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AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of application for exemption; request for comments.

SUMMARY:

FMCSA received an application from the National Cooperative Refinery Association (“NCRA”) and its affiliate Jayhawk Pipeline, LLC, for an exemption from the driver's physical qualification rule which requires drivers who operate commercial motor vehicles (CMVs) in interstate commerce to be medically examined and certified every 24 months. NCRA states an exemption is needed to extend the expiration of the qualification date up to eight days for 130 of its drivers who were qualified to operate a CMV on various dates in April Start Printed Page 13569of 2004. If granted, an exemption would allow NCRA to schedule its drivers' medical examinations in April of 2006, after the expiration of their physical qualification certification.

DATES:

Comments must be received by April 20, 2005.

ADDRESSES:

You may submit comments identified by any of the following methods. Please identify your comments by the FMCSA Docket Number FMCSA-2004-19933.

• Web Site: http://dms.dot.gov. Follow instructions for submitting comments to the docket.
• Fax: (202) 493-2251.
• Mail: U.S. Department of Transportation, Docket Management Facility, 400 Seventh Street, SW., Plaza level, Washington, DC 20590-0001.
• Hand Delivery: Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 am and 5 pm, Monday through Friday, except Federal Holidays.
• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting comments.

Docket: For access to the Docket Management System (DMS) to read background documents or comments received, go to http://dms.dot.gov at any time or to the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, 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 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 DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.

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FOR FURTHER INFORMATION CONTACT:

Ms. Maggi Gunnels, (202) 366-4001, Division of Physical Qualifications, Office of Bus and Truck Standards and Operations, FMCSA, 400 Seventh Street, SW., Washington, DC 20590-0001; e-mail address: maggi.gunnels@fmcsa.dot.gov. Office hours are from 7:45 a.m. to 4:15 p.m., et, Monday through Friday, except Federal holidays.

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SUPPLEMENTARY INFORMATION:

Background

On December 8, 1998 (63 FR 67600), FMCSA issued an interim final rule adding part 381 to the Federal Motor Carrier Safety Regulations (FMCSRs) and implementing section 4007 of the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107). Section 4007 of TEA-21 amended 49 U.S.C. 31315 and 31136 concerning waivers and exemptions. On August 20, 2004, FMCSA issued a final rule adopting the interim regulations in part 381 as final (69 FR 51589).

The regulations (49 CFR part 381) established the procedures one must follow to request waivers and apply for exemptions from the FMCSRs, and the procedures that are used to process them. FMCSA must 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 exemption, FMCSA must publish a notice in the Federal Register identifying the person who will receive the exemption, the provisions from which the person will be exempt, the effective period, and the 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.

NCRA's Request for an Exemption

The National Cooperative Refinery Association (NCRA) and its affiliate, Jayhawk Pipeline, LLC, have requested an exemption from the physical qualification of drivers provision at 49 CFR 391.45(b)(1). A copy of NCRA's application is in the docket referenced at the beginning of this notice. This rule requires that drivers must be medically examined and certified as physically qualified every 24 months. FMCSA is responsible for administering and enforcing the FMCSRs. NCRA complains that the medical examination rule is enforced as 24 months to the day in Kansas and Nebraska. It seeks an exemption to extend the expiration of the qualification date up to “eight days” for 130 of its drivers who were qualified to operate a CMV on April 5, 6, 8, 12, 13, and 14 of 2004. Such relief would allow NCRA to schedule and perform its drivers' medical examinations in April of 2006 after their physical qualification certification had expired. This means, for example, that an employee who was examined and certified on April 5, 2004, could be scheduled for his/her physical as late as April 13, 2006. NCRA states the nature of its business is less demanding during the first two weeks of each month, thus making it desirable to schedule and perform medical examinations during that particular time. NCRA opines that medical examinations could also be cancelled due to adverse weather, thereby resulting in medical cards expiring if there is not some flexibility provided in the expiration date.

NCRA uses the University of Kansas Medical Center (KU) to perform medical examinations. KU provides a mobile service that includes a medical team of doctors and nurses who are knowledgeable about DOT and OSHA requirements. Before KU was hired, NCRA drivers obtained medical examinations from the physician of their choice, usually in rural areas of Kansas, Nebraska, and Oklahoma. NCRA states using one medical team to perform the medical examinations has proven effective in eliminating potential violations.

NCRA points to § 396.17(c) relating to periodic inspections in support of its application. It suggests that if similar language were adopted in § 391.45(b)(1), NCRA would not need this exemption. Section 396.17(c) states, in part: A motor carrier shall not use a commercial motor vehicle unless each component identified in appendix G has passed an inspection in accordance with the terms of this section at least once during the preceding 12 months and documentation of such inspection is on the vehicle.

Lastly, NCRA claims it would suffer unnecessary economic hardship for a minor technical date issue if we do not grant its request.

Request for Comments

In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comment from all interested persons on this exemption application. All comments received before the close of business on the comment closing date shown in the DATES section above will be considered and will be available for examination in the docket. Comments received after the comment closing date will be filed in the public docket and will be considered to the extent possible. However, FMCSA may make its decision at any time after the comment period closes. FMCSA also will continue to file in the public docket relevant information that becomes Start Printed Page 13570available after the comment closing date. Interested persons should continue to examine the docket for new material.

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