[Federal Register: May 21, 2004 (Volume 69, Number 99)]
[Rules and Regulations]
[Page 29383-29405]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my04-26]
[[Page 29383]]
-----------------------------------------------------------------------
Part IV
Department of Transportation
-----------------------------------------------------------------------
Federal Motor Carrier Safety Administration
-----------------------------------------------------------------------
49 CFR Part 380
Minimum Training Requirements for Entry-Level Commercial Motor Vehicle
Operators; Final Rule
[[Page 29384]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 380
[Docket No. FMCSA-1997-2199]
RIN 2126-AA09
Minimum Training Requirements for Entry-Level Commercial Motor
Vehicle Operators
AGENCY: Federal Motor Carrier Safety Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
establishes standards for mandatory training requirements on four
specific topics for entry-level operators of commercial motor vehicles
(CMVs), who are required to hold or obtain a commercial driver's
license (CDL). This action responds to a study mandated by the
Intermodal Surface Transportation Efficiency Act of 1991 that found the
private sector training of entry-level drivers in the heavy truck,
motorcoach, and school bus industries was inadequate. The purpose of
this rule is to enhance the safety of CMV operations on our nation's
highways.
DATES: Effective Date: The effective date is July 20, 2004, except for
Sec. 380.500, which is effective from July 20, 2004, through June 30,
2005.
FOR FURTHER INFORMATION CONTACT: Mr. Ronald Finn, CDL Team, Office of
Safety Programs (MC-ESS), (202) 366-0647, Federal Motor Carrier Safety
Administration, 400 Seventh Street, SW., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
Background
Advance Notice of Proposed Rulemaking
Adequacy of Commercial Motor Vehicle Driver Training
Driver Safety Initiatives
Summary of NPRM Provisions
Discussion of Comments to the NPRM
Comments on Specific Issues in Proposed Rules
Rulemaking Analyses and Notices
Regulatory Text
Background
Section 4007(a)(1) of the Motor Carrier Act of 1991 (Title IV of
the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA),
Pub. L. 102-240, 105 Stat. 1914, 2151) directed the U.S. Department of
Transportation to study ``the effectiveness of the efforts of the
private sector to ensure adequate training of entry-level drivers of
commercial motor vehicles.'' In preparing the study, the agency had to
solicit the views of interested persons. The agency was also required
by sec. 4007(a)(2) to ``commence a rulemaking proceeding on the need to
require training of all entry-level drivers of commercial motor
vehicles'' and establish Federal minimum training requirements. This
legislation built on the prior authorities of the Federal Highway
Administration (FHWA) (the predecessor agency to FMCSA).
The enactment of ISTEA occurred in December 1991. This sec. 4007
rulemaking began before the agency had implemented the CDL regulations
fully. The principal regulation of the CDL program did not become
effective until April 1992, when CMV drivers could not operate CMVs
without first having taken and passed written and driving tests and
have the State issue the CDL. When Congress mandated entry-level driver
training the full impact of the CDL program on motor carrier safety was
not known. FMCSA has had twelve years of experience with testing and
licensing CMV drivers. FMCSA now knows the CDL program improved the
quality of CMV drivers. Given the impact of the CDL program over the
last 12 years, FMCSA has taken a basic approach in this rulemaking to
improve safety.
In the early 1980's, FHWA determined that a need existed for
technical guidance in the area of truck driver training. Research at
that time had shown that many driver-training schools offered little or
no structured curricula or uniform training programs for any type of
CMV.
To help correct this problem, the agency developed, and in 1985
issued, the ``Model Curriculum for Training Tractor-Trailer Drivers''
(1985, GPO Stock No. 050-001-00293-1), which incorporated the agency's
``Proposed Minimum Standards for Training Tractor Trailer Drivers''
(1984). The Model Curriculum, as it is known in the industry, is a
broad set of recommendations that incorporates standardized minimum
core curriculum guidelines and training materials, as well as
guidelines pertaining to vehicles, facilities, instructor hiring
practices, graduation requirements, and student placement. Curriculum
content includes the following areas: Basic operation, safe operating
practices, advanced operating practices, vehicle maintenance, and non-
vehicle activities.
The Professional Truck Driver Institute (PTDI) was created in 1986
by the motor carrier industry to certify training programs offered by
truck driver training schools. Originally named the Professional Truck
Driver Institute of America, the group changed its name in 1998 to
reflect the addition of Canada to the organization. The Model
Curriculum is the base from which the PTDI's certification criteria
were derived. The PTDI, in mid-1988, began certifying truck-driver
training programs across the country. As of February 2003,
approximately 64 schools in 27 States and Canada have received the PTDI
certification. Although many schools have a number of truck driving
courses, most have only one course certified by PTDI.
The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) (49 U.S.C.
31301 et seq.), although not directly targeted at driver training, was
intended to improve highway safety. Its goal was to ensure that drivers
of large trucks and buses possess the knowledge and skills necessary to
safely operate those vehicles on public highways. The CMVSA established
the CDL program and directed the FHWA to establish minimum Federal
standards, which States must meet when licensing CMV drivers. The CMVSA
applies to virtually anyone who operates a CMV in interstate or
intrastate commerce, including employees of Federal, State, and local
governments. As defined by the implementing regulation (49 CFR 383.5),
a CMV is a motor vehicle or combination of motor vehicles used in
commerce to transport passengers or property if the vehicle meets one
or more of the following criteria:
(a) Has a gross combination weight rating (GCWR) of 11,794 or more
kilograms (26,001 or more pounds) inclusive of a towed unit with a
gross vehicle weight rating (GVWR) of more than 4,536 kilograms (10,000
pounds).
(b) Has a GVWR of 11,794 or more kilograms (26,001 or more pounds).
(c) Is designed to transport 16 or more passengers, including the
driver.
(d) Is of any size and is used in the transportation of hazardous
materials as defined in 49 CFR 383.5.
In accordance with the CMVSA, all drivers of CMVs must possess a
valid CDL in order to be properly qualified to operate the vehicle(s)
they drive. In addition to passing the CDL knowledge and skills tests
required for the basic vehicle group, all persons who operate or expect
to operate any of the following vehicles, which have special handling
characteristics, must obtain endorsements under 49 CFR 383.93:
(a) Double/triple trailers.
(b) Passenger vehicles.
(c) Tank vehicles.
(d) Vehicles transporting hazardous materials as defined in 49 CFR
383.5.
[[Page 29385]]
For all endorsements, the driver is required to pass a knowledge
test. The driver must also pass a skills test to obtain a passenger
endorsement.
The CDL standards do not require the comprehensive driver training
proposed in the Model Curriculum because the CDL is a licensing
standard as opposed to a training standard. Accordingly, there are no
prerequisite Federal or State training requirements to obtain a CDL.
The agency also completed two projects that contributed to an
enhanced understanding of driver training. Although they were not
specifically designed to address one type of driver training versus
another or to address specific items that would be included in a
minimum training standard, they do provide perspective on the
importance of driver training and the need for minimum training
requirements. The first project took place in December 1994 and
involved focus groups to obtain information about highway safety issues
relating to commercial motor carriers. The second project was the 1995
National Truck and Bus Safety Summit. A copy of the ``1995 Truck and
Bus Safety Summit, Report of Proceedings'' is in the public docket.
Advance Notice of Proposed Rulemaking
Pursuant to section 4007(a)(2) of ISTEA, the agency began a
rulemaking proceeding on the need to require training of all entry-
level CMV drivers. On June 21, 1993, the agency published in the
Federal Register an advance notice of proposed rulemaking (ANPRM) (58
FR 33874).
The ANPRM stated ``Although transit buses (designed to transport 16
or more passengers) also meet the definition of a CMV, they will not be
considered because these vehicles are almost all operated by
municipalities or other public agencies. Because the ISTEA specifies
that the FHWA [Federal Highway Administration] report on the
effectiveness of `private sector efforts' to ensure adequate training
of CMV drivers, we believe Congress intended to exclude training of
transit bus drivers from this rulemaking.'' In addition, the ANPRM
explained that ``Although the definition of a CMV in the Motor Carrier
Safety Act of 1984 included a weight threshold of 10,001 pounds or more
(49 CFR 390.5), the FHWA believes any potential CMV training standard
should be considered an additional CDL requirement and thus subject to
the higher jurisdictional threshold of that program.'' The CDL
program's higher jurisdictional thresholds were discussed above.
In the ANPRM, the agency asked 13 questions, which addressed
training adequacy standards, curriculum requirements, the CDL, the
definition of ``entry-level driver,'' and training, pass rates and
costs.
The agency received 104 comments to the ANPRM. There was no
consensus among the commenters on the issue of mandated entry-level
driver training. The heavy truck and bus industries were against
mandated training; the International Brotherhood of Teamsters was in
favor. When the agency published a notice on April 25, 1996, reopening
the docket (61 FR 18355), it received 48 additional comments on a
training adequacy study and cost-benefit analysis. On November 13,
1996, the agency held a public meeting at the Department of
Transportation headquarters in Washington, DC, to discuss mandatory
training for entry-level CMV drivers. There were 26 persons who
participated at the public meeting.
A detailed analysis of the questions in the ANPRM and comments
received by the agency appeared in the Notice of Proposed Rulemaking
(NPRM) published in the Federal Register on Friday, August 15, 2003 (68
FR 48863).
Adequacy of Commercial Motor Vehicle Driver Training
Concurrent with the development of the ANPRM, the agency conducted
a study completed in 1995, as required by section 4007(a)(1) of the
ISTEA, on the effectiveness of private sector efforts to train entry-
level CMV drivers. The agency limited the study to drivers in the heavy
truck (26,001 or more pounds), motorcoach, and school bus industries. A
copy of the study ``Adequacy of Commercial Motor Vehicle Driver
Training'' is in docket FMCSA-1997-2199. The findings are summarized in
the NPRM, and indicated that neither the heavy truck, motorcoach, nor
school bus segments of the CMV industry were providing adequate entry-
level driver training.
Driver Safety Initiatives
This final rule is part of an overall FMCSA effort to improve its
driver safety programs. These include improvements to the CDL tests and
a study on graduated licensing. Section 4019 of the Transportation
Equity Act for the 21st Century (Pub. L. 105-178; June 9, 1998) (TEA-
21) requires the agency to determine whether the current system of CDL
testing is an accurate measure of an applicant's knowledge and skill
needed to operate a CMV.
More specifically, the agency is examining the various CDL skill
test components to determine whether testing modifications are
necessary. The agency plans to coordinate with the Driver License and
Control Committee of the American Association of Motor Vehicle
Administrators to determine if the required skill tests can be given in
a more efficient and less costly manner.
Section 4019 of TEA-21 also required the agency to identify the
costs and benefits of a graduated licensing system. The agency
published a notice in the Federal Register on February 25, 2003, asking
for public comment on whether a graduated licensing system for CMV
operators is a workable concept (68 FR 8798). The agency plans to use
this information to help determine the costs and benefits of a
graduated CDL.
The agency published an interim final rule in the Federal Register
on May 13, 2002 (67 FR 31978), establishing a process to ensure that
new entrant motor carriers are knowledgeable about applicable Federal
Motor Carrier Safety Regulations (FMCSRs). Many new entrant motor
carriers are entry-level driver owner-operators. The rule requires a
safety audit to educate the motor carrier on compliance with the FMCSRs
and Hazardous Materials Regulations, and identify areas where the motor
carrier may be deficient in terms of compliance. The safety audit
examines selected motor carrier records and assesses the adequacy of
the new entrant's basic safety management controls. Areas covered
include qualification of drivers and hours of service of driver
requirements for employers. The agency intends to improve the safety
performance of new entrants by providing educational and technical
assistance to new motor carriers as they begin their new business. This
new entrant process will include the verification of training for
entry-level drivers in today's final rule: (1) Driver qualification
requirements; (2) hours of service of drivers; (3) driver wellness; and
(4) whistleblower protection.
Finally, the Motor Carrier Safety Assistance Program (MCSAP) is a
Federal grant program that provides financial assistance to States, the
District of Columbia, and eligible territories to conduct roadside
inspections and other enforcement activities designed to improve CMV
safety. The goal of the MCSAP is to reduce the number and severity of
crashes and hazardous materials incidents involving CMVs through
uniform, consistent, and effective safety programs. Investing grant
funds in appropriate safety programs increases the likelihood that CMV
safety defects, driver deficiencies, and unsafe motor
[[Page 29386]]
carrier practices will be detected and corrected before they become
contributing factors to crashes. Since 1984, the MCSAP has provided an
effective forum for FMCSA and States to work cooperatively to improve
motor carrier, CMV, and driver safety. Even though roadside inspections
remain the primary activity under the program, the States also perform
a variety of other enforcement activities including compliance reviews
of motor carrier operations. The compliance review provides the agency
with an additional opportunity to verify motor carrier compliance with
driver entry-level training requirements.
This final rule represents FMCSA's most recent action to improve
driver safety. It establishes minimum training standards by requiring
entry-level drivers to receive training in driver qualification
requirements, hours of service of drivers, driver wellness, and
whistleblower protection. These training areas are not covered by the
CDL tests. Each of these areas focuses on the CMV driver, who the
agency believes is key to promoting safety on our nation's highways.
FMCSA believes that training in these four areas will serve to set a
floor of safety for entry-level drivers.
Summary of NPRM Provisions
For purposes of the NPRM, FMCSA defined an entry-level driver as a
person with less than two years experience operating a CMV that
required a CDL. However, drivers with one-year experience operating
such a CMV, who have a good driving record, would be grandfathered and
therefore would not have to take the proposed training. The proposal
did not specify what a good driving record would look like.
In the NPRM, the agency proposed training for entry-level drivers
based on three main principles. First, the agency directed the NPRM to
drivers included in the 1995 study discussed above, i.e, only drivers
in the heavy truck, motorcoach, and school bus industries. Excluded
were: (1) Transit bus drivers subject to Federal Transit Administration
regulations; (2) drivers operating property-carrying CMVs with gross
vehicle weight ratings under 26,001 pounds; (3) drivers operating
hazardous material laden CMVs not required to placard the CMV in
accordance with 49 CFR part 172, subpart F (Sec. Sec. 172.500 through
172.560); and (4) drivers operating CMVs laden with any quantity of a
material listed as a select agent or toxin in 42 CFR part 73. Second,
the agency focused the NPRM to drivers who operate in interstate
commerce subject to the Motor Carrier Safety Act of 1984. Third, the
agency narrowed the NPRM to those training topics that extend beyond
the scope of the CDL test.
The NPRM thus addressed: (1) Driver medical qualification and drug
and alcohol testing, (2) driver hours of service rules, (3) driver
wellness, and (4) whistleblower protection. The agency believed that
training in these four areas would serve to set a floor of safety for
entry-level CMV drivers, and at the same time represent a reasonable
cost investment for drivers or employers to implement. The NPRM did not
specify a required number of hours for the training, but the agency's
cost-effectiveness estimate was premised on 10.5 hours of training for
heavy truck and motorcoach drivers and 4.5 hours of training for school
bus drivers. The NPRM proposed only two training topics for school bus
drivers: driver wellness and whistleblower protection. The NPRM
included a specific discussion of what would be covered in each of the
four areas of this training.
The NPRM proposed that the employer would have to maintain evidence
of the instruction for review by an FMCSA official seeking to verify
that the training requirement had been met. Informal, unverifiable, or
undocumented communication between the entry-level driver and his or
her employer would not be acceptable. A training certificate that a
driver had received the training would be maintained in the driver's
personnel file. Employers would have had to ensure that currently
employed entry-level drivers, who did not qualify for grandfathering,
receive the required training no later than 90 days after the
regulations go into effect.
Discussion of Comments to the NPRM
The FMCSA received 38 written comments on the NPRM. Commenters
included motor carriers, associations, training organizations, a union,
a public interest organization, and individuals.
General Support
Eleven commenters generally support the FMCSA's proposal. For
example, the American Trucking Associations (ATA) states, ``ATA
generally supports the proposed minimum training requirements and
FMCSA's overall efforts to improve the Commercial Driver's License
(CDL) program.'' The National Private Truck Council, Inc. (NPTC),
Consolidated Safety Services, Inc. (CSS), American Moving and Storage
Association (AMSA), the Tree Care Industry Association (TCIA), McLane
Company, Inc. (McLane), Tri-State Semi Driver Training, Inc. (Tri-
State), the Commercial Vehicle Training Association (CVTA), American
Bus Association (ABA), the Commercial Vehicle Safety Alliance (CVSA),
and the International Brotherhood of Teamsters (IBT) make similar
statements. CVTA states that it ``believes that the Proposed Rules
represent a first step in recognizing the need for formal training for
entry-level drivers.'' The ABA states, ``we believe that minimum
training requirements for entry-level drivers are long overdue.'' The
CVSA states, ``We would like to first acknowledge the agency's
continued commitment to safety--and the fact that training is a
critical component. The commercial vehicle industry indeed is a
profession. Highly skilled workers are required, both in industry and
enforcement. Thus, we support this rulemaking because we believe it
will save lives.'' The IBT states, ``most motor carrier employers do
not provide their entry-level drivers adequate training or instruction.
The IBT thus supports FMCSA's efforts to correct this problem.''
Several commenters endorse the proposal to require training in the
four prescribed areas. CSS endorsed rules that mandatory training in
(1) driver qualifications; (2) driver hours of service rules; (3)
driver wellness; and (4) whistleblower protection are important
additions covering areas not treated by CDL testing. AMSA, McLane, and
Tri-State state that they or their members already include some or all
of these topics in their training.
In addition to providing general support, most of these commenters
provide comments and suggestions on specific provisions in the proposed
rule, which are described below.
The Proposal Is Too Burdensome
Central Tech states that, except for whistleblower protection, most
good driver training schools already cover the four proposed topics.
However, the NPRM places the burden for training in these subject areas
back on the trucking companies. Central Tech questions how companies
would comply with the certificate requirement if these companies rely
on the training provided by the schools. The commenter asks, are the
``schools that already train in these areas going to be required to
issue a separate certificate?'
The Petroleum Marketers Association of America (PMAA) states that
requiring 10.5 hours for the proposed training would be an unreasonable
amount of time for PMAA members. The commenter states, ``PMAA members
are small companies with sometimes only a few employees. If one of
those employees is unavailable for over a day,
[[Page 29387]]
this will have a serious financial impact on our member's operations.''
FMCSA Response: Although the proposal does not specify a required
number of hours for the training, the agency estimates that an employer
or other training provider would need to devote about 10 hours of
training for all heavy truck, motorcoach, and private contractor school
bus drivers. These are nationwide estimates of the average length of
time needed to train drivers in the four required subject areas.
Today's final rule allows employers to provide the required
training in a range of settings. Various entities can provide the
training, including the employer, a training school, or a class
conducted by consortia or associations of employers. The proposal
discussed that currently employed drivers will be entitled to a 90-day
grace period. The FMCSA has determined that drivers that began driving
CMVs within 10 months before today's final rule and two months after
today's final rule will be considered currently employed drivers
subject to this 90-day grace period. These drivers are permitted to
operate a CMV during the 90-day period pending the completion of
training. The agency also believes that employers can train these
entry-level drivers in shifts.
In response to Central Tech's question about whether schools that
already train in the areas made final today will be required to issue a
separate certificate, the training provider would not have to issue the
entry-level driver a separate training certificate. However, the
training school's certificate or diploma given to the driver must have
wording that is substantially in accordance with the wording of the
training certificate contained in this final rule.
The Proposal Will Not Ensure Safety
Six commenters state that the proposals in the NPRM will not ensure
better driver safety training or improve safety in general.
The United Motorcoach Association (UMA) states that, along with
school buses, the motorcoach industry is the safest mode of ground
passenger transportation. ``There is no evidence either in existing
data or anecdotal evidence that shows that the proposals in this NPRM
will do anything to improve our already superior safety record.''
The National Solid Wastes Management Association (NSWMA) states
that the proposed training may divert training time and resources away
from more meaningful methods of improving safe driving, such as on-the-
job observations by route supervisors. Similarly, C. R. England, Inc.
states that, ``training in current topics that may be more effective in
deterring the types of target accidents may be displaced to accommodate
the proposed mandated hours. The overall effect may result in an
increase in accidents.''
The Truckload Carriers Association (TCA) states that information on
the four topics is already being voluntarily provided to drivers by
many carriers.
The National Association of Publicly Funded Truck Driver Schools
(NAPFTDS) and the National Ground Water Association (NGWA) make similar
comments.
FMCSA Response: FMCSA believes this final rule will promote safety
because it covers new areas not covered by the CDL tests and it places
a training responsibility on employers and entry-level drivers.
However, the rule does not mandate training hours. The FMCSA believes
motor carriers must address training needs to properly train
inexperienced drivers. FMCSA is emphasizing that these requirements are
a training responsibility by placing the entry-level driver training
requirements in part 380. Compliance will be checked at the carrier's
place of business during a compliance review. Because the requirement
is not a driver licensing issue to be administered by the State
licensing agency, enforcement officials will not check for compliance
at roadside.
The CMV driver is key to truck and bus safety. The rule is part of
FMCSA's overall effort to improve its safety programs. These efforts
include improvements to the CDL tests, a graduated licensing study, the
new entrant motor carrier standards, and the MCSAP program. Viewed in
this overall context, the FMCSA believes this overall effort will
improve the safety of entry-level drivers and meet the Congressional
directive for rulemaking. This final rule is one prong of the overall
effort. See also the FMCSA's discussion above in reference to Central
Tech's comments.
The Proposal Does Not Comply With the Statute
The Advocates for Highway and Auto Safety (AHAS) strongly object to
the proposed rule on the basis that it does not comply with Section
4007(a) of the ISTEA. AHAS states, ``Although the FMCSA was directed by
Congress in Section 4007(a) of the Intermodal Surface Transportation
Assistance Act of 1991 (ISTEA), Public Law 102-240 (December 18, 1991),
to conduct rulemaking on the need for entry-level driving training, the
agency in this notice clearly seeks to evade that legislative
directive.''
AHAS states that in the review of the effectiveness of private
sector entry-level driver training required by section 4007(a), the
FHWA found that private sector efforts at transmitting basic CMV driver
skills and knowledge training are fundamentally inadequate, yet in the
NPRM preamble FMCSA stated ``the CDL gives the novice driver the basic
knowledge and skill necessary to operate a CMV.''
AHAS also states that under section 4007(a) FMCSA is required to
submit a report to Congress if it determines that entry-level driver
training is not necessary. The report is to explain why such training
is not needed and must include a benefit-cost analysis to justify the
decision. AHAS states:
Neither the FMCSA nor the FHWA has issued a study to support
such a negative finding. On the contrary, the results of the
research conducted to [sic] show that basic skills and knowledge
training in the private sector are inadequate. Yet the FMCSA has
proposed leaving these inadequate efforts undisturbed by federal
regulation designed to advance the quality of entry-level commercial
driver skills and knowledge. Instead, the agency only proposes to
require that novice drivers receive instruction in four additional
areas: driver qualifications, hours of services governing commercial
driver duty time, driver wellness, and whistle blower protection. *
* * No baseline training of any kind is required in this notice; the
agency is content to allow currently inadequate approaches to
ensuring basic driver competence in the operation of large trucks
and buses to remain unchanged. * * * The proposed novice driver
training is a legally insufficient response to the statutory mandate
and clearly violates legislative intent.
The Sage Corporation (Sage) states that the proposed training
program will have little impact on whether entry-level drivers are
receiving adequate training.
FMCSA Response: The FMCSA believes its proposal meets the
requirements of the statute to improve private sector training. The
agency stated in the CDL final rule on July 21, 1988 (53 FR 27628) that
at least ``20 States waive testing if the classified driver's license
applicants meet certain conditions, such as certification of training
and testing by their employer, and two States recognize training
schools.'' The States also have had the liberty to impose more
stringent public sector training efforts than the minimum necessary to
pass their CDL tests.
The agency requires four minimum training areas for operating in
interstate commerce. FMCSA does not believe it should duplicate
training that the public and private sectors provide a driver to
operate a CMV before taking the CDL
[[Page 29388]]
tests. The agency believes that the four additional areas in today's
final rule will provide entry-level drivers with fundamental knowledge
necessary for beginning operations in interstate commerce: (1) Driver
qualification requirements; (2) hours of service of drivers; (3) driver
wellness; and (4) whistleblower protection. The ongoing FMCSA efforts
to address the adequacy of CDL testing is the better place to focus
training issues over the actual operation of CMVs than in this
rulemaking.
Proposal Should Be Performance Based
C. R. England comments that instead of mandating the hours required
for training, the FMCSA should set standards and allow drivers and
employers to determine the most appropriate methods for meeting those
standards. CVSA also stated that the training should be performance-
based to accurately reflect the level of understanding by the
participants.
FMCSA Response: The agency proposed a set of standards that would
allow drivers and employers to determine the most appropriate methods
for meeting those standards. The agency believes the entry-level
training in this rule is performance-based because the agency specifies
the general content of the four topic areas of required training.
However, the agency believes CVSA's comments imply a testing format
that the agency cannot oversee and does not want to require of an
employer. Employers, however, may test their entry-level drivers or
have them tested. The required training does not specify the number of
hours of training, but provides estimates that the agency used as
averages across the heavy truck, motorcoach, and private contractor
school bus industries. Further information on the estimates may be
found in the cost-effectiveness analysis in the docket, and is
summarized in the NPRM.
Training Topics Should Be Part of CDL Program
Nine commenters state that the goal of improving driver safety
would be better realized if the training topics contained in the
proposed rule were made part of the CDL curriculum. The commenters are:
NRMCA, PMAA, Colorado Ready Mixed Concrete Association/Colorado Rock
Products Association (CRMCA/CRPA), National School Transportation
Association (NSTA), C.R. England, Inc., AMSA, UMA, ABA, and NPTC. Most
of the commenters believe that this would be the least costly way to
accomplish the desired training in the four subject areas proposed.
Several of the commenters make the further point that the
responsibility for ensuring that this training has occurred should be
with the State licensing agency rather than the employer. NPTC states
that making the new training requirement part of the CDL licensing
process would mean that an employer could assume that a driver with a
valid CDL has received the appropriate training.
NPTC believes that incorporating the driver training into the CDL
would assist employers in the event of litigation arising from a
vehicle collision where the adequacy of the driver's training is at
issue. Similarly, C.R. England, Inc. states that if the proposed
requirements are not added to the testing requirements of the CDL,
``the CDL competency is undermined to the point of putting carriers at
legal risk for using inexperienced drivers.''
FMCSA Response: FMCSA believes that requiring the State to
administer, and enforce at roadside inspections, the entry-level driver
training requirements would add an unnecessary complication to the CDL
program. FMCSA believes the training certificate in the driver
personnel or qualification file is sufficient documentation that a
driver has met the entry-level driver training requirement.
The FMCSA believes motor carriers should address training needs to
properly train inexperienced drivers. By placing the entry-level driver
training requirements in part 380, FMCSA is emphasizing that these
requirements are a training responsibility and that compliance will be
checked at the carrier's place of business during a compliance review.
Because the requirement is not a driver licensing issue to be
administered by the State licensing agency, enforcement officials will
not check for compliance at roadside. (Roadside enforcement officials
may, however, check an entry-level driver's CDL to verify the presence
of proper endorsements, such as passenger or school bus endorsements.)
Mandatory Training Standards
Among the nine commenters that address the issue whether training
should be made mandatory, seven favor mandatory training, and two
oppose it.
NADA and Tri-State oppose mandatory training. Tri-State expresses
concern at what it labeled a ``one size fits all'' approach. This
commenter favors an approach that identifies competencies expected of a
safe driver and then measures those competencies through outcome
testing. NADA believes that entry-level drivers would collectively
benefit from a more rigorous training regime. It also believes that the
Model Curriculum should be declared ``the basis for training
adequacy,'' and that the four areas covered by the NPRM could then be
added to the Model Curriculum. At the same time, NADA objects to a
Federal mandate for entry-level training. Similarly, McLane ``urges
FMCSA to revise the existing Model Curriculum or develop a new
supplemental curriculum to reflect these new minimum training
requirements.''
The eight commenters who favor mandatory training give reasons
similar to those discussed earlier under the topic ``Current CDL
training inadequate.'' [Daecher, NATFTDS, FVTC, Future Truckers of
America (FTA), Tri-State, CVTA, CVSA, and CSS.] That is, most believe
that a minimum mandatory training requirement is needed because, as
NADA states, ``mere acquisition of a CDL does not properly prepare a
potential driver for safe operation of CMVs on the nation's highways.''
CVTA suggests that the rule require that a CDL applicant complete all
Model Curriculum courses. Training in all courses should total at least
160 hours, CVTA recommends.
FVTC requests FMCSA to withdraw the current proposal and to act on
the FHWA's July 1995 report, ``Assessing the Adequacy of Commercial
Motor Vehicle Driver Training.'' The commenter states that the report
concluded that ``of those heavy truck carriers that hire entry-level
drivers only one in 10 would be expected to provide adequate
training.''
Daecher states that the Model Curriculum fails to include training
on the use of anti-lock brake systems or engine retarders.
FMCSA Response: FMCSA is making the training standards mandatory.
The agency believes the standards have to be mandatory to be effective
at improving interstate driver proficiency in the four topics selected.
FMCSA has identified the four competencies expected of a safe driver
operating in interstate commerce. FMCSA is leaving the outcome testing
to the employers. The FMCSA believes the 160-hour Model Curriculum
training course is too burdensome. However, if an employer believes its
drivers need that amount of training, it may provide that amount.
FMCSA did not include engine retarders, as Daecher suggests,
because there is no requirement that vehicles be equipped with such a
device. Training in anti-lock brake systems is covered on the CDL test.
The required skills test in Sec. 383.113 lists the ability to stop the
vehicle, as well as air brake application. FMCSA believes CDL examiners
will
[[Page 29389]]
test entry-level drivers on anti-lock brake application and inspection
of the anti-lock brake system in State CDL tests.
Comments on Specific Issues in Proposed Rules
General Applicability
Several commenters ask for clarification on applicability or make
suggestions as to whom it should apply. TCIA seeks confirmation that
the rule only applies to CDL drivers and not to commercial drivers who
drive vehicles under 26,001 gross vehicle weight rating (GVWR). UMA
objects that FMCSA bases its entry-level driver training almost solely
on the heavy truck industry, but applies the rule to the motorcoach
industry, which has a better safety record. In addition, UMA believes
that including motorcoach drivers in the NPRM, but exempting transit
bus drivers from the training standards, is flawed. UMA states that the
premise that transit operations are somehow safer than motorcoach
operations is not borne out by the data. UMA urges FMCSA to exempt the
motorcoach industry.
CVSA disagrees with the proposed rule applying only to ``drivers
who drive in interstate commerce and are subject to the CDL
requirements.'' It believes the safety related standards should be the
same for all CDL drivers whether they are interstate or intrastate
drivers. The CDL requirements should be applied evenly across the
board.
FMCSA Response: The final rule is applicable to all persons subject
to the CDL requirements in 49 CFR part 383 operating in interstate
commerce, as defined in 49 CFR 390.5. It will include all motor
vehicles, trucks, motorcoaches, buses, school buses, or combinations of
motor vehicles used in interstate commerce to transport passengers or
property if the motor vehicle--
(a) Has a gross combination weight rating of 11,794 kilograms or
more (26,001 pounds or more) inclusive of a towed unit(s) with a gross
vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or
(b) Has a gross vehicle weight rating of 11,794 or more kilograms
(26,001 pounds or more); or
(c) Is designed to transport 16 or more passengers, including the
driver; or
(d) Is of any size and is used in the transportation of any
material that has been designated as hazardous under 49 U.S.C. 5103 and
is required to be placarded under subpart F of 49 CFR part 172
(Sec. Sec. 172.500 through 172.560), or any quantity of a material
listed as a select agent or toxin in 42 CFR part 73.
The rule will not apply to persons subject to the Federal Transit
Administration's jurisdiction or to persons excepted by 49 CFR
390.3(f), including transportation performed by the Federal government,
a State government, any political subdivision of a State, any agency
that has been established under a compact between States that has been
approved by the Congress of the United States, or any school bus
operations as defined in 49 CFR 390.5.
The agency chose not to include drivers subject to Federal Transit
Administration regulations and other Federal, State, and local
government agencies in the rulemaking because these vehicles are almost
all operated by municipalities or other public agencies. ISTEA
specified that the agency report on the effectiveness of ``private
sector efforts'' to ensure adequate training of CMV drivers. Therefore,
FMCSA believes Congress intended to exclude training of transit bus
drivers and other Federal, State, and local government agencies from
this rulemaking. See 58 FR 33874 (June 21, 1993).
Non-transit motorcoach operations are included in today's final
rule because Congress specifically wanted the agency to study the
effectiveness of ``private sector efforts'' to ensure adequate training
of CMV drivers. The agency studied the motorcoach industry's private
sector training efforts and found them to be inadequate. FMCSA believes
that the training adequacy study had a sufficiently diverse group of
cargo and passenger carriers to be representative of the CMV industry
the agency regulates.
Exempt School Buses
National School Transportation Association (NSTA) urges the FMSCA
to exempt school bus drivers from the required driver training outlined
in this rule. NSTA does not oppose meaningful driver training for
school bus drivers, but disagrees with the agency's arguments to
include school bus drivers. NSTA explains that its industry is 40
percent safer than transit drivers who are exempt from this rule. As
justification for exempting transit operators (and for exempting some
school bus operators from two of the requirements), the NPRM cites the
fact that those entities are not subject to parts 350 through 399 of
the FMCSRs. NSTA claims this is a disingenuous argument, because FMCSA
does subject these entities to CDL requirements (part 383) and to drug
and alcohol testing requirements. NSTA submits that training
requirements could be tied to the CDL just as the drug and alcohol
requirements are, ensuring that all drivers receive training in topics
the agency considers essential for safe driving.
NSTA states that ``the agency also cites FTA training materials as
a reason to exempt transit operators * * * '' There is no indication
that the materials cover the areas proposed in this rule; in fact, the
FTA training materials appear to be less comprehensive than much of the
State-required school bus training. Therefore, if it is reasonable to
exempt transit operations from the requirements, then it is reasonable
to exempt all school bus operations as well. On the other hand, if the
agency believes that the proposed training requirements will reduce
crashes, then all drivers should be subject to them.
Regarding proposed entry-level driver training standards for school
bus drivers, a school bus contractor opposes federally mandated driver
training standards and believes the process should be left to the
States, and enforced by the States. In addition, it states that the
cost of training would be a hardship on already over-stretched public
school budgets.
FMCSA Response: FMCSA believes private sector school bus operations
must be included in today's final rule. The ISTEA directed the agency
to study the effectiveness of the efforts of the private sector to
ensure adequate training of entry-level drivers of CMVs. The agency
limited the study to those drivers required to hold a CDL to operate a
CMV, including private sector school bus drivers. The study found
training for this type of CMV driver to be inadequate. Sec. 4007(a)(2)
required the agency to do the rulemaking.
The agency must also clarify a possible misunderstanding. The
statutory mandate underpinning this rulemaking focuses the agency to
address only ``private sector efforts.'' The agency is clarifying the
applicability for the final rule. Today's final rule applies only to
private school bus contractors, e.g., employers and drivers operating
school buses in the private sector. Thus, the exceptions provided by
Sec. 390.3(f)(1) and (2) apply to today's final rule.
In response to the NSTA comment, the NPRM incorrectly stated that
government transit drivers are exempt from parts 350 through 397 of the
Federal Motor Carrier Safety Regulations (FMCSRs). The reference in the
NPRM to the exemption to parts 350 through 397 of the FMCSRs should
have included the phrase ``except as otherwise provided.'' Section
390.3(f)(1) and (2) provide that unless otherwise
[[Page 29390]]
specifically provided, the rules in 49 CFR parts 350 through 399 do not
apply to--
(1) All school bus operations as defined in 49 CFR 390.5; and
(2) Transportation performed by the Federal government, a State, or
any political subdivision of a State, or an agency established under a
compact between States that has been approved by the Congress of the
United States * * * The agency has corrected the NPRM misstatement in
the final rule.
FMCSA disagrees with the school bus contractor which opposes
federally-mandated driver training standards and believes the process
should be left to, and enforced by the States. The agency is changing
the training topics for school bus drivers in this final rule. The
specifics will be discussed later under the heading Training Topics.
If the NSTA has suggestions that it believes will improve the FTA's
training materials for alcohol and controlled substances testing, the
agency suggests NSTA contact the FTA directly. The agency believes that
FTA is the best qualified to comment on the comprehensiveness of its
training materials.
FMCSA is encouraged by the NSTA statement that school bus drivers
receive pre-service training of at least 40 hours and in-service
training of at least 10 hours. The agency believes this shows that the
additional amount of time spent learning about driver qualifications,
hours of service, driver wellness, and whistleblower protection would
not be unduly burdensome.
Entry-Level Driver Definition and Grandfathering
The proposal defined an entry-level driver as a driver with less
than two years experience operating a CMV with a CDL. One commenter
agrees with this definition. However, several commenters suggest that
the definition should be a driver with one year or less of such
experience. ATA and several other commenters stated that by using this
definition, the need for a grandfathering clause for drivers with
between one and two years of driving experience would be eliminated.
This would save employers and drivers time and money without
sacrificing safety. In addition, employers would no longer have the
burden of ensuring that an individual claiming eligibility for the
grandfathering provisions is actually eligible, and Certificates of
Grandfathering would not be necessary.
Several commenters recommend a definition based on miles or hours
that a commercial vehicle has been driven. The proposed definition does
not allow for quantifying operating hours or miles. Several commenters
stated that safety comes through practical application of knowledge
learned and improves with experience. If experience is quantified with
actual miles or hours of operation in a vehicle, then a driver is more
likely to develop and refine safe operating practices. Conversely,
without a quantifying measure, one could not determine how much
operating experience a CDL holder would have who occasionally operated
a CMV within the two year time period. Under this quantifying measure,
the grandfathering clause may not be necessary.
TCA believes that ``carriers should only have to train drivers
newly entering the industry. A review of the preamble to the rule
demonstrates clearly that FMCSA's proposal to require training for all
drivers in the industry for less than one year was based on the
arbitrary comments it received in response to the ANPRM and public
meeting and not based on any scientific study. In TCA's opinion, there
is no scientific justification.'' The IBT, however, recommends that all
drivers with less than two years of driving experience be subject to
the mandatory training requirements and that drivers with less than
five years experience be required to receive written information on the
subject matter covered in training.
Several comments were received regarding the grandfathering
provision proposed at Sec. 380.505 in the NPRM. For example, CSS
recommends that an individual must certify and provide evidence in
order to be grandfathered. CVSA believes that a few items should be
changed in the grandfathering clause requirements. The recommendations
include: (1) Altering Sec. 380.505(b)(3), which as proposed read, ``No
suspension, revocation, or cancellation of his/her CDL,'' to include
the term disqualification; (2) including a definition of the term ``at
fault''; (3) changing Sec. 380.505(c)(1) from ``Is regularly employed
in a job'' to ``Is employed in a job'; and (4) giving the employer the
choice of either grandfathering a driver, if he or she meets the
requirements, or requiring the driver to attend an entry-level training
course. CVSA also remarks that a grandfathered driver is required to
prove that he or she meets the grandfathering requirements before an
employer can allow him or her to operate a CMV, while the entry-level
driver is allowed to operate a CMV for 90 days before receiving the
required training. CVSA believes the standard should be uniform and
consistent. AMSA recommends allowing eligible drivers to waive the
training requirements through the grandfather provision for 14 or 16
months following the effective date of the rule to allow for an
adequate time to communicate the grandfather provisions to potential
drivers and to give carriers the time necessary to establish internal
certification and reporting systems.
FMCSA Response: FMCSA believes that operating experience helps CMV
drivers reduce crashes caused by driver error. In today's final rule,
the agency adopts the ATA's comment to change the definition of entry-
level driver to a driver with less than one-year experience operating
CMVs. The agency believes safety will continue to be served by allowing
only one year of experience rather than two years of experience. FMCSA
will also have a much simpler rule for employers to follow. FMCSA has
no reason to believe based on comments and other available data that
defining an entry-level driver as one year or less will have a negative
impact on safety.
The agency also agrees with the ATA that a grandfather provision is
unnecessary, in view of the decision to change the definition of entry-
level driver to a driver with less than one-year experience. The change
in the definition of entry-level driver will reduce the burden on
employers to train currently employed drivers.
The agency believes an employer can more readily determine if a
driver is an entry-level driver from the one-year experience criteria
than by counting hours or miles driven, as suggested by the Future
Truckers of America, CVTA, NEI, and Tri-State. The employer may not
have access to accurate information on hours or miles driven by the
driver.
The NPRM contained the requirement that the driver ``is regularly
employed in a job'' to ensure that drivers have adequate experience in
order to qualify for grandfathering. Upon further reflection of the
comments by CVSA and AMSA, FMCSA has decided to eliminate the
grandfathering provision from the final rule. However, the agency still
must specify who is a currently employed entry-level driver for today's
final rule.
Therefore, drivers that began driving CMVs between 10 months before
today's final rule and the effective date will be considered currently
employed entry-level drivers subject to today's final rule and must
obtain the training required by this rule no later than 90 days after
the effective date of the rule. These drivers are permitted to operate
a CMV during the 90-day period pending the completion of training. A
student entry-
[[Page 29391]]
level driver, an individual who will begin operating a CMV in
interstate commerce after the effective date of this final rule July
21, 2004, must receive the minimum training required by this action
before driving a CMV. Thus, all student drivers will be subject to this
rule after its effective date.
After the effective date, a driver or potential driver having less
than one year experience operating a CMV for which 49 CFR part 383
requires a CDL must receive the training required by this subpart
before operating a CMV defined in Sec. 383.5 in interstate commerce.
Entry-Level Driver Training Topics--General
The training topics covered in the proposal were driver
qualification, hours of service, driver wellness, and whistleblower. In
general, CVSA believes that the listed training requirements may have
merit on their own. However, it does not believe the topics address all
of the training areas necessary for an entry-level driver. CVSA
suggests that a training program for entry-level drivers should include
a minimum required number of hours of training in parts 383, 391, 392,
393, 395, and 396. CVSA also suggests that the training program include
skill training. CVSA realizes ``that some of these areas may be covered
while preparing for the CDL tests, but if the objective is to improve
the safety of our highways, reinforcing the safety regulations will
only do more to help us achieve our goal.''
FMCSA Response: CDL tests cover driving skills and the driver-
applicable parts of 49 CFR parts 392, 393, and 396 of the FMCSRs. Part
392 is entitled ``Driving of Commercial Motor Vehicles.'' Part 393 is
entitled ``Parts and Accessories Necessary for Safe Operation'' and
part 396 is entitled ``Inspection, Repair, and Maintenance.'' The
Interstate Commerce Commission, another predecessor agency of the
FMCSA, based each of these three parts on ``State motor vehicle laws
and regulations * * *'' See the NPRM for these parts of July 8, 1936 (1
FR 738). Also, 49 CFR 383.111(a) requires each of these parts be
covered in the CDL knowledge test.
The agency does not believe mandating hours for training will
achieve the desired goal of the agency, performance-based regulations.
An employer or training provider able to train a potential driver in
less time than mandated may believe it must fill in extra material that
will be burdensome to the driver and employer, but may not raise the
driver's safety to any measurable extent. The FMCSA has included
training in Parts 391 and 395 of the FMCSRs, because training in these
areas will be most beneficial to entry-level drivers who will operate
in interstate commerce.
The agency believes today's final rule and the other FMCSA safety
program initiatives discussed elsewhere will improve overall entry-
level driver safety. These include the agency's graduated licensing
rulemaking, the MCSAP program, its crash causation study (which may
assist in determining the need for future driver training topics), its
new motor carrier entrant program, and its active CDL fraud program.
In addition, FMCSA notes that there are other Federal requirements
that address security-related training, which will benefit entry-level
and other CMV drivers. These include: (1) The Research and Special
Program Administration's security awareness and in-depth security
training requirements at 49 CFR 172.704; (2) the hazard communication
program training required by the Occupational Safety and Health
Administration of the Department of Labor (29 CFR 1910.120 or
1910.1200) and the Environmental Protection Agency (40 CFR 311.1); and
(3) LCV training requirements in 49 CFR 380.201 through 380.205
published on March 30, 2004 (69 FR 16722). Although entry-level
personnel are not eligible to drive LCVs, motor carriers that operate
these vehicles may well extend security training to the rest of their
driver population.
These programs and requirements will result in improved entry-level
driver highway safety in the CMV industry and will help to improve the
safety of those seeking to drive CMVs in the future.
Driver Qualification
The IBT supports the inclusion of driver qualifications as a new
training topic. The IBT explains that on the issue of driver
qualifications, many drivers are unfamiliar with or misunderstand the
medical qualifications required by the FMCSA. This problem is
exacerbated by the fact that these qualifications may change
periodically. For example, changes have recently been made regarding
cardiovascular and diabetes requirements, and the conditions of drivers
themselves will change over time. In this respect, the IBT thinks
entry-level drivers would benefit from an explanation of the
requirements and the importance of being aware of current requirements.
In fact, the IBT suggests that drivers would also benefit from
continuing training and updates in this area.
FMCSA Response: The FMCSA agrees with the IBT that many drivers are
unfamiliar with or misunderstand the required medical qualifications.
The agency published a final rule on October 5, 2000, in the Federal
Register (65 FR 59363) which updated on one form the instructions for
performing and recording physical examinations, the medical examination
report, the instructions to the medical examiner, the advisory
criteria, and the medical examiner's certificate. The consolidated form
contains information on cardiovascular conditions and diabetes which
should be included as part of a training presentation on driver
qualification requirements. Drivers will be better informed on medical
qualification requirements through a combination of the revised medical
form and the training requirements in today's final rule.
The types of subjects employers should cover include the following
medical topics: Loss of a limb; impairment of a limb; diabetes mellitus
standard for drivers currently requiring insulin for control;
cardiovascular disease standards for conditions known to be accompanied
by syncope, dyspnea, collapse, or congestive cardiac failure;
respiratory dysfunction standards; procedures for the clinical
diagnosis and treatment of high blood pressure; standards for
rheumatic, orthopedic, muscular, neuromuscular, or vascular disease;
epilepsy standards including conditions likely to cause loss of
consciousness; psychiatric disorders including mental conditions which
affect the driver's operation of the CMV, vision standards, hearing
standards, and diagnosis of alcoholism as a disease; alternative
physical qualification standards for the loss or impairment of limbs;
and vision and diabetes exemption program requirements.
The following drivers must be medically examined: new drivers,
drivers with expired medical cards, and drivers whose ability to
perform their normal duties has been impaired by a physical or mental
injury or disease.
Additional types of subjects employers should cover in driver
qualification should include the following: A discussion of driver
qualification standards under Sec. 391.11, driver responsibilities
under Sec. 391.13, and disqualifications based on various offenses,
orders, and loss of driving privileges under Sec. 391.15.
Hours of Service
The IBT strongly supports training in hours-of-service regulation.
Given the
[[Page 29392]]
recent changes to the regulation, IBT agrees that drivers would benefit
from instruction on the requirements set forth in the regulation. ABA
recognizes that hours of service of drivers is certainly an important
element of training for entry-level drivers, but it believes that
fatigue management is an element of basic hours-of-service training and
should not be treated as a separate item or section for training
purposes. The NGWA believes training may already exist for hours-of-
service compliance. They want to know whether FMCSA will be adopting
different rules and application in this area, and if so, what would it
be.
FMCSA Response: The FMCSA has shown that crashes occur as a result
of CMV driver error caused by inattention. Inattention can be the
result of driver fatigue. Hours-of-service training should teach
fatigue prevention strategies and the causes of fatigue. Hours-of-
service training will help the driver learn how to maintain good sleep
hygiene. Training should include the new hours-of-service regulations
for truck drivers. Motor carriers began complying with the new rule
earlier this year.
The FMCSA agrees with the ABA that fatigue management should be a
part of hours-of-service training. Today's rule lists fatigue
management as one example of what should be included in hours-of-
service training. The others would include: the hours a driver is
allowed to drive and work each shift; the mandatory off-duty times
between shift periods; record of duty status preparation and filing;
and exceptions to the rules.
The FMCSA is unaware of the specific HOS training that the NGWA
references in its comment. The NGWA, however, may use any training it
believes complies with the intent of this final rule to teach
interstate CMV drivers how to comply with the requirements of 49 CFR
part 395.
Driver Wellness
Driver wellness is another entry-level training topic. Most
commenters are strongly opposed to the addition of this topic.
Specifically, commenters question how this topic falls under the
auspices of DOT and FMCSA. Commenters argue that this topic oversteps
the agency's bounds with respect to individual driver privacy. For
example, CRMCA/CRPA states, ``while driver qualifications, hours of
service, and whistle blower protection are valid areas of training,
driver wellness, including personal behavior of diet and exercise,
although important, is not within the purview of the FMCSA.'' NGWA
asks, ``On what legal grounds do you [FMCSA] justify the invasion of
individual privacy to regulate employees' non-working time?'' ABA
criticizes the addition of this training, claiming that part 382
already mandates drug/alcohol training. Requiring further training in
this area is repetitive and costly with no additional benefit. Training
regarding the monitoring of specific medical conditions is best left to
medical professionals.
The IBT supports the new training and comments that driver wellness
is a very important issue to the IBT and its members. The IBT believes
that driver welfare can be improved with training and instruction on
the health threats faced by long-haul drivers, such as heart disease
and diabetes, as well as the connection between those medical
conditions and the potential for disqualification. The IBT explains
that if drivers more fully understand both the health risks and the
risk of job loss, many preventable diseases could potentially be
avoided.
FMCSA Response: The agency's authority to require entry-level
driver training on driver wellness can be found in 49 U.S.C. 31131,
31133, and 31136, in addition to ISTEA Sec. 4007(a). Sec. 31131(b)(3)
states that Congress finds ``enhanced protection of the health of CMV
operators is in the public interest'' and Sec. 31133(a) provides in
relevant parts that the agency may:
(8) Prescribe recordkeeping and reporting requirements;
(9) Conduct or make contracts for studies, development, testing,
evaluation, and training; and
(10) Perform other acts the Secretary considers appropriate.
Sec. 31136 specifically requires that the FMCSRs ensure that
driving conditions do not impair the driver's physical condition.
The agency agrees with the IBT that driver welfare could be
improved with training and instruction in many areas, including heart
disease and diabetes. The purpose of driver wellness training is to
provide medical information to the driver so that the driver can make
informed life style choices. The agency is not attempting to regulate a
driver's off-duty activities. FMCSA respects the fact that the driver
may have his or her personal idea on the meaning of maintaining a
healthy lifestyle. Moreover, this training does not require drivers to
self disclose personal medical information to anyone. Nonetheless,
FMCSA recognizes drivers who operate CMVs cross country may be away
from their primary care providers a substantial part of the year and
can benefit substantially from a heightened understanding of driver
wellness issues.
Driver wellness topics could include stress, sleep apnea, how to
maintain healthy blood cholesterol, blood pressure, and weight, as well
as the importance of periodic health monitoring and testing, diet, and
exercise. Many of these items could also be combined with the driver
qualification training requirements that require a doctor to inquire
about and test for numerous physical conditions. Driver wellness,
however, should inform the driver what should be considered on a daily
and monthly basis to maintain a healthy lifestyle. For example, in
discussing topics about blood pressure, diet, and exercise, an employer
may want to address the benefits of a healthy lifestyle, but also
mention that the medical qualification requirements are written in
terms of minimum standards for safe driving, including guidelines for
blood pressure and diabetes mellitus.
The current requirement in Sec. 382.601 to provide a policy on the
misuse of alcohol and use of controlled substances does duplicate the
proposed requirement in 380.503(a) to provide training in Part 382 drug
and alcohol testing. Because training in drug and alcohol testing is
already required in Sec. 382.601, the FMCSA has removed that
requirement from the required wellness training in today's final rule.
Whistleblower Protection
The last proposed entry-level training topic was whistleblower
protection. Several commenters remark that there are other methods for
drivers to learn about whistleblower protection besides instituting new
training. For example, TCIA comments that training on this subject
already exists in one form or another. Because the protection already
exists by statute, TCIA also believes it is redundant to require that
documentation of this training be placed in the driver qualification
file. Brown-Line, Inc. comments that a statement read and signed during
orientation would accomplish the same goal as training. ABA suggests
that the whistleblower provision does not appear to fit into this
rulemaking action.
The IBT, however, agrees that drivers should be made aware that
whistleblower protections exist, and also be made aware of the exact
nature and extent of the protections offered.
The NGWA believes training may already exist for OSHA (Occupational
Safety and Health Administration) compliance with whistleblower
protection. It wants to know whether FMCSA will be adopting different
rules and application in this area, and if so, what would it be.
[[Page 29393]]
FMCSA Response: The agency agrees with the IBT that drivers should
be aware that whistleblower protection exists, and also be made aware
of the exact nature and extent of the protections offered. Training
informs the driver and other employees of the right to question the
safety practices of an employer without the employee's risk of losing a
job or being subject to reprisals. The requirement allows an employer
to use existing training if it meets the requirements of Sec. 380.503.
The agency believes that a statement read and signed by the employee
may not give the employee the complete understanding that can come from
training. Acceptable alternatives include training provided by a school
and exposure of the entry-level driver to a professionally-prepared
audio or video covering the required topics.
The FMCSA is unaware of any specific OSHA training that the NGWA
refers to in its comment, other than the OSHA ``Truck and Bus Poster''
number 3113, available from OSHA. The NGWA, however, may use any
training it believes complies with the intent of this final rule to
teach interstate CMV drivers how to meet the whistleblower requirements
of 49 U.S.C. 31105 and the Department of Labor's rules in 29 CFR part
1978 about how to send in a complaint blowing the whistle on a
violator.
Answers to Questions About Other Training Areas
In the NPRM, FMCSA requested comments about entry-level training in
other areas such as operation of fire extinguishers. ATA responds that
motor carriers typically cover topics like fire extinguisher training
in their general safety programs. Requiring such training is not
necessary. However, NGWA supports fire extinguisher training.
FMCSA Response: FMCSA agrees with the ATA that many employers
already cover fire extinguisher training in their general safety
programs. Therefore, FMCSA has not mandated fire extinguisher training
in this final rule.
Responsibility To Conduct Training
NGWA asks, ``Precisely what entity will be considered appropriate
to conduct the training?'' This commenter asks whether the employer is
required to fund the training done by an outside entity, or instead may
conduct the training. It also asks whether training offered by other
motor carrier outlets would be sufficient to fulfill the requirement.
TCIA considers it extremely important that their member companies
have the ability to administer and implement the training. TCIA states
that without this ability, this entire proposed mandate will become
extremely cumbersome, and difficult to comply with. Therefore, TCIA
requests that the authority to conduct the mandated training be
retained by the employer.
FMCSA Response: This final rule allows the employer considerable
latitude in determining what entity can provide the required training.
Examples include the employer, a training school, or a class conducted
by a consortium or association of employers. The question of who pays
for the required training is an employer/employee issue. FMCSA has no
ability to pay for training because the Congress did not appropriate
funds for that purpose.
FMCSA believes most employers will bear the training costs for
currently employed entry-level drivers. Most entry-level drivers,
however, will probably bear most of the training costs after October
18, 2004, because the FMCSA believes most employers will not hire a
driver unless the entry-level driver has had the training by a third
party training provider's school.
Employer Recordkeeping Responsibilities--General
Under the rule, several provisions establish new recordkeeping
responsibilities for employers. For example, employers must maintain a
proof of training certificate. CVSA asks:
What safeguards are available to prevent the falsification of
the training certifications? How long are the third party training
providers required to maintain records on their students? What is
the reason for requiring third party trainers to provide the
original and a copy to the driver? Why can the driver not be
responsible for making their own copies?
FMCSA Response: The FMCSA has made specific changes to clarify
today's final rule. The first change ensures that FMCSA places
requirements only on employers and drivers. Another change is the
training certificate now contains the name, address, and telephone
number of the training provider. The final rule has removed the
proposal for copies to be made by a specific entity or person. Civil
penalties are available for violations of 49 CFR 390.35(b) and (c). The
employer may contact the training provider if he or she has a question
about the authenticity of the training certificate provided by the
driver. FMCSA considers the civil penalties and the ability of the
employer to contact the training provider to be sufficient safeguards
against falsification.
Third party training providers are not subject to the jurisdiction
of the agency. Therefore, the training providers may implement their
own recordkeeping requirements. The FMCSA has changed the final rule to
require employers to ensure that drivers obtain a training certificate
if the driver meets the requirements to obtain an original certificate
by a training provider.
Training Documents Should Follow Driver
Daecher and ABA both comment that training and the training
certificate should follow the driver. If a driver completes training
that meets the minimum requirements specified by the agency, he or she
should not be required to be retrained by a subsequent employer. ABA
explains that proper documentation of previous training should be
provided to the new employer and should be maintained in the driver's
qualification file. A employer may choose to retrain the driver at its
discretion.
FMCSA Response: Today's final rule allows a subsequent employer to
accept a copy of a training certificate from a previous employer or
other training provider. The certificate or diploma must then be
maintained in the driver's personnel or qualification file. The rule
does not require the employer to retrain a driver who has received the
training required by Sec. 380.503 and who has a training certificate
meeting the requirements of Sec. 380.515.
Paperwork Burden/Recordkeeping
Four commenters address the paperwork and recordkeeping
requirements in the proposed rule. NRMCA agrees that the four training
subjects are valuable topics for entry-level drivers, but believes that
``requiring employers to record and file documentation of training on
these subjects would only create more costs, paperwork and
administrative burdens to employers in our industry.'' Similarly, a
commenter involved in school bus transportation states that time spent
on recordkeeping interferes with a company's ability to perform its
duties.
NRMCA, PMAA, and CRMCA/CRPA object to the proposed requirement that
training records be kept for three years after the driver's employment
has ended. These commenters cite the high turnover rate in their
industry and state that this requirement would create a burdensome
amount of paperwork.
FMCSA Response: FMCSA is requiring the employer to record and file
documentation of training on these subjects so that the employer may
[[Page 29394]]
demonstrate that the employer's entry-level drivers received the
required training. The employers subject to this rule already must have
driver qualification or personnel files to store the documents required
by Sec. Sec. 382.401, 383.31, 383.33, 383.35, and 391.51. Record
retention is not new to employers subject to the FMCSRs. For example,
the records required by Sec. 382.401 are required to ``be maintained
by the employer while the individual performs the functions which
require the training and for two years after ceasing to perform those
functions.'' See Sec. 382.401(b)(4). In addition, the records required
by Sec. 391.51 are required to ``be retained for as long as a driver
is employed by that motor carrier and for three years thereafter.'' See
Sec. 391.51(c). However, FMCSA has considered the comments of NRMCA,
PMAA, and CRMCA/CRPA and its need to review records during a compliance
review at an employer's principal place of business. The FMCSA believes
it will only need the employers to maintain training certificate
records for, at most, one year after the driver leaves the employer's
operation.
Thus, FMCSA believes it is reasonable to change the record
retention period to as long as the employer employs the driver and for
one year thereafter. This will allow FMCSA to adequately enforce the
requirement.
Training Certificates
CVSA suggests two changes to make the training certificate a more
effective document. First, the proposed requirements should be stated
as ``requirements in accordance with Sec. 380.503.'' Second, CVSA
suggests adding the driver's license number, the e-mail address of the
training provider, and the date of issuance to the training
certificate.
FMCSA Response: Section 380.515 now requires the training
certificate to contain a statement that the driver has completed the
training in accordance with Sec. 380.503. The agency agrees that the
date of issuance of the training certificate is important information
to include on the training certificate and has added this requirement
to the final rule. The agency disagrees that the driver license number
should be added to the training certificate because the number may
change if the driver transfers his or her CDL to another State.
Likewise, the agency believes a training provider's email address is
not necessary on the training certificate because it already contains
the name, address, and telephone number of the training provider. The
employer should have sufficient information to contact the training
provider if he or she has a question about the authenticity of the
training certificate. FMCSA believes it should prescribe only the
minimum necessary to allow the employer to check the entry-level driver
has received the training. The agency believes training providers will
put this information on the form as a good business practice.
Effective Date and Compliance Date
In the NPRM, FMCSA proposed to make the final rule effective 60
days after the date of publication in the Federal Register and that
employees who do not qualify for grandfathering must receive the
required training within 90 days of the effective date. The CVSA, NGWA,
NSTA, and McLane believe that two months will be an insufficient period
of time to develop a compliant training curriculum, particularly if no
new Model Curriculum is issued by FMCSA on or before the effective date
of the rule. NSTA believes it will take six months to a year from the
time the final rule is published for it to develop high-quality
training materials and educate instructors to deliver new training for
school bus drivers.
NSTA, NGWA, McLane, and TCA state that requiring drivers who are
not grandfathered to receive the training within 90 days would strain
the resources of many employers, depending on the time of year and the
size and scope of the carrier's operations. These commenters request at
least six months within which to comply with the training requirement.
TCIA requests that the grace period be no less than 90 days,
stating that ``the ninety day window to conduct, document, and record
the additional training laid out in this proposal is an absolute
necessity.''
Daecher believes that a 90-day period is adequate for providing the
required training.
FMCSA Response: The agency disagrees with TCIA, CVSA, NGWA, NSTA,
and McLane that employers need more time to develop training materials.
The agency believes training materials and courses on the four areas
are commercially available today. Motorcoach and private contractor
school bus drivers are subject to the same driver qualification file
requirements as truck drivers, and the hours-of-service regulations for
motorcoach and school bus drivers did not change earlier this year, as
they did for truck drivers. Thus, the training commercial sources have
developed for HOS and driver qualification are already available for
the motorcoach industry and will not need to be further developed.
The agency also agrees with Daecher that a 90-day period for
providing the training is adequate because only those CMV drivers that
began operating in interstate commerce within the past 10 months are
subject to training within this 90-day grace period. An entry-level
driver that began driving CMVs in interstate commerce 10 months before
today's final rule will have one-year's experience on the effective
date of this rule, thereby subjecting the entry-level driver to this
rule's training requirement. Such a driver must be trained within the
90-day grace period. Other entry-level drivers that began driving CMVs
in interstate commerce less than 10 months before today's final rule up
to the effective date will also have to have the training within the
90-day grace period. A ``student entry-level driver'' who will begin
operating a CMV in interstate commerce after the effective date of this
final rule July 21, 2004, must receive the minimum training required by
this action before driving a CMV. Thus, all student drivers will be
subject to this rule after its effective date.
Enforcement
Three commenters ask how FMCSA plans to enforce the new
requirements. NSWMA is concerned about the employer's responsibility
for maintaining evidence of the training content if its drivers obtain
the required training at a driver training school. The commenter asks
whether the carrier must keep a copy of the training manual from each
training school.
CVSA comments that a roadside enforcement officer would not have
access to any document that indicates the driver is an entry-level
driver. That information would only be available through a compliance
review or safety audit.
FMCSA Response: FMCSA is not requiring the employer to keep a copy
of the training manual from each training school. Agency field staff
will verify driver entry-level training by reviewing the training
certificate in the employer's possession during safety compliance
reviews and new entrant safety audits of motor carrier records. In
addition, today's final rule requirements will be added to the checks
the agency's staff already does for compliance with hazardous material
training requirements required by the Research and Special Programs
Administration (RSPA) under 49 CFR part 172, subpart H (Sec. Sec.
172.700 through 172.704) that are similar in form to what today's final
rule requires. RSPA requires employers to
[[Page 29395]]
check the content with the training provider and documentation that
each person has received the training.
Economic Analysis
All of the nine commenters that addressed the economic analysis
raise concerns about the estimated costs and benefits in the NPRM and
about the methodology used in estimating those costs and benefits.
Brown Line, Inc. says that mandated training of all new entrants
would create an unnecessary burden on motor carriers. TDI/CDI believes
that extending its training program hours ``would cause severe economic
stress to trainees who are training usually away from home, as well as
taking care of family.'' NSWMA, C. R. England, Inc., TCIA, UMA, NGWA,
and CVSA, all raise questions about the methodology used by FMCSA in
estimating the costs and benefits of the proposed rule. NSWMA says that
FMCSA appears to have come up with numbers to meet a predetermined
outcome instead of using data based on facts and science. ATA questions
how FMCSA plans to evaluate the true impact of the regulation given its
estimate that 285 crashes would have to be avoided each year for the
rule to be beneficial. C. R. England raises numerous questions and
concerns related to the economic evaluation. It questions what crash
statistics were evaluated, the sample size, number of programs
analyzed, how they were selected, and how the crashes were correlated
with the training received. C. R. England states that its average cost
per crash is at least 30 percent less than FMCSA's assumed cost.
C. R. England also questions the study cited to support the return
on investment (ROI). England stated that the study cited to support the
ROI (Schneider National, Inc.), indicated that driver training reduced
accidents by 40 percent and used training specific to hazardous driving
conditions. It believes this is not the type of training FMCSA proposed
and therefore the study should not be used to support the ROI for the
proposal. It also states that the ROI is based on the assumption that
implementing this rule would deter between 285 and 315 truck-related
crashes each year, but that it was never established that the type of
training being required has any direct effect on these specific types
of accidents. It states that auditing costs were not included in the
ROI calculation.
C. R. England further states that if it was able to eliminate all
avoidable crashes in a year it would only recover 8 to 13 percent of
the cost of implementing the proposed training and that the funds
expended could be used more effectively in other ways to prevent
crashes.
UMA points out that because no motorcoach driver schools exist, and
because only the largest motorcoach companies have in-house driver
training programs, costs to its smaller members would be high. UMA
states that there was a disconnect in the data used to justify
inclusion of the motorcoach industry because that data included transit
crashes and it is FMCSA's intent to exempt transit buses from the
proposed rules.
TCIA says that because its member drivers are trained arborists
their estimated hourly rate is much higher (in the $20 to 25 range)
than the rates used by FMCSA, and further that TCIA members were not
even considered in the NPRM's cost estimates.
CVSA says that FMCSA's hourly estimates are woefully inadequate
because most training programs range from two to nine weeks depending
on the category of training.
FMCSA Response: FMCSA believes that clarifying language added to
this final rule will alleviate some of the specific concerns and
questions raised by Brown Line, Inc., on mandating training for all new
entrants that would create an unnecessary burden to carriers.
Additionally, FMCSA revised its economic evaluation in developing the
final rule (changes are documented in the section entitled, ``Summary
of Costs and Benefits'' elsewhere in this document), and these changes,
which affected the total costs and threshold analysis of the rule,
should alleviate some concerns. Brown Line, Inc. did not offer specific
examples or data on what it deems to be an unnecessary burden and as a
result, FMCSA was unable to review its evaluation or consider specific
changes in response. Likewise, the agency was unable to review its
evaluation or consider specific changes in response to TDI/CDI comments
on extended training program hours causing severe economic stress to
trainees who are training away from home. TDI/CDI provided no
supporting data or specific examples.
In response to CVSA's comment that FMCSA's hourly estimates are
woefully inadequate because most training programs range from two to
nine weeks, as well as TDI/CDI comments, FMCSA has stated that it is
not mandating a specific number of training hours as part of the final
rule. The 10 hours of additional training anticipated for entry-level
truck, motorcoach, and school bus drivers, are estimates that were
derived for the purposes of estimating the economic impacts. They were
based on guidelines established by the PTDI for its instructors on the
amount of time it suggests should be dedicated to teach this content
and conversations with the FMCSA CDL program staff. It is conceivable
that the actual time required for an individual employer or its trainer
may vary according to individual operating circumstances.
The FMCSA stated in its evaluation that while ``the impact of truck
drivers'' training is presumed to be positive,'' it also noted that ``a
few studies have revealed ambiguous results'' with regard to the
relationship between driver training and safety. Many stakeholder
comments to the ANPRM stated or implied that the relationship is
positive, and a number of case studies have estimated a positive
relationship. However, given the ambiguity of past research results,
the FMCSA approached the benefits analysis in terms of the number of
crashes the proposed rule would have to deter to be cost beneficial (or
what is sometimes referred to as ``threshold analysis'').
Responding to C. R. England's statement ``that its average cost per
accident is at least 30 percent less than FMCSA's assumed cost,'' and
TCIA's assertion that ``because its members'' drivers are trained
arborists their estimated hourly rate is much higher (in the $20-25
range) than the rates used by FMCSA,'' the agency's preliminary
regulatory evaluation used average crash cost statistics and wage rates
taken from national-level studies and/or data sources. Specifically,
the agency obtained crash cost data from a study entitled, ``Costs of
Large Truck- and Bus-Involved Crashes,'' developed for FMCSA by Dr.
Eduard Zaloshnja, Dr. Ted Miller, and Rebecca Spicer, which
comprehensively estimated crash costs as a function of the medical,
emergency services, property damage, lost productivity and pain,
suffering, and quality of life-related costs associated with large
truck and bus crashes. The Zaloshnja, Miller, and Spicer study
estimated these costs for all large truck and bus crashes at a national
level. In its NPRM evaluation, FMCSA estimated the anticipated impacts
of its proposal to society, which includes the affected industry, state
and local governments, and the traveling public. Given this focus,
FMCSA usually initiates these types of evaluations at the national
level, and generally uses, when available, average wage, crash, and
crash cost statistics that represent the industry and society as a
whole. As such, FMCSA is not able to estimate the impacts of a rule to
very small subsets of the industry, such as a particular carrier or a
unique segment, and is
[[Page 29396]]
unlikely to use estimates provided by a single organization in its
calculations, unless the agency is unable to locate more nationally
representative data. FMCSA does not dispute that C. R. England's crash
costs may be 30 percent less than FMCSA's national level estimates or
that TCIA's average wage rates may be higher than the industry as a
whole.
Responding to UMA's statement that there was a disconnect in the
data used to justify inclusion of the motorcoach industry because that
data included transit crash data, again, FMCSA generally uses national-
level crash cost estimates to evaluate the impacts of its rules on
society. The crash cost estimates used in this evaluation are
aggregated averages, and are not useable if FMCSA tries to exclude one
particular subset of the larger industry. As such, the agency reports
the average crash costs for crashes involving large trucks.
Additionally, contrary to UMA's belief that the crash cost data were
used to justify the motorcoach industry's inclusion in the rule, the
crash cost data were simply used to estimate the level at which the
rule would become cost-beneficial if implemented (based on the average
cost of a large truck crash). FMCSA uses such an approach (sometimes
referred to as threshold analysis) because of the above-noted
uncertainty with trying to estimate specific, quantitative benefits of
a training-related rule. This approach helps the reader and policy
makers gain a broader understanding of how likely the rule is to be
cost beneficial, given the number of crashes motor carriers would have
to avoid. As noted above, the agency included the ``private sector''
portion of the motorcoach industry in its original training adequacy
study, as well as in the NPRM and in the final rule, because the agency
had interpreted that Congress intended to include only ``private sector
efforts.''
Regulatory Flexibility Act--Small Business Concerns
The NGWA strongly disagrees with agency statements that its NPRM
imposes a modest burden on small entities because it largely proscribes
the actions of drivers rather than motor carriers. NGWA states the
small business owner-operator is still the person doing the paperwork.
While that individual is doing paperwork, he or she cannot be working
safely at the drill site and creating revenue. Also, NGWA cites FMCSA's
statement that there are no current state or tribal regulations that
overlap with the proposal, asking ``How do you plan to ensure that if
various states and tribes adopt similar statutes, they will be uniform
with the federal regulations--avoiding the likelihood of
misinterpretation by enforcement officers?'
UMA states that FMCSA's assumption in its Regulatory Flexibility
analysis that only companies with six or fewer drivers are to be
considered small businesses is in error. According to UMA, the Small
Business Administration (SBA) considers motorcoach companies to be
small based on the North American Industry Classification System
(NAICS) coding. Under the NAICS codes (Subsector 485) a motorcoach
company is considered to be a small business if its annual revenues are
$6 million or less. For truck companies (Subsector 484) the threshold
is significantly higher at $21.5 million. The number of employees is
not used by the SBA in the determination for small business ``size.''
According to UMA, if the SBA definitions are incorporated into the NPRM
size determination, the universe of businesses affected becomes much
greater. UMA and the SBA have determined that as much as 95 percent of
the motorcoach industry meets the SBA definition of ``small business.''
FMCSA Response: In reference to NGWA comments about the inclusion
of employer paperwork costs, the FMCSA did estimate the ``opportunity
cost'' of this rule to the driver (whether owner-operator or not). This
is the cost of the driver/owner-operator participating in training, and
thereby unable to use this time to generate revenue for the company.
Traditional estimating techniques for opportunity cost base these on an
hourly cost equal to the driver's wage rate. In the NPRM analysis, the
agency used a national-level average wage rate for truck and bus
drivers, including fringe benefits. The wage data make no distinction
between those drivers who are owner-operators and those drivers working
for an employer.
In response to the UMA comment, ``FMCSA's assumption in its
Regulatory Flexibility analysis that only companies with 6 drivers or
less are to be considered small businesses is in error,'' FMCSA has
revised its regulatory flexibility analysis to evaluate the impact on
companies by SBA's definition using annual revenue class. FMCSA
presents the results elsewhere in today's final rule under the heading
``Regulatory Flexibility Act.''
The agency's authority to promulgate entry-level driver training
requirements can be found in 49 U.S.C. 31131, 31133, and 31136, and
Sec. 4007(a)(2) of ISTEA. States do not have the authority to preempt
Federal safety regulation of employers engaged in interstate commerce.
The agency recognizes the right of Indian tribes to promulgate training
requirements for entry-level drivers of their tribe while these drivers
are operating on Indian territory. However, these tribal entry-level
drivers are subject to FMCSA jurisdiction if they operate in interstate
commerce.
Miscellaneous
CVSA suggests that the proposed rules should be located in part
383, which contains other CDL driver related regulations. Locating
these rules in a new part 380 will create confusion for both
enforcement officials and industry, according to CVSA. CVSA also
suggests correcting a typographical error in Sec. 380.509 by changing
``the employer or potential employee'' to ``the employer or potential
employer.''
FMCSA Response: FMCSA is correcting the typographical error. FMCSA,
however, does not agree with the CVSA's comment about co-locating the
training requirements in 49 CFR part 383. The training requirements are
similar to the training requirements for drivers of longer combination
vehicles that are located in 49 CFR part 380, and the agency believes
this part should include all general driver training requirements.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this action is a significant
regulatory action within the meaning of E.O. 12866, and is significant
within the meaning of the Department of Transportation's regulatory
policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR
11034, February 26, 1979) because of significant public interest in the
issues relating to CMV safety and training of certain CMV drivers. The
final rule has been reviewed by the Office of Management and Budget
under E.O. 12866.
The agency is adding Sec. 380.500 to specify when employers and
drivers must comply with this final rule. The effective date cited in
the DATES heading at the top of this document is the date that the
final rule amendments affect the current Code of Federal Regulations
published by the Government Printing Office. Employers and drivers may
begin to comply with this final rule on or before the effective date
for this final rule.
FMCSA is making the effective date 60 days after the date of
publication in the Federal Register. Drivers who first
[[Page 29397]]
began operating a CMV in interstate commerce requiring a CDL between 10
months before today's final rule and five months after today's final
rule must receive the training required no later than the end of the
five-month period. The agency will be using the Federal Register's date
calculation method and the date may be slightly longer depending upon
whether a weekend or Federal holiday occurs at the end of the 90-day
period.
After the five-month period, a driver or potential driver having
less than one year experience operating a CMV for which 49 CFR part 383
requires a CDL, must receive the training required by this subpart
before operating a CMV defined in Sec. 383.5 in interstate commerce.
Section 380.500 is only necessary for a limited period until all
affected employers learn about the new rule, begin complying with it,
and the 90-day grace period have passed. Therefore, the FMCSA has added
language to the DATES section that will only make this section
effective in the Code of Federal Regulations temporarily from the
effective date through June 30, 2005. After June 30, 2005, the
Government Printing Office will remove this section from the Code of
Federal Regulations. Thus, the October 1, 2005, edition and all
subsequent editions of the Code of Federal Regulations will not contain
Sec. 380.500.
Summary of Costs and Benefits
Background
This final rule is required by the Intermodal Surface
Transportation Efficiency Act of 1991. The FMCSA proposed that entry-
level commercial drivers receive mandatory training in the following
content areas: driver qualifications, hours of service of drivers,
driver wellness, and whistle blower rights. This final rule will
require an applicant to complete entry-level driver training that
includes these four content areas and furnish a copy of the training
certificate to the employer in cases where someone other than the
employer provides the training. An employer could not allow an entry-
level driver to operate a CMV on the public road in interstate commerce
unless the driver has received the required training and the employer
receives the documentation of training. The one exception would be
within the first three months of the rule, when existing drivers with
12 months of driving experience within the industry would be allowed 90
days from the effective date to acquire the mandated training.
The FMCSA has conducted a regulatory evaluation of this final rule
in accordance with Executive Order 12866, ``Regulatory Planning and
Review.'' The FMCSA estimates today's final rule to cost $26 million in
the first year of implementation and $14 million annually thereafter
(undiscounted). The higher costs in the first year are the result of
this rule's impact on some existing drivers (i.e., those with less than
12 months of experience), who must undertake the required training
within the first 90 days of the rule's implementation. Total discounted
costs of this rule are $121 million over 10 years. If the higher first-
year costs are spread out evenly over the 10-year analysis period to
achieve the same total discounted cost of $121 million, the average
annual cost of the final rule is $16 million (undiscounted). The FMCSA
derived this $16 million average annual undiscounted cost estimate so
that it could estimate the number of crashes that would have to be
avoided each year for the rule to be cost beneficial (i.e., threshold
analysis) and for use in the small business impact, or regulatory
flexibility, analysis.
At an average cost per truck-related crash of $79,873 (including
fatal, bodily injury, and property-damage-only crashes) in 2002
dollars, this final rule would have to prevent 201 truck-related
crashes in each year of the analysis period to be cost-beneficial. For
the 32,400 entry-level drivers that must receive training in any given
year, the agency estimates this represents a 5-percent reduction in the
anticipated crashes they would have had, if it assumes their crash risk
is roughly equal to that of the industry average. Because the crash
risk profile of entry-level drivers is likely to be significantly
higher than the overall driver population (due to their lack of driving
experience relative to all other drivers), it is reasonable to assume
that less than a 5-percent reduction in crashes by this driver group
would be required for this rule to be cost-beneficial. The 201 crashes
represent five one-hundredths of one percent (or 0.05 percent) of the
average total number of truck-related crashes reported annually
(estimated at 445,000 in 1999 and 2000).
Analytical Revisions Between NPRM and Final Rule Stages
FMCSA notes here that its estimates of the costs associated with
this rule have been revised since the issuance of the NPRM analysis.
Specifically, while its estimates of the first year costs are higher
($26 million for the final rule versus $25 million in the NPRM), the
total discounted costs associated with the rule are lower ($121 million
for the final rule versus $173 million in the NPRM). The increase in
first-year costs and decrease in total costs are due to several
revisions made to the analysis as FMCSA obtained, or was presented
with, additional or new information between the NPRM and final rule
stages.
Regarding first-year costs, FMCSA initially failed to include the
first-year costs associated with training existing drivers with less
than 12 months of driving experience. Offsetting these additional
costs, the agency removed the costs associated with training existing
drivers with 12 to 24 months of experience previously affected by the
``grandfather'' clause as defined in the NPRM. Because the final rule
eliminates this ``grandfather'' provision for drivers with 12 to 24
months of interstate commercial driving experience, FMCSA removed these
costs from the analysis.
Regarding total costs, the agency had initially included in the
analysis for the NPRM, the cost of training entry-level drivers
operating both in interstate and intrastate commerce. Because the final
rule specifies that only entry-level drivers operating in interstate
commerce must comply with today's final rule, the agency adjusted
downward its estimate of the number of entry-level drivers who must
receive training under this final rule. Additionally, the final rule
makes explicit that only non-governmental sector entities are subject
to these entry-level training requirements, which resulted in a
significant downward revision in the number of school bus drivers
affected, because the vast majority work for local governments and the
vast majority of school bus trips are intrastate in nature (i.e., home-
to-school and vice versa). This reduction in the number of affected
drivers reduced the overall costs of the final rule. Additionally, the
initial analysis included in the NPRM estimated the training that would
be required for entry-level truck and motorcoach drivers at 10.5 hours.
Because the final rule eliminated the instruction for alcohol and
controlled substances testing, FMCSA reduced its estimate of the
average number of training hours necessary to instruct entry-level
drivers in the four content areas by one-half hour from 10.5 hours to
10 hours. Finally, because the entry-level training rule would apply
only to school bus drivers employed by non-governmental entities
(mostly contractors to local educational agencies), FMCSA increased the
number of hours of training required for these drivers from 4.5 hours
to 10 hours.
FMCSA provides a summary of costs in the next section. For a
complete
[[Page 29398]]
discussion of the assumptions made, data used, and analysis performed
in this regulatory evaluation, please refer to the docket, where the
agency has placed a copy of the full regulatory evaluation.
Costs
The largest cost component of this rule is the cost to provide
training to entry-level operators of trucks, school buses, and
motorcoaches over 26,000 pounds GVWR. Training costs include both the
direct cost to train drivers and the (opportunity) cost of drivers'
time. The two key factors in estimating the training costs are the
number of drivers who will need training and the training hours they
will have to undertake.
The FMCSA estimates that employers or training entities will teach,
on average, 10 hours of coursework to entry-level drivers of trucks,
school buses, and motorcoaches in the four subject areas. FMCSA
estimates the two content areas of driver qualifications and hours of
service together would consume about 5.5 hours of training time (down
from the 6 hours estimated in the NPRM when alcohol and drug testing
training had been proposed). The driver wellness training would also
consume about 4 hours, while FMCSA estimates coursework on whistle
blower protection should consume about 30 minutes. FMCSA based the
training hours estimate for all drivers on information provided in the
instructor's guide for the Professional Truck Drivers Institute's
(PTDI) accredited training courses, the instructor's guide for the
Model Curriculum for motorcoach drivers, and discussions held with
FMCSA CDL program staff in the Office of Safety Programs.
Using data from the Bureau of Labor Statistics (BLS), the total
number of entry-level truck drivers entering the industry is estimated
at 58,600 per year for the next 10 years, while the entry-level drivers
required for growth and replacement for the school bus and motorcoach
industry are estimated at 17,800 and 2,100 per year, respectively, also
over the next 10 years. As is discussed below, only a certain
percentage of these drivers must comply with today's final rule.
The BLS data make no distinction between those drivers operating in
interstate commerce and those operating in intrastate commerce. Because
the final rule specifies that its requirements apply only to entry-
level drivers operating in interstate commerce, FMCSA adjusted the
above estimates accordingly. Data obtained from the Motor Carrier
Management Information System on the number of drivers operating in
interstate commerce for FMCSA-regulated entities reveals that 78
percent of drivers were operating in interstate commerce, while 22
percent were operating in intrastate commerce. This is surely an
overestimate of the number of drivers operating in interstate commerce
as a percent of total drivers, because the MCMIS database only contains
information on motor carriers required to register with FMCSA
(generally those operating large CMVs in interstate commerce).
Therefore, it does not adequately represent the population of motor
carriers (and thus drivers) operating solely in intrastate commerce.
Additionally, data from the 1997 Commodity Flow Survey indicate that 54
percent of shipments moved by for-hire truck (as measured in tons)
traveled less than 50 miles (FMCSA presumes most of these shipments
would be intrastate shipments). In the case of shipments moved by
private trucks (again, as measured in tons), the percentage that
traveled less than 50 miles was 79 percent. Given the above data, it is
reasonable to assume that the ratio of interstate carriers to the total
motor carrier population is closer to 50 percent, and that the
breakdown of interstate drivers relative to the total driver population
would also be closer to 50 percent. However, in cases where employers
provide the training for their entry-level drivers, the FMCSA believes
it is logical to assume that the motor carrier would plan to train a
greater proportion of its entry-level drivers than that necessary to
meet the short-term requirements of the regulation. Doing so provides
the carrier with greater flexibility in scheduling freight and
passenger movements, should the proportion of its interstate-based
shipments and charters suddenly increase. At the same time, FMCSA
believes that these carriers are highly unlikely to train 100 percent
of their entry-level drivers to operate in interstate commerce if only
half its revenue is generated by such business, because doing so would
result in a sunk cost with little potential ROI. As such, FMCSA assumed
in this analysis that on average carriers would train 75 percent of
their entry-level truck and motorcoach drivers, thereby allowing them
to operate in interstate commerce. Also, in using the 75-percent
assumption, FMCSA ensures that it will not underestimate the number of
entry-level truck and motorcoach drivers who will receive training as a
result of this rule. With regard to whether the employer actually
provides the training to entry-level drivers or the drivers themselves
fund the training makes little difference from the perspective of this
economic evaluation, because such costs represent transfers between one
industry party and another. The goal of this regulatory evaluation is
to estimate the impacts to society as a result of the rule's
implementation. The group of industry participants to whom the costs
apply is of lesser immediate concern (at least until the small business
impact, or regulatory flexibility, analysis is performed). With regard
to the training costs associated with this rule, it is likely that in
some cases the employer will provide the training for its existing
entry-level drivers and for those new drivers entering its workforce
each year, whereas in other cases, employers might expect that new
drivers who wish to work for them would have already acquired such
training. With regard to owner-operators, they alone would most likely
incur the full cost of training, given their dual roles as driver and
company owner.
In estimating the number of entry-level school bus drivers affected
by this rule, our March 24, 2004 (69 FR 13803) ANPRM withdrawal notice
addressing interstate school bus operations of local educational
agencies revealed that about one third of school bus drivers worked for
non-governmental entities (or those that would be subject to this
rule). However, not all of these drivers would be expected to receive
training that would allow them to operate school buses in interstate
commerce, because the number of non-home-to-school interstate trips by
local education agencies represent less than 1 percent of all school
district trips. And, as was the case with entry-level truck and
motorcoach drivers, FMCSA assumed that a non-governmental employer
would train one and one-half times more drivers than would be
immediately required by this final rule, because this provides the
employer with short-term flexibility in its operations, should the need
for interstate school bus trips increase suddenly.
Therefore, in examining the total number of entry-level drivers
potentially affected by this rule in any given year, FMCSA incorporates
the adjustments discussed above. For entry-level truck drivers, a
maximum of 43,950 (or 75 percent of 58,600) must comply, although a
further adjustment is discussed below. For entry-level motorcoach
drivers, the number is 1,575 (75 percent of 2,100). And for entry-level
school bus drivers, the number is 85 (or one percent of the 32 percent
of 17,800 entry-level drivers entering the industry each year,
multiplied by 1.5).
Regarding entry-level truck drivers, an additional issue must be
considered:
[[Page 29399]]
The number of entry-level truck drivers who graduate from training
courses that already teach the content addressed under this final rule.
In this analysis, FMCSA assumed that 30 percent of the applicable
entry-level heavy truck drivers (or 13,185 of 43,950 total) would not
need any additional training, as they are assumed to attend a PTDI or
similar accredited training program (i.e., PTDI accredited courses
already include these content areas in their curriculum). FMCSA bases
this assumption on information obtained regarding the number of
accredited programs as a percent of total driver training programs. For
the remaining 70 percent (or 30,765 entry-level truck drivers), FMCSA
assumed that the potential drivers either receive training from a non-
accredited training program or they receive informal training from the
employers. Therefore, this 70 percent of entry-level truck drivers
would require approximately 10 hours of training per driver on the four
subject areas mentioned above. The total hours of training provided
under the final rule for the entry-level heavy truck drivers is
estimated at 307,650 hours per year. For those drivers who already
receive some type of formal (yet non-accredited) employer-or third-
party training, it is quite possible that employers (or third-party
training providers) might reduce the amount of training time spent on
other, non-required subject matter, so that the net increase in
training per truck driver would be less than 10 hours. However, in the
absence of specific information on the types of subject matter that
training entities might omit from these training programs to offset the
new training costs, FMCSA assumed a net increase of 10 hours for
estimating the costs of this rule.
FMCSA assumes that the additional hours of training for an entry-
level motorcoach driver would be 10 hours. The instructor's guide to
the Model Curriculum for training motorcoach drivers includes 5 hours
of logbook training but only about an hour on safety and wellness
issues (including topics such as the correct lifting of heavy objects
and identifying prohibited cargo). The FMCSA does not have information
on the proportion of entry-level motorcoach drivers following training
under the Model Curriculum. Therefore, the FMCSA estimates that 1,575
entry-level drivers of motorcoaches would require 10 hours of training
on driver qualifications, hours of service for drivers, driver
wellness, and whistle blower protection for a total of 15,750 hours of
training per year.
Regarding entry-level school bus drivers working for non-
governmental entities, this rulemaking will result in 10 hours of
additional training for each entry-level driver. Therefore, for the 85
entry-level school bus drivers affected by this rule each year, FMCSA
estimates a total of 850 hours of training per year.
To be conservative, FMCSA used a figure of $25 per hour of training
in this analysis to calculate the direct costs of training (calculated
via an average cost of $4,000 per training course divided by 4 weeks
divided by 40 hours per week). This translates into $250 of direct
training costs for a 10-hour course. The agency believes that this is a
reasonable estimate of the total hourly cost to train drivers (whether
or not the training is provided by the employer or a third party)
because it falls well within the range of training cost estimates
provided in comments to the ANPRM. In reality, employer-based training
could very well be less than $25/hour in certain cases (i.e., assuming
new physical space is not leased by the employer to conduct the
training, the training is self-directed by the driver, and/or the
training is computer-based), but to be conservative the agency used the
same figure whether the training was employer-or third party-based so
as not to underestimate employer and/or driver costs. It is likely that
some employers (and third-party providers) may take advantage of
computer-based (i.e., web-based, self-directed) training to provide
entry-level drivers with the necessary instruction, since such training
is generally less costly than more traditional classroom-style training
in cases where many drivers must be trained. However, in the absence of
estimates on the percentage of drivers that would likely utilize
computer-based training methods, we assumed all would partake in more
traditional (classroom-style) methods to obtain the necessary training.
To arrive at a truck driver's wage rate, FMCSA used a figure of
$14.75 per hour, which is an average from three recent national wage/
employment surveys (including the Current Population Survey). FMCSA
added 31 percent to cover the cost of fringe benefits, an estimate
developed in the Hours of Service of Drivers regulatory evaluation. (It
is a weighted average of the fringe benefits for private and for-hire
carriers, based on data from the ATA and the BLS.) The 31 percent
increase brings total compensation to $19.32.
Regarding a motorcoach driver's wage, FMCSA used a figure of $9.98
per hour obtained from the BLS 2001 National Occupational Employment
and Wage survey. This figure represents the 25th percentile wage
estimate for an entry-level motorcoach driver and the agency used it
because entry-level drivers generally earn at the low range of the
industry wage standards. Again, 31 percent is added to cover the cost
of fringe benefits, resulting in a total hourly wage estimate of $13.07
per hour.
Regarding a school bus driver's wage, FMCSA used a figure of $7.67
per hour obtained from the BLS 2001 National Occupational Employment
and Wage survey. This figure represents the 25th percentile wage
estimate for an entry-level school bus driver and the agency used it
because entry-level drivers generally earn at the low range of the
industry wage standards. Again, 31 percent is added to cover the cost
of fringe benefits, resulting in a total hourly wage estimate of $10.05
per hour.
To get the total unit cost of training per hour (i.e., including
both direct training costs and the drivers' cost of time), FMCSA added
the relevant estimate of the driver's wage rate for truck, school bus,
and motorcoach drivers to the average hourly cost of training discussed
earlier. For example, for an entry-level truck driver, the unit cost of
training is $44.32 an hour ($19.32 of foregone driver wages plus $25 in
actual training costs). For entry-level motorcoach drivers, it is
$38.07 per hour ($13.07 of foregone driver wages plus $25 in actual
training costs) and for entry-level school bus drivers, FMCSA estimates
the total training cost at $35.05 per hour ($10.05 of foregone driver
wages plus $25 in actual training costs).
Taking these hourly training costs for each type of entry-level
driver (based on median wage rates and an average hourly cost of
training) and applying them to the average 10 hours of training for
each type of driver and the number of entry-level drivers in each
category, the agency developed an estimate of total annual training
costs of this rule.
To do so, FMCSA multiplied the hours of training required for each
type of driver by the total number of drivers in that driver group per
year by the applicable hourly wage rate to drivers in each group
(including direct wage and costs of training). The result is an annual
training cost of $14 million (after rounding) for the 32,400 entry-
level truck, motorcoach, and school bus drivers affected by this rule.
Note however, that in the first year of the rule's implementation,
currently employed drivers with less than 12 months of driving
experience will be required to return for training in the four content
areas specified above. Therefore, FMCSA expects an additional 32,400
drivers with less than
[[Page 29400]]
12 months of driving experience to return for training within 90 days
of the rule's effective date. Because there is a 60-day period between
today's final rule and its effective date, the percentage of drivers
with 11 to 12 months of driving experience today (or 17 percent,
assuming an equal distribution of new drivers each month) will become
exempt from the rule's training requirements upon its effective date.
Therefore, 27,000 entry-level drivers with 10 months or less of driving
experience will be required to return for training within the first
year of this rule. These 27,000 drivers represent 83 percent (or 10 of
12 months worth) of the original 32,400 entry-level drivers in the
industry with less than 12 months of driving experience. The cost to
train these 27,000 drivers is roughly $12 million in the first year (or
83 percent of the $14 million required to train all 32,400 new drivers
in the first year of this rule). Note that in years 2 through 10 of the
analysis period, the average annual training costs are just $14 million
(undiscounted), or the amount required in training costs for 32,400 new
drivers entering the industry in that year.
In addition to training costs for entry-level drivers, FMCSA
estimated record-keeping costs for drivers or their employers who must
file and retain a training certificate as proof that the training
occurred. FMCSA had no data to determine what percentage of existing
certificates would meet today's requirements, so it assumed all
employers of entry-level drivers must receive and store a training
certificate. The agency recognizes that in many cases a new training
certificate may not have to be issued (if the existing certificate
contains the necessary information regarding the supplemental training
required in the four content areas discussed above). The Paperwork
Reduction Act analysis for this rule estimates that the handling costs
for each driver-training certificate is 10 minutes per year. Using the
average hourly wage rates for new truck, motorcoach, and school bus
drivers discussed above (including fringe benefits), and dividing by
60, FMCSA obtains a ``per minute'' wage rate with which to estimate
record-keeping costs. To a per minute wage rate of $0.32, $0.17, and
$0.22 for entry-level truck, school bus, and motorcoach drivers,
respectively, FMCSA multiplied 10 minutes of record-keeping costs per
year for the applicable 32,400 drivers entering the industry each year
(30,765 truck, 1,575 motorcoach, and 85 school bus drivers). The result
is an annual record-keeping cost of roughly $100,000 (undiscounted,
after rounding). However, as was done for the training costs, the
record issuance and filing costs of the rule will be 83 percent higher
in the first year, given that there will be an additional 27,000
drivers with 10 months or less of driving experience for whom training
certificates will be issued in the first year. (In addition to the
32,400 new drivers for whom FMCSA assumed employers or training
entities must issue training certificates.) As a result, first-year
record issuance and filing costs will equal almost $200,000, and annual
record issuance and filing costs thereafter will be roughly $100,000
(undiscounted). Additionally, FMCSA expects that the record-keeping
requirement will be multi-year in nature, because the final rule states
that employers must maintain training certificate records for one year
beyond the date the driver's employment ends with an employer. For this
analysis, the agency assumed that employers would maintain each
driver's training certificate an average of three years. As such, in
years 2 through 10 of the analysis period, annual record retention
costs of this final rule are roughly $300,000. Regardless of whether
the agency assumed employers would retain entry-level driver training
certificates two or three years as the average time, the total
discounted costs of this rule did not change significantly.
The agency also estimated a marginal cost to inspect these entry-
level driver-training certificates, which the agency estimated would
occur as part of a motor carrier compliance review (because no new
auditing programs were discussed in detail). However, because in recent
years compliance reviews have been conducted on fewer than two percent
(or 10,000 of 650,000) of all motor carriers in a given year, and the
time to review entry-level driver training certificates would most
likely be less than one minute per record, the additional costs
associated with this activity were so low that they did not change the
annual cost estimates after rounding.
Total first-year costs associated with this rule equal $26 million,
with annual costs in years 2 through 10 equal to $14 million
(undiscounted). Total discounted costs for this rule over the 10-year
analysis period are $121 million.
Benefits
The total number of crashes potentially avoided by the final rule
(or direct benefits) is difficult to quantify, largely because of the
variability in study results about the impact of training on CMV crash
reduction. This variability is most likely due to the wide variation in
quality of driver training programs and the difficulty associated with
estimating statistically the relationship between a single input
(training) and an outcome (safety) when working with very large data
sets. However, several case studies reveal that driver-training
programs reduced crashes by two to 40 percent. Because of the
relatively modest costs (estimated at an annual average of $16 million
(undiscounted, after rounding), today's final rule would have to deter
up to 201 truck-related crashes (fatal, injury-related, and property-
damage-only crashes combined) each year in order to be cost beneficial
(i.e., where the rule's benefits exceed its costs).
To develop the estimate of the number of truck- and bus-related
crashes that must be avoided each year for the rule to be cost
beneficial, FMCSA used crash cost estimates from a recent study by
Zaloshnja, et al., which estimated the average cost of a crash
involving a large truck (i.e., those with more than 10,000 pounds gross
vehicle weight) at $79,873 (in 2002 dollars). Dividing the average
annual undiscounted costs of the rule ($16 million) by this average
cost per truck-related crash ($79,873) allows us to arrive at the cost-
beneficial threshold of 201 annual crashes. To be cost-beneficial, the
rule must prevent 201 crashes by the 32,400 entry-level drivers
affected by its provisions each year. For the 32,400 entry-level
drivers FMCSA estimates must comply in any given year by this rule,
this represents a 5-percent reduction in their crashes if FMCSA assumes
their crash risk is roughly equal to that of the industry average.
Because intuitively FMCSA knows that the crash risk profile of entry-
level drivers is much higher than that for the overall driver
population (as is the case with new versus experienced employers),
FMCSA would anticipate that less than a 5-percent reduction in crashes
by this driver group would be required for this rule to be cost-
beneficial.
Additionally, FMCSA anticipates that the likely reduction in
crashes may also result in carriers having lower insurance bills. The
extent to which their premiums would fall is unknown, as the specific
reduction in crashes is unknown. Because of the level of uncertainty,
FMCSA did not attempt to estimate this benefit. While a reduction in
insurance rates may be a benefit to a carrier, it is not a social
benefit. The lower rates primarily reflect a monetized value of the
reduction in
[[Page 29401]]
crash costs. In other words, premiums go down by the amount insurance
claims have fallen, so including this as a benefit would be double
counting. A reduction in the real cost of administering insurance would
constitute a real net benefit. However, it is unlikely that any such
reductions would be substantial.
The 201 crashes that must be avoided for the rule to be cost
beneficial represent five one-hundredths of one percent (or 0.05
percent) of the average total number of truck-related crashes reported
annually (estimated at 445,000 in 1999 and 2000).
A complete copy of the regulatory evaluation is in the public
docket.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the agency has evaluated the effects of this rulemaking on small
entities. In addition, DOT policy requires an analysis of the impact of
all regulations (or proposals) on small entities, and mandates that
agencies strive to lessen any adverse effects on these businesses. The
Regulatory Flexibility Analysis must cover the following topics.
(1) A description of the reasons why the action by the agency is
being considered.
(2) A succinct statement of the objectives of, and legal basis for,
the final rule.
(3) A description, and where feasible, an estimate of the number of
small entities to which the final rule would apply.
(4) A description of the projected reporting, record-keeping, and
other compliance requirements of the final rule, including an estimate
of the classes of small entities that will be subject to the
requirement and the types of professional skills necessary for
preparation of the report or record.
(5) An identification, to the extent practicable, of all relevant
federal rules that may duplicate, overlap, or conflict with the final
rule.
Reason the Action Is Being Considered
Section 4007(a)(2) of the Intermodal Surface Transportation
Efficiency Act of 1991 directed the Secretary of Transportation to
undertake a rulemaking on the need for training for entry-level CMV
drivers.
Objective and Legal Basis for This Action
The objective for this action is to reduce the number of crashes
caused by entry-level CMV drivers. Congress was specifically concerned
about the number of crashes caused by inadequate driver training, and
believes that better training will reduce these types of crashes. As
noted above, the legal basis for this rule is section 4007(a)(2) of the
Intermodal Surface Transportation Efficiency Act of 1991.
Number of Small Entities to Which the Action Applies
This action applies to those small entities regulated by the FMCSA
that hire entry-level truck, school bus, and motorcoach drivers. It is
difficult to determine exactly how many small employers will be
affected by this final rule, because it is not known year-to-year how
many small employers on average would be likely to hire an entry-level
driver. However, as of June 2003, there were 650,000 motor carriers on
the FMCSA's Motor Carrier Management Information System (MCMIS) census
file. This includes both for-hire and private motor carriers. The Small
Business Administration (SBA) defines small businesses in the motor
carrier industry based on thresholds for average annual revenues, below
which SBA considers a motor carrier small. For trucking companies, the
threshold is $21.5 million in annual sales, while for the motorcoach
and related industries the threshold is $6 million in annual sales.
Data from the 1997 Economic Census (U.S. Census Bureau), North American
Industrial Classification System (NAICS) Code 4841, ``General Freight
Trucking,'' indicates that 99 percent of ``general freight'' trucking
firms had less than $25 million in annual sales in 1997 (which most
closely corresponds to the SBA threshold of $21.5 million for motor
carriers). In the case of passenger (or motorcoach) carriers, the 1997
Economic Census NAICS Code 4855, ``Charter Bus Industry,'' indicates
that 94 percent of charter bus firms had less than $5 million in annual
sales in 1997 (which most closely corresponds to the SBA threshold of
$6 million for passenger carriers). In the case of school bus service,
the 1997 Economic Census NAICS Code 485410, ``School Bus Service,''
indicates that 96 percent of school bus service firms had less than $5
million in annual sales in 1997 (which most closely corresponds to the
SBA threshold of $6 million for this group of carriers).
Because the FMCSA does not have annual sales data on private
carriers, it assumes the revenue and operational characteristics of the
private trucking firms are generally similar to those of the for-hire
motor carriers. Regardless of which of the above percentages is used
(99, 94, or 96 percent), FMCSA estimates that over 600,000 of the
approximately 650,000 total motor carriers in the MCMIS Census File
meet the definition of small businesses.
Recall that the agency estimated that employers would hire 32,400
entry-level drivers affected by this rule each year on average by the
motor carrier industry. Also recall that total discounted compliance
costs of this final rule were estimated at $121 million over the 10-
year analysis period (2004-2013), or an average annual cost of $16
million (undiscounted) in compliance costs. The FMCSA divided the
average annual cost of $16 million by the 32,400 entry-level drivers
affected by the rule each year, and arrived at an average compliance
cost of less than $500 per driver, whether the cost is incurred by
drivers who are owner-operators or by the employer providing the
training for each of its entry-level drivers). As stated above, FMCSA
does not know how many small firms would be hiring one or more of these
entry-level drivers in any given year, although with 87 percent of the
industry employing six or fewer drivers, it is reasonable to assume
that any single small trucking company would be hiring no more than two
drivers per year on average. As such, each small carrier (whether an
employer or owner-operator) would incur, on average, between $500 and
$1000 in compliance costs per year to hire at most two entry-level
drivers affected by this rule.
Data from the 1997 Economic Census, NAICS Code 4841 (General
Freight Trucking), NAICS Code 4855 (Charter Bus Industry), and NAICS
Code 4854101 (School Bus Service), are contained in the following three
tables.
[[Page 29402]]
Table 1.--Average Annual Revenues of Small Trucking Firms
[NAICS Code 4841, General Freight Trucking]
----------------------------------------------------------------------------------------------------------------
Compliance costs
Number of firms Average annual ($1000) as
Revenue size (percent of revenues per firm percent of annual
segment total) (millions) revenues per firm
----------------------------------------------------------------------------------------------------------------
Less than $25 million............................... *27,609 1.33 0.08
----------------------------------------------------------------------------------------------------------------
*99 percent of segment total.
Table 2.--Average Annual Revenues of Small Passenger Carriers
[NAICS Code 4855, Charter Bus Industry]
----------------------------------------------------------------------------------------------------------------
Compliance costs
Number of firms Average annual ($1000) as
Revenue size (percent of revenues per firm percent of annual
segment total) (millions) revenues per firm
----------------------------------------------------------------------------------------------------------------
Less than $5 million................................ *1,022 0.98 0.10
----------------------------------------------------------------------------------------------------------------
*94 percent of segment total.
Table 3.--Average Annual Revenues of Small Passenger Firms
[NAICS Code 4854101, School Bus Service]
----------------------------------------------------------------------------------------------------------------
Compliance costs
Number of firms Average annual ($1000) as
Revenue size (percent of revenues per firm percent of annual
segment total) (millions) revenues per firm
----------------------------------------------------------------------------------------------------------------
Less than $5 million................................ *2,397 0.60 0.17
----------------------------------------------------------------------------------------------------------------
*96 percent of segment total.
One criterion used by SBA to define a ``significant'' economic
impact to small businesses is the impact on the revenues of entities
within a particular sector. According to the SBA guidance ``The
Regulatory Flexibility Act: an Implementation Guide for Federal
Agencies,'' The Office of Advocacy, U.S. Small Business Administration,
May 2003, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.sba.gov/advo/laws/rfaguide.pdf, ``if the cost of a
proposed regulation exceeds one percent of the gross revenues of the
entities in a particular sector'' then the regulation should be
considered significant. The impact of this regulation on the average
annual revenues of small firms in the general freight trucking, charter
bus, and school bus industries is far less than one percent per year in
all cases (0.08, 0.10, and 0.17 percent, respectively). Therefore,
FMCSA certifies that this regulation will not have a significant impact
on the small businesses subject to today's final rule.
Reporting, Recordkeeping, and Other Compliance Requirements of the
Final Rule
This action imposes some relatively minor record-keeping
requirements on employers. The primary employer requirement is to
verify drivers' eligibility before allowing them to operate a CMV in
interstate commerce. In addition, employers must maintain a copy of the
entry-level driver's training certificate in the driver's personnel or
qualification file. Employers are currently required to maintain a
personnel or qualification file for each driver, as outlined in Sec.
391.51 of the FMCSRs. No special skills are required to verify
eligibility to operate a CMV or to place a driver's training
certificate in a personnel or qualification file.
Duplicative, Overlapping, or Conflicting Federal Rules
The FMCSA is not aware of any other rules that duplicate, overlap,
or conflict with today's final rule.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 requires each agency to
assess the effects of its regulatory actions on State, local, tribal
governments, and the private sector. This rule does not impose an
unfunded Federal mandate resulting in the expenditure by State, local,
or tribal governments, in the aggregate, or the private sector of $100
million, adjusted for inflation, or more in any one year. (2 U.S.C.
1531 et seq.).
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. It has been determined
that this rulemaking does not have a substantial direct effect on
States, nor would it limit the policy-making discretion of the States.
Nothing in this document preempts any State law or regulation.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor or require through regulations. An analysis of this
proposal was made by the FMCSA, and it has been determined that the
final rule, when promulgated, would create a new collection of
information requiring OMB's approval. This PRA section addresses the
information collection burden for activities associated with training
and certifying entry-level drivers.
Today's final rule defines an ``entry-level driver'' as a person
with less than one-year's experience operating a CMV as defined by
Sec. 383.5 for any employer in interstate commerce from a period
[[Page 29403]]
that begins on July 20, 2003, and thereafter. Entry-level drivers fall
into two categories--currently employed and student entry-level
drivers--that must be trained in driver qualification, hours-of-
service, driver wellness and whistle blower protection requirements
before operating a CMV.
A ``currently employed entry-level driver'' is an individual who
began operating a CMV in interstate commerce for any employer one year
before the effective date of today's rule. Such a currently employed
entry-level driver with up to one-year's worth of experience must
obtain the basic training required by this rule no later than October
18, 2004, or 90 days after the effective date of this final rule. The
FMCSA is permitting such drivers to operate a CMV during this 90-day
delayed compliance period pending completion of the required training
and certification. The rule will permit the motor carriers to train the
currently employed entry-level drivers in shifts so that the employer
does not have to cease interstate operations pending the completion of
training. After the 90th day, October 18, 2004, all currently employed
entry-level drivers must have received the required training before
operating a CMV. Thus, after the 90-day delayed compliance period,
there will be no more currently employed drivers subject to this rule.
A ``student entry-level driver'' is an individual who will begin
operating a CMV in interstate commerce after the effective date of this
final rule July 21, 2004, and must receive the minimum training
required by this action before driving a CMV. Thus, all student drivers
will be subject to this rule after its effective date.
Upon completing the required minimum training for both currently
employed and student entry-level drivers, the employer will give each
entry-level driver it trains, or ensure the training provider gives
each entry-level driver, a copy of the training certificate. Each
employer that uses an entry-level driver that has been trained by a
training provider other than the employer must obtain a copy of the
training certificate from the driver or training provider. The employer
must also retain and keep a copy of the training certificate in the
entry-level driver's personnel file or qualification file so the
employer can prove to the FMCSA that the driver has received the
required minimum training.
The FMCSA estimates there are about 32,425 currently employed
drivers \1\ who need to be trained during the first 90 days after the
rule is implemented. The agency also estimates there would be an annual
burden to the motor carrier or other training entity to complete,
photocopy, and file the training certification form for the currently
employed entry-level driver that has been trained to operate a CMV.
FMCSA estimates that this first-year information collection activity
will take 10 minutes, resulting in an annual burden of 5,404 burden
hours [32,425 (30,765 truck drivers plus 1,575 motorcoach drivers plus
85 school bus drivers equals 32,425) times 10 minutes per motor
carrier/training entity/60 minutes equals 5,404]. There will be no
information collection burden for currently employed entry-level
drivers in subsequent years. This final rule provides for no
grandfathered or exempt drivers.
---------------------------------------------------------------------------
\1\ This 32,425 estimate for currently employed entry-level
drivers consists of 30,765 student truck drivers, 1,575 student
motorcoach drivers and 85 student school bus drivers.
---------------------------------------------------------------------------
FMCSA estimates that in the first year and subsequent years, 32,425
student entry-level drivers \2\ will need the minimum training required
by this final rule. There would be an annual burden to the motor
carrier or other training entity to complete, photocopy and file the
certification form for these student entry-level drivers. FMCSA
estimates that this information collection activity will take 10
minutes, resulting in a first year annual burden of 5,404 burden hours
[32,425 (30,765 truck drivers plus 1,575 motorcoach drivers plus 85
school bus drivers equals 32,425) times 10 minutes per motor carrier/
training entity/60 minutes equals 5,404]; and in subsequent years of
5,404 burden hours [32,425 (30,765 truck drivers plus 1,575 motorcoach
drivers plus 85 school bus drivers equals 32,425) x 10 minutes per
motor carrier/training entity/60 minutes equals 5,404].
---------------------------------------------------------------------------
\2\ FMCSA's 32,425 estimate for student entry-level driver
estimate consists of 30,765 student truck drivers, 1,575 student
motorcoach drivers and 85 student school bus drivers.
---------------------------------------------------------------------------
Thus, the total first-year information collection burden associated
with this final rule, when promulgated, is estimated to be 10,808
burden hours [5,404 burden hours for currently employed entry-level
drivers plus 5,404 burden hours for student entry-level drivers equals
10,808 hours]. In subsequent years, there would be no information
collection burden associated with currently employed entry-level
drivers; and the burden would drop as it relates to student entry-level
drivers to 5,404 burden hours.
OMB Control Number: 2126-NEW.
Title: Training Certification for Entry Level Commercial Motor
Vehicle Operators.
Respondents: First year 64,850; subsequent years 32,425.
Estimated Annual Hour Burden for the Information Collection: First
year 10,808 hours; and subsequent years 5,404 hours.
Interested parties are invited to send comments regarding any
aspect of these information collection requirements, including, but not
limited to: (1) Whether the collection of information is necessary for
the performance of the functions of the FMCSA, including whether the
information has practical utility, (2) the accuracy of the estimated
burden, (3) ways to enhance the quality, utility, and clarity of the
collected information, and (4) ways to minimize the collection burden
without reducing the quality of the information collected.
If you submit copies of your comments to the Office of Management
and Budget concerning the information collection requirements of this
document, your comments to OMB will be most useful if received at OMB
by June 21, 2004. You should mail, hand deliver, or fax a copy of your
comments to: Attention: Desk Officer for the Department of
Transportation, Docket Library, Office of Information and Regulatory
Affairs, Office of Management and Budget, Room 10102, 725 17th Street,
NW., Washington, DC 20503, fax: (202) 395-6566.
National Environmental Policy Act
The agency analyzed this final rule for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
determined under our environmental procedures Order 5610.1, issued
March 1, 2004 (69 FR 9680), that this action is categorically excluded
(CE) under Appendix 2, paragraph 6.d. of the Order from further
environmental documentation. That CE relates to establishing
regulations and actions taken pursuant to the regulations concerning
the training, qualifying, licensing, certifying, and managing of
personnel. In addition, the agency believes that this action includes
no extraordinary circumstances that would have any effect on the
quality of the environment. Thus, the action does not require an
environmental assessment or an environmental impact statement.
We have also analyzed this rule under the Clean Air Act, as amended
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's
[[Page 29404]]
General conformity requirement since it involves policy development and
civil enforcement activities, such as, investigations, inspections,
examinations, and the training of law enforcement personnel. See 40 CFR
93.153(c)(2). It will not result in any emissions increase nor will it
have any potential to result in emissions that are above the general
conformity rule's de minimis emission threshold levels. Moreover, it is
reasonably foreseeable that the rule will not increase total CMV
mileage, change the time of day when, or how, CMVs operate, the routing
of CMVs, or the CMV fleet-mix of motor carriers. This action merely
establishes standards for minimum training requirements for entry-level
operators of CMVs.
Executive Order 12898 (Federal Actions To Address Environmental Justice
in Minority Populations and Low Income Populations)
The agency evaluated the environmental effects of the proposed
action and alternatives in accordance with Executive Order 12898 and
determined that there are no environmental justice issues associated
with this rule. Environmental justice issues would be raised if there
were a ``disproportionate'' and ``high and adverse impact'' on minority
or low-income populations. The agency determined that there are no high
and adverse impacts associated with the final rule. In addition, the
agency analyzed the demographic makeup of the trucking industry,
potentially affected, and determined that there will be no
disproportionate impact on minority or low-income populations. This is
based on the finding that low-income and minority populations are
generally underrepresented in the CMV driver occupations.
Executive Order 13045 (Protection of Children)
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires
that agencies issuing ``economically significant'' rules that also
concern an environmental health or safety risk, or that an agency has
reason to believe may disproportionately affect children, must include
an evaluation of these effects on children. Section 5 of Executive
Order 13045 directs an agency to submit for a ``covered regulatory
action'' an evaluation of its environmental health or safety effects on
children. The agency evaluated the possible effects of the action and
determined that it will not create disproportionate environmental
health risks or safety risks to children.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have taking implications under E. O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number of 20.217,
Motor Carrier Safety. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
List of Subjects in 49 CFR Part 380
Driver training, Instructor requirements.
0
For the reasons stated in the preamble, FMCSA amends 49 CFR chapter
III, subchapter B, part 380 (added at 69 FR 16732, March 30, 2004, and
effective June 1, 2004) as set forth below:
PART 380--SPECIAL TRAINING REQUIREMENTS
0
1. The authority citation for this part is revised to read as follows:
Authority: 49 U.S.C. 31133, 31136, 31307, and 31502; sec.
4007(a) and (b) of Pub. L. 102-240 (105 Stat. 2151-2152); and 49 CFR
1.73.
0
2. Part 380 is amended by adding a new subpart E to read as follows.
Subpart E--Entry-Level Driver Training Requirements
Sec.
380.500 Compliance date for training requirements for entry-level
drivers.
380.501 Applicability.
380.502 Definitions.
380.503 Entry-level driver training requirements.
380.505 Proof of training.
380.507 Driver responsibilities.
380.509 Employer responsibilities.
380.511 Employer recordkeeping responsibilities.
380.513 Required information on the training certificate.
Subpart E--Entry-Level Driver Training Requirements
Sec. 380.500 Compliance date for training requirements for entry-
level drivers.
(a) Employers must ensure that each entry-level driver has received
the training required by this subpart no later than July 20, 2004,
except as provided in paragraph (b) of this section.
(b) Each employer must ensure that each entry-level driver who
first began operating a CMV in interstate commerce requiring a CDL
between July 20, 2003, and October 18, 2004, has had the required
training no later than October 18, 2004.
Sec. 380.501 Applicability.
All entry-level drivers who drive in interstate commerce and are
subject to the CDL requirements of part 383 of this chapter must comply
with the rules of this subpart, except drivers who are subject to the
jurisdiction of the Federal Transit Administration or who are otherwise
exempt under Sec. 390.3(f) of this subchapter.
Sec. 380.502 Definitions.
(a) The definitions in part 383 of this chapter apply to this part,
except where otherwise specifically noted.
(b) As used in this subpart:
Entry-level driver is a driver with less than one year of
experience operating a CMV with a CDL in interstate commerce.
Entry-level driver training is training the CDL driver receives in
driver qualification requirements, hours of service of drivers, driver
wellness, and whistle blower protection as appropriate to the entry-
level driver's current position in addition to passing the CDL test.
Sec. 380.503 Entry-level driver training requirements.
Entry-level driver training must include instruction addressing the
following four areas:
(a) Driver qualification requirements. The Federal rules on medical
certification, medical examination procedures, general qualifications,
responsibilities, and disqualifications based on various offenses,
orders, and loss of driving privileges (part 391, subparts B and E of
this subchapter).
(b) Hours of service of drivers. The limitations on driving hours,
the requirement to be off-duty for certain periods of time, record of
duty status preparation, and exceptions (part 395 of this subchapter).
Fatigue countermeasures as a means to avoid crashes.
(c) Driver wellness. Basic health maintenance including diet and
[[Page 29405]]
exercise. The importance of avoiding excessive use of alcohol.
(d) Whistleblower protection. The right of an employee to question
the safety practices of an employer without the employee's risk of
losing a job or being subject to reprisals simply for stating a safety
concern (29 CFR part 1978).
Sec. 380.505 Proof of training.
An employer who uses an entry-level driver must ensure the driver
has received a training certificate containing all the information
contained in Sec. 380.513 from the training provider.
Sec. 380.507 Driver responsibilities.
Each entry-level driver must receive training required by Sec.
380.503.
Sec. 380.509 Employer responsibilities.
(a) Each employer must ensure each entry-level driver who first
began operating a CMV requiring a CDL in interstate commerce after July
20, 2003, receives training required by Sec. 380.503.
(b) Each employer must place a copy of the driver's training
certificate in the driver's personnel or qualification file.
(c) All records required by this subpart shall be maintained as
required by Sec. 390.31 of this subchapter and shall be made available
for inspection at the employer's principal place of business within two
business days after a request has been made by an authorized
representative of the Federal Motor Carrier Safety Administration.
Sec. 380.511 Employer recordkeeping responsibilities.
The employer must keep the records specified in Sec. 380.505 for
as long as the employer employs the driver and for one year thereafter.
Sec. 380.513 Required information on the training certificate.
The training provider must provide a training certificate or
diploma to the entry-level driver. If an employer is the training
provider, the employer must provide a training certificate or diploma
to the entry-level driver. The certificate or diploma must contain the
following seven items of information:
(a) Date of certificate issuance.
(b) Name of training provider.
(c) Mailing address of training provider.
(d) Name of driver.
(e) A statement that the driver has completed training in driver
qualification requirements, hours of service of drivers, driver
wellness, and whistle blower protection requirements substantially in
accordance with the following sentence:
I certify ----------has completed training requirements set
forth in the Federal Motor Carrier Safety Regulations for entry-
level driver training in accordance with 49 CFR 380.503.
(f) The printed name of the person attesting that the driver has
received the required training.
(g) The signature of the person attesting that the driver has
received the required training.
Issued on: May 17, 2004.
Annette M. Sandberg,
Administrator.
[FR Doc. 04-11475 Filed 5-20-04; 8:45 am]