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

Anne S. Ferro
Federal Motor Carrier Safety Administration
January 14, 2014

[Federal Register Volume 79, Number 9 (Tuesday, January 14, 2014)]
[Rules and Regulations]
[Pages 2377-2380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00445]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 391

[Docket No. FMCSA-1997-2210]
RIN 2126-AB71


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, 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 (202) 366-5014; Email 
Robert.Redmond@dot.gov.

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

[[Page 2378]]

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.

[[Page 2379]]

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

0
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.

0
2. Amend Sec.  391.23 by revising paragraphs (m)(2) introductory text 
and (m)(2)(i) introductory text and adding paragraph (m)(3) 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, 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

[[Page 2380]]

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 Sec.  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 Sec.  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.

0
3. In Sec.  391.41, revise paragraph (a)(2) to read as follows:


Sec.  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 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.
    (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 
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.
    (iii) A CDL or CLP holder required by Sec.  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.
* * * * *

0
4. In Sec.  391.51, revise paragraph (b)(7)(ii) to read as follows:


Sec.  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 Sec.  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.
[FR Doc. 2014-00445 Filed 1-13-14; 8:45 am]
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