
[Federal Register: March 14, 2008 (Volume 73, Number 51)]
[Notices]               
[Page 13948-13950]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14mr08-121]                         

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2008-0073]

 
Hours of Service of Drivers: Cummins, Inc. (Cummins) Application 
for Exemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of application for exemption; request for comments.

-----------------------------------------------------------------------

[[Page 13949]]

SUMMARY: FMCSA has received from Cummins, Inc. (``Cummins'') an 
application for an exemption from the Federal Motor Carrier Safety 
Regulations regarding maximum driving time for drivers of passenger-
carrying vehicles. The exemption would allow Cummins' drivers 
delivering new buses without any passengers in a driveaway operation to 
be governed by the hours-of-service (HOS) requirements for drivers of 
property-carrying vehicles. Cummins' drivers are operating these motor 
vehicles as test vehicles to determine the performance of various types 
of engines as well as components that are closely related to the design 
and manufacture of the described engines. Cummins states that the level 
of safety will be equivalent or greater than the level of safety that 
would be obtained by complying with the HOS regulations for drivers of 
passenger-carrying vehicles. FMCSA requests public comment on Cummins' 
application for exemption.

DATES: Comments must be received on or before April 14, 2008.

ADDRESSES: You may submit comments identified by Federal Docket 
Management System Number FMCSA-2008-0073 by any of the following 
methods:
     Web site: www.regulations.gov. Follow the instructions for 
submitting comments on the Federal electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, 
DC 20590-0001.
     Hand Delivery: 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.
    Instructions: All submissions must include the Agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Public 
Participation heading below. Note that all comments received will be 
posted without change to www.regulations.gov, including any personal 
information provided. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov at any time or to the 
ground floor, room W12-140, DOT Building, New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday, 
except Federal holidays.
    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 DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19476) or you may visit www.regulations.gov.
    Public participation: The www.regulations.gov Web site is generally 
available 24 hours each day, 365 days each year. You can get electronic 
submission and retrieval help and guidelines under the ``help'' section 
of the www.regulations.gov Web site and also at the DOT's http://
docketsinfo.dot.gov Web site. 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 online.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Transportation 
Specialist, 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

    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. Under its regulations, 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 the 
conducting of any safety analyses. 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)) with the reason for denying or, in the alternative, the 
specific person or class of persons receiving the exemption, and the 
regulatory provision or provisions from which exemption is 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)).

Request for Exemption

    Cummins, Inc. (Cummins) is a registered private motor carrier whose 
principal place of business is located in Columbus, Indiana. Cummins 
employs 118 drivers who are utilized to operate passenger- and 
property-carrying commercial motor vehicles (CMVs) in a driveaway 
operation from, to and between points in the U.S. All of Cummins' 
CMVs--either passenger-or property-carrying--are driven on their own 
wheels in a driveaway operation. A ``driveaway-towaway operation'' is 
defined in 49 CFR 390.5 of the Federal Motor Carrier Safety Regulations 
as ``an operation in which an empty or unladen motor vehicle with one 
or more sets of wheels on the surface of the roadway is being 
transported:
    (1) Between vehicle manufacturer's facilities;
    (2) Between a vehicle manufacturer and a dealership or purchaser;
    (3) Between a dealership, or other entity selling or leasing the 
vehicle, and a purchaser or lessee;
    (4) To a motor carrier's terminal or repair facility for the repair 
of disabling damage (as defined in Sec.  390.5) following a crash; or
    (5) To a motor carrier's terminal or repair facility for repairs 
associated with the failure of a vehicle component or system; or
    (6) By means of a saddle-mount or tow-bar.''
    The group of Cummins' drivers to be covered by this exemption is 
extensively engaged in the driving of the various types of passenger- 
and property-carrying CMVs in a driveaway operation for the purpose of 
testing diesel and natural gas engines and various related components. 
Cummins designs, manufactures, distributes and services diesel and 
natural gas engines, electric power generation systems and engine-
related component products, and sells these products to original 
equipment manufacturers including Daimler Chrysler, PACCAR, Inc., 
Navistar, Volvo, Ford, Volkswagen and other customers. Cummins is 
continually testing its products including the diesel and natural gas 
engines that are installed in the passenger and property-carrying CMVs. 
According to Cummins, other than the utilization of the vehicles for 
testing, the property-carrying CMVs do not transport cargo and the 
passenger-carrying CMVs do not transport

[[Page 13950]]

passengers. Their passenger-carrying CMVs include school buses, transit 
buses, and shuttle buses which are all driven without any passengers.
    The Federal hours-of-service (HOS) regulations for CMV drivers in 
49 CFR 395.5 apply to motor carriers and drivers operating passenger-
carrying vehicles. According to FMCSA's regulatory guidance, a driver 
of a CMV ``designed or used to transport * * * passengers * * * '' (49 
CFR 390.5 definition of CMV) would be considered to be passenger-
carrying regardless of whether there were actually any passengers in 
the vehicle. This prevents a requirement for drivers to switch to the 
HOS rules for property-carrying vehicles each time the bus becomes 
empty. However, this also means that drivers of the empty buses Cummins 
test drives are always subject to the HOS rules for passenger vehicles.
    Cummins' request for an exemption from the HOS provisions of 49 CFR 
395.5 is to allow its drivers operating the various types of buses, 
without any passengers in a driveaway operation, to be governed by the 
HOS rules in 49 CFR 395.3, Maximum Driving Time for Property-Carrying 
Vehicles. When operating tractors, trucks, pick-up trucks, motor homes 
and other motor vehicles except passenger-carrying vehicles, in a 
driveaway operation, Cummins' drivers are adhering to the HOS 
regulations applicable to property-carrying CMVs. A Cummins driver who 
is operating a property-carrying CMV for the purpose of testing could 
also be assigned to operate a passenger-carrying CMV the same or next 
day for testing purposes.
    Cummins submits that depending upon the type of CMV being operated, 
its drivers are required to be familiar with and comply with both sets 
of HOS regulations applicable to property-as well as passenger-carrying 
CMVs. Not only is compliance with these two sets of regulations 
difficult for their drivers, it is also extremely complex for Cummins 
to audit the drivers' records of duty status to ensure compliance with 
the HOS regulations depending upon the type of CMV being operated by 
the driver on a day-to-day basis.
    Cummins submits that it does not make any ``regulatory common 
sense'' to require a driver to be considered ``passenger-carrying'' 
regardless of whether there are actually any passengers in the vehicle 
when the various types of buses are being utilized for testing. 
Furthermore, unless their request for an exemption is granted, Cummins 
will continue to be confronted with having to administer two different 
sets of HOS regulations for a significant class of its drivers who are 
moving CMVs in a driveaway operation.
    Cummins therefore requests that the ``described class'' of drivers 
be granted an exemption from 49 CFR 395.5 governing the maximum driving 
time for passenger-carrying vehicles when these drivers are operating 
various types of buses, without passengers, in a driveaway operation 
primarily for the purpose of testing engines and related components. 
Cummins states that it would ensure that the level of safety will be 
equivalent or greater than the level of safety that would be obtained 
by complying with the regulations in Part 395.5. Specifically, Cummins 
has safety systems in place to monitor compliance with the HOS rules 
applicable to property-carrying CMVs, which is a substantial portion of 
its operations. A copy of Cummins' exemption application is in the 
docket identified at the beginning of this notice.

Request for Comments

    In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA 
requests public comment on Cummins' application for an exemption from 
49 CFR 395.5. The Agency will consider all comments received by close 
of business on April 14, 2008. 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.

    Issued on: March 10, 2008.
Charles A. Horan III,
Acting Associate Administrator for Policy and Program Development.
[FR Doc. E8-5176 Filed 3-13-08; 8:45 am]

BILLING CODE 4910-EX-P
