Notice2022-19133
Entry-Level Driver Training: United Parcel Service, Inc. (UPS); Petition for Reconsideration of Original Application for Exemption
Primary source
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Published
September 6, 2022
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 171 (Tuesday, September 6, 2022)</title>
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[Federal Register Volume 87, Number 171 (Tuesday, September 6, 2022)]
[Notices]
[Pages 54588-54590]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
[[Page 54589]]
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; (202) 366-2722; <a href="/cdn-cgi/l/email-protection#d8959b888b9c98bcb7acf6bfb7ae"><span class="__cf_email__" data-cfemail="92dfd1c2c1d6d2f6fde6bcf5fde4">[email protected]</span></a>. 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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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]
BILLING CODE 4910-EX-P
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