[Federal Register Volume 76, Number 220 (Tuesday, November 15, 2011)]
[Rules and Regulations]
[Pages 70661-70663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29481]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 391

[Docket No. FMCSA-1997-2210]
RIN 2126-AB39


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.

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SUMMARY: The FMCSA amends its regulations to keep in effect until 
January 30, 2014, the requirement that interstate drivers subject to 
the commercial driver's license (CDL) regulations and the Federal 
physical qualification requirements must retain paper copies of their 
medical examiner's certificate. 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 
the medical qualification of CDL holders until all States are able to 
post the medical self-certification and medical examiner's certificate 
data on the Commercial Driver's License Information System (CDLIS) 
driver record. This rule does not, however, extend the compliance dates 
for States to collect and to post to the CDLIS driver record data from 
a CDL holder's medical self-certification and medical examiner's 
certificate.

DATES: This rule is effective December 15, 2011.

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 (M-30): 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 is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
Privacy Act System of Records Notice for the DOT Federal Docket 
Management System published in the Federal Register on January 17, 
2008, (73 FR 3316) or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: 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; 
telephone (202) 366-5014.

SUPPLEMENTARY INFORMATION:

Legal Basis

Medical Certification Requirements as Part of the CDL

    The legal basis of the final rule titled ``Medical Certification 
Requirements as Part of the Commercial Driver's License,'' published on 
December 1, 2008, (2008 final rule) (73 FR 73096-73097), is also 
applicable to this rule.

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 directed initiation of a rule to 
provide for a Federal medical qualification certificate to be made a 
part of commercial driver's licenses. 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 State Driver Licensing Agency (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

[[Page 70662]]

rule also implemented other conforming requirements for both SDLAs and 
employers (73 FR 73096-73128). These requirements, for the most part, 
have a compliance date of January 30, 2012. On May 21, 2010, the Agency 
published several technical amendments to the 2008 final rule to make 
certain corrections and to address certain petitions for 
reconsideration of that final rule (75 FR 28499-28502).
    Several SDLAs have recently advised the Agency that they may 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 it 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.

The Notice of Proposed Rulemaking

    On June 14, 2011, FMCSA published a notice (76 FR 34635) proposing 
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. Until January 30, 2014, a CDL holder would continue to 
carry on his or her person the medical examiner's certificate specified 
at Sec.  391.43(h), or a copy, as valid proof of medical certification. 
Also, an interstate motor carrier that employs CDL holders would 
continue to obtain and file a copy of the CDL holder's medical 
examiner's certificate in its driver qualification files, as specified 
at Sec.  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 the medical self-certification and medical examiner's 
certificate data on the CDLIS driver record.
    The FMCSA did not propose to change the compliance dates it 
established in the 2008 final rule for SDLAs. SDLAs are still expected 
to meet the January 30, 2012, date specified in 49 CFR 383.73 to start 
collecting information from CDL applicants and posting and retaining 
this data on the CDLIS driver record. In addition, SDLAs are expected 
to collect and post the same data from all existing CDL holders by the 
January 30, 2014, compliance date. The Agency believes 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, will 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.

Response to Comments

    Two State agencies, the Michigan Department of State and the 
Missouri Department of Transportation (MoDOT), submitted comments to 
the June 14, 2011, proposal. Both agencies support the proposal to 
extend certain compliance dates for interstate CDL drivers and the 
motor carriers that employ them. But the Michigan Department of State 
urged the Agency to also extend, until January 2014, the compliance 
dates established for States in the 2008 final rule.
    The MoDOT noted that the Agency was silent regarding whether the 
deferred implementation date also applies to intrastate drivers and the 
intrastate employers. According to this commenter,

    This omission creates uncertainty and ambiguity regarding the 
intended scope and meaning of these requirements. When the States 
attempt to enforce these safety regulations against intrastate 
drivers and motor carriers, this kind of uncertainty and ambiguity 
may be susceptible to exploitation by alleged offenders or their 
defense attorneys, and could potentially frustrate or even to [sic] 
thwart the State's ability to prosecute apparent violations of these 
requirements by intrastate drivers and motor carriers.

    FMCSA Response: The FMCSA acknowledges Michigan's concerns. 
However, the Agency believes it is necessary for the States to continue 
working towards the January 2012 deadline. This is especially the case 
given that Michigan provided no justification in its comment for this 
request. As provided in 49 CFR 384.301(d), Michigan, like all the other 
States issuing CDLs, will have had 3 years (from the effective date of 
the final rule on January 30, 2009) to comply, and most States will be 
in compliance. If Michigan or any other State is unable to achieve 
substantial compliance with the requirements of 49 CFR 384.225, as 
adopted in December 2008, then the compliance review standards and 
procedures of 49 CFR part 384, subparts C and D will be implemented. 
The FMCSA will continue to work with the States by providing technical 
assistance, as resources permit, in achieving compliance.
    Regarding MoDOT's request for FMCSA to make the provisions of this 
final rule applicable to intrastate CDL drivers and intrastate-only 
motor carriers, applicable statutes provide no authority for FMCSA to 
do so. As explained in the preamble to the final rule, FMCSA's 
authority to require CDL drivers to be physically-qualified and to 
obtain a medical certificate is limited to drivers in interstate 
commerce (49 U.S.C. 31305(a)(7)). Therefore, the requirement in the 
2008 final rule that CDL drivers submit their medical certificates to 
SDLAs only applies to drivers engaged in interstate transportation who 
are not excepted from the requirement to be physically qualified (73 FR 
73097, 49 CFR 383.71 and 383.73). Because the 2008 final rule does not 
apply to intrastate-only CDL drivers in the first place, FMCSA cannot 
take any action regarding the need for such drivers to carry paper 
copies of any medical certificates and for their employers to obtain 
copies for their driver qualification files.

The Final Rule

    The Agency adopts the proposed rule as final without any changes.

Rulemaking Analyses and Notices

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 Department of Transportation regulatory policies and 
procedures. Therefore, the Agency was not required to submit this rule 
to the Office of Management and Budget (OMB). 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, 2014, 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, I certify that this final rule 
will not have a significant economic impact on a substantial number of 
small entities.

[[Page 70663]]

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 $143.1 million (which is 
the value in 2010 of $100 million after adjusting for inflation) or 
more in any 1 year. The FMCSA has determined that the impact of this 
rulemaking will not reach this threshold.

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 affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference With Constitutionally Protected 
Property Rights.

Executive Order 13132 (Federalism)

    The FMCSA analyzed this 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 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

    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.

List of Subjects in 49 CFR Part 391

    Motor carriers, Reporting and recordkeeping requirements, Safety.

    In consideration of the foregoing, FMCSA amends title 49, Code of 
Federal Regulations, Chapter III as follows:

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

0
1. The authority citation for part 391 continues to read as follows:

    Authority: 49 U.S.C. 322, 504, 508, 31133, 31136, and 31502; 
sec. 4007(b) of Pub. L. 102-240, 105 Stat. 2152; sec. 114 of Pub. L. 
103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159, 113 
Stat. 1767; and 49 CFR 1.73.


0
2. Amend Sec.  391.23 by revising paragraphs (m)(2) introductory text, 
(m)(2)(i) introductory text, and (m)(2)(ii) to read as follows:


Sec.  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, 2014, 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, 2014, 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.

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


Sec.  391.41  Physical qualifications for drivers.

    (a) * * *
    (2) * * *
    (i) Beginning January 30, 2014, a driver required to have a 
commercial driver's license under part 383 of this chapter, and who 
submitted a current medical examiner's certificate to the State in 
accordance with Sec.  383.71(h) of this chapter documenting that he or 
she meets the physical qualification requirements of this part, no 
longer needs to carry on his or her person the medical examiner's 
certificate specified at Sec.  391.43(h), or a copy for more than 15 
days after the date it was issued as valid proof of medical 
certification.
* * * * *

    Issued on: October 28, 2011.
Anne S. Ferro,
 Administrator.
[FR Doc. 2011-29481 Filed 11-14-11; 8:45 am]
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