Notice2023-15280
Entry-Level Driver Training: Robert Towle; Application for Exemption
Primary source
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Published
July 19, 2023
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
FMCSA announces its decision to deny the exemption application from Robert Towle, who sought an exemption on behalf of graduating students of the commercial driver's license (CDL) Prep Class of the New Hampshire Department of Corrections Special School District Granite State High School (GSHS) from two requirements in the entry-level driver training (ELDT) regulations. Mr. Towle requested an exemption from the requirement that a training provider use instructors who meet the definition of "theory instructor." Mr. Towle also requested an exemption from the requirement that an individual who applies for the first time for a Class A or B CDL, or who upgrades to a Class A or B CDL, complete training from a provider listed on the Training Provider Registry (TPR). FMCSA analyzed the exemption application and public comments and determined that the application lacked evidence that the exemption would likely achieve an equivalent or greater level of safety than would be achieved absent such exemption.
Full Text
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<title>Federal Register, Volume 88 Issue 137 (Wednesday, July 19, 2023)</title>
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[Federal Register Volume 88, Number 137 (Wednesday, July 19, 2023)]
[Notices]
[Pages 46368-46369]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15280]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2022-0180]
Entry-Level Driver Training: Robert Towle; Application for
Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; denial of application for
exemption.
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SUMMARY: FMCSA announces its decision to deny the exemption application
from Robert Towle, who sought an exemption on behalf of graduating
students of the commercial driver's license (CDL) Prep Class of the New
Hampshire Department of Corrections Special School District Granite
State High School (GSHS) from two requirements in the entry-level
driver training (ELDT) regulations. Mr. Towle requested an exemption
from the requirement that a training provider use instructors who meet
the definition of ``theory instructor.'' Mr. Towle also requested an
exemption from the requirement that an individual who applies for the
first time for a Class A or B CDL, or who upgrades to a Class A or B
CDL, complete training from a provider listed on the Training Provider
Registry (TPR). FMCSA analyzed the exemption application and public
comments and determined that the application lacked evidence that the
exemption would likely achieve an equivalent or greater level of safety
than would be achieved absent such exemption.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; 202-366-2722 or <a href="/cdn-cgi/l/email-protection#e092898388819284ce838c858d858e9485a0848f94ce878f96"><span class="__cf_email__" data-cfemail="d3a1bab0bbb2a1b7fdb0bfb6beb6bda7b693b7bca7fdb4bca5">[email protected]</span></a>. If you have
questions on viewing or submitting material to the docket, contact
Docket Services, telephone (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-2022-0180'' 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-2022-0180'' 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(b) 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 entry-level driver training (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 (i.e.,
classroom) and behind-the-wheel (BTW) training. These regulations also
established an online training provider registry (TPR), eligibility
requirements for providers to be listed on the TPR, and requirements
for training instructors.
Under 49 CFR 380.703(a)(4), a training provider must use
instructors who meet the definitions of ``Theory instructor'' and ``BTW
instructor,'' set forth in 49 CFR 380.605, to be eligible for listing
on the TPR. The core definitions of ``Theory instructor'' and ``BTW
instructor'' in 49 CFR 380.605 require that instructors 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 2 years of experience as a BTW CMV
instructor, and meet all applicable State qualification requirements
for CMV instructors.
There are exceptions to these requirements for theory instructors:
(1) an instructor is not required to 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, if the instructor previously held a CDL of
the same (or higher) class and complies with the other requirements set
forth in the definition; and (2) training providers offering online
content exclusively are not required to meet State qualification
requirements for theory instructors. In addition, if an instructor's
CDL has been cancelled, suspended, or revoked due to any of the
disqualifying offenses identified in 49 CFR 383.51, the instructor is
prohibited from engaging in theory instruction for 2 years following
the date his or her CDL is reinstated.
Under 49 CFR 380.609, an individual who applies, for the first
time, for a Class A or Class B CDL, who upgrades to a Class A or B CDL,
or is seeking to obtain a passenger (P), school bus (S), or hazardous
materials (H) endorsement for the first time must complete driver
training from a provider listed on the TPR, as set forth in 49 CFR part
380, subpart G.
Applicant's Request
Mr. Towle seeks an exemption from two provisions in the ELDT
regulations: (1) the definition of ``theory instructor''
[[Page 46369]]
in 49 CFR 380.605; and (2) the requirement in 49 CFR 380.609(a) that an
individual who applies for the first time for a Class A or B CDL, or
who upgrades to a Class A or B CDL, must complete training from a
provider listed on the TPR.
Mr. Towle explains that he is an incarcerated inmate in the New
Hampshire State Prison. According to Mr. Towle, the New Hampshire
Department of Corrections operates a Special School District, Granite
State High School (GSHS), that provides a CDL training class. Mr. Towle
states that the requested exemptions would allow eligible students at
GSHS to receive the requisite theory instruction in order to obtain
their Commercial Learner's Permit as a step towards job-readiness as
part of their community re-entry plan.
IV. Method To Ensure an Equivalent or Greater Level of Safety
In support of his argument that an equivalent level of safety will
be achieved, Mr. Towle notes that New Hampshire is operating under a
pilot model to continue using revised CDL pre-trip vehicle inspection
and revised controls skills test procedures following the completion of
field tests conducted under a waiver granted by the Agency. He argues
that the revised skills test would ``provide a comparable level of
rigor as the current tests to ensure that participating CDL applicants
demonstrate a level of knowledge and skills required to operate CMVs
safely.'' The tests would be administered in a controlled setting,
located within its skills testing facilities. All other safety
requirements, such as requiring the applicant to pass the traditional
on-road test segment of the skills test would continue to apply.
According to Mr. Towle, ``New Hampshire will continue to be prohibited
from using CDLs to field test applicants unless the applicant passes
all the required segments of the skills test.''
V. Public Comments
FMCSA published a notice requesting public comment on Robert
Towle's application on December 1, 2022 [87 FR 73803]. The Agency
received eight comments; seven opposed granting the exemption and one
supported it. The Truck Safety Coalition, Citizens for Reliable and
Safe Highways, and Parents Against Tired Truckers jointly filed
comments in opposition stating, ``Reducing the experience level and
quality of training provided by verified, qualified instructors
unnecessarily risks the lives of all roadway users and fails to provide
Mr. Towles with the quality of education needed to best set him up for
success as a professional truck driver. The best course of action for
all parties is for GSHS to take the measures necessary to fully comply
with ELDT training requirements in the provision of its CDL training
class.''
The one commenter in support of granting the exemption stated: ``If
we are serious about rehabilitation and preparing our incarcerated, who
desire to move on with their lives, and wanting to provide for their
families, promote the justice system and become fruitful and ``normal''
citizens, I wholeheartedly agree with this and wish for the FMCSA to
grant this exemption and promote it to all educational systems in
prisons who are providing this training.''
VI. FMCSA Safety Analysis and Decision
Under 49 U.S.C. 31315(b)(1), to grant an exemption, FMCSA must
``find that the exemption would likely achieve a level of safety that
is equivalent to, or greater than, the level that would be achieved
absent such exemption.'' Among other requirements, 49 CFR 381.310(c)(5)
requires a person seeking an exemption to explain how the exemption
would likely achieve an equivalent level of safety.
FMCSA evaluated Robert Towle's application and the public comments.
The Agency denies his request for exemption from the definition of
``theory instructor'' in 49 CFR 380.605; definitions are not, in and of
themselves, regulatory requirements and are therefore not subject to
exemption. The Agency believes that the requisite two years' experience
in operating a CMV for which training is to be provided, or in
providing BTW instruction for the operation of the CMV, is essential in
providing appropriate theory instruction to entry-level drivers. These
core qualification requirements are embedded in the definition of
``theory instructor'' and, under 49 CFR 380.703(a)(4), ELDT providers
must use theory instructors meeting the criteria set forth in 49 CFR
380.713 (which cross-references 49 CFR 380.605).
The Agency also denies the request for exemption from 49 CFR
380.609(a) because Mr. Towle did not provide sufficient evidence to
establish that the exemption would provide an equivalent level of
safety as compliance with the existing requirement that applicants
obtain theory instruction from a training provider listed on the TPR.
Mr. Towle states that, under the requested exemption, an equivalent
level of safety would be achieved because the State of New Hampshire is
currently participating in a CDL skills test pilot program, which
provides a ``comparable level of rigor'' to the current CDL skills
test. The State's participation in the pilot program, however, is
entirely unrelated to the requirement that a CDL applicant receive
theory training from a provider listed on the TPR, as set forth in 49
CFR 380.609(a).
Further, a potential training provider must meet all of the
applicable eligibility requirements to be listed on the TPR, including
the use of qualified theory instructors (as defined in 49 CFR 380.605),
as set forth in 49 CFR 380.703(a)(4). Again, the applicant did not
provide information establishing that an equivalent level of safety
would be maintained by allowing an individual to receive theory
instruction from a training provider that is not listed on the TPR. The
TPR is a critical piece of the ELDT program, ensuring that ELDT
providers meet the eligibility requirements in 49 CFR part 380, subpart
G. The TPR, by receiving and retaining driver certification information
from training providers and relaying it to States prior to the issuance
of a Class A or Class B, also ensures that individual CDL applicants
receive ELDT from a qualified training provider.
For reasons stated Robert Towle's exemption application is
denied.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-15280 Filed 7-18-23; 8:45 am]
BILLING CODE 4910-EX-P
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</html>Indexed from Federal Register on July 19, 2023.
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.