Medical Certification Requirements as Part of the CDL, 73096-73128 [E8-28173]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 231 (Monday, December 1, 2008)]
[Rules and Regulations]
[Pages 73096-73128]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28173]



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Part VII





Department of Transportation





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Federal Motor Carrier and Safety Administration



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49 CFR Parts 383, 384, 390, et al.



Medical Certification Requirements as Part of the CDL; National 
Registry of Certified Medical Examiners; Final Rule and Proposed Rule

Federal Register / Vol. 73, No. 231 / Monday, December 1, 2008 / 
Rules and Regulations

[[Page 73096]]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383, 384, 390, and 391

[Docket No. FMCSA-1997-2210]
RIN 2126-AA10


Medical Certification Requirements as Part of the CDL

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

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT: Dr. Mary D. Gunnels, Director, Medical 
Programs, FMCSA, Room W64-224, U.S. Department of Transportation, 1200 
New Jersey Avenue, SE., Washington, DC 20590-0001. Telephone: (202) 
366-4001. E-mail: FMCSAMedical@dot.gov. Office hours are from 8:30 a.m. 
to 5 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

A. Legal Basis

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

1. Authority Over Drivers Affected

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

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

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

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

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

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

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

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

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

2. Authority to Regulate State CDL Programs

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

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

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

B. Background

1. Notice of Proposed Rulemaking

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

2. Summary of the Final Rule

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

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

3. Safety Need for the Rule

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

C. Discussion of Public Comments

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

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

1. Information on the CDLIS Driver Record

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

2. Definitions and Clarification of Terms

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

[[Page 73100]]

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

3. Medical Examiner's Certificate and Form Issues

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

[[Page 73101]]

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

4. Privacy of Information

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

[[Page 73102]]

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

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

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

5. Authorized Users and Information Access Issues

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

[[Page 73103]]

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

6. Impacts

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

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

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

[[Page 73104]]

States in an effort to re-evaluate the costs of its original proposal 
to determine if the Agency's calculation was especially low (73 FR 
36489; June 27, 2008). The explanation of the methodology used for 
gathering data from the States and its analysis are in the docket. 
Based on its new analysis, FMCSA agrees that the Agency underestimated 
the costs to the States. The revised estimates for State costs are 
explained in the Regulatory Analysis section contained later in the 
preamble to this final rule. A complete final regulatory analysis is 
located in the docket.
    b. Impact on Licensing Renewal Procedures. The Alabama Department 
of Public Safety notes that the only CDL holders who return to the SDLA 
for renewals are those CDL holders who carry a Hazardous Material (HM) 
endorsement; all other CDL drivers renew their CDLs at the Office of 
the Probate Judge. Alabama subsequently asked which organization would 
be responsible for checking the validity of the medical certification 
status upon renewal.
    FMCSA Response: In the final rule, the State must verify that the 
medical certification status is ``certified'' on the CDLIS driver 
record before renewing the CDL. It does not matter whether the SDLA or 
another designated agency or agent (e.g., Office of the Probate Judge) 
performs the renewal, the CDL compliance requirements remain the same. 
In the regulatory text of this rule, FMCSA will use the more generic 
term ``State,'' rather than SDLA, to encompass all State entities and/
or State licensing agencies that are responsible for the CDL issuance, 
renewal, transfer or update.
    c. Impacts on Drivers. In the NPRM, the FMCSA estimated that the 
medical and CDL rulemaking requirements would cost drivers a total of 
$3.22 million per year once the rule is implemented. A number of 
commenters believe the rule has additional impacts on drivers that have 
been underestimated by FMCSA. Several individuals, employers, and 
others, including the Virginia DMV, Texas Department of Public Safety, 
and the National Propane Gas Association, express their concern about 
the burden for drivers to travel to the SDLA and the extra costs for 
drivers to obtain new CDLs or medical certifications. The National 
Propane Gas Association believes that there will be an increased burden 
on drivers who must correspond with the SDLA more frequently than in 
the past. The Teamsters allege that drivers will have to take time off 
work and will be charged fees to obtain a copy of their CDLIS MVR. 
Therefore, at a minimum, the Teamsters contend that a copy of the 
driver's updated CDLIS driver record should be provided at no cost to 
the driver.
    One individual driver points o