[Federal Register Volume 86, Number 198 (Monday, October 18, 2021)]
[Notices]
[Pages 57741-57742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22614]
[[Page 57741]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2020-0224]
Controlled Substances and Alcohol Use and Testing: FirstGroup
plc. Application for Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of final disposition; denial of application for
exemption.
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SUMMARY: FMCSA announces its decision to deny the FirstGroup plc.
(FirstGroup) exemption request. FirstGroup sought an exemption on
behalf of three of its subsidiaries, First Student, Inc., First
Transit, Inc., and First Mile Square, which employ commercial driver's
license (CDL) holders subject to drug and alcohol testing regulations.
FirstGroup requested an exemption from the requirement that an employer
must conduct a full query of FMCSA's Drug and Alcohol Clearinghouse
(Clearinghouse) before employing a CDL holder to perform safety-
sensitive functions. Under the requested exemption, in lieu of a full
query, FirstGroup proposed conducting a limited pre-employment query of
the Clearinghouse. If the limited query indicated that information
about the driver exists in the Clearinghouse, FirstGroup proposed
conducting a full query of the Clearinghouse, with the driver-applicant
providing electronic consent in the Clearinghouse, as required. In
addition, FirstGroup would conduct a second limited query within 30 to
35 days of the initial limited query and would conduct quarterly
limited queries on all its CDL drivers during the first year of the
exemption and semi-annual queries each year thereafter. FMCSA analyzed
the exemption application and public comments, and determined that the
application lacked evidence to show that the exemption would likely
achieve a level of safety that is equivalent to, or greater than, the
level that would be achieved absent such exemption. Therefore, FMCSA
denies FirstGroup's request for an exemption.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; 202-366-2722; [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 Documents
To view comments, go to www.regulations.gov, insert the docket
number ``FMCSA-2020-0224'' in the keyword box, and click ``Search.''
Next, sort the results by ``Posted (Newer-Older),'' choose the first
notice listed, and click ``Browse Comments.''
To view documents mentioned in this notice as being available in
the docket, go to www.regulations.gov, insert the docket number
``FMCSA-2020-0224'' in the keyword box, click ``Search,'' and choose
the document to review.
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 Federal Motor Carrier Safety Regulations
(FMCSRs). 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 (which may
be 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 Regulatory Requirements
Under 49 CFR 382.701(a)(2) employers of CDL holders must not employ
a driver subject to the testing requirements of 49 CFR part 382 to
perform safety sensitive functions, without first conducting a pre-
employment full query of the Clearinghouse. A full query allows the
employer to see any information that exists about a driver in the
Clearinghouse. An employer must obtain the driver's specific consent,
provided electronically through the Clearinghouse, prior to the release
of detailed information provided in response to the full query.
A limited query is permitted to satisfy the annual query
requirement in 49 CFR 382.701(b)(1), which pertains to currently
employed drivers. The limited query, conducted after obtaining the
driver's general consent, will tell the employer whether information
about the individual driver exists in the Clearinghouse, but will not
release that information to the employer. General consent is obtained
and retained outside the Clearinghouse and may be in written or
electronic form. If the response to a limited query indicates there is
information about the driver in the Clearinghouse, the employer must
conduct a full query, after obtaining the driver's specific consent,
within 24 hours, as required by 49 CFR 382.701(b)(3).
Further, as set forth in 49 CFR 382.701(c), the employer receives
an alert from FMCSA if any new information is added to a driver's
Clearinghouse record by another employer within the 30 days following
the date of a full query.
Applicant's Request
FirstGroup is a passenger transportation provider in both North
America and the United Kingdom employing more than 100,000 people
across several companies. Their employees operate, manage, and maintain
a combined fleet of 60,000 vehicles, including school buses. FirstGroup
requested an exemption from the requirement that an employer must not
employ a driver who is subject to drug and alcohol testing to perform
safety-sensitive functions prior to conducting a full query of the
Clearinghouse. FirstGroup has requested this exemption because it
believes the rule is significantly slowing FirstGroup's ability to hire
at the speed and level needed to keep pace with the demands of the
contracted school and transit transportation industry.
[[Page 57742]]
FirstGroup argued that the exemption is also needed because the delays
and administrative costs related to conducting a full query during its
driver hiring process results in substantial increased costs to the
company. FirstGroup further explained that obtaining consent from its
newly hired drivers, as required by the Clearinghouse regulations, is
challenging because the drivers are not familiar with the technology
needed to navigate through the Clearinghouse to give electronic consent
to FirstGroup.
IV. Method To Ensure an Equivalent or Greater Level of Safety
To ensure an equivalent level of safety, FirstGroup would conduct a
limited query, in lieu of a full query, before one of the employers in
its corporate family hires a driver. If the limited pre-employment
query shows that information exists in the Clearinghouse about the
driver, FirstGroup will then conduct a full query on the driver, with
the driver-applicant providing consent in the Clearinghouse as
required.
FirstGroup would conduct a second limited query within 30 to 35
days after the date the original limited pre-employment query was
submitted. FirstGroup explained that this would allow the company to
obtain and act on any new information added to the Clearinghouse since
the first limited pre-employment query was made. FirstGroup would also
conduct quarterly limited queries on all its CDL drivers for the first
year of the exemption, and for years 2 through 5 it would conduct semi-
annual limited queries on all its drivers.
FirstGroup indicated they would also look for opportunities to
conduct additional reasonable suspicion training for supervisors
throughout its network of 700 locations to further strengthen its drug
and alcohol testing program and improve safety. A copy of FirstGroup's
application for exemption is available for review in the docket for
this notice.
V. Public Comments
On March 16, 2021, FMCSA published notice of this application and
requested public comments (86 FR 14516). The Agency received five
comments. Advocates for Highway and Auto Safety, Citizens for Reliable
and Safe Highways, Parents Against Tired Truckers, The Trucking
Alliance, and The Truck Safety Coalition (Advocates, et al.) submitted
one joint comment opposing the exemption. Advocates, et al., commented
that ``The current application would result in a needless threat to
public safety by increasing the likelihood that a driver with
violations related to alcohol or drug use would be erroneously hired to
transport school children. Further, the applicant has failed to provide
FMCSA with the required analysis and supporting information
necessitated by statute and thus, should be denied.''
Advocates, et al., added: ``If the exemption was granted,
FirstGroup would no longer receive an affirmative notice if the record
of any of its candidates had changed within 30 days of the pre-
employment inquiry. Instead, FirstGroup would rely on its three
employees tasked with complying with the Clearinghouse requirements to
conduct these subsequent inquiries of all 6,500 applicants each year in
addition to the annual inquiries required of its approximately 35,000
Commercial Driver's License (CDL) operators. This would seem to place a
far greater burden on its employees than simply complying with the
current regulations and could very well result in a failure to identify
candidates prohibited from operating a school bus due to prior
violations.''
Four individual commenters also opposed the FirstGroup request. One
commenter Mr. Kennon Nilsen, stated, ``School bus drivers should be
held to the absolute highest standard when it comes to transporting
children. This exemption should not be allowed under any circumstance.
Speed of hiring and financial burden on a company should not be a
consideration. As a 30 plus year CDL holder I fully understand the
implications of a driver being hired who could have a history of drug
and alcohol violations behind the wheel.''
VI. FMCSA Safety Analysis and Decision
Employers who conduct a full query receive a notification from
FMCSA, in real time, if another employer, or prospective employer, adds
information to the Clearinghouse about that driver during the 30-day
period immediately following the full query. (Limited queries do not
trigger employer notifications.) FirstGroup, in order to compensate for
not conducting a full query, would instead conduct periodic limited
queries during a newly hired driver's first year of employment.
However, the first periodic limited query would not occur until 30-35
days following the initial pre-employment limited query. Consequently,
for the first 30-35 days of employment, FirstGroup would be unaware of
any newly added information in the driver's Clearinghouse record. This
knowledge gap poses an unacceptable safety risk, which does not exist
when an employer conducts a full query in accordance with 49 CFR
382.701(a). The Agency therefore finds that, under the conditions
proposed by FirstGroup, limited pre-employment queries would not likely
provide the same, or higher, level of safety as the current requirement
that a full query be conducted prior to allowing a driver to perform
safety sensitive functions. The application is therefore denied.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-22614 Filed 10-15-21; 8:45 am]
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