61626 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 

Paperwork Reduction Act 

This rule does not initiate any new 

information collection requirements. 

This rule does not affect any existing 

information collection requirements 

which are assigned the clearance 

number 1010–0090 and are 

administered by the ONRR. 

Accordingly, no analysis or action is 

necessary under the Paperwork 

Reduction Act. 

National Environmental Policy Act 

The BLM has determined that this 

rule is not a major Federal action within 

the meaning of 40 U.S.C. 4332(2)(C). 

This rule removes regulations that 

established two programs that have been 

terminated. The removal of the 

regulations merely clarifies the 

programs’ current status, and is thus a 

ministerial act. No analysis is required 

under the National Environmental 

Policy Act. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

The BLM has determined that this 

rule does not have ‘‘tribal implications’’ 

within the meaning of Executive Order 

13174. 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Under Executive Order 13211, a 

‘‘significant energy action’’ is one that is 

‘‘significant’’ under Executive Order 

12866 and is likely to have a significant 

adverse energy effect. The BLM has 

determined that this rule is not 

‘‘significant’’ within the meaning of 

Executive Order 12866. Moreover, the 

BLM has determined that this rule is not 

likely to have a significant adverse 

energy effect, in view of the price data 

that led to the termination of royalty 

reduction benefits for stripper well 

properties and heavy oil properties. 

Accordingly, the BLM has determined 

that this rule is not a ‘‘significant energy 

action’’ requiring a ‘‘Statement of Energy 

Effects’’ within the meaning of Executive 

Order 13211. 

Author 

The principal author of this final rule 

is Rudy Baier, Minerals and Realty 

Management, with the assistance of Jean 

Sonneman of the Division of Regulatory 

Affairs, Bureau of Land Management, 

Washington, DC. 

List of Subjects in 43 CFR Part 3100 

Mineral royalties, Oil and gas 

exploration and production, Public 

lands—mineral resources, Reporting 

and recordkeeping requirements, and 

Surety bonds. 

■ For the reasons stated in the preamble, 

and under the authorities cited below, 

part 3100, Subchapter C, Chapter II of 

Title 43 of the Code of Federal 

Regulations, is amended as set forth 

below: 

Ned Farquhar, 

Deputy Assistant Secretary, Land and 

Minerals Management. 

PART 3100—OIL AND GAS LEASING 

■ 1. The authority citation for part 3100 

continues to read as follows: 

Authority: 30 U.S.C. 189 and 359; 43 

U.S.C. 1732(b), 1733, and 1740; and the 

Energy Policy Act of 2005 (Pub. L. 109–58). 

Subpart 3103—Fees, Rentals and 

Royalty 

§ 3103.4–1 [Amended] 

■ 2. Section 3103.4–1(b)(1) is amended 

by removing the phrase ‘‘on other than 

stripper oil well leases or heavy oil 

properties’’ and the sentence ‘‘(Royalty 

reductions specifically for stripper oil 

well leases or heavy oil properties are 

discussed in § 3103.4–2 and § 3103.4–3 

respectively.)’’. 

§ 3103.4–2 [Amended] 

■ 3. Section 3103.4–2 is amended as 

follows: 

■ a. Remove paragraph (a), the 

introductory text of paragraph (b), 

paragraphs (b)(1)and (b)(2), the 

introductory text of paragraph (b)(3), 

and paragraphs (b)(3)(i), (b)(3)(ii), 

(b)(3)(iii), (b)(3)(iv), (b)(4), (b)(5), (b)(6), 

(b)(7), (b)(8), (b)(9), and (b)(10). 

■ b. Redesignate paragraphs (b)(3)(v), 

(b)(3)(vi), and (b)(3)(vii) as paragraphs 

(a), (b), and (c). 

■ c. Amend redesignated paragraph (a) 

by removing the term ‘‘MSS’’ and adding 

in its place the term ‘‘ONRR’’. 

§ 3103.4–3 [Amended] 

■ 4. Section 3103.4–3 is amended as 

follows: 

■ a. Remove paragraph (a), the 

introductory text of paragraph (b), 

paragraphs (b)(1), (b)(2), (b)(3), and 

(b)(4), the introductory text of paragraph 

(b)(5), and paragraphs (b)(5)(i), (b)(5)(ii), 

(b)(5)(iii), (b)(5)(iv), (b)(5)(v), (b)(6), 

(b)(7), (b)(8), (b)(9), (b)(10), and (b)(11). 

■ b. Redesignate paragraphs (b)(5)(vi) 

and (b)(5)(vii) as paragraphs (a) and (b). 

■ c. Amend redesignated paragraph (a) 

by removing the phrases ‘‘authorized by 

this paragraph (b),’’ and ‘‘of this 

paragraph (b)’’. 

[FR Doc. 2010–25154 Filed 10–5–10; 8:45 am] 

BILLING CODE 4310–84–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 395 

[Docket No. FMCSA–2010–0230] 

Hours of Service; Limited Exemption 

for the Distribution of Anhydrous 

Ammonia in Agricultural Operations 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), Department 

of Transportation (DOT). 

ACTION: Notice of final disposition; 

granting of exemption. 

SUMMARY: FMCSA grants a 2-year, 

limited exemption from the Federal 

hours-of-service (HOS) regulations for 

the transportation of anhydrous 

ammonia from any distribution point to 

a local farm retailer or to the ultimate 

consumer, and from a local farm retailer 

to the ultimate consumer, as long as the 

transportation takes place within a 100 

air-mile radius of the retail or wholesale 

distribution point. This exemption 

extends the agricultural operations 

exemption established by section 345 of 

the National Highway System 

Designation Act of 1995, as amended by 

sections 4115 and 4130 of the Safe, 

Accountable, Flexible, Efficient 

Transportation Equity: A Legacy for 

Users (SAFETEA–LU), to certain drivers 

and motor carriers engaged in the 

distribution of anhydrous ammonia 

during the planting and harvesting 

seasons, as defined by the States in 

which the carriers and drivers operate. 

The Agency believes that the exemption 

will achieve a level of safety that is 

equivalent to, or greater than, the level 

that would be achieved absent such 

exemption, based on the terms and 

conditions imposed. The exemption 

preempts inconsistent State and local 

requirements applicable to interstate 

commerce. 

DATES: The exemption is effective 

October 6, 2010. The exemption will 

remain in effect until October 9, 2012 

unless revoked earlier by FMCSA. 

FOR FURTHER INFORMATION CONTACT: 

Thomas L. Yager, Chief, Driver and 

Carrier Operations Division, Office of 

Bus and Truck Standards and 

Operations, Federal Motor Carrier Safety 

Administration, 1200 New Jersey Ave., 

SE., Washington, DC 20590. 

E-mail: MCPSD@dot.gov. Phone (202) 

366–4325. 

SUPPLEMENTARY INFORMATION: 

Legal Basis 

Section 4007(a) of the Transportation 

Equity Act for the 21st Century (TEA– 

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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 61627 

21) (Pub. L. 105–178, 112 Stat. 107, 401, 

June 9, 1998) provided the Secretary of 

Transportation (the Secretary) the 

authority to grant exemptions from any 

of the Federal Motor Carrier Safety 

Regulations (FMCSRs) issued under 

chapter 313 or section 31136 of title 49 

of the United States Code, to a person(s) 

seeking regulatory relief (49 U.S.C. 

31136, 31315(b)). Prior to granting an 

exemption, the Secretary must request 

public comment and make a 

determination that the exemption is 

likely to achieve a level of safety that is 

equivalent to, or greater than, the level 

of safety that would be obtained in the 

absence of the exemption. Exemptions 

may be granted for a period of up to 2 

years and may be renewed. 

The FMCSA Administrator has been 

delegated authority under 49 CFR 

1.73(e)(1) and (g) to carry out the 

functions vested in the Secretary by 49 

U.S.C. chapter 313 and subchapters I 

and III of chapter 311, relating, 

respectively, to the commercial driver’s 

license program and to commercial 

motor vehicle (CMV) programs and 

safety regulation. 

Background 

On July 14, 2010, FMCSA published 

a notice in the Federal Register 

proposing a 2-year limited exemption 

from the Federal hours-of-service (HOS) 

regulations for the transportation of 

anhydrous ammonia from any 

distribution point to a local farm retailer 

or to the ultimate consumer, and from 

a local farm retailer to the ultimate 

consumer, as long as the transportation 

takes place within a 100 air-mile radius 

of the retail or wholesale distribution 

point (75 FR 40765). The Agency 

explained its rationale for proposing the 

exemption, set forth the proposed terms 

and conditions to be imposed on motor 

carriers and drivers operating under the 

exemption, and requested public 

comments on the proposal. 

Discussion of Public Comments 

The FMCSA received 28 comments to 

the public docket, with 2 of the 

comments submitted on behalf of 

multiple organizations. The comments 

included a letter signed by 23 members 

of the United States House of 

Representatives who expressed support 

for the exemption. Only 3 of the 

commenters (including 1 anonymous 

individual) opposed the exemption. A 

list of the commenters is provided 

below: 

1. Agricultural and Food Transporters 

Conference of the American Trucking 

Associations (with the following 

organizations listed in its submission to the 

docket): 

Agricultural Retailers Association; 

American Sugarbeet Growers Association; 

National Agricultural Aviation Association; 

National Association of Wheat Growers; 

National Barley Growers Association; 

National Corn Growers Association; National 

Cotton Council; National Council of Farmer 

Cooperatives; National Farmers Union; 

National Sunflower Association; North 

American Equipment Dealers Association; 

The Fertilizer Institute; USA Rice Federal; 

U.S. Canola Association. 

2. Agricultural Retailers Association. 

3. Agriculture Education Group. 

4. Agrium. 

5. Cabery Fertilizer Company. 

6. Commercial Vehicle Safety Alliance 

(CVSA). 

7. Cooperative Network. 

8. Denis Brandon. 

9. Donovan Farmers Co-Op Elevator, Inc. 

10. E. Albert Allen. 

11. Far West Agribusiness Association. 

12. Growmark. 

13. Huellinghoff Brothers, Inc. 

14. Illinois Department of Agriculture. 

15. Illinois Fertilizer and Chemical 

Association. 

16. Kohlbrecher Truck Service, Inc. 

17. Kova Fertilizer (with the following 

organizations listed in its submission to the 

docket): Agricultural Education Group; 

Agricultural Food and Transporters 

Conference; Agricultural Retailers 

Association; The Fertilizer Institute; National 

Council of Farmer Cooperatives. 

18. Missouri Agribusiness Association. 

19. North American Equipment Dealers 

Association. 

20. Northern Partners Cooperative. 

21. Oregon Wheat Growers League. 

22. Patrick W. Herbert. 

23. Perry Feed and Fertilizer. 

24. Raymond J. Schroeder. 

25. Transport America. 

26. United Farmers Cooperative. 

A list of the Members of Congress 

who signed a joint docket submission is 

provided below, in alphabetical order: 

Rep. Leonard Boswell; Rep. Howard Coble; 

Rep. Jerry Costello; Rep. Jo Ann Emerson; 

Rep. Sam Graves; Rep. Deborah Halvorson; 

Rep. Phil Hare; Rep. Lyn Jenkins; Rep. Tim 

Johnson; Rep. Steve King; Rep. Tom Latham; 

Rep. Dave Loebsack; Rep. Blaine 

Luetkemeyer; Rep. Cynthia Lummis; Rep. 

Donald Manzullo; Rep. Betsy Markey; Rep. 

Jerry Moran; Rep. Collin Peterson; Rep. 

Aaron Schock; Rep. John Shimkus; Rep. Ike 

Skelton; Rep. Adrian Smith; Rep. Lee Terry. 

Comments in Support of the Exemption 

Generally, the comments in favor of 

the exemption either categorically 

supported the exemption, requested that 

it be expanded to include liquid and dry 

fertilizers, or asked that it include all 

agricultural products. For example, the 

North American Equipment Dealers 

Association stated: 

We believe Congress, when it authorized 

the HOS agricultural exemptions in 1995, 

intended to address the special needs of the 

nation’s agricultural industry and rural 

communities. The HOS agricultural 

exemption is critical for the timely delivery 

and transportation of agricultural inputs 

during peak planting and harvesting seasons 

defined by each state. 

Farmers and ranchers expect their 

equipment dealers to provide parts, repairs 

and service of planting and harvesting 

equipment and, as such, should also be 

included in a HOS agricultural exemption. 

The Illinois Fertilizer and Chemical 

Association also expressed an interest in 

expanding the scope of the proposal. 

The association stated: 

While the exemption for the movement of 

anhydrous ammonia is very critical due to 

the extra scrutiny placed on ammonia 

transporters and the permit requirements for 

this product, the HOS exemption is also 

critically essential for the timely movement 

of non-hazardous fertilizers. 

If FMCSA is willing to grant an HOS 

exemption for the delivery of ammonia, 

which is DOT regulated as an extremely 

hazardous substance and an inhalation 

hazard, then it makes even more sense to 

apply the exemption to the shipments of bulk 

non-hazardous fertilizers which are equally 

important to the growth of Illinois crops. 

Cooperative Network indicated that 

the exemption is a more appropriate 

means of addressing the agricultural 

industry’s needs than the use of 

FMCSA’s emergency relief provision 

under 49 CFR 390.23(a). It offered the 

following comment: 

For the past three years, Cooperative 

Network has requested and received a 

declaration of emergency in each instance 

following the provisions of § 390.23(a) to 

increase anhydrous ammonia supply during 

periods of extremely high demand. The 

repeated acts of the governors of Minnesota 

and Wisconsin in issuing emergency 

declarations, and thereby lifting the hours-ofservice requirements for farm supply 

shipments, demonstrates the supply 

challenges farmers and their suppliers 

endure during the planting and harvesting 

seasons. 

The CVSA supports the exemption 

but suggests that, in evaluating the 

proposal, FMCSA look for data in 

addition to that which the Agency 

discussed in the July notice. The CVSA 

also requested that the Agency consider 

more stringent terms and conditions for 

the exemption. 

CVSA believes the terms and conditions 

should be strengthened so that a more robust 

safety determination can be made during and 

after this 2-year exemption period. CRs 

[compliance reviews] should be conducted 

on all carriers seeking to take advantage of 

the exemption so a current Safety Rating can 

be assigned; carriers must maintain a 

‘‘Satisfactory’’ safety rating. FMCSA should 

require that the carrier have a credential to 

be carried on the vehicle. 

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61628 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 

1See definition of the term ‘‘emergency’’ in 49 

CFR 390.5. 

The CVSA also suggested that FMCSA 

monitor carriers’ safety performance 

during the exemption. 

FMCSA Response 

First, FMCSA acknowledges the 

concerns of commenters that believe the 

scope of the exemption should be 

expanded to include either dry and 

liquid fertilizers, or all agricultural 

products. The Agency, however, 

continues to believe that would be 

inappropriate at this time. 

The FMCSA is committed to being 

responsive to the needs of the 

agricultural community in delivering 

products for American consumers, but 

the Agency must also fulfill its safety 

mission. The safety mission requires 

that the Agency exercise sparingly its 

authority to grant exemptions. No 

matter what the substance being 

shipped, the Agency must be extremely 

sensitive to the number of drivers and 

trucks that it allows to operate outside 

of the HOS regulations, for any period 

of time. 

By granting of the proposed 

exemption, FMCSA extends to certain 

drivers and motor carriers engaged in 

the distribution of anhydrous ammonia 

the agricultural operations exemption 

established by section 345(a) of the 

National Highway System Designation 

Act of 1995 (NHS Act) (Pub. L. 104–59, 

November 28, 1995, 109 Stat. 568, 613, 

49 U.S.C. 31136 note, as amended by 

section 4130, redesignated by section 

4115(a)(2) of the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA–LU) 

(Pub. L. 109–59, August 10, 2005, 119 

Stat. 1144, 1726) and implemented by 

49 CFR 395.1(k)). 

The July 14 notice proposing this 

exemption indicated that FMCSA had 

been contacted by Members of Congress 

on behalf of their constituents 

concerning the Agency’s interpretation 

of the agricultural exemption provided 

by section 345(a)(1) of the NHS Act. 

Motor carriers engaged in the 

transportation of farm supplies— 

particularly anhydrous ammonia— 

argued that FMCSA’s reading of the 

agricultural exemption denied certain 

distribution activities the regulatory 

relief intended by Congress. At the time 

the Agency was contacted, the emphasis 

was on the transportation of anhydrous 

ammonia rather than all fertilizers or all 

agricultural commodities. Therefore, the 

Agency focused its attention on 

anhydrous ammonia. 

Second, with regard to the 

interpretation of the NHS Act 

exemption, the Agency acknowledges 

that the legislative history adds an 

explanation of the sponsors’ intent that 

was not incorporated into the statutory 

language itself. The Agency has 

consistently held that the agricultural 

operations exemption applies to the 

transportation of farm supplies from the 

local farm retailer to the ultimate 

consumer within a 100 air-mile radius. 

The FMCSA’s interpretation, however, 

has not extended the HOS exemption to 

deliveries from wholesalers to either 

local farm retailers or farms. (See 

Question 33, 49 CFR 395.1 on the 

Agency’s Web site: http:// 

www.fmcsa.dot.gov.) Question 33 reads 

as follows: 

Question 33: How is ‘‘point of origin’’ 

defined for the purpose of § 395.1(k)? 

Guidance: The term ‘‘point of origin’’ is not 

used in the NHS Designation Act; the 

statutory term is ‘‘source of the [agricultural] 

commodities.’’ The exemption created by the 

Act applies to two types of transportation. 

The first type is transportation from the 

source of the agricultural commodity—where 

the product is grown or raised—to a location 

within a 100 air-mile radius of the source. 

The second type is transportation from a 

retail distribution point of the farm supply to 

a location (farm or other location where the 

farm supply product would be used) within 

a 100 air-mile radius of the retail distribution 

point. 

The legislative history of the agricultural 

exemption indicates it was intended to only 

apply to retail store deliveries. Thus, it is 

clear Congress intended to limit this 

exemption to retail distributors of farm 

supplies. 

Second-stage movements, such as grain 

hauled from an elevator (or sugar beets from 

a cold storage facility) to a processing plant, 

are more likely to fall outside the exempt 

radius. Similarly, the exemption does not 

apply to a wholesaler’s transportation of an 

agricultural chemical to a local cooperative 

because this is not a retail delivery to an 

ultimate consumer, even if it is within the 

100 air-mile radius. 

There is substantial controversy about 

the weight to be assigned to legislative 

history in the interpretation of statutes. 

Because the exemption being granted 

today responds to the most immediate 

needs of the agricultural community, 

FMCSA will not revisit its previous 

guidance at this time. 

Third, in response to Cooperative 

Network’s reference to States’ 

emergency declarations, FMCSA 

cautions all interstate motor carriers 

subject to the FMCSRs to adhere to 

safety regulations unless the declaration 

by a State or local official is for an 

‘‘emergency’’ as defined under 49 CFR 

390.5. The FMCSA does not question 

the authority of State and local officials 

to make declarations about matters 

within their jurisdiction. 

Motor carriers subject to the FMCSRs, 

however, have a responsibility for 

determining whether the ‘‘emergency’’ 

referenced by the State or local official 

is one that ‘‘* * * interrupts the 

delivery of essential services (such as, 

electricity, medical care, sewer, water, 

telecommunications, and 

telecommunication transmissions) or 

essential supplies (such as, food and 

fuel) or otherwise immediately threatens 

human life or public welfare, * * *’’ 1

Also, any motor carrier that intends to 

operate under the emergency relief 

provision must ensure that it is engaged 

in providing ‘‘direct assistance,’’ as 

defined in 49 CFR 390.5, in responding 

to the emergency. Therefore, motor 

carriers that have exceeded the 

applicable HOS requirements for the 

purpose of applying fertilizer during the 

planting and harvesting seasons should 

cease such practices as they clearly do 

not fall within scope of FMCSA’s 

emergency relief provision. 

Finally, FMCSA acknowledges the 

CVSA’s concerns. As explained in the 

July notice, however, the Agency has 

considered the data available, including 

its experience from the 90-day limited 

waiver granted earlier this year. On 

March 22, 2010, FMCSA published a 

notice in the Federal Register 

announcing a limited 90-day waiver 

from the Federal HOS regulations for 

the transportation of anhydrous 

ammonia from any distribution point to 

a local farm retailer or to the ultimate 

consumer, and from a local farm retailer 

to the ultimate consumer, as long as the 

transportation takes place within a 100 

air-mile radius of the retail or wholesale 

distribution point (54 FR 13441). As 

explained in the Agency’s July notice, 

there were no crashes or incidents 

reported as a result of the waiver. 

FMCSA also sought information from 

the Pipeline and Hazardous Materials 

Safety Administration’s (PHMSA) 

Hazardous Materials Incident Reporting 

Systems and from FMCSA field offices 

concerning the safety performance of 

anhydrous ammonia transporters and 

received no negative reports. In 

addition, none of the commenters 

responding to the July notice provided 

information suggesting safety 

performance problems associated with 

the motor carriers and drivers engaged 

in the transportation of anhydrous 

ammonia. 

Based on a review of the available 

information, the Agency believes it is 

appropriate to grant the exemption. 

With respect to CVSA’s 

recommendation that FMCSA impose 

more stringent terms and conditions for 

motor carriers and drivers that would 

operate under the exemption, the 

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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 61629 

2Section 4130(a). 

Agency does not believe such action is 

warranted at this time. There is no basis 

for requiring that each carrier undergo a 

compliance review prior to being 

allowed to operate under the exemption. 

If the carrier’s safety performance were 

suspect, it is likely that it would be 

considered a ‘‘high-risk’’ carrier under 

the current Agency safety monitoring 

system, which takes into account 

roadside inspection data and crash data. 

The Agency would have prioritized the 

carrier for a compliance review or 

investigation, and would take 

appropriate enforcement action to 

address the safety performance 

problems. If the problems were such 

that the carrier receives a rating of 

‘‘conditional’’ or ‘‘unsatisfactory,’’ the 

carrier would be precluded from 

operating under the exemption. 

Comments in Opposition to the 

Exemption 

Transport America, one of three 

commenters opposed to the exemption, 

believes that all motor carriers should 

operate under the same regulations. 

Transport America stated: 

It [the exemption] has nothing to do with 

safety but caters to a large farming special 

interest group. The just in time justification 

is no more relevant than retailers would have 

for Christmas, building products companies 

would have for construction season, snow 

blower manufacturers would have for the 

start of winter and the list goes on and on. 

Patrick W. Herbert also expressed 

opposition to the exemption. Mr. 

Herbert believes that exceeding the HOS 

rules increases the risk of fatigue. He 

bases his views on his experience as a 

truck driver who has operated within a 

100 air-mile radius for 30 years. 

FMCSA Response 

FMCSA acknowledges the concerns of 

the commenters. The Agency continues 

to believe the exemption is appropriate 

because local retailers and farms have 

limited storage capacity and therefore 

must constantly replenish certain 

supplies during the planting and 

harvesting seasons. They are part of the 

‘‘just in time’’ distribution system that 

extends from a wholesaler to the 

ultimate consumer of the supplies. 

Because of storage constraints and the 

demand for the transportation of 

anhydrous ammonia to support 

agricultural operations, and the 

likelihood that such conditions will 

continue for some time, FMCSA 

believes the 2-year, limited exemption is 

necessary to provide regulatory relief for 

the transportation of anhydrous 

ammonia during the planting and 

harvesting seasons, as defined by the 

States in which the anhydrous ammonia 

transporters operate. The Agency 

emphasizes that the exemption provides 

limited regulatory relief to facilitate 

planting activities that will ultimately 

result in the production of agricultural 

commodities at prices to which 

consumers have become accustomed, 

with no foreseeable degradation of 

safety. The Agency will continue to 

monitor the safety performance of motor 

carriers and drivers engaged in the 

transportation of anhydrous ammonia. It 

will take appropriate action at any time 

it appears that a motor carrier or driver 

should be prohibited from operating 

under the exemption or that the entire 

exemption should be reconsidered 

because of poor safety performance. 

Safety Determination for Granting the 

Exemption 

FMCSA is committed to ensuring high 

standards of motor carrier safety. As 

explained in the July notice, the Agency 

has considered the available data 

concerning the safety performance of 

agricultural operations in general and 

the safety performance of anhydrous 

ammonia transporters during the 90- 

day, limited waiver referenced above. 

FMCSA compared safety performance 

data for agricultural carriers currently 

operating under the statutory HOS 

exemption provided by the NHS Act, as 

amended, with the data for nonagricultural carriers that are not exempt 

from HOS regulations to determine 

whether the exemption would be likely 

to achieve a level of safety that is 

equivalent to, or greater than, the level 

of safety that would be obtained in the 

absence of the exemption. The data 

were collected as part of a study, 

‘‘Agricultural Commodity and Utility 

Carriers Hours of Service Exemption 

Analysis,’’ May 2010, FMCSA–RRA–10– 

448. A copy of the report has been 

placed in the public docket identified at 

the beginning of this notice. 

The study was conducted in two 

phases. Phase 1 compares the safety 

performance of agricultural and nonagricultural carriers for the period 2005 

through 2008, and also examines two 

additional industries, livestock and 

utility carriers, whose operations were 

not exempt from HOS regulations prior 

to the passage of SAFETEA–LU.2 The 

Phase 1 analysis used carrier 

registration, inspection and crash data 

from FMCSA’s Motor Carrier 

Management Information System 

(MCMIS). The study used cargo 

classification information on the 

FMCSA Motor Carrier Identification 

Report (Form MCS–150) in MCMIS to 

identify the carrier’s industry group 

(agricultural, livestock, or utility 

carrier), and used MCS–150 information 

to identify carriers operating within and 

beyond a 100-air-mile radius. The 

operating radius information was used 

to create two agricultural carrier 

subgroups: (1) Agricultural carriers with 

100 percent of drivers operating within 

a 100-air-mile radius; and (2) 

agricultural carriers with 100 percent of 

drivers operating beyond a 100-air-mile 

radius. The analysis used the first 

subgroup as representative of 

agricultural carriers exempt from the 

HOS requirements, and the second 

subgroup as representative of 

agricultural carriers not exempt from the 

HOS requirements. 

For the Phase 2 analysis, inspection 

data of agricultural commodity and 

utility carriers (which are also exempt 

from HOS regulations) were collected 

during an FMCSA special study of a 

sample of States. These data included 

only those inspections occurring during 

the States’ planting and harvesting 

seasons and indicated both the 

commodity being transported and 

whether the driver was operating within 

or beyond the 100-air-mile radius 

exempt from HOS regulations. The 

Phase 2 analysis assessed the safety 

performance of the HOS exempt 

agricultural commodity and utility 

service carriers identified in the survey 

in comparison with non-HOS-exempt 

carriers based on their out-of-service 

(OOS) violation rates and crash rates. 

The Agency did not place as much 

emphasis on the OOS rates because 

there were no HOS violation data to 

consider, given that the agricultural 

carriers for which data were available 

were operating under a statutory 

exemption from the HOS rule. 

Differences between the OOS rates for 

other issues such as driver 

qualifications and vehicle defects and 

deficiencies, while important in 

considering overall safety management 

controls of the carriers, were not 

necessarily related to the potential 

safety impact of the exemption. 

The Phase 1 analysis indicates that 

nationally, agricultural carriers 

operating within a 100-air-mile radius 

had lower crash rates per 100 power 

units than those operating beyond this 

radius, except for in 2008, when there 

was no difference in the crash rates. 

To provide additional validation of 

the crash analysis, which uses power 

unit data reported on the Form MCS– 

150, a separate analysis was performed 

using data only for carriers domiciled in 

States participating in FMCSA’s 

Performance and Registration 

Information Systems Management 

(PRISM) program that enforces MCS– 

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61630 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 

3Current PRISM States that enforce the MCS–150 

updating requirement are Alabama, Arizona, 

Arkansas, Connecticut, Georgia, Iowa, Kentucky, 

Louisiana, Maine, Minnesota, Missouri, Nebraska, 

New Hampshire, New Mexico, North Carolina, 

Ohio, South Carolina, South Dakota, Tennessee, 

Utah, Vermont, Washington, and West Virginia. 

150 updating.3 PRISM links State motor 

vehicle registration systems with carrier 

safety data in order to identify unsafe 

commercial motor carriers. The PRISM 

State carriers are required to update 

their MCS–150 annually. By contrast, 

non-PRISM State carriers are required 

by FMCSA to update their MCS–150 

biennially. As a result, the PRISM State 

data are considered more current and 

reliable than non-PRISM State data 

where there are no direct consequences 

for not updating the data. Data from 

PRISM States that enforce MCS–150 

updating show that agricultural carriers 

operating within a 100-air-mile radius 

had more varied results, with crash rates 

higher than carriers operating beyond a 

100-air-mile radius in 2008, lower in 

2006 and 2007, and nearly the same in 

2005. 

The Phase 2 analysis indicates that in 

the four States participating in the 

survey (Idaho, Kansas, Maryland, 

Michigan), agricultural carriers that 

were subject to the HOS requirements 

had higher crash rates per 100 power 

units than agricultural carriers exempt 

from the HOS requirements. 

In addition to the study, the Agency 

considered information from the 

PHMSA Hazardous Materials Incident 

Reporting Systems and from FMCSA 

field offices concerning the safety 

performance of anhydrous ammonia 

transporters during the limited 90-day 

waiver mentioned above. 

With regard to information from 

FMCSA’s field offices, the Agency did 

not receive any information about 

accidents, as defined in 49 CFR 390.5, 

involving motor carriers transporting 

anhydrous ammonia using drivers 

operating under the limited 90-day 

waiver. The Agency acknowledges that 

there is a gap between the date that a 

crash occurs and the date the States 

would typically submit crash reports. 

However, because FMCSA sought 

information through its field offices 

rather than relying solely on routine 

crash reporting by State enforcement 

agencies, it is unlikely that there have 

been any crashes resulting in fatalities 

or injuries, involving a driver operating 

under the limited 90-day waiver, 

referenced above. 

In the absence of any data or 

information to the contrary, the Agency 

continues to believe the real-world 

experience of anhydrous ammonia 

transporters during the 90-day limited 

waiver suggests that the level of safety 

under an exemption would be 

equivalent to, or greater than, the level 

that would be achieved absent such 

exemption. 

FMCSA Decision 

In light of the information presented 

in the July 14, 2010, notice and after 

considering all the comments submitted 

in response to the notice, FMCSA grants 

a 2-year, limited exemption from the 

Federal HOS regulations for interstate 

motor carriers engaged in the 

distribution of anhydrous ammonia 

during the planting and harvesting 

seasons as defined by the States. As 

indicated in the July 14, 2010, notice, 

the Agency’s review of the available 

crash data comparing exempt and nonexempt motor carriers, and a review of 

crash data from anhydrous ammonia 

transporters operating during the 

limited 90-day waiver provide a 

reasonable basis to believe that the 

limited exemption is likely to achieve a 

level of safety that is equivalent to, or 

greater than, the level that would be 

achieved absent such exemption, based 

on the terms and conditions that rare 

being imposed. 

Terms and Conditions of the Exemption 

The FMCSA provides a 2-year, 

limited exemption from the 

requirements of 49 CFR part 395 

concerning the HOS requirements for 

drivers of property-carrying vehicles 

engaged in the distribution of 

anhydrous ammonia during the planting 

and harvesting seasons, as determined 

by the State(s) in which the 

transportation takes place. This limited 

exemption extends the agricultural 

operations exemption from the Federal 

HOS regulations to drivers used by 

motor carriers in the distribution 

system, provided that: (1) The driver is 

delivering anhydrous ammonia; (2) 

none of the transportation movements 

within the distribution chain exceeds a 

100 air-mile radius—whether from the 

retail or wholesale distribution point; 

and (3) the motor carrier using the 

driver has a ‘‘satisfactory’’ safety rating 

or is ‘‘unrated;’’ drivers for motor 

carriers with ‘‘conditional’’ or 

‘‘unsatisfactory’’ safety ratings are 

prohibited from taking advantage of the 

exemption. 

The exemption allows drivers for 

‘‘unrated’’ motor carriers and those with 

a satisfactory safety rating to use the 

HOS exemption when the drivers are 

delivering anhydrous ammonia from 

any distribution point to a local farm 

retailer or to the ultimate consumer, and 

from a local farm retailer to the ultimate 

consumer, as long as the transportation 

takes place within a 100 air-mile radius 

of the retail or wholesale distribution 

point. 

Safety Rating 

Motor carriers that have received 

compliance reviews and want their 

drivers to be exempt from the HOS 

regulations are required to have a 

‘‘satisfactory’’ rating. The compliance 

review is an on-site examination of a 

motor carrier’s operations, including 

records on drivers’ HOS, maintenance 

and inspection, driver qualification, 

commercial driver’s license 

requirements, financial responsibility, 

accidents, hazardous materials, and 

other safety and transportation records 

to determine whether a motor carrier 

meets the safety fitness standard. The 

assignment of a ‘‘satisfactory’’ rating 

means the motor carrier has in place 

adequate safety management controls to 

comply with the Federal safety 

regulations, and that the safety 

management controls are appropriate for 

the size and type of operation of the 

motor carrier. 

FMCSA will allow drivers for 

‘‘unrated’’ carriers to take advantage of 

the exemption. Unrated motor carriers 

are those that have not received a 

compliance review. FMCSA is allowing 

drivers for unrated motor carriers to 

participate because it is unfair to 

exclude them simply because these 

carriers were not selected by the Agency 

for a compliance review. The absence of 

a compliance review is in no way an 

indication that the carrier has done 

anything wrong or has safety problems. 

The Agency will not allow drivers for 

motor carriers with conditional or 

unsatisfactory ratings to participate 

because both of those ratings indicate 

that the carrier has safety management 

control problems. There is little reason 

to believe that carriers rated either 

‘‘unsatisfactory’’ or ‘‘conditional’’ could 

be relied upon to comply with the terms 

and conditions of the exemption. 

Accident and Hazardous Materials 

Reporting Requirement 

Within 10 business days following an 

accident (as defined in 49 CFR 390.5) or 

any unintentional discharge of 

anhydrous ammonia that requires the 

submission of the Department of 

Transportation Hazardous Materials 

Incident Report (DOT Form F 5800.1) 

(see 49 CFR 171.16) involving any of the 

CMVs operated by a motor carrier 

whose drivers are using the exemption, 

irrespective of whether the CMV 

involved in the accident or discharge 

was being operated by a driver using the 

exemption, the motor carrier must 

submit the following information: 

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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 61631 

(a) Date of the accident; 

(b) City or town in which the accident 

occurred, or city or town closest to the 

scene of the accident; 

(c) Driver’s name and license number; 

(d) Vehicle number and State license 

number; 

(e) Number of injuries; 

(f) Number of fatalities; 

(g) Whether hazardous materials, 

other than fuel spilled from the fuel 

tanks of the motor vehicles involved in 

the accident, were released; 

(h) The police-reported cause of the 

accident; 

(i) Whether the driver was cited for 

violating any traffic laws, motor carrier 

safety regulations, or hazardous 

materials discharge; and 

(j) Whether the driver was operating 

under the exemption, and if so, an 

estimate of the total driving time, onduty time for the day of the accident 

and each of the seven calendar days 

prior to the accident. 

Duration of the Exemption 

The exemption is effective October 6, 

2010 and will remain in effect until 

October 9, 2012 unless revoked earlier 

by FMCSA. The exemption may be 

renewed by the Agency; the Agency will 

provide notice and an opportunity for 

public comment prior to renewing the 

exemption. The exemption preempts 

inconsistent State or local requirements 

applicable to interstate commerce. 

Safety Oversight of Carriers Operating 

Under the Exemption 

FMCSA expects that any drivers and 

their employing motor carrier operating 

under the terms and conditions of the 

exemption will maintain their safety 

record. Should any deterioration occur, 

however, FMCSA will, consistent with 

the statutory requirements of TEA–21, 

take all steps necessary to protect the 

public interest. Use of the exemption is 

voluntary, and FMCSA will 

immediately revoke the exemption for 

any interstate driver or motor carrier for 

failure to comply with the terms and 

conditions exemption. 

Issued on: September 30, 2010. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2010–25207 Filed 10–5–10; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 18 

[Docket No. FWS–R7–FHC–2010–0002; 

71490–1351–0000–L5–FY10] 

RIN 1018–AW94 

Marine Mammal Protection Act; 

Deterrence Guidelines 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: These guidelines set forth best 

practices that we, the Fish and Wildlife 

Service, find are appropriate for safely 

and nonlethally deterring polar bears 

from damaging private and public 

property and endangering the public. 

Anyone deciding to carry out the 

deterrence measures or practices set out 

in this rule may do so without our 

written authorization or supervision. As 

discussed in the background section of 

the proposed rule (75 FR 21571) as well 

as in our responses to public comments, 

we authorize other, more aggressive 

deterrence activities through separate 

provisions of the Marine Mammal 

Protection Act. This rule is being 

promulgated to better inform the public 

on the safe deterrence of polar bears as 

directed under the MMPA and not 

because of specific or recurring 

incidences. 

DATES: This rule becomes effective on 

November 5, 2010. 

ADDRESSES: The final rule and 

associated environmental assessment 

are available for viewing at http:// 

regulations.gov. Supporting 

documentation we used in preparing 

this final rule is available for public 

inspection, by appointment, during 

normal business hours, at the U.S. Fish 

and Wildlife Service, Marine Mammals 

Management Office, U.S. Fish and 

Wildlife Service, 1011 East Tudor Road, 

Anchorage, AK 99503; telephone 907/ 

786–3800; facsimile 907/786–3816. 

FOR FURTHER INFORMATION CONTACT: 

Charles S. Hamilton, Wildlife Biologist, 

Office of Marine Mammals Management 

(see ADDRESSES section). Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

1–800–877–8339, 24 hours a day, 7 days 

a week. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the deterrence 

of the polar bear as provided for in the 

1994 amendments to the Marine 

Mammal Protection Act (MMPA) (16 

U.S.C. 1361 et seq.). For more 

information on the polar bear, including 

its status as a threatened species under 

the Endangered Species Act of 1973, as 

amended (ESA) (16 U.S.C. 1531 et seq.), 

refer to the final listing rule published 

on May 15, 2008 (73 FR 28212), the final 

special rule published on December 16, 

2008 (73 FR 76249), the proposed 

designation of critical habitat published 

on October 29, 2009 (74 FR 56058), and 

the May 5, 2010 (75 FR 24545) notice of 

availability of the draft Economic 

Analysis for the polar bear proposed 

designation of critical habitat. 

As discussed in our notice of April 

26, 2010 (75 FR 21571), the 1994 

amendments to the MMPA provide an 

exception to otherwise prohibited acts, 

allowing the use of measures that may 

deter a marine mammal from, among 

other things, damaging private property 

or endangering personal safety [16 

U.S.C. 1371(a)(4)(A)(ii) and (iii), 

respectively]. These acts of deterrence 

must not result in the death or serious 

injury of a marine mammal. Section 

101(a)(4)(A) of the MMPA specifically 

identifies the circumstances when the 

deterrence of a polar bear may be 

undertaken and by whom. These 

include the owner of fishing gear or 

catch (or his or her employee or agent) 

when deterring a polar bear from 

damaging that gear or catch and the 

owner (or his agent, bailee, or employee) 

of private property (other than fishing 

gear or catch) when deterring a polar 

bear from damaging their property. In 

addition, under section 101(a)(4)(A) of 

the MMPA any person may deter a polar 

bear from endangering personal safety 

and a government employee may also 

deter a polar bear from damaging public 

property. Separate from this 

authorization, section 101(a)(4)(B) of the 

MMPA directs the Fish and Wildlife 

Service (Service) to recommend specific 

measures that the public may use to 

safely, nonlethally deter marine 

mammals, including those listed as 

endangered or threatened under the 

ESA. Section 101(a)(4)(C) of the MMPA 

provides for the prohibition of certain 

forms of deterrence if the Service 

determines, using the best scientific 

information available, and subsequent 

to public comment, that the deterrence 

measure has a significant adverse effect 

on marine mammals. 

We have developed these guidelines 

based on information gained over the 

past twenty years from our Incidental 

Take program and cooperative 

agreements with Alaska Native 

organizations. Additionally, we received 

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