[Federal Register Volume 84, Number 236 (Monday, December 9, 2019)]
[Notices]
[Pages 67337-67339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26183]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2019-0139]


Entry-Level Driver Training: United Parcel Service, Inc. (UPS); 
Application for Exemption

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

ACTION: Notice of final disposition; denial of exemption.

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SUMMARY: FMCSA announces its decision to deny United Parcel Service, 
Inc.'s (UPS) application for exemption from two provisions in the 
entry-level driver training (ELDT) final rule published on December 8, 
2016. UPS requests a five-year exemption from the following provisions 
in the ELDT final rule: The requirement that a driver training 
instructor hold a Commercial Driver's License (CDL) and have two years' 
experience driving a commercial motor vehicle (CMV), as set forth in 
the definitions of ``behind-the-wheel (BTW) instructor'' and ``theory 
instructor;'' and the requirement to register each training location in 
order to obtain a unique Training Provider Registry (TPR) number 
applicable to that location. FMCSA has analyzed the exemption 
application and the public comments and determined that the applicant 
has not demonstrated that it would likely achieve a level of safety 
that is equivalent to, or greater than, the level that would be 
achieved absent the requested exemptions.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and 
Carrier Operations Division; Telephone: 202-366-4325; Email: 
[email protected]. If you have questions on viewing or submitting material 
to the docket, contact Docket Services at (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-2019-0139 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.

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 provide an opportunity for public comment on the 
request.
    The Agency reviews the 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 
Agency's decision 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 specify the effective period (up to 5 years) 
and explain its terms and conditions. The exemption may be renewed (49 
CFR 381.300(b)).

III. Request for Exemption

    United Parcel Service, Inc. (UPS) seeks an exemption from the 
following

[[Page 67338]]

two provisions in the entry-level driver training (ELDT) final rule: 
(1) The requirement in 49 CFR 380.713 that a driver training instructor 
hold a commercial driver's license (CDL) and have two years' experience 
driving a CMV, as set forth in the definitions of ``behind-the-wheel 
(BTW) instructor'' and ``theory instructor'' in 49 CFR 380.605; and (2) 
the requirement in 49 CFR 380.703(a)(7) that training providers with 
multiple training locations must register each training location in 
order to receive a unique Training Provider Registry (TPR) number 
applicable to that location.
    UPS states that its driver training school (DTS) trains its 
employees to become driver instructors. Their DTS instructors have, on 
average, 20 years of UPS experience, hold a CDL of the same or higher 
class, and have all endorsements necessary to operate a CMV for which 
training is provided; have completed the DTS instructor certification 
program; have maintained their DTS certification through quarterly 
additional training; and are employed by UPS as supervisors or 
managers. The DTS conducts an 8-week program designed to train 
supervisors and managers in UPS' long-haul operations to deliver driver 
training to drivers at UPS worksites. All UPS driver instructors must 
recertify every 90 days to demonstrate the same skill level shown for 
their original DTS certification.
    UPS states that, were it to comply with these instructor 
qualification requirements, it would not be able to use at least 25% of 
its current certified driver instructors, because they do not have the 
requisite two years of CMV driving experience. According to UPS, in the 
next two years that number would likely increase to 50% due to its 
changing workforce. UPS expects an increase in growth through volume 
demand, as well as an aging workforce that will lead to retiring CDL 
drivers and certified driver instructors. Without an exemption from the 
ELDT instructor requirements, UPS's inability to use its current driver 
instructors will impede substantially its ability to meet the demand 
for new drivers. UPS adds that the exemption is needed to meet 
contractual requirements, as under its collective bargaining agreement 
with the International Brotherhood of Teamsters (Teamsters), six 
current UPS employees must be provided with a promotion opportunity for 
every new hire.
    Secondly, UPS requests an exemption from the requirement in 49 CFR 
380.703(a)(7), that training providers with multiple training locations 
must register each training location to receive a unique TPR number 
applicable to that location. UPS states that new driver training may 
occur at as many as 1,800 separate locations a year. In each location, 
instructors who have been trained pursuant to UPS' DTS program will use 
a common FMCSR-compliant curriculum developed at a corporate level. 
UPS's Director of Driver Training is responsible for UPS's firm-wide 
training program, and UPS is operating a single training program in 
multiple locations. UPS states that this exemption is necessary due to 
the significant administrative burden that would result if it had to 
register every UPS location at which a new driver could be trained. 
Having separate TPR numbers for multiple locations offering essentially 
the same training could create internal confusion for UPS, drivers, and 
the Agency. UPS estimates that the cost to register these locations 
would be ``substantial'' and that it would incur additional costs to 
keep track of the various registrations, file updates, and new driver 
registrations.

IV. Public Comments

    On June 19, 2019, FMCSA published notice of the UPS application for 
exemption and requested public comment [84 FR 28623]. The Agency 
received 112 comments, 58 supporting the exemptions and 51 opposing 
them. Three other commenters had no position either for or against the 
application and provided no substantive comments. Four organizations 
opposed the exemptions: The Owner-Operator Independent Drivers 
Association (OOIDA); the Commercial Vehicle Training Association 
(CVTA); Trucker Nation; and the United States Transportation Alliance.
    OOIDA strongly opposed both portions of the UPS request, stating 
that ``the ELDT rule sets forth a process for registering training 
providers that will hold schools and instructors accountable for their 
performance. If these standards are maintained and enforced, highway 
safety will unquestionably improve. OOIDA further opposed exempting UPS 
from the requirement to separately register each training location for 
a unique TPR number, commenting: ``The Agency also saw no rationale 
under which motor carrier-operated training schools should be permitted 
to opt out of the TPR registration requirements based on their size or 
safety record.''
    CVTA does not believe that UPS should be exempted from the current 
two-year instructor requirements, nor does it believe that the company 
should be exempted from registering each individual location where it 
provides training. While CVTA agrees that the skills needed to 
effectively teach, versus the skills acquired by driving for two years, 
are different, they believe the regulation should be uniformly followed 
by anyone training pre-CDL students. It is CVTA's belief that, by 
granting the exemptions, the FMCSA would be setting a bad precedent, 
and opening the floodgates for exemption requests from other training 
providers.
    TruckerNation also opposed both portions of the exemption request, 
stating that the concerns raised by UPS have been addressed through 
negotiated rulemaking and the public comment process. TruckerNation 
asserted that approving this exemption request would contradict the 
sound decisions previously made in the ELDT final rule and ultimately 
undermine the goals of ELDT.
    Fifty-eight individuals supported the UPS application. Most 
supported only the first part of the exemption request--i.e., the 
requirement in 49 CFR 380.713 that a driver training instructor hold a 
CDL and have two years' CMV driving experience and, as set forth in the 
definitions of BTW instructor and theory instructor in 49 CFR 380.605. 
Most of these commenters cited the excellence of the UPS training 
program and the company's overall safety record. Many commenters also 
noted that UPS requires continuous instructor recertification 
throughout the year, regardless of how long they have held a CDL.

V. Method To Ensure an Equivalent Level of Safety

    UPS states that its ``train the trainer'' program within its DTS 
will assure an equivalent level of safety. According to UPS, its DTS 
produces highly skilled instructors who know how to drive tractor-
trailers and how to teach others to operate tractor-trailers in a safe 
manner. UPS believes that graduates of its DTS training program are 
better prepared to impart knowledge and skills to new drivers than 
someone who has had two years of CMV driving experience. According to 
UPS, experience over time has shown that their instructors produce 
expertly trained, safe entry-level drivers. All DTS certified driver 
instructors are re-certified every 90 days and UPS conducts periodic 
(minimum annual) internal quality assessments of the DTS program. As to 
the training provider registration requirements, UPS assures that the 
registration requirements will be fulfilled by a single registration 
for UPS' driver training program, managed by UPS, if the exemption were 
granted.

[[Page 67339]]

    In support of UPS's request for exemption from the requirement to 
register each training location separately, the company cites the 
uniformity of its driver instructor training and the fact that ``a 
common FMCSR-compliant curriculum has been developed at the corporate 
level.'' On that basis, UPS concludes that the objectives of location-
specific registration would be satisfied by a single UPS registration.

VI. FMCSA Response and Decision

    FMCSA has evaluated the UPS application and the public comments 
submitted and hereby denies the requested exemptions. The UPS 
application does not provide an analysis of the safety impacts the 
requested exemptions from the ELDT regulations may cause, as required 
by 49 CFR 381.310(c)(4), and does not explain how the exemptions would 
likely achieve a level of safety equivalent to, or greater than, the 
level that would be achieved by complying with the current regulations, 
as required by 49 CFR 381.310(c)(5).
    The requirement that a driver training instructor hold a CDL, and 
have either two years' experience driving a CMV of the same or higher 
class, or two years' experience as a BTW CMV instructor, is necessary 
to establish a sufficient minimum qualification standard for BTW 
instructors. In the Agency's judgment, the rigorous instructor training 
provided by UPS, while laudable, is not a substitute for CMV driving 
experience. UPS therefore fails to provide an alternative to the 
instructor requirements likely to ensure an equivalent level of safety, 
and the request for exemption is hereby denied.
    The Agency also denies UPS's request for an exemption from the 
requirement, as set forth in 49 CFR 380.703(a)(7), that training 
providers with more than one campus or training location must 
electronically register each training location to receive a unique TPR 
number applicable to that location. Qualified training providers are a 
cornerstone of meaningful ELDT. FMCSA's ability to readily identify the 
separate physical locations at which ELDT occurs is a reasonable 
prerequisite to effective oversight of UPS's training operations. The 
Agency needs to know the training location where an individual received 
ELDT, for example, so that if State-administered skills or knowledge 
test pass/fail rates appear to be outside the norm for drivers trained 
at a specific location, FMCSA can follow-up appropriately. In addition, 
UPS did not explain how a single UPS representative can be directly 
responsible for managing and administering ELDT at all 1,800 locations. 
It is reasonable to require that the individual actually administering 
the ELDT program at a given location attest, under penalty of perjury, 
to compliance with specific training requirements. Further, UPS does 
not indicate whether the same type of ELDT is conducted at each of its 
1,800 locations--e.g., do some locations offer only BTW training or 
only knowledge training? Is specialized knowledge training, such as on 
hazardous materials, offered at every UPS training location? The types 
of ELDT offered at each training location is ``key information'' as 
defined in 380.719(a)(3)(i), and is necessary for effective regulatory 
oversight. For example, the extent of training offered at a specific 
location may impact how FMCSA allocates its audit or investigation 
resources. UPS's application does not explain how dispensing with the 
location-specific TPR registration requirement would likely achieve an 
equivalent level of safety. Therefore, the UPS request for exemption 
from the TPR registration requirement is hereby denied.

    Issued on: November 26, 2019.
Jim Mullen,
Acting Administrator.
[FR Doc. 2019-26183 Filed 12-6-19; 8:45 am]
 BILLING CODE 4910-EX-P