# Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-03869 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** March 7, 2016 - **Citation:** 81 FR 11944 ## Text DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 380, 383, and 384 [FMCSA-2007-27748] RIN 2126-AB66 Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of proposed rulemaking (NPRM), request for public comments. SUMMARY: FMCSA proposes new training standards for certain individuals applying for their initial commercial driver's license (CDL); an upgrade of their CDL ( e.g., a Class B CDL holder seeking a Class A CDL); or a hazardous materials, passenger, or school bus endorsement for their license; and a “refresher” training curriculum. These individuals would be subject to the proposed entry-level driver training requirements and must complete a course of instruction provided by an entity that: Meets the minimum qualifications for training providers; covers the curriculum; is listed on FMCSA's proposed Training Provider Registry; and submits electronically to FMCSA the training certificate for each individual who completes the training. This NPRM responds to a Congressional mandate imposed under the Moving Ahead for Progress in the 21st Century Act. The proposed rule is based on consensus recommendations from the Agency's Entry-Level Driver Training Advisory Committee (ELDTAC), a negotiated rulemaking committee which held a series of meetings between February and May 2015. The compliance date of this proposed rule would be three years after the effective date of the final rule. DATES: You must submit comments on or before April 6, 2016. ADDRESSES: You may submit comments identified by docket number FMCSA-2007-27748 using any one of the following methods: • Federal eRulemaking Portal: www.regulations.gov. • Fax: 202-493-2251. • Mail: Docket Services (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. • Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329. To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” heading under the SUPPLEMENTARY INFORMATION section below for instructions regarding submitting comments. Comments received after the comment closing date will be included in the docket, and we will consider late comments to the extent practicable. FMCSA may, however, issue a final rule at any time after the close of the comment period. FOR FURTHER INFORMATION CONTACT: If you have questions about this proposed rule, contact Mr. Richard Clemente, Driver and Carrier Operations (MC-PSD) Division, FMCSA, 1200 New Jersey Ave. SE., Washington, DC 20590-0001, by telephone at 202-366-4325, or by email at MCPSD@dot.gov. If you have questions about viewing or submitting material to the docket, contact Docket Services, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: This notice of proposed rulemaking (NPRM) is organized as follows: I. Public Participation and Request for Comments A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act II. Executive Summary III. Abbreviations and Acronyms IV. Legal Basis for the Rulemaking V. Regulatory and Legal History VI. General Discussion of the Proposal VII. Section-by-Section Explanation of the Proposed Changes VIII. Regulatory Analyses A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies and Procedures as Supplemented by E.O. 13563) B. Regulatory Flexibility Act (Small Entities) C. Assistance for Small Entities D. Unfunded Mandates Reform Act of 1995 E. Paperwork Reduction Act (Collection of Information) F. E.O. 13132 (Federalism) G. E.O. 12988 (Civil Justice Reform) H. E.O. 13045 (Protection of Children) I. E.O. 12630 (Taking of Private Property) J. Privacy K. E.O. 12372 (Intergovernmental Review) L. E.O. 13175 (Indian Tribal Governments) M. E.O. 13211 (Energy Supply, Distribution, or Use) N. National Technology Transfer and Advancement Act (Technical Standards) O. Environment (NEPA, CAA, E.O. 12898 Environmental Justice) I. Public Participation and Request for Comments FMCSA encourages you to participate in this rulemaking by submitting comments and related materials. A. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (FMCSA-2007-27748), indicate the heading of the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online, 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 the Agency can contact you if it has questions regarding your submission. However, see the Privacy Act section below. To submit your comment online, go to www.regulations.gov, type the docket number, “FMCSA-2007-27748” in the “Keyword” box, and click “Search.” When the new screen appears, click the “Comment Now!” button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party, and click ”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. Confidential Business Information Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the general public by the submitter. Under the Freedom of Information Act, CBI is eligible for protection from public disclosure. If you have CBI that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Accordingly, please mark each page of your submission as “confidential” or “CBI.” Submissions designated as CBI and meeting the definition noted above will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Brian Dahlin, Chief, Regulatory Analysis Division, 1200 New Jersey Avenue SE., Washington, DC 20590. Any commentary that FMCSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking. FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments. B. Viewing Comments and Documents To view comments and any document mentioned in this preamble, go to www.regulations.gov, insert the docket number, “FMCSA-2007-27748” in the “Keyword” box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document listed to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Services 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. C. Privacy Act In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking 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 www.dot.gov/privacy. II. Executive Summary Purpose and Summary of Major Provisions A. Purpose of the Entry-Level Driver Training Proposed Rule The Agency believes this rulemaking would enhance the safety of commercial motor vehicle (CMV) operations on our Nation's highways by establishing a more extensive entry-level driver training (ELDT) protocol and by increasing the number of drivers who receive ELDT. It would revise the standards for mandatory training requirements for entry-level operators of CMVs in interstate and intrastate operations who are required to possess a commercial driver's license (CDL). FMCSA proposes new training standards for certain individuals applying for an initial CDL, an upgrade of their CDL 1 ( e.g., a Class B CDL holder seeking a Class A CDL), or a hazardous materials, passenger, or school bus endorsement for their license. Specifically, these individuals would be subject to the proposed ELDT requirements and must complete a course of instruction provided by an entity that (1) meets the minimum qualifications for training providers, (2) covers the curriculum, (3) is listed on FMCSA's proposed Training Provider Registry (TPR), and (4) submits electronically to FMCSA the training certificate for each individual who completes the training. 1 Class A covers all large, articulated vehicles, usually tractor/trailers Class B vehicles include both large straight trucks and buses. FMCSA's legal authority to propose this rulemaking is derived from the Motor Carrier Act of 1935, the Motor Carrier Safety Act of 1984, the Commercial Motor Vehicle Safety Act of 1986, and the Moving Ahead for Progress in the 21st Century Act. B. Summary of Major Provisions The proposed rule would primarily revise 49 CFR part 380, Special Training Requirements. It would require an individual who must complete the CDL skills test requirements, defined as an “Entry-Level Driver”, to receive mandatory training. The proposed rule applies to persons who drive, or intend to drive, CMVs in either interstate or intrastate commerce. Military drivers, farmers, and firefighters are generally excepted from the CDL requirements in part 383, and they are excepted from this proposed rule. The NPRM proposes a Class A and Class B CDL core curriculum; training curricula related to hazardous materials (H); passenger (P); and school bus (S) endorsements; and a “refresher” training curriculum. The core, endorsement, and refresher curricula generally are subdivided into theory and behind-the-wheel (BTW) (range and public road) segments. There is no proposed minimum number of hours that driver-trainees must spend on the theory portions of any of the individual curricula. The NPRM proposes that Class A CDL driver-trainees must receive a minimum of 30 hours of BTW training, with a minimum of 10 hours on a driving range. Driving on a public road would also be required, and Class A CDL driver-trainees may fulfill this requirement by either (1) driving 10 hours on a public road, or (2) 10 public road trips (each no less than 50 minutes in duration). Class B CDL driver-trainees must receive a minimum of 15 hours of BTW training, with a minimum of 7 hours of public road driving. And irrespective of the number of hours of BTW training, the training provider must not issue the training certificate unless the student demonstrates proficiency in operating the CMV. The NPRM also proposes that a CDL holder who has been disqualified from operating a CMV must successfully complete refresher training. Training providers must provide instruction on all elements of the applicable curriculum. The NPRM would apply to entities that train, or expect to train, entry-level drivers, also referred to as herein as driver-trainees. Training providers, must, at a minimum, offer and teach a training curriculum that meets all FMCSA standards for entry-level drivers and must also meet requirements related to: Course administration, qualifications for instructional personnel, assessments, issuance of training certificates, and training vehicles ( i.e., equipment). Training providers that meet these requirements would be eligible for listing on FMCSA's TPR and must continue to meet the eligibility requirements in order to stay listed on the TPR. Training providers must also attest that they meet the specified requirements, and in the event of an FMCSA audit or investigation of the provider, must supply documentary evidence to verify their compliance. The NPRM also proposes conforming changes to parts 383 and 384. The proposed compliance date for this rule is 3 years after the effective date of the final rule, which would provide the States with sufficient time to pass necessary implementing legislation, to modify their information systems to begin recording the training provider's certificate information on the Commercial Driver's License Information System (CDLIS) driver record, and to begin making that information available from the CDLIS driver record. This proposed phase-in period would also allow time for the driver training industry to develop and begin offering training programs that meet the eligibility requirements for listing on the TPR. Benefits and Costs Entry-level drivers, motor carriers, training providers, State driver licensing agencies (SDLAs), and the Federal Government would incur costs for compliance and implementation. The costs of the proposed rule include tuition expenses, the opportunity cost of time while in training, compliance audit costs, and costs associated with the implementation of the TPR. As shown in table 1, FMCSA estimates that the 10-year cost of the proposed rule would total $5.55 billion on an undiscounted basis, $4.86 billion discounted at 3%, and $4.15 billion discounted at 7% (all in 2014 dollars). Values in table 1 are rounded to the nearest million. Table 1—Total Cost of the Proposed Rule [In millions of 2014$] Year Undiscounted Entry-level drivers Motor carriers Training providers SDLAs Federal Government Total Discounted Discounted at 3% Discounted at 7% 2020 $490 $27 $10 $26 $6 $559 $559 $559 2021 495 27 7 0 1 530 515 495 2022 501 28 8 0 1 538 507 470 2023 506 28 7 0 1 542 496 442 2024 511 28 8 0 1 548 487 418 2025 517 29 7 0 1 554 478 395 2026 522 29 8 0 1 560 469 373 2027 538 29 7 0 1 565 459 352 2028 533 30 8 0 1 572 452 333 2029 539 30 7 0 1 577 442 314 Total 5,142 285 77 26 15 5,545 4,864 4,151 Annualized 555 554 552 The costs presented in table 1 include the costs associated with the S endorsement training requirement of the proposed rule, however the costs of the proposed rule specifically attributable to the proposed S endorsement training requirement were also evaluated separately. Details are presented in the Regulatory Impact Analysis (RIA), which is available in the docket. This separate analysis of the costs of the proposed rule specifically attributable to the proposed S endorsement training requirement was done because Section 32304 of MAP-21 statutorily mandates training for new entry-level drivers who wish to obtain a CDL, or a P endorsement, or an H endorsement, but is silent with respect to the S endorsement. The analysis shows that inclusion of the proposed S endorsement training requirement increases the total cost of the rule by only approximately 0.36%. On an annualized basis at a 7% discount rate, this equates to an increase in the total cost of the rule from $550 million to the $552 million that is shown in Table 1. This proposed rule would result in benefits to CMV operators, the trucking industry, the traveling public, and to the environment. FMCSA estimated benefits in two broad categories: Non-safety benefits and safety benefits. Training would lead to more efficient driving techniques, resulting in a reduction in fuel consumption and consequently lowering environmental impacts associated with carbon dioxide emissions. Training that promotes safer, more efficient driving has been shown to reduce maintenance and repair costs. Training related to the performance of complex tasks may improve performance; in the context of the training required by this proposed rule, improvement in task performance may reduce the frequency and severity of crashes thereby resulting in safer roadways for all. Table 2 presents the directly quantifiable benefits that FMCSA projects would result from the proposed rule (all in 2014 dollars, values rounded to the nearest million). Table 2—Total Quantifiable Benefits of the Proposed Rule [In millions of 2014$] Year Undiscounted Value of fuel savings Value of CO 2 reduction a Maintenance and repair cost savings Total b Discounted Discounted at 3% Discounted at 7% 2020 $75 $13 $44 $132 $132 $132 2021 127 22 75 223 217 209 2022 157 26 91 274 258 241 2023 160 27 92 279 256 231 2024 163 27 94 284 253 220 2025 166 28 95 289 249 210 2026 170 28 96 294 246 201 2027 172 29 97 298 242 191 2028 175 29 98 302 238 182 2029 178 29 99 305 234 173 Total 1,543 258 880 2,680 2,325 1,989 Annualized 268 265 265 Notes: a The monetized benefits associated with reduced CO 2 emissions are discounted at the 3% discount rate in both the “discounted at 3%” and “discounted at 7%” columns. This is in keeping with the guidance of the Interagency Working Group that developed the OMB guidance on monetizing CO 2 reductions, and is consistent with past USDOT and EPA practices. Further details on the monetization of CO 2 reductions are presented in Section 4.1.2 of the RIA. b Total benefit values may not equal the sum of the components due to rounding (the totals shown in this column are the rounded sum of unrounded components). The directly quantifiable benefits of the proposed rule that are presented in Table 2 assume a future baseline in which a joint FMCSA/NHTSA Heavy Vehicle Speed Limiters rule would be in effect. This approach was intended to be a conservative assumption, in that it reduces the potential amount of baseline industry fuel consumption from which the possible benefits of reductions in fuel consumption and CO 2 emissions from the proposed ELDT rule may be realized. Because of the uncertainty of when the FMCSA/NHTSA Heavy Vehicle Speed Limiters proposed rule will be published for public comment or how those comments may influence a final rule, an alternative baseline for the proposed ELDT rule in which there would be no Speed Limiters rule, and thus no effect from speed limiters upon baseline industry fuel consumption, was also analyzed. The details regarding this approach and the estimated reductions in fuel consumption and CO 2 emissions of the proposed ELDT rule are presented in the RIA which is available in the docket. This alternative baseline results in slightly higher total quantifiable benefits for the proposed ELDT rule, because any assumed reduction in baseline industry fuel consumption resulting from a Speed Limiters rule would not be present. Table 3 presents a comparison of the total estimated quantifiable benefits of the proposed ELDT rule both with and without a Speed Limiters rule in the baseline. Under such an alternative baseline reflecting no impact from a potential Speed Limiters rule, the total quantifiable benefits from the proposed ELDT rule, on an annualized basis at a 7% discount rate, would increase by $9 million to $274 million from the $265 million that would be realized under a baseline scenario that does incorporate the effects of a Speed Limiters rule. This represents an increase of 3.4% in total quantifiable benefits. Because this 3.4% increase in the total quantifiable benefits is relatively modest, and because the baseline scenario that does incorporate the effects of a Speed Limiters rule is the more conservative assumption as it results in somewhat lower benefits and somewhat higher net costs of the proposed ELDT rule, the quantifiable benefits, net costs, and threshold analysis of the proposed ELDT rule that are presented here represent those that incorporate the effects of a Speed Limiters rule in the baseline. Table 3—Comparison of Total Quantifiable Benefits With and Without Baseline Adjustment for Speed Limiters Rule [In millions of 2014$] Year With speed limiters adjustment 3% Discount rate 7% Discount rate Without speed limiters adjustment 3% Discount rate 7% Discount rate 2020 $132 $132 $137 $137 2021 217 209 224 217 2022 258 241 267 249 2023 256 231 265 239 2024 253 220 262 228 2025 249 210 258 218 2026 246 201 255 208 2027 242 191 251 198 2028 238 182 247 189 2029 234 173 243 179 Total 2,325 1,989 2,409 2,062 Annualized 265 265 274 274 While FMCSA believes that the proposed rule would at minimum achieve cost-neutrality, the net of quantified costs and benefits (presented in table 4 below) results in an annualized net cost of $287 million at a 7% discount rate. This estimate is based only on quantifiable costs and benefits attributable to this proposed rule; it makes no claims regarding safety benefits which are discussed below. Table 4—Net Cost of the Proposed Rule, Absent Quantifiable Safety Benefits [In millions of 2014$] Year 3% Discount rate 7% Discount rate 2020 $427 $427 2021 298 286 2022 249 229 2023 240 211 2024 234 198 2025 229 185 2026 223 172 2027 217 161 2028 214 151 2029 208 141 Total 2,539 2,161 Annualized 289 287 The lack of data directly linking training to improvements in safety outcomes, such as reduced crash frequency or severity, posed a challenge to the Agency throughout the development of the RIA. Discussion regarding the efforts undertaken by FMCSA and its partners in the negotiated rulemaking process to establish such a quantitative link is presented in the RIA. Although no empirical evidence linking safety to training was identified in this process, there remains a strongly held belief among stakeholders—including all who participated in the negotiated rulemaking—and the Agency that safety-oriented training does improve safety outcomes. The long-standing industry practice of providing such training to drivers—often at carriers' expense—supports the notion that such training is not without merit. In the absence of a clear empirical link between training and safety, FMCSA followed the guidance of the Office of Management and Budget (OMB) in its Circular A-4 to perform a threshold analysis to determine the degree of safety benefits that would need to occur as a consequence of this proposed rule in order for the rule to achieve cost-neutrality. 2 As documented in detail in the RIA, an 8.15% improvement in safety performance (that is, an 8.15% reduction in the frequency of crashes involving those new entry-level drivers who would receive additional pre-CDL training as a result of this proposed rule during the period for which the benefit of training remains intact) is necessary to offset the $287 million (annualized at 7%) net cost of the rule. 2 Office of Management and Budget. Circular A-4. Regulatory Analysis. September 17, 2003. Available at: https://www.whitehouse.gov/omb/circulars_a004_a-4/ (accessed July 23, 2015). Table 5 below presents the projected number of crash reductions involving new entry-level drivers that must occur in each of the 10 years and in aggregate, in order to offset the net cost ($287 million annualized at 7%). To be clear, it is the sum of the monetized value of all columns of table 5—not the sum of the monetized value of any individual column—that results in cost-neutrality. Table 5—Crash Reductions Involving New Entry-Level Drivers, by Type, Necessary To Achieve Cost-Neutrality Year Number of fatal crashes Number of injury crashes Number of property damage only (PDO) crashes 2020 6 127 421 2021 10 211 702 2022 12 253 842 2023 12 253 842 2024 12 253 842 2025 12 253 842 2026 12 253 842 2027 12 253 842 2028 12 253 842 2029 12 253 842 Average (rounded to nearest whole number) 11 236 786 Total 115 2,364 7,857 III. Abbreviations and Acronyms Full name Abbreviation or acronym American Association of Motor Vehicle Administrators AAMVA. Americans with Disabilities Act ADA. Anti-lock Braking Systems ABS. Assessing the Adequacy of Commercial Motor Vehicle Driver Training Adequacy Report. Advocates for Highway and Auto Safety Advocates. Advance Notice of Proposed Rulemaking ANPRM. American Trucking Associations ATA. American Transportation Research Institute ATRI. Behind the wheel BTW. Clean Air Act CAA. Categorical Exclusion CE. Commercial Driver's License CDL. Commercial Driver's License Information System CDLIS. Code of Federal Regulations CFR. Commercial Learner's Permit CLP. Commercial Motor Vehicle CMV. Commercial Motor Vehicle Safety Act of 1986 CMVSA. Compliance, Safety and Accountability CSA. Commercial Vehicle Safety Alliance CVSA. Commercial Vehicle Training Association CVTA. U.S. Court of Appeals for the District of Columbia Circuit DC Circuit. Director, Office of Carrier, Driver, and Vehicle Safety Standards Director. U.S. Department of Transportation DOT. U.S. Department of Education ED. Entry-Level Driver Training ELDT. Entry-Level Driver Training Advisory Committee ELDTAC. Executive Order EO. Federal Highway Administration FHWA. Federal Motor Carrier Safety Administration FMCSA. Federal Motor Carrier Safety Regulations FMCSRs. Gross Vehicle Weight Rating GVWR. Hazardous Materials Endorsement H. Hazardous Materials HM. Hazardous Materials Safety Permit HMSP. Hours of Service HOS. Longer Combination Vehicle LCV. Moving Ahead for Progress in the 21st Century Act MAP-21. Motor Carrier Safety Act of 1984 MCSA. Motor Carrier Safety Advisory Committee MCSAC. North American Fatigue Management Program NAFMP. National Association of Publicly Funded Truck Driving Schools NAPFTDS. National Association of Small Trucking Companies NASTC. National Environmental Policy Act NEPA. National Governors' Association NGA. National Highway Traffic Safety Administration NHTSA. Notice of Proposed Rulemaking NPRM. National Transportation Safety Board NTSB. Owner-Operator Independent Drivers Association, Inc. OOIDA. Office of Management and Budget OMB. Out-of-service OOS. Pipeline and Hazardous Materials Safety Administration PHMSA. Privacy Impact Assessment PIA. Paperwork Reduction Act PRA. Professional Truck Driver Institute PTDI. State Driver Licensing Agency SDLA. Truckload Carriers Association TCA. Training Provider Registry TPR. Transportation Research Board TRB. United States Code U.S.C. IV. Legal Basis for the Rulemaking This NPRM is based on the authority of the Motor Carrier Act of 1935, the Motor Carrier Safety Act of 1984, and the Commercial Motor Vehicle Safety Act of 1986 (CMVSA), as described below. It also implements section 32304 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) requiring the establishment of minimum driver training standards for certain individuals required to hold a CDL. In addition, the proposed rule responds to the March 10, 2015, order of the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit), referenced further below. This NPRM reflects the recommendations of FMCSA's Entry Level Driver Training Advisory Committee (ELDTAC), comprised of 25 industry stakeholders and FMCSA, convened earlier this year through a negotiated rulemaking, as discussed below. The Motor Carrier Act of 1935, codified at 49 U.S.C. 31052 (b), provides that “The Secretary of Transportation may prescribe requirements for—(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation.” This NPRM would improve the “safety of operation” of entry-level “employees” who operate CMVs, as defined in 49 CFR 383.5, by enhancing the training they receive before obtaining or upgrading a CDL. The Motor Carrier Safety Act of 1984 (MCSA), codified at 49 U.S.C. 31136(a), provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation to prescribe regulations for CMV safety to ensure that (1) CMVs are maintained, equipped, loaded, and operated safely; (2) responsibilities imposed on CMV drivers do not impair their ability to operate the vehicles safely; (3) drivers' physical condition is adequate to operate the vehicles safe; (4) the operation of CMVs does not have a deleterious effect on the drivers' physical condition; and (5) CMV drivers are not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a CMV in violation of regulations promulgated under this section, or chapter 51 or chapter 313 of this title (49 U.S.C. 31136(a)). This NPRM is based specifically on 49 U.S.C. 31136(a)(1), requiring regulations to ensure that CMVs are “operated safely,” and secondarily on section 31136(a)(2), requiring that regulations ensure that “the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely.” The proposed rule enhances the training of entry-level drivers to further ensure that they operate CMVs safely and meet the operational responsibilities imposed on them. This rulemaking does not directly address medical standards for drivers (section 31136(a)(3)) or possible physical effects caused by driving CMVs (section 31136(a)(4)). However, to the extent that the various curricula proposed today address health and wellness issues that facilitate the safe operation of CMVs (section 31136(a)(3)), has been considered and addressed. Also, to the extent that curriculum addresses idling and related health effects (section 31136(a)(4)), has been considered and addressed. FMCSA does not anticipate that drivers will be coerced (section 31136(a)(5)) as a result of this rulemaking. However, we note that the training curricula proposed for Class A and B CDLs and for refresher training includes a unit addressing the right of an employee to question the safety practices of an employer without incurring the risk of losing a job or being subject to reprisal simply for stating a safety concern. Driver-trainees will also be instructed in procedures for reporting to FMCSA incidents of coercion from motor carriers, shippers, receivers, or transportation intermediaries. CMVSA provides, among other things, that the Secretary of Transportation shall prescribe regulations on minimum standards for testing and ensuring the fitness of an individual operating a commercial motor vehicle (49 U.S.C. 31305(a)). The requirement of today's proposed rule that States test only those entry-level CDL applicants who have completed the training proposed by this NPRM falls within the “minimum standards for testing” authorized by the CMVSA. The training requirement itself, as described below, was created by section 32304 of MAP-21. MAP-21 requires DOT to regulate ELDT. Public Law 112-141, section 32304, 126 Stat. 405, 791 (July 6, 2012). MAP-21 modified 49 U.S.C. 31305 by adding paragraph (c), which requires FMCSA to issue ELDT regulations. The regulations must address the knowledge and skills necessary for safe operation of a CMV that must be acquired before obtaining an initial CDL or upgrading from one class of CDL to another. MAP-21 also requires that training apply to CMV operators seeking passenger or hazardous materials endorsements (49 U.S.C. 31305(c)(1) and (2)). Although the statute specifically requires that the regulations include both classroom and behind-the-wheel instruction, MAP-21 otherwise allows FMCSA broad discretion to define the training methodology, standards, and curriculum necessary to satisfy the ELDT mandate. MAP-21 clearly establishes the scope of operations to be covered by this rulemaking by requiring that ELDT regulations apply to prospective CDL holders operating in both interstate and intrastate commerce. The ELDT requirements are codified in section 31305, and the definition of a CMV in section 31301(4) therefore applies to ELDT. The definition of “commerce” in section 31301(2) covers both interstate commerce (paragraph A) and intrastate commerce (paragraph B). ELDT, as a CDL-related mandate, therefore applies to interstate and intrastate commerce. The ELDTAC recommended the inclusion of a school bus (S) endorsement in the NPRM, although MAP-21 did not specifically mandate training for this endorsement. The current FMCSRs require that, in order for a driver to obtain the S endorsement, he or she must first obtain either a Class A or Class B CDL, as well as pass the knowledge and skills test for a passenger vehicle (P) endorsement (49 CFR 383.123). FMCSA believes that, since Congress recognized the importance of entry-level training in the operation of passenger vehicles by including the P endorsement within the scope of the MAP-21 mandate in section 31305(c), the inclusion of the S endorsement training curriculum in the NPRM is entirely consistent with that mandate. While 49 U.S.C. 31305(c) clearly applies to entry-level CMV drivers—understood as new drivers—FMCSA believes that refresher training is necessary for essentially the same reason. CDL holders who have been disqualified from operating a CMV, have either never learned the necessary skills for safe operation of a CMV or have allowed those skills to deteriorate to the point where they have no greater mastery of operational safety than individuals who have not previously driven a CMV. The Agency believes that requiring refresher training for those drivers is well within the purpose and intent of the training mandate required in 49 U.S.C. 31305(c). Before prescribing any regulations, FMCSA must consider their “costs and benefits” (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those factors are discussed in the RIA associated with this rulemaking. V. Regulatory and Legal History Initial Efforts To Address ELDT In the early 1980s, the Federal Highway Administration's (FHWA) Office of Motor Carriers, the predecessor to FMCSA, determined that there was a need for technical guidance in the area of truck driver training. This need was based on a Government Accountability Office report stating that a large percentage of truck crashes are due to driver error. 3 Research further showed that few driver training institutions then offered a structured curriculum or a standardized training program, and also showed that, for motorcoaches and school buses, nearly the entire capacity for entry-level training was provided by the fleet operators, and not by training schools. 3 GAO/RCED-89-163, Truck Safety: Information on Driver Training, August 1989. FHWA published a “Model Curriculum for Training Tractor-Trailer Drivers” (Model Curriculum) in 1985. The Model Curriculum provided suggestions and recommendations for training providers covering curriculum, facilities, vehicles, instructor qualifications and hiring practices, graduation requirements, and student placement. Curriculum content addressed basic operation, safe operating practices, advanced operating procedures, vehicle maintenance, and non-vehicle activities ( e.g., handling and documenting cargo). The Model Curriculum reflected a consensus among experts at the time of its publication. The 1985 Model Curriculum recommended the equivalent of a total of 148 hours 4 of training, including driving-range time and on-road BTW training. In 1986, the motor carrier, truck driver training school, and insurance industries created the Professional Truck Driver Institute (PTDI) to certify high-quality training programs offered by training institutions. The Model Curriculum, as updated over time, remains as the centerpiece of many training programs currently offered. It provided the starting point for the ELDT curricula requirements proposed in this NPRM. 4 The original Model Curriculum referred to a total of 320 hours. However, these hours of training include periods when the student is not receiving individual instruction, such as while waiting his or her turn to use an available truck to practice driving skills. CMVSA, which created the CDL program, defined a CMV, in part, as a vehicle operating in “commerce,” a term separately defined to cover both interstate commerce and operations that “affect” intrastate commerce (49 U.S.C. 31301(2) and (4)). CMVSA directed the Agency to establish minimum Federal standards that States must meet when testing and licensing CMV drivers. The goal was to ensure that drivers of large trucks and buses possess the knowledge and skills necessary to operate safely on public highways. Until 2012, however, as discussed further below in this section, Congress did not specify whether an ELDT rulemaking should be limited to CMV drivers in interstate commerce, or whether it should also encompass CMV drivers operating in intrastate commerce. In accordance with part 383, all drivers of CMVs must possess a valid CDL. In addition to passing the CDL knowledge and skills tests required for the basic vehicle group, all persons who operate or anticipate operating double/triple trailers, passenger vehicles, tank vehicles, vehicles transporting hazardous materials, or school buses must obtain vehicle-specific endorsements under § 383.93(3)(b). The driver is required to pass a knowledge test for each endorsement, plus a skills test to obtain a passenger endorsement or a school bus endorsement. By 1991, Congress became concerned about the quality and inconsistency of CDL-related training individuals were receiving prior to obtaining a CDL. As a result, section 4007(a)(1) of the Intermodal Surface Transportation Efficiency Act (ISTEA) required FHWA to: (1) Study the effectiveness of private sector training efforts and to report its results to Congress; and (2) to commence a rulemaking on the need to require training of all entry-level drivers of CMVs (Pub. L. 102-240, 105 Stat. 1914, 2151, Dec. 19, 1991). In 1992, the FHWA began to examine the effectiveness of private sector training. A 1995 report titled, “Assessing the Adequacy of Commercial Motor Vehicle Driver Training” (the Adequacy Report) concluded, among other things, that effective ELDT needs to include BTW instruction. While the Adequacy Report recognized that ELDT seemed intuitively beneficial, it also acknowledged the lack of quantitative data linking driver training with positive safety outcomes. The Adequacy Report did not reach a conclusion as to whether “testing-based,” “training-based,” or “performance-based” approaches to ELDT would be more effective. The Secretary of Transportation submitted this report to Congress in 1996. A copy of the Adequacy Report is included in the docket for this rulemaking. In 1993, pursuant to section 4007(a)(2) of ISTEA, FHWA began a rulemaking to address the need to require training of all entry-level CMV drivers. On June 21, 1993, FHWA published an ANPRM titled “Commercial Motor Vehicles: Training for All Entry Level Drivers” (58 FR 33874). The NPRM asked 13 questions pertaining to the adequacy of training standards, curriculum requirements, the requirements for obtaining a CDL, the definition of “entry-level driver” training, training pass rates, and costs. 2003 NPRM/2004 Final Rule In November 2002, several organizations filed a petition for a writ of mandamus in the DC Circuit seeking an order directing the DOT to promulgate various regulations, including one establishing ELDT (petition for a writ of mandamus and for Relief from Unlawfully Withheld Agency Action, In re Citizens for Reliable and Safe Highways, No. 02-1363 (D.C. Cir.)). As part of a settlement agreement reached in February 2003, DOT agreed to issue a final rule on minimum training standards for entry-level CMV drivers by May 31, 2004 ( Settlement Agreement, In re Citizens for Reliable and Safe Highways, No. 02-1363 (D.C. Cir.)). Both of these documents are available in the docket for this rulemaking. The FMCSA published an NPRM on Friday, August 15, 2003, which proposed training for entry-level drivers based on three main principles (68 FR 48863). First, the NPRM focused on the types of drivers addressed in the Adequacy Report; i.e., only drivers in the heavy truck, motorcoach, and school bus industries. Second, the NPRM focused on drivers who operate in interstate commerce and therefore are subject to MCSA. Third, the Agency limited the NPRM to the following areas: (1) Driver medical qualifications and Federal drug and alcohol testing requirements, (2) driver hours of service limits, (3) driver wellness, and (4) whistleblower protections. The Agency believed that training focusing on these four areas would establish an adequate baseline for training entry-level CMV drivers at a reasonable cost. The NPRM did not specify a required number of hours for the training or propose requirements pertaining to the type of training. The Agency published a final rule on May 21, 2004, that included the four elements proposed in the NPRM (69 FR 29384). In 2005, three parties petitioned the D.C. Circuit for review of the 2004 rule. The Court held that the 2004 final rule was arbitrary and capricious because FMCSA ignored the finding of the Adequacy Report that BTW training was necessary and remanded the rule to the Agency for further consideration ( Advocates for Highway and Auto Safety v. Federal Motor Carrier Safety Administration, 429 F.3d 1136 (D.C. Cir. 2005) ( Advocates I ). The Court did not vacate the 2004 final rule. 2007 NPRM In response to the Court's decision in Advocates I, FMCSA published an NPRM on December 26, 2007, that proposed requiring both classroom and BTW training from an accredited institution or program (72 FR 73226). The NPRM generated more than 700 public comments, which varied widely regarding the necessity and efficacy of the proposed ELDT program elements. While most commenters expressed support for the ELDT concept, they had divergent views on several of the proposed rule's key provisions: (1) Hours-based versus “performance-based” driver training, (2) accreditation, (3) passenger driver training, and (4) post-CDL training. Hours-Based vs. “Performance-Based” Driver Training Several industry organizations expressed opposition to the proposed requirements of a specific minimum number of training hours. Instead, these commenters generally supported a performance-based approach to training that would allow an individual to move through the training program at his or her own pace. Essentially, a driver who demonstrated mastery of one skill would be able to move to the next skill. The driver would not have to repeat continually or practice a skill for a prescribed amount of time—2 hours, for example—if the driver could master the skill in 20 minutes. However, among the various comments expressing support for a “performance-based” approach, there was no consistent interpretation of the term. Other commenters, however, supported a minimum hours-based approach to training. They stated that FMCSA must specify the minimum number of instructional hours in order to be consistent with the original Model Curriculum. Additionally, some supporters of an hours-based approach believed that the Agency's proposal did not include sufficient hours (particularly BTW hours) to train a driver adequately. Finally, other commenters suggested a hybrid of the hours-based and “performance-based” approaches. Third-Party Accreditation The 2007 NPRM proposed that all commercial driver-training schools be accredited by an agency recognized by either the U.S. Department of Education (ED) or the Council on Higher Education Accreditation. Most commenters opposed the accreditation proposal because they claimed it is long and costly and would not necessarily result in better training of the students because the accreditation is not “program specific.” In other words, the training institution may obtain accreditation, but the accreditation would not be specific to the driver training program's course content. They argued that accreditation might restrict the number of schools where drivers could receive training. Alternatives suggested included allowing training institutions to self-certify, subject to Federal or other oversight, or permitting training institutions to voluntarily obtain third-party certification or accreditation. However, other commenters believed that even stricter control of training schools should be exercised by the Federal and/or State governments. Passenger Driver Training Commenters from the motorcoach industry stated that they were an “afterthought” in the NPRM. Specifically, they stated that there was no mention of the Model Motorcoach Driver Training Curriculum in the proposed rule. One motorcoach company asserted that its in-house training program was much more rigorous than the Agency proposal and that it continually tested and re-trained its drivers. Others believed that the proposed training program would have particularly adverse consequences for the motorcoach industry as few institutions offered training specific to that segment of the industry. Post-CDL Training Some commenters suggested that the Agency consider regulatory actions beyond what was proposed in the 2007 NPRM. For example, several individuals and organizations believed FMCSA should assess the merits of implementing a graduated CDL system approach. This concept would involve placing limits on the operations of new CDL holders for certain periods of time until the drivers obtain enough experience to operate without restrictions or limitation. Specifically, such a concept would require that the new CDL holder work under the supervision of an experienced driver or mentor as part of a team operation before being allowed to drive alone. Other commenters stressed that their companies are doing continuous training/testing and that re-training of individuals should be required. As proposed, the 2007 NPRM would have required training before an individual obtained a CDL; the “finishing training” advocated by some commenters was not discussed in the NPRM. The Agency ultimately withdrew the 2007 NPRM for a number of reasons including: Sharply divided public comments; feedback from participants in the Agency's two public ELDT listening sessions held in 2013; recommendations by the Motor Carrier Safety Advisory Committee (MCSAC), noted below; 5 and the new requirements imposed by MAP-21, discussed below (78 FR 57585, September 19, 2013). 5 Both available in the docket for this rulemaking, FMCSA-2007-27748. The listening session took place in January and March of 2013. MAP-21 Requirements Section 32304 specifically mandates that DOT issue training regulations that (1) address the knowledge and skills needed for safe operation of a CMV, (2) address the specific training needs of those seeking hazardous materials and passenger endorsements, (3) create a means of certifying that an applicant for a CDL meets Federal ELDT requirements, and (4) require training providers to demonstrate that their training meets uniform Federal standards. After Congress enacted MAP-21, FMCSA requested that MCSAC consider the history of the ELDT issue, including legislative, regulatory and research background, and identify ideas and concepts the Agency should consider in moving forward with a rulemaking to implement the MAP-21 requirements. MCSAC issued its letter report in June 2013. ELDT Negotiated Rulemaking/Advocates II On August 19, 2014, FMCSA formally announced that it was considering addressing the rulemaking mandated by MAP-21 through a negotiated rulemaking (79 FR 49044). Negotiated rulemaking is a process which brings together representatives of various interest groups and a federal agency to negotiate the text of a proposed rule. The goal of a negotiated rulemaking proceeding is for the Committee to reach consensus on the text of a proposed rule. The Agency retained a neutral convener, as authorized by the Negotiated Rulemaking Act (5 U.S.C. 563(b)) to impartially assist the Agency in determining whether establishment of a negotiated rulemaking would be feasible and appropriate. To that end, the convener interviewed a broad range of stakeholders concerning ELDT. On September 18, 2014, FMCSA and DOT were sued in a mandamus action requesting that the D.C. Circuit order the Agency to publish a proposed rule on ELDT in 60 days and a final rule within 120 days of the Court's order ( In Re Advocates for Highway and Auto Safety, the International Brotherhood Teamsters; and Citizens for Reliable and Safe Highways v. Anthony Foxx, Secretary of the United States Department of Transportation, et al. (No. 14-1183, D.C. Circuit (2014)) ( Advocates II ). This document is available in the docket for this rulemaking. On November 26, 2014, the convener submitted his report to the Agency concluding that a negotiated rulemaking was feasible and appropriate. The convening report is available in the docket for this rulemaking. In December 2014, FMCSA announced its intention to establish a negotiated rulemaking committee to negotiate and develop proposed regulations to implement the MAP-21 requirements concerning ELDT for drivers operating CMVs in interstate or intrastate commerce. At that time, FMCSA also stated its intention to finish the negotiated rulemaking process in the first half of 2015, followed by publication of an NPRM the same year and a final ELDT rule in 2016 (79 FR 73274, December 10, 2014). The Agency also described the issues to be addressed by the ELDTAC, interests likely to be significantly affected by the rule, proposed various organizations for membership, and explained how a person may apply or nominate another person for membership on the committee, as required by the Negotiated Rulemaking Act. The FMCSA solicited public comment on the proposal to establish the committee and the proposed membership of the negotiated rulemaking committee. The FMCSA considered the comments and applications submitted, and determined that a negotiated rulemaking committee could adequately represent the interests that would be significantly affected by a proposed rule, and that it was feasible and appropriate to establish the ELDTAC. Next, FMCSA established a charter under the Federal Advisory Committee Act, 5 U.S.C. App. 2, under which it subsequently convened the ELDTAC (79 FR 73273, 73275). On February 12, 2015, the Agency published a Federal Register notice listing the ELDTAC member organizations 6 as required by the Negotiated Rulemaking Act (80 FR 7814). The ELDTAC, composed of FMCSA and a cross-section of 25 representatives from motor carrier transportation, highway safety, and driver training organizations, met for six two-day negotiating sessions starting in February until reaching consensus in May 2015. The ELDTAC meeting minutes and other documentation are available at www.eldtac.fmcsa.dot.gov and in the docket for this rulemaking. 6 The ELDTAC members are: FMCSA, Advocates for Highway and Auto Safety, American Association of Motor Vehicle Administrators, American Bus Association, Paraprofessional and School-Related Personnel, American Federation of Teachers (AFL-CIO), Amalgamated Transit Union (AFL-CIO), American Trucking Associations, Citizens for Reliable and Safe Highways, Commercial Vehicle Safety Alliance, Commercial Vehicle Training Association, Great West Casualty Company, Greyhound Lines, Inc., International Brotherhood of Teamsters, Massachusetts Registry of Motor Vehicle Division, Massachusetts Department of Transportation, National Association of Publicly Funded Truck Driving Schools, National Association of Small Trucking Companies, National Association of State Directors of Pupil Transportation Services, National School Transportation Association, Owner-Operator Independent Drivers Association, Professional Truck Drivers Institute, Stevens Transport, Spoon Trucking, Truckload Carriers Association, Truck Safety Coalition, United Motorcoach Association, and Women in Trucking. On March 10, 2015, the court in Advocates II ordered that the petition for writ of mandamus be held in abeyance pending further order of the court to permit the DOT to issue, by September 30, 2016, final regulations pursuant to MAP-21. Petitioners to the lawsuit agreed to participate in the negotiated rulemaking process to collaborate on the drafting of an NPRM. A consensus agreement of the ELDTAC, 7 including FMCSA as a party, was reached on May 29, 2015. In this NPRM, FMCSA has followed the consensus agreement “to the maximum extent possible consistent with its legal obligations” (5 U.S.C 563 (a)(7)). 7 http://www.fmcsa.dot.gov/eldtac (providing comprehensive documentation regarding all negotiated rulemaking meetings leading to the consensus agreement, including committee ground rules, ELDTAC members, agendas, meeting minutes and working documents). ELDTAC Consensus Agreement (Consensus Agreement) 8 8 Written Statement of the Entry-Level Driver Training Advisory Committee, Consensus Recommendation on Rule for Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators, Richard W. Parker, Facilitator, June 15, 2015. At the ELDTAC's final session in May 2015, the Committee unanimously approved a final package of recommendations, as set forth in the Consensus Agreement, on which this NPRM is based. The key terms/concepts of the Consensus Agreement are: • Beginning on the compliance date of the rule, no “Entry-Level Driver” may take a CDL skills test to receive a Class A CDL, Class B CDL, Passenger Bus endorsement, School Bus endorsement, or Hazardous materials endorsement unless he/she has successfully completed a training program that (1) is provided by a Training Provider who appears on FMCSA's TPR, and (2) is appropriate to the license/endorsement for which that person is applying. • The ELDTAC approved proposed curricula for Class A CDL, Class B CDL, Passenger Bus endorsement, School Bus endorsement, Hazardous materials endorsement, and Refresher training. • The ELDTAC approved proposed curricula for Class A and Class B training programs generally sub-divided into theory and BTW segments, with BTW driving occurring both on a “range” (any protected area not involving a public road) or a public road. ○ Theory may be taught either online or in a classroom. The ELDTAC agreed not to propose prescribing the length of time to be spent on theory/knowledge instruction. The training provider would administer a written knowledge assessment, which would provide a satisfactory test of competence in the area of instruction. ○ BTW instruction (range and road): Class A CDL trainees would be required to receive a minimum of 30 hours of BTW with a minimum of 10 hours spent on a “range” (which may be any suitable area not on public roads), and 10 hours driving on a public road or 10 public road trips (no less than 50 minutes each). A 50-minute training session (“academic hour”) would count as one hour for purposes of this requirement. The training provider will determine how the remaining 10 hours of BTW training will be spent ( i.e., whether on a range or public road, or some combination of the two). Class B CDL trainees would be required to receive a minimum of 15 hours of BTW (range and public road) driving, with a minimum of 7 hours of road driving. Again, a 50-minute training session (“academic hour”) would count as one hour under this requirement. Training providers may determine how the remaining 8 hours of BTW training are spent, as long as the range curriculum, as set forth below, is covered. • These proposed requirements would apply to individuals who obtain the CLP on or after the compliance date. However, the new requirements would not apply to individuals—such as military drivers— for whom 49 CFR part 383 gives States the discretion to waive the CDL skills test. Any individual who fails to obtain the CDL within 360 days after obtaining a CLP would be required to complete a full ELDT course again following application for a new CLP. • An individual holding a CDL that has been canceled or revoked by the State of issuance—and would thus be required to re-take a State-administered CDL exam—would not be required to re-take a full ELDT course as a condition of taking such exam. However, any individual whose CDL has been canceled or revoked for a highway-safety related reason would be required to complete refresher training from a provider listed on the TPR prior to re-taking the State CDL exam to re-instate his or her CDL Class A or Class B license. • Once such refresher training is completed, the training certificate would be transmitted from the training provider to FMCSA, and the Agency would electronically transmit the certificate to the SDLA via the Commercial Driver's License Information System (CDLIS). The rule would include an explicit requirement for SDLAs to administer a CDL skills test to these individuals, but only if there is an electronic training certificate on file with the SDLA. • To become an FMCSA-registered training provider, a person or institution would have to meet the applicable FMCSA's Eligibility Requirements for Training Providers, and complete and submit (online) a Training Provider Identification Report affirming under penalties of perjury that such provider will teach the FMCSA-prescribed curriculum that is appropriate for that license or endorsement and that such provider meets the eligibility requirements. Training providers that meet these requirements would be placed on FMCSA's TPR. • The ELDTAC approved two sets of Eligibility Requirements that training providers would meet in order to appear on the TPR. One set of proposed requirements would apply to in-house or school training providers that train, or expect to train, more than three drivers per year, while the other would pertain to small business or for-hire training providers that train, or expect to train, three or fewer drivers per year. All training providers would complete the Training Provider Identification Report as part of their application for registration. • The ELDTAC agreed that theory and BTW training may be delivered by separate providers. • The ELDTAC approved FMCSA's draft regulatory text setting forth the general requirements for training providers listed on FMCSA's TPR. • The compliance date of the rule would be three years from the effective date of the final rule. Although the ELDTAC approved the consensus agreement unanimously, two parties formally dissented (as permitted by the ground rules for the negotiated rulemaking) on a single issue, requiring a minimum number of hours for BTW (range and road) for Class A training. A more detailed discussion of the ELDTAC's deliberations regarding the hours-based approach for BTW, including the dissenting comments, is provided below in the “General Discussion of the Proposal” section. Issues Left to the Agency's Discretion by ELDTAC Several items were discussed by the Committee, but left to the Agency's discretion. These include: • The impact of serious traffic violations on an individual's eligibility to be a BTW training instructor. • Required record retention period for training providers listed on the TPR. • Finalizing the Training Provider Identification Report requirements. The Committee agreed that a BTW training instructor's driving record is relevant to his or her overall qualification, but left to FMCSA the decision on how long he or she must have a “clean” driving record. Accordingly, BTW training instructors, during the two years prior to engaging in BTW instruction, must not have had any CMV-related convictions for the offenses identified in § 383.51(b) through (e). FMCSA invites comment on this proposed driver training qualification. ELDTAC briefly discussed how long training providers would be required to retain training records, but ultimately left the decision to the Agency. FMCSA proposes that the records be kept for three years after the date they are created, consistent with the retention requirements in § 391.51(d), General Requirements for Driver Qualification Files. ELDTAC reviewed and commented on a draft version of the Training Provider Identification Report [to be attached as an Appendix] to be used by training providers seeking to be listed on the TPR. The Agency made minor changes to the design and content of the form to reflect the comments received during the ELDTAC's deliberations. Necessary Conforming Changes Made by the Agency After the Agency began using the consensus of the Committee to form the basis of the proposed rule, the Agency found that there was a need for certain conforming changes. These include: • State reinstatement of a CDL for the BTW portion of refresher training. • A disqualification for refresher training. • Use of a written assessment by training providers that provide theory training to three or fewer driver-trainees annually. • Changes made to hazardous materials endorsement curriculum to be consistent with existing regulations. • Other non-substantive or editorial changes. The Agency proposes a conforming change related to the refresher training curriculum, which includes a BTW component. The completion of the BTW portion of the refresher training implicitly requires that driver-trainees be licensed to drive a CMV on a range or public road. Accordingly, we propose that if a CDL holder has been disqualified from operating a CMV under § 383.51(b) through (e), the State would reinstate the driver-trainee's CDL solely for the limited purpose of completing the BTW portion of the refresher training curriculum in § 380.625. The State may not restore full CMV driving privileges until the disqualification period is completed and the State receives notification, through the process described below, that the driver successfully completed refresher training. FMCSA specifically invites comment on the practical implications of implementing this proposed requirement. The Agency modified the ELDTAC language concerning when a CDL holder would be required to take refresher training. In lieu of the revocation or cancelation of a CDL for highway safety related reasons by the State of issuance as a trigger for refresher training, the Agency proposes a disqualification under § 383.51(b) through (e) as the sole standard for requiring refresher training. This change would ensure consistency among the States in determining when refresher training is required. FMCSA is using this criteria for both when a CDL holder is required to take refresher training and for determining the qualification of a BTW instructor. The Agency requests comments on these changes. Additionally, FMCSA invites comment on whether a driver disqualified under § 383.52 should also be required to complete refresher training before his or her CDL is reinstated. In reviewing the supporting documentation for the consensus agreement, FMCSA noted that training providers that provide theory training to three or fewer driver-trainees annually are not explicitly required to assess the driver-trainee's knowledge proficiency by using a written or electronic format (see annex 8, page 53 of the Consensus Agreement). The Agency believes, however, that a written or electronic assessment of a driver-trainee's proficiency by all training providers is necessary in order to create a record verifying that the training provider followed the applicable theory curriculum requirements; therefore, it includes this requirement in the NPRM. The Agency requests comment on this proposed clarification. FMCSA also revised the description of training providers who train or expect to train three or fewer driver-trainees per year by deleting “small business or for-hire” but maintained the general concept as developed by the ELDTAC. We concluded that the deleted language detracted from the clear “dividing-line” between training entities established by the ELDTAC: Those entities that train three or fewer driver-trainees or those that train more than three. Additionally, FMCSA made editorial changes to certain units in the H endorsement curriculum. The Agency changed the name of the “Cargo Tank” unit to “Bulk Packages”; and edited the “Loading and Unloading HM” unit to more accurately reflect the range of transportation containers addressed in current regulations (49 CFR part 177). The six driver training curricula proposed in this NPRM were drafted by the ELDTAC. The Agency made non-substantive conforming editorial changes to certain portions of the curricula solely for purposes of clarity and consistency or to eliminate duplication. For example, the “accident procedures” unit of the Class A and B curricula has been removed because all of the requirements are set forth in the “post-crash procedures” units of those same curricula. VI. General Discussion of the Proposal MAP-21 mandated that the FMCSA issue regulations to establish minimum entry-level training requirements for all initial interstate and intrastate CDL applicants, CDL holders seeking license upgrades, and those seeking passenger (P) or hazardous materials (H) endorsements. These proposed regulations would address the knowledge and/or skills training required for these CMV drivers. Additionally, this rulemaking would propose new Federal standards that training providers would meet in order to be eligible to deliver ELDT. Finally, while not specifically required by MAP-21, the NPRM reflects the ELDTAC's consensus that both refresher training and school bus (S) endorsement training should be required when appropriate. In this NPRM, FMCSA proposes a definition of an “Entry-Level Driver,” a person who must complete the CDL skills test requirements, and focuses on drivers who intend to drive CMVs in interstate and/or intrastate commerce. Generally, military drivers are excepted, and farmers and firefighters are eligible to be excepted from current CDL requirements under § 383.3(c) and (d), respectively. These drivers would continue to be excepted under this proposed rule. The proposed rule also applies to entities that train CDL applicants. Such providers would, at a minimum, offer and teach a driver training curriculum that meets all FMCSA standards as set forth in the NPRM. Furthermore, entities would meet and attest to their compliance with the eligibility requirements set forth in subpart G of part 380. These proposed requirements address the following areas: Course administration; instructional personnel qualifications; training vehicles; training facilities ( e.g., classroom and range); and curricula and proficiency assessment. Training providers meeting these requirements would be eligible for listing on FMCSA's TPR. These providers would continue to meet the required criteria in order to remain listed on the TPR. In addition, training providers would, at FMCSA's request, be required to supply documentary evidence to verify their compliance with the eligibility requirements. The NPRM also proposes an administrative process for providers removed from or reinstated to the TPR. The NPRM proposes a Class A CDL core curriculum; a Class B CDL core curriculum; three specific endorsement training curricula: Hazardous materials (H), passenger bus (P), and school bus (S); and a “refresher” training curriculum. The core curricula for Class A and Class B CDL training programs subdivide into theory and BTW (range and public road). For those individuals seeking H, P, or S endorsements on their CDL, the appropriate training curriculum would be required. The proposed P and S training curricula are also divided into theory and BTW (range and public road) training. The H endorsement training curriculum is proposed as theory-only training because there is no CDL skills test currently required for those seeking an H endorsement. The NPRM does not propose that any minimum number of hours be spent by driver-trainees in completing the theory portion of any of the individual curricula, nor does it propose that any minimum number of hours be spent completing the non-BTW portion ( e.g., pre-trip inspection) of the range training. However, training providers would provide instruction on all elements of the applicable curriculum. The driver-trainee's successful completion of the appropriate curricula would be required, which includes achieving an overall score of at least 80% on the assessment administered by the training provider. As proposed, a CDL holder who has been disqualified from operating a CMV would need to successfully complete refresher training requirements before applying for reinstatement of their CDL. Similar to the other curricula, the refresher curriculum is broken down into the categories of theory and BTW (range and public road) training; however, the NPRM does not propose that a minimum number of hours be required to complete any portion of the refresher curriculum. As noted above, the Agency proposes that SDLAs issue limited CDL privileges for persons seeking to become reinstated, solely for the purpose of allowing the driver to complete the BTW portion of the refresher curriculum. The NPRM describes factors that would justify FMCSA's removal of a training entity from the TPR. The proposal sets forth procedures the Agency would follow before an entity can be removed from the TPR, as well as procedures that the training entities would follow in order to challenge a proposed removal. This NPRM also proposes that training providers would electronically notify the TPR that driver-trainees have completed training by the close of the next business day. There would be no limit on the number of training certifications a provider may submit to the TPR at one time, so long as each individual driver-trainee's successful completion of his or her training is certified separately. The submission of documentation would ensure that each individual received the required training from a provider listed on the TPR prior to applying for the CDL and/or an applicable endorsement. The proposed compliance date for this rule is three years after the effective date of the final rule. The Agency believes the three-year phase-in period would give the States enough time to (1) pass implementing legislation and/or regulations as necessary; (2) modify their information systems to begin recording the training provider's certification information into CDLIS and onto the driver's CDL record; and (3) begin making that information available to other States through CDLIS. The three-year phase-in period would also allow ample time for the CMV driver training industry to develop and begin offering training programs that meet the requirements for listing on the TPR. Dissenting Views From ELDTAC Members While two ELDTAC members, the American Trucking Associations (ATA) and the National Association of Small Trucking Companies (NASTC), voted in favor of the unanimously approved consensus agreement as a whole, they disagreed with the other members of the ELDTAC that a minimum number of hours of BTW training should be prescribed for the Class A CDL. The statute, as noted previously, mandates some amount of BTW training, but it does not prescribe how much, nor does it state whether the minimum amount of BTW training be expressed in hours. ATA cited two reasons for its disagreement with the consensus approach on minimum hours of BTW training. First, ATA argued that the hours-based proposal lacks a scientific basis. ATA cited a 2008 report from the American Transportation Research Institute (ATRI) that concluded that “no relationship is evident between total training program contact hours and driver safety events when other factors such as age and length of employment are held constant.” ATA claimed, therefore, that a proposal prescribing a minimum number of BTW training hours was “arbitrary.” 9 NASTC agreed with this conclusion in its dissent. 10 FMCSA notes that the ATRI study did not rely on a representative sample of either motor carriers or new entrant drivers. The Agency therefore does not view the ATRI report's conclusion regarding the BTW training requirement as definitive for purposes of this NPRM. However, FMCSA does not have scientific evidence that would suggest that an hours-based requirement improves safety. 9 ATA Letter to Richard Parker, ELDTAC Facilitator, June 15, 2015. 10 NASTC Statement for the Record of the ELDTAC, Rationale for Vote on Hours Requirement for Behind-the-Wheel Training June 15, 2015. Throughout the ELDTAC's deliberations, the need for correlative data pertaining to the effectiveness of any form of ELDT (either the hours-based or the purely “performance-based” approach favored by ATA and NASTC) was repeatedly acknowledged. But while some participants offered data in response to the request of the ELDTAC's Data Needs/Cost Benefit Analysis Work Group, none of those submissions included safety benefit data that could be utilized in support of this proposal. However, as discussed in the RIA, there was significant information about existing driver training programs carried out by motor carriers and others that include substantial BTW training. The use of these programs to train a substantial number of CDL holders strongly supports the need for and desirability of establishing minimum BTW hours requirements in the proposed rule. ATA's second argument was that using an hours-based approach is contrary to the “performance-based” approaches favored in Executive Orders 12866 and 13563, as well as the Office of Management and Budget's guidance (OMB Circular A-4, September 17, 2003). FMCSA does not believe that the consensus proposal contravenes Executive Order 12866, Section 1 (b)(8), directive that “[e]ach agency shall identify and assess alternative forms of regulation and shall, to the extent feasible, specify performance objective, rather than specifying the behavior or manner of compliance that regulated entities must adopt” (emphasis added). As the discussion in the “alternatives considered” section makes clear, the ELDTAC identified and assessed different approaches to driver training for Class A CDLs. As discussed below, ultimately the ELDTAC adopted a hybrid approach that combines a required minimum number of BTW hours (range and public road) for Class A and Class B CDLs only, with a prescribed theory curriculum for which no minimum number of hours is required, while also incorporating “performance-based” elements, such as reliance on demonstrated outcomes. The approach presented in this NPRM, therefore reflects the consensus of ELDTAC representatives that performance objectives be specified “to the extent feasible”. Although there are a required minimum number of BTW hours prescribed in this NPRM, FMCSA believes that many of the other provisions included are consistent with Executive Order 12866's emphasis on performance objectives, as illustrated by the level of discretion that instructors have when assessing the performance of individual driver-trainees. The NPRM proposes that instructors maintain significant flexibility, within the total number of hours required for BTW training in the Class A and B CDL curricula, to allot more or less time to specific elements of the training according to the instructor's evaluation of the trainee's demonstrated performance of required skills. For example, the NPRM permits instructors in the Class A curriculum complete discretion to determine how 10 hours (of the total required 30 hours) will be allocated, including whether those hours should be spent on the driving range or on a public road (or some combination of the two), as well as which specific driving maneuvers require further training. This level of instructional discretion, based entirely the trainee's demonstrated skill proficiency, permits BTW training to be tailored to the needs of the individual. This hybrid approach thus emphasizes the achievement of performance objectives, while also assuring that a reasonable amount of time will be spent on BTW training. As further discussed below, the ELDTAC consensus process vetted all available evidence and alternatives. We further note that FMCSA's reliance on the consensus agreement “as the basis” for this proposal is required by the Negotiated Rulemaking Act (5 U.S.C. 563(a)(7)) and the ELDTAC Ground Rules (Section (3)(a)). Alternatives Considered As noted above, the Agency is bound to propose in this NPRM the ELDTAC's consensus package for notice and comment to the maximum extent possible consistent with its legal obligations. The preferred alternatives agreed upon as a package are outlined in the Written Statement from ELDTAC facilitator (docketed at FMCSA-2007-27748). But as discussed in the analysis of alternatives below, several other options were considered for some of the regulatory provisions being proposed. Due to our legal obligation to propose the consensus package, we provide relatively more analysis of the provisions adopted in the consensus package compared to the alternatives that were considered, but ultimately rejected, by the ELDTAC. As further discussed in the RIA, FMCSA provides some analytical assumptions about these alternatives, as compared to the alternatives ultimately proposed, as a basis for comparison. For example, some of the provisions rejected by the ELDTAC were opposed by industry based on cost considerations. We seek comment on the economic and analytical assumptions utilized to compare the alternatives considered to the approaches proposed in this NPRM. “Performance-Based” Versus Hours-Based Approach to ELDT As previously noted, the issue of a “performance-based” approach to BTW training versus an approach requiring that a minimum number of hours be spent in BTW training was the most thoroughly debated issue within the ELDTAC. 11 The ELDTAC facilitator framed the discussion as the “major challenge” confronting the Committee. The Agency has considered this issue for many years, both in studies, such as the Adequacy Report, and in connection with prior rulemakings, such as the 2007 NPRM (72 FR 73226, 73229). 11 ELDTAC Meeting Minutes: March 19-20; April 9-10; May 14-15; May 28-29, 2015. One of the difficulties surrounding the resolution of this question is that the term “performance-based” is subject to multiple interpretations. In response to the 2007 NPRM, which proposed a minimum number of hours for BTW training, FMCSA received numerous comments addressing the pros and cons of “performance-based” training. These comments made clear that various parties interpreted the term “performance-based” differently. For some commenters, it was a measure of the achievement of specific learning objectives with instructor flexibility, while other commenters thought the term simply meant that students could learn at their own pace. At least one commenter believed that the term indicated that no detailed curricula would be followed. Many commenters understood that a performance-based training system would allow proficient students to “test out” of an otherwise required curriculum. The ELDTAC's discussions also revealed a lack of common understanding of the term, although Committee members generally agreed that it did not include a minimum-hours requirement. Given the lack of industry consensus on the precise meaning of the term “performance-based,” the Agency hopes to avoid further confusion by not using it in this NPRM. However, by requiring that driver-trainees achieve specific performance objectives in both the theory and BTW portions of the training, this proposal does incorporate key elements of a “performance-based” approach by relying on demonstrated outcomes. The proposed curricula in the NPRM sets forth prescriptive elements of each individual curriculum (including BTW vehicle maneuvers on both range and public road), all of which must be taught and assessed. Other than BTW (range and public road) training for the Class A and B CDL, discussed below, there are no required minimum hours that driver-trainees must spend to complete the applicable curricula. The NPRM reflects the Committee's consensus that detailed curriculum requirements, combined with a prescribed means of performance assessment in the theory and BTW portions of the curricula, are necessary to ensure both adequacy and uniformity of the minimum ELDT training mandated by MAP-21. This approach prevents individual driver-trainees from “testing out” of any applicable training curriculums. The NPRM requires that, for the theory portion of the training, all elements of each curriculum be taught and a representative portion of each learning unit be assessed by written or electronic means. Driver-trainees must achieve a proficiency rate of at least 80 percent. In the case of BTW training, the ELDTAC first developed a detailed curriculum for Class A and B CDLs. The committee subsequently determined the minimum number of hours necessary to complete the prescribed curricula. A driver-trainee's competence will be evaluated by the training instructor who is observing the driver-trainees while they are in direct control of the CMV when performing the required elements of the BTW curriculum (noted below) for both range and public road driving. All required driving maneuvers must be performed to the satisfaction of the instructor and the required minimum number of hours for Class A and Class B CDLs must be logged. However, as noted above, the instructor has considerable discretion in determining how the required training time will be spent by each driver-trainee. FMCSA believes that BTW training for entry-level drivers is uniquely suited to an hours-based approach because it ensures that driver-trainees will obtain the basic safe driving skills necessary to obtain a Class A or Class B CDL and to operate their vehicles safely—skills that can only be obtained after spending a reasonable amount of time actually driving a CMV. All but two members of the ELDT supported this approach; safety experts on the committee considered it a requisite element of any meaningful effort to establish an ELDT protocol at the federal level. Notably, Committee members representing the professional training industry stated repeatedly that, when it comes to the proficient operation of a CMV, there is simply no substitute for experience. The proposed BTW hours requirement is intended to ensure that driver-trainees receive a minimum level of that experience. Further, FMCSA notes that this relatively modest hours-based approach proposed for BTW range training is coupled with required driving exercises that would provide driver-trainees with the opportunity to master basic maneuvers identified in the American Association of Motor Vehicle Administrators (AAMVA) 12 Commercial Driver License Manual as well as 49 CFR 383.111 and 383.113. These BTW range maneuvers include: Straight line backing, alley dock-backing, off-set backing, parallel parking (blind side), and parallel parking (sight side). The public road portion of BTW training for the Class A and Class B CDL is also coupled with specified driving competencies that the driver-trainees would be required to master, such as vehicle controls (left and right turns, lane changes, curves at highway speeds), shifting/transmission, communication/signaling, visual search, speed and space management, and other safe driving behaviors. 12 The ELDTAC committee endorsed this manual as the basis for the range and road training. FMCSA has docketed this material. The ELDTAC gave extensive consideration to each driver-trainee correctly performing these key driving skills 5 times for Class A drivers (fewer times in the case of Class B), and having the training provider maintain written documentation of such performance in a “Master Trip Sheet” or some comparable document. Ultimately, the ELDTAC decided not to adopt this option—either in addition to, or in lieu of, a minimum number of hours of BTW training requirement. Instead, the ELDTAC recommended that FMCSA provide post-rule guidance on the use of a “trip sheet” as an illustrative method by which BTW training may be documented. In the Agency's judgment, a hybrid approach combining minimum BTW hours requirement with detailed curriculum requirements is the best way to ensure that drivers will be adequately trained in the safe operation of Class A and Class B CMVs. This approach is also consistent with the recommendation included in the June 17, 2013, MCSAC Task 13-01 Report, “Recommendations on Minimum Training Requirements for Entry-Level Commercial Motor Vehicle (CMV) Operators”, which stated that “the majority of the group. . .believes that FMCSA should mandate both some minimum behind-the-wheel training hours, along with performance-based requirements that achieve competency.” While two ELDTAC members opposed any minimum hours requirement for BTW training, several members thought that the Consensus Agreement, as reflected in this NPRM, should have required a higher number of BTW training hours for Class A and B CDLs. Several ELDTAC members, including the Commercial Vehicle Training Association (CVTA), noted that ELDT programs currently offered in a variety of settings ( e.g., community colleges, institutional training providers, motor carriers, etc.) generally require more than the 30 BTW training hours proposed. According to CVTA, “since quality trainers were and are already training in excess of this [proposed] amount of BTW time, incorporating this BTW component imposes little or no burden on any individual trainer or training program that is teaching the curriculum with the diligence needed to produce safe drivers.” 13 (emphasis added). For a more expansive review of existing ELDT program requirements, see the RIA. 13 CVTA letter to ELDTAC facilitator Richard Parker, June 9, 2015. Accordingly, we solicit comment on whether any minimum number of BTW hours should be required. If there is a required minimum number of hours for BTW training, we seek comment on whether the number of BTW training hours proposed in this NPRM should be retained, lowered, or increased. Further, because minimum hours are not proposed for BTW training for the S and P endorsements or for the refresher training, we also solicit comment on whether, and to what extent, a minimum hours requirement should be added to the BTW portions of those curricula. As previously noted, according to some ELDTAC members and the Agency's own research, the minimum hours requirement for BTW proposed in this NPRM falls below the requirements currently imposed by many driver training programs. Some Committee members expressed concern that this proposal would cause existing training providers to reduce their level of training to reflect the proposed Federal minimum standard. FMCSA does not believe that will necessarily occur. In today's training environment, in which most States do not impose requirements pertaining to ELDT training, one might expect drivers to take only the bare minimum necessary to pass the CDL skills test. Yet that is not the case. As discussed in the RIA, a substantial share of driver trainees currently obtain training, often paid for by the motor carriers themselves, that exceeds the requirements proposed by the NPRM. The reason is that carriers and their insurers have a vested interest in putting drivers on the road that can operate their CMVs safely and efficiently and that the costs of such programs are fully justified in light of the benefits to the motor carriers and the drivers themselves. In light of this market-driven imperative, we do not think it is reasonable to assume that training providers would diminish the scope or length of their training in response to this NPRM. Third-Party Accreditation Versus Self-Certification The ELDTAC considered whether to propose that ELDT programs subject to this rule be accredited by third parties recognized by, for example, ED or the Council for Higher Education Accreditation. Citing the cost and potential administrative difficulties of implementing a third-party accreditation requirement, the Committee rejected this approach in favor of a self-certification process whereby training providers would attest that they meet specified eligibility requirements for listing on the TPR. The Committee approved the use of a detailed application, the Training Provider Identification Report (described below in the Paperwork Reduction Act section), designed to capture that information. 14 Training providers listed on the TPR would be subject to audit or investigation by FMCSA and must, on request, produce documentation establishing their compliance with the eligibility requirements. FMCSA intends to provide post-rule guidance regarding both suggested and required documentation, including the forms of documentation identified in Annexes 7 and 8 of the ELDTAC Consensus Agreement. 14 ELDTAC Meeting Minutes, April 9-10, 2015; May 14-15, 2015. This approach is consistent with the MCSAC's recommendation that, in lieu of third-party accreditation, ELDT programs rely on an approved curriculum, quality assurance requirements for training providers, and a self-certification process to ensure a minimum level of program quality. 15 Some ELDTAC members asserted that the level of specificity of the new proposed reporting requirements alone could discourage unscrupulous training providers from entering the training field or from staying in the driver training business. In addition, such requirements would provide FMCSA with information that might be used to detect fraudulent training providers who may subsequently be removed from the TPR in accordance with the procedures set forth in the NPRM, and subject to other penalties. 15 MCSAC Task 13-01 Report, pp. 4-5. ELDT Curricula The Committee thoroughly considered the skills components and theory elements included in the six curricula proposed in the NPRM. At the outset, the ELDTAC agreed that the FHWA Model Curriculum would form the basis for initial discussions. The entire ELDTAC made all final decisions regarding curriculum content, based on detailed proposals by curriculum-specific Work Groups, which were revised and refined throughout the Committee's deliberations. FMCSA intends to provide additional post-rule guidance concerning available resources which may be used to supplement the required curricula, including those resources specifically identified by the ELDTAC: Pipeline and Hazardous Materials Safety Administration (PHMSA) basic HM awareness; 16 training for commercial drivers of cargo tank motor vehicles transporting HM created jointly by the FMCSA, PHMSA, and industry partners; 17 and the North American Fatigue Management Program (NAFMP). 18 16 http://www.phmsa.dot.gov/hazmat/outreach-training . 17 http://www.fmcsa.dot.gov/rolloverprevention . 18 http://www.nafmp.org.en/ . Activities on the range training consist of driving exercises that provide practice for the development of basic control skills and mastery of basic maneuvers as set forth in the American Association of Motor Vehicle Administrators (AAMVA) manual on how to operate a CMV safely. The experience on the range provides the groundwork for how to drive on the road in real world situations. The practicing of skills on the driving range will ultimately make a trainee a better driver. One example of a skill taught on the range is shifting. This is a skill that a trainee must master not only for acquiring their CDL, but also when the individual is operating on a public road or highway. These maneuvers/training topics are included in the road test that a trainee will need to know and master in order to pass this test and acquire their CDL. To maintain maximum flexibility, FMCSA did not propose that a certain portion of the range training needed to precede road training, but expects that trainers will require the completion of basic maneuvers in a controlled environment before allowing a student to operate on a public road. FMCSA notes that ELDTAC did not propose a curriculum for Class C CDL training because a Class C vehicle, must, by definition, be designed to transport 16 or more passengers (including the driver) or any hazardous materials as defined in 49 CFR 383.5. As such, the Class C driver needs either a P or an H endorsement, and this NPRM proposes training curricula for both of those endorsements. Class C training is therefore effectively covered by the proposed endorsement training. FMCSA seeks comment on the scope and content of the proposed curricula. For example, FMCSA is aware that some carriers and owner-operators utilize CMVs equipped only with an automatic transmission. In the proposed curricula for Classes A and B, shifting/transmission is a required element of both theory and BTW components of the training. We invite comment on whether there should be an option to forego this element of the training for driver-trainees who intend to operate CMVs equipped only with automatic transmissions. Currently, for drivers who take their CDL skills tests in a CMV equipped with an automatic transmission, the State must indicate on the CDL that the person is restricted from operating a CMV with a manual transmission (49 CFR 383.95(c)(1)). FMCSA seeks comment on whether the hazardous material regulations (HMR) training in 49 CFR 172.704 could be used or modified to satisfy the H endorsement training in this proposed rule. Data One of the most significant challenges faced by both FMCSA and ELDTAC is the limited quantitative or qualitative data correlating the provision of any type of ELDT with positive safety outcomes, such as crash reduction. During the ELDTAC deliberations, a Data Needs/Cost Benefit Analysis Work Group was formed in order to focus specifically on identifying and gathering relevant data. Although some members of the Work Group submitted information in response to the data needs outlined by FMCSA's economists at the outset of the ELDTAC's deliberations and in subsequent requests, none of the data provided was statistically adequate for use in this rulemaking analysis. The Agency seeks comment, for example, on whether the insurance industry provides discounted premiums to carriers who train entry-level drivers, or who employ entry-level drivers who have received training elsewhere ( e.g., from a community college or independent training school). The specific data needs related to this proposal, as well as the efforts FMCSA made to obtain data throughout the ELDTAC deliberations, are discussed in the RIA. Impact of the NPRM on Small Training Provider Entities During its deliberations, ELDTAC worked to ensure that the proposed rule would not be unduly burdensome to small entities that provide ELDT. The small business representatives on the ELDTAC provided valuable contributions in this regard. Based on their input, there are several regulatory elements in today's proposal tailored specifically to meet the needs of small training provider entities. First, the Committee decided not to propose that any training entity maintain its own designated driving range. Instead, the NPRM sets forth the proposed elements that any area would meet in order to be suitable for range training. This approach provides the flexibility for small training entities to use publicly available areas, such as office building or mall parking lots during “off” hours for range training, so long as the basic definitional requirements ( e.g., range area must be free of obstructions and permit adequate sight lines) are met. The Agency requests comments on the practicability of this proposed approach. FMCSA notes that if training is done in a publicly accessible area such as a mall parking lot, all CLP requirements apply. Second, the Committee considered proposing requirements pertaining to classroom facilities used for teaching the theory portion of the curricula, such as adequate ventilation, adequate space per driver-trainees, etc. However, in deference to the concerns of small training providers, the Committee ultimately chose not to propose any standards in this NPRM regarding the physical learning environment for theory training. We note, however, that it is outside the scope of this proposal, as well as FMCSA's authority and the ELDTAC's jurisdiction, to propose any changes in classroom facility requirements currently imposed at the local, State, or Federal levels. Third, this proposal reflects the ELDTAC's intent to impose fewer eligibility requirements regarding the instructional personnel of training providers who train, or expect to train, three or fewer entry-level drivers per year. For example, while instructors affiliated with these providers must have a valid CDL of the appropriate or higher class and endorsements required to operate the CMVs for which training is provided, plus at least one year of driving experience in those vehicles, they would not be required to have completed training in the on-road portion of the curriculum in which they are instructing (a requirement that is imposed on instructors affiliated with providers training more than three drivers per year). Finally, ELDTAC decided not to propose that these small training entities provide written training materials addressing the various curricula elements proposed in this NPRM, in an effort to lessen the administrative burden on such entities. Based on the Agency's review of supporting documents to the consensus agreement, we infer that the Committee also intended to exempt instructors affiliated with providers training three or fewer drivers per year from State requirements currently applicable to CMV instructors. We note, however that the Agency has no legal authority to do so. Further, the Agency notes the relative ease with which all training providers, regardless of size, would be able to apply for and obtain listing on the TPR. The process would be entirely electronic, eliminating any need for paperwork. Listing on the TPR would be accomplished solely by the training providers' completion of the FMCSA Entry-Level Driver Training Provider Identification Report; there is no separate requirement that the training provider be accredited by a third-party. In declining to impose such a requirement, the Committee specifically cited the costs associated with third-party accreditation and the disproportionate impact of such a requirement on small training providers. In addition, the certification that a driver has completed training would also be accomplished electronically. The Agency seeks comment from small business entities regarding any specific changes to the NPRM that would further lessen the regulatory burden imposed by these training requirements. Major Issues on Which the Agency Seeks Comment FMCSA has requested comment on several issues throughout this section. The Agency specifically seeks comments on the following topics. 1. Is there any additional data on the safety benefits of requiring ELDT training that you can provide ( e.g. demonstrated crash reduction as a result of training)? 2. As proposed, would the training be effective in improving safety? If so, what aspects of the proposal would be effective in improving safety? If not, how could the training be delivered more effectively than proposed? 3. Is there any duplication in the commercial learner's permit exam and ELDT theory training? If yes, should it be eliminated or minimized? 4. FMCSA proposed a specific number of required hours for the BTW training for Class A and B. First, should there be a required number of BTW hours for these two programs? If so, is FMCSA's proposal for 30 hours (Class A) and 15 hours (Class B) appropriate? 5. If there is not a required number of behind the wheel hours, what alternative would be appropriate to ensure adequate BTW training for Class A and B? Would a requirement that is expressed in terms of outcomes rather than specifying the means to those ends be more appropriate? 6. FMCSA allowed training providers flexibility by using either clock-hours or academic hours depending on the type of entity that offers the training ( e.g. community college vice carrier provided trainer). FMCSA requests comment on whether training providers should be allowed to use academic hours versus clock-hours. Furthermore, FMCSA asks for input regarding whether there is a discernable difference between the two concepts. 7. MAP-21 did not mandate that FMCSA include the “S” endorsement as part of the required training. Given the devastating consequences of unsafe school bus operation, should the “S” endorsement training be retained in the final rule? 8. The Agency did not propose that the theory, BTW range, and BTW public road training occur in a specific sequence in order to allow training providers the flexibility to determine how they would structure their programs. FMCSA requests comment on whether there should be a particular order associated with the theory, BTW range, and BTW public road curricula. Section-by-Section Explanation of the Proposed Changes Subpart E of Part 380 Subpart E would be retitled as “Subpart E—Entry-Level Driver Training Requirements Before [DATE 3 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE].” On the compliance date of the final rule, this subpart would be removed and reserved and replaced by new subparts F and G. New Subpart F of Part 380 The proposed entry-level driver training requirements that would replace those in current subpart E would be titled “Subpart F—Entry-Level Driver Training Requirements On and After [DATE 3 YEARS AFTER EFFECTIVE DATE OF THE FINAL RULE].” § 380.600 Compliance Date for Training Requirements for Entry-Level Drivers This section states that the compliance date would be three years after the effective date of the final rule. § 380.601 Purpose and Scope This proposed section specifies that Subpart F establishes requirements for entry-level drivers, minimum curriculum content, and standards for training providers. Proposed § 380.601 further specifies that the term “ELDT” applies only to individuals initially applying for a CDL or for a CDL upgrade and does not otherwise amend substantive CDL requirements in parts 383 and 384 beyond the changes authorized by MAP-21. § 380.603 Applicability This proposed section explains that ELDT applies to all entry-level drivers, defined in this subpart, who intend to drive CMVs, as defined in § 383.5, in interstate and/or intrastate commerce. This section specifically excludes from its scope drivers excepted under § 383.3(c), (d), and (h), and those drivers applying for a restricted CDL under § 383.3(e) through (g). These exceptions cover many groups of drivers, including military drivers, farmers, and firefighters; veterans with military CMV experience who meet all the requirements and conditions of § 383.77; or applicants seeking restricted CDLs from Alaska, farm-related service industries, and the pyrotechnics industry. This proposal applies only to those individuals who, upon the compliance date, would need to obtain a CDL (or a CDL upgrade or endorsement) and does not otherwise amend substantive CDL requirements in parts 383 and 384. Veterans with military CMV experience who meet all the requirements and conditions of § 383.77 would be excepted if the State waives the skills test, though they would still need to take the State's written test. These requirements apply to individuals who obtain the CLP on or after the compliance date. Any individual who fails to obtain the CDL within 360 days after obtaining a CLP would be required to complete a full ELDT course following application for a new CLP. Once an entry-level driver receives training certification qualifying him or her to take the CDL skills test and/or the applicable endorsement skills test for the first time, the person is not required to obtain such certification again. However, if a CDL holder is disqualified from operating a CMV, a driver must take refresher training, as set forth in § 380.625, before reapplying for a CDL or endorsement. § 380.605 Definitions FMCSA created a new definition for this subpart for behind-the-wheel (BTW) instructor, behind-the-wheel (BTW) range training, behind-the-wheel (BTW) public road training, entry-level driver, entry-level driver training, experienced driver, range, refresher training, theory instruction, 19 theory instructor, and training provider. 19 The Agency anticipates that online theory training providers will enter the training market after publication of a final rule (the NPRM permits theory and BTW training to be provided by separate entities). We expect that online training will represent a lower cost and less time-consuming option than the traditional classroom setting, lessening the burden on driver-trainees. In the definition of “BTW instructor” the Committee agreed to the requirement of 1 year of CMV experience driving or 1 year or experience as a BTW instructor. The Consensus Agreement included a statement that 2 or more years of such experience “is preferable.” 20 The Committee agreed that FMCSA should solicit comment on whether the two-year requirement would affect the applicability of State laws relating to instructors or training providers. 20 Consensus Agreement, pg. 46, footnote 3. § 380.609 Entry-Level Driver Training Requirements This proposed section explains in detail that an applicant for a CDL must complete training that meets the applicable requirements for the CDL class and endorsements ( i.e., Class A, Class B, passenger, school bus, or hazardous materials) from a provider listed on FMCSA's TPR. Paragraph (c) provides that CDL holders who are disqualified from operating a CMV, must complete refresher training from a training provider listed on the TPR. § 380.611 Entry-Level Driver Training Provider Requirements This proposed section states that training providers must, at a minimum, meet the requirements of part 380 subpart G, and these training providers must attest that they meet those requirements. Upon request, training providers must supply documentary evidence to verify that they meet the requirements in subpart G. As proposed, training in the theory and BTW portions of the curricula may be offered by the same or different training providers as long as the provider is listed on the TPR. The NPRM does not propose that the theory and BTW portions of the curricula be instructed in any particular order, although ELDTAC members suggested that the industry norm is that theory training precedes BTW (range and public road) training. If theory and BTW training is received from separate providers, FMCSA would not transmit training certification to the SDLA until it receives notice of successful completion of both theory and BTW (range and public road) training, when applicable. The Agency requests comment on whether the rule should require that theory and BTW training be taken sequentially and specifically whether theory training should be required before taking the State-administered written test to obtain a CLP. § 380.613 Class A—CDL Training Curriculum This proposed section would require drivers seeking a Class A CDL to successfully complete the Class A curriculum outlined in this section. There is no minimum number of instruction hours proposed for the theory training, but the training provider would cover all of the topics set forth in the curriculum. The driver-trainees would also complete a minimum of 30 hours of BTW training with a minimum of 10 hours spent driving on a range. Driving on a public road would also be required, and Class A CDL driver-trainees may fulfill this requirement by either (1) driving 10 hours on a public road, or (2) 10 public road trips (each no less than 50 minutes in duration). The training provider will determine how the remaining 10 hours of BTW training will be spent ( i.e., whether on a range or public road, or some combination of the two). The mandatory minimum number of hours of BTW training would be conducted in a CMV for which a Class A CDL would be required. § 380.615 Class B—CDL Training Curriculum This proposed section would require drivers seeking a Class B CDL to complete the Class B curriculum outlined in this section. No minimum number of instruction hours for theory training is proposed, but the training provider would cover all of the topics set forth in the curriculum. The driver-trainees would also complete a minimum of 15 hours of BTW driving training, with a minimum of 7 hours of public road driving. Training providers may determine how the remaining 8 hours of BTW training are spent, as long as the range curriculum, as set forth below, is covered. The mandatory minimum number of hours of BTW driving training would be conducted in a CMV for which a Class B CDL would be required. § 380.619 Passenger Endorsement Training Curriculum This proposed section sets forth the proposed training requirements and curriculum for CMV drivers seeking a passenger (P) endorsement. As proposed, there is no minimum number of instruction hours for the theory and BTW (range and public road) portions of the P endorsement training, but the training provider would cover all of the topics set forth in the curriculum. The training would be conducted in a representative vehicle for the P endorsement. § 380.621 School Bus Endorsement Training Curriculum FMCSA proposes a curriculum to address the specific training needs of a CMV driver seeking an S endorsement on a CDL. As proposed, there is no minimum number of hours for the theory and BTW (range and public road) portions of the S endorsement training, but the training provider would cover all of the topics set forth in the curriculum. The training would be conducted in a representative vehicle for the S endorsement. § 380.623 Hazardous materials training curriculum This proposed section sets forth the training requirements and curriculum for a CMV driver seeking a hazardous materials (H) endorsement. As proposed, there is no minimum number of instruction hours for this training. This proposed training would be theory-only because the current CDL requirement to obtain an H endorsement does not include a skills test. § 380.625 Refresher Training Curriculum This proposed section specifies the refresher training for CDL holders who are disqualified from operating a CMV (49 CFR 383.51(b) through (e)). These individuals would be required to complete refresher training from a provider listed on the TPR. As proposed, there is no minimum number of instruction hours for the theory and BTW (range and public road) portions of the refresher training, but the training provider would cover all of the topics set forth in the curriculum. 49 CFR Part 380, Subpart G Registry of Entry-Level Driver Training Providers § 380.700 Scope This proposed section establishes the minimum qualifications for an entity to be eligible for listing on the FMCSA Training Provider Registry (TPR). The TPR would be an online portal administered by FMCSA allowing training providers to register. The TPR allows drivers seeking training to find an eligible provider who meets their needs. § 380.703 Requirements for Training Provider Registry This proposed section outlines the requirements that a training provider would meet in order to be eligible for listing on the TPR. Training providers would agree to follow the applicable curriculum for the CDL class and/or endorsement for which they provide training. Additionally, the training provider would utilize instructors, facilities, and equipment that meet the proposed requirements. Third, the training provider would allow FMCSA or its designated representative to conduct audits or investigations to ensure that the provider meets the eligibility criteria for listing on the TPR. Finally, the training provider would complete the FMCSA Entry-Level Driver Training Provider Identification Report [See appendix for part 380], which provides basic business information to FMCSA and also includes an attestation, under penalties of perjury, that the provider meets all of the requirements for listing on the TPR. This section also provides that once a training provider meets the requirements of §§ 380.703 and 380.707, the training provider would receive a unique TPR number from FMCSA for each separate training location to be listed on the TPR. § 380.707 Entry-Level Training Provider This proposed section would require that the training provider ensure that public road driver-trainees meet certain Federal, State, and local rules and regulations related to their ability to obtain a CDL. This section reiterates that training providers would follow the applicable curriculum for the CDL class or endorsement for which they provide training. In addition, the training provider would offer reasonable assurance that driver-trainees can demonstrate proficiency in the theory and/or BTW (range and public road) portions of the curriculum. § 380.709 Facilities This proposed section includes a requirement that the classroom facilities meet all currently applicable Federal, State, and local laws and regulations. For reasons noted previously, FMCSA is not imposing any requirements related to classroom facilities. The driving range, as defined in § 380.605, must be free of obstructions, enable the driver to maneuver safely and be free from interference from other vehicles and hazards, and have adequate sight lines. A training provider that teaches the range portion of the curriculum would have an instructor onsite who can demonstrate appropriate skills and correct deficiencies of individual driver-trainees. § 380.711 Equipment This section proposes that training providers use training vehicles that are in safe mechanical condition. Vehicles used for BTW training would comply with applicable Federal and State safety requirements. Driver-trainees would be instructed in the same class ( i.e., Class A or Class B) and type of vehicle (cargo, passenger or school bus) that they will be operating for their CDL skills test. § 380.713 Driver-Instructor Qualifications/Requirements This section proposes that theory training providers utilize instructors who are either an experienced driver or a theory instructor as defined in § 380.605. BTW training providers would be required to utilize experienced drivers as defined in § 380.605. In addition, BTW training instructors, during the two years prior to engaging in BTW instruction, must not have had a disqualification, as defined by § 383.5, under § 383.51(b) through (e). Training providers would also be required to utilize only BTW instructors on public roads whose driving record meets applicable Federal and State requirements. § 380.715 Assessments This section proposes that training providers assess (in written or electronic format) the driver-trainee's mastery of the knowledge objectives covered in the applicable theory portion of the training. In order to pass, a driver-trainee must receive an overall score of 80% or higher on the assessment. A driver-trainee's BTW proficiency on the range would be assessed by the instructor's evaluation of his or her performance of the fundamental vehicle control skills and routine driving procedures, as set forth in the applicable curricula requirements. Likewise, BTW proficiency on a public road would be assessed by observing the driver-trainee's performance of the driving maneuvers specified in the curriculum. As noted above, theory and BTW training could be delivered by separate providers. § 380.717 Training Certification This section proposes that all training providers be required to upload training certificates to the TPR by close of the next business day after the driver-trainee successfully completes the training. The Agency would transmit the certification to the SDLA via CDLIS. This certificate would include: (a) Driver name, CDL/CLP number, and State of licensure; (b) Vehicle class and/or endorsement training the individual received; (c) Name and TPR identification number of the training provider; and (d) Date of successful completion of the training. § 380.719 Requirements for Continued Listing on the Training Provider Registry The Agency proposes that, in order to remain on the TPR, a training provider would continue to ensure that its program meets the requirements defined in § 380.703 as well as all applicable State training licensure, registration, certification, or accreditation requirements. The goal is not to attempt to enforce State requirements, but to ensure that a training provider that fails to satisfy applicable State requirements should not remain on the TPR. In addition, a training provider would update its FMCSA Entry-Level Driver Training Provider Identification Report biennially and report changes in key information to FMCSA within 30 days of the change. Key information changes would include a change in the status of a training provider based on the number of driver-trainees actually trained in a twelve-month period. For example, if, when submitting the report form, a training provider anticipated training three or fewer driver-trainees annually, but in fact trained more than three, that provider would no longer be eligible for treatment as a small training provider. The provider's change in status would be updated on the report form and the provider would thereafter be subject to all requirements of § 380.707 (a) through (d). We invite comment regarding this proposed requirement. The training provider would also maintain required documentation as set forth in § 380.725 and ensure such documentation is available upon request to FMCSA or its authorized representative. Finally, in order to be eligible for continued listing on the TPR, training providers would allow FMCSA or its authorized representative to conduct an audit or investigation of the provider's operations. § 380.721 Removal From the Training Providers Registry: Factors Considered This section proposes that FMCSA may rely on a variety of factors to determine whether to remove a training provider from the TPR, including, but not limited to: • The provider's failure to comply with the requirements for continued listing on the TPR, as described in § 380.719. • The provider's failure to permit FMCSA or its authorized representative the opportunity to conduct an audit or investigation of its operations. • The audit conducted by FMCSA or its authorized representative identifies material deficiencies in the training provider's compliance with the eligibility requirements for listing on the TPR. • The training provider falsely claims to be authorized to provide training in accordance with the applicable laws and regulations in any State in which the provider conducts training. • The SDLA CDL exam passage rate of those individuals who successfully complete the provider's training is abnormally low. FMCSA is not establishing a minimum required CDL passage rate, but would use this information in the context of State norms. • There is evidence of fraud or other criminal behavior by the training provider. § 380.723 Removal From the Training Provider Registry: Procedure FMCSA would establish procedures for removing training providers from the TPR based on the failure of the training provider to meet the applicable requirements under 49 CFR part 380. This section proposes that the Agency provide the training provider with a notice stating the reason for the proposed removal and any corrective actions the training provider must take in order to remain listed on the TPR. The training provider must notify current driver-trainees, as well as those persons scheduled for future training, that it has received a notice of proposed removal. Training conducted after the issuance of a notice of proposed removal would not be compliant and, therefore, not valid for issuance of a CDL, until FMCSA withdraws the notice. A training provider that wishes to remain listed on the TPR would have [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-03869. Public record. Not legal advice.