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Qualification of Drivers: Skill Performance Evaluation Program; Virginia Department of Motor Vehicles Application for Exemption Renewal Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Robin Hutcheson Date: 6 July 2023 Subjects: American Government  , Driver Licensing,
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[Federal Register Volume 88, Number 128 (Thursday, July 6, 2023)]
[Rules and Regulations]
[Pages 43065-43068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13731]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 391
[Docket No. FMCSA-2013-0147]
Qualification of Drivers: Skill Performance Evaluation Program;
Virginia Department of Motor Vehicles Application for Exemption Renewal
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notification of provisional renewal of exemption; request for
comments.
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SUMMARY: FMCSA announces its decision to provisionally renew an
exemption for truck and bus drivers who are licensed in the
Commonwealth of Virginia and need a Skill Performance Evaluation (SPE)
Certificate to operate commercial motor vehicles (CMV) in interstate
commerce. The exemption enables interstate CMV drivers who are licensed
in Virginia and are subject to the Federal SPE certificate requirements
to continue to fulfill the Federal requirements with a State-issued SPE
certificate that qualifies such drivers to operate CMVs in interstate
commerce. The exemption renewal is for a period of 2 years.
DATES: This renewed exemption is effective from July 8, 2023, through
July 7, 2025. Comments must be received on or before August 7, 2023.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
[[Page 43066]]
2013-0147 using any of the following methods:
Federal eRulemaking Portal: www.regulations.gov. See the
Public Participation and Request for Comments section below for further
information.
Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m. E.T., Monday
through Friday, except Federal holidays.
Fax: (202) 493-2251.
Each submission must include the Agency name and the docket number
(FMCSA-2013-0147) for this notification. Note that DOT posts all
comments received without change to www.regulations.gov, including any
personal information included in a comment. Please see the Privacy Act
heading below.
Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time. If you do not have
access to the internet, you may view the docket online by visiting
Dockets Operations on the ground floor of the West Building, 1200 New
Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., ET, Monday
through Friday, except Federal holidays. To be sure someone is there to
help you, please call (202) 366-9317 or (202) 366-9826 before visiting
Dockets Operations.
Privacy Act: In accordance with 49 U.S.C. 31315(b), DOT solicits
comments from the public to better inform its exemption process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov. As described in the
system of records notice DOT/ALL 14--FDMS, which can be reviewed at
https://www.transportation.gov/privacy, the comments are searchable by
the name of the submitter.
FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division, FMCSA, 1200 New Jersey Avenue SE,
Washington, DC 20590, (202) 366-4001, FMCSAMedical@dot.gov. If you have
questions on viewing or submitting material to the docket, call Dockets
Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
notification (FMCSA-2013-0147), indicate the specific page and section
of this document to which your comment applies, and provide a reason
for each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so FMCSA can contact you if there are questions regarding
your submission.
To submit your comment online, go to www.regulations.gov, insert
the docket number ``FMCSA-2013-0147'' in the keyword box, and click
``Search.'' Next, sort the results by ``Posted (Newer-Older),'' choose
the first notification listed, click the ``Comment'' button, and type
your comment into the text box on the following screen. Choose whether
you are submitting your comment as an individual or on behalf of a
third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
II. Legal Basis
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b)(2) and 49
CFR 381.300(b) to renew an exemption for a class of persons from the
Federal Motor Carrier Safety Regulations for up to 5 years if it finds
``such exemption would likely achieve a level of safety that is
equivalent to, or greater than, the level that would be achieved absent
such exemption'' (49 U.S.C. 31315(b)(1)). The Virginia Department of
Motor Vehicles (VA DMV) has requested on behalf of Virginia-licensed
drivers who require a Federal SPE certificate renewal of the current
exemption. A copy of the request is available in Docket No. FMCSA-2013-
0147.
III. Background
Current Regulatory Requirements
CMV drivers who are otherwise qualified to drive a CMV but are not
physically qualified to drive under 49 CFR 391.49(b)(1) or (2) because
of a loss or impairment of limbs, may drive a CMV if FMCSA has granted
an SPE certificate to that person under 49 CFR 391.49.
Initial Decision Granting Exemption
In 2014, FMCSA initially granted the VA DMV's request for exemption
to enable Virginia-licensed drivers subject to the Federal SPE
certificate requirements under 49 CFR 391.49 to fulfill the Federal
requirements with a State-issued SPE certificate (79 FR 38659, July 8,
2014). The exemption required the State-issued SPE certificate to be
based on standards, processes, and procedures comparable to those used
by FMCSA, and the State was required to maintain copies of all
evaluation forms and certificates issued to allow FMCSA to conduct
periodic reviews of the State's program. Virginia-licensed drivers who
receive the State-issued SPE certificate are allowed to operate CMVs in
interstate commerce. The exemption contained specific terms and
conditions to ensure that the VA DMV maintained an equivalent level of
safety to the Federal SPE process.
2016 and 2018 Renewals
FMCSA renewed the exemption on the same terms and conditions for a
2-year period from July 9, 2016, to July 9, 2018 (81 FR 44674, July 8,
2016).\1\ FMCSA renewed the exemption again for a 5-year period, from
July 8, 2018, to July 8, 2023 (84 FR 3532, Feb. 12, 2019).
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\1\ At the time the first exemption was granted, the term of
temporary exemptions was limited by statute to a maximum of 2 years.
However, on December 4, 2015, Congress enacted the Fixing America's
Surface Transportation (FAST) Act, which allows an exemption to be
granted for a period of 5 years (49 U.S.C. 31315(b)(2)) if FMCSA
finds ``such exemption would likely achieve a level of safety that
is equivalent to, or greater than, the level that would be achieved
absent such exemption'' (49 U.S.C. 31315(b)(1)).
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Renewal Request
In its pending renewal request on behalf of the exempted drivers,
the VA DMV noted that the current exemption allows trained staff from
the Commonwealth of Virginia to review applications and conduct SPEs
for Virginia commercial driver's license (CDL) holders and the Virginia
DMV Commissioner to approve SPE certificates. It notes that the
application package mirrors the package otherwise required by FMCSA for
SPE applications. The VA DMV will use an identical process and
identical standards to process SPE applications. It further noted that,
``Virginia DMV staff assigned to review SPE application packages are
medical professionals (licensed practical nurses and
[[Page 43067]]
Registered Nurses).'' In addition, it stated that the Medical Review
staff receive FMCSA training on how to conduct a thorough review of the
SPE application information and that new staff are required to go
through an extensive orientation. It noted that the nurse evaluators
and the overseeing Healthcare Compliance Officer (Registered Nurse)
have all participated in training conducted by FMCSA or will have
recently attended the training provided by FMCSA on May 22-24, 2023.
Additionally, Medical Review staff forward those drivers who have
met the Federal criteria for an SPE certificate to the Driver Licensing
Quality Assurance (DLQA) staff to conduct the SPEs. The DLQA examiners
hold Class A CDLs and have completed the FMCSA training required to
conduct evaluations. Virginia states that since completing their
training SPE examiners have coordinated with local FMCSA
representatives to ensure retention of knowledge. The May 22-24, 2023,
training will provide training to additional DLQA staff who have never
had the class to allow Virginia to have a complement of examiners to
accommodate any retirements in the future.
The VA DMV noted that DLQA examiners are positioned across VA DMV's
eight districts and each district has a CDL test site that can be used
for the non-driving and off-highway portion of the SPE, and each
district has a planned test route for the on-highway portion of the
SPE. It states this minimizes the wait times for SPE applicants.
Finally, the VA DMV notes that it has participated in audit
reviews, record reviews, and submits regular reports to FMCSA as part
of ongoing quality assurance process. Since the most recent July 2018
renewal, the VA DMV notes that 37 Virginia drivers have applied for and
obtained SPE certificates under the exemption and that an additional 40
to 50 drivers renew their certificates each year.
The VA DMV notes that its program has contributed to Virginia's
commitment to being the most military and veteran-friendly state in the
nation through the Troops to Trucks Program (www.dmvnow.com/troopstotrucks). And it states that expediting the SPE process assists
wounded veterans and military personnel with transition to civilian
employment and reduces the time between discharge and employment for
many wounded veterans ``while addressing the trucking industry's
shortage of qualified licensed commercial truck drivers.''
IV. Equivalent Level of Safety
Virginia's SPE program is essentially identical to the current
FMCSA SPE program and is subject to oversight by FMCSA to ensure that
VA's processes are equivalent to FMCSA's SPE processes. Virginia
continues to adhere to the application process modeled on the FMCSA
process. State personnel who conduct the SPE complete the same training
as FMCSA personnel conducting SPEs and follow the same procedures and
testing criteria used by FMCSA. FMCSA has conducted ongoing monitoring
and SPE program reviews and Virginia continues to maintain records of
applications, testing, and certificates issued for periodic review by
FMCSA. Based on FMCSA's analyses of the applications and the program,
FMCSA has determined that continuing the exemption for the class of
exempted drivers and continuing to allow the VA DMV to issue SPE
certificates for Virginia residents will provide an equivalent level of
safety as provided by FMCSA issuing the SPE certificates.
FMCSA is unaware of any evidence of a degradation of safety
attributable to the current exemption. There is no indication of an
adverse impact on safety under the terms and conditions specified in
the initial exemption or exemption renewals. FMCSA concludes that
provisionally extending the exemption for a period of 2 years, under
the terms and conditions listed below, will likely achieve a level of
safety that is equivalent to, or greater than, the level of safety
achieved without the exemption.
V. Exemption Decision
A. Granting of Exemption
FMCSA provisionally renews the exemption for interstate Virginia-
licensed drivers to be relieved of the requirement for an SPE
certificate issued by FMCSA under 49 CFR 391.49 for a period of 2 years
subject to the terms and conditions of this decision and the absence of
public comments that would cause the Agency to terminate the exemption
under Sec. VII below. The exemption renewal is otherwise effective July
8, 2023, through July 7, 2025, 11:59 p.m. local time, unless renewed or
rescinded.
B. Terms and Conditions
The exemption to allow the VA DMV to issue an SPE certificate for
interstate drivers who have experienced an impairment or loss of a limb
and are licensed in the Commonwealth of Virginia is subject to the
following terms and conditions:
1. VA DMV's SPE program must be substantially similar to the
current requirements in 49 CFR 391.49.
2. VA DMV must maintain an application process modeled on the FMCSA
process and submit information concerning the application process to
FMCSA's Medical Programs Division for review, as requested.
3. State personnel who conduct SPEs must complete SPE training
identical to that of FMCSA personnel currently administering the
Federal SPE program.
4. The SPE and scoring for the SPE must be done using the same
procedures and testing criteria used by FMCSA.
5. VA DMV must maintain records of applications, testing, and
certificates issued for periodic review by FMCSA.
6. VA DMV must submit a monthly report to FMCSA listing the names
and license number of each driver tested by the State and the result of
the SPE (pass or fail).
7. As requested, the VA DMV must provide records required to be
retained under this exemption and provide any other information
necessary for FMCSA to evaluate the VA DMV's compliance with the terms
and conditions of this exemption.
8. Each driver who receives a State-issued SPE certificate must
carry a copy of the certificate when driving for presentation to
authorized Federal, State, or local law enforcement officials.
VI. Preemption
During the period the exemption is in effect; no State shall
enforce any law or regulation that conflicts with this exemption with
respect to a person operating under the exemption. An exemption granted
under the authority of 49 U.S.C. 31315(b) preempts State laws and
regulations that conflict with or are inconsistent with the exemption.
The decision to grant the exemption amounts to automatic Federal
ratification of the State-issued SPE Certificate and therefore
prohibits other jurisdictions from requiring a separate FMCSA-issued
SPE. The State-issued certificate must be treated as if it had been
issued by FMCSA. Virginia-licensed drivers who receive the State-issued
SPE certificate are allowed to operate CMVs in interstate commerce.
VII. Termination
If the Agency determines that safety is being compromised or if
continuation of the exemption would not be consistent with the goals
and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take
immediate steps to revoke the exemption. The exemption will also be
revoked if the exemption has resulted in a lower level of safety than
was
[[Page 43068]]
maintained before it was granted; or continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136, 49 U.S.C. chapter 313, or the Federal Motor Carrier Safety
Regulations.
VIII. Request for Comments
In accordance with 49 U.S.C. 31315(b), FMCSA requests public
comment from all interested persons on the application for an
exemption. All comments received before the close of business on the
comment closing date indicated at the beginning of this notification
will be considered and will be available for examination in the docket
at the location listed under the ADDRESSES section of this
notification. Comments received after the comment closing date will be
filed in the public docket and will be considered to the extent
practicable. In addition to late comments, FMCSA will also continue to
file, in the public docket, relevant information that becomes available
after the comment closing date. Interested persons should continue to
examine the public docket for new material.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-13731 Filed 7-5-23; 8:45 am]
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