[Federal Register Volume 88, Number 128 (Thursday, July 6, 2023)]
[Rules and Regulations]
[Pages 43065-43068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13731]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 391

[Docket No. FMCSA-2013-0147]


Qualification of Drivers: Skill Performance Evaluation Program; 
Virginia Department of Motor Vehicles Application for Exemption Renewal

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

ACTION: Notification of provisional renewal of exemption; request for 
comments.

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SUMMARY: FMCSA announces its decision to provisionally renew an 
exemption for truck and bus drivers who are licensed in the 
Commonwealth of Virginia and need a Skill Performance Evaluation (SPE) 
Certificate to operate commercial motor vehicles (CMV) in interstate 
commerce. The exemption enables interstate CMV drivers who are licensed 
in Virginia and are subject to the Federal SPE certificate requirements 
to continue to fulfill the Federal requirements with a State-issued SPE 
certificate that qualifies such drivers to operate CMVs in interstate 
commerce. The exemption renewal is for a period of 2 years.

DATES: This renewed exemption is effective from July 8, 2023, through 
July 7, 2025. Comments must be received on or before August 7, 2023.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-

[[Page 43066]]

2013-0147 using any of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. See the 
Public Participation and Request for Comments section below for further 
information.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m. E.T., Monday 
through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    Each submission must include the Agency name and the docket number 
(FMCSA-2013-0147) for this notification. Note that DOT posts all 
comments received without change to www.regulations.gov, including any 
personal information included in a comment. Please see the Privacy Act 
heading below.
    Docket: For access to the docket to read background documents or 
comments, go to www.regulations.gov at any time. If you do not have 
access to the internet, you may view the docket online by visiting 
Dockets Operations on the ground floor of the West Building, 1200 New 
Jersey Avenue SE, Washington, DC, 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.
    Privacy Act: In accordance with 49 U.S.C. 31315(b), DOT solicits 
comments from the public to better inform its exemption process. DOT 
posts these comments, without edit, including any personal information 
the commenter provides, to www.regulations.gov. As described in the 
system of records notice DOT/ALL 14--FDMS, which can be reviewed at 
https://www.transportation.gov/privacy, the comments are searchable by 
the name of the submitter.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief, 
Medical Programs Division, FMCSA, 1200 New Jersey Avenue SE, 
Washington, DC 20590, (202) 366-4001, [email protected]. If you have 
questions on viewing or submitting material to the docket, call Dockets 
Operations at (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
notification (FMCSA-2013-0147), indicate the specific page and section 
of this document to which your comment applies, and provide a reason 
for each suggestion or recommendation. You may submit your comments and 
material online or by fax, mail, or hand delivery, but please use only 
one of these means. FMCSA recommends that you include your name and a 
mailing address, an email address, or a phone number in the body of 
your document so FMCSA can contact you if there are questions regarding 
your submission.
    To submit your comment online, go to www.regulations.gov, insert 
the docket number ``FMCSA-2013-0147'' in the keyword box, and click 
``Search.'' Next, sort the results by ``Posted (Newer-Older),'' choose 
the first notification listed, click the ``Comment'' button, and type 
your comment into the text box on the following screen. Choose whether 
you are submitting your comment as an individual or on behalf of a 
third party and then submit.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b)(2) and 49 
CFR 381.300(b) to renew an exemption for a class of persons from the 
Federal Motor Carrier Safety Regulations for up to 5 years if it finds 
``such exemption would likely achieve a level of safety that is 
equivalent to, or greater than, the level that would be achieved absent 
such exemption'' (49 U.S.C. 31315(b)(1)). The Virginia Department of 
Motor Vehicles (VA DMV) has requested on behalf of Virginia-licensed 
drivers who require a Federal SPE certificate renewal of the current 
exemption. A copy of the request is available in Docket No. FMCSA-2013-
0147.

III. Background

Current Regulatory Requirements

    CMV drivers who are otherwise qualified to drive a CMV but are not 
physically qualified to drive under 49 CFR 391.49(b)(1) or (2) because 
of a loss or impairment of limbs, may drive a CMV if FMCSA has granted 
an SPE certificate to that person under 49 CFR 391.49.

Initial Decision Granting Exemption

    In 2014, FMCSA initially granted the VA DMV's request for exemption 
to enable Virginia-licensed drivers subject to the Federal SPE 
certificate requirements under 49 CFR 391.49 to fulfill the Federal 
requirements with a State-issued SPE certificate (79 FR 38659, July 8, 
2014). The exemption required the State-issued SPE certificate to be 
based on standards, processes, and procedures comparable to those used 
by FMCSA, and the State was required to maintain copies of all 
evaluation forms and certificates issued to allow FMCSA to conduct 
periodic reviews of the State's program. Virginia-licensed drivers who 
receive the State-issued SPE certificate are allowed to operate CMVs in 
interstate commerce. The exemption contained specific terms and 
conditions to ensure that the VA DMV maintained an equivalent level of 
safety to the Federal SPE process.

2016 and 2018 Renewals

    FMCSA renewed the exemption on the same terms and conditions for a 
2-year period from July 9, 2016, to July 9, 2018 (81 FR 44674, July 8, 
2016).\1\ FMCSA renewed the exemption again for a 5-year period, from 
July 8, 2018, to July 8, 2023 (84 FR 3532, Feb. 12, 2019).
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    \1\ At the time the first exemption was granted, the term of 
temporary exemptions was limited by statute to a maximum of 2 years. 
However, on December 4, 2015, Congress enacted the Fixing America's 
Surface Transportation (FAST) Act, which allows an exemption to be 
granted for a period of 5 years (49 U.S.C. 31315(b)(2)) if FMCSA 
finds ``such exemption would likely achieve a level of safety that 
is equivalent to, or greater than, the level that would be achieved 
absent such exemption'' (49 U.S.C. 31315(b)(1)).
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Renewal Request

    In its pending renewal request on behalf of the exempted drivers, 
the VA DMV noted that the current exemption allows trained staff from 
the Commonwealth of Virginia to review applications and conduct SPEs 
for Virginia commercial driver's license (CDL) holders and the Virginia 
DMV Commissioner to approve SPE certificates. It notes that the 
application package mirrors the package otherwise required by FMCSA for 
SPE applications. The VA DMV will use an identical process and 
identical standards to process SPE applications. It further noted that, 
``Virginia DMV staff assigned to review SPE application packages are 
medical professionals (licensed practical nurses and

[[Page 43067]]

Registered Nurses).'' In addition, it stated that the Medical Review 
staff receive FMCSA training on how to conduct a thorough review of the 
SPE application information and that new staff are required to go 
through an extensive orientation. It noted that the nurse evaluators 
and the overseeing Healthcare Compliance Officer (Registered Nurse) 
have all participated in training conducted by FMCSA or will have 
recently attended the training provided by FMCSA on May 22-24, 2023.
    Additionally, Medical Review staff forward those drivers who have 
met the Federal criteria for an SPE certificate to the Driver Licensing 
Quality Assurance (DLQA) staff to conduct the SPEs. The DLQA examiners 
hold Class A CDLs and have completed the FMCSA training required to 
conduct evaluations. Virginia states that since completing their 
training SPE examiners have coordinated with local FMCSA 
representatives to ensure retention of knowledge. The May 22-24, 2023, 
training will provide training to additional DLQA staff who have never 
had the class to allow Virginia to have a complement of examiners to 
accommodate any retirements in the future.
    The VA DMV noted that DLQA examiners are positioned across VA DMV's 
eight districts and each district has a CDL test site that can be used 
for the non-driving and off-highway portion of the SPE, and each 
district has a planned test route for the on-highway portion of the 
SPE. It states this minimizes the wait times for SPE applicants.
    Finally, the VA DMV notes that it has participated in audit 
reviews, record reviews, and submits regular reports to FMCSA as part 
of ongoing quality assurance process. Since the most recent July 2018 
renewal, the VA DMV notes that 37 Virginia drivers have applied for and 
obtained SPE certificates under the exemption and that an additional 40 
to 50 drivers renew their certificates each year.
    The VA DMV notes that its program has contributed to Virginia's 
commitment to being the most military and veteran-friendly state in the 
nation through the Troops to Trucks Program (www.dmvnow.com/troopstotrucks). And it states that expediting the SPE process assists 
wounded veterans and military personnel with transition to civilian 
employment and reduces the time between discharge and employment for 
many wounded veterans ``while addressing the trucking industry's 
shortage of qualified licensed commercial truck drivers.''

IV. Equivalent Level of Safety

    Virginia's SPE program is essentially identical to the current 
FMCSA SPE program and is subject to oversight by FMCSA to ensure that 
VA's processes are equivalent to FMCSA's SPE processes. Virginia 
continues to adhere to the application process modeled on the FMCSA 
process. State personnel who conduct the SPE complete the same training 
as FMCSA personnel conducting SPEs and follow the same procedures and 
testing criteria used by FMCSA. FMCSA has conducted ongoing monitoring 
and SPE program reviews and Virginia continues to maintain records of 
applications, testing, and certificates issued for periodic review by 
FMCSA. Based on FMCSA's analyses of the applications and the program, 
FMCSA has determined that continuing the exemption for the class of 
exempted drivers and continuing to allow the VA DMV to issue SPE 
certificates for Virginia residents will provide an equivalent level of 
safety as provided by FMCSA issuing the SPE certificates.
    FMCSA is unaware of any evidence of a degradation of safety 
attributable to the current exemption. There is no indication of an 
adverse impact on safety under the terms and conditions specified in 
the initial exemption or exemption renewals. FMCSA concludes that 
provisionally extending the exemption for a period of 2 years, under 
the terms and conditions listed below, will likely achieve a level of 
safety that is equivalent to, or greater than, the level of safety 
achieved without the exemption.

V. Exemption Decision

A. Granting of Exemption

    FMCSA provisionally renews the exemption for interstate Virginia-
licensed drivers to be relieved of the requirement for an SPE 
certificate issued by FMCSA under 49 CFR 391.49 for a period of 2 years 
subject to the terms and conditions of this decision and the absence of 
public comments that would cause the Agency to terminate the exemption 
under Sec. VII below. The exemption renewal is otherwise effective July 
8, 2023, through July 7, 2025, 11:59 p.m. local time, unless renewed or 
rescinded.

B. Terms and Conditions

    The exemption to allow the VA DMV to issue an SPE certificate for 
interstate drivers who have experienced an impairment or loss of a limb 
and are licensed in the Commonwealth of Virginia is subject to the 
following terms and conditions:
    1. VA DMV's SPE program must be substantially similar to the 
current requirements in 49 CFR 391.49.
    2. VA DMV must maintain an application process modeled on the FMCSA 
process and submit information concerning the application process to 
FMCSA's Medical Programs Division for review, as requested.
    3. State personnel who conduct SPEs must complete SPE training 
identical to that of FMCSA personnel currently administering the 
Federal SPE program.
    4. The SPE and scoring for the SPE must be done using the same 
procedures and testing criteria used by FMCSA.
    5. VA DMV must maintain records of applications, testing, and 
certificates issued for periodic review by FMCSA.
    6. VA DMV must submit a monthly report to FMCSA listing the names 
and license number of each driver tested by the State and the result of 
the SPE (pass or fail).
    7. As requested, the VA DMV must provide records required to be 
retained under this exemption and provide any other information 
necessary for FMCSA to evaluate the VA DMV's compliance with the terms 
and conditions of this exemption.
    8. Each driver who receives a State-issued SPE certificate must 
carry a copy of the certificate when driving for presentation to 
authorized Federal, State, or local law enforcement officials.

VI. Preemption

    During the period the exemption is in effect; no State shall 
enforce any law or regulation that conflicts with this exemption with 
respect to a person operating under the exemption. An exemption granted 
under the authority of 49 U.S.C. 31315(b) preempts State laws and 
regulations that conflict with or are inconsistent with the exemption. 
The decision to grant the exemption amounts to automatic Federal 
ratification of the State-issued SPE Certificate and therefore 
prohibits other jurisdictions from requiring a separate FMCSA-issued 
SPE. The State-issued certificate must be treated as if it had been 
issued by FMCSA. Virginia-licensed drivers who receive the State-issued 
SPE certificate are allowed to operate CMVs in interstate commerce.

VII. Termination

    If the Agency determines that safety is being compromised or if 
continuation of the exemption would not be consistent with the goals 
and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take 
immediate steps to revoke the exemption. The exemption will also be 
revoked if the exemption has resulted in a lower level of safety than 
was

[[Page 43068]]

maintained before it was granted; or continuation of the exemption 
would not be consistent with the goals and objectives of 49 U.S.C. 
31136, 49 U.S.C. chapter 313, or the Federal Motor Carrier Safety 
Regulations.

VIII. Request for Comments

    In accordance with 49 U.S.C. 31315(b), FMCSA requests public 
comment from all interested persons on the application for an 
exemption. All comments received before the close of business on the 
comment closing date indicated at the beginning of this notification 
will be considered and will be available for examination in the docket 
at the location listed under the ADDRESSES section of this 
notification. Comments received after the comment closing date will be 
filed in the public docket and will be considered to the extent 
practicable. In addition to late comments, FMCSA will also continue to 
file, in the public docket, relevant information that becomes available 
after the comment closing date. Interested persons should continue to 
examine the public docket for new material.

Robin Hutcheson,
Administrator.
[FR Doc. 2023-13731 Filed 7-5-23; 8:45 am]
BILLING CODE 4910-EX-P


