[Federal Register Volume 87, Number 97 (Thursday, May 19, 2022)]
[Notices]
[Pages 30551-30553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10763]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2021-0140]


Entry-Level Driver Training: Application for Exemption; Oak 
Harbor Freight Lines, Inc.

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation.

ACTION: Notice of final disposition; grant of application for 
exemption.

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SUMMARY: FMCSA announces its decision to grant an exemption from the 
qualification requirements pertaining to entry-level driver training 
(ELDT) theory instructors for Oak Harbor's safety supervisor, Mr. Jeff 
McLaughlin. The exemption will allow Mr. McLaughlin to conduct 
classroom (theory) training for entry-level drivers who intend to 
operate commercial motor vehicles (CMV) used in the transportation of 
hazardous materials (HM). The exemption excuses Mr. McLaughlin from the 
requirement to either possess a commercial driver's license (CDL) or

[[Page 30552]]

have previously held a CDL. The road portion of the training will be 
completed by behind-the-wheel (BTW) instructors that meet the ELDT 
qualification requirements. FMCSA concluded that granting the exemption 
is likely to achieve a level of safety equivalent to or greater than 
the level of safety that would be obtained in the absence of the 
exemption.

DATES: The exemption is effective May 19, 2022 and expires May 19, 
2027.
    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. To be sure someone is there to help you, 
please call (202) 366-9317 or (202) 366-9826 before visiting Dockets 
Operations.

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 and Request for Comments

    FMCSA encourages you to participate by submitting comments and 
related materials.

Viewing Comments and Documents

    To view comments, go to www.regulations.gov, insert the docket 
number ``FMCSA-2021-0140'' in the keyword box, and click ``Search.'' 
Next, sort the results by ``Posted (Newer-Older),'' choose the first 
notice listed, 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-2021-0140'' in the keyword box, click ``Search,'' and chose 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 parts of the Federal Motor 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 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 also specify the effective period (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

    The Agency's ELDT regulations, set forth in 49 CFR part 380, 
subparts F and G, establish theory and BTW training requirements for 
individuals seeking to obtain a Class A or Class B CDL or a passenger 
(P), school bus (S), or hazardous materials (H) endorsement for the 
first time. The regulations take effect on February 7, 2022. The 
regulations require that ELDT be conducted only by qualified training 
providers and training instructors; drivers must obtain ELDT from a 
training provider listed on FMCSA's Training Provider Registry.
    As set forth in the definition of ``theory instructor'' in 49 CFR 
380.605, theory instructors must meet one of these qualifications: (1) 
The instructor holds a CDL of the same (or higher) class and with all 
endorsements necessary to operate the CMV for which training is to be 
provided and has at least 2 years of experience driving a CMV requiring 
a CDL of the same (or higher) class and/or the same endorsement and 
meets all applicable State qualification requirements for CMV 
instructors; or (2) the instructor holds a CDL of the same (or higher) 
class and with all endorsements necessary to operate the CMV for which 
training is to be provided, and has at least 2 years of experience as a 
BTW CMV instructor and meets all applicable State qualification 
requirements for CMV instructors. The definition of ``theory 
instructor'' in 49 CFR 380.605 includes an exception from the 
requirement that the instructor currently hold a CDL and relevant 
endorsements, if the instructor previously held a CDL of the same or 
higher class and complies with the other requirements set forth in the 
definition.
    Unlike the P and S endorsement training curricula, which include 
both theory and BTW portions, the required H endorsement training is 
theory only. The H endorsement theory curriculum, set forth in 49 CFR 
part 380, Appendix E, applies to driver-trainees who intend to use CMVs 
to transport hazardous materials as defined in 49 CFR 383.5.
    Because applicants are not required to take an HM-specific skills 
test to obtain the H endorsement, the ELDT regulations do not contain a 
BTW curriculum requirement applicable to that endorsement. There are, 
however, BTW ELDT requirements for applicants seeking a Class A or 
Class B CDL or a P or S endorsement.

Applicant's Request

    On behalf of its Pacific Northwest Safety Supervisor, Mr. Jeff 
McLaughlin, Oak Harbor seeks an exemption, from the ELDT theory 
instructor qualifications set forth in the definition of the term 
``theory instructor'' in 49 CFR 380.605, as identified above. Oak 
Harbor requests the exemption so that Mr. McLaughlin will be able to 
provide ELDT theory instruction pertaining to the transportation of HM 
by CMV. Oak Harbor cites Mr. McLaughlin's extensive teaching experience 
and subject matter expertise as the basis for its exemption request. 
Oak Harbor further states that the road portion of the training would 
be completed by BTW instructors that meet the ELDT requirements. A copy 
of the exemption application is in the docket referenced at the 
beginning of this notice.\1\
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    \1\ The Agency notes that Oak Harbor's written application 
requests an exemption from the specific requirement that theory 
instructors hold a CDL of the same (or higher) class and with all 
endorsements necessary to operate the CMV for which training is to 
be provided. On August 30, 2021, in a conversation with Oak Harbor's 
Safety Manager, Mr. Tom Mueller, FMCSA personnel confirmed that Oak 
Harbor is seeking exemption from all the theory instructor 
qualification requirements set forth in the definition of ``theory 
instructor'' in 49 CFR 380.605. A summary of that conversation can 
be found in the docket for this notice.

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[[Page 30553]]

IV. Equivalent Level of Safety

    Oak Harbor states that Mr. McLaughlin's experience and expertise in 
the HM field would supersede HM training offered by other theory and 
BTW training instructors and would enhance their HM materials and 
safety program. Oak Harbor provided the following list of Mr. 
McLaughlin's credentials:

 Over 20 years' experience as a certified truck inspector 
holding certifications in CVSA Part A and B, Hazardous Materials, Tank 
and other bulk packagings, Motor Coach and Multi Surface HM 
Transportation.
 18 years' experience as a NTC Basic HM instructor
 Previous Region IV Cooperative Hazardous Materials Enforcement 
Development (COHMED) Program Vice Chairman
 Current COHMED Industry Liaison
 Former Training Lieutenant, Supervisory Lieutenant and 
District Captain in charge of CVSA and Hazardous Materials training and 
recertification programs for the Montana Motor Carrier Services
 Certified civilian CVSA Hazardous Materials Instructor
 Former Sergeant, Lieutenant and Captain overseeing CMV 
inspectors at the Montana/Alberta Joint Use Vehicle Inspection Station 
Coutts, AB regulating enforcement of FMCSA and Transport Canada 
regulations pertaining to vehicle safety and hazardous material/
dangerous goods regulations

V. Public Comments

    On September 8, 2021, FMCSA published notice of this application 
and requested public comment (86 FR 50426). The Agency received four 
comments. Two respondents, Railsback HazMat Safety Professionals, LLC 
(Railsback) and the Washington Trucking Associations (WTA) submitted 
comments favoring the exemption application. The other two respondents, 
J. Walker and an anonymous commenter, opposed or questioned the 
exemption application, respectively.
    J. Walker stated the following: ``Oak Harbor Freight Lines should 
not be granted this exemption as the reason for so many accidents on 
the roads today is Large Carriers get exemptions on training drivers 
and the majority of new drivers on the road have no clue what they are 
doing. Two weeks of classroom training and they are turned lose on the 
highways with no clue about regulations or even how to drive a truck.''
    An anonymous commenter said that it would be unwise for the FMCSA 
leadership to grant the exemption ``without conducting a comprehensive 
evaluation of the credentials and competencies possessed by Oak 
Harbor's safety supervisor Jeff McLaughlin.'' The commenter further 
stated: ``Having worked in a factory that was both a producer and a 
consumer of hazardous waste, I question how an individual acting as a 
safety supervisor could possess the competencies needed to train 
transportation workers how to safely engage in the commercial 
transportation of hazardous materials. Reflecting on my past 
experience, the rules and regulations pertaining to issues of this 
nature were constantly changing.''
    Railsback submitted the following comment in favor of the 
exemption: ``Without a doubt, I believe that former FMCSA, NTC 
Associate Staff Instructors have a better understanding of the ELDT 
Theory requirements, than 50-75% of driver/trainers, with CDLs. Not 
only do former Associate Staff Instructors know the regulations, but 
also the application of said regulations to real life roadside 
situations. Additionally, former Associate Staff Instructors experience 
goes beyond that of a driver/trainer, who has only worked/trained in 
one or two particular areas of the motor carrier industry.''
    WTA stated that it ``believes Mr. McLaughlin's credentials and 
significant hazardous materials experience should exceed FMCSA's 
threshold to maintain the current level of safety. Additionally, due to 
the current driver shortage and the nationwide labor shortage, denial 
of the exemption application would likely prevent Oak Harbor from 
implementing a more efficient and effective hazardous materials 
endorsement training program to support the company's operations. For 
those reasons, WTA strongly supports Oak Harbor's exemption 
application.''

VI. FMCSA Response to Comments and Decision

    FMCSA has evaluated Oak Harbor's application for exemption and the 
public comments. The Agency conducted a comprehensive review of Oak 
Harbor's safety performance, which included a review of the Motor 
Carrier Management Information System safety records, and inspection 
and accident reports submitted to FMCSA by State agencies. Oak Harbor 
has an active USDOT registration, minimum levels of insurance as 
required by 49 CFR part 387 and is not subject to any imminent hazard 
or other out-of-service orders. FMCSA independently verified Mr. 
McLaughlin's professional credentials identified in the exemption 
application, as suggested by the anonymous respondent. While J. Walker 
opposed the application, they did not specifically challenge any of Mr. 
McLaughlin's credentials or HM training experience, focusing instead on 
the ability of newly trained drivers to safely operate a CMV. As Oak 
Harbor stated in its application, their entry level drivers will 
receive the required BTW training from instructors fully meeting the 
qualification requirements set forth in definition of ``BTW 
instructor'' in 49 CFR 380.605. Therefore, based on Mr. McLaughlin's 
extensive experience as both an HM instructor and inspector, and his 
stellar reputation in the HM training community, FMCSA has decided to 
grant the exemption. FMCSA believes that the exemption will likely 
achieve a level of safety that is equivalent to or greater than the 
level that will be achieved absent such exemption, in accordance with 
Sec.  381.305(a).

Extent of the Exemption

    This exemption is granted to Oak Harbor on behalf of their 
instructor Mr. Jeff McLaughlin. The exemption from the qualification 
requirements set forth in the definition of ``theory instructor'' in 49 
CFR 380.605 will allow Mr. McLaughlin to provide ELDT theory 
instruction for the H endorsement curriculum in Appendix E of Part 380 
without meeting these requirements. The exemption is effective May 19, 
2022 and expires May 19, 2027.

Robin Hutcheson,
Deputy Administrator.
[FR Doc. 2022-10763 Filed 5-18-22; 8:45 am]
BILLING CODE 4910-EX-P