[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Notices]
[Pages 2162-2163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00444]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2022-0135]


Entry Level Driver Training: Railsback HazMat Safety 
Professionals, LLC; Application for Exemption

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

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

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SUMMARY: FMCSA announces its decision to grant the application 
submitted by Rex Railsback, Owner, Railsback HazMat Safety 
Professionals, LLC (Railsback HMSP), for an exemption from the theory 
instructor qualification requirements in the entry-level driver 
training (ELDT) regulations. The exemption will allow Mr. Railsback to 
conduct theory (i.e., classroom) training for driver trainees seeking 
to obtain a hazardous materials endorsement on their commercial 
driver's license (CDL). The exemption excuses Mr. Railsback from the 
requirement that a driver training instructor must possess a CDL with 
all applicable endorsements to perform ELDT theory instruction and meet 
applicable state qualification requirements for commercial motor 
vehicle (CMV) instructors. 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 from January 12, 2023 through January 
12, 2028.

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 
Docket Services at (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Public Participation

Viewing Comments and Documents

    To view comments, go to www.regulations.gov, insert the docket 
number ``FMCSA-2022-0135'' in the keyword box, and click ``Search.'' 
Next, sort the results by ``Posted (Newer-Older),'' choose the first 
notice listed, and click ``View Related Comments.''
    To view documents mentioned in this notice as being available in 
the docket, go to www.regulations.gov, insert the docket number 
``FMCSA-2022-0135'' 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 
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 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 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

Current Regulatory Requirements

    The ELDT regulations, implemented on February 7, 2022, and set 
forth in 49 CFR 380, subparts F and G, established minimum training 
standards for individuals applying for certain CDLs and defined 
curriculum standards for theory and behind-the-wheel (BTW) training. 
The ELDT regulations also established an online training provider 
registry (TPR), eligibility requirements for providers to be listed on 
the TPR, and requirements for instructors. Under 49 CFR 380.713, a 
training provider must use instructors who meet the definition of 
``theory instructor'' in 49 CFR 380.605. The definition requires that 
the instructor hold a CDL of the same (or higher) class, with all 
endorsements necessary to operate the commercial motor vehicle (CMV) 
for which training is to be provided, and have either: (1) a minimum of 
2 years of experience driving a CMV requiring a CDL of the same or 
higher class and/or the same endorsement; or (2) at least two years of 
experience as a BTW CMV instructor. In addition, the instructor must 
meet applicable state qualification requirements for CMV instructors. 
The definition also includes an exception to the requirement that a 
theory instructor currently possess an applicable CDL, if the 
instructor previously held a CDL and meets the other qualification 
requirements. The regulations were based in part on consensus 
recommendations from the Agency's ELDT Advisory Committee (ELDTAC), a 
negotiated rulemaking committee.

Applicant's Request

    Rex Railsback, Owner, Railsback HazMat Safety Professionals, LLC, 
requests an exemption from the requirement that a driver training 
instructor must possess a CDL with all applicable endorsements to 
perform ELDT theory instruction. Mr. Railsback would perform theory 
(i.e., classroom) training of 49 CFR parts 100-185 relating to the 
transportation of hazardous materials (HM) for driver trainees seeking 
to obtain a hazardous materials endorsement on their CDL.

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

    Mr. Railsback states that his experience and expertise in the HM 
field would be equal to or supersede theory training offered by others 
and would enhance the safety of HM transportation for prospective 
driver trainees. Mr. Railsback provided the following list of his 
credentials in his application for exemption to the Agency:
     Over 24 years' experience as a certified truck inspector 
holding certifications in Commercial Vehicle Safety Alliance (CVSA) NAS 
Inspection Part A and B, General Hazardous

[[Page 2163]]

Materials, Cargo Tank Inspection and other Bulk Packaging Inspection;
     20 years' experience as an FMCSA, National Training Center 
(NTC) North American Standard (NAS) Inspection Part B and HM 
Instructor;
     5 years' experience as an FMCSA, NTC Master Instructor for 
NAS Inspection Part A and B, General HM, Cargo Tank Inspection, and 
other Bulk Packaging Inspection;
     14 years' experience as an FMCSA, NTC Instructor 
Development Coach;
     9 years' experience conducting compliance reviews, 
specializing in HM carriers and shippers;
     5 years' experience conducting Cargo Tank facility 
reviews;
     Member and subject matter expert for several FMCSA, NTC 
course development and update working groups;
     Previous Region III COHMED Chairman;
     Previous COHMED International Chairman;
     Former Lead MCSAP Trainer, Training Coordinator and 
Training Lieutenant for the Kansas Highway Patrol Troop 1;
     Certified civilian CVSA Hazardous Materials Instructor 
(HMIT).

V. Public Comments

    On July 8, 2022, FMCSA published notice of the Rex Railsback 
application and requested public comment [87 FR 40876]. The Agency 
received eight comments. Six individual respondents submitted comments 
favoring the exemption application, while the Owner-Operator 
Independent Drivers Association (OOIDA) and one other individual 
commenter filed in opposition to the request.
    Those individuals who filed in support cite Mr. Railsback's 
numerous years as a recognized industry expert in the field of HM 
training, including his previous employment with the Kansas Highway 
Patrol, his time as an active member of the CVSA and the Pipeline and 
Hazardous Materials Administration, and the Cooperative Hazardous 
Materials Enforcement Development (COHMED) programs. One individual 
commenter, Nick Wright, who filed in support of the exemption request, 
stated:

    While Mr. Railsback does not possess a CDL as required by the 
ELDT regulations, he is not requesting to teach new CDL applicants 
how to operate commercial vehicles. Instead, he is intending to 
instruct the classroom portion (i.e., ``theory'') about the safe and 
legal transportation of HM/dangerous goods aboard commercial motor 
vehicles. Mr. Railsback's application and list of qualifications he 
provided with his application is only a drop in the bucket of his 
actual qualifications and knowledge. Mr. Railsback served as a state 
trooper for the Kansas Highway Patrol, during which the majority of 
his career was spent as a commercial vehicle inspector and 
instructor. Mr. Railsback has instructed, led, and mentored 
countless inspectors and instructors across the United States 
throughout his career. Mr. Railsback is well known nationwide as an 
authority on commercial vehicle regulations, with a strong emphasis 
and specialty on HM regulations. I have never met another person 
with the level of knowledge and experience with the HM regulations, 
both the classroom instruction portion and real-world hands-on 
experience in the field applying the regulations, as Mr. Railsback. 
During Mr. Railsback's career I considered him THE authority on 
hazardous materials regulations.

    Five other individual commenters filed comments echoing support of 
the exemption request, for similar reasons.
    OOIDA commented in opposition citing several reasons, including 
OOIDA's participation as a primary industry stakeholder on the ELDTAC 
when the ``framework'' of the ELDT rule was agreed upon. OOIDA noted 
its support for the provision in the final ELDT rule that required CDL 
experience for training instructors, stating that ``we feel there is no 
substitute for an experienced behind-the-wheel trainer and employing 
these instructors will help achieve the objectives of the ELDT 
rulemaking.'' One other individual commenter opposed the exemption 
request, stating that while Mr. Railsback is a ``well-qualified HM 
instructor,'' he is not a qualified theory instructor under Part 380 
because he has never held a CDL.

VI. FMCSA Response to Comments and Decision

    FMCSA has evaluated Rex Railsback's application for exemption and 
the filed public comments and has independently verified Mr. 
Railsback's credentials. FMCSA grants the exemption. While OOIDA 
commented in opposition regarding the experience requirements in the 
ELDT regulations for training instructors, it bears note that for a 
theory instructor for HM training, there is no BTW training involved, 
as there is no skills test for an HM endorsement. Mr. Railsback has 
extensive experience teaching HM-related subjects and is a widely 
acknowledged subject matter expert in the transportation of hazardous 
materials by CMV. Further, because the theory instruction curriculum 
for the H endorsement does not include any BTW training, the Agency 
believes that the exemption will likely achieve a level of safety that 
is equivalent to, or greater than, the level that would be achieved 
absent such exemption, in accordance with Sec.  381.305(a).

Extent of the Exemption

    This exemption is granted to Mr. Rex Railsback as the owner of 
Railsback HMSP. The exemption from the requirement in 49 CFR 380.713(a) 
that training instructors must utilize theory instructors meeting the 
qualification requirements set forth in the definition of ``theory 
instructor'' in 49 CFR 380.605, will allow Mr. Railsback, through 
Railsback HMSP, to provide ELDT theory instruction for the H 
endorsement curriculum in Appendix E of Part 380 without meeting these 
requirements. The exemption is effective January 12, 2023 through 
January 12, 2028.

Robin Hutcheson,
Administrator.
[FR Doc. 2023-00444 Filed 1-11-23; 8:45 am]
BILLING CODE 4910-EX-P