[Federal Register Volume 87, Number 171 (Tuesday, September 6, 2022)]
[Notices]
[Pages 54588-54590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19133]


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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); 
Petition for Reconsideration of Original Application for Exemption

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

ACTION: Notice of final disposition; denial of petition for 
reconsideration of original application for exemption.

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SUMMARY: FMCSA announces its decision to deny reconsideration of the 
Agency's initial denial of the application for exemption filed by 
United Parcel Service, Inc. (UPS). UPS originally sought exemption from 
a provision in the Entry-Level Driver Training (ELDT) final rule 
requiring two years of experience for training instructors. FMCSA 
denied that petition on December 9, 2019. UPS believes that its current 
process of preparing driver trainers exceeds any skill set gained 
merely by operating a tractor-trailer for two years. UPS stated that 
its reconsideration request would ensure that it can continue to exceed 
the current regulatory requirements and provide proper training of its 
drivers and improve highway and public safety. FMCSA analyzed the 
petition for reconsideration and the public comments submitted, and 
determined that the application lacked evidence that would ensure that 
an equivalent level of safety or greater would likely be achieved 
absent such exemption.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and

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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, 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 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., 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 Dockets Operations.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant 
exemptions from certain 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 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 (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

    The ELDT final rule was adopted pursuant to 49 U.S.C. 31305(c), and 
is based in part on consensus recommendations from the Agency's ELDT 
Advisory Committee (ELDTAC), a negotiated rulemaking committee. The 
rule enhances the safety of commercial motor vehicle (CMV) operations 
on our Nation's highways by establishing a minimum standard for ELDT 
and increasing the number of drivers who receive ELDT. The rule revised 
49 CFR part 380, Special Training Requirements, to include, among other 
things, driver training instructor qualifications. Under 49 CFR 380.713 
a driver training instructor must have two years' experience and have 
held a commercial driver's license (CDL) for 2 years, as set forth in 
the definitions of ``behind-the-wheel (BTW) instructor'' and ``theory 
instructor'' in 49 CFR 380.605.
    On June 19, 2019, FMCSA published a UPS application for exemption 
from two provisions of the ELDT final rule and requested public comment 
[84 FR 28623]. UPS specifically requested an exemption from: (1) the 
requirement in 49 CFR 380.713 that a driver training instructor hold a 
CDL and have 2 years' experience driving a CMV, as set forth in the 
definitions of behind-the-wheel (BTW) instructor and theory instructor; 
and (2) the requirement in 49 CFR 380.703(a)(7) to register each 
training location in order to obtain a unique Training Provider 
Registry number applicable to that location.
    The Agency received 112 comments, including 58 supporting the 
requested exemptions and 51opposing them. Three other commenters had no 
position either for or against the application and provided no 
substantive comments.
    On December 9, 2019, the Agency denied the UPS exemption request 
because the application did not provide an analysis of the safety 
impacts the requested exemptions may cause, as required by 49 CFR 
381.310(c)(4), and did 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).

IV. Request for Reconsideration of Agency Decision

    On July 1, 2020, UPS requested that FMCSA reconsider its original 
denial. UPS believes that its current process of preparing driver 
trainers exceeds any skill set gained merely by operating a tractor-
trailer for 2 years. The company also believes that a 2-year experience 
requirement doesn't automatically equate to success as a CMV driver 
trainer. UPS has provided the Agency with updated information since the 
original denial, explaining that many of their locations have 
experienced turnover issues with driver trainers because of the ELDT 
rule changes in 2018. UPS added that it had to hire 100 candidates to 
attempt to net the 50 trainer positions it needed across the United 
States. Of the 100 trainers hired, UPS has been able to retain only 38.

V. Method To Ensure an Equivalent or Greater Level of Safety

    To ensure an equivalent level of safety, UPS stated that its driver 
training program is a train-the-trainer approach that it believes is an 
industry-leading curriculum that produces excellent trainers and, by 
extension, excellent CMV operators. When UPS became aware of the ELDT 
rule changes, it was in the process of making some operational network 
enhancements that would prompt significant hiring during the following 
years. To get ahead of the original ELDT rule compliance date of 
February 7, 2020, UPS attempted to hire trainers from outside of UPS to 
supplement the certified trainers already in place. UPS encountered 
challenges throughout the training process regarding these trainer 
positions, mainly because of the level of comprehensive training that 
they would need to have and demonstrate as a trainer. UPS claim of high 
turnover rate in the trainer positions is pertinent to its request for 
reconsideration of the original denial.

VI. Public Comments

    On September 23, 2020, FMCSA published notice of this 
reconsideration request and sought public comments (85 FR 59850). The 
Agency received 113 total comments. The Owner-Operator Independent 
Driver's Association (OOIDA) and the Commercial Vehicle Training 
Association (CVTA) opposed reconsideration of denial of UPS' original 
application for exemption. OOIDA opposed the initial exemption request 
and argued that UPS failed to present any new information that would 
warrant reconsideration. The minimum experience standards for trainers 
included in the ELDT rule were built on consensus recommendations of 
the ELDTAC, a group of 26 industry stakeholders, and are firmly rooted 
in highway safety. OOIDA further commented that the 2-year delay of the 
ELDT rule compliance date until February 7, 2022, issued by FMCSA 
provides sufficient time for all entities,

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including UPS, to prepare their respective training programs and comply 
with the rule's new implementation date.
    CVTA reaffirmed its original opposition to UPS' exemption request. 
CVTA referenced its ``Pre-CDL Instructor Certification Program'' 
designed to train the trainer, and while it agreed that the skills 
needed to effectively teach versus the skills of being a driver 
acquired by holding a CDL for 2 years are different, CVTA believes the 
uniform application of the ELDT regulation for all training providers 
should be established and followed by anyone training pre-CDL students. 
It is CVTA's belief that reconsideration, if granted, would set a bad 
precedent.
    Two other individuals opposed reconsideration. Other reasons 
presented by commenters included the assertion that the lowering of the 
requirements specified for driver training instructors would open the 
door for similar requests or even require a change to the ELDT rule.
    Most comments supporting reconsideration were from individuals 
including UPS drivers and current or former UPS driver trainers. Most 
of these commenters cited the excellence of the UPS driver training 
program and the overall company safety record. They argued that the UPS 
training program is one of the most comprehensive in the industry, that 
its driver trainers are put through an intense training program and are 
required to follow strict methods and procedures.

VII. FMCSA Safety Analysis and Decision

    FMCSA has evaluated UPS' request for reconsideration and the public 
comments and has decided to deny the request. The UPS reconsideration 
request indicated that the company had encountered challenges filling 
new trainer positions in compliance with the provisions of the ELDT 
final rule. UPS stated that its internal Driver Trainer School has 
produced what the company believes to be the best trainers in the 
industry and that its training provides a consistently high standard 
through a comprehensive, consistent training format throughout the 
organization, both for initial training and recurrent annual training.
    When the Agency established the rules mandating ELDT, it relied 
upon research indicating that the rules improve CMV safety. The Moving 
Ahead for Progress Act of the 21st Century mandated that the FMCSA 
issue regulations to establish minimum entry-level training 
requirements for interstate and intrastate applicants obtaining a CDL 
for the first time, CDL holders seeking license upgrades, and those 
seeking various CDL endorsements. In response to that statutory 
mandate, the Agency published a final rule on ``Minimum Training 
Requirements for Entry-Level Commercial Motor Vehicle Operators,'' on 
December 8, 2016 [81 FR 88732]. The ``framework'' for this rule was 
based on the ELDTAC's consensus recommendations ``to the maximum extent 
possible consistent with its legal obligations'' as required under the 
Negotiated Rulemaking Act (5 U.S.C. 563(a)(7)). These final regulations 
outlined new eligibility standards that training providers must meet to 
deliver ELDT, including the qualification and experience requirements 
for BTW and Theory or Classroom instructors. As OOIDA and CVTA 
indicated in their opposing comments, the UPS application does not 
provide an analysis of the safety impacts that reconsideration of the 
denial may cause. It also does not provide countermeasures to be 
undertaken to ensure that the request would likely achieve a level of 
safety equivalent to, or greater than, the level that would be achieved 
by the ELDT regulations.
    The Agency cannot ensure that the exemption would achieve the 
requisite level of safety. The ELDT rule, mandated by Congress, is 
based on the ``framework'' of the ELDTAC's consensus recommendations, 
including the instructor requirements. The UPS request for 
reconsideration must be judged based on the exemption standards in 49 
CFR part 381. As indicated above, UPS' application fails to meet those 
standards. The request for reconsideration of the original application 
for exemption is therefore denied.

Robin Hutcheson,
Deputy Administrator.
[FR Doc. 2022-19133 Filed 9-2-22; 8:45 am]
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