[Federal Register Volume 75, Number 111 (Thursday, June 10, 2010)]
[Notices]
[Pages 32983-32984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13903]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2007-28480]
Commercial Driver's License (CDL) Standards: Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final dispositions.
-----------------------------------------------------------------------
SUMMARY: FMCSA has denied National Agricultural Aviation Association's
(NAAA) application for exemption, and, in a separate action, has denied
U.S. Custom Harvesters, Inc.'s (USCHI) suggestion for a pilot program.
Each request asked FMCSA to permit the transportation of hazardous
materials (HM) by drivers who have not obtained an HM endorsement for
their commercial driver's license (CDL) as required by current
regulations. FMCSA reviewed NAAA's application for exemption and the
public comments received on it, and also reviewed USCHI's suggestion
for a pilot program, and rendered each decision upon its merits.
DATES: The NAAA application was denied on August 7, 2009, and the USCHI
suggestion for a pilot program was denied on August 11, 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
Room W12-140, DOT Building, 1200 New Jersey Ave., SE., Washington, DC,
between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and
Carrier Operations Division, Office of Bus and Truck Standards and
Operations; Telephone 202-366-4325, E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Background
Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption
from certain of its regulations for a 2-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.'' On July 5, 2007, FMCSA published in the Federal Register a
notice of NAAA's application for exemption (72 FR 36748). The complete
docket of the NAAA request, including public comments, can be examined
at Docket No. FMCSA-2007-28480 (see ``Dockets'' above). A suggestion
for a pilot program, such as that filed by USCHI, is only published for
public comment if the FMCSA Administrator accepts the proposal (49 CFR
381.405(b)).
FMCSA Decision
NAAA failed to demonstrate alternatives its members would employ to
ensure that their commercial motor vehicle (CMV) drivers operating
under the requested exemption would achieve a level of safety
equivalent to, or greater than, the level of safety that would be
obtained if they had to comply with the regulations, as required by 49
CFR 381.305(c)(5). USCHI's proposed pilot program, while potentially
collecting useful data for evaluating alternatives to the Federal Motor
Carrier Safety Regulations (FMCSRs), failed to recommend alternative
safety measures that would ensure that the safety of its CMV pilot
drivers would be equivalent to, or greater than, the level of safety of
CMV drivers operating without the pilot exemptions in place, as
required by 49 CFR 381.410(c)(8).
NAAA
NAAA is a trade association representing those engaged in the
commercial application of fertilizer and other agricultural products by
airplane. It states that the requested exemption would relieve the
difficulty its members experience in finding CMV drivers qualified to
transport aircraft fuel, a hazardous material. The exemption would
allow NAAA drivers to operate under the limited exception from the CDL
rules provided for those engaged in certain ``farm-related service
industries'' (49 CFR 383.3(f)). States may allow a driver so engaged to
operate under a ``restricted CDL'' without successfully completing the
CDL knowledge and skills tests required by 49 CFR 393.135. The
operations of NAAA members appear to satisfy several of the
prerequisites for this restricted CDL. However, States are required by
49 CFR 393.3(f)(3)(v) to restrict the HM operations conducted by those
granted restricted CDLs to the transport of solid fertilizers and
limited quantities of diesel fuel or liquid fertilizer. NAAA wants
FMCSA, by exemption, to allow its drivers holding this restricted CDL
to transport the HM fuels used to power aircraft engines.
[[Page 32984]]
FMCSA received 17 comments. Nine commenters supported NAAA,
primarily because they are experiencing the same shortage of qualified
CDL drivers described by NAAA in its application. Five commenters
opposed NAAA's application, including Advocates for Highway and Auto
Safety and safety agencies of three States. The commenters pointed out
that if this exemption were in place, NAAA drivers would be
transporting hazardous materials more dangerous than those permitted by
Section 393.3(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 49 CFR 383.135, and a determination of
``not a security threat,'' by the Transportation Security
Administration (TSA) pursuant to 49 CFR 383.141(b). 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
49 CFR 381.415(c)(6)-(c)(8). FMCSA found that NAAA failed to
demonstrate how it would ensure that the operations of its members
under the exemption would achieve a level of safety equivalent to, or
greater than, the level of safety that would be obtained in the absence
of the exemption.
USCHI
U.S. Custom Harvesters Inc. (USCHI) is a trade association whose
members engage in specialized farming operations during the harvest
season. Custom harvesters typically travel from farm to farm using
diesel-powered farm machinery to harvest crops for clients. Due to the
time-sensitive nature of harvesting operations, custom harvesters
typically operate for only a day or two at a farm and move quickly on
to the next farm. In some localities, diesel fuel distributors are not
equipped to transport diesel fuel, a hazardous material, to the fields
as frequently as these operations require, so custom-harvesters bring
commercial motor vehicles (CMVs) with them to transport the diesel
fuel. They hire drivers to operate the CMVs, but the FMCSRs require
that those operating CMVs transporting placardable quantities of diesel
fuel have an HM endorsement on their CDL. USCHI asserts that the
seasonal nature of custom-harvesting operations provides a very limited
timeframe for the recruitment of the number of CDL drivers, with HM
endorsement, needed by the custom-harvesting industry. Many potential
drivers lack only an HM endorsement on their CDL. USCHI asserts that
too much time is consumed in taking the HM test, and obtaining TSA's
``not-a-security-threat'' clearance, to allow them to be available to
drive HM CMV's when the custom-harvesting season begins.
USCHI asked FMCSA to conduct a pilot program under 49 CFR part 381
(subparts C and D) so that its members could demonstrate that their CMV
drivers can transport placardable quantities of diesel fuel in support
of custom-harvesting operations safely without obtaining an HM
endorsement; but the USCHI pilot proposal failed to include alternative
measures to ensure that safety would not deteriorate if their CMV
drivers were allowed to haul HM without an HM endorsement. The design
of the pilot program proposed by USCHI failed to satisfy the safety
performance goals of the FMCSRs, as required by 49 CFR 381.400(c).
Conclusion
FMCSA carefully reviewed NAAA's application for exemption and the
public comments received on it, and also carefully reviewed USCHI's
suggestion for a pilot program. The Agency concluded that the NAAA
application failed to demonstrate how it would ensure that the
operations of its members under the exemption would achieve a level of
safety equivalent to, or greater than, the level of safety that would
be obtained in the absence of the exemption. The Agency concluded that
the USCHI suggestion for a pilot program failed to satisfy the safety
performance goals of the FMCSRs, as required by 49 CFR 381.400(c).
Accordingly, FMCSA denied NAAA's application for exemption, and USCHI's
suggestion for a pilot program.
Issued on: June 4, 2010.
Larry W. Minor,
Associate Administrator for Policy and Program Development.
[FR Doc. 2010-13903 Filed 6-9-10; 8:45 am]
BILLING CODE 4910-EX-P