[Federal Register Volume 87, Number 62 (Thursday, March 31, 2022)]
[Notices]
[Pages 18855-18857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06796]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2021-0118]


Commercial Driver's License Standards: Application for Exemption; 
Werner Enterprises, Inc.

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

ACTION: Notice of final disposition; grant of application for 
exemption.

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SUMMARY: FMCSA announces its decision to grant Werner Enterprises, Inc. 
(Werner) an exemption from the regulation that requires a commercial 
learner's permit (CLP) holder operating a commercial motor vehicle 
(CMV) to be accompanied by a commercial driver's license (CDL) holder 
with the proper CDL class and endorsements, in the passenger seat. 
Werner requested an exemption to allow CLP holders who have passed the 
CDL skills test but have not yet obtained the CDL document from their 
State of domicile, to drive a CMV without having a CDL holder in the 
passenger seat. FMCSA has analyzed the exemption application and the 
public comments and has determined that the exemption, subject to the 
terms and conditions imposed, will likely achieve a level of safety 
that is equivalent to, or greater than, the level that would be 
achieved absent such exemption.

DATES: This exemption is effective March 31, 2022 and expires March 31, 
2027.

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and 
Carrier Operations Division; Office of Carrier, Driver and Vehicle 
Safety Standards; (202) 366-4225; [email protected]. If you have questions 
on viewing or submitting material to the docket, contact Dockets 
Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

Viewing Comments and Document

    To view comments, go to www.regulations.gov, insert the docket 
number ``FMCSA-2021-0118'' in the keyword box, and click ``Search.'' 
Next, sort the results by ``Posted (Newer-Older),'' choose the first 
notice listed, click ``Browse Comments.''
    If you do not have access to the internet, you may view the docket 
online by visiting Dockets Operations in Room W12-140 on the ground 
floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, 
DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except 
Federal holidays. To be sure someone is there to help you, please call 
(202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the Federal Motor Carrier Safety 
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 any safety analyses that have been conducted. 
The Agency must also provide an opportunity for public comment on the 
request.
    The Agency reviews safety analyses and public comments submitted 
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 reasons for denying or granting the application 
and, if granted, the name of the person or class of persons receiving 
the exemption, and the regulatory provision from which the exemption is 
granted. The notice must also specify the effective period (up to 5 
years) and explain the terms and conditions of the exemption. The 
exemption may be renewed (49 CFR 381.300(b)).

III. Background

Current Regulation Requirements

    Under 49 CFR 383.25(a)(1) a CLP holder must always be accompanied 
by the holder of a valid CDL who has the proper CDL group and 
endorsement(s) necessary to operate the CMV. The CDL holder must always 
be physically present in the front seat of the vehicle next to the CLP 
holder while operating a CMV on public roads or highways and must have 
the CLP holder under observation and direct supervision or, in the case 
of a passenger vehicle, directly behind or in the first row behind the 
driver and must have the CLP holder under observation and direct 
supervision.

Applicant's Request

    Werner requests the exemption to allow CLP holders who have 
successfully passed a CDL skills test and are thus eligible to receive 
a CDL, be allowed to drive without having a CDL holder seated beside 
them in the vehicle. Werner, however, indicates in their exemption 
request that the CDL holder will remain in the vehicle at all times 
while the CLP holder is driving--just not in the front seat. Werner 
contends that an exemption from this regulation will benefit Werner and 
the trucking industry in three ways: Improving efficiency of freight 
operations by maximizing driver employment during an historic driver 
shortage; creating immediate employment and compensation opportunities 
to qualified drivers; and improving the overall safety of the new 
driver experience. Werner believes it will face a significant burden in 
all three areas if this exemption is not granted.
    Werner asserts that 49 CFR 383.25(a)(1) has created a significant 
burden on its operations. Prior to the implementation of the 
regulation, a new driver's State of domicile issued temporary CDLs to 
drivers who passed the CDL skills test. The temporary CDL made it 
possible for Werner to place the new driver as ``on duty'' and route 
him

[[Page 18856]]

or her to the State of domicile to obtain a CDL without entering a 
second driver into an ``on duty'' status, thus allowing productive 
freight movement for Werner and compensation for the new driver.

IV. Equivalent Level of Safety

    Werner believes that applying the exemption only to drivers who 
have passed the CDL skills test, hold a CLP, and operate the CMV under 
supervision of a CDL holder who is somewhere in the vehicle, will 
ensure an equivalent level of safety. Werner believes that there is no 
difference between the CLP holders who have passed the CDL skills test 
and other truck drivers on the road. In fact, Werner notes that by 
allowing a CLP holder who has passed the CDL skills test out of State 
to drive en route to their State of domicile with a CDL holder present 
in the vehicle, safety will be improved over current regulations, which 
allow a new CDL holder to drive unsupervised immediately after 
receiving his or her CDL documentation. Werner will ensure this level 
of safety by maintaining proper, up-to-date records for all drivers in 
possession of a CLP who have passed the CDL skills test.

V. Public Comments

    On August 18, 2021, FMCSA published notice of Werner's application 
for exemption and requested public comment (86 FR 46310). The Agency 
received 25 comments. The commenters that opposed Werner's request 
consisted of truck drivers, driver-trainers, other individuals, and the 
Owner-Operator Independent Drivers Association (OOIDA). These 
respondents do not believe that it is safe for a CLP holder to operate 
a CMV without the supervision of a CDL driver-trainer in the front seat 
of the truck.
    For example, OOIDA wrote, ``The regulations requiring an 
experienced driver in the front seat with a permit holder were 
implemented with safety in mind. As we move closer to the Entry-Level 
Driver Training rule taking effect next year, FMCSA should be finding 
ways to further bolster training requirements, not weaken them. 
Granting this exemption would do just that. Because Werner has not 
demonstrated that this exemption would achieve a level of safety 
equivalent or greater than the safety level under the current 
regulations, a waiver should not be granted.''
    Mr. Roger Issacs said, ``I don't think this should be approved. 
This would open the door for permit holders to run as a team driver, 
when some may not be able to pass a driver's test, with no eyes on 
anything they could do wrong, when trainer is asleep in sleeper.''
    The Agriculture Transportation Coalition (AgTC), American Trucking 
Associations (ATA), Idaho-Oregon Fruit and Vegetable Association, 
Truckload Carriers Association, truck drivers, and some individuals 
submitted comments supporting Werner's application for exemption.
    For example, AgTC said, ``The AgTC supports Werner's application 
for exemption to allow commercial learner's permit (CLP) holders who 
have successfully passed the commercial driver's license (CDL) skills 
test to be able to drive a commercial motor vehicle (CMV) without 
having a CDL holder seated beside them in the CMV. The exemption would 
boost operational productivity and get drivers employed faster. Not 
allowing Werner to immediately designate a new driver as ``on duty'' in 
order to drive to his or her home state to get CDL documentation 
creates inefficiency in the supply chain.''
    The ATA stated, ``Given the ongoing driver shortage, ATA is vitally 
interested in removing employment barriers to increase efficiency 
without hindering safety. As such, ATA appreciates the opportunity to 
comment on this important petition. Specifically, ATA believes that 
granting Werner's exemption would achieve an equivalent or greater 
level of safety, mitigate the impact of state driver's licensing agency 
(SDLA) processing delays, address the needs of a mobile workforce, and 
minimize costs and burdens for the trucking industry.''

VI. FMCSA Response to Comments and Decision

    FMCSA has evaluated Werner's application for exemption and the 
public comments. The Agency is not aware of data or information that 
would suggest that Werner has lapses in its safety management controls, 
especially those involving its supervision of CMV drivers. Because the 
exemption is restricted to Werner's CLP holders who have documentation 
that they have passed the CDL skills test and could operate the CMV at 
any time upon receipt of the CDL document from the State of domicile, 
the Agency believes the exemption will achieve a level of safety that 
is equivalent to, or greater than, the level of safety achieved without 
the exemption (49 CFR 381.305(a)). The exemption will enable these 
drivers to operate a CMV as a team driver without requiring that the 
accompanying CDL holder be on duty and in the front seat while the 
vehicle is moving. Because these drivers have already met all the 
requirements for a CDL but have yet to pick up the CDL document from 
their State of domicile, their safety performance is expected to be the 
same as any other newly credentialed CDL holder.
    FMCSA has previously granted similar exemptions to C.R. England--
initially in 2015, renewed in 2017 (82 FR 48889, Oct. 20, 2017)--and to 
CRST Expedited--initially in 2016, and subsequently renewed in 2018 (83 
FR 53149, Oct. 19, 2018) and recently to Wilson Logistics (86 FR 11050, 
Feb. 23, 2021).
    A copy of Werner's application for exemption is available for 
review in the docket for this notice.

VII. Terms and Conditions of the Exemption

Extent of the Exemption

    The exemption from 49 CFR 383.25(a)(1) will allow Werner's drivers 
who hold a CLP and have successfully passed a CDL skills test, to drive 
a CMV without a CDL holder being present in the front seat of the 
vehicle. The CDL holder must remain in the vehicle, but not in the 
front seat, at all times while the CLP holder is driving. The exemption 
is contingent upon Werner maintaining USDOT registration, minimum 
levels of public liability insurance, and not being subject to any 
``imminent hazard'' or other out-of-service (OOS) order issued by 
FMCSA. Each driver covered by the exemption must maintain a valid 
driver's license and CLP with the required endorsements, have in his or 
her possession documentation that he or she has passed the CDL skills 
test, not be subject to any OOS order or suspension of driving 
privileges, and meet all physical qualifications required by 49 CFR 
part 391.

Preemption

    In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR 
381.600, during the period this exemption is in effect, no State shall 
enforce any law or regulation applicable to interstate commerce that 
conflicts with or is inconsistent with this exemption with respect to a 
firm or person operating under the exemption. States may, but are not 
required to, adopt the same exemption with respect to operations in 
intrastate commerce.

Notification to FMCSA

    Under the exemption, the Werner must notify FMCSA within 5 business 
days of any accident (as defined in 49 CFR 390.5T), involving any of 
the CMVs operating under the terms of this

[[Page 18857]]

exemption. The notification must include the following information:
    a. Exemption Identifier and docket number, i.e., Werner, FMCSA-
2021-0118.
    b. Name of operating carrier and USDOT number.
    c. Date of the accident.
    d. City or town, and State, in which the accident occurred, or 
closest to the accident scene.
    e. Driver's name and license number.
    f. Co-driver's name (if any) and license number.
    g. Vehicle number and state license number.
    h. Number of individuals suffering physical injury.
    i. Number of fatalities.
    j. The police-reported cause of the accident, if provided by the 
enforcement agency.
    k. Whether the driver was cited for violation of any traffic laws, 
motor carrier safety regulations; and
    l. The total on-duty time accumulated during the 7 consecutive days 
prior to the date of the accident, and the total on-duty time and 
driving time in the work shift prior to the accident.

VIII. Termination

    FMCSA does not believe the motor carriers and drivers covered by 
this exemption will experience any deterioration of their safety 
record. However, should this occur, FMCSA will take all steps necessary 
to protect the public interest, including revocation of the exemption. 
FMCSA will immediately revoke the exemption for failure to comply with 
its terms and conditions.

Robin Hutcheson,
Acting Administrator.
[FR Doc. 2022-06796 Filed 3-30-22; 8:45 am]
BILLING CODE 4910-EX-P


