[Federal Register Volume 69, Number 8 (Tuesday, January 13, 2004)]
[Notices]
[Pages 2040-2041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-595]


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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2003-14911]


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 denial of application for exemptions.

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

SUMMARY: The FMCSA denies Mayflower Transit LLC and United Van Lines' 
LLC application for exemptions from certain Federal controlled 
substance and alcohol testing requirements. The applicants requested 
exemptions that would allow them to impose controlled substance and 
alcohol testing on their non-CDL (commercial drivers license) drivers 
using the same standards, forms and requirements, and in the same 
random testing pool, as their CDL drivers. The FMCSA denies the 
exemptions because Mayflower Transit LLC and United Van Lines LLC did 
not explain how they would achieve a level of safety that is equivalent 
to, or greater than, the level of safety that would be obtained by 
complying with the random controlled substances and alcohol testing 
requirements.

EFFECTIVE DATE: January 13, 2004.

FOR FURTHER INFORMATION CONTACT: Ms. Kaye Kirby, Office of Bus Truck 
Standards and Operations, Physical Qualifications Division, (202) 366-
3109, Department of Transportation, 400 Seventh Street, SW., 
Washington, DC 20590. Office hours are from 7:15 a.m. to 4:15 p.m., 
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: Public Participation: The Docket Management 
System (DMS) is available 24 hours each day, 365 days each year. You 
can get electronic submission and retrieval help guidelines under the 
``help'' section at: http://dms.dot.gov.
    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 the 
Department of Transportation's complete Privacy Act Statement in the 
Federal Register (FR) published on April 11, 2000 (volume 65, Number 
70; Pages 19477-78) or read it on the DMS ``help'' section.

Background

    On May 15, 2003, 68, FR, 26374, the FMCSA published a Notice of its 
receipt of an application from Mayflower and United Van Lines that 
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 noted

[[Page 2041]]

that for purposes of administrative efficiency and to promote safety in 
their operations, Mayflower and United Van Lines 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 (DOT) regulations. This request 
for exemptions was prompted as a result of a compliance review 
conducted by FMCSA during which Mayflower was cited for including non-
CDL drivers in its controlled substances and alcohol testing program. 
Consequently, Mayflower and United Van Lines requested 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).
    Sections 31315 and 31136 of title 49 of the United States Code 
provide the authority to grant exemptions from certain portions of the 
Federal Motor Carrier Safety Regulations (FMCSRs). Exemptions provide 
time-limited regulatory relief from one or more FMCSRs given to a 
person or class of persons subject to the regulations, or who intend to 
engage in an activity that would make them subject to the regulations. 
Exemptions provide the person or class of persons with relief from the 
regulations for up to two years and may be renewed. These sections also 
require the agency to ensure that the terms and conditions for the 
exemptions would achieve a level of safety that is equivalent to, or 
greater than, the level of safety that would be obtained by complying 
with the regulations when evaluating applications for exemptions.

Discussion of Docket Comments

    The FMCSA received eight comments to the notice announcing the 
FMCSA's receipt of the application from Mayflower and United Van Lines. 
The Drug and Alcohol Testing Industry Association (DATIA), Lawrence C. 
Hartung, Ronald K Edwards, Michael Silverman, Renee Lane, and Thomas E. 
Swayne were opposed to granting exemptions to Mayflower and United Van 
Lines. These commenters believe the management of two pools within the 
same company, one regulated and one not regulated, is a relatively 
common task, which can be managed easily by someone within the company, 
by Third Party Administrators (TPA), or Medical Review Officers (MROs). 
This is currently done on a daily basis with little additional 
administrative work, and the overall effort to manage the two pools is 
negligible. In addition, commenters noted that the overall size of 
these two employers could potentially skew statistical data for the 
entire industry if they were allowed to include non-CDL employees in 
with CDL employees. It was noted that for the safety of the general 
public, the DOT has set standards requiring all CDL drivers to be 
tested at a certain rate each year. Adding all the non-CDL drivers and 
employees to the same random pool would prevent them from achieving the 
required rate of testing. DATIA stated, ``to allow employers to include 
non-covered employees in the same pool as FMCSA covered employees would 
have far reaching negative effects on the FMCSA drug and alcohol 
testing program.''
    Another commenter, Joe Kroening, appeared to be in favor of 
granting the request and noted that he fully supported the testing of 
all drivers and helpers in the industry whether or not they hold CDLs. 
The remaining commenter did not express opposition or support for 
granting Mayflower and United Van Lines an exemption.

FMCSA Decision

    The FMCSA has carefully reviewed the Mayflower and United Van Lines 
application for exemptions from certain Federal controlled substance 
and alcohol testing requirements. The agency agrees with certain 
commenters that the administrative burden is not overwhelming, and the 
management of two pools within the same company is a relatively common 
task managed easily either within the company, or by TPAs and MROs. 
Federal controlled substances and alcohol testing requirements (49 CFR 
382.105, 49 CFR 382.305(I)(1), and 49 CFR 40.13(a), (b)(c) and (d)) are 
designed to keep testing standards high in the interest of public 
safety. Mayflower and United Van Lines have not demonstrated how their 
proposal would achieve a level of safety that is equivalent to, or 
greater than, the levels of safety that would be obtained by complying 
with the controlled substances and alcohol testing requirements. 
Consequently, the FMCSA is denying the Mayflower and United Van Lines 
request for exemptions from the Federal requirements for controlled 
substance and alcohol testing.

    Issued on: January 6, 2004.
Rose A. McMurray,
Associate Administrator, Policy and Program Development.
[FR Doc. 04-595 Filed 1-12-04; 8:45 am]
BILLING CODE 4910-EX-P