Driver Qualification Files: Application for Exemption; Knight-Swift Transportation Holdings, Inc. |
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Topics: Knight-Swift Transportation
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James W. Deck
Federal Motor Carrier Safety Administration
4 November 2020
[Federal Register Volume 85, Number 214 (Wednesday, November 4, 2020)]
[Notices]
[Pages 70225-70228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24472]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2019-0287]
Driver Qualification Files: Application for Exemption; Knight-
Swift Transportation Holdings, Inc.
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; granting of application of
exemption.
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SUMMARY: FMCSA announces its decision to grant, with conditions,
Knight-Swift Transportation Holdings, Inc.'s (Knight-Swift) application
for an exemption from the requirement that motor carriers rely on the
motor vehicle record (MVR) of their drivers holding a commercial
driver's license (CDL) as proof of the driver's medical qualifications
when the driver undergoes a new medical exam during the initial period
of employment as a condition of employment. Knight-Swift would rely on
the medical long form for newly hired drivers and then rely on the MVR
when the subsequent annual review of the driving record is performed.
FMCSA analyzed the exemption application and public comments and
determined that the applicant would achieve a level of safety that is
equivalent to, or greater than, the level that would be achieved absent
such exemption.
DATES: The exemption is effective December 4, 2020. The exemption
expires November 4, 2025.
ADDRESSES:
Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time or visit Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday,
except Federal holidays. The on-line Federal Docket Management System
(FDMS) is available 24 hours each day, 365 days each year.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and
Carrier Operations Division; Office of
[[Page 70226]]
Carrier, Driver and Vehicle Safety Standards; Telephone: 202-366-4325.
Email: MCPSD@dot.gov. If you have questions on viewing or submitting
material to the docket, contact Docket Services, telephone (202) 366-
9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to www.regulations.gov and insert
the docket number, ``FMCSA-2018-0347 in the ``Keyword'' box and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document to review. If you do not have access to the internet, you
may view the docket online by visiting the Docket Management Facility
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.,
e.t., 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 Docket Operations.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant
exemptions from the Federal Motor Carrier Safety Regulations. FMCSA
shall establish terms and conditions for each exemption to ensure that
it will likely achieve a level of safety that is equivalent to, or
greater than, the level that would be achieved absent such exemption.
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 Agency's
decision must be published in the Federal Register (49 CFR 381.315(b))
with the reason for the granting or denial, and, if granted, the
specific person or class of persons receiving the exemption and the
regulatory provision or provisions from which the exemption is granted.
The notice must specify the effective period of the exemption (up to 5
years) and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).
III. Request for Exemption
Knight-Swift has adopted a company policy of requiring all newly
hired drivers to undergo a complete medical examination. Knight-Swift
explains that it believes this policy combats medical fraud and ensures
that the driver is medically qualified at the time of hiring. This
medical examination upon hiring is not required by the FMCSRs (unless
the driver's current medical certificate has expired) but it triggers
the requirement of 49 CFR 391.51(b)(7(ii) that Knight-Swift obtain the
results of that examination from the SDLA in the form of an updated
MVR. Knight-Swift objects to the cost and inconvenience of obtaining
the MVR a second time when it recently obtained the MVR pursuant to
hiring as required by 49 CFR 391.23(a)(1). It asserts that it is
pointless to obtain ``information that in most cases we have already
verified within the previous few days.'' Knight-Swift seeks an
exemption from the requirement to obtain a new MVR when the medical
examination triggering the requirement was of a newly hired Knight-
Swift driver.
Knight-Swift provided data to support their exemption application
and this data is included in the docket for this application. The
provided data included a sample pool of 5,722 newly hired Knight-Swift
drivers with valid 2-year medical cards. After undergoing Knight-
Swift's hiring process, 19% of the sample pool drivers were downgraded
to a 1-year certification and 2.1% were disqualified. Knight-Swift did
not indicate whether it knew if these drivers (those holding a CDL)
provided the new certification to the SDLAs issuing their licenses.
IV. Method To Ensure an Equivalent Level of Safety
To ensure an equivalent level of safety, Knight-Swift proposes to
include in the driver qualification file the newly hired driver's
medical examination report in lieu of obtaining a second MVR.
V. Public Comments
On December 23, 2019, FMCSA published notice of Knight-Swift's
application and requested comments (84 FR 68287). Three comments were
received from individuals and all opposed granting the exemption.
Michael Millard, made the following statement: ``To extend the
exemption to such a large base of drivers would basically nullify the
need for any carrier to pull Commercial Driver's Licensing Information
System (CDLIS) with the medical status on the driver's CDLIS report
potentially resulting in multiple carriers following suit.'' Art Meyer
made the following opposing argument ``I would highly recommend that
this exemption not go through as I am a fleet manager and it never
ceases to amaze me that the driver has not certified his medical card
with the State and is thus driving on a downgraded D.L. We all should
have to follow the rules no matter how big or how small a company we
are and to file to [sic] not have to follow the rules tells me why we
see so many Swift wrecks on the highways and social media that we do.''
Lastly, Jean Publiee argued that Knight-Swift should not be granted an
exemption and emphasized that full documentation of a driver should be
required.
VI. FMCSA Decision
The FMCSA believes Knight-Swift's exemption application has merit
and with necessary terms and conditions, will allow the applicant to
achieve a level of safety equivalent to what is required under the
current safety regulations, provided Knight-Swift complies with the
imposed terms and conditions. Under current regulations, CMV drivers
required to have a commercial driver's license (CDL) or a commercial
learner's permit (CLP) are required to provide the SDLA with the
original or a copy of the medical examiner's certificate (MEC) (49 CFR
383.71(h)(1) and (3)). This includes an initial MEC and ``each
subsequently issued medical examiner's certificate''. SDLAs are
required to post this information to the driver's CDLIS driver record
within 10 calendar days (49 CFR 383.73(o)(1)). If the driver does not
provide an MEC to the SDLA, either at the time of a licensing
transaction, when the MEC provided expires or is voided, or after
obtaining a subsequently issued MEC, then the SDLA must within 10
calendar days change the driver's status in the CDLIS driver record to
``not certified'' (49 CFR 383.73(o)(2)). If this status change occurs,
the driver is no longer physically qualified to operate a CMV that
requires a CDL or CLP (49 CFR 391.41(a)(2)). The SDLA must notify the
CDL or CLP holder of the status as ``not certified'' and begin the
process of downgrading the license, to be completed within 60 days (49
CFR 383.73(o)(4)).
In addition, within 30 days after employing a CMV driver, motor
carriers are required to obtain the motor vehicle record from the
current licensing SDLA and place a copy in the driver's driver
qualification file (49 CFR 391.23(a)(1)
[[Page 70227]]
and (b)). For drivers required to have a CDL or CLP to operate a CMV,
the CDLIS motor vehicle record must be obtained and must show that the
driver was properly certified as physically qualified (49 CFR
391.23(m)(2) and (3)). The driver's updated MVR showing that he or she
was properly certified as physically qualified by submitting the MEC to
the SDLA, must be retained in the driver qualification file. This is
the requirement for which Knight-Swift is requesting an exemption. A
CDL driver who is ``without medical certification status information on
the CDLIS motor vehicle record is designated `not-certified' to operate
a CMV in interstate commerce'' (49 CFR 391.51(b)(7(ii)). From the MVR,
the carrier can verify both that the driver is currently physically
qualified and that the driver has a valid CDL that is in effect.
The carrier reviews the MVR as required under the current
regulations and the record provides proof that the prospective employee
has both a valid CDL and medical certification. The proof of the
medical certification comes from the medical certificate issued by a
healthcare provider on the National Registry, as long as it has been
provided to the SDLA and is entered on the CDLIS driver record.
Knight-Swift has implemented a process through which each newly
hired driver must undergo a medical examination by one of its
healthcare professionals listed on the National Registry. For all
drivers receiving a new medical certificate, the information would be
provided to the SDLA for the driver's State of domicile so that the
certificate would then serve as the most up-to-date information
captured on the MVR. And because the initial MVR obtained for the newly
hired driver no longer reflects the most recent medical examination,
the carrier needs an exemption. To provide an equivalent level of
safety under the requested exemption, Knight-Swift will be required to
obtain from the driver proof that the subsequently issued medical
examiner's certificate issued as a result of the new examination
required by Knight-Swift has been provided to the SDLA. Instead of the
MVR, Knight-Swift can obtain other proof for inclusion in the driver
qualification file, such as a receipt from the SDLA, a certification
from the driver that the subsequently issued certificate has been
provided to the SDLA, or any other reliable proof that such action has
occurred.
The FMCSA believes that under these unique circumstances, allowing
Knight-Swift to rely on its records of medical certificates for the
first year of employment for newly hired drivers would not compromise
safety or enforcement of the medical certification requirements for CDL
holders. First, the carrier has reviewed the MVR to ensure that each
newly hired driver has a valid CDL and the carrier is aware of
convictions for traffic offenses that have been posted to the MVR, if
the prospective employees have exhibited safety performance problems.
Second, Knight-Swift's review of the MVR indicates the newly hired CDL
holders were medically certified prior to seeking employment at the
company, and the company is aware of the expiration date of that
medical certification. The subsequent medical examination provides an
extra level of safety assurance for the company by having its own
medical examiner verify that each newly hired driver meets FMCSA's
physical qualifications standards. Compliance with the condition for
obtaining proof that the subsequently issued medical certificate was
provided to the SDLA will also ensure that the driver's CDL remains
valid. In the event a driver does not pass the company-mandated
physical examination, the driver is not allowed to operate CMVs for
Knight-Swift until the medical issue(s) are resolved.
In regards to enforcement of the medical certification requirements
by Federal or State personnel, they would continue to review the
driving record electronically to identify the most up-to-date medical
certificate. After the medical certificate prepared by the Knight-Swift
medical examiner has been provided to the SDLA, Federal and State
personnel would then be able to obtain the information as the most
recent assessment of the driver's medical qualification status and the
validity of the CDL or CLP.
The Agency believes Knight-Swift's policy of requiring newly hired
drivers to undergo a medical exam, although the drivers have a valid
medical exam reflected on their MVR at the time of hire, is likely to
achieve an equivalent or greater than level of safety than would be
achieved absent such exemption.
VII. Terms and Conditions
FMCSA grants Knight-Swift an exemption from the medical
certification requirements in 49 CFR 391.51(b)(7)(ii) to permit the
company to use newly hired drivers without having to obtain a MVR that
reflects the latest medical certification status during the first year
of employment. Knight-Swift is subject to the following terms and
conditions:
(1) Knight-Swift must maintain the initial MVR reviewed prior to
hiring the driver showing the driver was medically certified by a
healthcare professional on the Agency's National Registry of Certified
Medical Examiners;
(2) The medical examiner's report the company will rely upon for
the first year of employment must be prepared by a healthcare
professional on the Agency's National Registry of Certified Medical
Examiners and be available for inspection by Federal or State
enforcement personnel during an investigation or compliance review;
(3) Knight-Swift must obtain reliable proof that the new medical
examiner's certificate was provided by the driver to the SDLA and
include such proof in the driver qualification file.
VIII. Preemption of State Laws and Regulations
During the period this exemption is in effect, no State shall
enforce any law or regulation that conflicts with or is inconsistent
with this exemption with respect to a firm or person operating under
the exemption (49 U.S.C. 31315(d)).
IX. Notification to FMCSA
Knight-Swift must provide a quarterly report to FMCSA concerning
newly hired drivers who are downgraded from a 2-year medical
certificate to a shorter duration certificate, or medically
disqualified upon completion of the company-mandated medical
examination. The report must provide:
Driver's full name;
CDL number and State of issuance;
Medical examiner's name and FMCSA-issued National Registry
identification number for the examination recorded on the MVR prior to
the Knight-Swift medical exam.
Examination date and expiration date for the medical exam
noted on the MVR;
Knight-Swift medical examiner's name and FMCSA-issued
National Registry identification number.
Knight-Swift examination date and expiration date for the
medical exam.
The report must be transmitted electronically in a manner to
protect drivers' Personally Identifiable Information (PII).
Termination
FMCSA does not believe this exemption would result in Knight-Swift
or any of its newly hired drivers experiencing a decrease in safety
performance. Interested parties possessing information that would
otherwise show that the exemption has resulted in a lower level of
safety than what would be observed absent the exemptions should
immediately notify FMCSA.
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The Agency will evaluate any information submitted and, if safety
is being compromised or if the continuation of this exemption is
inconsistent with 49 U.S.C. 31315(b)(4), FMCSA will immediately take
steps to revoke the exemption.
James W. Deck,
Deputy Administrator.
[FR Doc. 2020-24472 Filed 11-3-20; 8:45 am]
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