[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Notices]
[Pages 23467-23469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11661]


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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: <a href="/cdn-cgi/l/email-protection#79343a292a3d391d160d571e160f"><span class="__cf_email__" data-cfemail="5b16180b081f1b3f342f753c342d">[email protected]</span></a>.

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
----------------------------------------------------------------------------------------------------------------
              Applicant                            Docket No.                         Exemption sought
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------

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


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