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Commercial Driver's License Testing and Commercial Learner's Permit Standards

[Federal Register Volume 78, Number 57 (Monday, March 25, 2013)]
[Rules and Regulations]
[Pages 17875-17882]
From the Federal Register Online via the Government Printing Office [http://www.gpo.gov/]
[FR Doc No: 2013-06760]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383 and 384
[Docket No. FMCSA-2007-27659]
RIN 2126-AB59

Commercial Driver's License Testing and Commercial Learner's Permit Standards
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: FMCSA amends its May 9, 2011, final rule in response to certain petitions for reconsideration. The 2011 final rule amended the commercial driver's license (CDL) knowledge and skills testing standards and established new minimum Federal standards for States to issue the commercial learner's permit (CLP). The Agency received 34 petitions for reconsideration that covered a wide range of issues. FMCSA granted or denied each of these petitions, by orders available in the docket referenced at the beginning of this notice. Today's final rule addresses the petitions that were granted.

DATES: This final rule is effective on April 24, 2013.


FOR FURTHER INFORMATION CONTACT: Robert Redmond, Office of Safety

Programs, Commercial Driver's License Division, telephone (202) 366-

5014 or email This email address is being protected from spambots. You need JavaScript enabled to view it. . Office hours are from 8:00 a.m.

to 4:30 p.m. If you have questions on the docket, call Ms. Barbara

Hairston, Docket Operations, telephone 202-366-3024.

 

SUPPLEMENTARY INFORMATION:

 

I. Legal Basis

 

    This rule is based on the same authority as FMCSA's final rule on

``Commercial Driver's License Testing and Commercial Learner's Permit

Standards'' published on May 9, 2011 [76 FR 26854]; for a complete

discussion of that authority, see the Legal Basis section of the 2011

rule [76 FR at 26855].

    Briefly, this rule implements or revises certain provisions of the

Commercial Motor Vehicle Safety Act of 1986 (CMVSA), as amended [49

U.S.C. chapter 313]; the Motor Carrier Safety Act of 1984 (MCSA), as

amended [49 U.S.C. 31136]; and the Motor Carrier Act of 1935 (MCA) [49

U.S.C. 31502(b)]. The rule also carries out certain provisions of the

Transportation Equity Act for the 21st Century (TEA-21) [Pub. L. 105-

178, 112 Stat. 107, June 9, 1998]; the Safe, Accountable, Flexible,

Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)

[Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005]; and the Security and

Accountability For Every Port Act of 2006 (SAFE Port Act) [Pub. L. 109-

347, 120 Stat. 1884, Oct. 13, 2006].

    The CMVSA established the commercial driver's license (CDL) and

drug and alcohol testing programs. The MCSA directed FMCSA to ensure

that its safety regulations meet certain general objectives. That

statute also underlies most of FMCSA's safety regulations including, as

supplemental authority, those related to the CDL program. The MCSA

inaugurated Federal regulation of motor carrier safety and provided

broad authority over for-hire and private motor carriers.

    Sec. 4019 of TEA-21 required the Department of Transportation (DOT)

to determine whether the CDL testing system accurately measures the

knowledge and skills needed to operate a commercial motor vehicle (CMV)

and, if not, to correct the system. Sec. 4122 of SAFETEA-LU required

FMCSA to prescribe regulations on minimum uniform standards for the

issuance of commercial learner's permits (CLPs), as it had already done

for CDLs. Sec. 703 of the SAFE Port Act required the Secretary of

Transportation to carry out recommendations issued by the DOT's Office

of Inspector General (OIG) in 2002, 2004, and 2006 concerning

performance-oriented requirements for English language proficiency,

verification of the legal status of commercial drivers, and fraud-

reduction in the CDL program. The 2011 final rule implemented all of

these mandates.

 

[[Page 17876]]

 

    The Agency received 34 petitions seeking reconsideration of various

elements of the 2011 rule. FMCSA is adopting this rule without

additional notice and opportunity for comment because the issues raised

by petitioners have already been subjected to the full range of notice

and comment, starting with the notice of proposed rulemaking (NPRM) in

2008 [73 FR 19282, April 9, 2008]. Many parties submitted comments on

the NPRM; the Agency responded at length in the preamble to the 2011

rule. A number of the petitions for reconsideration repeated the

comments and suggestions submitted to the Agency in response to the

2008 NPRM. However, some of the petitions included additional analyses

and data such that FMCSA is persuaded to adopt changes to the 2011

final rule. These changes include non-substantive changes to clarify

the Agency's intent and to resolve confusion over the rule's

requirements. The changes also include amendments to lessen the

regulatory burden the 2011 rule placed on both public and private

entities where such changes fall within the scope of or are the logical

outgrowth of the 2008 NPRM. One final change expands the amount of time

States have to come into compliance with the new requirements because

of changes made in today's final rule. Under these circumstances, a

further round of notice and comment would serve no purpose and is not

required by the Administrative Procedure Act.

 

II. Background

 

    On April 9, 2008, FMCSA issued a notice of proposed rulemaking

(NPRM) to amend the CDL knowledge and skills testing standards and

establish new minimum Federal standards for States to issue the

commercial learner's permit (CLP) (73 FR 19282). On May 9, 2011, FMCSA

issued a final rule implementing these changes. In response to the

final rule, FMCSA received 34 petitions for reconsideration. FMCSA has

decided to publish a new final rule amending several provisions of the

May 9, 2011 rule.

    For additional background information, please see the Background

section of the May 9, 2011 final rule (76 FR 26854).

 

III. Discussion of the Petitions for Reconsideration

 

    After careful review, FMCSA decided to grant some petitions, in

whole or in part, and deny others. As a result, FMCSA is publishing a

new final rule modifying seven provisions of the May 2011 final rule.

The grant and denial orders are available in this rulemaking docket,

referenced at the beginning of this notice.

    In this final rule, FMCSA modifies the following provisions, which

granted, in whole or in part, are in response to the petitions for

reconsideration:

    1. State Procedures--49 CFR 383.73(a)(2)(vi), (b)(6), (c)(7),

(d)(7), and (e)(5)

    2. Requiring Two Employees To Verify Documents--49 CFR 383.73(m)

    3. Prohibiting Training Schools From Administering Skills Tests--49

CFR 383.75(a)(7)

    4. Bonding Requirements--49 CFR 383.75(a)(8)(v)

    5. Prohibiting States From Using a Photo on the CLP--49 CFR

383.153(b)(1) and 384.227

    6. Requiring Annual Background Checks for Skills Test Examiners--49

CFR 384.228(h)

    7. Although FMCSA initially denied petitions seeking to delay the

May 2011 final rule's compliance date, FMCSA reverses that decision and

modifies the following additional provision: Substantial compliance--

general requirements--49 CFR 384.301(f). FMCSA denied the remaining

issues submitted for reconsideration.

 

State Procedures--49 CFR 383.73(a)(2)(vi), (b)(6), (c)(7), (d)(7), and

(e)(5)

 

    Sections 383.73(b)(6) and 383.73(c)(7) require States to check for

legal presence and domicile, but provide for an exception stating that

this only needs to be done once after July 8, 2011, provided that a

notation is made on an individual's record. Some States requested that

the Agency extend this exception to renewals and upgrades.

    Sections 383.73(b)(6) and 383.73(c)(7) state that the exception to

checking for legal presence and domicile applies to initial issuances,

transfers, and renewals; however, the exception does not appear in

Sec.  383.73(d)(7), which governs renewals. In addition, Sec.  383.73

does not specify whether the exception applies to upgrades, which are

governed by Sec.  383.73(e)(5). The Agency acknowledges that the

exception was not written as the Agency intended. As a result, FMCSA

amends Sec. Sec.  383.73(b)(6), 383.73(c)(7), 383.73(d)(7), and

383.73(e)(5) to clarify that the exception covers all transactions,

whether initial issuance, transfer, renewal, or upgrade, made after

July 8, 2011.

 

Requiring Two Employees To Verify Documents--49 CFR 383.73(m)

 

    Section 383.73(m) requires that two State Driver's Licensing Agency

(SDLA) staff members verify CLP and CDL applicants' test scores,

completed application forms, and documents to prove legal presence. For

SDLA offices with only one staff member on duty, the documents must be

verified by a supervisor before issuance. Alternatively, when the

supervisor is not available, copies must be made of the documents used

to prove legal presence and domicile so that a supervisor can verify

them along with the completed application within one business day of

issuance of a CLP or CDL. A number of States interpreted Sec.  

383.73(m) to require two employees to verify each document. They

requested reconsideration, stating that the perceived requirement would

burden existing resources and increase SDLA workload at a time when

State agencies are experiencing reduced funding and resources. In

addition, one State asked for clarification of how this provision

affects central-issuance States.

    FMCSA did not intend to create a redundant process under which two

SDLA employees must verify each document a particular driver-applicant

presents. Rather, FMCSA intended that more than one SDLA employee

participate substantively in the licensing process. For example, one

person might review the legal presence and other documentation the

driver presents, while a second SDLA employee would conduct the

required driving record check for driving violations, take the

applicant's photograph, and issue the license. Moreover, the two

employees need not work in the same location. For a central-issuance

State, having one employee accept documents at the point of service and

another verify some or all of them at the central-issuance facility

would satisfy the requirements of this section. Similarly, for SDLA

offices with only one staff member on duty, having a supervisor verify

some or all of the documents within one business day of issuance of a

CLP or CDL would satisfy the requirements of this section.

    FMCSA amends Sec.  383.73(m) to clarify that FMCSA requires two

people to be substantively involved in the license issuance process,

but does not require that two people verify each document.

 

Prohibiting Training Schools From Administering Skills Tests--49 CFR

383.75(a)(7)

 

    Section 383.75(a)(7) prohibits CDL training schools from skills

testing applicants they train, except if there is no skills testing

alternative within 50 miles of the school and the same examiner does

not train and test the same student applicant. The FMCSA

 

[[Page 17877]]

 

received petitions requesting reconsideration on the grounds that the

provision was too restrictive and would create hardship for States,

training schools, and motor carriers.

    FMCSA acknowledges the hardship and unintended consequences that

this provision could cause for States, schools, and aspiring CDL

holders. FMCSA believes, however, that prohibiting individual examiners

from administering skills tests to student applicants they have trained

will further the Agency's and Congress's fraud-prevention objectives.

Accordingly, FMCSA amends Sec.  383.75(a)(7) to provide that CDL

training schools may test their own student applicants only so long as

an individual examiner does not administer the skills test to drivers

he or she has trained.

 

Bonding Requirements--49 CFR 383.75(a)(8)(v)

 

    Section 383.75(a)(8)(v) requires third party CDL testers to

maintain bonds in an amount sufficient to pay for re-testing of drivers

if required due to examiners engaging in fraudulent activities related

to skills testing. A number of States requested that FMCSA reconsider

this section to require bonding to be at the State's discretion or only

apply to non-governmental entities.

    As explained in the May 2011 rule, FMCSA is aware of a number of

third party testers whose examiners engaged in fraudulent activities.

As a result, a number of CDL holders were required to be re-tested,

causing States and individuals to incur additional expenses. FMCSA

implemented this provision to ensure that, in the event examiners are

involved in fraudulent activities related to skills testing, States or

individuals would have an opportunity to recoup expenses related to re-

testing.

    FMCSA acknowledges that a number of third-party testers are

governmental entities performing testing services under inter-agency or

other agreements. FMCSA believes there is a lower risk associated with

locating and recouping expenses from governmental entities than from

private third-party testers. Moreover, FMCSA is aware that many States

normally do not require their own political subdivisions and agencies,

either at the State or local level, to obtain bonds. Accordingly, FMCSA

amends Sec.  383.75(a)(8)(v) to eliminate the bond requirement for

governmental entities.

 

Prohibiting States From Using a Photo on the CLP--49 CFR 383.153(b)(1)

and 384.227

 

    Section 383.153(b)(1) prohibits States from placing a digital color

image or photograph or black and white laser engraved photograph or

other visual representation of the driver on the CLP. FMCSA received

petitions requesting reconsideration on the grounds that prohibiting

the inclusion of a digital color image or photograph or black and white

laser engraved photograph or other visual representation of the driver

would cause economic harm to the States and/or make the CLP less

secure.

    FMCSA acknowledges that many, but not all, States have invested in

technologies to develop secure CLPs that may or may not include a

digital color image or photograph or black and white laser engraved

photograph or other visual representation of the driver. Other

provisions of this rule establish that the CLP is a two-part license

comprised of the CLP document and the underlying CDL or non-CDL, and

that the CLP document must be presented with the underlying CDL or non-

CDL to be valid. Moreover, the CLP document will have the same driver's

license number as the underlying CDL or non-CDL as well as language

stating the two-part nature of the document, making this relationship

clear. Accordingly, to accommodate the States' requests for flexibility

in determining whether to include a photograph of the driver on the

CLP, FMCSA amends Sec.  383.153(b)(1) to make the reference to a

digital color image or photograph or black and white laser engraved

photograph of the driver permissive rather than prohibited. The

Department of Homeland Security (DHS), however, objected to having a

State issue two photograph IDs to a single person, stating it would

violate the one driver/one license/one record principle. In fact, the

CLP and the underlying license constitute a single document with

(potentially) two photographs. FMCSA leaves the determination up to the

State to include a photo on the CLP, for an extra security measure when

processing a CDL request.

    FMCSA also amends section 384.227 to reflect the permissive

inclusion of a photograph on the CLP.

 

Requiring Annual Background Checks for Skills Test Examiners--49 CFR

384.228(h)

 

    Section 384.228(h) requires States to conduct annual background

checks on all test examiners. Some States petitioned for

reconsideration of this requirement on the grounds that annual checks

are burdensome.

    On further consideration, FMCSA agrees that an annual background

check of 2,200 skills test examiners is unnecessarily burdensome.

Accordingly, FMCSA amends Sec.  384.228(h) to require States to perform

background checks on test examiners only at the time of hiring.

 

Substantial Compliance--General Requirements--49 CFR 384.301(f)

 

    Section 384.301(f) establishes the date by which all States must

come into substantial compliance with the provisions of the May 2011

and today's final rules. FMCSA received petitions for reconsideration

requesting an extension of the May 2011 final rule, so that the States

would have sufficient time to implement the requirements established in

that rule. Although FMCSA believes that a three year implementation

period is generally sufficient, the Agency recognizes that many States

have been waiting for today's final rule to implement changes to those

provisions for which the Agency has granted petitions for

reconsideration. As a result, and in consideration of the changes made

in today's final rule, the Agency has extended the compliance date for

the changes established in the May 2011 and today's final rules by one

year, to July 8, 2015.

 

Technical Corrections

 

    In addition to addressing the issues raised in the petitions for

reconsideration, FMCSA is also adopting the following technical

corrections in this final rule:

     In Sec.  383.73(f)(2)(ii), an incorrect cross reference to

Sec.  383.153(b) is changed to Sec.  383.153(c).

     The preamble to the 2011 final rule made it clear that

CLPs cannot be ``transferred'' from one State to another State. The

regulatory language, however, did not adequately reflect that decision.

The following sections are therefore revised to include a prohibition

on transfer of CLPs: Sec.  383.73, paragraphs (a)(2)(vi), (b)(6),

(c)(7), (d)(7), (e)(5) and (m); Sec.  383.153(h); Sec.  384.105,

definition of ``Issue and Issuance;'' Sec.  384.227, and Sec.  

384.405(b)(1).

 

IV. Regulatory Analyses

 

E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies

and Procedures as Supplemented by E.O. 13563)

 

    FMCSA has determined this final rule is not a significant

regulatory action within the meaning of Executive Order

 

[[Page 17878]]

 

(E.O.) 12866, as supplemented by E.O. 13563 (76 FR 3821, January 21,

2011), and is also not significant within the meaning of DOT regulatory

policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR

11034, February 26, 1979). The estimated cost of the final rule is not

expected to exceed the $100 million annual threshold for economic

significance. The Agency expects the final rule to generate cost

savings in the form of reduced annual paperwork burden hours compared

to the estimates in the 2011 final rule. The provisions revised in this

rule are intended to increase fraud reduction, improve safety, and

facilitate entrance into the commercial motor vehicle (CMV) driver

occupations. Many of the provisions of this rule impose minimal cost on

the States or industry members, either because many States are already

complying with the requirements contained in the May 2011 final rule or

because the requirements have minimal impact on the SDLA or industry

operations or procedures.

    FMCSA emphasizes that this rule does not change requirements

concerning State procedures in CDL processing or impose additional

burden hours or costs. The Agency amends several sections of the

current regulations in 49 CFR Sec. Sec.  383.73(a)(2)(vi), (b)(6),

(c)(7), (d)(7), and (e)(5) to cover all transactions (initial issuance,

transfer, renewal, or upgrades). Likewise, bonding requirements for

third party testers as written in 49 CFR Sec.  383.75(a)(8)(v) remain

intact, the only difference being that a third party tester that is a

government entity is no longer required to maintain a bond.

    FMCSA recognized the potential loss of revenue from reduced

enrollment when it prohibited training schools from administering

skills tests to their own student applicants. This is even more evident

in smaller training programs in rural areas. These training schools may

be 100 miles or more from the nearest tester unaffiliated with the

school, who would be available to test the school's drivers. Amending

this section will allow CDL training schools to test their students,

yet prohibit a skills test examiner who is also a skills instructor

from administering a skills test to an applicant who received skills

training from that examiner. The Agency does not know the number or

location of training programs that conduct skills testing and therefore

cannot produce a reasonable estimate of the total cost associated with

this exclusion on skills testing.

    The SAFE Port Act mandated that the Agency adopt certain

regulations implementing the DOT Office of Inspector General's (OIG)

anti-fraud recommendations. Applying these mandates required the Agency

to adopt specific measures to prevent fraud in the CDL system. One of

the measures required by the Agency is that CLP documentation be

presented simultaneously with the underlying CDL or non-CDL to be

valid.

    The States will have the discretion to place a digital photograph

on the CLP (see Sec.  383.153(b)(1) and Sec.  384.227); most SDLAs

currently keep a digital photograph on file for all drivers they

license.

    FMCSA amends Sec.  383.73(m) to clarify that FMCSA requires two

people to be involved in the license issuance process, but does not

require that two people verify each document. Two SDLA staff members

can participate independently in the licensing process for a CLP/CDL.

For example, one person might review the legal presence and other

documentation the driver presents, while a second SDLA employee would

view the driving record for violations, take the applicant's photo, and

issue the license. Also, the two employees are not required to work in

the same duty location. For a central-issuance State, having one

employee accept documents at the point of service and another verify

some or all of them at the central-issuance facility would satisfy the

requirements of this section. The amendment to Sec.  383.73(m) splits

driver processing, but it will not double either the time or effort

needed to issue a CDL. The $2.97 million \1\ per year cost for

processing time will remain unchanged despite the amendment because the

extra time burden has been factored into the May 2011 Final Rule.

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    \1\ This amount is calculated by multiplying ($24.45/hr.) of a

licensing clerk by the (\1/6\ of an hour) of processing time, by the

number of new CDLs processed annually (530,000). Final Rule

Regulatory Evaluation: Commercial Driver's License Testing and

Commercial Learner's Permit Standards. p. 12 March 2011. The

processing cost includes $26,500 CLP CDLIS record change and

$779,100 tamper proofing of CLPs.

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    Lastly, FMCSA agreed that annual background checks for skills test

examiners as described in 49 CFR 384.228(h) were unnecessary. FMCSA

amends this section to require background checks on test examiners only

at the time of hiring. This will produce a total cost saving of

$214,400 \2\ per year, after conducting an initial background check.

This represents the only quantifiable cost savings of the rule, but

other provisions will result in unquantifiable benefits.

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    \2\ OMB Control No. 2126-0011 titled, ``Commercial Driver

Licensing and Test Standards.'' May 1, 2012, pp. 22-23. This amount

is calculated by multiplying 2,144 skills test examiners x $100/per

FBI background check = $214,400.

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Regulatory Flexibility Act

 

    FMCSA is not required to prepare a new Regulatory Flexibility

Analysis (RFA) because the RFA performed for the May 2011, final rule

pursuant to 5 U.S.C. 604(a) remains fully applicable to this final

rule. The 2011 RFA provided estimates of the active motor carrier

population and the number of entities subject to the rule at that time.

While these numbers may have changed slightly in the intervening

months, they do not affect the conclusions of the 2011 RFA in any way.

 

Assistance for Small Entities

 

    In accordance with section 213(a) of the Small Business Regulatory

Enforcement Fairness Act of 1996, FMCSA wants to assist small entities

in understanding this rule so that they can better evaluate its effects

on themselves and participate in the rulemaking initiative. If the rule

would affect your small business, organization, or governmental

jurisdiction and you have questions concerning its provisions or

options for compliance; please consult the FMCSA point of contact,

Robert Redmond, listed in the FOR FURTHER INFORMATION CONTACT section

of this rule.

    Small businesses may send comments on the actions of Federal

employees who enforce or otherwise determine compliance with Federal

regulations to the Small Business Administration's Small Business and

Agriculture Regulatory Enforcement Ombudsman and the Regional Small

Business Regulatory Fairness Boards. The Ombudsman evaluates these

actions annually and rates each agency's responsiveness to small

business. If you wish to comment on actions by employees of FMCSA, call

1-888-REG-FAIR (1-888-734-3247). DOT has a policy ensuring the rights

of small entities to regulatory enforcement fairness and an explicit

policy against retaliation for exercising these rights.

 

Unfunded Mandates Reform Act of 1995

 

    This final rule does not impose an unfunded Federal mandate, as

defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et

seq.), that will result in the expenditure by State, local, and tribal

governments, in the aggregate, or by the private sector, of $141.3

million (which is the value of $100 million in 2010 after adjusting for

inflation) or more in any 1 year.

 

[[Page 17879]]

 

E.O. 13132 (Federalism)

 

    FMCSA has analyzed this rule in accordance with the principles and

criteria of Executive Order 13132, ``Federalism,'' and has determined

that it does not have federalism implications.

    The Federalism Order applies to ``policies that have federalism

implications,'' which it defines as regulations and other actions that

have ``substantial direct effects on the States, on the relationship

between the national government and the States, or on the distribution

of power and responsibilities among the various levels of government.''

Sec. 1(a). The key concept here is ``substantial direct effects on the

States.'' Sec. 3(b) of the Federalism Order provides that ``[n]ational

action limiting the policymaking discretion of the States shall be

taken only where there is constitutional and statutory authority for

the action and the national activity is appropriate in light of the

presence of a problem of national significance.''

    The rule amends the commercial driver's license (CDL) program

authorized by the Commercial Motor Vehicle Safety Act of 1986 (49

U.S.C. chapter 313). States have been issuing CDLs in accordance with

Federal standards for well over a decade. The CDL program does not have

preemptive effect. It is voluntary; States may withdraw at any time,

although doing so will result in the loss of certain Federal-aid

highway funds pursuant to 49 U.S.C. 31314. Because this rule makes only

a few small incremental changes to the requirements already imposed on

participating States, FMCSA has determined that it does not have

substantial direct effects on the States, on the relationship between

the Federal and State governments, or on the distribution of power and

responsibilities among the various levels of government.

 

E.O. 12988 (Civil Justice Reform)

 

    This final rule 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.

 

E.O. 13045 (Protection of Children)

 

    E.O. 13045, Protection of Children from Environmental Health Risks

and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies

issuing ``economically significant'' rules, if the regulation also

concerns an environmental health or safety risk that an agency has

reason to believe may disproportionately affect children, to include an

evaluation of the regulation's environmental health and safety effects

on children. The Agency determined this final rule is not significant

within the meaning of E.O. 12866 and the estimated cost of the rule is

not expected to exceed the economic annual threshold. Therefore, no

analysis of the impacts on children is required. In any event, the

Agency does not believe that this regulatory action could create an

environmental or safety risk that could disproportionately affect

children.

 

E.O. 12630 (Taking of Private Property)

 

    FMCSA reviewed this final rule in accordance with Executive Order

12630, Governmental Actions and Interference with Constitutionally

Protected Property Rights, and has determined it will not effect a

taking of private property or otherwise have taking implications.

 

Privacy Impact Assessment

 

    FMCSA conducted a privacy impact assessment of this rule as

required by section 522(a)(5) of the FY 2005 Omnibus Appropriations

Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004) [set out as a

note to 5 U.S.C. 552a]. The assessment considers any impacts of the

rule on the privacy of information in an identifiable form and related

matters. FMCSA has determined this rule would have no privacy impacts.

 

E.O. 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 et

seq.), Federal agencies must obtain approval from the Office of

Management and Budget (OMB) for each collection of information they

conduct, sponsor, or require through regulations. This rulemaking

affects the currently-approved information collection covered by the

OMB Control No. 2126-0011 titled, ``Commercial Driver Licensing and

Test Standards.'' The current OMB approved information collection has

an annual burden of 1,628,582 hours and will expire on August 31, 2014.

    This action updates and provides more uniform procedures for

ensuring that the applicant has the appropriate knowledge and skills to

operate a commercial motor vehicle. It also adjusts some of the

procedures used in the testing and licensing process due to

recommendations accepted in the petitions for reconsideration of

rulemaking. FMCSA believes this rule will result in an estimated

decrease in the annual burden hours compared to the 2011 final rule.

    The following table summarizes the burden hours for current and

future information collection activities for the first 4 years of

implementation of the new requirements and for the 5th and subsequent

years of maintaining the CDL program with the new requirements. Relying

on past experiences, the Agency believes there will be no increase in

annual burden hours for the first 4 years because the States have 4

years to pass legislation and make the necessary system changes before

implementing the new CDL testing and CLP standards, and posting the

data generated by these new requirements to the CDLIS driver record.

The increase of 262,705 total annual burden hours for the 5th and

subsequent years (1,891,287-1,628,582) is due to the implementation of

the new requirements for CDL testing and the issuance of CLPs. This

represents a decrease in the total annual burden estimate for the 5th

and subsequent years of 120,733 hours (2,012,020-1,891,287) from the

previously anticipated total (see ``Commercial Driver's License Testing

and Commercial Learner's Permit Standards,'' 76 FR 26854, May 9, 2011)

due to program changes in this rule, including the elimination of the

second person to verify all documents and the elimination of the annual

background checks for test examiners. 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.

 

[[Page 17880]]

 

 

 

                                Current and Future Information Collection Burdens

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

                                                                                                   Future annual

                                                                                   Future annual   burden hours

                                                                     Currently     burden hours     for 5th and

 Current and future information collection activities for States     approved       for first 4     subsequent

                         and CDL drivers                           annual burden       years           years

                                                                       hours         (program        (program

                                                                                      change)         change)

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

State recording medical examiner's certificate information......         205,333         205,333         205,333

State recording of the self- certification of commercial motor             3,984           3,984           3,984

 vehicle operation on the CDLIS record..........................

State verification of medical certification status of all                  2,593           2,593           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

Data/document checks and CDLIS recordkeeping....................         212,224         212,224         461,632

Drivers to complete the CDL application.........................          48,000          48,000          56,486

CDL tests recordkeeping.........................................          84,000          84,000          77,910

Knowledge and skills test examiner certification................          25,216          25,216           7,578

Skills test examiner monitoring and auditing....................               0               0          28,539

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

    Total Burden Hours..........................................       1,628,582       1,628,582       1,891,287

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

 

National Environmental Policy Act and Clean Air Act

 

    The FMCSA analyzed this rulemaking for the purpose of the National

Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and

determined under its environmental procedures Order 5610.1, published

March 1, 2004 in the Federal Register (69 FR 9680), that this action is

categorically excluded (CE) from further environmental documentation

under Paragraph 4.s of the Order. That CE relates to establishing

regulations, and actions taken pursuant to these regulations,

concerning requirements for drivers to have a single commercial motor

vehicle driver's license. In addition, the Agency believes that this

rule includes no extraordinary circumstances that will have any effect

on the quality of the environment. Thus, the action does not require an

environmental assessment or an environmental impact statement.

    The FMCSA also analyzed this rule under the Clean Air Act, as

amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and

implementing regulations promulgated by the Environmental Protection

Agency. Approval of this action is exempt from the CAA's general

conformity requirement since it involves rulemaking and policy

development and issuance.

 

E.O. 13211 (Energy Supply, Distribution, or Use)

 

    FMCSA has analyzed this rule under Executive Order 13211, Actions

Concerning Regulations That Significantly Affect Energy Supply,

Distribution or Use. The Agency has determined that it is not a

``significant energy action'' under that Executive Order because it is

not economically significant and is not likely to have a significant

adverse effect on the supply, distribution, or use of energy.

 

E.O. 13175 (Indian Tribal Governments)

 

    This rule does not have tribal implications under E.O. 13175,

Consultation and Coordination with Indian Tribal Governments, because

it does not have a substantial direct effect on one or more Indian

tribes, on the relationship between the Federal Government and Indian

tribes, or on the distribution of power and responsibilities between

the Federal Government and Indian tribes.

 

National Technology Transfer and Advancement Act (Technical Standards)

 

    The National Technology Transfer and Advancement Act (NTTAA) (15

U.S.C. 272 note) directs agencies to use voluntary consensus standards

in their regulatory activities unless the agency provides Congress,

through OMB, with an explanation of why using these standards would be

inconsistent with applicable law or otherwise impractical. Voluntary

consensus standards (e.g., specifications of materials, performance,

design, or operation; test methods; sampling procedures; and related

management systems practices) are standards that are developed or

adopted by voluntary consensus standards bodies. This rule does not use

technical standards. Therefore, we did not consider the use of

voluntary consensus standards.

 

List of Subjects

 

49 CFR Part 383

 

    Administrative practice and procedure, Alcohol abuse, Drug abuse,

Highway safety, Motor carriers.

 

49 CFR Part 384

 

    Administrative practice and procedure, Alcohol abuse, Drug abuse,

Highway safety, Motor carriers.

 

    Accordingly, FMCSA amends parts 383 and 384 of title 49 of the Code

of Federal Regulations as set forth below:

 

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

PENALTIES

 

0

1. The authority citation for part 383 is revised 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. 1748, 1766, 1767; sec.

1012(b) of Pub. L. 107-56, 115 Stat. 272, 397; sec. 4140 of Pub. L.

109-59, 119 Stat. 1144, 1726; and 49 CFR 1.86.

 

 

0

2. Amend Sec.  383.73 by revising paragraphs (a)(2)(vi), (b)(6),

(c)(7), (d)(7), (e)(5), (f)(2)(ii), and (m) to read as follows:

 

 

Sec.  383.73  State procedures.

 

    (a) * * *

    (2) * * *

    (vi) Require compliance with the standards for providing proof of

citizenship or lawful permanent residency specified in Sec.  

383.71(a)(2)(v) and proof of State of domicile specified in Sec.  

383.71(a)(2)(vi). Exception: A State is required to check the proof of

citizenship or legal presence specified in this paragraph only for

initial issuance, renewal or upgrade of a CLP

 

[[Page 17881]]

 

or Non-domiciled CLP and for initial issuance, renewal, upgrade or

transfer of a CDL or Non-domiciled CDL for the first time after July 8,

2011, provided a notation is made on the driver's record confirming

that the proof of citizenship or legal presence check required by this

paragraph has been made and noting the date it was done;

    (b) * * *

    (6) Require compliance with the standards for providing proof of

citizenship or lawful permanent residency specified in Sec.  

383.71(b)(9) and proof of State of domicile specified in Sec.  

383.71(b)(10). Exception: A State is required to check the proof of

citizenship or legal presence specified in this paragraph only for

initial issuance, renewal or upgrade of a CLP or Non-domiciled CLP and

for initial issuance, renewal, upgrade or transfer of a CDL or Non-

domiciled CDL for the first time after July 8, 2011, provided a

notation is made on the driver's record confirming that the proof of

citizenship or legal presence check required by this paragraph has been

made and noting the date it was done;

* * * * *

    (c) * * *

    (7) Require compliance with the standards for providing proof of

citizenship or lawful permanent residency specified in Sec.  

383.71(b)(9) and proof of State of domicile specified in Sec.  

383.71(b)(10). Exception: A State is required to check the proof of

citizenship or legal presence specified in this paragraph only for

initial issuance, renewal or upgrade of a CLP or Non-domiciled CLP and

for initial issuance, renewal, upgrade or transfer of a CDL or Non-

domiciled CDL for the first time after July 8, 2011, provided a

notation is made on the driver's record confirming that the proof of

citizenship or legal presence check required by this paragraph has been

made and noting the date it was done;

* * * * *

    (d) * * *

    (7) Require compliance with the standards for providing proof of

citizenship or lawful permanent residency specified in Sec.  

383.71(b)(9) and proof of State of domicile specified in Sec.  

383.71(b)(10). Exception: A State is required to check the proof of

citizenship or legal presence specified in this paragraph only for

initial issuance, renewal or upgrade of a CLP or Non-domiciled CLP and

for initial issuance, renewal, upgrade or transfer of a CDL or Non-

domiciled CDL for the first time after July 8, 2011, provided a

notation is made on the driver's record confirming that the proof of

citizenship or legal presence check required by this paragraph has been

made and noting the date it was done; and

* * * * *

    (e) * * *

    (5) Require compliance with the standards for providing proof of

citizenship or lawful permanent residency specified in Sec.  

383.71(b)(9) and proof of State of domicile specified in Sec.  

383.71(b)(10). Exception: A State is required to check the proof of

citizenship or legal presence specified in this paragraph only for

initial issuance, renewal or upgrade of a CLP or Non-domiciled CLP and

for initial issuance, renewal, upgrade, or transfer of a CDL or Non-

domiciled CDL, for the first time after July 8, 2011, provided a

notation is made on the driver's record confirming that the proof of

citizenship or legal presence check required by this paragraph has been

made and noting the date it was done;

* * * * *

    (f) * * *

    (2) * * *

    (ii) The State must add the word ``non-domiciled'' to the face of

the CLP or CDL, in accordance with Sec.  383.153(c); and

* * * * *

    (m) Document verification. The State must require at least two

persons within the driver licensing agency to participate substantively

in the processing and verification of the documents involved in the

licensing process for initial issuance, renewal or upgrade of a CLP or

Non-domiciled CLP and for initial issuance, renewal, upgrade or

transfer of a CDL or Non-domiciled CDL. The documents being processed

and verified must include, at a minimum, those provided by the

applicant to prove legal presence and domicile, the information filled

out on the application form, and knowledge and skills test scores. This

section does not require two people to process or verify each document

involved in the licensing process. Exception: For offices with only one

staff member, at least some of the documents must be processed or

verified by a supervisor before issuance or, when a supervisor is not

available, copies must be made of some of the documents involved in the

licensing process and a supervisor must verify them within one business

day of issuance of the CLP, Non-domiciled CLP, CDL or Non-domiciled

CDL.

* * * * *

 

0

3. Amend Sec.  383.75 by revising paragraphs (a)(7) and (a)(8)(v) to

read as follows:

 

 

Sec.  383.75  Third party testing.

 

    (a) * * *

    (7) A skills test examiner who is also a skills instructor either

as a part of a school, training program or otherwise is prohibited from

administering a skills test to an applicant who received skills

training by that skills test examiner; and

    (8) * * *

    (v) Require the third party tester to initiate and maintain a bond

in an amount determined by the State to be sufficient to pay for re-

testing drivers in the event that the third party or one or more of its

examiners is involved in fraudulent activities related to conducting

skills testing of applicants for a CDL. Exception: A third party tester

that is a government entity is not required to maintain a bond.

* * * * *

 

0

4. Amend Sec.  383.153 by revising paragraphs (b)(1) and (h) to read as

follows:

 

 

Sec.  383.153  Information on the CLP and CDL documents and

applications.

 

* * * * *

    (b) Commercial Learner's Permit. (1) A CLP may, but is not required

to, contain a digital color image or photograph or black and white

laser engraved photograph.

* * * * *

    (h) On or after July 8, 2014 current CLP and CDL holders who do not

have the standardized endorsement and restriction codes and applicants

for a CLP or CDL are to be issued CLPs with the standardized codes upon

initial issuance, renewal or upgrade and CDLs with the standardized

codes upon initial issuance, renewal, upgrade or transfer.

 

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

 

0

5. The authority citation for part 384 is revised to read as follows:

 

    Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs. 103

and 215 of Pub. L. 106-59, 113 Stat. 1753, 1767; and 49 CFR 1.87.

 

0

6. Amend Sec.  384.105 by revising the definition ``Issue and

Issuance'' to read as follows:

 

 

Sec.  384.105  Definitions

 

* * * * *

    Issue and issuance means the initial issuance, renewal or upgrade

of a CLP or Non-domiciled CLP and the initial issuance, renewal,

upgrade or transfer of a CDL or Non-domiciled CDL, as described in

Sec.  383.73 of this subchapter.

* * * * *

 

0

7. Amend Sec.  384.227 to revise paragraph (c) and add paragraph (d)

read as follows:

 

[[Page 17882]]

 

Sec.  384.227  Record of digital image or photograph.

 

* * * * *

    (c) Check the digital color image or photograph or black and white

laser engraved photograph on record whenever the CLP applicant or

holder appears in person to issue, renew or upgrade a CLP and when a

duplicate CLP is issued.

    (d) If no digital color image or photograph or black and white

laser engraved photograph exists on record, the State must check the

photograph or image on the base-license presented with the CLP or CDL

application.

 

0

8. Amend Sec.  384.228 by revising paragraph (h) to read as follows:

 

 

Sec.  384.228  Examiner training and record checks.

 

* * * * *

    (h)(1) Complete nationwide criminal background check of all State

and third party test examiners at the time of hiring.

    (2) Complete nationwide criminal background check of any State and

third party current test examiner who has not had a nationwide criminal

background check.

* * * * *

 

0

9. Amend Sec.  384.301 by revising paragraph (f) to read as follows:

 

 

Sec.  384.301  Substantial compliance--general requirements.

 

* * * * *

    (f) A State must come into substantial compliance with the

requirements of subpart B of this part in effect as of July 8, 2011 and

April 24, 2013 as soon as practical but, unless otherwise specifically

provided in this part, not later than July 8, 2015.

* * * * *

 

0

10. Amend Sec.  384.405 by revising paragraph (b)(1) to read as

follows:

 

 

Sec.  384.405  Decertification of State CDL program.

 

* * * * *

    (b) * * *

    (1) The State computer system does not check the Commercial

Driver's License Information System (CDLIS) and/or national Driver

Registry problem Driver Pointer System (PDPS) as required by Sec.  

383.73 of this subchapter when issuing, renewing or upgrading a CLP or

issuing, renewing, upgrading or transferring a CDL.

* * * * *

 

    Issued under the authority of delegation in 49 CFR 1.73: March

18, 2013.

Anne S. Ferro,

Administrator.

[FR Doc. 2013-06760 Filed 3-22-13; 8:45 am]

BILLING CODE 4910-EX-P