Entry-Level Driver Training: United Parcel Service, Inc. (UPS); Application for Exemption |
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Topics: UPS
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Jim Mullen
Federal Motor Carrier Safety Administration
9 December 2019
[Federal Register Volume 84, Number 236 (Monday, December 9, 2019)]
[Notices]
[Pages 67337-67339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26183]
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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);
Application for Exemption
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of final disposition; denial of exemption.
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SUMMARY: FMCSA announces its decision to deny United Parcel Service,
Inc.'s (UPS) application for exemption from two provisions in the
entry-level driver training (ELDT) final rule published on December 8,
2016. UPS requests a five-year exemption from the following provisions
in the ELDT final rule: The requirement that a driver training
instructor hold a Commercial Driver's License (CDL) and have two years'
experience driving a commercial motor vehicle (CMV), as set forth in
the definitions of ``behind-the-wheel (BTW) instructor'' and ``theory
instructor;'' and the requirement to register each training location in
order to obtain a unique Training Provider Registry (TPR) number
applicable to that location. FMCSA has analyzed the exemption
application and the public comments and determined that the applicant
has not demonstrated that it would likely achieve a level of safety
that is equivalent to, or greater than, the level that would be
achieved absent the requested exemptions.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and
Carrier Operations Division; Telephone: 202-366-4325; Email:
MCPSD@dot.gov. 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, as well as documents mentioned in this preamble
as being available in the docket, go to www.regulations.gov 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 the Docket Management Facility
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.
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 provide an opportunity for public comment on the
request.
The Agency reviews the 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
Agency's decision 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 specify the effective period (up to 5 years)
and explain its terms and conditions. The exemption may be renewed (49
CFR 381.300(b)).
III. Request for Exemption
United Parcel Service, Inc. (UPS) seeks an exemption from the
following
[[Page 67338]]
two provisions in the entry-level driver training (ELDT) final rule:
(1) The requirement in 49 CFR 380.713 that a driver training instructor
hold a commercial driver's license (CDL) and have two years' experience
driving a CMV, as set forth in the definitions of ``behind-the-wheel
(BTW) instructor'' and ``theory instructor'' in 49 CFR 380.605; and (2)
the requirement in 49 CFR 380.703(a)(7) that training providers with
multiple training locations must register each training location in
order to receive a unique Training Provider Registry (TPR) number
applicable to that location.
UPS states that its driver training school (DTS) trains its
employees to become driver instructors. Their DTS instructors have, on
average, 20 years of UPS experience, hold a CDL of the same or higher
class, and have all endorsements necessary to operate a CMV for which
training is provided; have completed the DTS instructor certification
program; have maintained their DTS certification through quarterly
additional training; and are employed by UPS as supervisors or
managers. The DTS conducts an 8-week program designed to train
supervisors and managers in UPS' long-haul operations to deliver driver
training to drivers at UPS worksites. All UPS driver instructors must
recertify every 90 days to demonstrate the same skill level shown for
their original DTS certification.
UPS states that, were it to comply with these instructor
qualification requirements, it would not be able to use at least 25% of
its current certified driver instructors, because they do not have the
requisite two years of CMV driving experience. According to UPS, in the
next two years that number would likely increase to 50% due to its
changing workforce. UPS expects an increase in growth through volume
demand, as well as an aging workforce that will lead to retiring CDL
drivers and certified driver instructors. Without an exemption from the
ELDT instructor requirements, UPS's inability to use its current driver
instructors will impede substantially its ability to meet the demand
for new drivers. UPS adds that the exemption is needed to meet
contractual requirements, as under its collective bargaining agreement
with the International Brotherhood of Teamsters (Teamsters), six
current UPS employees must be provided with a promotion opportunity for
every new hire.
Secondly, UPS requests an exemption from the requirement in 49 CFR
380.703(a)(7), that training providers with multiple training locations
must register each training location to receive a unique TPR number
applicable to that location. UPS states that new driver training may
occur at as many as 1,800 separate locations a year. In each location,
instructors who have been trained pursuant to UPS' DTS program will use
a common FMCSR-compliant curriculum developed at a corporate level.
UPS's Director of Driver Training is responsible for UPS's firm-wide
training program, and UPS is operating a single training program in
multiple locations. UPS states that this exemption is necessary due to
the significant administrative burden that would result if it had to
register every UPS location at which a new driver could be trained.
Having separate TPR numbers for multiple locations offering essentially
the same training could create internal confusion for UPS, drivers, and
the Agency. UPS estimates that the cost to register these locations
would be ``substantial'' and that it would incur additional costs to
keep track of the various registrations, file updates, and new driver
registrations.
IV. Public Comments
On June 19, 2019, FMCSA published notice of the UPS application for
exemption and requested public comment [84 FR 28623]. The Agency
received 112 comments, 58 supporting the exemptions and 51 opposing
them. Three other commenters had no position either for or against the
application and provided no substantive comments. Four organizations
opposed the exemptions: The Owner-Operator Independent Drivers
Association (OOIDA); the Commercial Vehicle Training Association
(CVTA); Trucker Nation; and the United States Transportation Alliance.
OOIDA strongly opposed both portions of the UPS request, stating
that ``the ELDT rule sets forth a process for registering training
providers that will hold schools and instructors accountable for their
performance. If these standards are maintained and enforced, highway
safety will unquestionably improve. OOIDA further opposed exempting UPS
from the requirement to separately register each training location for
a unique TPR number, commenting: ``The Agency also saw no rationale
under which motor carrier-operated training schools should be permitted
to opt out of the TPR registration requirements based on their size or
safety record.''
CVTA does not believe that UPS should be exempted from the current
two-year instructor requirements, nor does it believe that the company
should be exempted from registering each individual location where it
provides training. While CVTA agrees that the skills needed to
effectively teach, versus the skills acquired by driving for two years,
are different, they believe the regulation should be uniformly followed
by anyone training pre-CDL students. It is CVTA's belief that, by
granting the exemptions, the FMCSA would be setting a bad precedent,
and opening the floodgates for exemption requests from other training
providers.
TruckerNation also opposed both portions of the exemption request,
stating that the concerns raised by UPS have been addressed through
negotiated rulemaking and the public comment process. TruckerNation
asserted that approving this exemption request would contradict the
sound decisions previously made in the ELDT final rule and ultimately
undermine the goals of ELDT.
Fifty-eight individuals supported the UPS application. Most
supported only the first part of the exemption request--i.e., the
requirement in 49 CFR 380.713 that a driver training instructor hold a
CDL and have two years' CMV driving experience and, as set forth in the
definitions of BTW instructor and theory instructor in 49 CFR 380.605.
Most of these commenters cited the excellence of the UPS training
program and the company's overall safety record. Many commenters also
noted that UPS requires continuous instructor recertification
throughout the year, regardless of how long they have held a CDL.
V. Method To Ensure an Equivalent Level of Safety
UPS states that its ``train the trainer'' program within its DTS
will assure an equivalent level of safety. According to UPS, its DTS
produces highly skilled instructors who know how to drive tractor-
trailers and how to teach others to operate tractor-trailers in a safe
manner. UPS believes that graduates of its DTS training program are
better prepared to impart knowledge and skills to new drivers than
someone who has had two years of CMV driving experience. According to
UPS, experience over time has shown that their instructors produce
expertly trained, safe entry-level drivers. All DTS certified driver
instructors are re-certified every 90 days and UPS conducts periodic
(minimum annual) internal quality assessments of the DTS program. As to
the training provider registration requirements, UPS assures that the
registration requirements will be fulfilled by a single registration
for UPS' driver training program, managed by UPS, if the exemption were
granted.
[[Page 67339]]
In support of UPS's request for exemption from the requirement to
register each training location separately, the company cites the
uniformity of its driver instructor training and the fact that ``a
common FMCSR-compliant curriculum has been developed at the corporate
level.'' On that basis, UPS concludes that the objectives of location-
specific registration would be satisfied by a single UPS registration.
VI. FMCSA Response and Decision
FMCSA has evaluated the UPS application and the public comments
submitted and hereby denies the requested exemptions. The UPS
application does not provide an analysis of the safety impacts the
requested exemptions from the ELDT regulations may cause, as required
by 49 CFR 381.310(c)(4), and does 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).
The requirement that a driver training instructor hold a CDL, and
have either two years' experience driving a CMV of the same or higher
class, or two years' experience as a BTW CMV instructor, is necessary
to establish a sufficient minimum qualification standard for BTW
instructors. In the Agency's judgment, the rigorous instructor training
provided by UPS, while laudable, is not a substitute for CMV driving
experience. UPS therefore fails to provide an alternative to the
instructor requirements likely to ensure an equivalent level of safety,
and the request for exemption is hereby denied.
The Agency also denies UPS's request for an exemption from the
requirement, as set forth in 49 CFR 380.703(a)(7), that training
providers with more than one campus or training location must
electronically register each training location to receive a unique TPR
number applicable to that location. Qualified training providers are a
cornerstone of meaningful ELDT. FMCSA's ability to readily identify the
separate physical locations at which ELDT occurs is a reasonable
prerequisite to effective oversight of UPS's training operations. The
Agency needs to know the training location where an individual received
ELDT, for example, so that if State-administered skills or knowledge
test pass/fail rates appear to be outside the norm for drivers trained
at a specific location, FMCSA can follow-up appropriately. In addition,
UPS did not explain how a single UPS representative can be directly
responsible for managing and administering ELDT at all 1,800 locations.
It is reasonable to require that the individual actually administering
the ELDT program at a given location attest, under penalty of perjury,
to compliance with specific training requirements. Further, UPS does
not indicate whether the same type of ELDT is conducted at each of its
1,800 locations--e.g., do some locations offer only BTW training or
only knowledge training? Is specialized knowledge training, such as on
hazardous materials, offered at every UPS training location? The types
of ELDT offered at each training location is ``key information'' as
defined in 380.719(a)(3)(i), and is necessary for effective regulatory
oversight. For example, the extent of training offered at a specific
location may impact how FMCSA allocates its audit or investigation
resources. UPS's application does not explain how dispensing with the
location-specific TPR registration requirement would likely achieve an
equivalent level of safety. Therefore, the UPS request for exemption
from the TPR registration requirement is hereby denied.
Issued on: November 26, 2019.
Jim Mullen,
Acting Administrator.
[FR Doc. 2019-26183 Filed 12-6-19; 8:45 am]
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