Commercial Driver's License Testing and Commercial Learner's Permit Standards, 17875-17882 [2013-06760]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 78, Number 57 (Monday, March 25, 2013)]
[Rules and Regulations]
[Pages 17875-17882]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-06760]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383 and 384

[Docket No. FMCSA-2007-27659]
RIN 2126-AB59


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

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

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT: Robert Redmond, Office of Safety 
Programs, Commercial Driver's License Division, telephone (202) 366-
5014 or email robert.redmond@dot.gov. Office hours are from 8:00 a.m. 
to 4:30 p.m. If you have questions on the docket, call Ms. Barbara 
Hairston, Docket Operations, telephone 202-366-3024.

SUPPLEMENTARY INFORMATION: 

I. Legal Basis

    This rule is based on the same authority as FMCSA's final rule on 
``Commercial Driver's License Testing and Commercial Learner's Permit 
Standards'' published on May 9, 2011 [76 FR 26854]; for a complete 
discussion of that authority, see the Legal Basis section of the 2011 
rule [76 FR at 26855].
    Briefly, this rule implements or revises certain provisions of the 
Commercial Motor Vehicle Safety Act of 1986 (CMVSA), as amended [49 
U.S.C. chapter 313]; the Motor Carrier Safety Act of 1984 (MCSA), as 
amended [49 U.S.C. 31136]; and the Motor Carrier Act of 1935 (MCA) [49 
U.S.C. 31502(b)]. The rule also carries out certain provisions of the 
Transportation Equity Act for the 21st Century (TEA-21) [Pub. L. 105-
178, 112 Stat. 107, June 9, 1998]; the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) 
[Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005]; and the Security and 
Accountability For Every Port Act of 2006 (SAFE Port Act) [Pub. L. 109-
347, 120 Stat. 1884, Oct. 13, 2006].
    The CMVSA established the commercial driver's license (CDL) and 
drug and alcohol testing programs. The MCSA directed FMCSA to ensure 
that its safety regulations meet certain general objectives. That 
statute also underlies most of FMCSA's safety regulations including, as 
supplemental authority, those related to the CDL program. The MCSA 
inaugurated Federal regulation of motor carrier safety and provided 
broad authority over for-hire and private motor carriers.
    Sec. 4019 of TEA-21 required the Department of Transportation (DOT) 
to determine whether the CDL testing system accurately measures the 
knowledge and skills needed to operate a commercial motor vehicle (CMV) 
and, if not, to correct the system. Sec. 4122 of SAFETEA-LU required 
FMCSA to prescribe regulations on minimum uniform standards for the 
issuance of commercial learner's permits (CLPs), as it had already done 
for CDLs. Sec. 703 of the SAFE Port Act required the Secretary of 
Transportation to carry out recommendations issued by the DOT's Office 
of Inspector General (OIG) in 2002, 2004, and 2006 concerning 
performance-oriented requirements for English language proficiency, 
verification of the legal status of commercial drivers, and fraud-
reduction in the CDL program. The 2011 final rule implemented all of 
these mandates.

[[Page 17876]]

    The Agency received 34 petitions seeking reconsideration of various 
elements of the 2011 rule. FMCSA is adopting this rule without 
additional notice and opportunity for comment because the issues raised 
by petitioners have already been subjected to the full range of notice 
and comment, starting with the notice of proposed rulemaking (NPRM) in 
2008 [73 FR 19282, April 9, 2008]. Many parties submitted comments on 
the NPRM; the Agency responded at length in the preamble to the 2011 
rule. A number of the petitions for reconsideration repeated the 
comments and suggestions submitted to the Agency in response to the 
2008 NPRM. However, some of the petitions included additional analyses 
and data such that FMCSA is persuaded to adopt changes to the 2011 
final rule. These changes include non-substantive changes to clarify 
the Agency's intent and to resolve confusion over the rule's 
requirements. The changes also include amendments to lessen the 
regulatory burden the 2011 rule placed on both public and private 
entities where such changes fall within the scope of or are the logical 
outgrowth of the 2008 NPRM. One final change expands the amount of time 
States have to come into compliance with the new requirements because 
of changes made in today's final rule. Under these circumstances, a 
further round of notice and comment would serve no purpose and is not 
required by the Administrative Procedure Act.

II. Background

    On April 9, 2008, FMCSA issued a notice of proposed rulemaking 
(NPRM) to amend the CDL knowledge and skills testing standards and 
establish new minimum Federal standards for States to issue the 
commercial learner's permit (CLP) (73 FR 19282). On May 9, 2011, FMCSA 
issued a final rule implementing these changes. In response to the 
final rule, FMCSA received 34 petitions for reconsideration. FMCSA has 
decided to publish a new final rule amending several provisions of the 
May 9, 2011 rule.
    For additional background information, please see the Background 
section of the May 9, 2011 final rule (76 FR 26854).

III. Discussion of the Petitions for Reconsideration

    After careful review, FMCSA decided to grant some petitions, in 
whole or in part, and deny others. As a result, FMCSA is publishing a 
new final rule modifying seven provisions of the May 2011 final rule. 
The grant and denial orders are available in this rulemaking docket, 
referenced at the beginning of this notice.
    In this final rule, FMCSA modifies the following provisions, which 
granted, in whole or in part, are in response to the petitions for 
reconsideration:
    1. State Procedures--49 CFR 383.73(a)(2)(vi), (b)(6), (c)(7), 
(d)(7), and (e)(5)
    2. Requiring Two Employees To Verify Documents--49 CFR 383.73(m)
    3. Prohibiting Training Schools From Administering Skills Tests--49 
CFR 383.75(a)(7)
    4. Bonding Requirements--49 CFR 383.75(a)(8)(v)
    5. Prohibiting States From Using a Photo on the CLP--49 CFR 
383.153(b)(1) and 384.227
    6. Requiring Annual Background Checks for Skills Test Examiners--49 
CFR 384.228(h)
    7. Although FMCSA initially denied petitions seeking to delay the 
May 2011 final rule's compliance date, FMCSA reverses that decision and 
modifies the following additional provision: Substantial compliance--
general requirements--49 CFR 384.301(f). FMCSA denied the remaining 
issues submitted for reconsideration.

State Procedures--49 CFR 383.73(a)(2)(vi), (b)(6), (c)(7), (d)(7), and 
(e)(5)

    Sections 383.73(b)(6) and 383.73(c)(7) require States to check for 
legal presence and domicile, but provide for an exception stating that 
this only needs to be done once after July 8, 2011, provided that a 
notation is made on an individual's record. Some States requested that 
the Agency extend this exception to renewals and upgrades.
    Sections 383.73(b)(6) and 383.73(c)(7) state that the exception to 
checking for legal presence and domicile applies to initial issuances, 
transfers, and renewals; however, the exception does not appear in 
Sec.  383.73(d)(7), which governs renewals. In addition, Sec.  383.73 
does not specify whether the exception applies to upgrades, which are 
governed by Sec.  383.73(e)(5). The Agency acknowledges that the 
exception was not written as the Agency intended. As a result, FMCSA 
amends Sec. Sec.  383.73(b)(6), 383.73(c)(7), 383.73(d)(7), and 
383.73(e)(5) to clarify that the exception covers all transactions, 
whether initial issuance, transfer, renewal, or upgrade, made after 
July 8, 2011.

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

    Section 383.73(m) requires that two State Driver's Licensing Agency 
(SDLA) staff members verify CLP and CDL applicants' test scores, 
completed application forms, and documents to prove legal presence. For 
SDLA offices with only one staff member on duty, the documents must be 
verified by a supervisor before issuance. Alternatively, when the 
supervisor is not available, copies must be made of the documents used 
to prove legal presence and domicile so that a supervisor can verify 
them along with the completed application within one business day of 
issuance of a CLP or CDL. A number of States interpreted Sec.  
383.73(m) to require two employees to verify each document. They 
requested reconsideration, stating that the perceived requirement would 
burden existing resources and increase SDLA workload at a time when 
State agencies are experiencing reduced funding and resources. In 
addition, one State asked for clarification of how this provision 
affects central-issuance States.
    FMCSA did not intend to create a redundant process under which two 
SDLA employees must verify each document a particular driver-applicant 
presents. Rather, FMCSA intended that more than one SDLA employee 
participate substantively in the licensing process. For example, one 
person might review the legal presence and other documentation the 
driver presents, while a second SDLA employee would conduct the 
required driving record check for driving violations, take the 
applicant's photograph, and issue the license. Moreover, the two 
employees need not work in the same location. For a central-issuance 
State, having one employee accept documents at the point of service and 
another verify some or all of them at the central-issuance facility 
would satisfy the requirements of this section. Similarly, for SDLA 
offices with only one staff member on duty, having a supervisor verify 
some or all of the documents within one business day of issuance of a 
CLP or CDL would satisfy the requirements of this section.
    FMCSA amends Sec.  383.73(m) to clarify that FMCSA requires two 
people to be substantively involved in the license issuance process, 
but does not require that two people verify each document.

Prohibiting Training Schools From Administering Skills Tests--49 CFR 
383.75(a)(7)

    Section 383.75(a)(7) prohibits CDL training schools from skills 
testing applicants they train, except if there is no skills testing 
alternative within 50 miles of the school and the same examiner does 
not train and test the same student applicant. The FMCSA

[[Page 17877]]

received petitions requesting reconsideration on the grounds that the 
provision was too restrictive and would create hardship for States, 
training schools, and motor carriers.
    FMCSA acknowledges the hardship and unintended consequences that 
this provision could cause for States, schools, and aspiring CDL 
holders. FMCSA believes, however, that prohibiting individual examiners 
from administering skills tests to student applicants they have trained 
will further the Agency's and Congress's fraud-prevention objectives. 
Accordingly, FMCSA amends Sec.  383.75(a)(7) to provide that CDL 
training schools may test their own student applicants only so long as 
an individual examiner does not administer the skills test to drivers 
he or she has trained.

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

    Section 383.75(a)(8)(v) requires third party CDL testers to 
maintain bonds in an amount sufficient to pay for re-testing of drivers 
if required due to examiners engaging in fraudulent activities related 
to skills testing. A number of States requested that FMCSA reconsider 
this section to require bonding to be at the State's discretion or only 
apply to non-governmental entities.
    As explained in the May 2011 rule, FMCSA is aware of a number of 
third party testers whose examiners engaged in fraudulent activities. 
As a result, a number of CDL holders were required to be re-tested, 
causing States and individuals to incur additional expenses. FMCSA 
implemented this provision to ensure that, in the event examiners are 
involved in fraudulent activities related to skills testing, States or 
individuals would have an opportunity to recoup expenses related to re-
testing.
    FMCSA acknowledges that a number of third-party testers are 
governmental entities performing testing services under inter-agency or 
other agreements. FMCSA believes there is a lower risk associated with 
locating and recouping expenses from governmental entities than from 
private third-party testers. Moreover, FMCSA is aware that many States 
normally do not require their own political subdivisions and agencies, 
either at the State or local level, to obtain bonds. Accordingly, FMCSA 
amends Sec.  383.75(a)(8)(v) to eliminate the bond requirement for 
governmental entities.

Prohibiting States From Using a Photo on the CLP--49 CFR 383.153(b)(1) 
and 384.227

    Section 383.153(b)(1) prohibits States from placing a digital color 
image or photograph or black and white laser engraved photograph or 
other visual representation of the driver on the CLP. FMCSA received 
petitions requesting reconsideration on the grounds that prohibiting 
the inclusion of a digital color image or photograph or black and white 
laser engraved photograph or other visual representation of the driver 
would cause economic harm to the States and/or make the CLP less 
secure.
    FMCSA acknowledges that many, but not all, States have invested in 
technologies to develop secure CLPs that may or may not include a 
digital color image or photograph or black and white laser engraved 
photograph or other visual representation of the driver. Other 
provisions of this rule establish that the CLP is a two-part license 
comprised of the CLP document and the underlying CDL or non-CDL, and 
that the CLP document must be presented with the underlying CDL or non-
CDL to be valid. Moreover, the CLP document will have the same driver's 
license number as the underlying CDL or non-CDL as well as language 
stating the two-part nature of the document, making this relationship 
clear. Accordingly, to accommodate the States' requests for flexibility 
in determining whether to include a photograph of the driver on the 
CLP, FMCSA amends Sec.  383.153(b)(1) to make the reference to a 
digital color image or photograph or black and white laser engraved 
photograph of the driver permissive rather than prohibited. The 
Department of Homeland Security (DHS), however, objected to having a 
State issue two photograph IDs to a single person, stating it would 
violate the one driver/one license/one record principle. In fact, the 
CLP and the underlying license constitute a single document with 
(potentially) two photographs. FMCSA leaves the determination up to the 
State to include a photo on the CLP, for an extra security measure when 
processing a CDL request.
    FMCSA also amends section 384.227 to reflect the permissive 
inclusion of a photograph on the CLP.

Requiring Annual Background Checks for Skills Test Examiners--49 CFR 
384.228(h)

    Section 384.228(h) requires States to conduct annual background 
checks on all test examiners. Some States petitioned for 
reconsideration of this requirement on the grounds that annual checks 
are burdensome.
    On further consideration, FMCSA agrees that an annual background 
check of 2,200 skills test examiners is unnecessarily burdensome. 
Accordingly, FMCSA amends Sec.  384.228(h) to require States to perform 
background checks on test examiners only at the time of hiring.

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

    Section 384.301(f) establishes the date by which all States must 
come into substantial compliance with the provisions of the May 2011 
and today's final rules. FMCSA received petitions for reconsideration 
requesting an extension of the May 2011 final rule, so that the States 
would have sufficient time to implement the requirements established in 
that rule. Although FMCSA believes that a three year implementation 
period is generally sufficient, the Agency recognizes that many States 
have been waiting for today's final rule to implement changes to those 
provisions for which the Agency has granted petitions for 
reconsideration. As a result, and in consideration of the changes made 
in today's final rule, the Agency has extended the compliance date for 
the changes established in the May 2011 and today's final rules by one 
year, to July 8, 2015.

Technical Corrections

    In addition to addressing the issues raised in the petitions for 
reconsideration, FMCSA is also adopting the following technical 
corrections in this final rule:
     In Sec.  383.73(f)(2)(ii), an incorrect cross reference to 
Sec.  383.153(b) is changed to Sec.  383.153(c).
     The preamble to the 2011 final rule made it clear that 
CLPs cannot be ``transferred'' from one State to another State. The 
regulatory language, however, did not adequately reflect that decision. 
The following sections are therefore revised to include a prohibition 
on transfer of CLPs: Sec.  383.73, paragraphs (a)(2)(vi), (b)(6), 
(c)(7), (d)(7), (e)(5) and (m); Sec.  383.153(h); Sec.  384.105, 
definition of ``Issue and Issuance;'' Sec.  384.227, and Sec.  
384.405(b)(1).

IV. Regulatory Analyses

E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies 
and Procedures as Supplemented by E.O. 13563)

    FMCSA has determined this final rule is not a significant 
regulatory action within the meaning of Executive Order

[[Page 17878]]

(E.O.) 12866, as supplemented by E.O. 13563 (76 FR 3821, January 21, 
2011), and is also not significant within the meaning of DOT regulatory 
policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 
11034, February 26, 1979). The estimated cost of the final rule is not 
expected to exceed the $100 million annual threshold for economic 
significance. The Agency expects the final rule to generate cost 
savings in the form of reduced annual paperwork burden hours compared 
to the estimates in the 2011 final rule. The provisions revised in this 
rule are intended to increase fraud reduction, improve safety, and 
facilitate entrance into the commercial motor vehicle (CMV) driver 
occupations. Many of the provisions of this rule impose minimal cost on 
the States or industry members, either because many States are already 
complying with the requirements contained in the May 2011 final rule or 
because the requirements have minimal impact on the SDLA or industry 
operations or procedures.
    FMCSA emphasizes that this rule does not change requirements 
concerning State procedures in CDL processing or impose additional 
burden hours or costs. The Agency amends several sections of the 
current regulations in 49 CFR Sec. Sec.  383.73(a)(2)(vi), (b)(6), 
(c)(7), (d)(7), and (e)(5) to cover all transactions (initial issuance, 
transfer, renewal, or upgrades). Likewise, bonding requirements for 
third party testers as written in 49 CFR Sec.  383.75(a)(8)(v) remain 
intact, the only difference being that a third party tester that is a 
government entity is no longer required to maintain a bond.
    FMCSA recognized the potential loss of revenue from reduced 
enrollment when it prohibited training schools from administering 
skills tests to their own student applicants. This is even more evident 
in smaller training programs in rural areas. These training schools may 
be 100 miles or more from the nearest tester unaffiliated with the 
school, who would be available to test the school's drivers. Amending 
this section will allow CDL training schools to test their students, 
yet prohibit a skills test examiner who is also a skills instructor 
from administering a skills test to an applicant who received skills 
training from that examiner. The Agency does not know the number or 
location of training programs that conduct skills testing and therefore 
cannot produce a reasonable estimate of the total cost associated with 
this exclusion on skills testing.
    The SAFE Port Act mandated that the Agency adopt certain 
regulations implementing the DOT Office of Inspector General's (OIG) 
anti-fraud recommendations. Applying these mandates required the Agency 
to adopt specific measures to prevent fraud in the CDL system. One of 
the measures required by the Agency is that CLP documentation be 
presented simultaneously with the underlying CDL or non-CDL to be 
valid.
    The States will have the discretion to place a digital photograph 
on the CLP (see Sec.  383.153(b)(1) and Sec.  384.227); most SDLAs 
currently keep a digital photograph on file for all drivers they 
license.
    FMCSA amends Sec.  383.73(m) to clarify that FMCSA requires two 
people to be involved in the license issuance process, but does not 
require that two people verify each document. Two SDLA staff members 
can participate independently in the licensing process for a CLP/CDL. 
For example, one person might review the legal presence and other 
documentation the driver presents, while a second SDLA employee would 
view the driving record for violations, take the applicant's photo, and 
issue the license. Also, the two employees are not required to work in 
the same duty location. For a central-issuance State, having one 
employee accept documents at the point of service and another verify 
some or all of them at the central-issuance facility would satisfy the 
requirements of this section. The amendment to Sec.  383.73(m) splits 
driver processing, but it will not double either the time or effort 
needed to issue a CDL. The $2.97 million \1\ per year cost for 
processing time will remain unchanged despite the amendment because the 
extra time burden has been factored into the May 2011 Final Rule.
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    \1\ This amount is calculated by multiplying ($24.45/hr.) of a 
licensing clerk by the (\1/6\ of an hour) of processing time, by the 
number of new CDLs processed annually (530,000). Final Rule 
Regulatory Evaluation: Commercial Driver's License Testing and 
Commercial Learner's Permit Standards. p. 12 March 2011. The 
processing cost includes $26,500 CLP CDLIS record change and 
$779,100 tamper proofing of CLPs.
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    Lastly, FMCSA agreed that annual background checks for skills test 
examiners as described in 49 CFR 384.228(h) were unnecessary. FMCSA 
amends this section to require background checks on test examiners only 
at the time of hiring. This will produce a total cost saving of 
$214,400 \2\ per year, after conducting an initial background check. 
This represents the only quantifiable cost savings of the rule, but 
other provisions will result in unquantifiable benefits.
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    \2\ OMB Control No. 2126-0011 titled, ``Commercial Driver 
Licensing and Test Standards.'' May 1, 2012, pp. 22-23. This amount 
is calculated by multiplying 2,144 skills test examiners x $100/per 
FBI background check = $214,400.
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Regulatory Flexibility Act

    FMCSA is not required to prepare a new Regulatory Flexibility 
Analysis (RFA) because the RFA performed for the May 2011, final rule 
pursuant to 5 U.S.C. 604(a) remains fully applicable to this final 
rule. The 2011 RFA provided estimates of the active motor carrier 
population and the number of entities subject to the rule at that time. 
While these numbers may have changed slightly in the intervening 
months, they do not affect the conclusions of the 2011 RFA in any way.

Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this rule so that they can better evaluate its effects 
on themselves and participate in the rulemaking initiative. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance; please consult the FMCSA point of contact, 
Robert Redmond, listed in the FOR FURTHER INFORMATION CONTACT section 
of this rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy ensuring the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.

Unfunded Mandates Reform Act of 1995

    This final rule does not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et 
seq.), that will result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $141.3 
million (which is the value of $100 million in 2010 after adjusting for 
inflation) or more in any 1 year.

[[Page 17879]]

E.O. 13132 (Federalism)

    FMCSA has analyzed this rule in accordance with the principles and 
criteria of Executive Order 13132, ``Federalism,'' and has determined 
that it does not have federalism implications.
    The Federalism Order applies to ``policies that have federalism 
implications,'' which it defines as regulations and other actions that 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Sec. 1(a). The key concept here is ``substantial direct effects on the 
States.'' Sec. 3(b) of the Federalism Order provides that ``[n]ational 
action limiting the policymaking discretion of the States shall be 
taken only where there is constitutional and statutory authority for 
the action and the national activity is appropriate in light of the 
presence of a problem of national significance.''
    The rule amends the commercial driver's license (CDL) program 
authorized by the Commercial Motor Vehicle Safety Act of 1986 (49 
U.S.C. chapter 313). States have been issuing CDLs in accordance with 
Federal standards for well over a decade. The CDL program does not have 
preemptive effect. It is voluntary; States may withdraw at any time, 
although doing so will result in the loss of certain Federal-aid 
highway funds pursuant to 49 U.S.C. 31314. Because this rule makes only 
a few small incremental changes to the requirements already imposed on 
participating States, FMCSA has determined that it does not have 
substantial direct effects on the States, on the relationship between 
the Federal and State governments, or on the distribution of power and 
responsibilities among the various levels of government.

E.O. 12988 (Civil Justice Reform)

    This final rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies 
issuing ``economically significant'' rules, if the regulation also 
concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. The Agency determined this final rule is not significant 
within the meaning of E.O. 12866 and the estimated cost of the rule is 
not expected to exceed the economic annual threshold. Therefore, no 
analysis of the impacts on children is required. In any event, the 
Agency does not believe that this regulatory action could create an 
environmental or safety risk that could disproportionately affect 
children.

E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this final rule in accordance with Executive Order 
12630, Governmental Actions and Interference with Constitutionally 
Protected Property Rights, and has determined it will not effect a 
taking of private property or otherwise have taking implications.

Privacy Impact Assessment

    FMCSA conducted a privacy impact assessment of this rule as 
required by section 522(a)(5) of the FY 2005 Omnibus Appropriations 
Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004) [set out as a 
note to 5 U.S.C. 552a]. The assessment considers any impacts of the 
rule on the privacy of information in an identifiable form and related 
matters. FMCSA has determined this rule would have no privacy impacts.

E.O. 12372 (Intergovernmental Review)

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

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. This rulemaking 
affects the currently-approved information collection covered by the 
OMB Control No. 2126-0011 titled, ``Commercial Driver Licensing and 
Test Standards.'' The current OMB approved information collection has 
an annual burden of 1,628,582 hours and will expire on August 31, 2014.
    This action updates and provides more uniform procedures for 
ensuring that the applicant has the appropriate knowledge and skills to 
operate a commercial motor vehicle. It also adjusts some of the 
procedures used in the testing and licensing process due to 
recommendations accepted in the petitions for reconsideration of 
rulemaking. FMCSA believes this rule will result in an estimated 
decrease in the annual burden hours compared to the 2011 final rule.
    The following table summarizes the burden hours for current and 
future information collection activities for the first 4 years of 
implementation of the new requirements and for the 5th and subsequent 
years of maintaining the CDL program with the new requirements. Relying 
on past experiences, the Agency believes there will be no increase in 
annual burden hours for the first 4 years because the States have 4 
years to pass legislation and make the necessary system changes before 
implementing the new CDL testing and CLP standards, and posting the 
data generated by these new requirements to the CDLIS driver record. 
The increase of 262,705 total annual burden hours for the 5th and 
subsequent years (1,891,287-1,628,582) is due to the implementation of 
the new requirements for CDL testing and the issuance of CLPs. This 
represents a decrease in the total annual burden estimate for the 5th 
and subsequent years of 120,733 hours (2,012,020-1,891,287) from the 
previously anticipated total (see ``Commercial Driver's License Testing 
and Commercial Learner's Permit Standards,'' 76 FR 26854, May 9, 2011) 
due to program changes in this rule, including the elimination of the 
second person to verify all documents and the elimination of the annual 
background checks for test examiners. A detailed analysis of the annual 
burden hour changes for each information collection activity can be 
found in the Supporting Statement of OMB Control Number 2126-0011.

[[Page 17880]]



                                Current and Future Information Collection Burdens
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                                                                                                   Future annual
                                                                                   Future annual   burden hours
                                                                     Currently     burden hours     for 5th and
 Current and future information collection activities for States     approved       for first 4     subsequent
                         and CDL drivers                           annual burden       years           years
                                                                       hours         (program        (program
                                                                                      change)         change)
----------------------------------------------------------------------------------------------------------------
State recording medical examiner's certificate information......         205,333         205,333         205,333
State recording of the self- certification of commercial motor             3,984           3,984           3,984
 vehicle operation on the CDLIS record..........................
State verification of medical certification status of all                  2,593           2,593           2,593
 interstate CDL drivers.........................................
Driver to notify employer of convictions/disqualifications......         640,000         640,000         640,000
Driver to complete previous employment paperwork................         403,200         403,200         403,200
States to complete compliance certification documents...........           1,632           1,632           1,632
State to complete compliance review documents...................           2,400           2,400           2,400
Data/document checks and CDLIS recordkeeping....................         212,224         212,224         461,632
Drivers to complete the CDL application.........................          48,000          48,000          56,486
CDL tests recordkeeping.........................................          84,000          84,000          77,910
Knowledge and skills test examiner certification................          25,216          25,216           7,578
Skills test examiner monitoring and auditing....................               0               0          28,539
                                                                 -----------------------------------------------
    Total Burden Hours..........................................       1,628,582       1,628,582       1,891,287
----------------------------------------------------------------------------------------------------------------

National Environmental Policy Act and Clean Air Act

    The FMCSA analyzed this rulemaking for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
determined under its environmental procedures Order 5610.1, published 
March 1, 2004 in the Federal Register (69 FR 9680), that this action is 
categorically excluded (CE) from further environmental documentation 
under Paragraph 4.s of the Order. That CE relates to establishing 
regulations, and actions taken pursuant to these regulations, 
concerning requirements for drivers to have a single commercial motor 
vehicle driver's license. In addition, the Agency believes that this 
rule includes no extraordinary circumstances that will have any effect 
on the quality of the environment. Thus, the action does not require an 
environmental assessment or an environmental impact statement.
    The FMCSA also analyzed this rule under the Clean Air Act, as 
amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and 
implementing regulations promulgated by the Environmental Protection 
Agency. Approval of this action is exempt from the CAA's general 
conformity requirement since it involves rulemaking and policy 
development and issuance.

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

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

E.O. 13175 (Indian Tribal Governments)

    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.

National Technology Transfer and Advancement Act (Technical Standards)

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through OMB, with an explanation of why using these standards would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards (e.g., specifications of materials, performance, 
design, or operation; test methods; sampling procedures; and related 
management systems practices) are standards that are developed or 
adopted by voluntary consensus standards bodies. This rule does not use 
technical standards. Therefore, we did not consider the use of 
voluntary consensus standards.

List of Subjects

49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers.

49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers.

    Accordingly, FMCSA amends parts 383 and 384 of title 49 of the Code 
of Federal Regulations as set forth below:

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

0
1. The authority citation for part 383 is revised to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 
214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 
1012(b) of Pub. L. 107-56, 115 Stat. 272, 397; sec. 4140 of Pub. L. 
109-59, 119 Stat. 1144, 1726; and 49 CFR 1.86.


0
2. Amend Sec.  383.73 by revising paragraphs (a)(2)(vi), (b)(6), 
(c)(7), (d)(7), (e)(5), (f)(2)(ii), and (m) to read as follows:


Sec.  383.73  State procedures.

    (a) * * *
    (2) * * *
    (vi) Require compliance with the standards for providing proof of 
citizenship or lawful permanent residency specified in Sec.  
383.71(a)(2)(v) and proof of State of domicile specified in Sec.  
383.71(a)(2)(vi). Exception: A State is required to check the proof of 
citizenship or legal presence specified in this paragraph only for 
initial issuance, renewal or upgrade of a CLP

[[Page 17881]]

or Non-domiciled CLP and for initial issuance, renewal, upgrade or 
transfer of a CDL or Non-domiciled CDL for the first time after July 8, 
2011, provided a notation is made on the driver's record confirming 
that the proof of citizenship or legal presence check required by this 
paragraph has been made and noting the date it was done;
    (b) * * *
    (6) Require compliance with the standards for providing proof of 
citizenship or lawful permanent residency specified in Sec.  
383.71(b)(9) and proof of State of domicile specified in Sec.  
383.71(b)(10). Exception: A State is required to check the proof of 
citizenship or legal presence specified in this paragraph only for 
initial issuance, renewal or upgrade of a CLP or Non-domiciled CLP and 
for initial issuance, renewal, upgrade or transfer of a CDL or Non-
domiciled CDL for the first time after July 8, 2011, provided a 
notation is made on the driver's record confirming that the proof of 
citizenship or legal presence check required by this paragraph has been 
made and noting the date it was done;
* * * * *
    (c) * * *
    (7) Require compliance with the standards for providing proof of 
citizenship or lawful permanent residency specified in Sec.  
383.71(b)(9) and proof of State of domicile specified in Sec.  
383.71(b)(10). Exception: A State is required to check the proof of 
citizenship or legal presence specified in this paragraph only for 
initial issuance, renewal or upgrade of a CLP or Non-domiciled CLP and 
for initial issuance, renewal, upgrade or transfer of a CDL or Non-
domiciled CDL for the first time after July 8, 2011, provided a 
notation is made on the driver's record confirming that the proof of 
citizenship or legal presence check required by this paragraph has been 
made and noting the date it was done;
* * * * *
    (d) * * *
    (7) Require compliance with the standards for providing proof of 
citizenship or lawful permanent residency specified in Sec.  
383.71(b)(9) and proof of State of domicile specified in Sec.  
383.71(b)(10). Exception: A State is required to check the proof of 
citizenship or legal presence specified in this paragraph only for 
initial issuance, renewal or upgrade of a CLP or Non-domiciled CLP and 
for initial issuance, renewal, upgrade or transfer of a CDL or Non-
domiciled CDL for the first time after July 8, 2011, provided a 
notation is made on the driver's record confirming that the proof of 
citizenship or legal presence check required by this paragraph has been 
made and noting the date it was done; and
* * * * *
    (e) * * *
    (5) Require compliance with the standards for providing proof of 
citizenship or lawful permanent residency specified in Sec.  
383.71(b)(9) and proof of State of domicile specified in Sec.  
383.71(b)(10). Exception: A State is required to check the proof of 
citizenship or legal presence specified in this paragraph only for 
initial issuance, renewal or upgrade of a CLP or Non-domiciled CLP and 
for initial issuance, renewal, upgrade, or transfer of a CDL or Non-
domiciled CDL, for the first time after July 8, 2011, provided a 
notation is made on the driver's record confirming that the proof of 
citizenship or legal presence check required by this paragraph has been 
made and noting the date it was done;
* * * * *
    (f) * * *
    (2) * * *
    (ii) The State must add the word ``non-domiciled'' to the face of 
the CLP or CDL, in accordance with Sec.  383.153(c); and
* * * * *
    (m) Document verification. The State must require at least two 
persons within the driver licensing agency to participate substantively 
in the processing and verification of the documents involved in the 
licensing process for initial issuance, renewal or upgrade of a CLP or 
Non-domiciled CLP and for initial issuance, renewal, upgrade or 
transfer of a CDL or Non-domiciled CDL. The documents being processed 
and verified must include, at a minimum, those provided by the 
applicant to prove legal presence and domicile, the information filled 
out on the application form, and knowledge and skills test scores. This 
section does not require two people to process or verify each document 
involved in the licensing process. Exception: For offices with only one 
staff member, at least some of the documents must be processed or 
verified by a supervisor before issuance or, when a supervisor is not 
available, copies must be made of some of the documents involved in the 
licensing process and a supervisor must verify them within one business 
day of issuance of the CLP, Non-domiciled CLP, CDL or Non-domiciled 
CDL.
* * * * *

0
3. Amend Sec.  383.75 by revising paragraphs (a)(7) and (a)(8)(v) to 
read as follows:


Sec.  383.75  Third party testing.

    (a) * * *
    (7) A skills test examiner who is also a skills instructor either 
as a part of a school, training program or otherwise is prohibited from 
administering a skills test to an applicant who received skills 
training by that skills test examiner; and
    (8) * * *
    (v) Require the third party tester to initiate and maintain a bond 
in an amount determined by the State to be sufficient to pay for re-
testing drivers in the event that the third party or one or more of its 
examiners is involved in fraudulent activities related to conducting 
skills testing of applicants for a CDL. Exception: A third party tester 
that is a government entity is not required to maintain a bond.
* * * * *

0
4. Amend Sec.  383.153 by revising paragraphs (b)(1) and (h) to read as 
follows:


Sec.  383.153  Information on the CLP and CDL documents and 
applications.

* * * * *
    (b) Commercial Learner's Permit. (1) A CLP may, but is not required 
to, contain a digital color image or photograph or black and white 
laser engraved photograph.
* * * * *
    (h) On or after July 8, 2014 current CLP and CDL holders who do not 
have the standardized endorsement and restriction codes and applicants 
for a CLP or CDL are to be issued CLPs with the standardized codes upon 
initial issuance, renewal or upgrade and CDLs with the standardized 
codes upon initial issuance, renewal, upgrade or transfer.

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

0
5. The authority citation for part 384 is revised to read as follows:

    Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs. 103 
and 215 of Pub. L. 106-59, 113 Stat. 1753, 1767; and 49 CFR 1.87.

0
6. Amend Sec.  384.105 by revising the definition ``Issue and 
Issuance'' to read as follows:


Sec.  384.105  Definitions

* * * * *
    Issue and issuance means the initial issuance, renewal or upgrade 
of a CLP or Non-domiciled CLP and the initial issuance, renewal, 
upgrade or transfer of a CDL or Non-domiciled CDL, as described in 
Sec.  383.73 of this subchapter.
* * * * *

0
7. Amend Sec.  384.227 to revise paragraph (c) and add paragraph (d) 
read as follows:

[[Page 17882]]

Sec.  384.227  Record of digital image or photograph.

* * * * *
    (c) Check the digital color image or photograph or black and white 
laser engraved photograph on record whenever the CLP applicant or 
holder appears in person to issue, renew or upgrade a CLP and when a 
duplicate CLP is issued.
    (d) If no digital color image or photograph or black and white 
laser engraved photograph exists on record, the State must check the 
photograph or image on the base-license presented with the CLP or CDL 
application.

0
8. Amend Sec.  384.228 by revising paragraph (h) to read as follows:


Sec.  384.228  Examiner training and record checks.

* * * * *
    (h)(1) Complete nationwide criminal background check of all State 
and third party test examiners at the time of hiring.
    (2) Complete nationwide criminal background check of any State and 
third party current test examiner who has not had a nationwide criminal 
background check.
* * * * *

0
9. Amend Sec.  384.301 by revising paragraph (f) to read as follows:


Sec.  384.301  Substantial compliance--general requirements.

* * * * *
    (f) A State must come into substantial compliance with the 
requirements of subpart B of this part in effect as of July 8, 2011 and 
April 24, 2013 as soon as practical but, unless otherwise specifically 
provided in this part, not later than July 8, 2015.
* * * * *

0
10. Amend Sec.  384.405 by revising paragraph (b)(1) to read as 
follows:


Sec.  384.405  Decertification of State CDL program.

* * * * *
    (b) * * *
    (1) The State computer system does not check the Commercial 
Driver's License Information System (CDLIS) and/or national Driver 
Registry problem Driver Pointer System (PDPS) as required by Sec.  
383.73 of this subchapter when issuing, renewing or upgrading a CLP or 
issuing, renewing, upgrading or transferring a CDL.
* * * * *

    Issued under the authority of delegation in 49 CFR 1.73: March 
18, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-06760 Filed 3-22-13; 8:45 am]
BILLING CODE 4910-EX-P