Controlled Substances and Alcohol Use and Testing: FirstGroup plc. Application for Exemption, 57741-57742 [2021-22614]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[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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