Commercial Driver's License (CDL) Standards: National Agricultural Aviation Association (NAAA) Application for Exemption

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of application for exemption; request for comments.

SUMMARY:

FMCSA announces that it has received from the National Agricultural Aviation Association (NAAA) an application for an exemption from the commercial driver's license (CDL) requirements. NAAA requests that commercial motor vehicle drivers working with agricultural aircraft operators be exempt from the required knowledge and skills tests and be eligible to receive a restricted CDL. NAAA also requests an exemption to allow these restricted CDL holders to transport fuels used to power agricultural aircraft engines if transported in quantities of 1,000 gallons or less. NAAA believes that relief from the CDL regulations will relieve a current economic hardship and will provide parity in the CDL regulations compared to other, nearly identical farm-related services. NAAA believes that the evidence provided in the exemption request demonstrates that the level of safety achieved under the exemption would be equal to or greater than the level of safety that prevails without the exemption. FMCSA requests public comment on the NAAA application for exemption.

DATES:

Comments must be received on or before August 6, 2007.

ADDRESSES:

You may submit comments identified by DOT DMS Docket Number FMCSA-2007-28480 using any of the following methods:

• Web site: http://dmses.dot.gov/submit/. Follow the instructions for submitting comments on the DOT electronic docket site.
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, Room W12-140, 1200 New Jersey Ave. SE., Washington, DC 20590.
• Hand Delivery: Room W12-140, Ground Floor of West Building, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All submissions must include the Agency name and docket number for this notice. Note that all comments received will be posted without change to http://dms.dot.gov including any personal information provided. Please see the Privacy Act heading for further information.

Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or Room W12-140, Ground Floor of West Building, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The DMS is available 24 hours each day, 365 days each year. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line.

Privacy Act: Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, or other entity). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477, Apr. 11, 2000). This statement is also available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, MC-PSD, Federal Motor Carrier Safety Administration, telephone 202-366-4009, E-mail: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION:

Background

Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) amended 49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from motor carrier safety regulations. On December 8, 1998, the Federal Highway Administration's Office of Motor Carriers, the predecessor to FMCSA, published an interim final rule implementing sec. 4007 (63 FR 67600). On August 20, 2004, FMCSA published a final rule (69 FR 51589) on this subject. Under this rule, FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The Agency must provide the public an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted. The Agency must also provide an opportunity for public comment on the request.

The Agency reviews the safety analyses and the public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the Federal Register (49 CFR 381.315(b)). If the Agency denies the request, it must state the reason for doing so. If the Agency grants the exemption, the notice must specify the person or class of persons receiving the exemption, and the regulatory provision or provisions from which exemption is being granted. The notice must also specify the effective period of the exemption (up to 2 years), and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)).

Application for Exemption

The NAAA is a trade association that represents over 1,300 members in 46 states. It requests that commercial motor vehicle (CMV) drivers supporting agricultural aircraft operations be exempted from the required knowledge and skills tests required for a CDL and that these individuals be eligible to receive restricted CDLs as described in 49 CFR 383.3(f). In addition, NAAA further requests an exemption from 49 CFR 383.3(f)(3)(v) that would allow these restricted CDL holders to transport fuels used to power agricultural aircraft engines, if transported in quantities of 1,000 gallons or less.

NAAA member operators/pilots are licensed as commercial applicators who use aircraft to enhance food and fiber production, protect forestry, and control health-threatening pests. According to the NAAA, as a part of this operation, a CMV will be driven to a satellite strip where the plane is normally located. The driver will serve as a “mixer-loader” of the crop protection products that go into the agricultural aircraft, and will also refuel the aircraft at the satellite strip. These activities are normally conducted at a location where the aerial application operators have permanent fuel tanks and mixing and loading facilities for crop-protection products. However, at times they work so far from their permanent facility that it is cost-effective to use a satellite landing strip and an on-site fuel truck. The fuel is pumped from the fixed base tanks into the fuel truck and then the fuel truck transports it to the satellite strip for the agricultural aircraft. More trips are made to transport fuel to the satellite strip as needed and the CMV returns to the fixed-base location at the end of the day. Some of the vehicles may also be equipped with crop protection products such as fertilizers, insecticides, fungicides, or herbicides. Due to the nature of this work, the truck drivers normally are traveling on rural, less-trafficked roads.

NAAA requests that these drivers be permitted to receive restricted CDLs without knowledge and skills testing primarily to expand the labor pool of available drivers. A shortage of available drivers may prevent use of a satellite airstrip closer to the application site. This results in an aircraft having to travel back to its home base for each load instead of using a closer landing area. In this case more fuel is burned to travel to the application site and more time elapses, resulting in fewer application jobs performed during the day. One operator surveyed responded that he loses $2,500 to $5,000 per day as a result of not having an available CDL driver. The granting of the exemption would save on fuel costs, which, according to the NAAA, have increased 142% for aerial application operations in the last three years.

In a recent survey, NAAA asked its members if they had experienced difficulties finding CDL drivers to transport chemicals and fuel to satellite application strips, and over 95% answered “yes.” In addition, over 90% of the respondents answered that they had found themselves without a CDL driver for such vehicles during the aerial application season. One explanation offered for this situation is that qualified CDL drivers would be more interested in all-year driving work, rather than the seasonal work that driving for an aerial application operation offers. This factor, coupled with the fact that most aerial application operations are located in rural areas, makes for a smaller pool of available, qualified drivers.

NAAA also states finding Department of Motor Vehicle (DMV) locations and scheduling testing times to take the knowledge and skill tests required for a CDL can be difficult. Its survey indicates that only a select number of DMV locations offer the knowledge and skill tests required to obtain a CDL. Over 76% of the respondents indicated that only a limited number of these DMV locations are readily available. This is an additional handicap, as these operators must take the time and resources to travel significant distances for a potential employee to be tested.

NAAA also requests an exemption from 49 CFR 383.3(f)(3)(v) provisions that limit restricted CDL holders to transporting diesel fuel in quantities of 3,785 liters, or 1,000 gallons or less. There are two fuels used in agricultural aircraft operations. One is Jet A, which is used to fuel turbine engines. The second is Avgas, which is used to fuel piston-engine aircraft. Diesel and Jet A fuel are very similar in terms of chemical characteristics. The flash point for the two chemicals is nearly identical at 100 degrees, and Avgas has a lower flashpoint than Jet A and diesel.

The time period in which the exemption would usually be needed is the 180 days from the beginning of April through the end of September. This parallels the main season for growing crops in the U.S.—the period aerial applicators are most active. However, because climatic conditions vary around the country, the season of an agricultural aircraft operation depends on where the business is located. If a restricted CDL exemption is granted, NAAA therefore requests that the operator be able to choose the six-month period that best matches the growing conditions in the area in which the business is located.

NAAA's justification for including agricultural aircraft operations among the types of employers that may use restricted CDL holders, as listed in section 383.3(f), is that these types of operations are extremely similar to agri-chemical businesses, farm retail outlets, etc. Agricultural aircraft operators transport the same types of materials, such as fertilizers, pesticides and fuel, and in the same quantities as the farm-related industries. Furthermore, agricultural aircraft drivers are transporting these materials on the same rural, lightly-trafficked roads on which farm-related industries are traveling.

NAAA's response to ensuring an equivalent level of safety for the proposed exemption is that these operations will be required to ensure that they employ safe drivers and that safe equipment is used on the roads. NAAA states that section 383.3(f)(3) requires restricted-CDL holders to have a “good driving record.” These operators are required to perform random drug tests on employees and to ensure that drivers have hazardous materials endorsements, which require a background check by the Transportation Security Administration. Furthermore, under 49 CFR part 180 Subpart E, “Qualification and Maintenance of Cargo Tanks,” regulations are in place to ensure the structural integrity of the cargo tanks used to transport fuel in the event that the tanks are involved in a crash.

A recent NAAA survey found that 95.3% of aerial application businesses surveyed had never been involved in any type of accident while transporting fuel or chemicals. The results also show that 92.9% of those surveyed travel on roads in rural areas with minimal traffic and that a vehicle transporting fuel or chemicals travels an average of 57.81 miles per day. NAAA notes that several operators also mentioned that they do not travel this many miles every day. In many cases, driving is done only once or twice a week to a satellite facility.

To ensure that the current safety level is preserved, NAAA states that it is in a strong position to provide meaningful continuing education on highway safety to a large portion of the small business owners of agricultural aviation operations throughout the country through its education program known as the Professional Aerial Application Support System (PAASS). The focus of the PAASS program is to educate individuals in the aerial application industry on the latest techniques and technologies to mitigate agricultural aviation flying accidents and off-target application incidents, in addition to enhancing the security of aerial application operations. According to NAAA, in addition to educating its industry on security and pilot safety, PAASS can also be used to further educate its members on highway transportation safety issues.

A copy of the NAAA exemption application is available for review in the docket for this notice.

Request for Comments

In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comment on NAAA's application for exemption from the 49 CFR part 383 CDL requirements. The Agency will consider all comments received by close of business on August 6, 2007. Comments will be available for examination in the docket at the location listed under the ADDRESSES section of this notice. The Agency will file comments received after the comment closing date in the public docket, and will consider them to the extent practicable. In addition to late comments, FMCSA will also continue to file, in the public docket, relevant information that becomes available after the comment closing date. Interested persons should monitor the public docket for new material.