[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