Applications for Exemption

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of final disposition.

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.

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 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.

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.