[Federal Register Volume 88, Number 137 (Wednesday, July 19, 2023)]
[Notices]
[Pages 46368-46369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 [email protected]. 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 www.regulations.gov, 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 www.regulations.gov, 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


