[Federal Register Volume 72, Number 128 (Thursday, July 5, 2007)]
[Notices]
[Pages 36748-36750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13021]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-28480]


Commercial Driver's License (CDL) Standards: National 
Agricultural Aviation Association (NAAA) Application for Exemption

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

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

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SUMMARY: FMCSA announces that it has received from the National 
Agricultural Aviation Association (NAAA) an application for an 
exemption from the commercial driver's license (CDL) requirements. NAAA 
requests that commercial motor vehicle drivers working with 
agricultural aircraft operators be exempt from the required knowledge 
and skills tests and be eligible to receive a restricted CDL. NAAA also 
requests an exemption to allow these restricted CDL holders to 
transport fuels used to power agricultural aircraft engines if 
transported in quantities of 1,000 gallons or less. NAAA believes that 
relief from the CDL regulations will relieve a current economic 
hardship and will provide parity in the CDL regulations compared to 
other, nearly identical farm-related services. NAAA believes that the 
evidence provided in the exemption request demonstrates that the level 
of safety achieved under the exemption would be equal to or greater 
than the level of safety that prevails without the exemption. FMCSA 
requests public comment on the NAAA application for exemption.

DATES: Comments must be received on or before August 6, 2007.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FMCSA-2007-28480 using any of the following methods:
     Web site: http://dmses.dot.gov/submit/. Follow the 
instructions for submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Ave. SE., Washington, DC 
20590.
     Hand Delivery: Room W12-140, Ground Floor of West 
Building, U.S. Department of Transportation, 1200 New Jersey Ave. SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the Agency name and 
docket number for this notice. Note that all comments received will be 
posted without change to http://dms.dot.gov including any personal 
information provided. Please see the Privacy Act heading for further 
information.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or Room W12-
140, Ground Floor of West Building, U.S. Department of Transportation, 
1200 New Jersey Ave. SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The DMS is 
available 24 hours each day, 365 days each year. 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 on-line.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (65 FR 19477, Apr. 11, 
2000). This statement is also available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations, MC-PSD, Federal Motor Carrier Safety Administration, 
telephone 202-366-4009, E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

[[Page 36749]]

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. On December 8, 1998, the Federal Highway 
Administration's Office of Motor Carriers, the predecessor to FMCSA, 
published an interim final rule implementing sec. 4007 (63 FR 67600). 
On August 20, 2004, FMCSA published a final rule (69 FR 51589) on this 
subject. Under this rule, 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 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)). If the Agency denies the request, it must state the reason 
for doing so. If the Agency grants the exemption, the notice must 
specify the person or class of persons receiving the exemption, and the 
regulatory provision or provisions from which exemption is being 
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)).

Application for Exemption

    The NAAA is a trade association that represents over 1,300 members 
in 46 states. It requests that commercial motor vehicle (CMV) drivers 
supporting agricultural aircraft operations be exempted from the 
required knowledge and skills tests required for a CDL and that these 
individuals be eligible to receive restricted CDLs as described in 49 
CFR 383.3(f). In addition, NAAA further requests an exemption from 49 
CFR 383.3(f)(3)(v) that would allow these restricted CDL holders to 
transport fuels used to power agricultural aircraft engines, if 
transported in quantities of 1,000 gallons or less.
    NAAA member operators/pilots are licensed as commercial applicators 
who use aircraft to enhance food and fiber production, protect 
forestry, and control health-threatening pests. According to the NAAA, 
as a part of this operation, a CMV will be driven to a satellite strip 
where the plane is normally located. The driver will serve as a 
``mixer-loader'' of the crop protection products that go into the 
agricultural aircraft, and will also refuel the aircraft at the 
satellite strip. These activities are normally conducted at a location 
where the aerial application operators have permanent fuel tanks and 
mixing and loading facilities for crop-protection products. However, at 
times they work so far from their permanent facility that it is cost-
effective to use a satellite landing strip and an on-site fuel truck. 
The fuel is pumped from the fixed base tanks into the fuel truck and 
then the fuel truck transports it to the satellite strip for the 
agricultural aircraft. More trips are made to transport fuel to the 
satellite strip as needed and the CMV returns to the fixed-base 
location at the end of the day. Some of the vehicles may also be 
equipped with crop protection products such as fertilizers, 
insecticides, fungicides, or herbicides. Due to the nature of this 
work, the truck drivers normally are traveling on rural, less-
trafficked roads.
    NAAA requests that these drivers be permitted to receive restricted 
CDLs without knowledge and skills testing primarily to expand the labor 
pool of available drivers. A shortage of available drivers may prevent 
use of a satellite airstrip closer to the application site. This 
results in an aircraft having to travel back to its home base for each 
load instead of using a closer landing area. In this case more fuel is 
burned to travel to the application site and more time elapses, 
resulting in fewer application jobs performed during the day. One 
operator surveyed responded that he loses $2,500 to $5,000 per day as a 
result of not having an available CDL driver. The granting of the 
exemption would save on fuel costs, which, according to the NAAA, have 
increased 142% for aerial application operations in the last three 
years.
    In a recent survey, NAAA asked its members if they had experienced 
difficulties finding CDL drivers to transport chemicals and fuel to 
satellite application strips, and over 95% answered ``yes.'' In 
addition, over 90% of the respondents answered that they had found 
themselves without a CDL driver for such vehicles during the aerial 
application season. One explanation offered for this situation is that 
qualified CDL drivers would be more interested in all-year driving 
work, rather than the seasonal work that driving for an aerial 
application operation offers. This factor, coupled with the fact that 
most aerial application operations are located in rural areas, makes 
for a smaller pool of available, qualified drivers.
    NAAA also states finding Department of Motor Vehicle (DMV) 
locations and scheduling testing times to take the knowledge and skill 
tests required for a CDL can be difficult. Its survey indicates that 
only a select number of DMV locations offer the knowledge and skill 
tests required to obtain a CDL. Over 76% of the respondents indicated 
that only a limited number of these DMV locations are readily 
available. This is an additional handicap, as these operators must take 
the time and resources to travel significant distances for a potential 
employee to be tested.
    NAAA also requests an exemption from 49 CFR 383.3(f)(3)(v) 
provisions that limit restricted CDL holders to transporting diesel 
fuel in quantities of 3,785 liters, or 1,000 gallons or less. There are 
two fuels used in agricultural aircraft operations. One is Jet A, which 
is used to fuel turbine engines. The second is Avgas, which is used to 
fuel piston-engine aircraft. Diesel and Jet A fuel are very similar in 
terms of chemical characteristics. The flash point for the two 
chemicals is nearly identical at 100 degrees, and Avgas has a lower 
flashpoint than Jet A and diesel.
    The time period in which the exemption would usually be needed is 
the 180 days from the beginning of April through the end of September. 
This parallels the main season for growing crops in the U.S.--the 
period aerial applicators are most active. However, because climatic 
conditions vary around the country, the season of an agricultural 
aircraft operation depends on where the business is located. If a 
restricted CDL exemption is granted, NAAA therefore requests that the 
operator be able to choose the six-month period that best matches the 
growing conditions in the area in which the business is located.
    NAAA's justification for including agricultural aircraft operations 
among the types of employers that may use restricted CDL holders, as 
listed in section 383.3(f), is that these types of operations are 
extremely similar to agri-chemical businesses, farm retail outlets, 
etc. Agricultural aircraft operators transport the same types of 
materials, such as fertilizers, pesticides and fuel, and in the same 
quantities as the farm-related industries. Furthermore, agricultural 
aircraft drivers are transporting these materials on the same rural, 
lightly-trafficked roads on which farm-related industries are 
traveling.
    NAAA's response to ensuring an equivalent level of safety for the

[[Page 36750]]

proposed exemption is that these operations will be required to ensure 
that they employ safe drivers and that safe equipment is used on the 
roads. NAAA states that section 383.3(f)(3) requires restricted-CDL 
holders to have a ``good driving record.'' These operators are required 
to perform random drug tests on employees and to ensure that drivers 
have hazardous materials endorsements, which require a background check 
by the Transportation Security Administration. Furthermore, under 49 
CFR part 180 Subpart E, ``Qualification and Maintenance of Cargo 
Tanks,'' regulations are in place to ensure the structural integrity of 
the cargo tanks used to transport fuel in the event that the tanks are 
involved in a crash.
    A recent NAAA survey found that 95.3% of aerial application 
businesses surveyed had never been involved in any type of accident 
while transporting fuel or chemicals. The results also show that 92.9% 
of those surveyed travel on roads in rural areas with minimal traffic 
and that a vehicle transporting fuel or chemicals travels an average of 
57.81 miles per day. NAAA notes that several operators also mentioned 
that they do not travel this many miles every day. In many cases, 
driving is done only once or twice a week to a satellite facility.
    To ensure that the current safety level is preserved, NAAA states 
that it is in a strong position to provide meaningful continuing 
education on highway safety to a large portion of the small business 
owners of agricultural aviation operations throughout the country 
through its education program known as the Professional Aerial 
Application Support System (PAASS). The focus of the PAASS program is 
to educate individuals in the aerial application industry on the latest 
techniques and technologies to mitigate agricultural aviation flying 
accidents and off-target application incidents, in addition to 
enhancing the security of aerial application operations. According to 
NAAA, in addition to educating its industry on security and pilot 
safety, PAASS can also be used to further educate its members on 
highway transportation safety issues.
    A copy of the NAAA exemption application is available for review in 
the docket for this notice.

Request for Comments

    In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA 
requests public comment on NAAA's application for exemption from the 49 
CFR part 383 CDL requirements. The Agency will consider all comments 
received by close of business on August 6, 2007. 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: June 26, 2007.
Larry W. Minor,
Acting Associate Administrator for Policy and Program Development.
[FR Doc. E7-13021 Filed 7-3-07; 8:45 am]
BILLING CODE 4910-EX-P