Medical Certification Requirements as Part of the Commercial Driver's License (CDL); Technical, Organizational, and Conforming Amendments

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule; Technical amendments and response to petitions for reconsideration.

SUMMARY:

The FMCSA amends its regulations implementing section 215 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA). The purpose of this rule is both to make amendments responding to petitions for reconsideration and to make technical corrections to a FMCSA regulation.

DATES:

The amendments in this final rule become effective May 21, 2010.

ADDRESSES:

Public Access to the Docket: You may view, print, and download this final rule and all related documents and background material on-line at http://www.regulations.gov,, using the Docket ID Number FMCSA-1997-2210. These documents can also be examined and copied for a fee at the U.S. Department of Transportation, Docket Operations, West Building-Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on today's final rule, please contact: Ms. Ava Herman, Office of Policy, Plans, and Regulations (MC-PRR), Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone (202) 366-7023.

SUPPLEMENTARY INFORMATION:

Legal Basis

Medical Certification Requirements as Part of the CDL

The legal basis of the 2008 final rule is also applicable to this rule. See 73 FR 73096-73097, December 1, 2008.

Background

The FMCSA determined that several technical errors were made in the December 1, 2008, Medical Certification Requirements final rule (73 FR 73096). The FMCSA also received two petitions for reconsideration of the final rule that are discussed further in today's final rule.

1. The December 1, 2008, final rule had an unintentional error in § 383.71(a)(ii), omitting the language “(C), or (D)” after “(A) or (B)”. Today's final rule corrects this amendatory language error.

2. The December 1, 2008, final rule unintentionally replaced § 383.71(a) with the new text of § 383.71(a)(1); the Agency's intent was only to amend the language of § 383.71(a)(1). However, because of an amendatory language error, § 383.71(a)(2) through § 383.71(a)(9) were removed. The preambles of the NPRM and the final rule made no mention of an intent to change these sections, and revised § 383.71(a)(1), as adopted by the 2008 final rule, itself refers to the requirements of § 383.71(a)(2) through (9). Today's final rule therefore restores the text of § 383.71(a)(2) through (9).

3. The December 1, 2008, final rule included a new requirement in 49 CFR 383.71(h) for CDL holders to submit documents and information to State driver licensing agencies. The penalties listed in 49 CFR 383.73(g) for falsifying information and documents submitted in accordance with the requirements of § 383.71(h) are applicable. However, the provisions of § 383.73(g) needed to be clarified to reflect the application to the requirements in § 383.71(h). The provisions of § 383.73(g) have been clarified in response to the petition for reconsideration of December 30, 2008, from Advocates for Highways and Auto Safety (Advocates), as explained on pages 3 and 4 of the decision denying the petition dated May 12, 2010 and included in the docket.

4. In the December 1, 2008, final rule, § 383.73(j)(1)(iii) references business days for the specified time period, rather than calendar days. The preamble of the December 1, 2008, final rule also incorrectly references business days instead of calendar days, even though the other provisions of § 383.73(j)(2) and § 383.73(j)(3) correctly specify 10 calendar days. The language of § 383.73(j)(1)(iii) has been clarified in today's final rule. This is explained in footnote three on page seven of the decision denying the petition for reconsideration of December 30, 2008 from Advocates dated May 12, 2010 and included in the docket.

5. The December 1, 2008, final rule included an inconsistency in the language inserted into 49 CFR 383.73 (j). This language used the term “medical examiner's license or certificate number” to refer to the number on a medical examiner's license to practice in § 383.73(j)(iii)(D). However, in 49 CFR 383.73(j)(iii), (j)(iii)(C), and (j)(iii)(J), “medical examiner's certificate” is used to refer to the certificate a driver is issued when a medical examiner qualifies him or her to drive. This inconsistency has been clarified in today's final rule so that “medical examiner's certificate” clearly refers to the document a medical examiner issues a driver to qualify him or her to drive. In today's final rule 49 CFR 383.73(j)(iii)(D) is clarified to refer to the “medical examiner's license” to practice, issued to the medical examiner by the State in which he or she practices.

6. The FMCSA incorporates a change in several provisions of the final rule, as requested by a petition for reconsideration from the Indiana Department of Revenue, Motor Carrier Services Division, filed on December 29, 2008. The petition asked that FMCSA reconsider requirement for States to mail receipts to drivers as proof that a medical certification had been submitted to the State driver licensing agency. The FMCSA sent a response granting this petition on October 2, 2009. Through today's final rule, FMCSA removes the requirement for States to provide receipts to drivers, and to allow drivers and employers to utilize medical certificates as evidence that a CDL holder is medically certified for 15 calendar days from the date of issuance of the certificate. Therefore, several changes in the final rule text are necessary to implement this procedure. The changes are in 49 CFR 383.73(a)(5), 391.23(m)(2)(i)(B), 391.41(a)(2), and 391.51(b)(7)(ii).

7. The preamble to the December 1, 2008, final rule clearly states that the medical variance restriction code “V” must appear on both the CDL and the CDLIS driver record. Accordingly, FMCSA revised 49 CFR 383.95(b) to require this information to be placed on the CDLIS driver record, but inadvertently omitted a revision to 49 CFR 383.153 to require this information to be displayed on the commercial driver's license document. This rule adds the conforming amendment to § 383.153(e).

Agency's Assessment and Decision

The Agency decided to issue these amendments because the changes and updates are necessary to correct amendatory language errors and to respond to issues raised in two petitions for reconsideration.

Rulemaking Analyses and Notices

Administrative Procedure Act

If an agency determines that the prior notice and opportunity for public comment on a rule normally required by the Administrative Procedure Act are impracticable, unnecessary, or contrary to the public interest (the so-called “good cause” finding), it may publish the rule without providing such notice and opportunity for comment. (See 5 U.S.C. 553(b).) The amendments made by this final rule make changes to correct inadvertent errors and to respond to petitions for reconsideration. For these reasons, FMCSA finds good cause that notice and public comment are unnecessary. Further, the Agency finds good cause under 5 U.S.C. 553(d)(3) to make the amendments effective upon publication.

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

The FMCSA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or within the meaning of the Department of Transportation regulatory policies and procedures. The Office of Management and Budget (OMB) did not review this document. We expect the final rule will have minimal costs; therefore, 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 makes several changes to correct inadvertent errors. FMCSA therefore certifies that this action will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This rulemaking 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 $120 million or more in any 1 year.

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 action under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. We determined that this rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

This rulemaking 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.

Executive Order 13132 (Federalism)

The FMCSA analyzed this 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. This rulemaking 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 action.

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. We have determined that no new information collection requirements are associated with the technical amendments to 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 action does not have any significant impact on the environment. In addition, the actions in this final 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 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 the action results in no increase in emissions.

Executive Order 13211 (Energy Effects)

The FMCSA analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We 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

49 CFR Part 383

• Administrative practice and procedure
• Highway safety
• Motor carriers

49 CFR Part 391

• Motor carriers
• Reporting and recordkeeping requirements
• Safety

In consideration of the foregoing, FMCSA amends Parts 383 and 391 of Title 49, Code of Federal Regulations, as follows:

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

1. The authority citation for part 383 continues 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. 1766, 1767; sec. 1012(b) of Pub. L. 107-56; 115 Stat. 397; sec. 4140 of Pub. L. 109-59, 119 Stat. 1144, 1726; and 49 CFR 1.73.

2. In § 383.71, revise paragraph (a) to read as follows:

3. Revise § 383.73(a)(5), (g), (j)(1)(iii) introductory text, and (j)(1)(iii)(D) to read as follows:

4. Amend § 383.153 by adding paragraph (e) to read as follows:

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

5. 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.

6. Amend § 391.23:

By removing “or” at the end of paragraph (m)(2)(i)(A) and adding “and” in its place; and

By revising paragraph (m)(2)(i)(B) to read as follows:

7. Revise § 391.41(a)(2) to read as follows:

8. Revise § 391.51(b)(7)(ii) to read as follows: