
[Federal Register: May 21, 2010 (Volume 75, Number 98)]
[Rules and Regulations]               
[Page 28499-28502]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my10-13]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383 and 391

[Docket No. FMCSA-1997-2210]
RIN 2126-AB24

 
Medical Certification Requirements as Part of the Commercial 
Driver's License (CDL); Technical, Organizational, and Conforming 
Amendments

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

ACTION: Final rule; Technical amendments and response to petitions for 
reconsideration.

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SUMMARY: The FMCSA amends its regulations implementing section 215 of 
the Motor Carrier Safety Improvement Act of 1999 (MCSIA). The purpose 
of this rule is both to make amendments responding to petitions for 
reconsideration and to make technical corrections to a FMCSA 
regulation.

DATES: The amendments in this final rule become effective May 21, 2010.

ADDRESSES: Public Access to the Docket: You may view, print, and 
download this final rule and all related documents and background 
material on-line at http://www.regulations.gov, using the Docket ID 
Number FMCSA-1997-2210. These documents can also be examined and copied 
for a fee at the U.S. Department of Transportation, Docket Operations, 
West Building-Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on today's final 
rule, please contact: Ms. Ava Herman, Office of Policy, Plans, and 
Regulations (MC-PRR), Federal Motor Carrier Safety Administration, 1200 
New Jersey Avenue, SE., Washington, DC 20590; telephone (202) 366-7023.

SUPPLEMENTARY INFORMATION:

Legal Basis

Medical Certification Requirements as Part of the CDL

    The legal basis of the 2008 final rule is also applicable to this 
rule. See 73 FR 73096-73097, December 1, 2008.

Background

    The FMCSA determined that several technical errors were made in the 
December 1, 2008, Medical Certification Requirements final rule (73 FR 
73096). The FMCSA also received two petitions for reconsideration of 
the final rule that are discussed further in today's final rule.
    1. The December 1, 2008, final rule had an unintentional error in 
Sec.  383.71(a)(ii), omitting the language ``(C), or (D)'' after ``(A) 
or (B)''. Today's final rule corrects this amendatory language error.
    2. The December 1, 2008, final rule unintentionally replaced Sec.  
383.71(a) with the new text of Sec.  383.71(a)(1); the Agency's intent 
was only to amend the language of Sec.  383.71(a)(1). However, because 
of an amendatory language error, Sec.  383.71(a)(2) through Sec.  
383.71(a)(9) were removed. The preambles of the NPRM and the final rule 
made no mention of an intent to change these sections, and revised 
Sec.  383.71(a)(1), as adopted by the 2008 final rule, itself refers to 
the requirements of Sec.  383.71(a)(2) through (9). Today's final rule 
therefore restores the text of Sec.  383.71(a)(2) through (9).
    3. The December 1, 2008, final rule included a new requirement in 
49 CFR 383.71(h) for CDL holders to submit documents and information to 
State driver licensing agencies. The penalties listed in 49 CFR 
383.73(g) for falsifying information and documents submitted in 
accordance with the requirements of Sec.  383.71(h) are applicable. 
However, the provisions of Sec.  383.73(g) needed to be clarified to 
reflect the application to the requirements in Sec.  383.71(h). The 
provisions of Sec.  383.73(g) have been clarified in response to the 
petition for reconsideration of December 30, 2008, from Advocates for 
Highways and Auto Safety (Advocates), as explained on pages 3 and 4 of 
the decision denying the petition dated May 12, 2010 and included in 
the docket.
    4. In the December 1, 2008, final rule, Sec.  383.73(j)(1)(iii) 
references business days for the specified time period, rather than 
calendar days. The preamble of the December 1, 2008, final rule also 
incorrectly references business days instead of calendar days, even 
though the other provisions of Sec.  383.73(j)(2) and Sec.  
383.73(j)(3) correctly specify 10 calendar days. The language of Sec.  
383.73(j)(1)(iii) has been clarified in today's final rule. This is 
explained in footnote three on page seven of the decision denying the 
petition for reconsideration of December 30, 2008 from Advocates dated 
May 12, 2010 and included in the docket.
    5. The December 1, 2008, final rule included an inconsistency in 
the language inserted into 49 CFR 383.73 (j). This language used the 
term ``medical examiner's license or certificate number'' to refer to 
the number on a medical examiner's license to practice in Sec.  
383.73(j)(iii)(D). However, in 49 CFR 383.73(j)(iii), (j)(iii)(C), and 
(j)(iii)(J), ``medical examiner's certificate'' is used to refer to the 
certificate a driver is issued when a medical examiner qualifies him or 
her to drive. This inconsistency has been clarified in today's final 
rule so that ``medical examiner's certificate'' clearly refers to the 
document a medical examiner issues a driver to qualify him or her to 
drive. In today's final rule 49 CFR 383.73(j)(iii)(D) is clarified to 
refer to the ``medical examiner's license'' to practice, issued to the 
medical examiner by the State in which he or she practices.
    6. The FMCSA incorporates a change in several provisions of the 
final rule, as requested by a petition for reconsideration from the 
Indiana Department of Revenue, Motor Carrier Services Division, filed 
on December 29, 2008. The petition asked that FMCSA reconsider 
requirement for States to mail receipts to drivers as proof that a 
medical certification had been submitted to the State driver licensing 
agency. The FMCSA sent a response granting this petition on October 2, 
2009. Through today's final rule, FMCSA removes the requirement for 
States to provide receipts to drivers, and to allow drivers and 
employers to utilize medical certificates as evidence that a CDL holder 
is medically certified for 15 calendar days from the date of issuance 
of the certificate. Therefore, several changes in the final rule text 
are necessary to implement this procedure. The changes are in 49 CFR 
383.73(a)(5), 391.23(m)(2)(i)(B), 391.41(a)(2), and 391.51(b)(7)(ii).
    7. The preamble to the December 1, 2008, final rule clearly states 
that the medical variance restriction code ``V'' must appear on both 
the CDL and the CDLIS driver record. Accordingly, FMCSA revised 49 CFR 
383.95(b) to require this information to be placed on the CDLIS driver 
record, but inadvertently omitted a revision to 49 CFR 383.153 to 
require this information to be displayed on the commercial driver's 
license document. This rule

[[Page 28500]]

adds the conforming amendment to Sec.  383.153(e).

Agency's Assessment and Decision

    The Agency decided to issue these amendments because the changes 
and updates are necessary to correct amendatory language errors and to 
respond to issues raised in two petitions for reconsideration.

Rulemaking Analyses and Notices

Administrative Procedure Act

    If an agency determines that the prior notice and opportunity for 
public comment on a rule normally required by the Administrative 
Procedure Act are impracticable, unnecessary, or contrary to the public 
interest (the so-called ``good cause'' finding), it may publish the 
rule without providing such notice and opportunity for comment. (See 5 
U.S.C. 553(b).) The amendments made by this final rule make changes to 
correct inadvertent errors and to respond to petitions for 
reconsideration. For these reasons, FMCSA finds good cause that notice 
and public comment are unnecessary. Further, the Agency finds good 
cause under 5 U.S.C. 553(d)(3) to make the amendments effective upon 
publication.

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

    The FMCSA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or within 
the meaning of the Department of Transportation regulatory policies and 
procedures. The Office of Management and Budget (OMB) did not review 
this document. We expect the final rule will have minimal costs; 
therefore, a full regulatory evaluation is unnecessary.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FMCSA has evaluated the effects of this rule on small entities. 
The rule makes several changes to correct inadvertent errors. FMCSA 
therefore certifies that this action will not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This rulemaking 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 $120 
million or more in any 1 year.

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)

    The FMCSA analyzed this action under Executive Order 13045, 
Protection of Children From Environmental Health Risks and Safety 
Risks. We 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 effect a 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)

    The FMCSA analyzed this rule in accordance with the principles and 
criteria contained in Executive Order 13132. Although the 2008 final 
rule had Federalism implications, FMCSA determined that it did not 
create a substantial direct effect 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. 
This rulemaking does not change that determination in any way.

Executive Order 12372 (Intergovernmental Review)

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

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that FMCSA consider the impact of paperwork and other information 
collection burdens imposed on the public. We have determined that no 
new information collection requirements are associated with the 
technical amendments to this final rule.

National Environmental Policy Act

    The FMCSA analyzed this final rule for the purpose of the National 
Environmental Policy Act of 1969 (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 does not have any 
significant impact on the environment. In addition, the actions in this 
final rule are categorically excluded from further analysis and 
documentation as per paragraph 6.b of Appendix 2 of FMCSA's Order 
5610.1. 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 the action results in no increase in 
emissions.

Executive Order 13211 (Energy Effects)

    The FMCSA analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We 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 an adverse effect on 
the supply, distribution, or use of energy.

List of Subjects

49 CFR Part 383

    Administrative practice and procedure, Highway safety, Motor 
carriers.

49 CFR Part 391

    Motor carriers, Reporting and recordkeeping requirements, Safety.

0
In consideration of the foregoing, FMCSA amends Parts 383 and 391 of 
Title 49, Code of Federal Regulations, as follows:

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

0
1. The authority citation for part 383 continues 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. In Sec.  383.71, revise paragraph (a) 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

[[Page 28501]]

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), (B), (C), 
or (D) 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.
    (2) Pass a knowledge test in accordance with the standards 
contained in Subparts G and H of this part for the type of motor 
vehicle the person operates or expects to operate;
    (3) Pass a driving or skills test in accordance with the standards 
contained in Subparts G and H of this part taken in a motor vehicle 
which is representative of the type of motor vehicle the person 
operates or expects to operate; or provide evidence that he/she has 
successfully passed a driving test administered by an authorized third 
party;
    (4) Certify that the motor vehicle in which the person takes the 
driving skills test is representative of the type of motor vehicle that 
person operates or expects to operate;
    (5) Provide to the State of issuance the information required to be 
included on the CDL as specified in subpart J of this part;
    (6) Certify that he/she is not subject to any disqualification 
under Sec.  383.51, or any license suspension, revocation, or 
cancellation under State law, and that he/she does not have a driver's 
license from more than one State or jurisdiction;
    (7) Surrender the applicant's non-CDL driver's licenses to the 
State; and
    (8) Provide the names of all States where the applicant was 
previously licensed to drive any type of motor vehicle during the 
previous 10 years.
    (9) If applying for a hazardous materials endorsement, comply with 
Transportation Security Administration requirements codified in 49 CFR 
Part 1572, and provide proof of citizenship or immigration status as 
specified in Table 1 to this section. A lawful permanent resident of 
the United States requesting a hazardous materials endorsement must 
additionally provide his or her Bureau of Citizenship and Immigration 
Services (BCIS) Alien registration number.

  Table 1 to Sec.   383.71--List of Acceptable Proofs of Citizenship or
                               Immigration
------------------------------------------------------------------------
            Status                          Proof of status
------------------------------------------------------------------------
U.S. Citizen.................   U.S. Passport.
                                Certificate of birth that bears
                                an official seal and was issued by a
                                State, county, municipal authority, or
                                outlying possession of the United
                                States.
                                Certification of Birth Abroad
                                issued by the U.S. Department of State
                                (Form FS-545 or DS 1350).
                                Certificate of Naturalization
                                (Form N-550 or N-570).
                                Certificate of U.S. Citizenship
                                (Form N-560 or N-561).
Lawful Permanent Resident....   Permanent Resident Card, Alien
                                Registration Receipt Card (Form I-551).
                                Temporary I-551 stamp in foreign
                                passport.
                                Temporary I-551 stamp on Form I-
                                94, Arrival/Departure Record, with
                                photograph of the bearer.
                                Reentry Permit (Form I-327).
------------------------------------------------------------------------

* * * * *

0
3. Revise Sec.  383.73(a)(5), (g), (j)(1)(iii) introductory text, and 
(j)(1)(iii)(D) to read as follows:


Sec.  383.73  State procedures.

    (a) * * *
    (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 driver submits a current medical examiner's 
certificate, date-stamp 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.
* * * * *
    (g) Penalties for false information. If a State determines, in its 
check of an applicant's license status and record prior to issuing a 
CDL, or at any time after the CDL is issued, that the applicant 
falsified information contained in subpart J of this part, in any of 
the certifications required in Sec.  383.71(a) or (g), or in any of the 
documents required to be submitted by Sec.  383.71(h), the State shall 
at a minimum suspend, cancel, or revoke the person's CDL or his/her 
pending application, or disqualify the person from operating a 
commercial motor vehicle for a period of at least 60 consecutive days.
* * * * *
    (j) * * *
    (1) * * *

[[Page 28502]]

    (iii) Post the information from the medical examiner's certificate 
within 10 calendar days to the CDLIS driver record, including:
* * * * *
    (D) Medical Examiner's license number and the State that issued it;
* * * * *

0
4. Amend Sec.  383.153 by adding paragraph (e) to read as follows:


Sec.  383.153  Information on the document and application

* * * * *
    (e) If the State has been notified that the applicant has been 
issued a medical variance as specified in Sec.  383.95(b), the 
restriction code ``V'' must be indicated on the license.

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

0
5. The authority citation for part 391 continues 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
6. Amend Sec.  391.23:
0
By removing ``or'' at the end of paragraph (m)(2)(i)(A) and adding 
``and'' in its place; and
0
By revising paragraph (m)(2)(i)(B) to read as follows:


Sec.  391.23  Investigations and inquiries.

* * * * *
    (m) * * *
    (2) * * *
    (i) * * *
    (B) Exception. If the driver provided the motor carrier with a copy 
of the current medical examiner's certificate that was submitted to the 
State in accordance with Sec.  383.73(a)(5) of this chapter, the motor 
carrier may use a copy of that medical examiner's certificate as proof 
of the driver's medical certification for up to 15 days after the date 
it was issued.
* * * * *

0
7. Revise Sec.  391.41(a)(2) to read as follows:


Sec.  391.41  Physical qualifications for drivers.

    (a) * * *
    (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 a copy of the current medical examiner's certificate 
that was submitted to the State for up to 15 days after the date it was 
issued as proof of medical certification.
    (ii) A CDL holder 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.
* * * * *

0
8. Revise Sec.  391.51(b)(7)(ii) to read as follows:


Sec.  391.51  General requirements for driver qualification files.

* * * * *
    (b) * * *
    (7) * * *
    (ii) Exception. For CDL holders, beginning January 30, 2012, if the 
CDLIS motor vehicle record contains medical 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 holder without medical 
certification status information on the CDLIS motor vehicle record is 
designated ``not-certified'' to operate a CMV in interstate commerce. 
After January 30, 2014, a motor carrier may use a copy of the driver's 
current medical examiner's certificate that was submitted to the State 
for up to 15 days from the date it was issued as proof of medical 
certification.
* * * * *

    Issued on: May 17, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-12189 Filed 5-20-10; 8:45 am]
BILLING CODE 4910-EX-P

