03-12173. 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 application for exemption; request for comments.

SUMMARY:

This notice announces the FMCSA's receipt of an application from Mayflower Transit LLC and United Van Lines LLC for exemptions from certain Federal controlled substance and alcohol testing requirements. The applicants request exemptions that would allow them to impose controlled substance and alcohol testing on their non-CDL (commercial driver's license) drivers using the same standards, forms and requirements, and in the same random testing pool, as their CDL drivers.

DATES:

Comments must be received on or before June 16, 2003.

ADDRESSES:

Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at http://dmses.dot.gov/​submit. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m. e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard, or you may print the acknowledgment page that appears after submitting comments electronically.

FOR FURTHER INFORMATION CONTACT:

For information about the exemption application in this notice, Ms. Kaye Kirby, Office of Bus and Truck Standards and Operations, [phone]; for information about legal issues related to this notice, Mr. Mike Falk, Office of the Chief Counsel, [phone], FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

Section 4007 of the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107, now codified at 49 U.S.C 31315 and 31136), requires FMCSA to publish a notice in the Federal Register for each exemption requested, explain that the request has been filed, provide the public with an opportunity to inspect the safety analysis and any other relevant information known to the agency, and provide an opportunity to comment on the request. Prior to granting a request for an exemption, the agency must publish a notice in the Federal Register identifying the person or class of persons who will receive the exemption, the provisions from which the person will be exempt, the effective period, and all terms and conditions of the exemption. The terms and conditions established by FMCSA must ensure that the exemption will likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved by complying with the regulation.

On December 8, 1998, FMCSA published an interim final rule implementing section 4007 of TEA-21 (63 FR 67600). The regulations at 49 CFR part 381 establish the procedures to be followed to request waivers and to apply for exemptions from the Federal Motor Carrier Safety Regulations, and the provisions used to process them.

Exemption Request

Mayflower and United Van Lines have 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 note that for purposes of administrative efficiency and to promote safety in their operations, Mayflower and United Van Lines have 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 regulations. This request for exemptions was prompted by the results of a compliance review conducted by the Federal Motor Carrier Safety Administration during which Mayflower was cited for including non-CDL drivers in its controlled substances and alcohol testing program. Consequently, Mayflower and United Van Lines are requesting 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).

Mayflower and United Van Lines propose two conditions for their exemption that they believe would allow the FMCSA to monitor whether they have met the required annual random testing percentage. First, they intend to mark each driver controlled substance and alcohol testing record with either “CDL driver” or “non-CDL driver” so that an enforcement officer can readily determine which records are for drivers subject to 49 CFR part 383 Commercial Driver's License Standards; Requirements and Penalties. Secondly, they will establish a random testing program that will test all drivers (both CDL drivers and non-CDL drivers) for controlled substances and alcohol at an annual rate of at least 15 percent for alcohol and at least 55 percent for controlled substances. The applicants believe by implementing these two conditions they will meet the minimum annual random testing percentage while still having a single pool of drivers for random selection.

Request for Comments

In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA is requesting public comment from all interested persons on these exemption applications. All comments received before the close of business on the comment closing date, indicated at the beginning of this notice, will be considered and will be available for examination in the docket at the location listed under the address section of this notice. Comments received after the comment closing date will be filed in the public docket and will be considered to the extent practicable, but FMCSA may make its decision at any time after the close of the comment period. 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 continue to examine the public docket for new material.

Authority: 49 U.S.C. 31136 and 31315; and 49 CFR 1.73.

Issued on: May 9, 2003.

Pamela M. Pelcovits,

Acting Associate Administrator for Policy and Program Development.