[Federal Register: May 19, 2009 (Volume 74, Number 95)]
[Notices]
[Page 23467-23469]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my09-99]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[FMCSA Dockets No. FMCSA-2005-22660, FMCSA-2005-22937, FMCSA-2007-
28827, FMCSA-2007-29254, FMCSA-2007-29048, FMCSA-2008-0076]
Applications for Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
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SUMMARY: FMCSA has denied the applications for exemption from its
regulations submitted by the following: Bordentown Driver Training
School LLC, Centennial Communications, Inc., United States Department
of Energy, Jcrane, Inc., Summit Helicopters, Inc., and United States
Postal Service. FMCSA reviewed the application and public comments
received on each, and rendered its decision based on the merits of each
application.
DATES: All of these applications for exemption were denied effective
January 16, 2009.
Dockets: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov at any time, or to
the ground floor, room W12-140, DOT Building, 1200 New Jersey Avenue,
SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Robert Schultz, Jr., FMCSA Driver and
Carrier Operations Division; Office of Bus and Truck Standards and
Operations; Telephone: 202-366-4325. E-mail: MCPSD@dot.gov.
SUPPLEMENTARY INFORMATION:
Background
Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption
from certain of its regulations for a two-year period if it finds
``such exemption would likely achieve a level of safety that is
equivalent to, or greater than, the level that would be achieved absent
such exemption.'' FMCSA published in the Federal Register a separate
public notice of each application for exemption. The Agency requested
public comment on each application and provided the public an
opportunity to inspect the information relevant to each. FMCSA reviewed
and evaluated each of the applications for exemption and all the
comments filed. Table 1 provides, for each application, the docket
number where the complete record of the docket can be examined (see
``DOCKETS'' above), and the Federal Motor Carrier Safety Regulations
(49 CFR 350 et seq.) (FMCSRs) from which exemption was sought.
Table 1
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Applicant Docket No. Exemption sought
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Bordentown Driver Training School FMCSA-2007-29048................... Random Drug and Alcohol Testing of
LLC, dba Smith & Solomon Driver Drivers with a Commercial Driver's
Training. License. 49 CFR 382.305(a).
Centennial Communications........... FMCSA-2007-28827................... All 49 CFR parts 350-399.
U.S. Department of Energy........... FMCSA-2008-0076.................... Hours of Service, Sleeper berth
periods of at least eight (8)
consecutive hours. 49 CFR
395.1(g)(1)(ii)(A).
Jcrane, Inc......................... FMCSA-2007-29254................... Qualification of drivers: minimum age
of 21 years. 49 CFR 391.11(b)(1).
Summit Helicopters, Inc............. FMCSA-2005-22937................... Hours of Service, 49 CFR Part 395.
United States Postal Service........ FMCSA-2005-22660................... Hours of Service, Limit on ``on-
duty'' time each day. 49 CFR 395.3.
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FMCSA Decision
The applicants failed to demonstrate how, if the exemption(s)
sought were granted, they would ensure that their operations could
achieve a level of safety that is equivalent to, or greater than, the
level of safety that would be obtained by compliance with the
regulations (49 CFR 381.305(c)(5)). Therefore, the Administrator denied
each of these applications for exemption
[[Page 23468]]
on January 16, 2009. Details of the Agency's analysis follow.
Bordentown Driver Training School LLC, Doing Business as (dba) Smith &
Solomon Driver Training
This truck-driver training school applied to obtain exemption from
random drug and alcohol testing (49 CFR 382.305(a)) for its student-
drivers of commercial motor vehicles. Two comments were filed in
response to this application. One comment supported the request on the
basis that student drivers undergo a drug screen as part of the
enrollment process, and also because random testing is costly and
inconvenient considering the limited amount of driving these students
actually perform during training. A second comment recommended denial
of the application because the random testing of students promotes
early detection of unfit drivers. FMCSA believes that the value of
random testing in this environment justifies its inconvenience and cost
because it serves as an effective deterrent to illegal and unsafe
activity in the operation of heavy trucks by students after enrollment.
FMCSA found that the applicant failed to explain how it could ensure
that students exempt from random drug and alcohol testing would achieve
a level of safety equivalent to, or greater than, the level they would
achieve by complying with the regulation.
Centennial Communications
This entity sought exemption from all the FMCSRs for 46 drivers who
operate commercial motor vehicles (CMVs) on an occasional basis. The
only comment was from the Advocates for Highway and Auto Safety, which
strongly opposed the application on several grounds, including that the
applicant did not demonstrate how operation under the exemption would
maintain a level of safety equivalent to, or greater than, the level
achieved without the exemption. The information provided in support of
the petition failed to establish a basis for distinguishing the
involved drivers from the drivers employed by other motor carriers on
an occasional basis. The inconvenience the applicant experiences in
complying with the FMCSRs is not exceptional or noteworthy. The
applicant also failed to explain how, were these 46 drivers exempt from
all the FMCSRs, it could ensure that it would achieve a level of safety
equivalent to, or greater than, the level of safety that would be
obtained by compliance with the regulations.
U.S. Department of Energy (DOE)
This Federal agency sought modification of the rules pertaining to
the hours of service (HOS) of its contract drivers hauling high-risk,
high-security shipments of transuranic waste in interstate commerce.
These drivers operate in teams of two so that, to the maximum extent
allowable, one driver can obtain rest in a sleeper berth (SB) while the
other drives. Based upon scientific research, FMCSA in 2005 amended the
SB rules to require drivers to include, at specified intervals, periods
of no less than 8 hours in the SB, plus a separate period of at least 2
but less than 10 consecutive hours either in the SB or off duty or in
any combination of the two. Prior to this amendment, drivers could
satisfy the HOS rules by using SB periods of any length in excess of 2
hours, so long as two consecutive SB periods totaled at least 10 hours
in length (and occurred within specified timeframes). One of the most
popular SB protocols prior to amendment alternated the driving and
sleeper berth ``shifts'' every 5 hours. The applicant espoused the
virtue of such a protocol.
Three companies in the same line of work as the applicant commented
in favor of DOE's application. In addition, an industry association
recommended that FMCSA conduct a rulemaking and re-examine the SB
rules. None of these comments persuaded the Agency to overlook the
extensive scientific research underlying its current SB rule. This
research found that team drivers employing 5-hour shifts were unable to
obtain sufficient restorative rest. Two commenters opposed the
application, including a safety group that felt that DOE failed to show
that the current level of safety would be maintained if the exemption
were granted. The Agency notes the hazardous nature of the property
being transported (transuranic waste), and is not persuaded that the
operations of drivers exempt from 8-hour SB periods could attain a
level of safety equivalent to, or greater than, the level of safety
that would be obtained by compliance with the current SB regulations
requiring such periods.
Jcrane, Inc. (Jcrane)
This company sought exemption for 10 of its crane and tractor-
trailer drivers from the requirement that interstate drivers of CMVs be
at least 21 years of age. The drivers would be as young as 18 years of
age. The comments were unanimous in their opposition to the exemption.
Jcrane failed to differentiate its operating environment from that of
other motor carriers. The agency remains persuaded by research showing
that drivers age 18 to 21 years of age are a high-risk group. The
Agency is especially hesitant to allow these young drivers to operate
cranes in interstate commerce. Jcrane failed to demonstrate how it
would ensure that it could achieve a level of safety with 10 drivers
under age 21 that would be equivalent to, or greater than, the level of
safety that would be obtained if all its drivers were at least 21 years
of age.
Summit Helicopters, Inc. (Summit)
This motor carrier, engaged in the aerial application of
herbicides, operates 21 tank CMVs in support of its aircraft. It asked
the Agency to exempt it and the operators of these tank CMVs from all
of the HOS rules. Five comments opposed the application; none supported
it. The Agency believes that it would be irresponsible to allow drivers
operating tank CMVs laden with hazardous materials to be free of all
constraints on driving or on-duty time, and of all requirements for
restorative rest. Summit failed to explain how it could ensure that
drivers operating tank CMVs in interstate commerce without any
regulation of their HOS would achieve a level of safety equivalent to,
or greater than, the level of safety that would be obtained by
compliance with the HOS rules.
United States Postal Service (USPS)
This Agency sought an exemption to allow over 5,000 contract mail
haulers it utilizes to operate under the HOS rules in effect prior to
January 4, 2004. On that date, revised HOS rules governing the on-duty
time of interstate property-carrying drivers took effect. The revisions
followed a comprehensive review of the science of driver fatigue by
FMCSA and extensive public comment. There were 1,071 comments to the
docket. Only sixteen comments supported the request. Of the comments in
opposition to the request, approximately 930 employed identical
wording. The amended rules were designed to improve the safety of the
property-carrying industry and have, in fact, done so. The petition
provides no information to suggest that a return to the HOS rules
previously in effect by this large group of drivers would be
accompanied by measures ensuring that the current level of safety would
be maintained. Absent such a showing, FMCSA cannot grant the
application. Therefore, FMCSA denies the USPS request for exemption.
[[Page 23469]]
Conclusion
FMCSA has carefully reviewed the applications and the comments
received, and has concluded that each application lacks sufficient
merit to justify the exemptions sought. Accordingly, FMCSA denies each
application.
Issued on: May 7, 2009.
Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. E9-11661 Filed 5-18-09; 8:45 am]
BILLING CODE 4910-EX-P