[Federal Register Volume 79, Number 130 (Tuesday, July 8, 2014)]
[Notices]
[Pages 38659-38661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-15958]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0147]


Driver Qualifications: Skill Performance Evaluation; Virginia 
Department of Motor Vehicles' Application for an Exemption

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: FMCSA announces its decision to grant an exemption to the 
Virginia Department of Motor Vehicles (Virginia), on behalf of truck 
and bus drivers who are licensed in the Commonwealth of Virginia and 
need a Skill Performance Evaluation (SPE) certificate from FMCSA to 
operate commercial motor vehicles (CMVs) in interstate commerce. The 
exemption will enable Virginia-licensed drivers subject to the Federal 
SPE requirements under 49 CFR 391.49, to fulfill the Federal 
requirements with a State-issued SPE. The State-issued SPE will be 
based on standards, processes and procedures comparable to those used 
by FMCSA, and the State will maintain copies of all evaluation forms 
and certificates issued to enable FMCSA to conduct periodic reviews of 
the State's program. Virginia licensed drivers who receive the State-
issued SPE are allowed to operate CMVs in interstate commerce, anywhere 
in the United States.

DATES: The exemption is effective July 8, 2014. The exemption will 
expire on July 8, 2016 but may be renewed.

FOR FURTHER INFORMATION CONTACT: Ms. Eileen Nolan, Office of Carrier, 
Driver and Vehicle Safety, Medical Programs Division, (202) 366-4001, 
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue 
SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Electronic Access

    The FMCSA received 2 comments in response to the July 9, 2013 (78 
FR 41187), notice requesting public comment on Virginia's application 
for an exemption. A copy of Virginia's application is in the docket 
referenced at the beginning of this notice and any comments or 
additional information submitted to the Agency following publication of 
this notice may be accessed online through http://www.regulations.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to Room W12-140, 
DOT Building, New Jersey Avenue SE., Washington, DC, between 9 a.m. and 
5 p.m., Monday through Friday, except Federal holidays. The Federal 
Document Management System (FDMS) is available 24 hours each day, 365 
days each year.
    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 for the FDMS published in the Federal 
Register published on January 17, 2008 (73 FR 3316), or you may visit 
http://edocket/access.gpo.gov/2008/pdf/E8-785.pdf.

Background

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant 
exemptions from certain parts of the Federal Motor

[[Page 38660]]

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 and explain 
the terms and conditions of the exemption. The exemption may be renewed 
(49 CFR 381.300(b)).

Virginia's Exemption Application

    The Virginia DMV requested an exemption from 49 CFR 391.49 
concerning FMCSA's SPE process for drivers who have experienced an 
impairment or loss of a limb, on behalf of CMV drivers licensed in the 
Commonwealth of Virginia. Instead of requiring such drivers to apply to 
FMCSA for an SPE, Virginia would establish its own SPE program 
essentially identical to the current FMCSA program. Virginia would 
establish an application process modeled on the FMCSA process and State 
personnel who have completed SPE training identical to that of FMCSA 
personnel currently administering the Federal SPE program would conduct 
the skill evaluation following the same procedures and testing criteria 
used by FMCSA. If the driver passed the skill evaluation, the State 
would issue the SPE certificate. Virginia would maintain records of 
applications, testing, and certificates issued for periodic review by 
FMCSA.
    On July 9, 2013, FMCSA published a notice in the Federal Register 
requesting public comment on Virginia's exemption application (78 FR 
41187). The Agency received comments from the Advocates for Highway and 
Auto Safety (Advocates) and the American Trucking Associations (ATA).
    The Advocates expressed opposition to the exemption, stating:

the VA DMV application does not request an exemption from any 
particular driver qualification standard or requirement on behalf of 
any particular driver or class of drivers, but instead seeks to 
transfer federal authority to grant or deny SPE certifications from 
federal officials to the VA DMV Commissioner. Because the exemption 
provisions of federal law are not intended to permit a transfer of 
federal administrative and regulatory authority to state officials, 
Advocates opposes the application.

    The ATA supports the concept of the exemption but expressed 
concerns regarding the precedent the exemption might set for other 
States that are not prepared to handle the SPE process. The ATA 
believes FMCSA needs to ensure any subsequent State authorities that 
may be granted a similar exemption adhere to strict standards for 
program design and implementation. The ATA asked whether drivers in an 
authorized State would be required to apply in that State or would the 
Federal SPE process still be available? The ATA also asked whether a 
driver who fails the SPE test in an authorized State could reapply to 
FMCSA?

FMCSA Response

    The FMCSA acknowledges Advocates' concerns, but disagrees with its 
conclusions. The Virginia DMV is seeking an exemption on behalf of a 
class of drivers, and the proposed exemption would not involve the 
delegation of Federal authority to Virginia.
    Currently, 49 CFR 391.49 prescribes alternative physical 
qualification standards for drivers with a loss or impairment of a 
limb(s). A person who is not physically qualified to drive under 49 CFR 
391.41(b)(1) or (b)(2) concerning loss of limbs or impairment of limbs, 
respectively, may apply for an SPE from the FMCSA Division 
Administrator in the State in which the driver is licensed. The current 
regulations does not provide an alternative to an FMCSA-issued SPE 
certificate for drivers who have experienced the loss or impairment of 
a limb(s). In the absence of an FMCSA-issued SPE certificate, such 
drivers are prohibited from operating CMVs in interstate commerce.
    The FMCSA continues to view Virginia's request as an appropriate 
application for an exemption on behalf of Virginia-licensed drivers who 
have experienced the loss or impairment of a limb, and wish to operate 
CMVs in interstate commerce. Through the exemption process, FMCSA would 
accept a State-issued SPE certificate in lieu of requiring these 
drivers to obtain an FMCSA-issued SPE certificate, as specified in the 
current regulations. Therefore, the exemption would provide an 
alternative to the current regulations for the class of drivers 
described by Virginia's application. As such, Virginia's request is no 
different from other applications submitted by entities on behalf of a 
class of persons or class of carriers. Under this scenario, the State 
is not seeking relief from any rules applicable to the State, rather it 
is seeking relief on behalf of the class of drivers who would otherwise 
have to seek individual exemptions to obtain a variance from the 
Federal SPE requirement.
    FMCSA acknowledges that the same terms and conditions of the 
exemption that ensure it would likely achieve a level of safety 
equivalent to, or greater than, the level that would be achieved by the 
current regulations, may have led Advocates to conclude the exemption 
represents a transfer of authority from FMCSA to the State. However, no 
such transfer of authority would take place through the exemption. Each 
driver who has experienced a loss or impairment of a limb(s) remains 
subject to 49 CFR 391.49 and only the subset of such drivers who are 
licensed in Virginia may seek a State-issued SPE in lieu of the FMCSA-
issued SPE certificate. The fact that the State would adhere to the 
same strict standards for the personnel administering the test and the 
same performance-based testing standards for each SPE applicant does 
not mean there is a transfer of authority. What the exemption provides 
is a streamlined alternative through which this limited class of 
drivers may pursue a State-issued SPE from the same entity that issued 
their driver's license rather than having to undertake a two-step 
process where the license is issued by the State and the SPE is issued 
by FMCSA.
    The exemption is analogous to long-standing regulations governing 
the roles of (1) medical examiners who qualify drivers (49 CFR part 
391, subpart E), and (2) State officials who can trigger FMCSA's 
emergency exemptions (49 CFR 390.23).
    The Federal Motor Carrier Safety Regulations (FMCSRs) have long 
entrusted private medical personnel with the task of applying the 
Agency's medical standards to determine whether drivers are physically 
qualified to operate commercial motor vehicles (CMVs). No one contends 
that this amounts to a delegation of Federal authority to private 
individuals. Agency rules simply specify the types of medical 
professional who may be ``medical examiners'' (as defined in 49 CFR 
390.5) and accept (or ratify) their judgment as to whether a driver 
meets the physical qualification standards in

[[Page 38661]]

49 CFR part 391, subpart E. No Federal authority is transferred to 
medical examiners.
    Similarly, while the relief from regulations provided by 49 CFR 
390.23 is often triggered by the declaration of an emergency by a State 
official, FMCSA has not thereby delegated its exemption authority to 
the State. On the contrary, Sec.  390.23 represents an FMCSA decision, 
made in advance of any particular incident, that events serious enough 
to qualify as an ``emergency'' justify regulatory exemptions for motor 
carriers and drivers providing ``direct assistance'' to supplement the 
``emergency relief'' efforts of State and local governments, as those 
terms are defined in Sec.  390.5. FMCSA has not delegated its authority 
to the States; it accepts (with rare exceptions) the factual conclusion 
of State officials that a given event qualifies as an ``emergency'' 
under Federal rules.
    The exemption granted the Virginia DMV is of the same type. Because 
of Virginia's well-documented training of its personnel to apply 
FMCSA's SPE standards and its commitment to maintaining compliance with 
those standards, the Agency is simply accepting (and ratifying) the 
State's conclusions about the applicant's qualifications in the same 
way that it accepts the conclusions of medical examiners. But FMCSA 
retains and will exercise the authority to review Virginia's adherence 
to the Federal SPE standards, just as it has undertaken to review the 
adherence of medical examiners to Federal qualification standards.
    With regard to the ATA's comments, FMCSA believes its oversight of 
the exemption process would ensure adherence to the terms and 
conditions of the exemption, and provide for an effective FMCSA-
Virginia partnership in streamlining the SPE process for Virginia-
licensed drivers. If, for whatever reason, a Virginia-licensed driver 
would prefer not to opt for the streamlined SPE process, he or she may 
still apply for an FMCSA-issued SPE. However, FMCSA may still exercise 
its discretion and call upon the State licensing agency to provide 
assistance in conducting the road test needed to complete an SPE 
application, depending on the volume of applications.
    In response to the ATA's question about drivers who fail the SPE 
certification process, the current regulations do not prohibit drivers 
from reapplying for SPE certification. In this case, FMCSA would work 
with the State to reevaluate a driver who fails to obtain a State-
issued SPE. FMCSA would consult with the State for any SPE application 
from a Virginia-domiciled driver to determine whether the driver had 
previously applied for an SPE from the State and request the results of 
that application before making any decision in the matter.
    Finally, FMCSA emphasizes that the Agency does not intend its 
decision to serve as pressure upon other States to take action to 
implement State-run SPE programs. Virginia is the first State to submit 
an application on behalf of its drivers to provide an alternative to 
the Federal SPE process. Other States are welcome to take similar 
actions if they believe it is appropriate to do so and they have the 
resources to meet terms and conditions comparable to those provided in 
this exemption.

FMCSA Decision

    Based upon its analysis of the application, FMCSA has determined 
that there are no safety vulnerabilities associated with Virginia's 
request and that the exemption should be granted. The Agency has 
determined that the exemption will achieve a level of safety equivalent 
to, or greater than, the level achieved by the current SPE 
requirements.
    As indicated above, Virginia will establish its own SPE program 
essentially identical to the current FMCSA program. Virginia will 
establish an application process modeled on the FMCSA process. State 
personnel who conduct the skill evaluation will complete the same 
training as FMCSA personnel conducting the test and will follow the 
same procedures and testing criteria used by FMCSA. And Virginia will 
maintain records of applications, testing, and certificates issued for 
periodic review by FMCSA.
    Because Virginia's program will be essentially identical to the 
current FMCSA program, FMCSA has concluded that the program will 
achieve the level of safety required by 49 U.S.C. Sec.  31315.

Terms and Conditions of the Exemption

    The FMCSA grants an exemption to the Virginia DMV on behalf of 
drivers who have experienced an impairment or loss of a limb, and are 
licensed in the Commonwealth of Virginia. The following terms and 
conditions apply to the State and any drivers who receive a State-
issued SPE certificate.
     Virginia must establish and maintain its own SPE program 
essentially identical to the current FMCSA program.
     The State must establish an application process modeled on 
the FMCSA process and must submit information concerning the 
application process to FMCSA's Medical Programs Division for review.
     State personnel who conduct the skill test must complete 
SPE training identical to that of FMCSA personnel currently 
administering the Federal SPE program.
     The skill evaluation and scoring for the SPE must be done 
using the same procedures and testing criteria used by FMCSA.
     Virginia must maintain records of applications, testing, 
and certificates issued for periodic review by FMCSA.
     Virginia must submit a monthly report to FMCSA listing the 
names and license number of each driver tested by the State and the 
result of the test (pass or fail).
     Each driver who receives a State-issued SPE must keep a 
copy of the certificate when driving, for presentation to authorized 
Federal, State, or local law enforcement officials.

Preemption of State Laws and Regulations

    An exemption granted under the authority of 49 U.S.C. 31315(b) 
preempts State laws and regulations that conflict with or are 
inconsistent with the exemption. The decision to grant Virginia's 
request amounts to automatic Federal ratification of the State issued 
SPE certificate and therefore prohibits other jurisdictions from 
requiring a separate FMCSA-issued SPE. The State-issued certificate 
must be treated as if it had been issued by FMCSA. Virginia-licensed 
drivers who receive the State-issued SPE are allowed to operate CMVs in 
interstate commerce, anywhere in the United States.

    Issued on: July 1, 2014.
Anne S. Ferro,
Administrator.
[FR Doc. 2014-15958 Filed 7-7-14; 8:45 am]
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