Exemptions From Certain Controlled Substances and Alcohol Testing Regulations; Mayflower Transit LLC dba Aero Mayflower Transit and United Van Lines LLC Requesting Exemptions

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of denial of application for exemptions.

SUMMARY:

The FMCSA denies Mayflower Transit LLC and United Van Lines' LLC application for exemptions from certain Federal controlled substance and alcohol testing requirements. The applicants requested exemptions that would allow them to impose controlled substance and alcohol testing on their non-CDL (commercial drivers license) drivers using the same standards, forms and requirements, and in the same random testing pool, as their CDL drivers. The FMCSA denies the exemptions because Mayflower Transit LLC and United Van Lines LLC did not explain how they would achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained by complying with the random controlled substances and alcohol testing requirements.

EFFECTIVE DATE:

January 13, 2004.

FOR FURTHER INFORMATION CONTACT:

Ms. Kaye Kirby, Office of Bus Truck Standards and Operations, Physical Qualifications Division, (202) 366-3109, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:15 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Public Participation: The Docket Management System (DMS) is available 24 hours each day, 365 days each year. You can get electronic submission and retrieval help guidelines under the “help” section at: http://dms.dot.gov .

Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's complete Privacy Act Statement in the Federal Register (FR) published on April 11, 2000 (volume 65, Number 70; Pages 19477-78) or read it on the DMS “help” section.

Background

On May 15, 2003, 68, FR, 26374, the FMCSA published a Notice of its receipt of an application from Mayflower and United Van Lines that requested exemptions that would allow them to impose controlled substance and alcohol testing on their non-CDL drivers using the same standards, forms and requirements, and in the same random testing pool as their CDL drivers. Mayflower and United Van Lines noted that for purposes of administrative efficiency and to promote safety in their operations, Mayflower and United Van Lines included all of the commercial motor vehicle drivers, including the non-CDL drivers, in the company controlled substance and alcohol testing programs conducted under the Department of Transportation (DOT) regulations. This request for exemptions was prompted as a result of a compliance review conducted by FMCSA during which Mayflower was cited for including non-CDL drivers in its controlled substances and alcohol testing program. Consequently, Mayflower and United Van Lines requested exemptions from certain controlled substance and alcohol testing requirements specifically, 49 CFR 382.105, 49 CFR 382.305(I)(1), and 49 CFR 40.13(a), (b), (c) and (d).

Sections 31315 and 31136 of title 49 of the United States Code provide the authority to grant exemptions from certain portions of the Federal Motor Carrier Safety Regulations (FMCSRs). Exemptions provide time-limited regulatory relief from one or more FMCSRs given to a person or class of persons subject to the regulations, or who intend to engage in an activity that would make them subject to the regulations. Exemptions provide the person or class of persons with relief from the regulations for up to two years and may be renewed. These sections also require the agency to ensure that the terms and conditions for the exemptions would achieve a level of safety that is equivalent to, or greater than, the level of safety that would be obtained by complying with the regulations when evaluating applications for exemptions.

Discussion of Docket Comments

The FMCSA received eight comments to the notice announcing the FMCSA's receipt of the application from Mayflower and United Van Lines. The Drug and Alcohol Testing Industry Association (DATIA), Lawrence C. Hartung, Ronald K Edwards, Michael Silverman, Renee Lane, and Thomas E. Swayne were opposed to granting exemptions to Mayflower and United Van Lines. These commenters believe the management of two pools within the same company, one regulated and one not regulated, is a relatively common task, which can be managed easily by someone within the company, by Third Party Administrators (TPA), or Medical Review Officers (MROs). This is currently done on a daily basis with little additional administrative work, and the overall effort to manage the two pools is negligible. In addition, commenters noted that the overall size of these two employers could potentially skew statistical data for the entire industry if they were allowed to include non-CDL employees in with CDL employees. It was noted that for the safety of the general public, the DOT has set standards requiring all CDL drivers to be tested at a certain rate each year. Adding all the non-CDL drivers and employees to the same random pool would prevent them from achieving the required rate of testing. DATIA stated, “to allow employers to include non-covered employees in the same pool as FMCSA covered employees would have far reaching negative effects on the FMCSA drug and alcohol testing program.”

Another commenter, Joe Kroening, appeared to be in favor of granting the request and noted that he fully supported the testing of all drivers and helpers in the industry whether or not they hold CDLs. The remaining commenter did not express opposition or support for granting Mayflower and United Van Lines an exemption.

FMCSA Decision

The FMCSA has carefully reviewed the Mayflower and United Van Lines application for exemptions from certain Federal controlled substance and alcohol testing requirements. The agency agrees with certain commenters that the administrative burden is not overwhelming, and the management of two pools within the same company is a relatively common task managed easily either within the company, or by TPAs and MROs. Federal controlled substances and alcohol testing requirements (49 CFR 382.105, 49 CFR 382.305(I)(1), and 49 CFR 40.13(a), (b)(c) and (d)) are designed to keep testing standards high in the interest of public safety. Mayflower and United Van Lines have not demonstrated how their proposal would achieve a level of safety that is equivalent to, or greater than, the levels of safety that would be obtained by complying with the controlled substances and alcohol testing requirements. Consequently, the FMCSA is denying the Mayflower and United Van Lines request for exemptions from the Federal requirements for controlled substance and alcohol testing.