2014-00445. Medical Certification Requirements as Part of the Commercial Driver's License (CDL); Extension of Certificate Retention Requirements

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule.

SUMMARY:

The FMCSA amends its regulations to keep in effect until January 30, 2015, the requirement that interstate drivers subject to: either the commercial driver's license (CDL) or the commercial learner's permit (CLP) regulations: as well as the Federal physical qualification requirements, must retain paper copies of their medical examiner's certificate when operating a commercial motor vehicle. Interstate motor carriers are also required to retain copies of their drivers' medical certificates in their driver qualification files. This action is being taken to ensure that the medical qualification of CDL and CLP holders are documented adequately until all State driver licensing agencies (SDLAs) are able to post the drivers' self-certification whether the physical qualifications standards are applicable to them and the medical examiner's certificate information, on the Commercial Driver's License Information System (CDLIS) driver record. This rule does not, however, extend the compliance dates for the SDLA to collect and to post to the CDLIS driver record the CDL holder's self-certification about applicable standards and the medical examiner's certificate.

DATES:

This rule is effective January 14, 2014.

ADDRESSES:

You may search background documents or comments to the docket for this rule, identified by docket number FMCSA-1997-2210, by visiting the:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for reviewing documents and comments. Regulations.gov is available electronically 24 hours each day, 365 days a year; or
• DOT Docket Management Facility: U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., West Building, Ground Floor, Room 12-140, Washington, DC 20590-0001.

Privacy Act

Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's Privacy Act Statement for the Federal Docket Management System published in the Federal Register on January 17, 2008 (73 FR 3316), or you may visit http://www.gpo.gov/​fdsys/​pkg/​FR-2008-01-17/​pdf/​E8-785.pdf.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, email or call Mr. Robert Redmond, Senior Transportation Specialist, Office of Safety Programs, Commercial Driver's License Division (MC-ESL), Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-001; Telephone [phone]; Email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Legal Basis

The legal basis of the final rule titled Medical Certification Requirements as Part of the Commercial Driver's License, (2008 final rule) (73 FR 73096-73097), is also applicable to this rule.

The legal basis for issuing this final rule without an opportunity for public comment, and without an effective date at least 30 days after publication, are the two “good cause” exceptions under the Administrative Procedure Act (APA), 5 U.S.C. 553(b) and (d)(3). The APA specifically provides exceptions to its notice and comment rulemaking procedures when the Agency finds that there is good cause (and incorporates the finding and a brief statement of reasons therefore in the rules issued) to dispense with them. Generally, good cause exists when the agency determines that notice and comment procedures are impractical, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b). The Agency finds it necessary to take this action without notice and comment because of delays in implementation caused by those SDLAs not yet in compliance with the requirements of the 2008 final rule required by January 30, 2014. It would be impractical to conduct notice and comment procedures in the short time remaining before that date.

Moreover, under similar circumstances in 2011, when notice and an opportunity for public comment was provided, no comments were submitted either for or against the extension issued at that time. Most SDLAs will be in compliance by January 30, 2014, but obviously unless all of the SDLAs issuing CDLs and CLPs are in compliance, it will still be necessary for drivers and their employers to rely on the paper medical examiner's certificate to verify that the driver is physically qualified. Under these circumstances, FMCSA believes that no comments about this additional extension would likely be submitted, and therefore the notice and comment procedure is unnecessary. Delaying this extension beyond January 30, 2014 while comments are received would create uncertainty within the CDL and CLP program and potential inconsistencies in requirements and capabilities among States, however briefly. In this instance, notice and comment is therefore also contrary to the public interest.

The APA also provides for an exception to the required publication of a final rule on not less than 30 days' notice before its effective date. 5 U.S.C. 553(d)(3). The same reasons that justify dispensing with notice and comment procedures also justify making this final rule effective immediately, as well as the need to provide sufficient notice to the SDLAs and the affected carriers and drivers. FMCSA finds that there is good cause for making this final rule effective on the date of publication in the Federal Register.

II. Background

On December 1, 2008, FMCSA published a final rule (73 FR 73096) adopting regulations to implement section 215 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1767, Dec. 9, 1999). Section 215 (set out as a note to 49 U.S.C. 31305) directed the Secretary to initiate a rulemaking to provide for a Federal medical qualification certificate to be made a part of CDLs. The 2008 final rule requires any CDL holder subject to the physical qualification requirements of the Federal Motor Carrier Safety Regulations (FMCSRs) to provide a current original or copy of his or her medical examiner's certificate to the issuing SDLA. The final rule requires the SDLA to post in the CDLIS driver record the self-certification that CDL holders are required to make regarding applicability of the Federal physical qualification requirements and, for drivers subject to those requirements, the medical certification information specified in the regulations. The final rule also implemented other conforming requirements for both SDLAs and employers (73 FR 73096-73128). These requirements, for the most part, had a compliance date of January 30, 2012. On May 21, 2010, the Agency published several technical amendments to the 2008 final rule to make corrections and to address petitions for reconsideration of that final rule (75 FR 28499-28502).

In 2011, several SDLAs advised the Agency that they would not have the capability by January 30, 2012, to receive the required medical certification and medical examiner's certificate information provided by a non-excepted, interstate CDL holder, and then manually post the information to the CDLIS driver record. An SDLA's inability to receive and post the required material would render both the CDL holder and his or her employer unable to demonstrate or verify, respectively, that the driver is medically certified in compliance with the FMCSRs.

On November 15, 2011 (76 FR 70661), FMCSA amended the 2008 final rule to maintain in effect, until January 30, 2014, the requirement for an interstate CDL holder subject to the Federal physical qualification standards to carry a paper copy of his or her medical examiner's certificate while operating a commercial motor vehicle. CDL holders were required to continue carrying on his or her person the medical examiner's certificate specified at 49 CFR 391.43(h), or a copy, as valid proof of medical certification. 49 CFR 391.41(a)(2). Also, an interstate motor carrier that employs CDL holders would continue to maintain a copy of the CDL holder's medical examiner's certificate in its driver qualification files, as specified at 49 CFR 391.51(b)(7)(i), if the motor carrier is unable to obtain that information from the SDLA issuing the CDL due to the SDLA's inability to post the medical certificate data. In this way, the Agency could ensure the medical qualification of CDL holders until all States are able to post drivers' self-certification and medical examiner's certification information on the CDLIS driver record.

In the 2011 final rule, FMCSA did not change the compliance dates it established in the 2008 final rule for SDLAs. SDLAs were still expected to meet the January 30, 2012, date specified in 49 CFR 383.73 to start collecting information from CDL applicants and to post and retain this data on the CDLIS driver record. In addition, SDLAs were expected to collect and post the same data from all existing CDL holders by the January 30, 2014, compliance date. The Agency believed, at that time, that extending the requirement that both interstate CDL holders and motor carriers retain the copy of the medical examiner's certificate for 2 years, however, would provide sufficient overlap with the requirement that all SDLAs obtain the medical status and medical examiner's certificate information and post it on the driver's CDLIS driver record.

As a result of the commercial learner's permit (CLP) final rule, CLP holders became subject to the same requirement as CDL holders that a medical examiner's certificate be provided to the SDLAs so that this information will be available on the CDLIS record for CLP holders. Commercial Driver's License Testing and Commercial Learner's Permit Standards, 76 FR 26854 (May 9, 2011). The application of these requirements to CLP holders will become effective on July 8, 2015. Id., 78 FR 17875 (March 25, 2013) and General Technical, Organizational, and Conforming Amendments to the Federal Motor Carrier Safety Regulations, 78 FR 58470 (Sept. 24, 2013).

III. Discussion of Final Rule

As the extended date of January 30, 2014 draws nearer, FMCSA has reluctantly concluded that there will still be a few SDLAs that will not be able to receive the required medical certification and medical examiner's certificate information provided by a non-excepted, interstate CDL holder, and then post it to the CDLIS driver record. Under these circumstances, the Agency cannot be certain that all CDL holders and their employers will be able to demonstrate or verify, respectively, that the driver is medically certified in compliance with the FMCSRs by reliance on the CDLIS driver records instead of the paper medical examiner's certificate. For this reason, FMCSA has decided to again extend for another year, until January 30, 2015, the date after which sole reliance on such driver records will be required for another year. The necessary amendments to 49 CFR 391.23(m), 391.41(a) and 391.51(b)(7) to accomplish this extension are set out below.

As indicated above, CLP applicants and holders will be subject to the same requirements to provide a medical examiner's certificate to the SDLAs beginning on July 8, 2015. See 49 CFR 383.71(a)(2) and (h). By the same date, SDLAs will be required to post that information on the CDLIS driver record. 49 CFR 383.73(o) and 384.225(a)(2). Therefore, conforming amendments to both 49 CFR 391.23, 391.41 and 391.51 are also incorporated below.

IV. Regulatory Analyses

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

The FMCSA has determined that this final rule is not a significant regulatory action within the meaning of Executive Order (E.O.) 12866, as supplemented by E.O. 13563, 76 FR 3821 (Jan. 21, 2011), or within the meaning of the DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, Feb. 26, 1979). Therefore, the rule was not submitted to the Office of Management and Budget (OMB) for a formal review. The changes made in this final rule will have minimal costs and a full regulatory evaluation is unnecessary.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), FMCSA has evaluated the effects of this rule on small entities. The rule extends, until January 30, 2015, the existing requirement for interstate CDL holders subject to Federal physical qualifications requirements and their employers to retain a copy of a medical examiner's certificate. Because extending the current requirement will not materially impact small entities, FMCSA certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $151 million (which is the value of $100 million after adjusting for inflation) or more in any 1 year. The FMCSA has determined that the impact of this final rule will not reach this threshold.

Executive Order 13132 (Federalism)

The FMCSA analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. Although the 2008 final rule had Federalism implications, FMCSA determined that it did not create a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Today's final rule does not change that determination in any way.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

The FMCSA analyzed this rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. The Agency determined that this final rule does not concern an environmental risk to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

This final rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights.

Privacy Impact Assessment

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment of a regulation that will affect the privacy of individuals. This rule does not require the collection of personally identifiable information.

Executive Order 12372 (Intergovernmental Review)

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

Paperwork Reduction Act

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

National Environmental Policy Act and Clean Air Act

The FMCSA analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined under our environmental procedures Order 5610.1, published March 1, 2004, (69 FR 9680) that this final rule does not have any significant impact on the environment. In addition, the actions in this rule are categorically excluded from further analysis and documentation as per paragraph 6.b of Appendix 2 of FMCSA's Order 5610.1. The FMCSA also analyzed this final 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. This final rule is exempt from the CAA's general conformity requirement since the action results in no increase in emissions.

Executive Order 13211 (Energy Effects)

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

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 in 49 CFR Part 391

• Motor carriers
• Reporting and recordkeeping requirements
• Safety

In consideration of the foregoing, FMCSA amends title 49 CFR part 391 as follows:

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

1. The authority citation for part 391 continues to read as follows:

Authority: 49 U.S.C. 504, 508, 31133, 31136, and 31502; sec. 4007(b) of Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114 of Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113 Stat. 1748, 1767; sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

2. Amend § 391.23 by revising paragraphs (m)(2) introductory text and (m)(2)(i) introductory text and adding paragraph (m)(3) to read as follows:

§ 391.23

Investigation and inquiries.

* * * * *

(m) * * *

(2) Exception. For drivers required to have a commercial driver's license under part 383 of this chapter:

(i) Beginning January 30, 2015, using the CDLIS motor vehicle record obtained from the current licensing State, the motor carrier must verify and document in the driver qualification file the following information before allowing the driver to operate a CMV:

* * * * *

(ii) Until January 30, 2015, if a driver operating in non-excepted, interstate commerce has no medical certification status information on the CDLIS MVR obtained from the current State driver licensing agency, the employing motor carrier may accept a medical examiner's certificate issued to that driver, and place a copy of it in the driver qualification file before allowing the driver to operate a CMV in interstate commerce.

(3) Exception. For drivers required to have a commercial learner's permit under part 383 of this chapter:

(i) Beginning July 8, 2015, using the CDLIS motor vehicle record obtained from the current licensing State, the motor carrier must verify and document in the driver qualification file the following information before allowing the driver to operate a CMV:

(A) The type of operation the driver self-certified that he or she will perform in accordance with § 383.71(a)(1)(ii) and (g) of this chapter.

(B) That the driver was certified by a medical examiner listed on the National Registry of Certified Medical Examiners as of the date of medical examiner's certificate issuance.

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

(ii) Until July 8, 2015, if a driver operating in non-excepted, interstate commerce has no medical certification status information on the CDLIS MVR obtained from the current State driver licensing agency, the employing motor carrier may accept a medical examiner's certificate issued to that driver, and place a copy of it in the driver qualification file before allowing the driver to operate a CMV in interstate commerce.

3. In § 391.41, revise paragraph (a)(2) to read as follows:

§ 391.41

Physical qualifications for drivers.

(a) * * *

(2) CDL/CLP exception. (i) Beginning January 30, 2015, a driver required to have a commercial driver's license under part 383 of this chapter, and who submitted a current medical examiner's certificate to the State in accordance with § 383.71(h) of this chapter documenting that he or she meets the physical qualification requirements of this part, no longer needs to carry on his or her person the medical examiner's certificate specified at § 391.43(h), or a copy for more than 15 days after the date it was issued as valid proof of medical certification.

(ii) Beginning July 8, 2015, a driver required to have a commercial learner's permit under part 383 of this chapter, and who submitted a current medical examiner's certificate to the State in accordance with § 383.71(h) of this chapter documenting that he or she meets the physical qualification requirements of this part, no longer needs to carry on his or her person the medical examiner's certificate specified at § 391.43(h), or a copy for more than 15 days after the date it was issued as valid proof of medical certification.

(iii) A CDL or CLP holder required by § 383.71(h) of this chapter to obtain a medical examiner's certificate, who obtained such by virtue of having obtained a medical variance from FMCSA, must continue to have in his or her possession the original or copy of that medical variance documentation at all times when on-duty.

* * * * *

4. In § 391.51, revise paragraph (b)(7)(ii) to read as follows:

§ 391.51

General requirements for driver qualification files.

* * * * *

(b) * * *

(7) * * *

(ii) Exception. For CDL holders, beginning January 30, 2012, if the CDLIS motor vehicle record contains medical certification status information, the motor carrier employer must meet this requirement by obtaining the CDLIS motor vehicle record defined at § 384.105 of this chapter. That record must be obtained from the current licensing State and placed in the driver qualification file. After January 30, 2015, a non-excepted, interstate CDL or CLP holder without medical certification status information on the CDLIS motor vehicle record is designated “not-certified” to operate a CMV in interstate commerce. After January 30, 2015, a motor carrier may use a copy of the driver's current medical examiner's certificate that was submitted to the State for up to 15 days from the date it was issued as proof of medical certification.

* * * * *

Issued under the authority delegated in 49 CFR 1.87 on: January 8, 2014.

Anne S. Ferro,

Administrator.