[Federal Register: April 9, 2008 (Volume 73, Number 69)] [Proposed Rules] [Page 19281-19317] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr09ap08-16] [[Page 19281]] ----------------------------------------------------------------------- Part II Department of Transportation ----------------------------------------------------------------------- Federal Motor Carrier Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 383, 384 and 385 Commercial Driver's License Testing and Commercial Learner's Permit Standards; Proposed Rule [[Page 19282]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 383, 384 and 385 [Docket No. FMCSA-2007-27659] RIN 2126-AB02 Commercial Driver's License Testing and Commercial Learner's Permit Standards AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) proposes to revise the commercial driver's license (CDL) knowledge and skills testing standards, and to require new Federal minimum standards for States to issue commercial learner's permits (CLPs). FMCSA also proposes that a CLP holder meet virtually the same requirements as those for a CDL holder. This means that a driver holding a CLP would be subject to the same driver disqualification offenses as apply to a CDL holder. This NPRM responds to section 4019 of the Transportation Equity Act for the 21st Century (TEA-21), section 4122 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), and section 703 of the Security and Accountability For Every Port Act of 2006 (SAFE Port Act). The purpose of this proposal is to enhance safety by ensuring that only qualified drivers are allowed to operate commercial motor vehicles on our nation's highways. DATES: Please submit comments regarding this NPRM by June 9, 2008. ADDRESSES: Please submit comments by only one of the following methods--Internet, facsimile, regular mail, or hand-deliver. Please do not submit the same comments multiple times or by more than one method. The Federal eRulemaking portal is the preferred method for submitting comments, and we urge you to use it. Federal eRulemaking Portal: Search the Federal Docket Management System (FDMS) Web site at http://www.regulations.gov. In the Comment or Submission section, type Docket ID Number ``FMCSA-2007- 27659'', select ``Go'', and then click on ``Send a Comment or Submission.'' You will receive a tracking number when you submit a comment. Mail, Courier, or Hand-Deliver: U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. Telefax: (202) 493-2251. Docket: To read all comments and background material in the docket, go to http://www.regulations.gov and type ``FMCSA-2007- 27659''. Privacy Act: Regardless of the method used for submitting comments, all comments will be posted without change to the Federal Docket Management System (FDMS) at http://www.regulations.gov. Anyone can search the electronic form of all our dockets in FDMS, by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). The DOT's complete Privacy Act Statement was published in the Federal Register on April 11, 2000 (65 FR 19476), and can be viewed at the URL http://docketsinfo.dot.gov. FOR FURTHER INFORMATION CONTACT: Robert Redmond, Office of Safety Programs, Commercial Driver's License Division, telephone (202) 366- 5014 or e-mail robert.redmond@dot.gov. Office hours are from 8 a.m. to 4:30 p.m. SUPPLEMENTARY INFORMATION: This NPRM is organized as follows: I. Legal Basis for the Rulemaking II. Background A. Summary of This NPRM B. History III. General Discussion of the Issues and Proposals 1. Strengthen Legal Presence Requirement 2. Social Security Number Verification Before Issuing CLP or CDL 3. Surrender of CLP, CDL, and Non-CDL Documents 4. CDL Testing Requirements for Out-of-State Driver Training School Students 5. State Reciprocity for CLPs 6. Minimum Uniform Standards for Issuing a CLP a. Passing the General Knowledge Test To Obtain a CLP b. Requiring the CLP To Be a Separate Document From the CDL or Non-CDL c. CLP Document Should Be Tamperproof d. Recording the CLP in CDLIS 7. Maximum Initial Validity and Renewal Periods for CLP and CDL a. Initial Validity and Renewal Periods for CLP b. Initial Validity and Renewal Periods for a CDL 8. Establish a Minimum Age for CLP 9. Preconditions To Taking the CDL Skills Test 10. Limit Endorsements on CLP to Passenger (P) Only 11. Methods of Administering CDL Tests 12. Update Federal Knowledge and Skills Test Standards 13. New Standardized Endorsements and Restriction Codes 14. Previous Driving Offenses by CLP Holders and CLP Applicants a. Holders of a CLP b. Applicants for a CLP 15. Motor Carrier Prohibitions 16. Incorporate CLP-Related Regulatory Guidance Into Regulatory Text 17. Incorporate SAFE Port Act Provisions IV. Section-by-Section Discussion of the Proposals A. Proposed Changes to Part 383 1. Section 383.5, Definitions 2. Section 383.9, Matter Incorporated by Reference 3. Section 383.23, Commercial Driver's License 4. Section 383.25, Commercial Learner's Permit 5. Section 383.37, Employer's Responsibilities 6. Section 383.51, Disqualification of Drivers 7. Section 383.71, Driver Application Procedures 8. Section 383.72, Implied Consent to Alcohol Testing 9. Section 383.73, State Procedures 10. Section 383.75, Third Party Testing 11. Section 383.77, Substitute for Driving Skills Test 12. Section 383.79, Skills Testing of Out-of-State Students 13. Section 383.93, Endorsements 14. Section 383.95, Air Brake Restrictions 15. Section 383.110, General Requirement 16. Section 383.111, Required Knowledge 17. Section 383.113, Required Skills 18. Sections 383.115, Requirements for Double/Triple Trailers Endorsement, 383.117, Requirements for Passenger Endorsement, 383.119, Requirements for Tank Vehicle Endorsement, 383.121, Requirements for Hazardous Materials Endorsement, and 383.123, Requirements for a School Bus Endorsement 19. Appendix to Subpart G 20. Section 383.131, Test Manuals 21. Section 383.133, Test Methods 22. Section 383.135, Passing knowledge and Skills Tests 23. Subpart J, Commercial Driver's License Document 24. Section 383.155, Tamperproofing Requirements B. Proposed Changes to Part 384 1. Sections 384.105, Definitions; 384.204, CDL Issuance and Information; 384.205, CDLIS Information; 384.207, Notification of Licensing; 384.208, Notification of Disqualification; 384.209, Notification of Traffic Violations; 384.210, Limitations on Licensing; 384.212, Domicile Requirement; Section 384.214, Reciprocity; 384.220, Problem Driver Pointer System Information; 384.225, Record of Violation; 384.226, Prohibition on Masking Convictions; 384.231, Satisfaction of State Disqualification Requirement; and 384.405, Decertification of State CDL Program 2. Section 384.206, State Record Checks 3. Section 384.211, Surrender of Old Licenses [[Page 19283]] 4. Section 384.217, Drug Offenses 5. Section 384.227, Record of Digital Image or Photograph 6. Section 384.228, Examiner Training and Record Checks 7. Section 384.229, Skills Test Examiner Auditing and Monitoring 8. Section 384.301, Substantial Compliance--General Requirements C. Proposed Changes to Part 385 V. Regulatory Analyses and Notices I. Legal Basis for the Rulemaking This rulemaking is based on the broad authority of the Commercial Motor Vehicle Safety Act of 1986 (CMVSA) (Pub. L. 99-570, Title XII, 100 Stat. 3207-170, 49 U.S.C. chapter 313); the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L. 98-554, Title II, 98 Stat. 2832, 49 U.S.C. 31136); and the Motor Carrier Act of 1935 (MCA) (Chapter 498, 49 Stat. 543, 49 U.S.C. 31502). It is also based on section 4122 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, at 1734, 49 U.S.C. 31302, 31308, and 31309); and section 703 of the Security and Accountability For Every Port Act of 2006 (SAFE Port Act) (Pub. L. 109- 347, 120 Stat. 1884, at 1944). The CMVSA required the Secretary of Transportation, after consultation with the States, to prescribe regulations on minimum uniform standards for the issuance of commercial driver's licenses (CDLs) by the States and for information to be contained on each such license (49 U.S.C. 31305, 31308). The CMVSA also authorized the Secretary to adopt regulations for a learner's permit (49 U.S.C. 31305(b)(2)). Paragraph (c) of 49 CFR 383.23 addresses the learner's permit by ratifying the States' regulations on this subject, provided they comply with certain Federal requirements. This NPRM is proposing a Federal requirement for a commercial learner's permit (CLP) as a pre- condition for issuing a CDL and proposing various other changes to enhance the CDL program. A summary of the proposed changes organized by section number appears below in the Section-by-Section Discussion of the Proposals. The MCSA conferred authority to regulate drivers, motor carriers, and commercial motor vehicles (CMVs). It required the Secretary of Transportation to ``prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that: (1) Commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators'' (49 U.S.C. 31136(a)). This NPRM, like the CDL regulations, is based in part on the requirements of 49 U.S.C. 31136(a)(1) and (2) that CMVs be ``operated safely'' and that ``the responsibilities imposed on [CMV drivers] do not impair their ability to operate the vehicles safely.'' The changes to part 383 proposed in this rule would help to ensure that drivers who operate CMVs are legally licensed to do so and that they do not operate CMVs without having passed the requisite tests. The MCA authorized the Secretary of Transportation to prescribe requirements for the ``qualifications * * * of employees'' of for-hire and private motor carriers (49 U.S.C. 31502(b)). This NPRM, like the CDL regulations, is based in part on that authority and is intended to enhance the qualifications of CMV drivers by ensuring that they obtain a CLP before applying for a CDL. Section 4122 of SAFETEA-LU required the Department of Transportation (DOT) to prescribe regulations on minimum uniform standards for the issuance of CLPs, as it has already done for CDLs (49 U.S.C. 31308(2)). More specifically, section 4122 provided that an applicant for a CLP must first pass a knowledge test which complies with minimum standards prescribed by the Secretary and may have only one CLP at a time; that the CLP document must have the same information and security features as the CDL; and that the data on each CLP holder must be added to the driver's record in the Commercial Driver's License Information System (CDLIS).\1\ This NPRM includes each of those requirements, as explained later in this preamble. --------------------------------------------------------------------------- \1\ CDLIS is an information system to exchange commercial driver licensing information among all the States. CDLIS includes the databases of fifty-one licensing jurisdictions and the CDLIS Central Site, all connected by a telecommunications network. --------------------------------------------------------------------------- Section 703(a) of the SAFE Port Act required the Secretary of Transportation to issue regulations implementing the recommendations in a memorandum issued by the DOT's Office of the Inspector General (OIG) on June 4, 2004, concerning verification of the legal status of commercial drivers. Section 703(b) required the Secretary, in cooperation with the Department of Homeland Security, to issue a regulation to implement the recommendations in a report issued by the OIG on February 7, 2006 [``Oversight of the Commercial Driver's License Program''] dealing with steps needed to improve anti-fraud measures in the CDL program. In a 2002 CDL audit report, the OIG recommended that FMCSA require testing protocols and performance oriented requirements for English language proficiency. This regulatory proposal incorporates all of the OIG's recommendations which are discussed in more detail later in the preamble. Many of the operational procedures suggested by the OIG for carrying out the recommendations have also been adopted. In addition to the specific legal authorities discussed above, FMCSA is required, before prescribing regulations, to consider the ``costs and benefits'' of any proposal (49 U.S.C. 31136(c)(2)(A), 31502(d)). The Regulatory Flexibility Analysis prepared for this proposed rule discusses those issues later in the preamble and more comprehensively in a separate document filed in the docket. II. Background A. Summary of This NPRM The Notice of Proposed Rulemaking (NPRM) proposes the following revisions to the CDL knowledge and skills testing standards in response to the statutory mandates and OIG recommendations: (1) Knowledge and Skills Testing Requirements Successful completion of the knowledge test, currently a prerequisite for the CDL, would be required before issuance of the CLP. The NPRM would incorporate by reference the latest American Association of Motor Vehicle Administrators' (AAMVA) Model Test package for knowledge and skill standards. It would include a prohibition on use of foreign language interpreters in the administration of the knowledge and skills tests, to reduce the potential for fraud. (2) Issuance of and Standards for CLPs and CDLs The NPRM would specifically require that each applicant obtain a CLP and hold it for a minimum of 30 days before applying for a CDL. It would establish a minimum age of 18 for issuance of a CLP. The CLP would have to be a separate document from the CDL or non-commercial driver's license (non- [[Page 19284]] CDL \2\ ), would have to be tamperproof to the extent possible, and would have to include the same information as the CDL. The only endorsement allowed on the CLP would be a restricted passenger (P) endorsement. Each State would be required to create a CDLIS record for each CLP it issues. --------------------------------------------------------------------------- \2\ A ``non-CDL'' is any other type of motor vehicle license, such as an automobile driver's license, a chauffeur's license, or a motorcycle license. --------------------------------------------------------------------------- Before issuing a CLP to a driver, the issuing State would be required to perform a check of the driver's previous driving record using both CDLIS and the Problem Driver Pointer System (PDPS) to ensure the driver is not subject to the sanctions of Sec. 383.51, based on previous motor vehicle violations. Discovery of such sanctions would result in the State's refusal to issue a CLP to the driver. The NPRM would strengthen the legal presence requirements and increase documentation required for CLP and CDL applicants to demonstrate their legal presence in the United States, as discussed under section III.1, below. For example, State driver's license agencies would be required to verify the applicant's Social Security Number with the Social Security Administration (SSA). The NPRM would also address applicants who wish to attend a driver training school in a State other than the applicant's State of domicile. States would be required to recognize CLPs issued by other States for training purposes. The NPRM would limit the initial and renewal periods for both CLPs and CDLs. It would clarify under what circumstances an applicant must surrender the CLP, CDL, or non-CDL. It would also require all States to use standardized endorsement and restriction codes on CDLs. Many of the program areas and issues dealt with in this NPRM are also addressed in the Department of Homeland Security's (DHS) final rule implementing the REAL ID Act (``Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,'' 73 FR 5272, January 29, 2008, codified in 6 CFR part 37). Although FMCSA and DHS have coordinated efforts to write regulations that neither overlap nor conflict, the statutes underlying these two rules serve different purposes and apply to distinct kinds of licenses and driver populations. FMCSA welcomes suggestions for clarifying both the commonalities between this rule and the REAL ID rule and the differences between them. For example, we recognize that certain REAL ID requirements exceed those proposed in this rule and that a State in compliance with the former would automatically comply with the latter. In this situation, one alternative would be to adopt the REAL ID requirements, either verbatim or by reference, into the FMCSRs. FMCSA recognizes that further harmonization with the REAL ID rule may be needed before adopting a final rule. We welcome all suggestions consistent with the requirements of the CDL program which would help us achieve that goal. We are especially interested in comments from the States, which have the primary responsibility for complying with the FMCSA and DHS requirements and the greatest expertise in managing licensing programs. Their views on the possibility of adopting the language of the REAL ID rule for various requirements in this regulation would be valuable. (3) Measures for Prevention of Fraud The NPRM would include proposed requirements intended to improve the ability of States to detect and prevent fraudulent testing and licensing activity in the CDL program. These measures would include the following: [cir] Requiring verification of social security numbers. [cir] Requiring CLP and CDL applicants to prove legal presence in the United States. [cir] Requiring that a digitized photo of the driver be preserved by the State driver licensing agency. [cir] Requiring computer system controls to allow overrides by supervisory personnel only. [cir] Requiring background checks and formal training for all test driving examiners. [cir] Requiring the establishment of oversight systems for all examiners and testers (including third-party). [cir] Disallowing the use of language interpreters for the knowledge and skills tests. In addition proposed amendments to part 384 would require these items to be reviewed whenever FMCSA conducts a CDL compliance review of the State program. States found in substantial non-compliance with these fraud control measures, as well as the other requirements of part 384, would be subject to the loss of Federal-aid highway funds. (4) Other Regulatory Changes The proposed rule would specifically prohibit a motor carrier from using a driver to operate a CMV who does not hold a current and appropriate CLP or CDL or to operate a vehicle in violation of the restrictions on the CLP or CDL. Also, it would incorporate into the regulations current FMCSA guidance (available on the Agency's Web site, under ``Guidance for Regulations,'' at http://www.fmcsa.dot.gov/rules- regulations/administration/fmcsr/fmcsrguide.htm, related to issues addressed by this rulemaking. Finally, there would be numerous minor editorial corrections and updates. B. History The CDL program was established by the Commercial Motor Vehicle Safety Act of 1986. Parts 383 and 384 of Title 49, Code of Federal Regulations, implement the CMVSA requirements. The CMVSA prohibits any person who does not hold a valid CDL or learner's permit issued by his or her State of domicile from operating a CMV that requires a driver with a CDL. The prohibition further affects driver training activities by limiting trainees to their State of domicile to (1) receive training and behind-the-wheel experience, and (2) take the knowledge and skills tests necessary to be issued a CDL. This outcome creates problems because commercial driver training facilities and the type of training needed are not equally available in all States. To address this and other issues, such as a lack of uniformity in the duration of learner's permits, associated driver history recordkeeping, and test reciprocity among States, the Federal Highway Administration (FHWA) published an NPRM on August 22, 1990 (55 FR 34478). (Note: In the discussion below, the responsible agency is referred to as the FMCSA, regardless of whether the action described occurred before or after the transfer of responsibility from FHWA to FMCSA in January 2000.) Since the 1990 NPRM, major changes have occurred in the CDL program through other rulemakings, regulatory guidance, legislation, and policy decisions. For example, the September 11, 2001, terrorist attacks prompted Congress and FMCSA to expand the scope of the CDL program to include issues related to fraud and security. The issuance of CDLs to unqualified persons and persons with false identities significantly complicated detection and prevention of fraud. All of these major changes made the 1990 proposal obsolete. Thus, FMCSA withdrew the 1990 NPRM on February 23, 2006 (71 FR 42741). The current rulemaking effort revisits these issues and proposes regulatory changes to implement section 4019 of TEA-21, section 4122 of SAFETEA-LU, and section 703 of the SAFE Port Act. [[Page 19285]] III. General Discussion of the Issues and Proposals FMCSA identified 17 issues to be addressed in the NPRM. This section includes a description of each issue, alternatives considered to address the issue, and FMCSA's proposed solution. This section also identifies the sections in 49 CFR parts 383 and 384 that would be amended. A summary of the regulatory changes organized by section number appears below in the Section-By-Section Discussion of the Proposals. 1. Strengthen Legal Presence Requirement Virtually all States currently issue CLPs and CDLs to U.S. citizens and persons with permanent legal presence in the country who may not be domiciled (i.e., permanent home and principal residence) in their State. CLPs and CDLs are also being issued to persons who have temporary legal presence in the country and are, therefore, domiciled in a foreign country. On June 4, 2004, the DOT OIG issued a Management Advisory on the need for FMCSA to establish a legal presence requirement for obtaining a CDL. The OIG recommended, at a minimum, requiring proof of citizenship, or permanent residency or legal presence in the United States before a State issues a CDL. The OIG recommended that this requirement be made part of the licensing regulations, and FMCSA proposes in the NPRM to require an applicant for a CLP to make a similar demonstration. Although ``domicile'' is not defined in parts 383 or 384, ``State of domicile'' is defined in Sec. 383.5 to mean that State ``where a person has his/her true, fixed, and permanent home and principal residence and to which he/she has the intention of returning whenever he/she is absent.'' If a State requires proof of domicile as a prerequisite for a learner's permit, then those applicants who can demonstrate that they permanently live in the State, i.e., U.S. citizens and lawful permanent residents, would be successful. A related issue is the documentation that would be acceptable as proof of domicile. Presumably, the States recognize their own non-CDLs or other evidence of a home or residence in the State, for example, a utility bill. While many States take precautions to check an applicant's record, such as conducting Social Security Number (SSN) verification, this demonstration of domicile can be made by an applicant who does not qualify. In some cases, both U.S. and non-U.S. citizens might be able to meet residency requirements using a driver's license or showing of residence that masks lack of domicile and/or citizenship or legal status. Currently, levels of documentation for residency are not uniform or stringent enough to meet the OIG's standards of legal presence. The list of acceptable documents to show proof of citizenship or immigration status for obtaining a hazardous materials endorsement (Table 1 to Sec. 383.71) could be adopted for all issuances of a CLP and CDL. An additional method for proving identity and reducing fraud is verifying applicants' SSNs with the Social Security Administration (SSA), which is discussed under Issue 2. The NPRM proposes to reinforce ``State of domicile,'' as currently defined in the regulations, as the basis for the States' actions to issue CLPs and CDLs. The NPRM revises the regulations to specify that a State may only issue a CLP or CDL to an applicant who is a U.S. citizen or a lawful permanent resident of the United States. Applicants domiciled in a foreign country, other than Canada and Mexico, who have temporary or indefinite legal presence in the country may be issued a Nonresident CLP or Nonresident CDL (regulations preclude issuing Nonresident licenses to Canada and Mexico). The NPRM also requires an applicant to demonstrate legal domicile (not just prove legal presence), and to present certain documentation to obtain a Nonresident CLP and CDL. To accomplish this goal, FMCSA adopts OIG recommendations for document verification for all CLP and CDL drivers, that is, the same document verification process as is required for hazardous materials (hazmat) endorsements under Sec. 383.71(a)(9). These requirements for verification, along with other OIG recommendation for verifying Social Security Numbers, would help to reduce the incidence of fraud in the CDL program. FMCSA proposes to revise Sec. Sec. 383.71 and 383.73 to address this issue. 2. Social Security Number Verification Before Issuing CLP or CDL When a CLP or CDL is issued to an applicant, it is important to verify that the information provided on the application form is accurate, and that the person submitting the application is who he or she claims to be. FMCSA has provided CDL grant funds to encourage States to verify social security numbers (SSNs) when issuing CDLs. Currently, 45 States perform at least limited verification of SSN, name, and date of birth with the Social Security Administration (SSA). FMCSA considered two alternatives for SSN verification. First, take no action. Second, the CLP and CDL issuance procedures should require States to verify certain identifying information (e.g., name, date of birth, and SSN) submitted on the license application with the information on file with the SSA. The States would be prohibited from issuing, renewing, upgrading, or transferring a CLP or CDL if the SSA database does not match the data provided by the applicant. This should provide an effective safeguard against issuing CLPs or CDLs to applicants who apply for a CLP or CDL based on fraud. FMCSA proposes the second alternative because approximately 45 States currently conduct SSN verification for CDL applicants. Thus, requiring SSN verification for both CLPs and CDLs would appear to impose no additional burden on the majority of States; nor would it appear to be an unreasonable burden on those States that do not currently subject CLP or CDL applicants to SSN verification. Verification of SSN can be accomplished electronically through both individual and batch methods with minimum administrative cost or burden to States. The SSN verification would only have to be performed once on a CLP or CDL applicant if a notation is placed on the driver record that the verification had been done and the results matched information provided by the applicant. The OIG mentioned fingerprinting as an alternative to a more thorough verification of SSNs, rather than as a program that should be undertaken in parallel with SSN verification. FMCSA is not proposing to require States to perform fingerprinting of CLP or CDL applicants at this time because the cost of fingerprinting is significantly higher than the cost of electronic verification of SSNs. Furthermore, the incremental benefits in terms of security do not appear to justify the cost in terms of equipment, training, and staffing, necessary to develop a fingerprinting program for each State. Thus, FMCSA proposes to add a provision to Sec. 383.73. FMCSA believes that its proposed revision adequately addresses OIG concerns. 3. Surrender of CLP, CDL, and Non-CDL Documents Currently, Sec. Sec. 383.71 and 383.73 require the surrender of an existing license only when a CDL is being issued and the license it is replacing is either a non-CDL or a CDL from out of State. [[Page 19286]] There is no requirement in the current regulations that requires a driver to surrender (1) his or her license when being issued a CDL, if the license is from the same State that is issuing the CDL, (2) his or her CLP when it is being renewed or upgraded or a CDL is issued, or (3) an old CDL when the CDL is renewed or upgraded to add a new endorsement or class of license to the new CDL. Although some States do require the surrender of the old CDL when it is renewed or upgraded, sometimes the old CDL is returned to the driver with a corner cut off or a hole punched in it as indication of invalidating the old document. In some cases, the hole is punched on the expiration date making it impossible for law enforcement to determine whether it is a valid license. Better stewardship requirements are needed for the surrender of all non-CDLs, CLPs, and previously issued CDLs when a new CDL is issued. FMCSA proposes to amend Sec. Sec. 383.71, 383.73, and 384.211, and to add proposed Sec. 383.25, to expand the current surrender requirements to include any transaction where a CLP is being upgraded or a CDL is being initially issued, upgraded, or transferred. FMCSA also proposes to incorporate into its regulations, the regulatory guidance posted on the Agency's Web site for Sec. 383.73 question 11 and Sec. 384.211 question 1 on stewardship requirements for surrendered CDLs and to apply it to all of the above-mentioned transactions. This guidance allows licensing jurisdictions to meet the stewardship requirements for surrendered licenses by physically marking the license in some way as not valid and returning it to a driver. The document must be perforated with the word ``VOID'' or with holes large enough to make it easily identifiable to a casual observer as an invalid document. Punching a hole through the expiration date is not sufficient. Thus, in the case of renewed CDLs, if a State requires the surrender of the old CDL, the stewardship requirements must be followed. 4. CDL Testing Requirements for Out-of-State Driver Training School Students Current regulations (Sec. Sec. 383.23(a)(2) and 384.212) allow a jurisdiction to license a driver only if the driver is ``domiciled'' in that jurisdiction. Drivers who temporarily go to another jurisdiction to receive driver training cannot legally obtain either a CLP or a CDL from the jurisdiction in which the training occurs because they are not ``domiciled'' in that jurisdiction. Further, some States do not recognize an out-of-State CLP for on-the-road training. Motor carriers and driver training schools advertise that they will assist drivers in obtaining CDLs upon completion of their training programs. Many training entities provide their students with a representative CMV for use in taking the skills test, and a driver with a CDL to accompany the student to the skills test location. Generally, these organizations can provide such a representative vehicle only within the jurisdiction in which the carrier's training facility or the school is located, i.e., the jurisdiction where the training is given. The driver holding a CLP who has left his/her State of domicile and licensure to obtain training then must return to his or her State of domicile and licensure to complete the skills testing. This presents the challenge of finding a vehicle that represents the type a driver expects to operate and finding a driver with a currently valid CDL to accompany the driver to the skills test location. Further, the costs associated with obtaining the vehicle and accompanying driver can be considerable, estimated at $150 to $200 per day. Finally, the applicant for a CLP or CDL must also meet the insurance requirements for using the representative vehicle when that cost is not borne by the employing motor carrier or a training school. Another problem with the existing system is the perceived inconsistency of State approaches to issuing CLPs or accepting knowledge or skills testing from other jurisdictions. FMCSA considered two alternatives based on issuance of a CLP after a demonstration of the applicant's State of domicile. First, after successful completion of a knowledge test, a person who holds a non-CDL in his or her State of domicile (or who holds a CDL that he/she wishes to upgrade) could obtain a CLP from that State of domicile and receive skills training in any State. The CLP would be recognized in all States in the same manner as CDLs. Upon successful completion of a skills test out of State, the driver could surrender both the CLP and the underlying CDL \3\ or non-CDL to the State of training and receive a temporary, non-renewable, Nonresident CDL which would expire in 60 or 90 days. During this 60- to 90-day period the driver would return to his or her State of domicile to obtain a permanent CDL. The temporary Nonresident CDL would be recognized by the State of domicile. --------------------------------------------------------------------------- \3\ Assuming the driver already has a CDL, but is training to upgrade his/her CDL to a higher class (i.e. Group C to B) or to add an endorsement that requires skills testing (i.e. passenger endorsement). --------------------------------------------------------------------------- However, this alternative is dependent upon whether the State in which the training is provided has the desire and authority to issue a Nonresident CDL. Other new CLP requirements in the NPRM would decrease the vulnerability to fraudulent licensing practices under this alternative. FMCSA would maintain the ``one-driver, one-license, one- record concept'' by proposing to link an underlying non-CDL to the issuance of a CLP and require both from the driver's State of domicile. Also, when the CLP and non-CDL are surrendered, the State of training temporarily becomes the State of licensure because the driver's records are transferred to that State. Under the second alternative, a person who holds a CDL or non-CDL in his or her State of domicile could obtain a CLP from that State and obtain training in any State. A person would take the skills test in the State where the training was conducted. The State of training would send the skills test results to the State of domicile. The State of domicile would accept the results of the skills test and issue a CDL when the student returns to his or her State of domicile. This alternative is based upon a driver's State of domicile accepting the results of a CDL skills test taken out-of-State. The problem with this alternative results from the States' perceived lack of standardization of skills testing and potential for fraudulent testing. Consequently, some States might be reluctant to accept the liability of issuing a CDL based on the results of an out-of-State CDL skills test. This alternative involves reciprocity of skills testing results. FMCSA is confident that the new proposed skills test standards would provide the States with a basis for accepting another State's test results. FMCSA proposes to revise Sec. 383.23(c) to reflect the second alternative. Current paragraph (c) and other issues that are exclusive to the CLP would be redesignated as new Sec. 383.25. FMCSA believes that the proposed revisions to the minimum standards for knowledge testing in subparts G and H of Part 383 would provide a basis for a State to accept another State's knowledge testing and CLP for the purpose of allowing the driver to participate in skills training out- of-State. 5. State Reciprocity for CLPs Currently, Federal CDL regulations are silent on whether a CLP must be recognized by other States. This situation has caused some States to recognize an out-of-State CLP when the [[Page 19287]] holder is taking commercial driver training in their State, while other States have said the student can only take commercial driver training if the CLP is also from that State. Some States, even though they do not recognize a CLP from another State for training purposes, will issue an out-of-State student a CLP and establish a driver record, but allow the student to maintain his or her base license and driving record from his/her State of domicile. FMCSA proposes to amend Sec. 383.73(h), which would be redesignated as Sec. 383.73(l), by adding a new requirement for CLP reciprocity. In order to maintain the ``one driver, one license, one driving record concept'' of the CDL program and to establish uniformity in the issuance of CLPs, the CLPs would only be issued by the State of domicile; but the CLP must be recognized for training purposes by all other States in the same manner as CDLs are recognized under Sec. 383.73(h). 6. Minimum Uniform Standards for Issuing a CLP a. Passing the General Knowledge Test To Obtain a CLP Currently, some States do not require a knowledge test as a prerequisite to issuing a CLP. In its May 2002 audit report ``Improving Testing and Licensing of Commercial Drivers,'' the OIG recommended that FMCSA require applicants to pass a knowledge test to obtain a CLP. Section 4122 of SAFETEA-LU mandates CLP applicants pass a written test before the CLP is issued. FMCSA proposes that every commercial driver-trainee be required to successfully complete the CDL knowledge tests before being issued a CLP. A driver who holds a valid non-CDL in his or her State of domicile would obtain a CLP from the State of domicile upon successful completion of a general CDL knowledge test. The proposal to require knowledge testing for all persons applying for a CLP is addressed in Sec. 383.25 and proposed amendments to Sec. Sec. 383.71 and 383.73. This requirement would provide for a safer driving environment by ensuring that a student demonstrates basic knowledge of operating a CMV before he or she gets behind the wheel. b. Requiring the CLP To Be a Separate Document From the CDL or Non-CDL States vary in the type of document that serves as a commercial learner's permit and the relationship of the commercial learner's permit to a CDL or non-CDL. In extreme cases, a non-CDL serves as the CLP and, once the driver passes the skills test, as a temporary CDL. Standardizing the CLP is a key component of this NPRM. FMCSA proposes to establish the central requirement that the CLP be a separate document from the CDL or non-CDL. The CLP document would have to meet much the same requirements as a CDL document, but with the words ``Commercial Learner's Permit'' or ``CLP'' displayed prominently at the top. FMCSA also proposes that the restriction codes, vehicle group, and endorsement for which the driver has passed knowledge tests should be printed on the CLP document, as well as the license number of the underlying CDL or non-CDL. FMCSA also proposes that the CLP document include the statement that the permit is not valid for driving a CMV unless the driver also has on his/her possession the underlying CDL or non-CDL and only drives when accompanied by a valid CDL holder. More information about the proposal that the CLP be a separate document, but tied to the underlying CDL or non-CDL, is addressed in proposed Sec. 383.25 and amendments to Sec. Sec. 383.151 and 383.153. c. CLP Document Should Be Tamperproof The States permit a variety of documents to serve as CLPs. Some States issue paper documents that would be easy targets for tampering. To narrow the range of documents that serve this purpose and to improve security, section 4122 of SAFETEA-LU requires that the CLP be tamperproof and the content of the CLP document be the same as the content of the CDL document. The CLP would state that without the underlying State CDL or non-CDL the CLP is invalid. The license number of the underlying CDL or non-CDL would be displayed on the CLP. FMCSA proposes to add a definition for ``CLP'' and ``Nonresident CLP'' to Sec. 383.5 (Definitions). Substantive information requirements for the CLP would be analogous to the information required for a CDL and Nonresident CDL; and the term ``Commercial Learner's Permit'' or ``CLP'' must be prominently displayed on the document. If the person being issued a CLP is domiciled in a foreign jurisdiction, other than Canada or Mexico, the word ``Nonresident'' must also appear on the CLP. FMCSA also proposes that a photograph or digitized image of the driver, the appropriate vehicle group, endorsement, and restriction codes must be shown on the CLP document. The proposed Sec. Sec. 383.153 and 383.155 reflect these changes. d. Recording the CLP in CDLIS Current State policies make it possible for a driver to obtain a CLP from more than one State, because only about half the States create a CLP driver record in CDLIS. To address this problem, the OIG recommended that, the CLP be recorded in the CDLIS, and section 703 of the SAFE Port Act required the Agency to implement the report that included the recommendation. In addition, section 4122 of SAFETEA-LU requires the inclusion of the CLP in CDLIS. Because the CLP together with an underlying non-CDL is a form of CDL for training when the driver is accompanied by a CDL holder, it is important that the CLP be subject to the same recordkeeping requirements as a CDL (49 CFR 383.23(c)). Moreover, these recordkeeping provisions would aid in the administration of nationwide CLP reciprocity and ensure uniform application of disqualifications to CLP holders. FMCSA has determined that the CDLIS has the capacity to handle the additional entries that are anticipated as a result of this proposal. Finally, the provision fulfills the OIG recommendation and SAFETEA-LU requirement that CDLIS be notified of all CLPs issued. FMCSA proposes to amend Sec. Sec. 383.71, 383.73, 384.205, 384.206, 284.207, and 384.225 to create a CDLIS record for a CLP and to require posting all CLP transactions to CDLIS. 7. Maximum Initial Validity and Renewal Periods for CLP and CDL a. Initial Validity and Renewal Periods for CLP The general principle behind limiting the duration of a CLP and restricting the number of times it can be renewed without retaking the general CDL knowledge and endorsement tests is public safety on the highway. Every CLP holder is expected to demonstrate the minimum level of requisite skills in a test situation and obtain a CDL within a reasonable period of time (Sec. 383.25(d)). If the CLP holder does not obtain the CDL within a reasonable period of time, it could be an indication that the CLP holder is having difficulty developing the required skills to handle a CMV safely. Consequently, a protracted learning period for a CLP holder could pose a safety hazard on the nation's public roads and highways. Therefore, it is important to closely monitor CLP holders to determine if they might be experiencing any safety problems. Such monitoring could be accomplished by checking the driver [[Page 19288]] record prior to granting a renewal of the CLP. Some States, such as Alabama, are considering issuing CLPs for the same period as licenses, 5 years. When a CLP is issued for a lengthy period of time, it has been used illegally in some cases as a CDL in a co-driver situation, while the CDL holder is in the sleeper berth. FMCSA considered two alternatives for limiting the initial issuance and renewal periods for CLPs. First, a commercial driver training program including classroom and behind the wheel training usually takes 6 to 8 weeks. Considering that some students may need additional behind the wheel experience before taking the skills test for a CDL, a CLP valid for 90 days would be reasonable. Likewise, some driver-students may not pass the skills test on the first attempt and scheduling a retest may take several weeks. In that situation, the students would be allowed to renew their CLP for an additional 90 days without having to retake the general and endorsement knowledge tests. Under the second alternative, FMCSA recognizes that not all CLP holders take formal training at a commercial driving school. They may need more time (e.g., 180 days) to pass the skills test because they are not training and practicing behind-the-wheel skills on a full time basis as they would in a formal training program. Therefore, FMCSA could propose a CLP be valid for 180 days. Again, some driver-students may not pass the skills test on the first attempt and scheduling a retest may take several weeks, so the students could be allowed to renew their CLP for an additional 90 days without having to retake the general and endorsement knowledge tests. FMCSA believes public safety demands a limitation on the time allowed for a student to obtain a CDL without having to start the process over by retaking the general and endorsement knowledge tests. There is also concern that limiting initial validity to a short period of time (e.g., 90 days) puts an undue burden on both the driver and the State licensing agency in processing more renewals. Therefore, FMCSA proposes the second alternative and proposes to add new Sec. 383.25 and to amend Sec. Sec. 383.71 and 383.73. b. Initial Validity and Renewal Periods for a CDL The States vary in their initial duration and renewal periods for CDLs. The trend has been to expand the time periods in order to handle more drivers with the same staff and budget. In New York, for example, the renewal period for a driver's license, including CDLs, has gone from 5 years to 8 years. In Arizona, for example, all driver's licenses, including CDLs, do not have to be renewed until the driver turns 65 years old. The ever increasing length of initial and renewal periods for CDLs is defeating the purpose of renewal. The renewal process allows the driver to update information on the license and the State to update this information on the electronic driving record, place a new photograph on the license, check the driving record (i.e. current State of licensure, CDLIS, and Problem Driver Pointer System (PDPS)), and, in the case of the hazardous materials endorsement, require the driver to retake the test required by Sec. 383.71. FMCSA considered two alternatives for limiting the initial term and renewal periods for CDLs. Under the first alternative, the current average validity period for a license in the United States is slightly under 5 years. Some States use periods as low as 2 years and others use 8 years; a few licenses remain valid to age 65. Since the hazardous materials endorsement threat assessment must be performed at least every 5 years in accordance with a Transportation Security Administration interim rule, the initial and renewal periods could be set at a maximum of 5 years to bring the CDL renewal and threat assessment cycles into agreement. This would promote uniformity among the States and limit the escalating length of validity periods. However, FMCSA recognizes that States with periods over 5 years may object because they could not handle more frequent transactions with current staffing and budget levels. Under the second alternative, while the current average validity period for a license in the United States is just under 5 years, the number of drivers is increasing. Therefore, States would need some flexibility to extend the validity periods to accommodate the increase with current staffing and budget levels. Except for Arizona and Georgia, we know of no State that currently has an initial and renewal period greater than 8 years. An 8-year period is also the renewal period DHS has adopted in its final rule to implement the REAL ID Act. By proposing an 8-year maximum renewal period, FMCSA agrees with the DHS requirements for all drivers' licenses. An 8-year period would provide most States the flexibility to expand beyond 5 years. At the same time, it would still promote highway safety by placing a cap on the maximum validity periods and preventing more States from following Arizona's lead by eliminating any renewal until age 65. At least once every eight years, the driver would update information on the license and the State would update this information on the electronic driving record, place a new photograph on the license, and check the driving record. FMCSA proposes the second alternative, and Sec. Sec. 383.71 and 383.73 would be modified. 8. Establish a Minimum Age for CLP An individual is not eligible to operate a CMV in intrastate commerce before age 18 (49 CFR 350.341(f)), and in interstate commerce before 21 years (49 CFR 391.11(b)(1)), except for those persons either excepted or exempted under 49 CFR 390.3(f), 391.2 and subpart G of part 391. Despite this fact, some States are currently issuing CLPs to applicants younger than 18 years of age. As a result, an individual who cannot operate a CMV in intrastate or interstate commerce is allowed to train and obtain behind-the-wheel experience in a CMV under the age of 18. FMCSA considered two alternatives for setting a minimum age for issuing a CLP. First, to avoid the inconsistency between States for setting the minimum age for operating a CMV with a CLP, FMCSA could recommend that an applicant for a CLP be at least 18 years old. The age limit is especially important if a CLP holder, as proposed, would be granted reciprocity to drive in another State while training. The second alternative is the same as the first alternative. However, the exceptions and exemptions to the 21 years of age requirement for interstate commerce under 49 CFR 390.3(f), 391.2, and subpart G of part 391 would also be recognized for the issuance of a CLP. FMCSA proposes the second alternative to be consistent with the exceptions and exemptions from age requirements granted in Parts 390 and 391 to operate in interstate commerce and, if adopted by the State, in intrastate commerce. A provision would be added to new Sec. 383.25 and to Sec. 383.71 to specify a minimum age requirement with limited exceptions. 9. Preconditions To Taking the CDL Skills Test Currently, issuance of a CLP is not a precondition for issuance of a CDL. Therefore, a CDL applicant could legally obtain behind-the-wheel training on any public or private road without a CLP. Also, there is the issue of applicants without a CLP getting less than two weeks training at so called ``CDL mills rather than 6 to 8 weeks of training that [[Page 19289]] teaches them to properly operate a CMV. In addition, the CLP holder should not be eligible to take the CDL skills test in the first 30 days after initial issuance of the CLP, because it affords the applicant an opportunity to obtain skills training and to practice what he or she is taught. This 30-day prohibition on taking the skills test may also have an effect on the training period and thoroughness of the curriculum being taught at the CDL mills, because of the interval between the general training to pass the knowledge test for a CLP and the point at which the driver is eligible to take the skills test. FMCSA proposes to add these conditions in Sec. 383.25 and to amend part 383, subpart H. The Agency has published a NPRM (72 FR 73226, December 26, 2007) that would require that applicants for a CDL obtain training that meets specific curriculum requirements. The entry level driver training requirement (RIN 2126-AB06) would work together with the requirements in this rulemaking to ensure that applicants for a CDL have received adequate training and have had adequate opportunity to learn safe driving skills behind the wheel of a CMV. The comment period for the Agency's entry-level driver training rule expires on May 23, 2008 (73 FR 15471, March 24, 2008). 10. Limit Endorsements on CLP to Passenger (P) Only This rule proposes that persons who are learning to drive a CMV with a CLP should not operate specialized vehicles (e.g., double/triple trailers or tank vehicles) or carry dangerous or high-value cargo (such as hazardous materials or passengers) before they acquire basic knowledge and skills. However, some States issue endorsements on their CLPs, or allow drivers to train on CMVs that require an endorsement without the need for the endorsement on the CLP or CDL. Section 383.93 requires a driver to pass the general knowledge and skills test for a CDL before being eligible to add endorsements for double/triple trailers, passenger vehicles, tank vehicles, vehicles used to transport hazardous materials, and school buses. While all endorsements require a knowledge test specific to the endorsement, only the passenger (P) endorsement under Sec. 383.93(c)(2) and the school bus (S) endorsement under Sec. 383.93(c)(5) require successful completion of both a knowledge and skills test. Thus, only the P and S endorsements require the applicant to obtain behind-the-wheel experience to prepare to pass the skills test. FMCSA proposes that only the P endorsement be allowed on the CLP after the driver successfully passes the endorsement knowledge test. We further propose that the CLP holder with the P endorsement be prohibited from driving a CMV carrying passengers. While the S endorsement requires skills training to pass the skills test, it is only needed when the driver is actually transporting students. Thus, there is no need to have the S endorsement on the CLP when training for the CDL because it would not be a safe practice to allow driver trainees to transport students. If the applicant is training on a school bus, the endorsement knowledge test must be passed and noted on the driver's record. FMCSA also proposes that the P endorsement on the CLP be class specific. The driver can only undergo skills testing in a class of passenger vehicles or school bus for which he or she has passed knowledge training. This requirement is similar to what is required for P or S endorsements as CDL upgrades. The CLP holder must also be accompanied and directly supervised by a driver qualified for such a vehicle type. No other endorsements should be allowed on a CLP for safety reasons. The hazardous materials (H) endorsement is currently prohibited for security reasons. FMCSA sees no justification for allowing CLP holders to train on double/triple vehicles, tank vehicles, and vehicles carrying hazardous materials. Drivers wishing to develop skills on these vehicles must first obtain a CDL and then seek additional training needed for an endorsement. FMCSA proposes to add Sec. 383.25 and to amend Sec. Sec. 383.71, 383.73, 383.93, and 383.153. These proposed requirements and restrictions for the P and S endorsements on the CLP would apply whether the CLP holder has only a non-CDL, or already has a CDL and is seeking an upgrade by adding the P or S endorsements. 11. Methods of Administering CDL Tests State and Federal investigations have revealed applicant and examiner fraud in the use of interpreters during knowledge and skills testing. The OIG has issued recommendations on this issue. The agency has issued Regulatory Guidance on 49 CFR Part 383 concerning the use of interpreters and written, verbal, and automated foreign language tests. The use of interpreters during knowledge testing has resulted in fraud; questions are sometimes answered by the interpreter, not the applicant. The use of interpreters during skills testing could pose a serious safety hazard to the driver, the examiner, the CMV and the general public on the highway. For example, if would be dangerous if a testing official gave the driver a command based on an observed hazard or situation, but the driver did not immediately comprehend the command. The OIG also recommended in its 2002 CDL audit report that FMCSA require testing protocols and performance oriented requirements for English language proficiency. FMCSA proposes to amend Sec. 383.133. The fraud and safety concerns identified over the past few years lead FMCSA to conclude that the rules should provide clear guidance on test administration. The NPRM would propose to eliminate the use of interpreters in both the knowledge and the skills testing. There are alternate ways to conduct knowledge tests in foreign languages through the use of written, recorded and automated testing. With regard to skills testing, interpreters are a safety issue, not a language accommodation issue. While a foreign speaking applicant may have difficulty comprehending long questions and multiple choice responses in English, immediate response to verbal commands and instructions in English by a skills test examiner is vital to public safety. This proposed rule attempts to strike a balance between accommodation of applicants for whom English is their second language and who undergo CDL testing, while preserving the necessary protections against fraud and safety risks to drivers, skills test examiners, and the general public on highways. 12. Update Federal Knowledge and Skills Test Standards Section 4019 of TEA-21 required FMCSA to complete a review of the current system of CDL knowledge and skills testing, and determine if it is an accurate measure of an individual's knowledge and skills as an operator of a CMV. Section 4019 further required FMCSA to issue regulations reflecting the results of the review. This mandate was addressed by the American Association of Motor Vehicle Administrators (AAMVA) and the FMCSA jointly. The recently updated versions of AAMVA's model CDL knowledge and skills tests, and driver and examiner manuals were released to the States in January 2006. The updated model test package (Version 2005) meets a higher standard of knowledge and skills testing than the current Federal standards in part 383, subparts G and H. While some States are voluntarily adopting the updated model test [[Page 19290]] package (tests and manuals), the majority of the States will not fully adopt them until the Federal testing standards are raised to meet the model test standards. FMCSA considered two alternatives for updating the Federal knowledge and skills testing standards. Under the first alternative, FMCSA would incorporate the AAMVA model test package (Version 2005) by reference into the Federal regulation for CDL knowledge and skills standards. This is justified because AAMVA's 2005 model testing package was developed with major input by representatives from the industry that would be affected by the new testing standards, and as a way of promoting uniformity among the States. Some modifications to part 383, subparts G and H, would be needed to match the knowledge standards in the model testing package. These modifications would address: (1) The number of questions that are required on the general and endorsement knowledge tests; (2) the number of knowledge categories (domains) that must be represented with questions on the general and endorsement knowledge tests; and (3) the adoption of the AAMVA 2005 Requirements Document algorithm for creating multiple versions of the knowledge test. In addition, modifications to part 383, subparts G and H, would be needed to: (1) Make the entire pre-trip inspection (not just the air brake inspection) part of the skills standard, rather than the current knowledge standard; (2) prohibit the banking of parts of the skills test (for example, an applicant who passes the pre-trip and off-road maneuvers, but fails the on-road part of test must retake all three parts of the skills test); (3) adopt the expanded definition of CMV in section 4011(a) of TEA-21 to include both ``gross vehicle weight rating and gross vehicle weight'' and ``gross combination weight rating and gross combination weight,'' ``whichever is greater.'' ;\4\ (4) eliminate Sec. 383.77, since the substitute for a driving skills test was intended only for the initial testing cycle prior to April 1, 1992; and (5) adopt the OIG recommendation to require covert monitoring of State and third party skills test examiners. --------------------------------------------------------------------------- \4\ The expanded definition should be limited to roadside enforcement and not used for skills testing in order to maintain the representative vehicle concept. --------------------------------------------------------------------------- The second alternative is the same as the first alternative, except that the AAMVA model testing package would not be adopted by reference. Only the major aspects of the model testing package would be incorporated into the Federal knowledge and skills testing standards, similar to what is in the current testing standards in part 383, Subparts G and H. FMCSA proposes the first alternative in order to promote more uniformity among the States. FMCSA proposes to amend Sec. 383.5 and part 383, subparts G and H, and to add Sec. 384.229. 13. New Standardized Endorsements and Restriction Codes Currently, uniform codes are not required for all endorsements and restrictions on a CDL. For example, unlike the standardized CDL codes for the double /triple trailer (T), hazardous materials (H), tank vehicle (N), passenger vehicle (P) and school bus (S) endorsements, the air brake restriction has no standardized code. The fact that States are using five different codes causes enforcement problems. In one State a ``K'' restriction means an air brake restriction while in another State it means an intrastate-only restriction. Several issues have been raised by motor carriers and State driver licensing skills examiners in regard to CMVs with (1) automatic transmissions or manual transmissions; (2) air over hydraulic versus air brakes; and (3) non-fifth wheel (e.g., pintle hook) versus fifth wheel combination vehicles. Motor carriers are concerned when they hire drivers with a CDL who (1) cannot operate manual transmission vehicles; (2) cannot test or operate a full air brake system; and/or (3) cannot hook up a fifth wheel power unit with a semi-trailer. State examiners are concerned when they cannot test the applicant on (1) a full air brake system; (2) a manual transmission; and/or (3) fifth wheel combination hookup because the vehicle brought to the test is not so. However, there is no current Federal requirement that the test vehicles be outfitted with these features. A number of States have imposed restrictions on CDLs for drivers who take the skills test in a CMV that is missing one or more of these features, but there are no standardized codes for these restrictions. Another issue related to endorsements is the confusing definition of ``tank vehicle'' under Sec. 383.5 because of the reference to the definition of ``cargo tank'' in 49 CFR part 171. The definition in Part 383 implies that a driver needs a tank endorsement to operate a vehicle with a permanently attached tank that has a rated capacity greater than 119.5 gallons. In the case of a portable tank temporarily attached to the vehicle, a tank endorsement is needed only if the portable tank has a rated capacity of 1,000 gallons or more. FMCSA proposes to amend Sec. Sec. 383.5, 383.93, 383.95, and 383.153. FMCSA believes that Federal restrictions