Notice2023-00444
Entry Level Driver Training: Railsback HazMat Safety Professionals, LLC; Application for Exemption
Primary source
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Published
January 12, 2023
Effective
January 12, 2023
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 8 (Thursday, January 12, 2023)</title>
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[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Notices]
[Pages 2162-2163]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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; <a href="/cdn-cgi/l/email-protection#45372c262d2437216b26292028202b312005212a316b222a33"><span class="__cf_email__" data-cfemail="43312a202b2231276d202f262e262d372603272c376d242c35">[email protected]</span></a>. 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 <a href="http://www.regulations.gov">www.regulations.gov</a>, 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 <a href="http://www.regulations.gov">www.regulations.gov</a>, 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:
<bullet> 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;
<bullet> 20 years' experience as an FMCSA, National Training Center
(NTC) North American Standard (NAS) Inspection Part B and HM
Instructor;
<bullet> 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;
<bullet> 14 years' experience as an FMCSA, NTC Instructor
Development Coach;
<bullet> 9 years' experience conducting compliance reviews,
specializing in HM carriers and shippers;
<bullet> 5 years' experience conducting Cargo Tank facility
reviews;
<bullet> Member and subject matter expert for several FMCSA, NTC
course development and update working groups;
<bullet> Previous Region III COHMED Chairman;
<bullet> Previous COHMED International Chairman;
<bullet> Former Lead MCSAP Trainer, Training Coordinator and
Training Lieutenant for the Kansas Highway Patrol Troop 1;
<bullet> 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
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.