 of the RFA. 
Specifically, drivers are considered neither a small business under 
section 601(3) of the RFA, nor are they considered a small organization 
under section 601(4) of the RFA.
    The Small Business Administration (SBA) defines the size standards 
used to classify entities as small. SBA establishes separate standards 
for each industry, as defined by the NAICS. FMCSA expects that CMV 
drivers transporting jet fuel would largely be employed by aerial 
application operators that operate within the Agriculture, Forestry, 
Fishing and Hunting sector (NAICS sector 11), and more specifically, 
within NACIS industry 115110 (support activities for crop production). 
Industry groups within the 1151 NAICS industry have size standards 
based on the amount of annual revenue and ranging from $8.5 million in 
revenue to $34 million in revenue. There is not a specific NAICS 
national industry for aerial application operators, and therefore it is 
not possible to narrow down the Census data to determine the number of 
small entities that are potentially impacted by this rule. Based on the 
NAAA membership, FMCSA estimates that, if adopted in all jurisdictions, 
this rule could impact up to 1,900 aerial application operators.\19\ 
FMCSA requests comment on how many of these entities would be 
considered small based on the SBA size standards.
---------------------------------------------------------------------------

    \19\ National Agricultural Aviation Association (NAAA), https://www.agaviation.org/about/. Accessed: July 18, 2024
---------------------------------------------------------------------------

    (4) A description of the projected reporting, recordkeeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirements and the types of professional skills necessary for 
preparation of the report or record.
    This proposal would not result in reporting, recordkeeping, or 
other compliance requirements. This proposed rule is voluntary in 
nature and does not require that States adopt any flexibilities 
provided in the proposed rule. Further, the Agency did not identify 
significant alternatives that would lessen the burden on small entities 
beyond the proposed exemption in Sec.  383.3(i).
    (5) An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
    FMCSA is not aware of any relevant Federal rules that may 
duplicate, overlap, or conflict with the proposed rule.

D. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), 
FMCSA wants to assist small entities in understanding this proposed 
rule so they can better evaluate its effects on themselves and 
participate in the rulemaking initiative. If the proposed rule would 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions or options for 
compliance, please consult the person listed under FOR FURTHER 
INFORMATION CONTACT.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman (Office of the National 
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness 
Boards. The Ombudsman evaluates these actions annually and rates each 
agency's responsiveness to small business. If you wish to comment on 
actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). 
DOT has a policy regarding the rights of small entities to regulatory 
enforcement fairness and an explicit policy against retaliation for 
exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
(UMRA) requires Federal agencies to assess the effects of their 
discretionary regulatory actions. The Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector of $200 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2023 levels) or more in any 1 year. Though this NPRM would not result 
in such an expenditure, and the analytical requirements of UMRA do not 
apply as a result, the Agency discusses the effects of this rule 
elsewhere in this preamble.

F. Paperwork Reduction Act

    This proposed rule contains no new information collection 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

G. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 
13132 if it has ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    FMCSA has determined that this rule would not have substantial 
direct costs on or for States, nor would it limit the policymaking 
discretion of States. Nothing in this document preempts any State law 
or regulation. Therefore, this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Impact 
Statement.

H. Privacy

    The Consolidated Appropriations Act, 2005,\20\ requires the Agency 
to assess the privacy impact of a regulation that will affect the 
privacy of individuals. This NPRM would not require the collection of 
personally identifiable information (PII).
---------------------------------------------------------------------------

    \20\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5 
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------

    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency that receives records contained in a system 
of records from a Federal agency for use in a matching program.

[[Page 96186]]

    The E-Government Act of 2002,\21\ requires Federal agencies to 
conduct a Privacy Impact Assessment (PIA) for new or substantially 
changed technology that collects, maintains, or disseminates 
information in an identifiable form. No new or substantially changed 
technology would collect, maintain, or disseminate information as a 
result of this rule. Accordingly, FMCSA has not conducted a PIA.
---------------------------------------------------------------------------

    \21\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 
17, 2002).
---------------------------------------------------------------------------

    In addition, the Agency submitted a Privacy Threshold Assessment 
(PTA) to evaluate the risks and effects the proposed rulemaking might 
have on collecting, storing, and sharing personally identifiable 
information. The PTA has been submitted to FMCSA's Privacy Officer for 
review and preliminary adjudication and to DOT's Privacy Officer for 
review and final adjudication.

I. E.O. 13175 (Indian Tribal Governments)

    This rule does not have Tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

J. National Environmental Policy Act of 1969

    FMCSA analyzed this proposed rule pursuant to the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) and 
determined this action is categorically excluded from further analysis 
and documentation in an environmental assessment or environmental 
impact statement under FMCSA Order 5610.1 (69 FR 9680), Appendix 2, 
paragraph (6)(t)(2). The categorical exclusion (CE) in paragraph 
(6)(t)(2) covers requirements ensuring that States have the appropriate 
regulations concerning the qualification and licensing of persons who 
apply and are issued a commercial driver's license. The proposed 
requirements in this rule are covered by this CE.

K. Rulemaking Summary

    As required by 5 U.S.C. 553(b)(4), a summary of this rule can be 
found in the Abstract section of the Department's Unified Agenda entry 
for this rulemaking at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2126-AC59.

List of Subjects in 49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Drug testing, Highway safety, Motor carriers, Penalties, Safety, 
Transportation.

    Accordingly, FMCSA proposes to amend 49 CFR chapter III, part 383 
as follows:

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES

0
1. The authority citation for part 383 continues to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301, et seq., and 31502; 
secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; 
sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of 
Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141, 
126 Stat. 405, 830; sec. 23019 of Pub. L. 117-58, 135 Stat. 429, 
777; and 49 CFR 1.87.

0
2. Amend Sec.  383.3 by revising paragraph (i) to read as follows:

Sec.  383.3  Applicability.

* * * * *
    (i) Hazardous materials endorsement exemption for certain drivers 
transporting diesel or jet fuel. A State may waive the requirement for 
a holder of a Class A commercial driver's license to obtain a hazardous 
materials endorsement under this part, if the license holder is:
    (1) Acting within the scope of the license holder's employment, and 
within the State of domicile (or another State with a hazardous 
materials endorsement exemption) as an employee of a custom harvester 
operation, agrichemical business, farm retail outlet and supplier, 
livestock feeder, or agriculture aviation operation; and
    (2) Operating a service vehicle that is:
    (i) Transporting diesel or jet fuel in a quantity of 3,785 liters 
(1,000 gallons) or less; and
    (ii) Clearly placarded in accordance with 49 CFR part 172 subpart F 
and all other applicable HMRs.
* * * * *
0
3. Amend Sec.  383.5 by adding in alphabetical order a definition for 
jet fuel to read as follows:

Sec.  383.5  Definitions.

* * * * *
    Jet fuel means ``fuel, aviation, turbine engine'' as listed in the 
Hazardous Materials Table in Sec.  172.101 of this title that is 
reclassed as a combustible liquid in accordance with part 173 of this 
title.
* * * * *

    Issued under authority delegated in 49 CFR 1.87.
Vincent G. White,
Deputy Administrator.
[FR Doc. 2024-28097 Filed 12-3-24; 8:45 am]
BILLING CODE 4910-EX-P
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