Medical Certification Requirements as Part of the CDL PDF Print E-mail
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Saturday, 29 November 2008 10:35
Medical Certification Requirements as Part of the CDL; National 
Registry of Certified Medical Examiners; Final Rule and Proposed Rule

Medical Certification Requirements as Part of the CDL

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), USDOT.

ACTION: Final rule.

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SUMMARY: FMCSA amends the Federal Motor Carrier Safety Regulations
(FMCSRs) to require interstate commercial driver's license (CDL)
holders subject to the physical qualification requirements of the
FMCSRs to provide a current original or copy of their medical
examiner's certificates to their State Driver Licensing Agency (SDLA).
The Agency also requires the SDLA to record on the Commercial Driver
License Information System (CDLIS) driver record the self-certification
the driver made regarding the applicability of the Federal driver
qualification rules and, for drivers subject to those requirements, the
medical certification status information specified in this final rule.
Other conforming requirements are also implemented. This action is
required by section 215 of the Motor Carrier Safety Improvement Act of
1999 (MCSIA).

DATES: This rule is effective January 30, 2009. The incorporation by
reference of the September 2007 version of the publication listed in
this rule is approved by the Director of the Office of the Federal
Register as of December 1, 2008. State compliance is required by
January 30, 2012. All CDL holders must comply with the requirement to
submit to the SDLA their self-certification on whether they are subject
to the physical qualification rules by January 30, 2014.

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Director, Medical
Programs, FMCSA, Room W64-224, U.S. Department of Transportation, 1200
New Jersey Avenue, SE., Washington, DC 20590-0001. Telephone: (202)
366-4001. E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Office hours are from 8:30 a.m.
to 5 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

A. Legal Basis

Section 215 of the MCSIA (Pub. L. 106-159, 113 Stat. 1767 (Dec. 9,
1999)) (set out as a note to 49 U.S.C. 31305) provides that: ``The
Secretary shall initiate a rulemaking to provide for a Federal medical
qualification certificate to be made a part of commercial driver's
licenses.'' The population of drivers required to obtain a commercial
driver's license (CDL) is different from the population of drivers
required to obtain a medical certificate. For that reason, in order to
implement this congressional mandate, the rule reconciles the
differences between the scope of the Agency's authority to regulate the
physical qualifications of drivers of commercial motor vehicles (CMVs)
and its authority to establish requirements for CDLs.
The rule places the medical certification documentation
requirements on only those drivers required to obtain a CDL from a
State who are also required to obtain a certificate from a medical
examiner indicating that they are physically qualified to operate a
commercial motor vehicle in interstate commerce. The rule also
establishes requirements to be implemented by States that issue CDLs to
such drivers. These requirements will ensure that accurate and up-to-
date information about the CDL holder's medical examiner's certificate
will be contained in the electronic CDLIS driver record that is
maintained by States in compliance with the CDL regulations. Finally,
the rule requires States to take certain actions against CDL holders if
they do not provide the required and up-to-date medical certification
status information in a timely manner.

1. Authority Over Drivers Affected

a. Drivers Required to Obtain a Medical Certificate. The FMCSA is
required by statute to establish standards for the physical
qualifications of drivers who operate CMVs in interstate commerce (49
U.S.C. 31136(a)(3) and 31502(b)). For this purpose, CMVs are defined in
49 U.S.C. 31132(1) and 49 CFR 390.5. There are four basic categories of
vehicles covered by this definition:
Those with a gross vehicle weight rating (GVWR) or gross
combination weight rating (GCWR), or gross vehicle weight (GVW) or
gross combination weight (GCW), whichever is greater, of at least
10,001 pounds;
Those designed or used to transport for compensation more
than 8 passengers, including the driver;
Those designed or used to transport not for compensation
more than 15 passengers, including the driver; or
Those used to transport hazardous materials that require a
placard on the vehicle under 49 CFR subtitle B, chapter I, subchapter
C.
In addition, the vehicles in these categories must be ``used on the
highways in interstate commerce to transport passengers or property.''
(Id.). Interstate commerce, for purposes of this provision, is based on
the definitional provisions of 49 U.S.C. 31132(4) and 31502(a) and
long-standing administrative and judicial interpretations of those
sections (and their predecessors), and defined in 49 CFR 390.5, as
follows:

Interstate commerce means trade, traffic, or transportation in
the United States--
(1) Between a place in a State and a place outside of such State
(including a place outside of the United States);
(2) Between two places in a State through another State or a
place outside of the United States; or
(3) Between two places in a State as part of trade, traffic, or
transportation originating or terminating outside the State or the
United States.

Subject to certain limited exceptions,\1\ FMCSA has fulfilled the
statutory mandate of 49 U.S.C. 31136(a)(3) by establishing physical
qualification standards for all drivers covered by these provisions (49
CFR 391.11(b)(4)). Such drivers must obtain from a medical examiner a
certificate indicating that the driver is physically qualified to drive
a CMV (49 CFR 391.41(a), 391.43(g) and (h)). This final rule does not
make any change in the standards for obtaining a medical certificate;
however, on the basis of the Agency's CDL program authority, this rule
requires the CDL drivers who are also subject to the medical examiner's
certificate requirement to furnish the original or a copy of the
certificate to the licensing State. As explained in the Summary Cost
Benefit Analysis provided in this preamble, the rule should improve
compliance by CMV operators with the physical qualification standards
set forth in the FMCSRs. By doing so, the rule would aid the Agency in
ensuring that the physical condition of CMV operators is sufficient to
enable them to operate safely and that such operation does not have a
deleterious effect on their health, as required by section 31136(a)(3)
and (4). The other minimum requirements of section 31136, set out in
subsections (a)(1) and (2), are not applicable to this rule because it
does not involve either the safety of CMV equipment or the operational
activities of the operators.
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\1\ See 49 CFR 390.3(f) and 391.2.
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b. Drivers Required to Obtain a CDL. The authority for FMCSA to
require an operator of a CMV to obtain a CDL rests on different
statutory provisions than those authorizing the promulgation of

[[Page 73097]]

physical qualifications for such operators; that authority to hold a
valid driver's license is found in 49 U.S.C. 31302. The requirement to
obtain a CDL is applicable to drivers of specified CMV categories that
are different from the categories specified in 49 U.S.C. 31132(1) and
the implementing regulations, as discussed in the preceding section.
The four categories of CMVs for which an operator is required to have a
CDL, as defined in 49 U.S.C. 31301(4) and specified in 49 CFR 383.5,
are the following:
Those with a GVWR or GCW, of at least 26,001 pounds,
including towed units with GVWR or GCW of more than 10,000 pounds;
Those with a GVWR or GCW of at least 26,001 pounds;
Those designed to transport at least 16 passengers,
including the driver; or
Those of any size used to transport either hazardous
materials that require a placard on the vehicle under 49 CFR part 172,
subpart F, or any quantity of a material listed as a select agent or
toxin under 42 CFR part 73.
In addition, the vehicles involved must be used ``in commerce to
transport passengers or property'' (49 U.S.C. 31301(4)). The term
``commerce'' is defined for the purpose of the CDL statutes and
regulations as follows:

Trade, traffic, and transportation--
(A) In the jurisdiction of the United States between a place in
a State and a place outside that State (including a place outside
the United States); or
(B) In the United States that affects trade, traffic, and
transportation described in subclause (A) of this clause.

(49 U.S.C. 31301(2); see also 49 CFR 383.5.).

However, the statutory provisions governing CDLs also contain a
limitation on the scope of the authority granted to FMCSA. The
provision at 49 U.S.C. 31305(a)(7) states that:

The Secretary of Transportation [Secretary] shall prescribe
regulations on minimum standards for testing and ensuring the
fitness of an individual operating a commercial motor vehicle. The
regulations--
* * *
(7) Shall ensure that an individual taking the tests is
qualified to operate a commercial motor vehicle under regulations
prescribed by the Secretary and contained in title 49, Code of
Federal Regulations, to the extent the regulations apply to the
individual; [Emphasis added].

The current CDL provisions require each CDL driver to either
certify that he or she meets the qualification requirements contained
in 49 CFR part 391 or that he or she is not subject to part 391 (49 CFR
383.71(a)(1)). If the driver expects to operate entirely in intrastate
commerce and is not subject to part 391, then the driver is subject to
State driver qualification requirements.
Therefore, reading all of these statutory provisions as a whole,
FMCSA interprets section 215 of MCSIA to be applicable only to CDL
holders or applicants operating or intending to operate in non-
excepted, interstate commerce, as defined in 49 CFR 390.5. This rule
requires all CDL holders to continue to furnish a self-certification
for the type of driving they will perform. Those CDL holders and
applicants operating in non-excepted, interstate commerce must furnish
an original or copy of their medical examiner's certificate to the
State issuing the CDL.

2. Authority to Regulate State CDL Programs

FMCSA, in accordance with 49 U.S.C. 31311 and 31314, has authority
to prescribe procedures and requirements for the States to observe in
order to issue CDLs (see, generally, 49 CFR part 384). In particular,
under section 31314, in order to avoid loss of funds apportioned from
the Highway Trust Fund, each State shall comply with the following
requirement:

(1) The State shall adopt and carry out a program for testing
and ensuring the fitness of individuals to operate commercial motor
vehicles consistent with the minimum standards prescribed by [FMCSA]
under section 31305(a) of [Title 49 U.S.C.]. (49 U.S.C. 31311(a)(1);
see also 49 CFR 384.201).

On the basis of this authority, the rule requires States issuing
CDLs to drivers operating or intending to operate in non-excepted,
interstate commerce, to obtain specified information on the required
medical examiner's certificate for posting into the CDLIS driver
record. The rule also requires States to take certain specified actions
to downgrade the CDL if required information is not provided by the CDL
applicant or holder.

B. Background

1. Notice of Proposed Rulemaking

On November 16, 2006, FMCSA published a notice of proposed
rulemaking (NPRM) (71 FR 66723) titled, ``Medical Certification
Requirements as Part of the CDL.'' The Agency proposed to add a
requirement for CDL holders subject to part 391 of title 49, Code of
Federal Regulations, to provide an original or copy (at the option of
the SDLA) of the federally mandated medical examiner's certificate to
the SDLA. The SDLA would record medical certificate status information
on the CDLIS driver record. Each State would be provided the
flexibility of establishing its own processes for receiving this
information from drivers. SDLAs would also be required to update the
medical certification status of a driver to ``not-certified'' within 2
days of the expiration of the certificate, and subsequently downgrade
the CDL within 60 days, if the SDLA did not receive a new medical
certificate for that driver.

2. Summary of the Final Rule

After considering the public comments to the NPRM, FMCSA adopts a
final rule consistent with the NPRM.\2\
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\2\ In this final rule, the Agency will refer to several terms
for reports of driver history information that the SDLA provides to
the driver or motor carrier employer from the State's official CDLIS
driver record. The terms are as follows: (1) ``CDLIS driver record''
for CDL drivers and ``driver record'' for non-CDL drivers, to refer
to the electronic record stored by the SDLA and containing a CDL
driver's status and history located in the database of the driver's
State-of Record; and (2) ``CDLIS motor vehicle record (CDLIS MVR)''
for CDL drivers and ``motor vehicle record (MVR)'' for non-CDL
drivers, to describe the driver history information provided by the
SDLA from the CDLIS driver record to the driver or employer.
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a. SDLAs. This rule requires the States to modify their CDL
procedures to: (1) Record a CDL driver's self-certification regarding
type of driving (e.g., interstate (non-excepted or excepted) and
intrastate (non-excepted or excepted) on the CDLIS driver record); (2)
require submission of the medical examiner's certificates (or a copy)
from those drivers operating in non-excepted, interstate commence who
are required by part 391 to be medically certified; (3) date stamp the
medical examiner's certificate (or a copy); (4) provide the stamped
medical examiner's certificate or a copy as a receipt to the driver;
(5) retain the certificate or a copy for 3 years from the date of
issuance; (6) post the required information from the certificate or a
copy onto the CDLIS driver record within 10 days; and (7) update the
medical certification status of the CDLIS driver record to show the
driver as ``not-certified'' if the certification expires; and then
downgrade the CDL within 60 days of the expiration of the driver
certification.
If the driver certifies that he or she expects to drive in
interstate commerce and is not driving exclusively for one of the
industries excepted from the requirements of part 391, this rule
requires the State to post on the CDLIS driver record the following
information from that driver's medical examiner's certificate: (1)
Medical examiner's (ME) name; (2) ME's license or certificate number
and the State that issued it; (3) expiration date of ME's certificate;
(4) ME's telephone number; (5) date of physical examination/issuance of
the

[[Page 73098]]

ME's certificate to the driver; (6) National Registry \3\
identification number, if required by future rules; (7) medical
certification status determination (i.e., ``certified'' or ``not-
certified''); (8) information from FMCSA if a medical variance was
issued to the driver; (9) any driver restrictions; and (10) the date
the information is entered on the CDLIS driver record.
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\3\ Although FMCSA plans to issue a separate rule establishing
the National Registry of Medical Examiners in the future (see 49
U.S.C. 31149 as added by section 4116(a) of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy For Users
(Pub. L. 109-59, 119 Stat 114 , August 10, 2005)) (SAFETEA-LU), to
minimize the number of times States have to upgrade their licensing
systems, States may want to make provisions in the CDLIS driver
record to accept this information, should it be required.
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In addition to the recordkeeping functions, the SDLA must make the
driver's medical certification status information electronically
accessible to authorized State and Federal enforcement officials via
CDLIS and the National Law Enforcement Telecommunication System
(NLETS), and to drivers and employers via the CDLIS motor vehicle
records (MVRs).
b. Motor carriers. Under this rule, motor carriers who employ a CDL
driver to operate in non-excepted, interstate commerce must place his
or her current CDLIS MVR documenting the driver's medical certification
status in the driver's qualification (DQ) file before allowing the
driver to operate a CMV. The receipt issued the driver when the
certificate is presented to the SDLA may be used for this purpose for
up to 15 days from the date of the receipt or date stamp. The motor
carrier must obtain the CDLIS MVR to verify: (1) The driver's self-
certification to operate in non-excepted, interstate commerce; (2) that
a non-excepted, interstate driver has a medical certification status of
``certified;'' and/or (3) whether the driver was issued a medical
variance by FMCSA.
Motor carriers may no longer use a copy of the medical examiner's
certificate to document physical qualification in the DQ file, except
for up to 15 days from the date stamp on the receipt given to the
driver by the SDLA. After the 15th day, the carrier must have obtained
a copy of the CDLIS MVR as documentation that the driver is medically
``certified'' and placed it in the DQ file.
c. Drivers. Currently, interstate CDL drivers subject to part 391
are responsible for providing a copy of the medical examiner's
certificate to the motor carrier and for carrying a copy of the
certificate when operating. Under this final rule, drivers must provide
the medical examiner's certificate to the SDLA. A driver's date-stamped
medical examiner's certificate (or a copy) serves as a receipt from the
SDLA and may be used as proof of medical certification for 15 days.
Except for using the receipt for the first 15 days, the driver is no
longer allowed to use the medical examiner's certificate as proof of
his or her certification to enforcement personnel or employers. Such
drivers no longer have to carry the actual medical examiner's
certificate, but must continue to carry any skill performance
evaluation (SPE) certificate or medical exemption document while on
duty.

3. Safety Need for the Rule

This rulemaking action will help to prevent medically unqualified
drivers from operating on the Nation's highways by providing State
licensing agencies a means of identifying interstate CDL holders who
are unable to obtain a medical certificate and taking action to
downgrade their CDLs accordingly. The final rule will also serve as a
deterrent to drivers submitting falsified medical certificates because
FMCSA and State enforcement personnel will now have access, via CDLIS,
to information about the medical certificate and the identity of the
medical examiner who performed the examination. Electronic access will
enable FMCSA and the States to detect certain patterns or anomalies
concerning the source of medical certificates through queries of the
licensing databases at any time rather than being limited to checking
for such issues during roadside inspections and compliance reviews.
While there are no studies to provide data on the number of
medically unqualified drivers that may be currently operating CMVs in
interstate commerce, roadside inspection and compliance review data for
calendar year 2007 indicate there remains a need to improve oversight
of the medical certification process for CMV drivers. For calendar year
2007, FMCSA and its State partners conducted more than 3.4 million
roadside inspections. There were 145,219 violations cited for drivers
failing to have a medical examination certificate in their possession
while operating a CMV, 42,171 violations cited for drivers operating
with an expired medical examination certificate, 4,387 violations for
drivers in possession of an improper medical examination certificate,
and 6,105 violations for physically unqualified drivers.
During calendar year 2007 FMCSA and its State partners conducted
17,453 compliance reviews of motor carriers. A compliance review is an
on-site examination of a motor carrier's operations, such as drivers'
hours of service, maintenance and inspection, driver qualifications,
CDL requirements, financial responsibility, crash involvement,
hazardous materials, and other safety and transportation records to
determine whether the carrier meets FMCSA's safety fitness standard
under 49 CFR part 385. There were 43 acute violations cited for motor
carriers using a physically unqualified driver. Acute regulations are
those identified as such where noncompliance is so severe as to require
immediate corrective action by a motor carrier regardless of the
overall safety posture of the carrier.
With regard to crash data, FMCSA estimates that based on the
results of its Large Truck Crash Causation Study (see ``Report to
Congress on the Large Truck Crash Causation Study,'' March 2006) that
there are 3,000 trucks per year involved in crashes where there was
either a fatality or serious injury, and the ``critical reason'' for
the crash was the truck driver having a heart attach or other physical
impairment. The critical reason is the immediate reason for the
critical event, which is the action or event which put the vehicle(s)
on a course that made the crash unavoidable, given reasonable driving
skills and vehicle handling.
While the enforcement data does not provide any insights into crash
causation and the LTCCS estimates have certain limitations, that
information is nonetheless disconcerting and suggests the need for
action to improve the oversight of the documentation of the medical
examination.

C. Discussion of Public Comments

The FMCSA received 83 comments in response to the NPRM. The
commenters included: 24 State agencies and the American Association of
Motor Vehicle Administrators (AAMVA); 22 individuals, many of whom
identified themselves as drivers; 18 motor carriers, including owner-
operators; 8 trucking industry consultants and associations, including
the American Trucking Associations (ATA) and the Owner-Operator
Independent Driver Association (OOIDA); 4 commercial passenger carrier
industry representatives; 2 safety advocacy groups and the National
Transportation Safety Board (NTSB); 4 insurance and medical community
representatives; and the Commercial Vehicle Safety Alliance (CVSA).
Ten commenters, including three State agencies, expressed support
for the concept of linking medical certification status to obtaining
and maintaining a

[[Page 73099]]

CDL; however eight of these commenters expressed concerns regarding the
specifics of how FMCSA proposed to accomplish this.
Twenty-six commenters, 12 of whom were individuals, opposed the
proposed amendments to the FMCSRs. Among other things, they believed
the regulations would lead to increased costs and paperwork burdens on
motor carriers, drivers, and States. They further maintained that this
regulation does nothing to address driver fraud and abuse of the
medical certification process. While the remaining 47 commenters did
not explicitly support or oppose the NPRM, they offered specific
comments about the proposal. The following sections provide details
regarding the comments submitted to this docket.

1. Information on the CDLIS Driver Record

a. Medical Examiner Information. Both the Oregon DOT and Maryland
State Highway Administration commented on inclusion of various elements
of information from the medical examiner's certificate into an SDLA's
CDLIS driver record. Oregon agreed on the importance of entering the
driver certification information and medical certification status, but
did not understand why the State has to enter information identifying
the medical examiner as well. Oregon suggests that FMCSA only add the
expiration date of the medical examiner's certificate, medical
certification status, a ``W'' restriction code to indicate that the
driver is not medically qualified to operate CMVs in Canada because of
a medical variance (e.g., an exemption or SPE certificate to enable
drivers who do not meet certain physical qualifications requirements to
operate CMVs), and a record of any restrictions to the CDLIS driver
record.
FMCSA Response: The Agency chose to require the SDLA to post on the
CDLIS driver record the contact information for the ME who conducts the
examination. This will help deter driver fraud by enabling FMCSA and
the SDLA to contact the ME directly to verify the identity of the ME
and details of the ME's certificate if the Agency or the SDLA suspects
there is a problem, or to obtain a copy of the supporting Medical
Examination Report.
b. Medical Variance Indicator. In the NPRM, the FMCSA proposed
adding a new restriction code to Sec. 383.95 indicating a medical
variance. The Agency recommended using a code of ``W'' to be placed
both on the CDLIS driver record and on the CDL document to identify CDL
holders subject to part 391 who have obtained an ME's certificate only
because they previously obtained a medical variance in order to operate
CMVs in the U.S. The Kentucky Division of Driver Licensing stated that
the ``W'' restriction should be displayed on the CDLIS driver record,
but not on the CDL document. Nebraska DMV recommended that a different
code should be selected.
FMCSA Response: Displaying a restriction code (not necessarily a
``W'') on the CDL document, as well as on the CDLIS driver record, will
enable U.S. enforcement personnel to identify drivers who are required
to carry documentation of an SPE certificate or medical exemption when
they are on-duty. It will also enable Canadian authorities to identify
U.S. CDL holders who are prohibited by reciprocal agreement with Canada
from operating a CMV in Canada. Implementation of a similar restriction
code on Canadian licenses will enable U.S. enforcement personnel to
identify Canadian drivers who do not meet U.S. physical qualification
standards.
The FMCSA has selected the letter ``V'' as the code for identifying
drivers with a medical variance because the letter ``W'' is currently
used by a number of States for other purposes. To reduce the burden on
the States, FMCSA selects a code (the letter ``V'') that could be
adopted without redefining existing letter designations. The Agency
will work with AAMVA to include the ``V'' code in the CDLIS State
Procedures Manual. Section 383.95(b) is revised to require that the
code published in that manual must be put on the CDL document and the
CDLIS driver record.
c. Medical Variances. CVSA agreed that it is important that any
medical variance granted to a driver should be part of the driver's
record, including any SPE or exemption. If FMCSA grants an SPE
certificate to a driver, the Maryland State Highway Administration
believes that the Agency should be required to submit evidence of this
to the SDLA. Maryland also questions FMCSA's logic for continuing the
requirement that motor carriers maintain evidence of the SPE
certificate in their driver files. They believe including the CDLIS MVR
in the file should satisfy the requirement.
FMCSA Response: The final rule requires that the SDLA post on the
CDLIS driver record whether a variance is noted on the medical
certificate. The Agency continues the requirement for motor carriers to
maintain evidence of the SPE certificate in driver qualification files
because the driver licensing information system will not include
details about the specific variance. The FMCSA will continue to notify
States about drivers who no longer meet the applicable criteria for a
variance to enable States to identify drivers that should no longer be
considered medically qualified based on the loss of the variance.
Because FMCSA's knowledge of the SDLA contacts is essential to the
information flow from FMCSA to the SDLAs, it is important to establish
a requirement that States maintain accurate contact information with
FMCSA. Therefore, FMCSA adds a new requirement at Sec. 383.73(j)(5)
designating the FMCSA Medical Program as the contact with whom the
SDLAs are responsible for maintaining their up-to-date State contact
information for receiving medical variance information from FMCSA.
The final rule at Sec. 383.73(j)(3) increases the time allowed for
the SDLA to record the medical variance information from the proposed 2
days to 10 days, which makes this rule consistent with the posting
requirements in Sec. 384.225(c).
The terms of a medical variance are spelled out on either the SPE
certificate or on the medical exemption document, which is issued to
the driver by FMCSA. In order for an enforcement officer to verify
whether the driver is in compliance with the medical variance document,
the driver must maintain a copy with him or her when on-duty.
Currently, section 391.49(j)(1) requires drivers (both CDL and non-
CDL) who are granted an SPE to carry the SPE certificate while on-duty,
in addition to the medical examiner's certificate. It also requires
motor carriers to maintain a copy of the SPE certificate in the DQ
file. There is a similar provision on the medical examiner's
certificate requiring a driver with an exemption to have a copy of the
applicable exemption in his or her possession when on-duty. The medical
examiner's certificate by itself has never been valid unless the driver
also presents the exemption document or SPE certificate with the
medical examiner's certificate. This final rule adds clarifying
statements of this existing requirement at Sec. Sec. 391.23(m)(1),
391.41(a)(1)(ii) and (a)(2)(ii).

2. Definitions and Clarification of Terms

a. New Definitions. The FMCSRs have used several different terms
when referring to the electronic record containing a CDL driver's
status and full history maintained by the driver's State-

[[Page 73100]]

of-Record.\4\ In the NPRM, the Agency proposed specific definitions for
each of these terms.
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\4\ The ``State of Record'' is the jurisdiction that maintains
the CDLIS driver record for every CDL driver licensed by that
jurisdiction. See 49 CFR 384.109 and the AAMVA's ``Commercial Driver
License Information System (DCLIS) State Procedures Manual.''
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(1). ``CDLIS driver record,'' ``CDLIS MVR,'' and ``MVR.'' First
Advantage believes that attempting to define the terms ``CDLIS driver
record'' (Sec. 383.5), ``CDLIS MVR'' (Sec. 384.105), and ``MVR''
(Sec. 390.5) may create confusion within the States that have adopted
the FMCSRs. It suggests that the States should be made cognizant of
this change in terminology when developing their SDLA computer systems.
The Minnesota Department of Public Safety suggests using the term
``CDLIS Driver History'' to replace CDLIS MVR.
FMCSA Response: FMCSA retains the proposed definitions it set forth
in the NPRM. The Agency points out that the definition for ``motor
vehicle record'' was established by the Driver Privacy Protection Act
(DPPA) of 1994 (18 U.S.C. 2721 et seq.) that, as amended, adopted the
term ``Motor Vehicle Record'' for the report generated from the driver
record and provided by SDLAs to various parties. The DPPA established
what information SDLAs can and cannot include on the MVR and to whom
they may provide it. Therefore, FMCSA's use of the term ``CDLIS MVR''
in part 384 is intended to be consistent with the 1994 statute, and
provides a complete driver history for CDL holders.
(2). The Terms ``Certified'' and ``Not-Certified.'' Some commenters
were concerned that linking medical certification information to the
CDL raises issues concerning the privacy of driver information. For
example, several drivers and other individuals opposed linking personal
medical information to the CDL because they believed that such
information should not be available without the driver's permission.
FMCSA Response: These comments made it clear that the proposed term
of ``not-qualified'' is confusing to some readers. Some commenters
equate it with indicating that a driver is medically ``unqualified.''
For example, the driver could be physically qualified, but because the
driver failed to obtain a current medical certification he or she is
``not-certified.'' Therefore, to eliminate confusion, the final rule
uses the terms ``certified'' and ``not-certified'' to make the point
that the status indicator on the CDL is not an indicator of any
particular medical information about the driver.
A medical certification status of ``not-certified'' should not be
construed as an adverse action taken against a CDL holder's driving
privileges. The term ``not-certified'' is intended to specifically
avoid any implication of an adverse licensing action against the
driver. For example, the driver may not meet the requirements to hold a
non-excepted, interstate CDL, but not because of any adverse actions
taken against the driver or because the driver is medically unqualified
to drive a CMV in interstate commerce.

3. Medical Examiner's Certificate and Form Issues

a. Proof of Submission to the SDLA. A number of commenters were
concerned about the reliability of the medical certificate SDLA
submission process. OOIDA, Schneider National, Gabbard Consulting, and
the Oregon DOT believe there is a need to establish a mechanism by
which drivers could demonstrate proof of submission of the medical
examiner's certificate so that the driver will be protected if the SDLA
later claims that it did not receive it in a timely manner. The
International Brotherhood of Teamsters (Teamsters) and the National
Propane Gas Association suggest that the SDLA should be required to
provide the driver with a receipt and an acknowledgement that the CDLIS
driver record has been updated. Schneider National points out that some
States, such as California and Indiana, currently provide a receipt to
the driver.
UniGroup, Inc. states that the rule should provide the driver with
an ``electronic'' means of submission (i.e., fax or email). ACOEM
states that a mechanism is needed for drivers to present a copy of
their medical certification to the SDLA if the ME delays submitting the
medical examiner's certificate.
Commenters also want to know how enforcement officials will handle
drivers who provide their new medical examiner's certificate to the
SDLA at the last moment and continue to drive CMVs prior to the SDLA
updating the CDLIS driver record. An electronic check of the medical
certification status could indicate the driver is not-certified. The
California Highway Patrol and Oregon DOT recommend adding an exception
that would allow a driver to obtain and carry a written medical
examiner's certificate for cases when providing the certificate to the
home State cannot be practically accomplished while the driver is on
the road.
FMCSA Response: FMCSA emphasizes that it is the driver's
responsibility to ensure the timely submission of the medical
examiner's certificate to the SDLA and the State's responsibility to
enter the information from the certificate to the CDLIS driver record
in a timely manner after it has been received. This rule does not
impose on the State a requirement to establish a mechanism to
accommodate last-minute submissions of medical certificates. Therefore,
drivers should ensure the submission of their new medical certificates
far enough in advance of the expiration date to provide the SDLA with
sufficient time to process the information. FMCSA agrees that it is
important, in order to standardize this process, to require SDLAs to
provide a receipt to a driver when the driver submits the required
medical examiner's certificate to the State.
FMCSA revised Sec. 383.73(a)(5) and Sec. 383.73(j) to require all
SDLAs to provide drivers with a date stamped original (or copy) of the
submitted medical examiner's certificate as the driver's receipt. For
15 days, the receipt can provide proof for law enforcement officials
and a motor carrier that a driver has submitted a current medical
examiner's certificate to the SDLA, bridging a possible gap between
submission and the posting of the information on the CDLIS driver
record. The availability of the receipt also lowers employers' costs
because they will not need to pay additional funds to obtain a copy of
a driver's MVR during this 15-day period. Because of this receipt
requirement, SDLAs are allowed additional time to post the medical
certification status information to CDLIS driver record, which will
lower the costs for all States.
b. Notice of Pending Expiration of the Medical Certificate. The
Texas Department of Public Safety believes that some drivers might be
charged or cited for operating a CMV without a CDL if they do not
receive timely notification of the pending expiration of their medical
certification from the State. Two States (Wisconsin DOT and New York
DMV), UniGroup, an individual ME, AMSA, Advocates for Highway and Auto
Safety (Advocates), and the Commercial Vehicle Safety Alliance believe
that drivers should be notified by SDLAs in advance that their ME's
certifications are due to expire. The Teamsters emphasize the
importance of notifying drivers well in advance of any punitive actions
being implemented by the SDLA.
J.B. Hunt states that motor carriers should be notified when a
medical certification is going to expire so that drivers can be
contacted more

[[Page 73101]]

expeditiously. Gabbard Consulting notes that a problem exists in
carriers not notifying their drivers within a reasonable time frame
prior to the driver's medical certification expiration date.
FMCSA Response: The FMCSA emphasizes that it is a driver's
responsibility to maintain a current medical certification and to renew
it before it expires. The final rule does not require the SDLA to
notify the driver of a pending expiration of his/her medical
certification. However, the final rule requires the SDLA to notify the
driver of a pending ``downgrade'' of the CDL.
The medical certification status on the CDLIS driver record
includes the expiration date of the medical examiner's certificate;
thus, the carrier and driver will continue to have access, via the
CDLIS MVR, to any pending expiration date of the driver's medical
examiner's certificate. An additional clarification is added to Sec.
391.51(b)(7) setting forth the details on how motor carriers must
maintain a driver's medical certification during the 2-year transition
following the States' implementation of the requirements, which will
occur no later than 3 years after the effective date of this final
rule.
c. Retention of Medical Forms by MEs. In the NPRM, the FMCSA
proposed that MEs should retain the medical examiner's certificate
(Short Form) for the duration of the certification period. The NTSB and
ACOEM voiced concern that the NPRM did not explicitly require MEs to
retain the Medical Examination Report. ACOEM notes that because there
is no requirement in the existing rule that specifies the length of
time that the ME should retain the Medical Examination Report, the ME
should retain the report for at least 10 years in the event there is
ever a need to review previous certifications and medical history.
FMCSA Response: In order to provide clear direction to MEs, FMCSA
revises its original proposal in Sec. 391.43(g)(2) so that medical
examiners must retain the medical examiner's certificate for at least 3
years after the certificate was issued; and adds a comparable
recommendation for the retention period for the Medical Examination
Report for at least 3 years after the examination. The existing 3-year
minimum retention period for the medical examiner's certificate that
applies to employing motor carriers found at Sec. 391.51(d)(4) is the
basis for this provision.
d. Retention of Medical Examiner's Certificate Documentation by
SDLAs. In the NPRM, the Agency proposed that States would be required
to keep for 6 months either the original or copy, including the date
stamp, of the medical examiner's certificate. The majority of
commenters who addressed this issue (13 of 18), including the Minnesota
Department of Public Safety, stated that the retention period for SDLAs
to keep the medical examiner's certificate should be longer than 6
months. CVSA believes that States should retain both a hard copy and an
electronic image of the medical examiner's certificate for as long as
the certificate is valid.
Most of the other commenters who addressed the proposed retention
period of 6 months (UniGroup; North Dakota DOT, an individual ME, J.B.
Hunt, Schneider National, ATA, New York DMV) recommend that the
retention period should be at least as long as the period of validity
of the certification or the potentially longer ``licensing cycle'' of
the current CDL document. This would allow any error to be corrected
quickly and would allow carriers access to information about the
medical certifications of their drivers. The Delaware DOT recommends a
retention period of 5 years in case there are challenges in court. The
NTSB recommends that the certificate should be retained indefinitely
because it may be the only historical record available to verify a
driver's medical status. Although the Wisconsin DOT believes that
retention of the ME's certificate should be for the duration of the
certification period, it contends that the employer or driver should
have the responsibility to retain it, not the SDLA.
The Michigan Department of State and AAMVA point out that
individual States might currently have different requirements. They
recommend that the rule should not set a specific standard but should
provide flexibility. The Pennsylvania DOT believes that a retention
period of 6 months for the SDLAs to keep the certificate would be
acceptable. AMSA did not think that SDLAs should be required to retain
the certificate at all. It believes that the driver or ME should be
responsible for retaining the certificate. The State of Vermont said it
had no comment on this issue, but notes that it makes electronic images
of all documents presented at the time of issuance.
FMCSA Response: FMCSA agrees with the commenters that there is a
need to retain the medical examiner's certificate of all CDL holders
subject to part 391, whether the original or a copy, for a sufficient
amount of time in order to enforce the fraud penalty specified at Sec.
383.73(g). In the interest of minimizing any possible additional burden
on States that this increased retention requirement might impose, and
to be consistent with other retention criteria FMCSA has already
established for medical examiner's certificates, this final rule adopts
a three-year period for SDLAs to retain the medical certificate.
e. Data Quality Control. A number of commenters expressed concern
about the accuracy of the medical certification status data that will
be posted and updated on CDLIS driver records. Based on its experience,
Trailways National Bus System (Trailways) claims that there are chronic
problems with medical certifications and errors on the ME forms.
Trailways expressed concerns about obtaining corrections to information
posted on the CDLIS driver record. The Teamsters, ATA, the New York
DMV, CVSA, and the National Propane Gas Association favor an expedited
process to correct errors and omissions, such as an on-line system that
drivers or employers could access.
Trailways also expressed concern about the impact of data errors,
particularly those that would cause delays to the driver, and
questioned what remedy would be available to the driver. The Minnesota
Trucking Association recommends developing a mechanism for rapid
processing to correct errors that would be available continuously at
all hours.
CVSA suggests that such a data correction capability could be
implemented into their proposed Employer Notification System or into
existing State systems. The Wisconsin DOT believes the Federal
government should have the responsibility to develop a program to
enable employers to access the CDLIS driver record for their employees.
The Delaware DOT suggests that MEs could be electronically linked
to the SDLAs, which would provide a way to quickly correct data errors.
FMCSA Response: FMCSA emphasizes that this rulemaking does not
affect the duties and responsibilities of MEs to accurately complete
the medical examination form and accompanying medical certificate.
There is no reason to believe that MEs will be more prone to
incorrectly certify drivers than is currently the case. SDLAs are
responsible for accurately posting information from the ME's
certificate submitted to them by the driver. If a data entry error is
made, it is SDLAs that are responsible for making prompt corrections,
not the Federal government. If the information on the certificate is
illegible or incomplete, the SDLA may refuse to accept the certificate.

4. Privacy of Information

a. Data on the CDLIS Driver Record. Some commenters believe the
proposed

[[Page 73102]]

rule raises issues concerning the privacy of driver information. Other
commenters, including the Teamsters, Minnesota Department of Public
Safety, New York DMV, OOIDA, and the Delaware DOT, contend that using
the medical examiner's certification alone does not raise privacy
concerns.
The Delaware DOT notes that drivers might be subject to hiring
discrimination from employers because certain types of medical
information displayed on CDLIS MVRs might affect an employer's
insurance costs. Delaware was concerned that providing medical variance
information above and beyond the basic medical certification status
information (i.e., valid or not valid) could create privacy problems.
It suggests that ME offices could add information to the SDLA system
electronically to help maintain privacy. The Minnesota Department of
Public Safety warns that the possible applicability of privacy laws
might force drivers to appear at an SDLA office in person.
The California DMV and National Propane Gas Association warn of the
possibility of computer hackers or of a lost or stolen computer. The
National Propane Gas Association expresses concerns over the security
of the proposed information stored on the CDLIS driver record and
requests that FMCSA take the necessary precautions to safeguard the
information.
OOIDA comments that States should not be allowed to require the
Medical Examination Reports and that MEs should be prohibited from
providing the Medical Examination Reports to motor carriers. It also
believes that safety auditors (investigators) performing a carrier
compliance review (CR) should not ask motor carriers for the driver's
Medical Examination Report. OOIDA further comments that FMCSA must
instruct its authorized safety auditors not to compel motor carriers to
provide more information than motor carriers are required to retain
under the rules.
FMCSA Response: The final rule requires SDLAs to post on the CDLIS
driver record only that information that is found on the current
medical certificate. This is the same information that is available on
drivers subject to the physical qualification standards and that
drivers are currently required to provide to motor carrier employers
prior to their drivers operating CMVs in interstate commerce.
Therefore, this rulemaking will not result in the mandatory disclosure
of sensitive medical information to current employers or prospective
future employers.
OOIDA's recommendation that employers be prohibited from obtaining
the Medical Examination Report is not necessary to prevent infringing
upon the employee's privacy rights. Employers may, as a condition of
employment, require drivers to provide the medical examination report.
Additionally, FMCSA has the authority to investigate whether or not a
driver is medically qualified to operate a commercial motor vehicle in
interstate commerce. If the Medical Examination Report is included in
the DQ file, safety investigators may ask the motor carrier for a copy
of it as part of a motor carrier CR.
In response to OOIDA's recommendation that States should not be
allowed to require the Medical Examination Reports, States may impose
physical qualification requirements that are more stringent than those
provided in this final rule. The provisions of 49 CFR parts 383 and 384
are considered minimum standards (49 U.S.C. 31305(a)).
b. Health Insurance Portability and Accountability Act of 1996
(HIPAA).\5\ One individual and the AAMVA request that FMCSA evaluate
the security standards under HIPAA (42 U.S.C. 1320d-6) as they may
pertain to availability of medical information on the CDLIS driver
record. AAMVA is concerned that SDLAs would have to comply with HIPAA
regulations.
---------------------------------------------------------------------------

\5\ Since the passage of the HIPPA in 1996, health care
providers must be able to provide assurances that the integrity and
confidentiality of the electronic protected health information that
they collect, maintain, use or transmit is protected--and not just
against the risk of improper access, but also against the risk of
interception during electronic transmission.
---------------------------------------------------------------------------

FMCSA Response: This rulemaking concerns the posting to the CDLIS
driver record by SDLAs of information from the medical certificate
which is limited to whether the driver is medically certified, and
whether the driver needs a medical variance. With the exception of the
SPE certificates, FMCSA may only grant medical variances through a
notice-and-comment proceeding in the Federal Register. Therefore, the
information about such variances is already publicly available and the
States should not consider HIPAA as a legal barrier to implementing
this rule.
c. Applicability of the Privacy Act. The Pennsylvania DOT contends
that the effect of the 1974 Privacy Act (5 U.S.C. 552a) is unclear to
them, particularly with respect to whether States must provide a copy
of the submitted medical information to the driver. The Pennsylvania
DOT argues that this rule seems to require the provision of a copy.
However, their existing State law prohibits release of medical
information provided by others for the purpose of evaluating the
medical condition of the driver. They suggest that the issue regarding
applicability of the Privacy Act to States should be resolved before a
final rule is issued.
OOIDA said that FMCSA should institute a Federal System of Records
for CDLIS, which they believe is required by the Privacy Act.
FMCSA Response: The Privacy Act of 1974 (5 U.S.C. 552a), was
created in response to concerns about how the creation and use of
computerized databases might impact individuals' privacy rights. It
safeguards privacy through creating four procedural and substantive
rights in personal data. First, it requires government agencies to show
an individual any records kept on him or her. Second, it requires
agencies to follow certain principles, called ``fair information
practices,'' when gathering and handling personal data. Third, it
places restrictions on how agencies can share an individual's data with
other people and agencies. Fourth and finally, it lets individuals sue
the government for violating its provisions. There are, however,
several exceptions to the Privacy Act. In particular, the Privacy Act
applies to Federal systems of records. The Office of Management and
Budget (OMB) has determined that CDLIS is not a Federal System of
Records subject to the Privacy Act. Because CDLIS is not a Federal
system of records, the Privacy Act does not apply to this database
containing driver history and status information.

5. Authorized Users and Information Access Issues

a. Authorized Users. Under 49 CFR 384.225, access to CDLIS driver
records is limited to ``the following users or their authorized
agents:'' States, the Secretary of Transportation, the affected driver,
and the employing motor carrier or prospective employing motor carrier.
The Maryland State Highway Administration notes that Sec. 384.225(e)
failed to include enforcement agencies as an authorized agent to access
CDLIS information.
Three commenters, including an anonymous person, Advocates, and the
Maryland State Highway Administration, raise questions regarding who
will be authorized to access the driver medical certification status
information on the CDLIS driver record. Advocates request that FMCSA
provide a comprehensive list of the users who will be permitted to
access CDLIS for a driver's MVR.

[[Page 73103]]

FMCSA Response: In response to concerns about CDLIS access, each
group of authorized users has access to certain defined information on
CDLIS, as set out in Sec. 384.225(e). States and the Secretary can
obtain all information on all driver records. However, drivers can only
obtain their own CDLIS driver record. Employers can only obtain records
for drivers employed or being evaluated for employment who have
therefore given their permission to the motor carrier to obtain/access
the record. Drivers and motor carriers must obtain the CDLIS MVR from
the SDLA; they are not permitted electronic access to CDLIS nor is the
CDLIS MVR available via a CDLIS query.
b. Motor Carrier Must Obtain CDLIS MVR. Before allowing a driver to
operate a CMV in non-excepted, interstate commerce, this rule requires
a motor carrier to obtain the driver's CDLIS MVR to verify a driver's
or prospective driver's medical certification status. However, for up
to 15 days from the date on the SDLA's date stamped receipt, the motor
carrier is allowed to instead use the receipt as proof that the driver
is ``certified'' to operate a CMV in interstate commerce. The current
rule requiring employers to check the driving record of new employees
gives the motor carrier 30 days to obtain the CDLIS MVR. Advocates
strongly support the change to require the MVR sooner, because
Advocates thinks that a driver who is required to be medically
certified, but is not, should not be allowed to operate a CMV for up to
30 days. ATA was unsure what the effect of the proposed change would be
on smaller motor carriers and believes that FMCSA should conduct an
additional evaluation. The National Propane Gas Association opposed the
change and urged FMCSA to retain the 30-day period. The Minnesota
Department of Public Safety believes that small business concerns were
sufficiently covered by the analysis presented. The American Bus
Association/Bus Industry Safety Council (ABA/BISC) and OOIDA believe
that this provision for carriers to obtain the CDLIS MVR would have
adverse impacts on small business truckers and bus companies.
An individual ME suggests that the rule should require States to
make the proposed CDLIS MVR information available more readily, so that
the carrier can make timely hiring decisions. Schneider National
suggests that the rule should assure carrier access to the CDLIS MVR
data through third parties.
FMCSA Response: The current motor carrier requirements for
documenting driver medical certification, found at Sec. 391.41(a) and
Sec. 391.51(a)(7), are that the medical examiner's certificate must be
placed in the DQ file before the driver is allowed to operate a CMV in
interstate commerce. Thus, only the method of documentation for this
requirement is modified by this rule. The basic requirements remain the
same--the employer may not allow a driver to operate a CMV without
proof that he or she is physically qualified to do so.
It is FMCSA's opinion that allowing 30 days to obtain a CDLIS MVR
is a remnant of the time when requests for, and provisions of, MVRs
were processed by paper. Electronic access, however, is now common-
place, so the carrier should receive the MVR sooner than 30 days from
the SDLA's receipt of the driver's medical certification. On average,
FMCSA estimates that it now takes approximately 4 days to obtain those
results. FMCSA concludes that it is possible to obtain a CDLIS MVR
within that same 4-day period, so our implementation of a 30-day time
frame to meet this requirement should be sufficient.
There are various third party commercial services available to
motor carriers that obtain MVRs electronically from the SDLAs. For
small carriers that make the business decision not to use one of these
commercial services, it is possible that it may be more difficult to
obtain a CDLIS MVR from an out-of-state SDLA within 4 days. However, it
is likely the majority of drivers hired by such small motor carriers
are going to be licensed in-State, so this requirement is unlikely to
be a major impediment to the normal operations of these small entities.

6. Impacts

a. Impacts on the States. As set forth in the NPRM, FMCSA
originally estimated that the requirements of the rule would cost the
States $18.3 million over the first 3 years of implementation and $4.0
million per year every year thereafter. Several commenters expressed
concern about the financial burden the rule would impose on the States.
Individual State driver licensing agencies, including Virginia,
Pennsylvania, Wisconsin, New York, California, and Delaware, provided a
range of estimates for associated costs pertaining to this rule.
The Alabama Department of Public Safety, Missouri Department of
Revenue, Nebraska DMV, Kentucky Division of Driver Licensing, Texas
Department of Public Safety, and the National Propane Gas Association
did not provide specific estimates; rather they described the types of
costs that States would incur, including hiring and training additional
staff for reviewing submissions, entering data into the CDLIS driver
record, obtaining office space and equipment, mailing multiple
notifications, retaining certifications, and making CDLIS changes.
These commenters agree that these expenses would constitute a large
ongoing operational burden. The Alabama Department of Public Safety,
Virginia DMV, Nebraska DMV, Oregon DOT, Michigan Department of State,
Texas Department of Public Safety, and CVSA all believe the Federal
government should bear the cost of this rule, including the ongoing
operations costs. The Indiana Department of Revenue believes, however,
that it would have no difficulties implementing the proposed changes,
as their system exceeds what is proposed by the FMCSA.
Some commenters specifically request that FMCSA revisit its cost
estimates based on the comments to the docket, including the Oregon
DOT, which states the actual implementation costs will be significantly
higher than the amounts estimated by FMCSA. Delaware recommends sending
out surveys to ascertain the expected cost impact for staff and
resources. Schneider National similarly asked for the cost analysis to
be revisited.
The California DMV, Minnesota Department of Public Safety, Oregon
DOT, National Propane Gas Association, and Virginia DMV point out that
estimates are difficult to develop because the exact requirements of
the proposal have not been finalized. They believe FMCSA's calculation
was especially low regarding its estimate of new ongoing operating
costs, for which the Agency will not be able to provide any financial
assistance to the States.
The Delaware DOT comments that applicants who physically drop off
their certifications would put an undue strain on State staff and
resources. The Alabama Department of Public Safety said the additional
burden of a paper-based system is cost prohibitive and labor intensive.
The Minnesota Department of Public Safety said that the State comments
on impacts contained in the FMCSA report \6\ on concept models
accurately expressed the impacts that States would have to address.
---------------------------------------------------------------------------

\6\ ``Medical Certification Requirements as Part of the CDL,''
October 2007, prepared for FMCSA by the North American Driver Safety
Foundation.
---------------------------------------------------------------------------

FMCSA Response: In response to these State comments, FMCSA
conducted a survey among several

[[Page 73104]]

States in an effort to re-evaluate the costs of its original proposal
to determine if the Agency's calculation was especially low (73 FR
36489; June 27, 2008). The explanation of the methodology used for
gathering data from the States and its analysis are in the docket.
Based on its new analysis, FMCSA agrees that the Agency underestimated
the costs to the States. The revised estimates for State costs are
explained in the Regulatory Analysis section contained later in the
preamble to this final rule. A complete final regulatory analysis is
located in the docket.
b. Impact on Licensing Renewal Procedures. The Alabama Department
of Public Safety notes that the only CDL holders who return to the SDLA
for renewals are those CDL holders who carry a Hazardous Material (HM)
endorsement; all other CDL drivers renew their CDLs at the Office of
the Probate Judge. Alabama subsequently asked which organization would
be responsible for checking the validity of the medical certification
status upon renewal.
FMCSA Response: In the final rule, the State must verify that the
medical certification status is ``certified'' on the CDLIS driver
record before renewing the CDL. It does not matter whether the SDLA or
another designated agency or agent (e.g., Office of the Probate Judge)
performs the renewal, the CDL compliance requirements remain the same.
In the regulatory text of this rule, FMCSA will use the more generic
term ``State,'' rather than SDLA, to encompass all State entities and/
or State licensing agencies that are responsible for the CDL issuance,
renewal, transfer or update.
c. Impacts on Drivers. In the NPRM, the FMCSA estimated that the
medical and CDL rulemaking requirements would cost drivers a total of
$3.22 million per year once the rule is implemented. A number of
commenters believe the rule has additional impacts on drivers that have
been underestimated by FMCSA. Several individuals, employers, and
others, including the Virginia DMV, Texas Department of Public Safety,
and the National Propane Gas Association, express their concern about
the burden for drivers to travel to the SDLA and the extra costs for
drivers to obtain new CDLs or medical certifications. The National
Propane Gas Association believes that there will be an increased burden
on drivers who must correspond with the SDLA more frequently than in
the past. The Teamsters allege that drivers will have to take time off
work and will be charged fees to obtain a copy of their CDLIS MVR.
Therefore, at a minimum, the Teamsters contend that a copy of the
driver's updated CDLIS driver record should be provided at no cost to
the driver.
One individual driver points out that the proposed rule did not
consider the fact that many drivers often take time off from driving as
a CDL driver. They will now be forced to maintain medical certificates
to keep their CDL active, even when they are not driving CMVs for a
living. Gabbard Consulting believes that some drivers do not obtain
physical examinations for reasons other than those involving some
unqualifying condition.
The National Propane Gas Association claims that SDLAs are likely
to add a new fee to pay for receiving and posting the medical
certification information, on top of the fee drivers already have to
pay to obtain an HM background check. The Association believes the rule
would also contribute to further delays for their drivers who are being
approved to operate CMVs with an HM endorsement. Such delays, they
contend, are particularly troublesome during the winter months. The
Minnesota Trucking Association questions whether drivers would have to
pay renewal fees each time the medical certification is updated.
FMCSA Response: The final rule does not increase the frequency with
which drivers must renew their medical certificates or place
restrictions on the States that would preclude the use of mail, fax, or
electronic submission of medical certificates. Therefore, drivers would
only be forced to go to the SDLA office if the State requires the
medical certificate to be hand-carried to the licensing agency.
Furthermore, the rule does not prevent drivers from requesting a copy
of their medical certificates from the ME at the time of the exam and
prior to submission of the certificate to the SDLA.
With regard to fees that the SDLAs may charge drivers for
processing the medical certificates, FMCSA does not require or prohibit
the States from passing the costs of implementing this rule on to
interstate CDL holders. Each State has discretion to determine the most
appropriate means of obtaining funds to cover the implementation costs
of this rule, based upon its particular circumstances. FMCSA does not
expect that any additional fee charged drivers as part of providing
their medical examiner's certificate would be large or likely to
significantly impact the availability of drivers on our nation's
highways.
The requirement for non-excepted, interstate drivers to maintain
their medical certification if they have a CDL is not new. For
interstate driving, the current provisions of Sec. 383.71(a)(1) state
that an applicant: ``* * * shall certify that he/she meets the
qualification requirements contained in part 391 of this title. A
person who operates or expects to operate entirely in intrastate
commerce * * * is subject to State driver qualification requirements. *
* *'' Thus, drivers who self-certify to driving in non-excepted,
interstate commerce and, for whatever reason, fail to maintain a
current medical certificate on file with the SDLA, are not eligible to
hold an interstate CDL.
Also, a non-excepted, interstate CDL holder is currently required
to maintain his or her medical certification. This is a requirement
whether or not the individual is working as a driver requiring a CDL.
This rulemaking is merely putting into place recordkeeping procedures
so that licensing and enforcement personnel can detect drivers who are
operating CMV in interstate commerce without the proper medical
certification; and, who are required to have it.
The background check for drivers seeking an HM endorsement takes up
to 60 days. Posting the medical examiner's certificate information
should easily be accomplished during the time the background clearance
for an HM endorsement is being processed and would not cause any delay
in issuance of the HM endorsement or the CDL.
d. Cost Impacts on Carriers. Greyhound, ABA/BISC, and Peter Pan Bus
Lines point out that, although employers currently receive medical
certificates from MEs without charge, under the new rule, employers
would have to request the certification status from the State and would
be charged for this service. ABA/BISC adds that the carrier would now
need to query the SDLA for these drivers' records. Under the current
standard, the driver is required to provide the ME certificate to the
motor carrier, which incurs no additional cost. The commenters contend
that the additional costs across the entire driver population could be
well above those estimated by FMCSA in the NPRM; therefore they must be
factored into any final cost/benefit analysis. The Minnesota Trucking
Association believes that license fees and transportation taxes would
increase the burden on consumers.
Motor carriers also note that FMCSA's cost estimates did not
include the implications of liability and insurer rate changes based on
a changing operating climate, where carriers have less management
oversight and control.

[[Page 73105]]

FMCSA Response: Motor carriers are currently required to obtain the
CDLIS MVR for all interstate drivers as part of the hiring process and
annually thereafter. Motor carriers could continue to use their
existing processes for keeping track of their drivers' medical
certificate expiration dates. FMCSA does not believe motor carriers
would rely solely on periodic driver record checks to determine when
individual drivers' medical certificates expire. Such an approach would
be no more efficient or effective than manually reviewing individual
driver qualification files to locate such information, which would
leave open the possibility that the employer may not be aware of a
soon-to-be expired medical certificate until it is too late to prevent
a violation of the safety regulations. The revision to Sec. 391.23
requires motor carriers either to perform the existing initial check
with the SDLA and receive the CDLIS MVR, or have the driver obtain a
new medical examiner's certificate, provide it to the SDLA, and receive
a date-stamped receipt that is good for a 15-day period of
documentation of certification, before allowing the driver to operate a
CMV.
If a motor carrier uses the driver's receipt to fulfill the DQ file
requirement during the 15 days allowed, a small possibility exists that
the motor carrier might have to obtain a second MVR. This would happen
if the SDLA had not yet posted the medical status information when the
carrier obtained the first one. However, motor carriers could simply
delay obtaining the CDLIS MVR until close to the 15-day maximum.
Therefore, only a very small percentage of carriers would actually have
to obtain a second CDLIS MVR. FMCSA has added this small increase in
motor carrier cost to its evaluation.
If the certificate expires during the year, between required annual
checks, and the employer is not participating in a subscription service
that provides driver record update information for that driver, then
the employing motor carrier would have to make an additional request
for a CDLIS MVR and pay for it to document in the DQ file that the
medical certification status was renewed. This circumstance results in
an increased cost and FMCSA has added it to its regulatory evaluation.
FMCSA points out that Sec. 390.3(d) makes clear that motor
carriers continue to have the same authority to require and enforce
more stringent conditions of employment on potential CDL drivers. The
medical certification status information on the CDLIS MVR does not
prevent the motor carrier from applying a more strict standard
regarding whether that employee is allowed to operate a CMV for that
motor carrier. Therefore, this rule should not change the liability of
the motor carrier or result in increased insurance rates.
e. Medical Examiner Provides Certificate to Carriers; and Employer
Oversight. A significant issue for motor carrier commenters' was their
objection to the removal of the regulatory language that allows the
medical examiner to provide to the motor carrier a copy of the medical
examiner's certificate. Advocates contend that deleting this regulatory
text will create a hiatus of widely varying length between the time a
medical certificate is issued and the time when an employing motor
carrier receives the CDLIS information indicating whether the driver in
question is certified.
Trailways, the NTSB, J.B. Hunt, Lancer Insurance, AMSA, and ATA
were concerned that the rule would shift responsibility for
documentation of driver medical eligibility from the motor carrier to
the SDLAs. They believe that motor carriers need to have the continued
capability of ensuring that their drivers have valid medical examiner's
certifications. Peter Pan Bus Lines was also concerned over their
perception that the NPRM would require motor carriers to entrust a
major component of their driver safety programs to the States.
Greyhound Lines, Inc. states that the proposed rule should not be a
substitute for employer control. It claims that removing the
recommendation for MEs to provide certificates to employers will
inevitably weaken the employer's and the State's ability to keep
unqualified drivers off the road.
Trailways claims that administration of the ME certifications
requirement by the motor carrier would be far more likely to assure
safe, qualified drivers than administration by a State agency.
Trailways urged that carriers should be able to continue to provide
oversight of driver qualifications.
The ABA/BISC requests that FMCSA make it clear that motor carriers
are allowed to continue to manage their drivers' medical qualification
programs and obtain ME certification documents from the medical
provider. An individual ME stated that motor carriers should continue
to be involved in the review of the ME's certificates to monitor for
errors.
FMCSA Response: In response to the comments, and for purposes of
clarity, the final rule revises the proposed rule and reinstates Sec.
391.43(g)(1), which explicitly allows the medical examiner to provide
to the motor carrier a copy of the certificate, upon request. Any
agreement between the ME and the employing motor carrier to provide
medical certification data to the employer is based strictly on a
business arrangement between the two parties and may continue under
this rule.
If the motor carrier obtains medical examiner's certificates from
MEs, the motor carrier can compare the certificate received from the ME
with the date stamped receipt the driver obtained from the SDLA. In
this manner, the carrier can verify that the receipts obtained from
their drivers are not fraudulent.
The final rule does not relieve motor carriers of their
responsibility for ensuring that their drivers are medically certified.
The FMCSRs continue to require that a motor carrier must ensure each
driver subject to part 391 is medically certified. The integration of
medical certification status as part of the CDL application process is
intended to ensure that individuals cannot obtain or renew a CDL for
non-excepted, interstate operations unless the State has been provided
with proof of the driver's medical certification.
f. Appearance of the FMCSA Proposal. The Minnesota Trucking
Association, UniGroup, Greyhound, J.B. Hunt, Peter Pan Bus Lines, and
Landstar Systems were concerned that the rule would give SDLAs new
authority; and that it would cause carriers to incur liability for
accidents caused by drivers who are not medically certified, even if
the State had not yet downgraded the CDL.
FMCSA Response: Today's final rule does not alter carriers'
liability for crashes involving their drivers--it only changes the
procedures for obtaining the required documentation to ensure current
medical certification of non-excepted, interstate CDL holders. The rule
at 49 CFR 391.51(b)(7) continues to require the motor carrier to obtain
and place medical certification information in the DQ file before
allowing the driver to operate a CMV in interstate commerce. Except for
the first 15 days, when a motor carrier may use the driver's date-
stamped receipt, under this rule, the documentation needed is the
already required CDLIS MVR placed in the DQ file.

7. Posting, Updating, and Downgrading Information

a. SDLA Posting of the Medical Certificate. When the SDLA receives
the medical examiner's certificate, the State will date stamp the
certificate and post the required information onto the CDLIS driver
record. Many State agencies--including the Alabama Department of Public
Safety (DPS), California DMV,

[[Page 73106]]

Missouri Department of Revenue, North Dakota DOT, Minnesota DPS,
Pennsylvania DOT, Missouri DOT, Wisconsin DOT, Oregon DOT, New York
DMV, Texas DPS, Vermont DMV, and Delaware DOT; plus AAMVA; an
individual ME; and CVSA--argued that the proposed period of 2 business
days is insufficient due to the time needed to sort and route the mail,
review the information submitted, and obtain additional information if
the certificate were incomplete or illegible. These commenters believe
that up to 10 days is needed and that funding should be provided for
State staffing and programming.
On the other hand, several commenters, such as the Teamsters, note
that the number of days for posting the information should be kept to a
minimum, but that States should have adequate time to ensure that the
data are accurate. OOIDA believes that 2 business days should not be a
problem if States are diligent to post the information. First Advantage
argues that no more than 2 business days should be allowed for posting
because drivers should not be penalized for administrative delays.
FMCSA Response: Under item 3a, Proof of Submission to SDLA, above,
the Agency describes its decision to require the SDLA to give the
driver a date stamped receipt as proof of his or her submission of the
medical examiner's certificate to the State. FMCSA believes that the
receipt serves as the interim method for verifying the driver's medical
certification status information that is available to users, such as,
enforcement personnel and employers, during the time the information is
being posted to the CDLIS driver record. In view of the Agency's
decision to allow the receipt to serve for 15 days as verification of
the driver's medical certification, including the concerns expressed by
commenters of possible administrative delays, FMCSA will increase the
time period for SDLAs to post this information on the CDLIS driver
record. Therefore, FMCSA is extending the maximum time allowed for the
SDLA to post the medical certification status data on the CDLIS driver
record from 2 business days to 10 business days to allow States
sufficient time to make the CDLIS MVR available to users.
b. Updating the Driver Record to ``Not-Certified.'' If the medical
certification expires, the States will be required within 2 business
days to update the certification status on the CDLIS driver record to
show the driver as ``not-certified.'' Five State agencies (Minnesota
Department of Public Safety, Virginia DMV, Pennsylvania DOT, Michigan
Department of State, and Vermont DMV) and AAMVA commented that 2
business days is an unreasonably short period for updating the status.
Some of them recommended a longer period, up to 10 days.
AMSA was concerned that 2 business days might be insufficient time
for a carrier to contact a driver about an expired medical certificate
to determine whether new medical information had been submitted but not
reflected in the State's system. UniGroup and an individual ME,
however, believe that a 2-day period for SDLAs to update a driver's
status to ``not certified'' is acceptable.
FMCSA Response: FMCSA is aware that some SDLAs still use scheduled
runs of batch programs to periodically process their entire driver
database. The batch program periodically performs the maintenance
function to detect and update expired medical certifications to a
status of ``not-certified.'' After considering these comments to the
docket, and taking notice of a comparable updating provision found at
49 CFR 384.225(c) for recording conviction information within 10 days,
FMCSA increases the time for accomplishing the update of expired
medical certification to a status of ``not-certified'' to the CDLIS
driver record from 2 business days to 10 business days.
c. Downgrading the CDL by the SDLA. Upon expiration of a driver's
medical certification, if the driver's self-certification of driving
type remains non-excepted, interstate, the State must initiate a
downgrade of the CDL to be completed within 60 days of the driver
becoming and remaining ``not-certified.'' Six State agencies (North
Dakota DOT, Minnesota Department of Public Safety, Virginia DMV, Oregon
DOT, Vermont DMV, and Delaware DOT) agree that 60 days is a reasonable
period of time to downgrade the CDL. The Missouri Department of Revenue
does not think that drivers should be downgraded automatically, because
they might be downgraded prior to receiving notification. The Delaware
DOT warned, however, that 60 days might not be sufficient if the driver
challenges the action. Other commenters, including the Alabama
Department of Public Safety, UniGroup, an individual ME, ACOEM, the
NTSB, Advocates, Schneider National, the New York DMV, and First
Advantage, argue that 60 days is too long a period to allow CDL holders
to drive if they are not medically certified. Instead, an individual
ME, Advocates, and First Advantage suggest a shorter 30-day period to
downgrade the CDL.
The Missouri Department of Revenue suggests a timeframe, such as 15
or 30 days following the expiration of the medical certification, to
notify the driver of a pending downgrade of status. ATA believes that a
disqualification [downgrade] provision ``should only be implemented if
there is a way to remind drivers and carriers in advance of the driver
becoming'' not-certified. The Louisiana Department of Public Safety
(DPS), ATA, and the Texas DPS said that SDLAs should be responsible for
immediately notifying drivers of any change in their status to ``not-
certified'' based on their medical examiner's certificate expiring, as
well as adequate and timely notification to drivers ``out on the
road.''
The Delaware DOT is concerned about suspending a driver's non-
commercial license privilege for failure to have a valid medical
certificate, since the license is a necessity in today's society. The
Maryland State Highway Administration notes that FMCSA's ``Diagram 2:
Proposed System,'' as contained in the NPRM, fails to accurately
reflect the flow of the processes involved--CDLIS does not know if the
driver has applied for a CDL, nor does it issue a CDL. The Maryland
State Highway Administration requests that FMCSA develop a procedure
for downgrading a CDL and posting the updated status on the State's
CDLIS driver record.
FMCSA Response: The FMCSA continues to believe that giving the SDLA
a period of up to 60 days for downgrading allows time for whatever
State processes are required to meet this requirement, including time
for the driver to obtain a new certificate if he or she desires to do
so. To make the process easier for both SDLAs and drivers, and given
the requirements set forth in this final rule, FMCSA revises the
definition for downgrade under section 383.5. The CDL privilege must
now be removed due to the driver's failure to update his or her medical
certification, not because the driver has been disqualified for traffic
convictions.
States will need to develop procedures both to update the CDLIS
driver record to reflect that the driver is ``not-certified'' within 10
days and downgrade the license within 60 days.
In response to Missouri's concerns, this rule does not create a
requirement for an automatic downgrade for CDL drivers. The 60-day
period for the State to downgrade a CDL is implemented to allow the
State to use whatever process it prefers to accomplish the downgrade.

[[Page 73107]]

Delaware's concern about this rule requiring suspension of a non-
commercial license is unwarranted. This rule does not apply to non-CDL
driving privileges.
In the NPRM, the Agency did not propose that SDLAs notify drivers
about the pending expiration of medical examiners' certificates. The
rule only requires notification for a pending downgrade of the driver's
CDL.

8. Driver Penalty for Presenting a Fraudulent Certificate

The Missouri Department of Revenue and Texas Department of Public
Safety note that the NPRM does not define penalties for the driver
presenting a fraudulent certification.
FMCSA Response: Section 383.73(g) currently provides a minimum
penalty for drivers for submitting a fraudulent medical examiner's
certificate. If at any time a State determines the driver has falsified
information required under Sec. 383.71(a), the State must suspend,
cancel, revoke or otherwise disqualify the driver's CDL for at least 60
days. Knowingly presenting a fraudulent certificate would be
falsification of physical qualification. This is why the State is
required to keep a copy of the certificate for 3 years after its
issuance as proof of the driver's medical certification to enforce
imposing such a penalty.

9. Intrastate CDL Drivers

Some commenters believe that the medical certification information
requirements for the CDLIS driver record being established by this rule
for non-excepted, interstate CDL holders should also apply to CDL
holders operating in intrastate commerce. Because some crashes involve
State-certified CDL holders who operate solely in intrastate commerce,
the Minnesota Trucking Association contends that the final rule should
apply to CDL holders conducting intrastate operations.
Maryland commented that FMCSA has failed to capture all of the
drivers subject to its jurisdiction. It argues that 49 CFR 390.3(b) is
applicable to all individuals operating a CMV in interstate or
intrastate commerce. Maryland further believes that use of the term
``downgrade'' and its application in the NPRM indicate that FMCSA is
only concerned with interstate CDL drivers and is failing to address
intrastate CDL drivers. It points to the use in the NPRM of the term
``tolerance guidelines'' found at Sec. 350.341, relative to Motor
Carrier Safety Assistance Program (MCSAP) funding, as adding more
uncertainty to the issue of intrastate drivers' physical qualification
requirements. Maryland requests that FMCSA clarify its position in this
matter.
FMCSA Response: In the legal basis section of the NPRM and this
final rule, the Agency explained that the medical certification
requirements found in part 391 may only be applied to CDL holders who
both: (1) Operate CMVs as defined in 49 CFR 383.5, and (2) are subject
to the physical qualification requirements under 49 CFR part 391. The
Agency further stated that FMCSA's statutory authority to require
medical certification documentation that the driver is physically
qualified only extends to non-excepted, interstate drivers. Therefore,
only if a CDL driver is required under part 391 to obtain a medical
certificate does FMCSA have the authority to require that driver to
provide the medical certificate to the SDLA as documentation of his or
her physical qualifications.
With regard to Maryland's comment that the NPRM did not fully
explain the State's obligations under the MCSAP grant program, the
FMCSA takes this opportunity to clarify that issue.
Currently, all 50 States and the District of Columbia participate
in MCSAP and receive Federal grants to support the adoption and
enforcement of compatible motor carrier safety regulations.\7\ As a
condition of receiving the Federal grants, States must adopt and
enforce compatible State regulations applicable to certain intrastate
drivers (see 49 U.S.C. 31102(a) and 49 CFR part 350). Section 350.339
concerning tolerance guidelines allows limited deviations for such
State regulations to be considered compatible. Essentially, the State
regulations must be identical to, or have the same effect as, the
FMCSRs. Additionally, variances are allowed for the physical
qualification standards, as specified at Sec. 350.341(h). Section
350.201(a) indicates that the requirement for compatibility includes
the provisions in parts 390 through 397. Therefore, States will be
expected, as a condition of receiving MCSAP grant funds, to revise
their medical certification rules applicable to their intrastate CDL
drivers to be compatible with FMCSA changes made to those provisions by
this rule. There is no requirement under MCSAP for States to similarly
adopt State laws or regulations for intrastate drivers compatible with
parts 383 and 384. FMCSA does not have the authority to require that
intrastate medical certification status information required by States
be placed on the CDLIS driver record. However, the States are certainly
free to do so.
---------------------------------------------------------------------------

\7\ While all 50 States and the District of Columbia participate
in MCSAP, 2 States get only 50 percent of their grant funds because
they have not adopted nor enforce State rules that are completely
compatible with FMCSA regulations and allow variances for intrastate
commerce.
---------------------------------------------------------------------------

10. Excepted Drivers

A number of commenters were concerned that the NPRM did not
adequately address how the State enforcement officials would identify
``excepted'' drivers. Some commenters suggest that the information be
available on the driver's record. The Alabama Department of Public
Safety and the Minnesota Trucking Association express concern that the
NPRM did not explicitly and clearly address documentation requirements
for these excepted drivers. For example, Alabama asked how law
enforcement would know if a driver (who self-certified to operating in
excepted commerce) got a CDL, and then drove for a private carrier (who
is not in an excepted industry) without obtaining required medical
certification. For excepted drivers, as well as for those drivers who
self-certify they operate only intrastate, the Missouri Department of
Revenue suggests that the rule be modified to include specific
procedures for SDLAs to determine and record the driver self-
certification. Missouri further asks whether such drivers are
completely free to self-certify that they are excepted, or whether the
SDLAs must retain some type of verification of the exception.
To aid law enforcement, the Missouri DOT believes that the driver's
SDLA should include the medical certification status information
``excepted'' as part of each CDL driver's record. CVSA suggests that
the driver's self-certification of exception should be made part of
both the license document and the CDLIS MVR.
CVSA states that it is critical that all SDLAs, as well as law
enforcement agents, be made fully knowledgeable about the applicability
provisions and industry exceptions that are part of the FMCSRs and have
the capacity to accurately evaluate them. ATA expressed concern that
SDLAs would take many years to come into compliance with this proposed
``national standard.'' It doubts that there would be a uniform and high
degree of licensing and enforcement conformance to the part 391
applicability requirements.
FMCSA Response: FMCSA emphasizes that this rulemaking does not
change the application of the medical standards. Nothing in this
rulemaking would increase the burden

[[Page 73108]]

on enforcement officials to determine the applicable rules during an
inspection. Regardless of what type of operation the driver may have
claimed at the time the CDL was issued, enforcement personnel would
make a determination based on what the driver is actually doing at the
time of inspection.
However, the FMCSA acknowledges the commenters' concerns and
revises proposed Sec. 383.71(a) to add additional categories,
intrastate drivers (both excepted and non-excepted), listing all four
self-certification possibilities:
Interstate and subject to 49 CFR part 391;
Interstate, but operating exclusively in transportation or
operations excepted from part 391 under 49 CFR 390.3(f), 391.2, 391.68,
or 398.3;
Intrastate and subject to State driver qualification
requirements; or,
Intrastate, but operating exclusively in transportation or
operations excepted from all or part of the State driver qualification
requirements.
As noted above in the Legal Basis section of the preamble, this
rule only applies to non-excepted, interstate CDL drivers who operate
CMVs in interstate commerce. The self-certification that drivers make
at the State level, either when applying for, renewing, transferring or
upgrading their CDL, or as otherwise required by this final rule, will
determine whether they are required to comply with the medical
certification provisions set forth in this rule.

11. CDL Advisory Committee (Task Force)

Section 4135 of Safe, Accountable, Flexible, Efficient
Transportation Equity Act A Legacy for Users (SAFETEA-LU) mandates that
FMCSA convene a Task Force to review the CDL program and provide
recommendations for its improvement. The Task Force examined many
aspects of the CDL program. The members discussed this rule in their
meetings, and made certain recommendations on the Agency's proposal.
Initially, some members of the Task Force thought the National
Registry for Certified Medical Examiners (NRCME) (see 49 U.S.C.
31149(d)) should be implemented before this rule becomes final.
However, based on advice from the designated Federal official for the
Task Force that the medical program is outside the charter of the Task
Force, they confined their recommendations on this rule to an
alternative approach within the CDL program for dealing with the
requirements of section 215 of MCSIA.
Task Force members recommended that, as part of CDLIS
Modernization, FMCSA should implement a central Web-based application
for electronically receiving, screening, and forwarding medical
examination reports to the licensing State. This application would be
used by MEs who choose to be included on an FMCSA-established List of
Medical Examiners (List). The only requirements for an ME to be added
to the List would be that the ME must: (1) Document that he or she
meets the definition of medical examiner found at Sec. 390.5; (2)
agree to abide by the requirements of the List, including the
requirement that the ME may be removed from the List by FMCSA (e.g.,
for consistently submitting faulty medical examination reports); and
(3) submit electronic reports of all medical examinations (pass and
fail) to the CDLIS Web application. The CDLIS application would then
electronically send the medical certification status information to the
licensing State as a CDLIS transaction. Such an electronic system would
help achieve more uniform compliance among the States, and would reduce
State operating costs by virtually eliminating the staffing impact on
States. It would address the driver fraud problem by removing the
opportunity for drivers to commit fraud by creating false ME
certificates. Additionally, such an approach could capture information
about failed physical examinations that occur before the expiration
date of the current certification and highlight ``medical examiner
shopping,'' when multiple electronic certificate reports for a driver
are received from different medical examiners. Establishment of the
authorized list of MEs, Task Force members believe, together with the
CDLIS Web application for ME submission of medical examination reports,
would help prevent virtually all driver fraud and abuse, including
fraudulently creating and submitting ME certificates, shopping for a
favorable ME, and identifying MEs with patterns of problem
certifications. The Task Force members also believe that the FMCSA list
should be a precursor, or perhaps Phase I, of the SAFETEA-LU required
NRCME. The medical program requirement regarding the qualification of
medical examiners would be left to the forthcoming NRCME required by 49
U.S.C. 31149(d).
FMCSA Response: Both policy recommendations--that the Agency
develop a CDLIS Web application for MEs to electronically submit
medical examination reports as part of CDLIS modernization and that
FMCSA establish a list of MEs--are outside the scope of this
rulemaking. However, these concepts recommended by the Task Force may
be considered within other rulemaking initiatives.
b. Access to Electronic Communication in the Field. Several
commenters express their concern that all enforcement officers do not
have access to the necessary equipment to make electronic inquiries to
verify a driver's medical certification status. Pennsylvania DOT states
that it is improbable that all levels of enforcement are capable of
performing electronic verifications in the field. Because of the cost
and time involved, Pennsylvania DOT believes it is not feasible to
provide all enforcement personnel with the necessary equipment and
telecommunications capabilities required to make electronic inquiries.
The Alabama Department of Public Safety states that a large number of
field officers do not have access to CDLIS or NLETS. Similarly, an
individual ME observed that electronic verification might be
unrealistic for local, regional, and municipal officers who do not have
access to the equipment due to budget constraints. Additionally, the ME
urged that training should be provided to those individuals authorized
to access the driver medical information from CDLIS.
FMCSA Response: All States are required to certify, as part of
MCSAP, that they are checking CDLs. Generally, CMV enforcement is not
performed by all enforcement personnel. The vast majority of CMV
enforcement efforts--even at the regional, local, and municipal
levels--are performed by persons on designated, trained teams. FMCSA
believes it is fairly common that members of such teams have access to
electronic communications, through either NLETS or some version of
FMCSA's CDLIS-Access software provided to MCSAP enforcement personnel.
With FMCSA's October 26, 2006, MCSAP policy memorandum encouraging
traffic enforcement without a vehicle inspection, some CDL checks via
NLETS will be made via radio connection to a dispatcher, rather than
via a terminal in the patrol car. Despite this, FMCSA is aware that
enforcement personnel who do not have certain specific equipment can
still make a CDL check using their police radio dispatcher services.
c. Out-of-Service Violation. J.B. Hunt and ATA generally believe
that for non-excepted, interstate drivers, some type of penalty for
driving without a current medical certification is necessary and should
be severe enough to discourage

[[Page 73109]]

unsafe behavior. CVSA expressed concern that a driver might attempt to
circumvent providing a medical examiner's certificate by self-
certifying to operate only in excepted or intrastate commerce. It then
asks how enforcement personnel will know what actions to take. CVSA
argues that such drivers could circumvent the medical certification
requirement and continue to operate CMVs without meeting the
qualifications standards of the FMCSRs.
At a minimum, CVSA recommends that CDL drivers found operating in
non-excepted, interstate commerce with a medical certification status
of ``not-certified'' should be placed out-of-service. J.B. Hunt also
advocates that operating a CMV with a ``not-certified'' status should
be made an out-of-service violation, noting that placing a driver out-
of-service creates a significant incentive for the motor carrier not to
allow the driver to operate a CMV when not medically certified. It
comments further that making a medical certification status of ``not-
certified'' an out-of-service violation would positively influence
safety, since carriers have a vested interest in reducing out-of-
service violations. J.B. Hunt points out that management's time is
consumed by performing an investigation and corrective action--when a
load is delivered late, the carrier's profitability is affected.
FMCSA Response: FMCSA agrees with CVSA and J.B. Hunt that CDL
drivers and motor carriers need some type of deterrent from attempting
to circumvent either the medical certification requirement for non-
excepted, interstate drivers, or the restrictions of excepted and
intrastate self-certification. In response to the comments to the
docket, including those from CVSA and J.B. Hunt, FMCSA notes that the
final rule adds explicit requirements at Sec. 391.41(a)(3)(i) and
(ii), specifying the medical certification requirements for non-
excepted, interstate CDL drivers. There are already civil and criminal
sanctions applicable to a driver operating a CMV without a required
medical certificate. See 49 CFR 390.37. Where there is a substantial
likelihood of serious injury or death, such a driver can be ordered
out-of-service as an imminent hazard. See also 49 CFR 386.72(b).
d. Disqualification Offense. Many commenters on the issue of
drivers operating without the required medical certification favored
implementing a disqualifying offense under Sec. 383.51. The California
DMV, Maryland State Highway Administration, Minnesota Department of
Public Safety, Wisconsin DOT, Oregon DOT, Advocates, New York DMV,
First Advantage, CVSA, Vermont DMV, and an individual medical examiner
agree that this offense should included under the disqualification
rules. Other commenters, such as J.B. Hunt and ATA, believe that there
should be a penalty severe enough to discourage unsafe behavior, but do
not specifically suggest making the offense a disqualification
violation in the FMCSRs. The Teamsters, the Michigan Department of
State, Delaware DOT, and Landstar Systems do not support adding a new
disqualifying offense under 49 CFR 383.51.
FMCSA Response: FMCSA agrees with ATA, J.B. Hunt, and Maryland that
the enforcement action against an uncertified driver should be
sufficiently severe to discourage the behavior. The Agency also agrees
with the commenters that such driver behavior exists. However, upon
careful legal review, the FMCSA determined it does not have the
statutory authority to include such conduct as a new serious traffic
offense in Sec. 383.51(c).
e. Intrastate and Excepted Service Restrictions. The New York DMV
suggests that the final rule should require a restriction for drivers
who are claiming the ``excepted'' status for any reason and who are not
limited to intrastate operation. Because the Agency proposed in the
NPRM that drivers could self-certify to operating CMVs only in
intrastate commerce, the Oregon DOT recommends using a ``K''
restriction to identify drivers licensed for ``intrastate'' driving
only.
FMCSA Response: FMCSA does not agree with New York and Oregon's
proposal that drivers who, in accordance with Sec. 383.71(a)(1), self-
certify to operate only in either excepted or intrastate commerce
should be restricted. The regulations are clear about the type of
operations that drivers may perform; thus the recommended restriction
will not be imposed. There is no requirement for the SDLA to verify the
driver's self-certification. The driver's self-certification required
by Sec. 383.71(a)(1) establishes procedures that enable enforcement
personnel to detect whether the driver correctly self-certified and to
cite the driver for corrective enforcement action, if necessary. If a
driver who self-certified to operate only in ``excepted'' commerce is
stopped at the roadside and determined to be operating in other than
excepted commerce, the driver could be cited and placed out-of-service.

13. Implementation Schedule

A number of State agencies and organizations commented on the
timing of the compliance date of this rule and CDLIS modernization
efforts required by SAFETEA-LU.
a. Compliance Date Sooner than 3 years. Advocates suggest
implementing a shorter time frame for compliance with these
requirements than the Agency proposed in the NPRM. They describe a need
for reforms and improvements in CDLIS and note that uncorrected
problems adversely impact the benefits of the proposal. Nevertheless,
Advocates believe that the proposed integration should not be delayed
until CDLIS is upgraded via CDLIS modernization because some part of
the safety benefits could be achieved if the Agency acts quickly to
issue a final rule.
FMCSA Response: It is FMCSA's established practice to allow States
3 years to come into compliance with new regulatory requirements in
both the CDL and MCSAP programs. Generally, that time period allows for
any needed legislative changes, CDLIS software changes, and training of
State employees for new procedures.
After States are in compliance with the technical requirements of
the rule and are ready to begin receiving the medical examiner's
certificates from the drivers, they will need all CDL drivers to
provide their self-certification of driving type, and will need to
collect and post the medical certificates drivers are required to
provide them. This rule establishes a timeframe for CDL drivers to make
the self-certification of driving type no later than two additional
years after the State comes into compliance with the rule. These
compliance dates are intended to provide States sufficient time to
incrementally add all CDL drivers' required status information. To
fully implement the rule any faster would create a significant burden
on SDLAs, enforcement personnel, and drivers.
b. Compliance Date Later than 3 Years. State agencies in Minnesota
and Wisconsin do not believe legislation would be required to implement
these requirements and think that the 3-year period would be
sufficient, particularly if adequate funding is received from FMCSA.
Vermont also thought the 3-year implementation window for States to
achieve compliance would be acceptable.
State agencies in California, Delaware, Louisiana, Michigan,
Nebraska, New York, Oregon, Pennsylvania, Texas, Vermont, and Virginia
indicate that new legislation might be required for them to implement
the new requirements. Delaware, Michigan, Oregon, Texas, and Virginia
think that the 3-year implementation timeframe would be

[[Page 73110]]

difficult to meet, in part because of other Federal program
requirements that will soon be imposed on them (e.g., CDLIS
modernization and the REAL ID Act of 2005, (Pub. L. 109-13, Div. B.
Title II, sections 201-207, 119 Stat. 311-316 (May 11, 2005) (set out
as a note to 49 U.S.C. 30301))).
The Minnesota Department of Public Safety, Wisconsin DOT, Maryland
State Highway Administration, Vermont DMV, and AAMVA either support
having the compliance dates coincide or think that it is essential for
the CDLIS modernization to be completed first. The California DMV
suggests FMCSA should not start the clock for the States' 3-year
compliance from the effective date of the rule, but instead from the
time that the final CDLIS technical specifications are released by
AAMVA as part of CDLIS modernization. The Pennsylvania DOT notes that
it is essential that all detailed technical specifications be provided
at least 2 years prior to when the State must be in compliance to allow
sufficient time for technical programming. Based on the experience
implementing the MCSIA requirements in CDLIS, AAMVA urged FMCSA to
allow States a compliance period longer than 3 years.
FMCSA Response: FMCSA acknowledges States' concerns about
implementing the other Federal program requirements for CDLIS
modernization and the Real ID Act at the same time as the requirements
of this rule. The Agency will monitor the progress of State
implementation of this rulemaking and how it will impact States'
implementation of these two other Federal programs.
California and Pennsylvania's point is well taken regarding the
time required for AAMVA to develop the CDLIS modernization technical
specifications and release them to the States. Section 4123 of SAFETEA-
LU requires the development of the CDLIS design specifications
necessary for implementing this rule to be part of developing the
specifications for CDLIS Modernization. FMCSA consulted with AAMVA on
when they projected they could issue the necessary CDLIS technical
specifications for implementation of this rule. Their estimate is close
to the expected date the rule will be published. Therefore, the Agency
retained the 3-year provision to implement the section 215 of MCSIA
requirement to merge the medical requirements with the CDL.
c. No Cut-Off Date for Driver Submission. The Michigan Department
of State comments that there is no need for the cut-off (mandatory
downgrade) at 5 years for drivers who have not provided the SDLA with a
current medical examiner's certificate, as the driver's license renewal
cycles would eventually address this need.
FMCSA Response: The average national CDL licensing cycle is
approximately 5 years, with some States having longer cycles. If FMCSA
were to provide States the opportunity to implement fully the rule
within a period that exceeds 5 years, an unknown number of drivers
would not have to self-certify their driving type or provide a medical
examiner's certificate for, at least, an average of 3 additional years.
This period for drivers to self-certify and provide a medical
examiner's certificate would be longer in States with CDL renewal
cycles longer than 5 years.

14. Outreach

a. Quality and Timeliness of NLETS Data. A number of commenters
express concern about the ability of enforcement personnel to: (1)
Always obtain an electronic response during nights and weekends,
through either CDLIS access software or NLETS; and (2) obtain CDLIS
quality responses via NLETS.
FMCSA Response: FMCSA is aware of both these issues. The Agency is
continuously studying these issues to identify the cost that would be
incurred if the existing level of NLETS CDL inquires are submitted to
CDLIS. The Agency is considering demonstration projects to gather
information on what it would cost to have electronic responses at night
and on the weekends from States that have not yet implemented such
capabilities.
1. Nights and Weekends. The ability to get an electronic response
during the night and on the weekends is predominantly an hours-of-
operation issue (i.e., for the responding computer). Historically, this
was a common issue for SDLA computers with restricted hours of
operation. Nonetheless, online access by SDLAs at all times continues
to expand. FMCSA continues to investigate options to further improve
the availability of electronic driver license information during nights
and weekends, and plans to analyze the cost implications of solving
this issue.
2. CDLIS Quality Responses via NLETS. In States that use a copy of
the CDLIS driver records to respond to NLETS inquiries, depending on
how frequently that copy is updated, it is possible that the NLETS
responses could be out-of-date and show the driver as not-certified
when CDLIS has been updated to show the driver is certified.
b. Notification of Rule Requirements. A number of commenters
express concern that, depending on when a State begins notifying
drivers of this new requirement, it is possible that a driver might not
receive notification that he or she must provide the SDLA with an
updated driving type self-certification, and for those operating in
non-excepted, interstate commerce, a copy of the medical examiner's
certificate. As a result, the SDLA might initiate a downgrade of the
driver's CDL. Schneider National states that it is troubled by the lack
of performance standards and uniformity among the States for handling
the submission of the medical examiner's certificate. The Wisconsin DOT
estimates that they would have to notify over 185,000 drivers.
FMCSA Response: In the NPRM, the Agency proposed that States must
be in compliance with these provisions 3 years after the effective date
of a rule. It also proposed two additional years for all drivers to
provide their SDLAs with the driving type status concerning whether
they are subject to Federal or State driver qualifications rules. In
the final rule, FMCSA retains the State compliance date of 3 years
after the effective date, and the driver compliance date of 5 years
after the effective date.
FMCSA encourages SDLAs to begin including information about this
new CDL requirement as soon as is practical. Except for those few
States with license renewal cycles of six or more years, it is possible
for all CDL drivers to be notified as part of their normal CDL renewal
notice from their SDLA.
It is important to note that FMCSA is currently working with
various partners in developing a package of materials to be made
available to SDLAs, driver and carrier organizations, and trade
publications as outreach initiatives for the industry.

15. Comments Outside the Scope of This Rulemaking

A number of respondents submitted comments on topics that were
either outside the scope of what was proposed in the NPRM or were based
on a misunderstanding of what the Agency proposed in that rulemaking.
Many of these issues concern the rulemaking for the NRCME, how FMCSA
could regulate MEs or establish specific medical examination
requirements, or discuss alternative approaches to the Agency's initial
rulemaking proposal to specifically deal with issues of driver fraud.
FMCSA Response: FMCSA acknowledges the policy concerns of the
commenters. However, as stated in the NPRM, the policy direction of
this

[[Page 73111]]

rulemaking is limited to the creation of a method for CDLIS capability
to ensure current and accurate driver medical certification status for
use in CDL driver licensing and enforcement decisions. FMCSA continues
to believe this rulemaking represents a step in improving the oversight
capabilities of medical certification status information for non-
excepted, interstate CDL drivers.
Neither this rule nor the forthcoming NRCME rulemaking proposal are
intended to address fraud perpetuated by drivers regarding their
medical certification. While we acknowledge that driver fraud is an
important issue, these comments are outside the scope of this notice.
Although FMCSA could eventually require MEs to transmit data to
SDLAs, this rule did not propose to include such provisions because the
Agency does not have the statutory authority to regulate MEs. Rather,
this rule establishes a system for drivers to provide medical
certification status information to the licensing SDLA by using the
medical examiner's certificates. It also requires the SDLA to post that
medical certification status information into the CDLIS driver record
for licensing, enforcement, and employment decisions. This rule
complements the medical examiner qualification issues that will be
addressed later by the NRCME rulemaking.

D. Section-by-Section Explanation of Changes From NPRM

Conforming amendments. Throughout parts 383, 384, 390, and 391, the
terms used by the Agency to refer to a driver record or driver history
have been revised for uniformity. The term ``CDLIS driver record''
refers to the electronic record of a CDL driver's license status and
history stored by the State-of-Record as part of CDLIS. The term
``driver record'' refers to the electronic record of a non-CDL driver's
license status and history that is stored by the SDLA. The Agency's use
of the term ``motor vehicle record (MVR)'' refers to the information
provided to a driver or employer about the status and history of a non-
CDL CMV driver. The term ``CDLIS MVR'' refers to the information
provided to a driver or employer about the status and history of a
driver that holds a CDL. In the NPRM, the Agency proposed adding a new
term of ``medical certification status information'' with values of
either ``qualified'' or ``not-qualified.'' The final rule changes the
status values to ``certified'' or ``not-certified.''

Part 383

Section 383.5. In the NPRM, the Agency proposed to add a definition
for the term ``CDLIS driver record.'' FMCSA also proposed to add a
definition for the term ``CDL downgrade'' that included the following
two options: (1) restrict an otherwise unrestricted CDL to intrastate
transportation, or interstate transportation excepted from part 391 as
provided in 49 CFR 390.3(f) or 391.2; or (2) have the State remove the
CDL privilege entirely from the driver license.
The final rule adopts the definition for CDLIS driver record as
proposed. The final rule modifies the definition of ``CDL downgrade''
found at Sec. 383.5. It simplifies the required State action to notify
the driver that the SDLA will remove the CDL privilege from the
license, unless the driver elects to change his or her self-
certification and restrict driving to either transportation excepted
from the requirements of part 391, intrastate commerce and subject to
State driver qualification requirements, or intrastate excepted if
allowed by the State. A State can also remove the CDL privilege from
the driver's license if the driver has not complied with the FMCSRs.
Section 383.71(a). FMCSA proposed to revise the self-certification
requirement in the CDL application process to clarify how applicants
should self-certify if they operate in interstate commerce, but are
excepted from part 391, and now includes such clarification for other
self-certification categories as well. In the final rule, FMCSA revises
the paragraph to provide four categories for the self certification:
Interstate and subject to 49 CFR part 391;
Interstate, but operating exclusively in transportation or
operations excepted under 49 CFR 390.3(f), 391.2, 391.68, or 398.3;
Intrastate and subject to State driver qualification
requirements; or,
Intrastate, but operating exclusively in transportation or
operations excepted from all or part of the State driver qualification
requirements.
Section 383.71(g) and (h). In the NPRM, FMCSA proposed a new
requirement that, beginning on the SDLA's compliance date of 3 years
after the effective date of the new rule, applicants for any CDL
licensing action who are operating in non-excepted, interstate commerce
must provide their SDLA with an original or a copy (at the State's
option) of a current medical examiner's certificate. In the final rule,
paragraph (g) clarifies that all CDL holders must provide SDLAs the
self-certification in 383.71(a)(1)(ii) between years 3 and 5 (the two-
year phase-in period) after the effective date of this rule. Paragraph
(h) of the final rule requires new and existing non-excepted,
interstate CDL holders to provide the SDLA with a current medical
examiner's certificate between years 3 and 5, respectively, after the
effective date of this rule. States must post the medical certification
status and medical examination certification information in the CDLIS
driver record.
Section 383.73(a)(3)(v). The final rule adds a new requirement that
for non-excepted, interstate CDL drivers, the SDLA must verify that the
medical certification status of the driver is ``certified'' before
taking any licensing action to issue, renew, transfer, or upgrade the
CDL.
Section 383.73(a)(5). FMCSA proposed that the SDLA enter on the
CDLIS driver record the type of driving self-certification made by the
driver according to Sec. 383.71(a)(1). For all non-excepted,
interstate CDL drivers, the SDLA must record the information from the
physical qualification documentation (medical examiner's certificate)
on the CDLIS driver record. In the final rule, FMCSA will also require
all SDLAs to provide drivers with a date-stamped original or copy of
the submitted medical examiner's certificate as their receipt.
Section 383.73(b)(6). When a driver applies for a CDL transfer from
another State, FMCSA proposed to add a requirement for the SDLA to ask
the driver to self-certify whether the driver will operate in non-
excepted, interstate commerce, and, if so, verify whether the medical
certification status on the CDLIS driver record is ``qualified'' before
taking any licensing action.
The final rule requires the SDLA to conduct a check on non-
excepted, interstate CDL drivers to verify whether the medical
certification status is designated as ``certified.'' If the driver
self-certifies that he or she will operate solely in excepted,
interstate commerce, no verification of medical certification status is
required.
To accommodate drivers and SDLA's during the transition period for
implementing the requirements set forth in this rule, drivers who need
to transfer their CDL are not required to obtain an early medical
examination during the 2-year phase-in period of time between the State
compliance date (3 years after the effective date) and the date all
drivers are required to have submitted medical certification
information to the SDLA (5 years after the effective date). During the
2-year phase-in period, all CDL drivers must self-certify to the

[[Page 73112]]

SDLA as to the type of operation in which they will engage. There will
be instances where non-excepted, interstate drivers will provide SDLAs
with their medical examiner's certificate as documentation of current
medical certification during this 2-year phase-in period, but only if,
and when, it replaces a prior certificate.
Section 383.73(c)(5). FMCSA adds the same requirement as Sec.
383.73(b)(6) for the license renewal process.
Section 383.73(d)(3). FMCSA adds the same requirement as Sec.
383.73(b)(6) to the license upgrade process.
Section 383.73(j). FMCSA proposed to add a new CDLIS recordkeeping
requirement for medical certification status information. A number of
items displayed on the medical examiner's certificate would be recorded
on the CDLIS driver record, including a recommendation for States to
upgrade their licensing systems to make provisions in the CDLIS driver
record to accept National Registry information (see 49 U.S.C. 31149(d)
as added by section 4116(a) of SAFETEA-LU), should it be required. The
medical certification status information would need to be posted by the
SDLA within 2 business days of receiving a new medical examiner's
certificate from a driver. Similarly the medical certification status
of the driver would need to be updated within 2 business days of a
current certification expiring. Additionally, if a driver's medical
certification expires, the SDLA was to initiate a downgrade of the CDL.
The SDLA would then need to accept and record within 2 business days on
the CDLIS driver record any medical variance issued by FMCSA to a
driver.
In the final rule, FMCSA subdivides the different actions included
in Sec. 383.73(j)(2) of the NPRM into three more easily referenced
paragraphs, (j)(2), (3), and (4). It extends the time allowed for the
SDLA to post medical certification or medical variance status data or
update the information from 2 business days to 10 business days. The
SDLA also must provide drivers with a date stamped original or copy of
the submitted medical examiner's certificate as their receipt. The time
during which the SDLA must retain the certificate is extended from 6
months to 3 years from the issuance date. The downgrade provision is
simplified to require the removal of the CDL privilege unless the
driver changes his or her self-certification to either excepted or
intrastate, if allowed by the State. A new paragraph is added as (j)(5)
designating FMCSA Medical Programs as the keeper of the official list
of State contacts for receiving medical variance information from
FMCSA, and States are responsible for ensuring their medical variance
contact information is up-to-date with FMCSA Medical Programs.
Section 383.95. FMCSA proposed to add a medical variance
restriction to the existing air brake restriction provision and rename
the section. The Agency indicated that the new medical variance
restriction would require an indicator on both the CDL and the CDLIS
driver record if the driver has received a medical variance. FMCSA has
selected the letter ``V'' as the code for identifying drivers with a
medical variance. The Agency will work with AAMVA to include that code
in the CDLIS State Procedures and other appropriate CDLIS technical
documentation.

Part 384

Section 384.105. FMCSA proposed to add a definition for CDLIS Motor
Vehicle Record. The final rule adopts the proposed language.
Section 384.107. The Agency proposed to revise paragraph (b) to
incorporate by reference the then most recent version of the CDLIS
State Procedures Manual. The final rule revises the reference to the
most recent version of the AAMVA's CDLIS State Procedures Manual, the
September 2007 edition.
Section 384.206(a). FMCSA proposed conforming amendments to its
rules concerning State record checks. The final rule adopts the
proposed changes based on the application procedures in this final
rule.
Section 384.206(b)(3). The Agency proposed revising Sec.
384.206(b) to require States to verify the driver's medical
certification status. The final rule revises the paragraph to also
require the State to deny the CDL and initiate a downgrade action if a
driver's self-certification for driving categories is still missing 5
years after the effective date of this rule.
Section 384.208. FMCSA adopts its original proposal, with a
revision of Sec. 384.208 to include the new terms it implements in
this final rule, such as, ``CDLIS driver record.''
Section 384.225. FMCSA proposed to revise paragraph (a) by dividing
it into 2 paragraphs and adding paragraph (a)(2) to specify inclusion
of the medical certification status information that must be posted by
the SDLA. The Agency proposed to revise paragraph (e) to refer to the
CDLIS driver record and to clarify in paragraphs (e)(3) and (4) that
drivers and motor carriers obtain this information according to State
procedures on the CDLIS MVR. The Agency also proposed to add a new
paragraph (f) to require States to provide the medical certification
status information on the CDLIS, CDLIS MVR and CDL NLETS status and
history responses. In the NPRM, the Agency proposed to change the title
of the section from ``Record of violations'' to ``CDLIS driver
recordkeeping'' to more accurately describe its contents.
The final rule revises paragraph (a)(2) to specify what information
must be included in the medical certification status inquiry by the
State. The final rule revises paragraph (e) concerning authorized CDLIS
users and agents, consistent with the proposal. The Agency modifies
paragraph (f) by adding a reference to (a)(2) to show what medical
certification status information must appear on the report to
authorized users.
Section 384.226. In the final rule, FMCSA removes the phrase
``driver's record'' and replace it with the phrase ``CDLIS driver
record.''
Section 384.231. Similar to Sec. 384.107, the Agency proposed to
update the reference to the CDLIS State Procedures Manual to be the
most recent version incorporated by reference into Sec. 384.107(b).
The final rule revises the reference to cite the September 2007
version.
Section 384.234. The Agency proposed to add a new section
concerning the requirement for States to maintain copies of drivers'
medical certificates. The final rule adopts the proposed language and
adds a reference to the provisions specified at Sec. 383.73(a)(5) and
(j).
Section 384.301. The final rule adds, as a conforming amendment to
the changes in 49 CFR part 383, a new paragraph (d) specifying that the
State must comply with requirements of this rule within 3 years of the
effective date.

Part 390

Section 390.5. FMCSA proposed to add a new definition for the term
``medical variance'' as an inclusive term for all Federal programs
dealing with physical qualification, including exemptions and skill
performance evaluation certificates. This definition does not cover
waivers issued under subpart B of part 381. This is because waivers are
issued for short periods of time and any waivers will be addressed
through program documentation and not the driver's licensing systems.
FMCSA also proposed to add a new definition for ``motor vehicle
record.''
The final rule adopts the proposed definitional revisions and
further modifies the definition for the term ``medical variance'' by
adding the word ``letter'' after the word ``exemption.'' The definition
for the term ``motor

[[Page 73113]]

vehicle record'' is changed by adding a reference to the Driver Privacy
Protection Act.

Part 391

Section 391.2. In Sec. 391.2, FMCSA proposed to change the section
title from ``General exemptions'' to ``General exceptions.'' This
change establishes consistency with the term ``exception'' as used in
Sec. 390.3(f) and removes confusion with the different meaning of the
word ``exemption'' as used in 49 CFR part 381, subpart C, and 49 CFR
391.62. The final rule adopts the proposed language.
Section 391.23(a)(1) and (b). The final rule revises paragraphs
(a)(1) and (b) to use the terms ``State driver license agency'' and
``motor vehicle record'' to conform the language to the rule changes
noted above.
Section 391.23(m). FMCSA proposed to add a new paragraph (m) that
specified employers must meet the Sec. 391.51(b)(7) requirement to
place the medical certification in the DQ file as part of the hiring
process. It also specified the exception for how the employer must
document medical certification for CDL drivers subject to part 391 to
comply with the long-existing requirement in Sec. 391.51(b)(7), and
that the employer must do this before allowing the driver to operate a
CMV.
This paragraph makes it explicit that, in addition to substituting
the driver's CDLIS MVR for the medical examiner's certificate, FMCSA
will also change the timing of when the motor carrier must obtain and
place the MVR in the DQ file as part of the hiring process. All non-CDL
drivers will continue to be required to provide an original or copy of
the medical examiner's certificate to their employing motor carrier.
The final rule adopts Sec. 391.23(m)(1) as proposed. It modifies
(m)(2) to clarify: (a) that the exception only applies to drivers
required to have a CDL under part 383; (b) that the medical examiner's
certificate receipt from the SDLA can be used by the employing carrier
for up to 15 days from the date stamp on the receipt; and (c) that if
the CDLIS MVR shows that the driver operates exclusively in excepted
commerce, no medical certification documentation is required.
Section 391.25. The final rule adopts changes to: (1) Remove the
phrase ``into the driving record'' and add in its place a phrase ``to
obtain the motor vehicle record;'' (2) remove the phrase ``driving
record'' and add in its place the phrase ``motor vehicle record;'' and
(3) remove the phrase ``response from each State agency to the
inquiry'' and add in its place the phrase ``motor vehicle record.''
Section 391.41(a). The Agency proposed to amend Sec. 391.41(a) to
delete the exception reference to Sec. 391.67, and add an exception
that CDL drivers subject to part 391 will be excluded from the
requirement to carry the medical examiner's certificate because their
current medical certification status information will be on the
electronic CDLIS driver record, and can be verified via CDLIS or NLETS
inquiries, and via the CDLIS MVR for drivers and employers. All non-CDL
drivers will continue to be required to provide an original or copy of
the medical examiner's certificate to their employing motor carrier who
must place it in the DQ file.
In the final rule, FMCSA divides Sec. 391.41(a)(1) into paragraphs
(i) and (ii). The provision for non-CDL drivers to carry the medical
examiner's certificate becomes paragraph (a)(1)(i). Paragraph
(a)(1)(ii) cross-references the existing requirement on the medical
examiner's certificate that drivers with an exemption letter or SPE
certificate must also have in their possession the medical exemption
letter or the SPE certificate while on duty. Because this rule removes
the requirement for non-excepted, interstate CDL drivers to carry the
medical examiner's certificate, the final rule adds clarifying language
to Sec. 391.41(a)(2)(ii) to conform with the existing requirement for
such drivers to continue to be required to carry the medical exemption
letter or SPE certificate while on duty. For purposes of enforcement,
FMCSA establishes that the ``receipt'' (the date-stamped copy of the
medical examiner's certificate) is valid documentation of medical
certification as set forth in Sec. 391.43 for 15 days from the date
stamped on the receipt. Thus, if the CDLIS driver record has not yet
been updated to show the new medical certification, an enforcement
officer may accept the receipt as valid proof of certification for up
to 15 days from the date stamped on the receipt.
Section 391.43(g). The Agency proposed to amend Sec. 391.43(g) to
remove the language that the medical examiner may provide a copy of the
medical examiner's certificate to the employing motor carrier, and to
add a requirement that the examiner should retain a copy of all
certificates for the duration of the certificate.
In the final rule, FMCSA divided Sec. 391.43(g) into two
paragraphs. The first paragraph, (g)(1), provides a recommendation that
the medical examiner should provide drivers found to be physically
qualified with a medical examiner's certificate, and retains the
current regulatory language permitting medical examiners to also
provide a copy of the certificate to the employing motor carrier.
The second paragraph, (g)(2), retains the Agency's NPRM recommended
retention period of 3 years for the medical examiner to keep the
certificate, and adds a new recommendation that medical examiners
should also retain the Medical Examination Report (Long Form) for at
least 3 years from the date of the driver's examination.
Section 391.51. FMCSA proposed to update the requirements for what
must be contained in the DQ file regarding medical certification for
CDL drivers subject to part 391. For non-excepted, interstate CDL
drivers, FMCSA would no longer require them to carry a medical
examiner's certificate because the current status of their
certification would be electronically available to enforcement
personnel. Employers would fulfill the medical certificate
documentation requirement by using the driver's CDLIS MVR they are
already required to obtain from the SDLA and placing it in the DQ file.
All CDL drivers may continue to provide the employing motor carrier
with a medical examiner's certificate until 5 years after the effective
date of this rule. After that date, a driver required to be medically
certified who does not have current medical certification status
information on the CDLIS MVR is not certified as physically qualified
under part 391. Section 391.51(b)(7) of the final rule allows employers
to use the date-stamped original or copy of the medical examiner's
certificate (i.e., the receipt given to the driver) up to 15 days from
the date of the receipt as proof of the driver's current medical
certification.

E. Summary Cost Benefit Analysis

Costs

The regulatory evaluation describes and evaluates the requirements
contained in this final rule. This final rule does not change the
physical qualification standards of the FMCSRs or the medical advisory
criteria for determining whether a driver may be certified as
physically qualified to operate a CMV in interstate commerce. A number
of provisions modify the existing CDL procedures used to document the
driver's current medical certification status as a condition for him or
her obtaining or retaining a CDL. This documentation will also enable
motor carriers and enforcement personnel to verify the driver's medical
certification status.

[[Page 73114]]

Under the final rule, before an SDLA issues, renews, updates, or
transfers a CDL for a driver who is not excepted from the part 391
physical qualification requirements, it must verify that the driver is
currently medically certified. The SDLA must post the driver's self-
certification and specified medical certificate information on the
CDLIS driver record. The SDLA must also include the medical
certification status information on all reports provided to persons
authorized to access information from the CDLIS driver record. This
includes those individuals using CDLIS and NLETS to make the inquiries,
as well as drivers and employing motor carriers requesting a CDLIS MVR.
Implementing this change will enable enforcement personnel to gain
electronic access to verify whether non-excepted, interstate CDL
drivers possess a medical certification status of ``certified'' during
roadside inspections or traffic stops. The SDLA is also required to
update the driver's medical certification status to ``not-certified''
if it expires. Finally, the SDLA must downgrade the CDL within 60 days
of the expiration of the medical certification.
The changes promulgated in this final rule ensure that all CDL
drivers who are not excepted from the Federal physical qualification
requirements of part 391 and operate CMVs in interstate commerce will
have a medical certification status of ``certified'' prior to the State
issuing, renewing, upgrading, or transferring their CDL. It also allows
employers to verify the current medical certification status and
expiration date for covered CDL drivers they employ.
It is anticipated that States will prefer mail or electronic
delivery of certifications from drivers rather than in-person delivery,
because these alternatives are expected to be less costly to both
States and drivers. However, nothing in this rule precludes each State
from developing more advanced ways of dealing with the requirements of
this rule. For example, SDLAs could establish an internet portal or
other IT solution to accomplish the submission of medical certification
forms. Each State is given the flexibility to develop its own method to
accept medical certifications that is easiest or least expensive for
that State.
The regulatory evaluation for the NPRM described and evaluated
three possible alternatives to implement this rule. Alternative 1 would
require current medical certification status information to be listed
on the driver's license document for any driver holding a CDL who
intends to operate a CMV in non-excepted, interstate commerce. Thus,
the license document would have to be replaced every time a new medical
examiner's certificate was issued.
Alternative 2 the preferred alternative (embodied in this rule),
would require States to be responsible for receiving, posting,
updating, and providing data from a medical examiner's certificate that
is received from an individual before the State issues, renews,
updates, or transfers a CDL for a driver who operates in non-excepted,
interstate commerce. Under this alternative, the current medical
certification status of ``certified'' or ``not-certified'' of the CDL
driver would be maintained on the CDLIS driver record, including other
information required by this rule, such as, whether a medical variance
was issued to the driver.
Alternative 3 is similar to Alternative 2, except that, rather than
having drivers submit the certificate to their licensing State, FMCSA
would receive the medical examiner's certificate centrally through the
mail or via facsimile from drivers. The FMCSA would enter the data and
electronically transmit it to the licensing SDLA as a CDLIS
transaction.
With regard to commenters reactions to the alternatives considered,
none of the commenters favored Alternative 1.
The Illinois Secretary of State and the Michigan Department of
State supported Alternative 2. Michigan supports the State's handling
of data entry and the Agency's proposal that allows Michigan to retain
its 4-year license renewal cycle. Indiana agreed that they could go
along with this rule as proposed, but only as the first step toward
requiring nationwide implementation of an electronic audit program,
similar to one described in Indiana's September 2006 report to FMCSA. A
copy of the report is in the docket referenced at the beginning of this
notice. However, the Oregon DOT said that Alternative 2's process would
result in duplication across 51 locations using 51 different methods
that would add to the confusion of CMV operators. It believes that
processing all reports at a single point (Alternative 3's option) would
be more efficient and that FMCSA could establish an electronic means
for MEs to transmit reports and a system to process and verify ME
information.
Five States (Ohio Bureau of Motor Vehicles, Virginia DMV,
Pennsylvania DOT, Oregon DOT, and New York DMV) supported Alternative
3. Support was largely based on the perception that Alternative 3 would
have less impact on the States and result in a more uniform and
efficient system.
FMCSA agrees that Alternative 3 would have less impact on the
States. Efficiency might be improved by centralizing the collection of
the original medical examiner's certificate or hard copy, although the
Agency's analysis of processing costs for Alternative 3 indicate that
it may be somewhat more costly than having the States process these
forms.\8\ Assuming the two alternatives were cost-neutral. The costs
associated with processing the paper medical certificates would only be
transferred from the States to another entity. In general, the States
have systems in place to handle and process large volumes of paper for
such transactions, and should, therefore, already be realizing
substantial economies of scale in processing paper.
---------------------------------------------------------------------------

\8\ See the full regulatory evaluation, pages 21-23, for an
explanation of how costs for Alternative 3 were estimated.
---------------------------------------------------------------------------

In commenting on the NPRM, several States believe the Agency had
underestimated their cost of complying with this rule. Motor carriers
also note that the rule entails unforeseen costs to industry, which
were not dealt with in the Agency's NPRM Regulatory Evaluation. To
address State comments, the Agency hired a contractor, with an intimate
knowledge of State SDLA processes, to survey a sample of nine States to
verify the cost impact of this rule. Results from this survey are
presented below in Tables 1 and 2. Table 1 presents the one-time costs
associated with development of the medical certification program. Table
2 presents the ongoing costs that States would incur in administering
the program. The one-time costs are spread over the States' 3-year
implementation phase of the program. Ongoing costs recur on an annual
basis.

Table 1--One-Time Costs
------------------------------------------------------------------------
Estimated
costs
------------------------------------------------------------------------
Operational:
Enabling Legislation................................ $326,608
Storage of medical examiner's certificates.......... 3,883,371
Office Space and Equipment.......................... 6,607,101
Personnel Acquisition............................... 32,266
Develop Training Materials/Conduct Initial Training. 514,338
Information Technology:
Input and Inquiry Screens........................... 6,146,560
Expanded Database................................... 1,563,932
Expanded Inquiries--CDLIS, NLETS, MVR............... 5,820,137
Expanded Reports.................................... 3,750,755
Expirations and Downgrades.......................... 5,517,259
Systems and User Acceptance Testing................. 1,664,850

[[Page 73115]]


AAMVA Testing....................................... 589,821
---------------
Total One-Time Costs............................ 36,416,999
------------------------------------------------------------------------


Table 2--Ongoing Costs
------------------------------------------------------------------------
All 51 state
average
------------------------------------------------------------------------
Operational:
Medical Examiner's Certificates Storage Equipment $1,425,739
Maintenance........................................
Office Space and Equipment Maintenance.............. 350,619
Processing and Entry of Medical Examiner's 12,901,409
Certificates.......................................
Exception Handling.................................. 1,882,922
Training............................................ 1,164,836
Letter Preparation and Mailing...................... 3,959,555
Information Technology:
Data Storage and Computer Processing................ 1,111,420
---------------
Total Ongoing Costs............................. 22,796,502
------------------------------------------------------------------------

Motor carriers also identified cost issues which were not
considered by the Agency in its original proposal. These costs involve
the requirement that motor carriers use the CDLIS MVR to verify driver
medical certification status. Motor carriers are required by current
regulations to obtain medical examiners' certificates for all non-
excepted, interstate drivers in their employ. Motor carriers must place
this documentation of driver medical certification in the DQ file and
retain it for 3 years from the date of issuance. Motor carriers may
currently obtain the medical certifications directly from drivers or
medical examiners.
For CDL drivers under part 391, this rule will change how motor
carriers must obtain this documentation of medical certification. Now,
the motor carrier must obtain the medical certification status from the
SDLA on the driver's CDLIS MVR. In the NPRM, the Agency anticipated
that this process would not result in an extra cost to carriers because
they must already obtain an MVR for each driver they hire and annually
thereafter. However, motor carriers point out that the date of
expiration for a medical certification would not necessarily correspond
with the date of these record checks.
For a CDL driver whose medical certification expiration date does
not correspond to the date of the carrier's MVR checks, the annual MVR
record check, required by Sec. 391.25, may have to be conducted
earlier. In this case, the motor carrier would incur approximately a $6
fee at an earlier point than would otherwise be the case. (The $6 fee
represents a weighted national average to obtain this document; see
below.) Assuming the driver must obtain either an annual or biennial
medical certification, once this earlier record check is completed, the
next record check would be required in 1 year.
Driver turnover would be the biggest determining factor of any
extra costs to motor carriers. If the driver left the job after the
additional earlier record check, but before the first anniversary of
hiring the driver, the motor carrier would incur an additional fee that
would have otherwise been avoided.
National Average Cost of MVR. FMCSA obtained MVR record charges for
each State as of 2005. These were combined with the number of CDL
pointers as of August 2007, for each of the 51 licensing jurisdictions
in the U.S., to calculate a weighted, national, average State MVR
charge. This weighted average is estimated at $6 per MVR. Given the
volume of these additional record checks, which are required by this
final rule and driver turnover, the new total cost to carriers is
estimated at $3 million annually.
Table 3 below presents the revised costs associated with this
medical certification program. The 10-year costs of this alternative
are $154.4 million when discounted at 7 percent. These costs have also
been adjusted for inflation to 2005 dollars. The row indicating
industry costs includes both the cost to motor carriers, described
above, and the cost to drivers associated with mailing or faxing
medical certification forms to SDLAs. The State cost estimates reflect
the results of FMCSA's survey mentioned previously in this document.

Table 3--Total Cost
[Thousands of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Years 7-
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 10 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
State One-Time Costs............................................ $11,411 $11,411 $11,411 $0 $0 $0 $0 $34,233
State Ongoing Costs............................................. 0 0 0 21,429 21,429 21,429 85,716 150,003
Industry Costs.................................................. 0 0 0 2,500 5,000 5,000 20,000 32,500
---------------------------------------------------------------------------------------
Total Costs................................................. 11,411 11,411 11,411 23,929 26,429 26,429 105,716 216,736
=======================================================================================
Total Costs (7 percent discount rate)........................... 11,411 10,664 9,967 19,533 20,162 18,843 63,827 154,407
---------------------------------------------------------------------------------------
Total Costs (3 percent discount rate)........................... 11,411 11,078 10,756 21,898 23,482 22,798 84,742 186,165
--------------------------------------------------------------------------------------------------------------------------------------------------------

Benefits

Agency research suggests that many medical conditions, if left
untreated, can result in driver impairment, and as a result, increase
the probability that a driver will be involved in a crash. The purpose
of the medical certification requirement is to ensure that drivers who
have medical conditions that may impair their ability to operate CMVs
safely are prevented from working in the truck driving occupation.
According to the Large Truck Crash Causation Study data, heart attack
or other physical impairment of the ability to respond was cited as the
critical reason for 2.2 percent of trucks involved in crashes where a
fatality or serious injury occurred. This corresponds to 4 percent of
involved trucks where the truck was at fault, or 3,000 crashes over the
33 month study period. This crash rate corresponds to a total of 1,090
crashes per year where a serious injury or fatality occurred. If this
percentage is extrapolated to crashes with less serious injuries or
where no injury occurred (property damage only), they produce an
estimated 8,138 crashes per year that are due to a medical problem
causing the driver to crash.

[[Page 73116]]

Medical certifications violations are found in between 7 and 8
percent of driver roadside inspections, making them one of the most
commonly cited driver violations. Data from industry indicate that
approximately 7 percent of drivers fail the medical examination. This
violation is cited in approximately 6 percent of post crash
inspections, and evaluation of this post-crash inspection data
indicates that drivers with medical certification violations may pose
an increased crash risk when compared with drivers not cited with this
violation.
In the Regulatory Evaluation that accompanied the NPRM for this
rule, the Agency presented one scenario under which these rule changes
could result in the prevention of 0.08 percent of crashes. These
benefits were expected to stem from a deterrent effect. Because the
drivers will be providing their medical examiners' certificates to a
State government official, rather than a motor carrier, they may be
less likely to engage in forgery. In addition, having electronic access
to identification information from the driver's medical examiner's
certificate should facilitate any investigations of fraud in the
medical certification system or process at both the State and Federal
level. The medical certification requirement is more likely to assist
in exposing drivers who engage in untruthful statements about their
medical certification status. Thus, certain types of fraud might be
deterred.
This final rule also provides safety benefits by providing drivers
with a greater incentive to renew their medical certifications on time.
In the past, there was limited incentive for drivers or motor carriers
not to put off renewing medical certifications until well after the old
ones had expired. There were only minor penalties for driving with an
expired medical certification and it was probable that a driver could
escape detection. This violation of the FMCSRs was only detected if the
CMV was targeted for a roadside inspection or stopped for the driver's
violation of traffic laws and subjected to at least a Level III driver
inspection.
Because of the SDLA's automated detection of expired medical
certificates, this rule will increase the possibility of a penalty for
the driver's failure to renew his or her medical certification on time.
As a result, it is expected that fewer drivers will let their medical
certifications lapse; and it should result in more timely renewal of
medical certifications. Consequently, more drivers who have medical
problems will be diagnosed and treated sooner than is the case under
current rules.
FMCSA expects that an increased rate of timely renewal by CDL
drivers of medical certifications is likely to provide enhanced safety
benefits for the entire motor carrier industry. During the 2-year
renewal period between medical examinations (and, in some instances,
shorter renewal periods), some percentage of drivers will develop
medical conditions that make them physically unqualified to drive. For
instance, a driver may experience a decline in eyesight, or develop
high blood pressure, kidney problems, or heart problems. If these
drivers put off obtaining a new medical examination, they would remain
an increased safety risk for the public. However, if they are medically
examined on schedule, the medical conditions that have developed in the
interim can be discovered and treated effectively. Effective treatment
of the medical conditions would reduce the potential safety risk the
driver poses, and will yield safety benefits to the public in the form
of fewer crashes involving physically unqualified drivers operating
CMVs on our nation's highways. The Agency acknowledges that the level
of the safety benefits that would accrue from the changes in this
rulemaking is uncertain.
The average crash involving a truck with a Gross Vehicle Weight
Rating (GVWR) of 26,000 pounds or more (the threshold weight rating for
a CDL) has been estimated to have a total societal cost of $165,350
(2005 dollars). This cost reflects the average value of damaged
property, medical care, injuries, and fatalities, and other costs
associated with the ``average'' large truck crash. Preventing a crash
thus yields $165,350 in benefits to the economy. Fatal crashes
involving trucks with a GVWR of 26,000 pounds or more have been
estimated to cost, on average, $7,377,417 per crash.
Given these crash values, we can calculate the number of either the
average or fatal crashes that would have to be prevented for this rule
to break even. In order for this rule to break even after 10 years,
approximately 218 average crashes would need to be prevented in each
year beginning in year 4, assuming a discount rate of 7 percent. The
prevention of only 5 fatal crashes per year would also yield total net
benefits after 10 years. It is estimated that approximately 320,000
crashes involving CDL drivers occur per year, and that 4,800 of these
crashes are fatal crashes. The crash reduction benefits required for
this rule to be cost beneficial after 10 years correspond to a crash
reduction of 0.1 percent of average crashes per year and 0.2 percent of
fatal crashes per year.
If the time horizon is extended to 20 years, and assuming a
discount rate of 7 percent, the crash benefit break even threshold
would be lower--only 191 average crashes or 5 fatal crashes would need
to be prevented each year. Extending the time horizon lowers the number
of crashes that would need to be prevented in later years because
benefits from this final rule would not begin accruing until year 4,
whereas costs accrue starting in year 1. A longer time horizon enables
a longer time for the later year benefits to make up for the costs
incurred in the planning and implementation phases for this rule.
The latest research the Agency has conducted on the safety risk
posed by drivers operating in interstate commerce with medical
certification violations indicates that these drivers have an elevated
risk for a crash when compared with other drivers, and that the size of
this relative risk is 1.12. Approximately 7.8 percent of drivers have
medical certification violations at any one time. Evaluating costs and
benefits assuming this risk ratio, and a reduction in medical
certification violations of only 10 percent as a result of this rule,
yields a total annual benefit of 288 crashes avoided and annual
monetary benefits of $42.6 million. Over 10 years, this rule would have
discounted net benefits of approximately $28.7 million. Over 20 years,
net benefits would be approximately $90.4 million.

F. Rulemaking Analyses

Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures

FMCSA determined this rulemaking is a significant regulatory action
within the meaning of Executive Order 12866, and is significant within
the meaning of Department of Transportation regulatory policies and
procedures. The final rule is significant because of the level of
congressional and public interest in the rule. The final rule has been
reviewed by the Office of the Secretary and the Office of Management
and Budget (OMB).
This rulemaking requires States to obtain a self-certification from
the driver about which of the four (4) categories of driving the driver
will engage in: interstate; interstate, but excepted from the certain
Federal driver qualification requirements; intrastate; and, intrastate,
but excepted from State driver qualification requirements. It further
requires States to obtain documentation from all non-excepted,
interstate CDL drivers regarding their physical

[[Page 73117]]

qualification status and to provide the driver with a date-stamped
receipt for that documentation, indicating that the driver is
``certified'' before operating a CMV in interstate commerce. The States
are required to enter the driver's self-certification and the medical
certificate information onto the CDLIS driver record to be available to
Federal and State enforcement agencies via CDLIS or NLETS inquiries and
to drivers and employers via the CDLIS MVR.
To implement this final rule, the States will incur development
costs. These include the cost to modify each State's information
systems to enable it to record the CDL driver's: (1) Self-Certification
he or she makes to the SDLA, and (2) information from the driver's
medical examiner's certificate. Operational costs to States include:
(1) Hiring and maintaining sufficient staff to receive these
certificates from all non-excepted, interstate CDL drivers, at least
every 2 years (in 31 percent of cases more often), and (2) performing
data entry functions to post specified information from the paper
medical examiner's certificates. State costs also include a requirement
to update the medical certification status to ``not-certified'' if it
expires, to notify the driver of a pending downgrade and to downgrade
the driver's CDL. There are also State costs to update the programs
that provide the following responses: CDLIS, CDLIS equivalent for
NLETS, and CDLIS MVR status and history to users authorized in 49 CFR
384.225(e). More details about these requirements are discussed under
the section titled, ``Executive Order 13132 (Federalism),'' below.

Regulatory Flexibility Act

The Regulatory Flexibility Act requires Federal agencies to take
small businesses' particular concerns into account when developing,
writing, publicizing, promulgating, and enforcing regulations. To
achieve this goal, the Act requires that agencies explain how they have
met these concerns, by including a Regulatory Flexibility Analysis
(RFA). An RFA includes the following five elements:
(1) A description of the reasons why action by the Agency is being
taken.
The Agency has identified numerous instances in which drivers who
are physically unqualified or have failed to be medically examined have
obtained CDLs and operated CMVs in interstate commerce in violation of
Federal regulations. The Agency believes, and research suggests,\9\
that some physically unqualified drivers are significantly more likely
to be involved in motor vehicle crashes nationwide. The continued
operation of CMVs by physically unqualified drivers, therefore, poses a
significant risk to the health and safety of the general public. FMCSA
believes that the changes being implemented here would reduce the
number of large truck crashes that occur and the losses in property,
health, and lives that are associated with them.
---------------------------------------------------------------------------

\9\ See for instance: Ogden, E.J.D., and Moskowitz, H.,
``Effects of Alcohol and Other Drugs on Driver Performance.''
Traffic Injury Prevention. 5:185-198, 2004.
Terran-Santos, J., M.D., A. Jimenez-Gomez, M.D., J. Cordero-
Guevara, M.D., and the Cooperative Group Burgos-Santander, 1999.
``The Association Between Sleep Apnea and the Risk of Traffic
Accidents.'' New England Journal of Medicine. 340:11. pp. 847-851.
---------------------------------------------------------------------------

(2) A succinct statement of the objectives of, and legal basis for,
the final rule.
The objective of the final rule is to require interstate CDL
holders subject to the physical qualifications requirements of the
FMCSRS to provide a current original or a copy of their medical
examiner's certificate to their SDLA, and to require the SDLA to record
on the CDLIS driver record the driver's medical certification status.
To accomplish this, it is necessary to create the systems
infrastructure for States to electronically store and for Federal and
State enforcement personnel to retrieve medical certification status
information as part of the CDLIS driver record. This will enable the
status information to become part of the process of determining whether
to issue, renew, upgrade, transfer, or downgrade a CDL privilege. It
will also enable roadside and traffic enforcement personnel to easily
determine whether to place a driver out-of-service. This brings the CDL
process into compliance with both the authorization of Commercial Motor
Vehicle Safety Act (CMVSA) of 1986 and the requirements of section 215
of MCSIA, which requires FMCSA to initiate a rulemaking to provide for
a Federal medical qualification certificate to be made part of the CDL.
(3) A description of and, where feasible, an estimate of the number
of small entities to which the final rule applies.
The latest estimates from the Agency's Motor Carrier Management
Information System (MCMIS) database (February 2006) indicate that there
are a total of approximately 685,000 interstate motor carriers.
However, FMCSA analysts believe the number of truly ``active'' motor
carriers (i.e., those currently moving freight or passengers, operating
under their own authority, and with required filings on record with
FMCSA) is probably less than 500,000. Approximately 356,625 of them are
considered small entities and this rule applies to all that use CDL
drivers to operate CMVs in interstate commerce.
The changes being implemented here will slightly reduce the
paperwork and documentation requirements on employing motor carriers.
This rule change enables motor carriers to obtain the driver's self-
certification for driving type, medical certification status and CDLIS
MVR from the licensing SDLA with one transaction and therefore reduces
the current reporting and recordkeeping requirements and burdens for
all motor carriers.
However, States charge a fee for an MVR check. Although most motor
carriers would not have to conduct an extra record check for the
majority of drivers, in some circumstances, FMCSA agrees with them that
an extra record check would be necessary. We have calculated a weighted
average of State MVR check charges based on State charges as of 2005
and the total number of CDLIS records held by each State. On average,
an MVR record check costs a motor carrier $6. We calculate the cost of
the additional record checks that would result from this rule to be $3
million per year for the whole industry. Since smaller motor carriers
employ approximately 30 percent of drivers, we estimate that 30 percent
of these costs would fall on them. This amounts to approximately
$930,000 per year spread over the small entities in the industry, for
an average of $2.60 per small entity.
(4) A description of the reporting, recordkeeping, and other
compliance requirements of the final rule, including an estimate of the
classes of small entities which would be subject to the requirements
and the type of professional skills necessary for preparation of the
report or record.
This rule changes the source from which motor carriers gather
medical certification status for CDL drivers operating in commerce.
Motor carriers will obtain driver medical certification status
information for non-excepted, interstate CDL drivers from the driver's
SDLA, as part of the driver's CDLIS MVR that the motor carrier must
already collect when hiring a new driver. This rule also reduces
recordkeeping requirements for those drivers who must comply with the
requirements because they are no longer required to carry a copy of
their medical examiner's certificate with them while driving a CMV.
However, driver reporting requirements are increasing. Other than
excepted drivers, all other interstate CDL drivers who are subject to
part 391 will need to deliver a copy of their

[[Page 73118]]

mandated medical certification status documentation to their SDLA each
time they receive a new certificate, rather than provide their current
employing motor carrier with a copy of the medical certificate.
(5) An identification, to the extent practicable, of all Federal
rules that may duplicate, overlap, or conflict with the final rule.
This rule makes medical certification status information a part of
the commercial driver's license process. FMCSA is not aware of any
other regulations that duplicate, overlap, or conflict with the rule.
The entire Regulatory Flexibility analysis is available in the
docket for this rule. FMCSA has determined that this rule will not have
a significant economic impact on a substantial number of small
entities.

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 13045 (Protection of Children)

FMCSA analyzed this action under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. FMCSA
determined that this rulemaking does not concern an environmental risk
to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

This rulemaking does not involve taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.

Executive Order 13132 (Federalism)

This action was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (64 FR 43255, August 10,
1999). In compliance with Executive Order 13132, FMCSA provides to OMB
in a separately identified section of the preamble to the rulemaking a
``Federalism Summary Impact Statement (FSIS).'' The FSIS includes: (1)
A description of the extent of FMCSA's prior consultation with State
and local government officials; (2) a summary of the nature of their
concerns; (3) the Agency's position supporting the need to issue the
regulation; and (4) a statement of the extent to which the concerns of
State and local government officials have been met. Also, when FMCSA
transmits a draft final rule with Federalism implications to OMB for
review pursuant to Executive Order 12866, FMCSA includes a
certification from the Agency's Federalism official stating that FMCSA
has met the requirements of Executive Order 13132 in a meaningful and
timely manner.
Nothing in this rule directly preempts any State law or regulation.
However, FMCSA believes this action has Federalism implications. For
States that choose to participate in the CDL program, this rule imposes
new and ongoing CDL program operational costs, beyond the development
and implementation phase, for which grant funds are not likely to be
available from FMCSA. The totally unfunded costs begin when States are
required to be in compliance with this rule's new requirements--3 years
after the effective date. The rule also limits State policymaking
discretion if the State chooses to issue CDLs in compliance with the
rule.
FMCSA has consulted with States and local government officials on
these issues for many years, as described below. Thus, the requirements
of section 6 of the Executive Order regarding consultation have been
met for this rule.

Federalism Summary Impact Statement (FSIS)

Over the years, State officials have been consulted on a variety of
possible approaches for addressing the issue of including the medical
certification information as part of the issuance and retention of
CDLs. An ANPRM on this subject was published July 15, 1994 (59 FR
36338). Comments to the ANPRM are in the docket, as is a summary of the
comments prepared by FMCSA. An Advisory Committee was convened for a
negotiated rulemaking. No rule resulted from those negotiations, but
materials from that Committee are included in the docket which
demonstrate the Agency's consultation efforts in this regard.
Alternative models for implementing the 1999 congressional mandate
of section 215 of MCSIA were prepared by FMCSA and discussed with
AAMVA. AAMVA sought additional feedback from some of its members
regarding the models and provided their comments, which are included in
the docket. FMCSA funded a grant to the State of Indiana to conduct a
feasibility analysis of alternative approaches for meeting the
requirement of section 215. Their report from that feasibility analysis
is in the docket. FMCSA sent a letter to the States through the
National Governors Association advising them that an NPRM would be
published. In order to implement the proposed mandate, the States would
need to make changes to their CDL process and CDLIS implementations. A
copy of that letter is included in the docket for this rulemaking.
In addition to consultation, State and local officials had an
opportunity to provide official comments on the NPRM, which was
published on November 16, 2006 (71 FR 66723). Because States believed
that FMCSA had underestimated the costs of its proposal, they requested
FMCSA to conduct a survey of States to collect additional information
on what costs the States would incur to implement and operate the
capabilities contained in the NPRM. In keeping within OMB guidelines
for information collections, FMCSA responded to the States' request by
conducting an information collection from a representative sample of
nine States to obtain that information. The report from that
information collection is in the docket.

Summary of the Nature of State and Local Government Officials' Concerns

States have consistently expressed concern about the level of
resources that would be necessary to achieve compliance with whatever
alternative would be adopted as a CDL regulation. In their specific
comments to the docket, they stated their belief that their ongoing
operating costs for the proposed alternative are substantially higher
than estimated in the NPRM.
An alternative that FMCSA discussed with the States as part of the
negotiated rulemaking would require States to obtain, review, and
approve the medical examination report (Long Form) as part of the CDL
program. That alternative would more explicitly address whether or not
a driver is physically qualified. Most State representatives in the
negotiated rulemaking opposed that proposal when it was discussed.
Another alternative, examined in the Regulatory Impact Analysis for
this rule, was to make the medical examiner's certificate and the CDL
the same document. This alternative would require the driver to obtain
a new CDL each time the driver is reexamined by a medical examiner.
FMCSA determined that the costs of that approach would be very much
higher than the preferred alternative, because the medical examination
schedule (maximum duration of 2 years) is dramatically shorter than the
current CDL renewal

[[Page 73119]]

cycle (on average, approximately 5 years). The approximate 5-year CDL
renewal cycle would need to be shortened to require drivers to renew
their CDL, on average, much more often than every 5 years.
Currently, 49 CFR 391.45 requires that all drivers not excepted
from the requirements of part 391 who operate CMVs in interstate
commerce must be medically examined and certified as physically
qualified at least once every 2 years. Section 391.45(c) essentially
requires an employer to have a driver medically reexamined at any time
the employer is concerned that the driver's ability to perform his or
her usual duties may be impaired. FMCSA guidance to medical examiners
says that drivers should be given less than a 2-year certification if
they have medical conditions that need more frequent monitoring. The
medical exemptions for vision and diabetes granted by FMCSA under 49
CFR part 381 require annual reexamination and recertification. A report
available from the American Trucking Research Institute documents that
there is a large turnover in employment among drivers.\10\ Each time a
driver changes his or her employer, the new employer has the
opportunity, as a condition of employment, to require a new medical
examination, and a number of larger carriers do so. Because of these
reasons, FMCSA estimates that at least 31 percent of the drivers
granted a 2-year medical examiner's certificate are required to obtain
at least one additional certificate during that 2-year period. This
estimate is higher than the 20 percent used in the NPRM, making the
number of drivers who must submit medical examiner's certificates to
the SDLAs even larger.
---------------------------------------------------------------------------

\10\ ``Empty Seats and Musical Chairs: Critical Success Factors
in Truck Driver Retention'', Chapter III, prepared by the Gallup
Organization for the American Trucking Associations (ATA)
Foundation, October 1997. A copy of this report is available online
at http://www.atri-online.org/research/safety/images/Musical_
Chairs.pdf

---------------------------------------------------------------------------

During the negotiated rulemaking, the States suggested another
alternative. As part of the requirement for each driver to submit
documentation of his or her physical qualification status in the form
of a medical examiner's certificate to the State, the State would only
record specified information from the medical examiner's certificate on
the CDLIS driver record, and would make no other changes to the
existing licensing processes. This alternative is far less intrusive on
existing CDL procedures used by the States than requiring the medical
certificate and the CDL license to be combined, and is the one FMCSA
will promulgate in this final rule.
This final rule requires the driver to maintain a valid medical
certification status on his or her CDLIS driver record. All non-
excepted, interstate CDL drivers will accomplish this requirement by
providing their SDLA with a current federally required medical
examiner's certificate documenting their current medical certification
status, before the SDLA can issue, renew, upgrade, or transfer a CDL,
and every time the certificate expires.
The SDLA must provide the driver with a date-stamped receipt for
the medical examiner's certificate and post the driver's self-
certification for driving type and the medical certification status
information on the CDLIS driver record within 10 business days of
receiving it. If the medical certification expires, the State is
required to update the medical certification status to ``not-
certified'' within 10 business days of expiration and downgrade the
driver's CDL within 60 days. This rule also revises procedures for how
employers and enforcement personnel verify a driver's current medical
certification status as part of their responsibilities.
States are required to notify the driver of the impending CDL
downgrade as part of the process. This notification requirement is an
incremental addition to existing driver notification systems operated
by all States, but will increase the number of notifications they will
send out. However, because interstate CDL drivers are only a small
percentage of the total number of motor vehicle drivers that SDLAs
serve, the notification requirement imposed by this rule represents a
relatively small increase in the volume of driver notifications
required of States.

FMCSA Position Supporting Need To Issue This Regulation

This new CDL requirement is congressionally authorized by the CMVSA
of 1986, and mandated by section 215 of MCSIA, which requires FMCSA to
initiate rulemaking to provide for a Federal medical qualification
certificate to be made a part of the commercial driver's license
program. This requirement is national in scope, directing regulation of
an aspect of safety for all CDL drivers who operate CMVs in non-
excepted, interstate commerce. This final rule establishes a
requirement for States to: (1) Obtain a medical examiner's certificate
from these non-excepted, interstate CDL drivers, (2) give the driver a
date stamped receipt, and (3) record specified medical certification
status information from the certificate within 10 business days,
documenting the driver's certification of physical qualification to
drive a CMV in interstate commerce. States are also required to
downgrade the CDL if the driver receives a medical certification of
``not-certified'' or fails to update his or her certification in a
timely manner.
In developing this final rule, FMCSA intends for States to have the
maximum discretion to adjust their administrative processes and
determine how they choose to have the driver satisfy the minimum
medical certification documentation and CDL regulatory requirements set
forth in this rule. Through AAMVA, FMCSA works to develop and oversee
the technical details necessary for CDLIS to successfully operate in
compliance with the Agency's regulations. There is no preemption of
State law.
To allow for development and implementation of the new CDLIS
capabilities, FMCSA will begin monitoring State compliance with the new
parts 383 and 384 requirements 3 years after the effective date of this
rule, as part of the standard State CDL compliance review process. If a
State is determined not to have implemented the minimum changes
required by this rule, the normal process will apply, as specified in
the CDL compliance regulations for notifying the State about potential
withholding of Federal-aid highway funds (49 CFR part 384).
Similarly, States participating in MCSAP grants are already
required to have intrastate physical qualification programs compatible
with those specified in part 391. The ongoing State MCSAP compliance
reviews will verify whether the States have implemented intrastate
physical qualification programs in compliance with this rule as
required by the MCSAP grants. The normal process, specified in the
MCSAP compliance regulations for notifying the State about potential
withholding of MCSAP funds (49 CFR part 350, subpart B), will apply.
FMCSA estimates the States will incur approximately the following
costs to implement, and then operate, the new procedures and CDLIS
capabilities required in this rule.

[[Page 73120]]



Table 4--Summary State Costs
------------------------------------------------------------------------
Total national Average cost/
Year cost State
------------------------------------------------------------------------
Year 1.............................. $11,411,000 $224,000
Year 2.............................. 11,411,000 224,000
Year 3.............................. 11,411,000 224,000
Continuing Years.................... 21,429,000 420,000
------------------------------------------------------------------------

FMCSA anticipates Federal funds will be available to assist only
with development and implementation of the mandated merger of the
medical certification and CDL processes, i.e., to assist in paying the
direct costs incurred by the States and local governments in developing
and implementing capabilities to comply with the regulation by the
compliance date (3 years after the effective date of this rule). No
grant funds are available to assist with ongoing operations.
SAFETEA-LU provides two grant programs to assist the States in the
following: (1) Improving the CDL program, and (2) modernizing CDLIS as
required by 49 U.S.C. 31309(e)(1)(D). FMCSA will consult with AAMVA and
the States to include the CDLIS changes required by this rule as part
of the CDLIS modernization specifications. An additional possible
source of limited grant funds is the State MCSAP grant funds. (see 49
U.S.C. 31102). Expenses are allowable as part of these grant programs
for the implementation of these requirements to reach compliance by the
required effective date of the final rule. These are 80 percent Federal
grant funds, and 20 percent State matching funds that cannot come from
any other FMCSA grant.

State Operating Costs After Implementation

Currently, FMCSA's CDL grant funds may not be used to support day-
to-day operating expenses of State licensing agencies. Therefore, CDL
grant funds are not authorized for assisting States with the ongoing
operating costs they will incur to comply with the requirements set
forth in this final rule. Beyond the compliance date, the Agency
assumes that States would adjust either their driver fees or their
authorized budgets to cover the new additional costs to remain in
compliance with these medical certification and CDL requirements.
Whether any such CDL State grant funds would be included in the FMCSA
reauthorization is unknown.

Statement of Extent to Which FMCSA Has Addressed the Concerns of State
and Local Government Officials

The Agency is required to implement regulations to merge the
medical certification and CDL issuance and renewal processes in order
to meet the requirement of section 215 of MCSIA. FMCSA believes, that
within its funding limitations, the alternative selected for
implementing the congressional mandate of section 215 of MCSIA responds
to the concerns raised by State and local officials prior to and during
the Agency's development of this final rule to minimize unfunded
impacts on the States. During the rulemaking process, FMCSA provided
all affected State and local officials with notice and an opportunity
for appropriate participation in the proceedings. Based on the States'
requests to revisit the costs of this rule, the Agency initiated a
process to gather additional cost information from a group of selected
representative States to re-evaluate the economic burdens imposed on
them by the requirements. While the revised 10-year costs associated
with this medical certification program are estimated at $154.4 million
when discounted at 7 percent; FMCSA estimates that this rule will
result in the avoidance of 0.09 percent of the crashes involving trucks
with a GVWR of greater than 26,000 pounds, or approximately 288 crashes
per year, for a total of approximately $42.6 million in annual
undiscounted crash avoidance benefits, and a total 10 year benefit of
$183 million when discounted at 7 percent. The net benefit over 10
years is estimated at $28.7 million using a 7 percent discount rate.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 requires that agencies
prepare analyses of rules that would result in the expenditure by
State, local, and tribal governments, or by the private sector, of $100
million or more in any one year. Department of Transportation guidance
requires the use of a revised threshold figure of $136.1 million, which
is the value of $100 million in 2008 after adjusting for inflation.
FMCSA has determined that the impact of this rulemaking will not be
that large in any projected year.
The estimated costs of this final rule are presented in the table
below. The estimated costs to States of this rule will not exceed $22
million in any 1 year. This figure is well below the $136.1 million
threshold used by the Department in making an unfunded mandate
determination.\11\ Total 5-year costs are estimated at $ 77 million, so
costs average nearly $15.4 million per year. This final rule will not
impose a Federal mandate resulting in the net expenditures by State,
local, or tribal governments, in the aggregate, or by the private
sector, of $136.1 million or more (adjusted annually for inflation) in
any 1 year (2 U.S.C. 1531, et seq.).
---------------------------------------------------------------------------

\11\ Memorandum titled: Departmental Guidance: Threshold of
Significant Regulatory Actions Under the Unfunded Mandates Reform
Act of 1995, From Assistant Secretary for Transportation Policy,
April 5, 2004.

Table 5--State Costs of Final Rule
[Thousands of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1 Year 2 Year 3 Year 4 Year 5 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
State One-Time Costs................................... $11,411 $11,411 $11,411 $0 $0 $34,233
State Ongoing Costs.................................... 0 0 0 21,429 21,429 42,858
-----------------------------------------------------------------------------------------------
5 Year Total........................................ .............. .............. .............. .............. .............. 77,091
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 73121]]

Executive Order 12372 (Intergovernmental Review)

The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal Agency must obtain approval from OMB for each
collection of information it conducts, sponsors, or requires through
regulations. FMCSA analyzed this rule and determined that its
implementation will increase the currently approved information
collection burdens covered by OMB Control No. 2126-0006, titled
``Medical Qualification Requirements,'' and OMB Control No. 2126-0011,
titled ``Commercial Driver Licensing and Test Standards.'' Table 6
below captures the current and future paperwork burden hours associated
with the two approved Medical and CDL information collections.

Table 6--Current and Future Information Collection Burdens
----------------------------------------------------------------------------------------------------------------
Annual burden
OMB Approvals Number hours currently Future change Future annual
approved burden hours burden hours
----------------------------------------------------------------------------------------------------------------
2126-0006................................................ 1,541,534 141,167 1,682,701
2126-0011................................................. 1,391,456 0* 1,391,456
-----------------------------------------------------
Totals............................................... 2,932,990 141,167 3,074,157
----------------------------------------------------------------------------------------------------------------
* This future burden hour estimate for the CDL IC covers only years 1-3. Table 7 below covers the burden hour
estimates for the CDL IC during years 1-3 and subsequent years.

Below is an explanation of how each of the two information
collections shown above will be impacted by this rule.
2126-0006 Medical Qualification Requirement. This rulemaking will
increase slightly the information collection burden associated with the
medical qualification requirement. The increase noted is attributed to
FMCSA's adjustment of its estimate of the total number of medical
examinations and the associated burden hours from 1,541,534 to
1,682,701 hours, and the new requirement for motor carriers to maintain
a copy of the vision or diabetes exemption in the driver qualification
file. Currently, FMCSA manages vision and diabetes exemption programs
under its authority provided at 49 U.S.C. 31136(e) and 31315. Drivers
who are granted an exemption are required under the terms and
conditions of the exemption programs to carry on their person a copy of
the exemption when on duty. Motor carriers are also required to
maintain a copy of the exemption that may be granted from the physical
qualifications standards in the driver's DQ file.
FMCSA notes that the final rule revises the method by which motor
carriers maintain a copy of the medical examiner's certificate in the
CDL driver's DQ file by substituting use of the CDLIS MVR they already
must obtain. Although the final rule increases the time the SDLA must
maintain a copy of the CDL driver's medical examiner's certificate from
6 months to three years from the date of issuance, the information
collection burden reductions for motor carriers are offset by the
information collection burden increases for the SDLAs. The Agency will
retain the requirement for a carrier to place a copy of the non-CDL
driver's medical certificate in the DQ file so that portion of the
information collection burden remains unchanged.
2126-0011, Commercial Driver Licensing and Test Standards. This
information collection supports the DOT Strategic Goal of Safety by
requiring that CDL drivers of CMVs subject to part 391 are properly
licensed according to all applicable Federal requirements. The
information being collected ensures that CDL drivers are qualified to
hold a CDL and operate CMVs, and that States are administering their
CDL programs in compliance with the Federal requirements.
For non-excepted CDL drivers, there is a new requirement that SDLAs
must collect documentation and post the current medical certification
information on the CDLIS driver record.
A non-excepted, interstate driver applicant, applying for a CDL for
the first time, is required to provide an original or a copy of the
medical examiner's certificate to the SDLA before it issues the CDL.
The SDLA then posts the information from the medical examiner's
certificate to the driver's CDLIS driver record for electronic access
by authorized State and Federal personnel via CDLIS and NLETS; and for
drivers and employing motor carriers via the CDLIS MVR. When the driver
renews, updates, or transfers the CDL, the SDLA must verify the
driver's self-certification for the type of driving operations he or
she intends to conduct. If the driver specified non-excepted,
interstate driving, then he or she must obtain a medical certification
status of ``certified,'' before the SDLA can honor the driver's
requested CDL licensing action.
In addition to providing the documentation of physical
qualification status to the SDLA for the initial application for a CDL,
whenever a non-excepted, interstate CDL driver renews his or her
medical certification (because it is about to expire, or there is a
change in the driver's medical condition, or because a new medical
examination is requested by his or her employer) the driver must
provide an original or copy of the new medical examiner's certificate
to the SDLA. It is expected that the driver will mail or perhaps fax
the certificate to the SDLA, if this latter option is determined to be
a viable alternative by the State. The SDLA must then post the new
medical examiner's certificate information to the electronic CDLIS
driver record within 10 business days of receipt of the certificate.
If a non-excepted, interstate CDL driver is no longer medically
certified, the SDLA will be required to notify the driver that the SDLA
is initiating a downgrade proceeding. In this instance, the SDLA must
update the driver's medical certification status on the CDLIS driver
record within 10 business days from ``certified'' to ``not-certified.''
The SDLA will proceed with established State procedures for downgrading
the CDL privilege. The process must be completed and recorded on the
CDLIS driver record by the State within 60 days of the driver's medical
certification expiration date.
The States must be in compliance with this rule by 3 years after
the effective date. Thus, for the first 3 years after the rule takes
effect there will be

[[Page 73122]]

no required change in the total annual burden hours due to this new
medical certification/CDL program change. During these 3 years, the
SDLAs will, however, incur a combined one-time estimated cost of
$36,416,999 to develop legislation and make systems revisions in order
to accommodate the recordkeeping requirements of this new rule. This
includes development of capabilities to record information from the
medical examiner's certificate onto the CDLIS driver record. It also
includes updating all necessary systems to provide medical
certification status information as part of the responses to inquiries
by all users authorized under 49 CFR 394.225(e).
Starting in the 4th and subsequent years, there is an increase in
total annual burden hours due largely to the CDL holders having to
provide the State with their driver qualification certification,
interstate CDL holders providing their medical examiner certificate to
the State and the State recording this information on CDLIS.
The major assumptions used for calculating the information
collection annual burden hours include the following: (1) Currently,
approximately 10 percent of the 12.8 million (or 1.28 million) CDLIS
driver records concern inactive driver records; (2) it will take 3
years for States to pass legislation and make the necessary system
revisions before the first medical certificate would be posted to the
CDLIS driver record; and (3) there are approximately 8.52 million
interstate CDL holders.
The following table 7 summarizes the annual burden hours for
current and future information collection activities for the first 3
years and the 4th and subsequent years. The currently-approved total
annual burden of 1,391,456 hours for the first 3 years remains
unchanged. The increase in the future total annual burden of 211,910
hours in subsequent years is due to the program changes implementing
the new requirements as described above. A detailed analysis of the
annual burden hour changes for each information collection activity can
be found in the Supporting Statement of OMB Control Number 2126-0011.

Table 7--Current and Future Information Collection Burdens
----------------------------------------------------------------------------------------------------------------
Future annual Future annual
Currently burden hours for burden hours for
Current and future information collection activities for approved annual first 3 years subsequent years
states and CDL drivers burden hours (program (program
adjustment) change)
----------------------------------------------------------------------------------------------------------------
State to obtain and record the medical certificate 0 0 205,333
information..............................................
State recording of medical certification status........... 0 0 3,984
State to verify the medical certification status of all 0 0 2,593
interstate CDL drivers...................................
Driver to notify employer of convictions/disqualifications 640,000 640,000 640,000
Driver to complete previous employment paperwork.......... 403,200 403,200 403,200
States to complete compliance certification documents..... 1,632 1,632 1,632
State to complete compliance review documents............. 2,400 2,400 2,400
CDLIS recordkeeping....................................... 212,224 212,224 212,224
Drivers to complete the CDL application................... 48,000 48,000 46,000
CDL Tests Recordkeeping................................... 84,000 84,000 84,000
-----------------------------------------------------
Total Current Burden.................................. 1,391,456 1,391,456 1,603,366
----------------------------------------------------------------------------------------------------------------

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, published
March 1, 2004 (69 FR 9680), that this action is covered by a
Categorical Exclusion (CE) under Appendix 2, paragraph 6(t) in the
Order from further environmental documentation. The CE relates to
regulations that ensure States comply with the provisions of the CMVSA
of 1986 by having appropriate laws, regulations, programs, policies,
procedures, and information systems concerning the qualification and
licensing of persons who apply for, and are issued, a commercial
driver's license. In addition, the Agency believes that the action
includes no extraordinary circumstances that would have any effect on
the quality of the environment. Thus, FMCSA determines that the action
does not require an environmental assessment or an environmental impact
statement.
The Agency analyzed this rule under section 176(c) of the Clean Air
Act (CAA), as amended (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency. This
action is exempt from the CAA's general conformity requirement since it
involves rulemaking and policy development and issuance. (Refer to 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 reasonable that the rule will not increase total CMV
mileage, change the routing of CMVs, how CMVs operate, or the CMV fleet
mix of motor carriers. Interstate drivers who are not operating CMVs in
excepted service are currently required to obtain and maintain medical
certification as proof they meet the physical qualification standards
of 49 CFR part 391. This rulemaking establishes a requirement for
States to record documentation of that physical qualification on the
CDLIS driver record, which is accessible to FMCSA and State licensing
and enforcement agencies through CDLIS, the CDLIS equivalent for NLETS,
and to drivers and employers on the CDLIS MVR.

Executive Order 12898 (Environmental Justice)

FMCSA considered the environmental effects of this final rule in
accordance with Executive Order 12898 and DOT Order 5610.2 on
addressing Environmental Justice for Minority Populations and Low-
Income Populations, published April 15, 1997 (62 FR 18377) and
determined that there are no environmental justice issues associated
with this rule nor any collective environmental impact resulting from
its promulgation. Environmental justice issues would be raised if there
were ``disproportionate'' and ``high and adverse impact'' on

[[Page 73123]]

minority or low-income populations. None of the regulatory alternatives
considered in this rulemaking will result in high and adverse
environmental impacts.

Executive Order 13211 (Energy Effects)

FMCSA analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency determined that implementation of this
rule will not result in a ``significant energy action'' under that
executive order because it will not be economically significant and
will not be likely to have a significant adverse effect on the supply,
distribution, or use of energy.

Privacy Impact Assessment

FMCSA conducted a privacy impact assessment of this final rule as
required by section 522(a)(5) of division H of the Fiscal Year 2005
Omnibus Appropriations Act, Public Law 108-447, 118 Stat. 3268
(December 8, 2004) [set out as a note to 5 U.S.C. 552a]. The assessment
considers any impacts of the final rule on the privacy of information
in an identifiable form and related matters. FMCSA determined that this
initiative will not create any impacts on privacy of information
associated with implementation of this rule. The entire privacy impact
assessment is available in the docket for this final rule.

List of Subjects

49 CFR Part 383

Administrative practice and procedure, Highway safety, and Motor
carriers.

49 CFR Part 384

Administrative practice and procedure, Highway safety,
Incorporation by reference, and Motor carriers.

49 CFR Part 390

Motor carriers, Reporting and recordkeeping requirements, Safety.

49 CFR Part 391

Motor carriers, Reporting and recordkeeping requirements, Safety.

0
In consideration of the foregoing, FMCSA amends parts 383, 384, 390 and
391 of title 49, Code of Federal Regulations, as follows:

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES

0
1. Revise the authority citation for part 383 to read as follows:

Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs.
214 and 215 of Pub. L. 106-159, 113 Stat. 1766, 1767; sec. 1012(b)
of Pub. L. 107-56; 115 Stat. 397; sec. 4140 of Pub. L. 109-59, 119
Stat. 1144, 1726; and 49 CFR 1.73.


0
2. Amend Sec. 383.5 by adding definitions for ``CDL Downgrade'' and
``CDLIS driver record'' in alphabetical order to read as follows:


Sec. 383.5 Definitions.

* * * * *
CDL downgrade means either:
(1) A State allows the driver to change his or her self-
certification to interstate, but operating exclusively in
transportation or operation excepted from part 391, as provided in
Sec. 390.3(f), 391.2, 391.68 or 398.3 of this chapter;
(2) A State allows the driver to change his or her self-
certification to intrastate only, if the driver qualifies under that
State's physical qualification requirements for intrastate only;
(3) A State allows the driver to change his or her certification to
intrastate, but operating exclusively in transportation or operations
excepted from all or part of the State driver qualification
requirements, or
(4) A State removes the CDL privilege from the driver license.
CDLIS driver record means the electronic record of the individual
CDL driver's status and history stored by the State-of-Record as part
of the Commercial Driver's License Information System (CDLIS)
established under 49 U.S.C. 31309.
* * * * *

0
3. Amend Sec. 383.71 by revising paragraph (a) and adding paragraphs
(g) and (h) to read as follows:


Sec. 383.71 Driver application and certification procedures.

(a) Initial Commercial Driver's License. Prior to obtaining a CDL,
a person must meet the following requirements:
(1)(i) Initial Commercial Driver's License Applications Submitted
Prior to January 30, 2012. Any person applying for a CDL prior to
January 30, 2012 must meet the requirements set forth in paragraphs
(a)(2) through (a)(9) of this section, and make the following
applicable certification in paragraph (a)(1)(i)(A) or (B) of this
section:
(A) A person who operates or expects to operate in interstate or
foreign commerce, or is otherwise subject to 49 CFR part 391, must
certify that he/she meets the qualification requirements contained in
part 391 of this title; or
(B) A person who operates or expects to operate entirely in
intrastate commerce and is not subject to part 391, is subject to State
driver qualification requirements and must certify that he/she is not
subject to part 391.
(ii) Initial Commercial Driver's License Applications Submitted On
or After January 30, 2012. Any person applying for a CDL on or after
January 30, 2012 must meet the requirements set forth in paragraphs
(a)(2) through (a)(9), and (h) of this section, and make one of the
following applicable certifications in paragraph (a)(ii)(A) or (B) of
this section:
(A) Non-excepted interstate. A person must certify that he or she
operates or expects to operate in interstate commerce, is both subject
to and meets the qualification requirements under 49 CFR part 391, and
is required to obtain a medical examiner's certificate by Sec. 391.45
of this chapter;
(B) Excepted interstate. A person must certify that he or she
operates or expects to operate in interstate commerce, but engages
exclusively in transportation or operations excepted under 49 CFR
390.3(f), 391.2, 391.68 or 398.3 from all or parts of the qualification
requirements of 49 CFR part 391, and is therefore not required to
obtain a medical examiner's certificate by 49 CFR 391.45 of this
chapter;
(C) Non-excepted intrastate. A person must certify that he or she
operates only in intrastate commerce and therefore is subject to State
driver qualification requirements; or
(D) Excepted intrastate. A person must certify that he or she
operates in intrastate commerce, but engages exclusively in
transportation or operations excepted from all or parts of the State
driver qualification requirements.
* * * * *
(g) Existing CDL Holder's Self-Certification. Every person who
holds a CDL must provide to the State on or after January 30, 2012, but
not later than January 30, 2014 the certification contained in Sec.
383.71(a)(1)(ii).
(h) Medical Certification Documentation Required by the State. An
applicant or CDL holder who certifies to non-excepted, interstate
driving operations according to Sec. 383.71(a)(1)(ii)(A) must comply
with applicable requirements in paragraphs (h)(1) through (3) of this
section:
(1) New CDL applicants. After January 30, 2012, a new CDL applicant
who certifies that he or she will operate CMVs in non-excepted,
interstate commerce must provide the State with an original or copy (as
required by the State) of a medical examiner's certificate prepared by
a medical examiner, as defined in Sec. 390.5 of this chapter, and

[[Page 73124]]

the State will post a certification status of ``certified'' on the
Commercial Driver's License Information System (CDLIS) driver record
for the driver;
(2) Existing CDL holders. By January 30, 2014, provide the State
with an original or copy (as required by the State) of a current
medical examiner's certificate prepared by a medical examiner, as
defined in 49 CFR 390.5, and the State will post a certification status
of ``certified'' on CDLIS driver record for the driver. If the non-
excepted, interstate CDL holder fails to provide the State with a
current medical examiner's certificate, the State will post a
certification status of ``not-certified'' in the CDLIS driver record
for the driver, and initiate a CDL downgrade following State procedures
in accordance with section 383.73(j)(4); and
(3) Maintaining the medical certification status of ``certified.''
In order to maintain a medical certification status of ``certified,''
after January 30, 2012, a CDL holder who certifies that he or she will
operate CMVs in non-excepted, interstate commerce must provide the
State with an original or copy (as required by the State) of each
subsequently issued medical examiner's certificate.

0
5. Amend Sec. 383.73 by:
0
a. Adding paragraph (a)(3)(v);
0
b. Redesignating existing paragraph (a)(5) as (a)(6);
0
c. Adding a new paragraph (a)(5);
0
d. Removing the ``and'' from the end of paragraph (b)(4)(ii);
0
e. Removing the period and adding ``; and'' at the end of paragraph
(b)(5);
0
f. Adding paragraph (b)(6);
0
g. Removing ``and'' at the end of paragraph (c)(3);
0
h. Removing the period and adding ``; and'' at the end of paragraph
(c)(4);
0
i. Adding paragraph (c)(5);
0
j. Removing ``and'' at the end of paragraph (d)(1);
0
k. Removing the period and adding ``; and'' at the end of paragraph
(d)(2); and
0
l. Adding paragraphs (d)(3) and (j).
The additions read as follows:


Sec. 383.73 State procedures.

(a) * * *
(3) * * *
(v) Beginning January 30, 2012, a check that the medical
certification status of a driver that self-certified according to Sec.
383.71(a)(1)(ii)(A) (non-excepted interstate) is ``certified;''
* * * * *
(5) Beginning January 30, 2012, for drivers who certified their
type of driving according to Sec. 383.71(a)(1)(ii)(A) (non-excepted
interstate) and, if the CDL driver submits a current medical examiner's
certificate, provide the driver with a receipt, which is a date-stamped
original or copy of the medical examiner's certificate, and post all
required information from the medical examiner's certificate to the
CDLIS driver record in accordance with paragraph (j) of this section.
* * * * *
(b) * * *
(6)(i) Beginning January 30, 2012, verify from the CDLIS driver
record that that the medical certification status of driver is
``certified'' for those who certified according to Sec.
383.71(a)(1)(ii)(A).
(ii) Exception. A driver who certified according to Sec.
383.71(a)(1)(ii)(A) that he or she plans to operate in non-excepted
interstate commerce may present a current medical examiner's
certificate issued prior to January 30, 2012. The medical examiner's
certificate provided by the driver must be posted to the CDLIS driver
record in accordance with paragraph (j) of this section.
(c) * * *
(5)(i) Beginning January 30, 2012, verify from the CDLIS driver
record that the medical certification status is ``certified'' for
drivers who self-certified according to Sec. 383.71(a)(1)(ii)(A).
(ii) Exception. A driver who certified according to Sec.
383.71(a)(1)(ii)(A) may present a current medical examiner's
certificate issued prior to January 30, 2012. The medical examiner's
certificate provided by the driver must be posted to the CDLIS driver
record in accordance with paragraph (j) of this section.
(d) * * *
(3)(i) Beginning January 30, 2012, verify from the CDLIS driver
record that the medical certification status is ``certified'' for
drivers who self-certified according to Sec. 383.71(a)(1)(ii)(A).
(ii) Exception. A driver who certified according to Sec.
383.71(a)(1)(ii)(A) may present a current medical examiner's
certificate issued prior to January 30, 2012. The medical examiner's
certificate provided by the driver must be posted to the CDLIS driver
record in accordance with paragraph (j) of this section.
* * * * *
(j) Medical recordkeeping. (1) Status of CDL Holder. Beginning
January 30, 2012, for each operator of a commercial motor vehicle
required to have a commercial driver's license, the current licensing
State must:
(i) Post the driver's self-certification of type of driving under
Sec. 383.71(a)(1)(ii),
(ii) Retain the original or a copy of the medical certificate of
any driver required to provide documentation of physical qualification
for 3 years beyond the date the certificate was issued, and
(iii) Post the information from the medical examiner's certificate
within 10 business days to the CDLIS driver record, including:
(A) Medical examiner's name;
(B) Medical examiner's telephone number;
(C) Date of medical examiner's certificate issuance;
(D) Medical examiner's license or certificate number and the State
that issued it;
(E) Medical examiner's National Registry identification number (if
the National Registry of Medical Examiners, mandated by 49 U.S.C.
31149(d), requires one);
(F) The indicator of medical certification status, i.e.,
``certified'' or ``not-certified'';
(G) Expiration date of the medical examiner's certificate;
(H) Existence of any medical variance on the medical certificate,
such as an exemption, Skill Performance Evaluation (SPE) certification,
or grandfather provisions;
(I) Any restrictions (e.g., corrective lenses, hearing aid,
required to have possession of an exemption letter or SPE certificate
while on-duty, etc.); and
(J) Date the medical examiner's certificate information was posted
to the CDLIS driver record.
(2) Status update. Beginning January 30, 2012, the State must,
within 10 calendar days of the driver's medical certification status
expiring or a medical variance expiring or being rescinded, update the
medical certification status of that driver as ``not-certified.''
(3) Variance update. Beginning January 30, 2012, within 10 calendar
days of receiving information from FMCSA regarding issuance or renewal
of a medical variance for a driver, the State must update the CDLIS
driver record to include the medical variance information provided by
FMCSA.
(4) Downgrade. (i) Beginning January 30, 2012, if a driver's
medical certification or medical variance expires, or FMCSA notifies
the State that a medical variance was removed or rescinded, the State
must:
(A) Notify the CDL holder of his or her CDL ``not-certified''
medical certification status and that the CDL privilege will be removed
from the driver license unless the driver submits a current medical
certificate and/or medical variance, or changes his or her self-
certification to driving only in excepted or intrastate commerce (if
permitted by the State);

[[Page 73125]]

(B) Initiate established State procedures for downgrading the
license. The CDL downgrade must be completed and recorded within 60
days of the driver's medical certification status becoming ``not-
certified'' to operate a CMV.
(ii) Beginning January 30, 2014, if a driver fails to provide the
State with the certification contained in Sec. 383.71(a)(1)(ii), or a
current medical examiner's certificate if the driver self-certifies
according to 383.71(a)(1)(ii)(A) that he or she is operating in non-
excepted interstate commerce as required by Sec. 383.71(h), the State
must mark that CDLIS driver record as ``not-certified'' and initiate a
CDL downgrade following State procedures in accordance with paragraph
(j)(4)(i)(B) of this section.
(5) FMCSA Medical Programs is designated as the keeper of the list
of State contacts for receiving medical variance information from
FMCSA. Beginning January 30, 2012, States are responsible for insuring
their medical variance contact information is always up-to-date with
FMCSA's Medical Programs.

0
6. Revise Sec. 383.95 to read as follows:


Sec. 383.95 Restrictions.

(a) Air Brake Restrictions. (1) If an applicant either fails the
air brake component of the knowledge test, or performs the skills test
in a vehicle not equipped with air brakes, the State must indicate on
the CDL, if issued, that the person is restricted from operating a CMV
equipped with air brakes.
(2) For the purposes of the skills test and the restriction, air
brakes shall include any braking system operating fully or partially on
the air brake principle.
(b) Medical Variance Restrictions. If the State is notified
according to Sec. 383.73(j)(3) that the driver has been issued a
medical variance, the State must indicate the existence of such a
medical variance on the CDLIS driver record and the CDL document, if
issued, using the restriction code ``V'' indicating there is
information about a medical variance on the CDLIS driver record. NOTE:
In accordance with the agreement between Canada and the United States
(see footnote to Sec. 391.41), drivers with a medical variance
restriction code on their commercial driver license are restricted from
operating a CMV in the other country.

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

0
7. Revise the authority citation for 49 CFR part 384 to read as
follows:

Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; secs. 103
and 215 of Pub. L. 106-159, 113 Stat. 1753, 1767; and 49 CFR 1.73.


0
8. Amend Sec. 384.105(b) by adding in alphabetical order the
definition for ``CDLIS motor vehicle record'' to read as follows:


Sec. 384.105 Definitions.

* * * * *
(b) * * *
CDLIS motor vehicle record (CDLIS MVR) means a report generated
from the CDLIS driver record meeting the requirements for access to
CDLIS information and provided by States to users authorized in Sec.
384.225(e)(3) and (4), subject to the provisions of the Driver Privacy
Protection Act, 18 U.S.C. 2721-2725.
* * * * *

0
9. Revise Sec. 384.107(b) and (c) to read as follows:


Sec. 384.107 Matter incorporated by reference.

* * * * *
(b) Materials incorporated. The AAMVA, Inc.'s ``Commercial Driver
License Information System (CDLIS) State Procedures Manual,'' Version
4.1.0, September 2007 (``CDLIS State Procedures Manual''), IBR approved
for Sec. Sec. 384.225(f) and 384.231(d).
(c) Addresses. (1) All of the materials incorporated by reference
are available for inspection at:
(i) The Department of Transportation Library, 1200 New Jersey Ave.,
SE., Washington, DC 20590-0001; telephone is (202) 366-0746. These
documents are also available for inspection and copying as provided in
49 CFR part 7.
(ii) The National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal_register/code_of_
federal_regulations/ibr_locations.html
.
(2) Information and copies of all of the materials incorporated by
reference may be obtained by writing to: American Association of Motor
Vehicle Administrators, Inc., 4301 Wilson Blvd, Suite 400, Arlington,
VA 22203; Web site is http://www.aamva.org.

0
10. Amend Sec. 384.206 by:
0
a. Removing the phrase ``driving record'' and adding in its place
``driver record'' wherever it occurs in paragraphs (a)(2)(ii) and
(iii); and
0
b. Revising paragraphs (a)(1) and (b) to read follows:


Sec. 384.206 State record checks.

(a) Required checks--(1) Issuing State's records. Before issuing,
renewing, upgrading, or transferring a CDL to any person, the driver's
State of record must, within the period of time specified in Sec.
384.232, check its own records as follows:
(i) The driver record of the person in accordance with Sec.
383.73(a)(3)(i) of this chapter; and
(ii) For a driver who certifies that his or her type of driving is
not-excepted, interstate commerce according to Sec.
383.71(a)(1)(ii)(A) of this chapter, the medical certification status
information on the person's CDLIS driver record.
* * * * *
(b) Required action. Based on the findings of the State record
checks prescribed in this section, the State of record must do one of
the following as appropriate:
(1) Issue, renew, upgrade or transfer the applicant's CDL;
(2) In the event a State obtains adverse information regarding the
applicant, promptly implement the disqualifications, licensing
limitations, denials, or penalties that are called for in any
applicable sections of this subpart; or
(3) In the event there is no information regarding the driver's
self-certification for driving type that is required by Sec.
383.71(a)(1)(ii), or for a driver who is required by Sec. 383.71(h) to
be ``certified;'' if the medical certification status of the individual
is ``not-certified,'' the State must deny the CDL action requested by
the applicant and initiate a downgrade of the CDL, if required by Sec.
383.73(j)(4) of this chapter.


Sec. 384.208 [Amended]

0
11. Amend Sec. 384.208(b) by removing the phrase ``driver's record''
and adding in its place the phrase ``CDLIS driver record''.

0
12. Amend Sec. 384.225 by:
0
a. Revising the heading of the section to read as set forth below;
0
b. Removing the term ``driver history'' wherever it occurs and adding
in its place the term ``CDLIS driver record''; and
0
c. Revising paragraphs (a) and (e) and adding a new paragraph (f) to
read as follows:


Sec. 384.225 CDLIS driver recordkeeping.

* * * * *
(a) CDL holder. Post and maintain as part of the CDLIS driver
record:
(1) All convictions, disqualifications and other licensing actions
for

[[Page 73126]]

violations of any State or local law relating to motor vehicle traffic
control (other than a parking violation) committed in any type of
vehicle.
(2) Medical certification status information.
(i) Driver self-certification for the type of driving operations
provided in accordance with Sec. 383.71(a)(1)(ii) of this chapter, and
(ii) Information from medical certification recordkeeping in
accordance with Sec. 383.73(j) of this chapter.
* * * * *
(e) Only the following users or their authorized agents may receive
the designated information:
(1) States--All information on all CDLIS driver records.
(2) Secretary of Transportation--All information on all CDLIS
driver records.
(3) Driver--All information on that driver's CDLIS driver record
obtained on the CDLIS Motor Vehicle Record from the State according to
its procedures.
(4) Motor Carrier or Prospective Motor Carrier--After notification
to a driver, all information on that driver's, or prospective driver's,
CDLIS driver record obtained on the CDLIS Motor Vehicle Record from the
State according to its procedures.
(f) The content of the report provided a user authorized by
paragraph (e) of this section from the CDLIS driver record, or from a
copy of this record maintained for use by the National Law Enforcement
Telecommunications System, must be comparable to the report that would
be generated by a CDLIS State-to-State request for a CDLIS driver
history, as defined in the ``CDLIS State Procedures Manual''
(incorporated by reference, see Sec. 384.107(b)), and must include the
medical certification status information of the driver in paragraph
(a)(2) of this section. This does not preclude authorized users from
requesting a CDLIS driver status.


Sec. 384.226 [Amended]

0
13. Amend Sec. 384.226 by removing the phrase ``driver's record'' and
adding in its place the phrase ``CDLIS driver record''.


Sec. 384.231 [Amended]

0
14. Amend Sec. 384.231(d) by removing the phrase ``October 1998
edition of the AAMVAnet, Inc.'s `Commercial Driver License Information
System (CDLIS) State Procedures,' Version 2.0 (Incorporated by
reference, see Sec. 384.107)'' and adding in its place the phrase
``CDLIS State Procedures Manual (incorporated by reference in Sec.
384.107(b)).''

0
15. Add new Sec. 384.234 to read as follows:


Sec. 384.234 Driver medical certification recordkeeping.

The State must meet the medical certification recordkeeping
requirements of Sec. Sec. 383.73(a)(5) and (j) of this chapter.

0
16. Amend Sec. 384.301 by adding a new paragraph (d) to read as
follows:


Sec. 384.301 Substantial compliance--general requirements.

* * * * *
(d) A State must come into substantial compliance with the
requirements of subpart B of this part in effect as of January 30,
2009, as soon as practical, but not later than January 30, 2012.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
17. The authority citation for part 390 continues to read as follows:

Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502,
31504, and sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C.
701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; sec.
217, 229, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 1.73.


0
18. Amend Sec. 390.5 by adding in alphabetical order the definitions
for ``medical variance'' and ``motor vehicle record'' as follows:


Sec. 390.5 Definitions.

* * * * *
Medical variance means a driver has received one of the following
from FMCSA that allows the driver to be issued a medical certificate:
(1) An exemption letter permitting operation of a commercial motor
vehicle pursuant to part 381, subpart C, of this chapter or Sec.
391.64 of this chapter;
(2) A skill performance evaluation certificate permitting operation
of a commercial motor vehicle pursuant to Sec. 391.49 of this chapter.
* * * * *
Motor vehicle record means the report of the driving status and
history of a driver generated from the driver record, provided to
users, such as, drivers or employers, and subject to the provisions of
the Driver Privacy Protection Act, 18 U.S.C. 2721-2725.
* * * * *

PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTORS

0
19. Revise the authority citation for part 391 to read as follows:

Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, and 31502;
sec. 4007(b) of Pub. L. 102-240, 105 Stat. 2152; sec. 114 of Pub. L.
103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113
Stat. 1767; and 49 CFR 1.73.


0
20. Amend Sec. 391.2 by revising the heading of the section to read as
follows:


Sec. 391.2 General exceptions.

0
21. Amend Sec. 391.23 by:
0
a. Revising paragraphs (a)(1) and (b); and
0
b. Adding paragraph (m) to read as follows:


Sec. 391.23 Investigation and inquiries.

(a) * * *
(1) An inquiry to each State where the driver held or holds a motor
vehicle operator's license or permit during the preceding 3 years to
obtain that driver's motor vehicle record.
* * * * *
(b) A copy of the motor vehicle record(s) obtained in response to
the inquiry or inquiries to each State required by paragraph (a)(1) of
this section must be placed in the driver qualification file within 30
days of the date the driver's employment begins and be retained in
compliance with Sec. 391.51. If no motor vehicle record is received
from the State or States required to submit this response, the motor
carrier must document a good faith effort to obtain such information,
and certify that no record exists for that driver in that State or
States. The inquiry to the State driver licensing agency or agencies
must be made in the form and manner each agency prescribes.
* * * * *
(m)(1) The motor carrier must obtain an original or copy of the
medical examiner's certificate issued in accordance with Sec. 391.43,
and any medical variance on which the certification is based, and place
the records in the driver qualification file, before allowing the
driver to operate a CMV.
(2) Exception. For drivers required to have a commercial driver's
license under part 383 of this chapter:
(i) Beginning January 30, 2012, using the CDLIS motor vehicle
record obtained from the current licensing State, the motor carrier
must verify and document in the driver qualification file the following
information before allowing the driver to operate a CMV:
(A) The type of operation the driver self-certified that he or she
will perform in accordance with Sec. Sec. 383.71(a)(1)(ii) and
383.71(g) of this chapter, or

[[Page 73127]]

(B) Exception. If the driver has provided the motor carrier with a
date-stamped receipt from the State driver licensing agency for the
medical examiner's certificate given to the driver in accordance with
Sec. 383.73(a)(5) of this chapter, the motor carrier may use that
receipt as proof of the driver's medical certification for up to 15
days after the date stamped on the receipt.
(ii) Until January 30, 2014, if a driver operating in non-excepted,
interstate commerce has no medical certification status information on
the CDLIS MVR obtained from the current State driver licensing agency,
the employing motor carrier may accept a medical examiner's certificate
issued to that driver prior to January 30, 2012, and place a copy of it
in the driver qualification file before allowing the driver to operate
a CMV in interstate commerce.


Sec. 391.25 [Amended]

0
22. Amend Sec. 391.25 by:
0
a. Removing the phrase ``into the driving record'' and adding in its
place the phrase ``to obtain the motor vehicle record'' in paragraph
(a);
0
b. Removing the phrase ``driving record'' and adding in its place the
phrase ``motor vehicle record'' in paragraph (b) introductory text; and
0
c. Removing the phrase ``response from each State agency to the
inquiry'' and adding in its place the phrase ``motor vehicle record''
in paragraph (c)(1).

0
23. Amend Sec. 391.41 by revising paragraph (a) to read as follows:


Sec. 391.41 Physical qualifications for drivers.

(a) (1) (i) A person subject to this part must not operate a
commercial motor vehicle unless he or she is medically certified as
physically qualified to do so, and, except as provided in paragraph
(a)(2) of this section, when on-duty has on his or her person the
original, or a copy, of a current medical examiner's certificate that
he or she is physically qualified to drive a commercial motor vehicle.
NOTE: Effective December 29, 1991, the FMCSA Administrator determined
that the new Licencia Federal de Conductor issued by the United Mexican
States is recognized as proof of medical fitness to drive a CMV. The
United States and Canada entered into a Reciprocity Agreement,
effective March 30, 1999, recognizing that a Canadian commercial
driver's license is proof of medical fitness to drive a CMV. Therefore,
Canadian and Mexican CMV drivers are not required to have in their
possession a medical examiner's certificate if the driver has been
issued, and possesses, a valid commercial driver license issued by the
United Mexican States, or a Canadian Province or Territory and whose
license and medical status, including any waiver or exemption, can be
electronically verified. Drivers from any of the countries who have
received a medical authorization that deviates from the mutually
accepted compatible medical standards of the resident country are not
qualified to drive a CMV in the other countries. For example, Canadian
drivers who do not meet the medical fitness provisions of the Canadian
National Safety Code for Motor Carriers, but are issued a waiver by one
of the Canadian Provinces or Territories, are not qualified to drive a
CMV in the United States. In addition, U.S. drivers who received a
medical variance from FMCSA are not qualified to drive a CMV in Canada.
(ii) A person who qualifies for the medical examiner's certificate
by virtue of having obtained a medical variance from FMCSA, in the form
of an exemption letter or a skill performance evaluation certificate,
must have on his or her person a copy of the variance documentation
when on-duty.
(2) CDL exception. (i) Beginning January 30, 2012, a driver
required to have a commercial driver's license under part 383 of this
chapter, and who submitted a current medical examiner's certificate to
the State in accordance with Sec. 383.71(h) of this chapter
documenting that he or she meets the physical qualification
requirements of this part, no longer needs to carry on his or her
person the medical examiner's certificate specified at Sec. 391.43(h),
or a copy. If there is no medical certification information on that
driver's CDLIS motor vehicle record defined at 49 CFR 384.105, a
current medical examiner's certificate issued prior to January 30,
2012, will be accepted until January 30, 2014. After January 30, 2014,
a driver may use the date-stamped receipt (given to the driver by the
State driver licensing agency) for up to 15 days after the date stamped
on that receipt as proof of medical certification.
(ii) A CDL driver required by Sec. 383.71(h) to obtain a medical
examiner's certificate who obtained such by virtue of having obtained a
medical variance from FMCSA must continue to have in his or her
possession the original or copy of that medical variance documentation
at all times when on-duty.
(3) A person is physically qualified to drive a commercial motor
vehicle if:
(i) That person meets the physical qualification standards in
paragraph (b) of this section and has complied with the medical
examination requirements in Sec. 391.43; or
(ii) That person obtained from FMCSA a medical variance from the
physical qualification standards in paragraph (b) of this section and
has complied with the medical examination requirement in Sec. 391.43.
* * * * *

0
24. Amend Sec. 391.43 by revising paragraph (g) to read as follows:


Sec. 391.43 Medical examination; certificate of physical
qualification.

* * * * *
(g)(1) If the medical examiner finds that the person examined is
physically qualified to operate a commercial motor vehicle in
accordance with Sec. 391.41(b), the medical examiner should complete a
certificate in the form prescribed in paragraph (h) of this section and
furnish the original to the person who was examined. The examiner may
provide a copy to a prospective or current employing motor carrier who
requests it.
(2) For all drivers examined, the medical examiner should retain a
copy of the Medical Examination Report at least 3 years from the date
of the examination. If the driver was certified as physically
qualified, then the medical examiner should also retain the medical
certificate as well for at least 3-years from the date the certificate
was issued.
* * * * *

0
25. Amend Sec. 391.51 by:
0
a. Removing the phrase ``response by each State agency concerning a
driver's driving record'' and adding in its place the phrase ``motor
vehicle record received from each State'' in paragraph (b)(2).
0
b. Removing the phrase ``response of each State agency'' and adding in
its place the phrase ``motor vehicle record received from each State
driver licensing agency'' in paragraph (b)(4).
0
c. Removing the phrase ``response of each State agency'' and adding in
its place the phrase ``motor vehicle record received from each State
driver licensing agency'' in paragraph (d)(1); and
0
d. Revising paragraphs (b)(7), (b)(8), (d)(4) and (d)(5) to read as
follows:


Sec. 391.51 General requirements for driver qualification files.

* * * * *
(b) * * *
(7) (i) The medical examiner's certificate as required by Sec.
391.43(g) or a legible copy of the certificate.
(ii) Exception. For CDL drivers beginning January 30, 2012, if the
CDLIS motor vehicle record contains medical

[[Page 73128]]

certification status information, the motor carrier employer must meet
this requirement by obtaining the CDLIS motor vehicle record defined at
Sec. 384.105 of this chapter. That record must be obtained from the
current licensing State and placed in the driver qualification file.
After January 30, 2014, a non-excepted, interstate CDL driver without
medical certification status information on the CDLIS motor vehicle
record is designated ``not-certified'' to operate a CMV in interstate
commerce. For up to 15 days from the date stamped on the receipt of the
medical examiner's certificate, provided to the driver by the State
driver licensing agency, a motor carrier may use that receipt as proof
of the driver's medical certification.
(iii) If that driver obtained the medical certification based on
having obtained a medical variance from FMCSA, the motor carrier must
also include a copy of the medical variance documentation in the driver
qualification file in accordance with Sec. 391.51(b)(8); and
(8) A Skill Performance Evaluation Certificate obtained from a
Field Administrator, Division Administrator, or State Director issued
in accordance with Sec. 391.49; or the Medical Exemption document,
issued by a Federal medical program in accordance with part 381 of this
chapter.
* * * * *
(d) * * *
(4) The medical examiner's certificate required by Sec. 391.43(g),
a legible copy of the certificate, or for CDL drivers any CDLIS MVR
obtained as required by Sec. 391.51(b)(7)(ii); and
(5) Any medical variance issued by FMCSA, including a Skill
Performance Evaluation Certificate issued in accordance with Sec.
391.49; or the Medical Exemption letter issued by a Federal medical
program in accordance with part 381 of this chapter.

Issued on: November 20, 2008.
John H. Hill,
Administrator.
[FR Doc. E8-28173 Filed 11-28-08; 8:45 am]

BILLING CODE 4910-EX-P