
[Federal Register: June 10, 2010 (Volume 75, Number 111)]
[Notices]               
[Page 32983-32984]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn10-85]                         

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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.

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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: 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 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

