Extension of Compliance Dates for Medical Examiner's Certification Integration |
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Meera Joshi
Federal Motor Carrier Safety Administration
22 June 2021
[Federal Register Volume 86, Number 117 (Tuesday, June 22, 2021)]
[Rules and Regulations]
[Pages 32643-32651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13177]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383, 384, and 391
[Docket No. FMCSA-2018-0152]
RIN 2126-AC18
Extension of Compliance Dates for Medical Examiner's
Certification Integration
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: FMCSA amends its regulations to extend the compliance date
from June 22, 2021, to June 23, 2025, for several provisions of its
April 23, 2015, Medical Examiner's Certification Integration final
rule. FMCSA issued an interim final rule (IFR) on June 21, 2018,
extending the compliance date for these provisions until June 22, 2021.
FMCSA published a supplemental notice of proposed rulemaking (SNPRM) on
April 22, 2021, that proposed further extending the compliance date to
June 23, 2025. This final rule will provide FMCSA time to complete
certain information technology (IT) system development tasks for its
National Registry of Certified Medical Examiners (National Registry)
and to provide the State Driver's Licensing Agencies (SDLAs) sufficient
time to make the necessary IT programming changes when the new National
Registry system is completed and available.
DATES: This final rule is effective June 22, 2021.
FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division, Federal Motor Carrier Safety Administration,
1200 New Jersey Avenue SE, Washington, DC 20590-0001, (202) 366-4001,
fmcsamedical@dot.gov. If you have questions on viewing or submitting
material to the docket, contact Dockets Operations, (202) 366-9826.
SUPPLEMENTARY INFORMATION:
FMCSA organizes this final rule as follows:
I. Availability of Rulemaking Documents
II. Executive Summary
III. Legal Basis
A. Authority Over Drivers Affected; Drivers Required To Obtain a
Medical Examiner's Certificate (MEC)
B. Authority To Regulate State CDL Programs
C. Authority To Require Reporting by MEs
IV. Background
V. Discussion of Proposed Rulemaking and Comments
A. Background and Proposed Rulemaking
B. Comments and Responses
V. Good Cause Exists
VII. International Impacts
VIII. Changes From the SNPRM
IX. Section-By-Section Analysis
X. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
B. Congressional Review Act
C. Regulatory Flexibility Act (Small Entities)
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act (Collection of Information)
G. E.O. 13132 (Federalism)
H. Privacy
I. E.O. 13175 (Indian Tribal Governments)
J. National Environmental Policy Act of 1969
I. Availability of Rulemaking Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2018-0152/document and
choose the document to review. To view comments, click this final rule,
and click ``Browse Comments.'' If you do not have access to the
internet, you may view the docket online by visiting Dockets Operations
in Room W12-140,
[[Page 32644]]
1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
II. Executive Summary
FMCSA adjusts the compliance date from June 22, 2021, to June 23,
2025, for several provisions in the Medical Examiner's Certification
Integration final rule (80 FR 22790, Apr. 23, 2015). Specifically, the
Agency postpones to June 23, 2025, the provisions for: (1) FMCSA to
electronically transmit, from the National Registry to the SDLAs,
driver identification information, examination results, and restriction
information from examinations performed for holders of commercial
learner's permits (CLPs) or commercial driver's licenses (CDLs)
(interstate and intrastate); (2) FMCSA to electronically transmit to
the SDLAs medical variance information for all commercial motor vehicle
(CMV) drivers; (3) SDLAs to post on the Commercial Driver's License
Information System (CDLIS) driver record the driver identification,
examination results, and restriction information received
electronically from FMCSA; and (4) motor carriers to no longer be
required to verify that CLP/CDL drivers were certified by a certified
medical examiner (ME) listed on the National Registry.
The compliance date for these provisions was postponed previously
from June 22, 2018, to June 22, 2021, by an interim final rule (83 FR
28774). This final rule specifies that FMCSA now amends again the
regulations adopted in the 2015 final rule and amended in the IFR to
include a compliance date, generally, of June 23, 2025.
III. Legal Basis for the Rulemaking
The legal basis of the 2015 final rule, set out at 80 FR 22791-
22792, serves as the legal basis for this rule. Brief summaries of the
relevant legal bases for the actions taken in this rulemaking are set
out below.
A. Authority Over Drivers Affected; Drivers Required To Obtain a
Medical Examiner's Certificate (MEC)
FMCSA is required by statute to establish standards for the
physical qualifications of drivers who operate CMVs in interstate
commerce for non-excepted industries (49 U.S.C. 31136(a)(3) and
31502(b)). Subject to certain limited exceptions,\1\ FMCSA has
fulfilled the statutory mandate by establishing physical qualification
standards for all drivers covered by these provisions (49 CFR
391.11(b)(4)). Such drivers must obtain, from an ME, a certification
indicating that the driver is physically qualified to drive a CMV (49
CFR 391.41(a), 391.43(g) and (h)). FMCSA is also required to ensure
that the operation of a CMV does not have a deleterious effect on the
physical condition of drivers (49 U.S.C. 31136(a)(4)).
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\1\ See 49 CFR 390.3(f) and 391.2.
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Drivers Required To Obtain a CDL
The authority for FMCSA to require an operator of a CMV to obtain a
CDL is based on 49 U.S.C. 31302, and the authority to set minimum
standards for the testing and fitness of such operators rests on 49
U.S.C. 31305.
B. Authority To Regulate State CDL Programs
Under 49 U.S.C. 31311 and 31314, FMCSA has authority to prescribe
procedures and requirements the States must follow when issuing CDLs
(see, generally, 49 CFR parts 383 and 384). In particular, under
section 31314, in order to avoid loss of certain Federal-aid highway
funds otherwise apportioned under 23 U.S.C. 104(b), each State must
comply with the requirement in 49 U.S.C. 31311(a)(1) to adopt and carry
out a program for testing and ensuring the fitness of individuals to
operate CMVs consistent with the minimum standards prescribed by FMCSA
under 49 U.S.C. 31305(a) (see also 49 CFR 384.201).
C. Authority To Require Reporting by MEs
FMCSA has authority under 49 U.S.C. 31133(a)(8) and 31149(c)(1)(E)
to require MEs on the National Registry to obtain information from CMV
drivers regarding their physical health, to record and retain the
results of the physical examinations of CMV drivers, and to require
frequent reporting of the information contained on the MECs they issue.
Section 31133(a)(8) gives the Agency broad administrative powers
(specifically ``to prescribe recordkeeping and reporting
requirements'') to assist in ensuring motor carrier safety and driver
health (Sen. Report No. 98-424 at 9 (May 2, 1984)). Section
31149(c)(1)(E) authorizes a requirement for electronic reporting of
certain specific information by MEs, including applicant names and
numerical identifiers as determined by the FMCSA Administrator. Section
31149(c)(1)(E) sets minimum monthly reporting requirements for MEs and
does not preclude the exercise by the Agency of its broad authority
under section 31133(a)(8) to require more frequent and more inclusive
reports.\2\ In addition to the general rulemaking authority in 49
U.S.C. 31136(a), the Secretary of Transportation is specifically
authorized by section 31149(e) to ``issue such regulations as may be
necessary to carry out this section.''
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\2\ The provisions of section 31149(c)(1)(E) have been amended
by section 32302(c)(1)(A) of Moving Ahead for Progress in the 21st
Century, Public Law 112-141, 126 Stat. 405 (July 6, 2012).
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Authority to implement these various statutory provisions has been
delegated to the Administrator of FMCSA (49 CFR 1.87(f)).
IV. Background
This final rule follows an SNPRM published on April 22, 2021 (86 FR
21259). The SNPRM relied upon the history of the regulations that FMCSA
adopted in 2015 and the developments leading to the 2018 interim final
rule (83 FR at 28776). The Agency also stated that it might further
amend the provisions amended by the interim final rule (83 FR at
28777). Since issuing the 2015 final rule, there have been ongoing
challenges associated with launching a new National Registry system.
Among those challenges was an unsuccessful attempt by an intruder to
compromise the National Registry in December 2017. Although no personal
information was exposed, FMCSA took the National Registry system
offline until mid-2018 to ensure it was secure. This action and other
related actions affected the schedule for implementing the provisions
of the 2015 final rule, resulting in the postponement of the compliance
date by the 2018 IFR.
Since the 2018 IFR's publication, additional setbacks in FMCSA's
efforts to launch a National Registry replacement system require an
additional delay. The Agency attempted to launch the first stage of a
replacement system in May 2019 but the system's performance
capabilities fell short of those needed to implement the 2015 final
rule. After a detailed analysis of the functional requirements, the
Agency issued a request for proposals to obtain the services of a new
contractor and selected a vendor in December 2020 to develop a
replacement system by early 2022. The work includes delivery of
technical specifications to the SDLAs for use in implementing changes
to their respective systems.
FMCSA anticipates that the SDLAs will need up to 3 years following
the completion and release of the new National Registry system and its
technical specifications to develop and implement those changes. This
was the
[[Page 32645]]
same amount of time allowed for this activity in the 2015 final rule
and the 2018 IFR.
V. Discussion of Proposed Rulemaking and Comments
A. Background and Proposed Rulemaking
The SNPRM proposed delaying the compliance date through June 22,
2025, specifically proposing that:
Certified MEs continue issuing MECs to qualified CLP/CDL
applicants/holders;
CLP/CDL applicants/holders continue to provide the SDLA a
copy of their MEC;
Motor carriers continue verifying that drivers were
certified by an ME listed on the National Registry; and
SDLAs continue processing paper copies of MECs they
receive from CLP/CDL applicants/holders.
In the previous 2018 IFR, FMCSA did not delay the requirement for
MEs performing physical examinations of CMV drivers to report results
of all CMV drivers' physical examinations to FMCSA by midnight (local
time) of the next calendar day following the examination. MEs'
submission of reports by midnight of the next calendar day also allows
FMCSA to begin electronically transmitting this important safety data
to each State when that State is ready to receive the information,
thereby providing States additional flexibility to implement the
provisions of this rulemaking at their own pace. In the SNPRM, FMCSA
stated that it believed some States may be prepared to receive this
data ahead of the June 23, 2025, date to take advantage of the
efficiencies and added security the new process affords.
When FMCSA is ready to begin electronically transmitting MEC
information from the National Registry, and an SDLA is ready to begin
receiving this information electronically from the National Registry,
FMCSA will work with the SDLA involved on the most appropriate means to
use such electronic transmissions. In the SNPRM, FMCSA stated that,
under such circumstances, electronic transmission of the MEC
information may be an acceptable means for CDL and CLP holders to
satisfy the requirement of providing the MEC to the SDLA. In order to
avoid any uncertainty, provisions were previously added to the
appropriate regulations stating that, in case of a conflict between the
medical certification information provided electronically by FMCSA and
information on a paper version of the MEC, the electronic record will
be controlling. The provisions in the regulations governing the
handling of these matters under the current procedures will remain in
effect through June 22, 2025, to ensure continued compliance by SDLAs
and other affected stakeholders until the electronic transmission of
MEC information is operational for all SDLAs.
In the SNPRM, FMCSA stated that if any SDLAs begin receiving MEC
information from FMCSA prior to June 23, 2025, FMCSA and the SDLAs will
make every effort to advise all stakeholders when such transmission
begins. MEs listed on the National Registry, employers, and enforcement
personnel (both State and Federal) will need to be made fully aware
that some SDLAs may be following procedures different from the
remaining States.
In 49 CFR parts 383, 384, and 391, FMCSA proposed changing the
compliance dates of the rules as shown in the table below.
Table 1--Date Changes
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Section to be changed (in Current compliance New compliance
Title 49 CFR): dates: dates:
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383.71 (h)(1)(i)............ June 22, 2021....... June 23, 2025.
383.71 (h)(1)(ii)........... June 22, 2021....... June 23, 2025.
383.71(h)(3)(i)............. June 22, 2021....... June 23, 2025.
383.71(h)(3)(ii)............ June 22, 2021....... June 23, 2025.
383.73 (a)(2)(vii)(A)....... June 22, 2021....... June 23, 2025.
383.73 (a)(2)(vii)(B)....... June 22, 2021....... June 23, 2025.
383.73(b)(5)(i)............. June 22, 2021....... June 23, 2025.
383.73(b)(5)(ii)............ June 22, 2021....... June 23, 2025.
383.73(o)(1)(i)............. June 22, 2021....... June 23, 2025.
383.73(o)(1)(ii)............ June 22, 2021....... June 23, 2025.
383.73(o)(2)(i)............. June 22, 2021....... June 23, 2025.
383.73(o)(2)(ii)............ June 22, 2021....... June 23, 2025.
383.73(o)(3)(i)............. June 22, 2021....... June 23, 2025.
383.73(o)(3)(ii)............ June 22, 2021....... June 23, 2025.
383.73(o)(4)(i)(A)(1)....... June 22, 2021....... June 23, 2025.
383.73(o)(4)(i)(A)(2)....... June 22, 2021....... June 23, 2025.
383.73(o)(4)(ii)(A)......... June 22, 2021....... June 23, 2025.
383.73(o)(4)(ii)(B)......... June 22, 2021....... June 23, 2025.
384.301(i).................. June 22, 2021....... June 23, 2025.
391.23(m)(2)(i)(B)(1)....... June 21, 2021....... June 22, 2025.
391.23(m)(2)(i)(C).......... June 21, 2021....... June 22, 2025.
391.23(m)(3)(i)(B)(1)....... June 21, 2021....... June 22, 2025.
391.23(m)(3)(i)(C).......... June 21, 2021....... June 22, 2025.
391.41(a)(2)(i)(A).......... June 21, 2021....... June 22, 2025.
391.41(a)(2)(i)(B).......... June 22, 2021....... June 23, 2025.
391.41(a)(2)(ii)............ June 21, 2021....... June 22, 2025.
391.43(g)(2)(i)............. June 22, 2021....... June 23, 2025.
391.43(g)(2)(ii)............ June 22, 2021....... June 23, 2025.
391.43(g)(3)................ June 22, 2021....... June 23, 2025.
391.45(g)................... June 22, 2021....... June 23, 2025.
391.51(b)(7)(ii)............ June 21, 2021....... June 22, 2025.
391.51(b)(9)(ii)............ June 21, 2021....... June 22, 2025.
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B. Comments and Responses
FMCSA provided a period of 30 days ending May 24, 2021, for public
comment regarding its intentions to finalize the compliance dates for
the regulations listed above. FMCSA specifically sought input on
whether the 3-year period for SDLA implementation is appropriate, or
could even be reduced. In the SNPRM, the Agency stated its intention to
publish the necessary final rule with the extended compliance dates as
soon as feasible.
FMCSA received six comments on the SNPRM from the following
parties: One anonymous individual; Mr. Dave Gray (who self-identified
as the Past President of North American Transportation Services
Association); the American Association of Motor Vehicle Administrators
(AAMVA); the American Trucking Associations (ATA); the National
Transportation Safety Board (NTSB); and the Owner-Operator Independent
Drivers Association (OOIDA).
Timeline. Most of the commenters discussed the timeline for
implementation in their comments to the SNPRM. ATA accepted that there
would be a delay, stating it was inevitable.
NTSB acknowledged that some delay was necessary, but said that the
Agency should focus resources to implement the full system by ``at the
latest . . . June 22, 2023.''
AAMVA supported the modified timeline and stated they would need
more time to implement, listing activities and contracting concerns
that would require at least 12 months ``from contract start.'' AAMVA
also said that ``the time needed to make changes to the CDLIS record
and history record messages should be considered.''
Response. FMCSA continues to believe that the delay is needed. It
will provide the Agency time to complete the development of the
National Registry replacement IT system, work with AAMVA and the SDLAs
on the development of the interface to enable the electronic exchange
of drivers' medical certificate information, and to establish that
everything functions correctly. FMCSA is fully committed to dedicating
resources to completing implementation of all remaining elements of the
2015 final rule as quickly as possible.
FMCSA will continue to drive the effort, in consultation with
AAMVA, to develop a system that is suitable to process the electronic
transfer of certification results to the SDLAs, while focusing on the
deadline. FMCSA will work with SDLAs that want to use the information
exchange prior to the 2025 date. The Agency will likely utilize
consultations with the CDLIS Working Group to identify the SDLAs that
have such an interest.
Mr. Gray recommends in his comment that FMCSA establish an
``interim step'' to implement the transmission of medical certification
information to the SDLAs. As explained above in the response to the
comments from AAMVA, FMCSA will work with any SDLAs that want to
implement the information exchange prior to the 2025 compliance date,
if it is feasible to do so.
Communication. Several commenters, including ATA and OOIDA, asked
for better communication and information from the Agency regarding
future policy changes. ATA specifically requested that FMCSA notify
SDLAs that they may implement the changes ahead of the deadline. AAMVA
listed activities that it had concerns or questions about, and
requested confirmation that the work their organization has done with
FMCSA will be utilized.
Response. FMCSA will continue to provide guidance and updates
available to SDLAs via bi-monthly CDL roundtable meetings. FMCSA also
plans to increase communication upon the issuance of this rule by
providing regular updates on the National Registry website regarding
the rebuild of the National Registry and implementation of any interim
electronic transmission of examination results to the SDLAs.
Additionally, FMCSA plans to coordinate and work closely with AAMVA and
its members to allay their concerns.
FMCSA assures AAMVA and its members that the past work will be the
basis for the ongoing effort and that communication will be open. FMCSA
plans to utilize the specifications previously developed, with input
from AAMVA, to the fullest extent possible in the National Registry
rebuild effort.
FMCSA agrees with ATA's comment and will ensure that SDLAs are
aware that they may begin compliance voluntarily before the deadline
with support of the Agency.
Safety. NTSB stated that the delay was negatively impacting safety,
based on the fact that crashes they have investigated have been linked
to medical issues.
Response. FMCSA assures NTSB that safety remains the Agency's
primary focus. FMCSA emphasizes that this delay is primarily to allow
the implementation with the SDLAs in the electronic transmission
processes that will be available with the development and
implementation of the robust National Registry system. The medical
standards under 49 CFR part 391 for drivers are still required, and the
Medical Examiners continue to examine and qualify or disqualify
drivers, as appropriate. Though the full implementation of the rule
will automate some data entry by the SDLAs that is currently manual,
and will therefore minimize resources and make the process smoother,
the system will still require the same medical qualifications for all
commercial drivers. Prevention of fraud is an underlying purpose of the
National Registry system, as modified by the 2015 final rule, which
will be fully implemented as soon as possible.
The anonymous commenter suggested that ``A driver who does not pass
a DOT physical . . . should have all remaining time on his/her current
medical card be made invalid.'' The issue raised by this comment was
covered in the final rule adopted in 2015. The regulations in 49 CFR
391.41(g)(3) and 391.45(g) state that, if a driver is found not to be
physically qualified upon examination by an ME, that determination is
reported to FMCSA and any existing and unexpired certificates held by
the driver are no longer valid. Such a determination, for CDL and CLP
license holders, would then have to be electronically transmitted to
the appropriate SDLA by FMCSA for action to indicate on the driver
record that the driver is not certified and begin the license downgrade
process under 49 CFR part 383. Because the IT infrastructure was, and
is still, unavailable, these two provisions were among the many whose
implementation was postponed from 2018 to 2021. These provisions are
again postponed by this final rule.
Clarifications. AAMVA requested that FMCSA confirm that CDLIS/
AAMVAnet should be used for transmission. AAMVA also ``request[ed]
confirmation that no additional medical information'' needs to be
posted to CDLIS.
Response. FMCSA confirms that it did not intend to introduce new
substantive proposals in the SNPRM, as this proposal was intended only
to delay the compliance date, and not to modify the April 23, 2015
Medical Examiner's Certification Integration final rule. FMCSA will
work with AAMVA to make the delay as seamless as possible for SDLAs.
FMCSA does note that AAMVA indicates in its comments that it is
changing or replacing some of the systems that it previously
contemplated using to perform the information exchange with FMCSA.
These actions may inhibit FMCSA's ability to utilize
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processes previously developed for such exchange through AAMVANet.
VI. Good Cause Considerations
Under the Administrative Procedure Act, upon a finding of good
cause, the Agency may provide for a final rule to become effective less
than 30 days after publication in the Federal Register (5 U.S.C.
553(d)(3)). The necessary IT infrastructure to enable stakeholders to
comply with the regulatory provisions involved will not be available on
June 21, 2021. Under these circumstances, and in order to clarify the
applicable regulatory requirements in a timely manner, FMCSA finds that
there is good cause to issue this final rule with an immediate
effective date. The time for comments ended on May 24, 2021. There
remains insufficient time to prepare and publish this final rule to
permit an effective date 30 days after publication. Therefore, the
Agency makes this final rule effective immediately upon publication in
the Federal Register.
VII. International Impacts
Motor carriers and drivers are subject to the laws and regulations
of the countries in which they operate, unless an international
agreement states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations.
VIII. Changes From the SNPRM
FMCSA moves forward with a final rule as proposed in the SNPRM,
with no modifications.
IX. Section-By-Section Analysis
This section-by-section analysis describes the proposed changes in
numerical order.
Parts 383, 384, and 391
In parts 383, 384, and 391, FMCSA modifies the compliance dates as
stated in Table 1. FMCSA does not make any other changes in this final
rule.
X. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
FMCSA has considered the impact of this final rule under E.O. 12866
(58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563
(76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory
Review, and DOT's regulatory policies and procedures. The Office of
Information and Regulatory Affairs (OIRA) determined that this final
rule is not a significant regulatory action under section 3(f) of E.O.
12866, as supplemented by E.O. 13563, and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. Accordingly, OMB has not reviewed it under these Orders.
The Medical Examiner's Certification Integration Final Rule,
published April 23, 2015 (80 FR 22790), amended the FMCSRs to establish
a streamlined process for SDLAs to receive CMV driver physical
examination results from the MEs, via the National Registry. The 2015
final rule estimated that the National Registry would be able to
receive and transmit this information on a daily basis by June 22,
2018, and established compliance dates for MEs, motor carriers, FMCSA,
and the States accordingly. This final rule delays until June 23, 2025,
the compliance date requiring (1) FMCSA to electronically transmit from
the National Registry to the SDLAs driver identification information,
examination results, and restriction information from examinations
performed for holders of CLPs/CDLs (interstate and intrastate); (2)
FMCSA to electronically transmit to the SDLAs medical variance
information for all CMV drivers; (3) SDLAs to post driver
identification, examination results, and restriction information
received electronically from FMCSA; and (4) that motor carriers no
longer would need to verify that their drivers holding CLPs or CDLs
were certified by an ME listed on the National Registry. This action is
being taken to ensure that SDLAs have sufficient time to make the
necessary IT programming changes. Although this rule would impact the
responsibilities of MEs, CMV drivers, motor carriers, SDLAs, and FMCSA,
it is not expected to generate any economic costs or benefits.
The 2015 final rule accounted for costs associated with system
development and implementation, and benefits associated with
streamlined processes and reduced paperwork. These costs and benefits
(anticipated under the 2018 IFR to be realized on the compliance date
of June 22, 2021) would not be realized on that date. Therefore, the
baseline against which to evaluate the impacts of this final rule is
that the necessary systems will not be ready on June 22, 2021, and will
instead be ready on June 23, 2025. This rule aligns the compliance date
with the date when the systems will be ready and thus, when the costs
and benefits estimated in the 2015 final rule can be realized.
B. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801-808), OIRA
designated this rule as not a ``major rule.'' \3\
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\3\ A ``major rule'' means any rule that the Office of
Management and Budget finds has resulted in or is likely to result
in (a) an annual effect on the economy of $100 million or more; (b)
a major increase in costs or prices for consumers, individual
industries, geographic regions, Federal, State, or local government
agencies; or (c) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability
of United States-based enterprises to compete with foreign-based
enterprises in domestic and export markets (49 CFR 389.3).
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C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA),\4\ requires Federal agencies to consider the effects of
the regulatory action on small business and other small entities and to
minimize any significant economic impact. The term ``small entities''
comprises small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000 (5
U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the
impact of all regulations on small entities, and mandates that agencies
strive to lessen any adverse effects on these businesses.
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\4\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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FMCSA considers all of the 76,396 MEs who are certified and listed
on the National Registry to be small entities.\5\ While this may be a
substantial number of small entities, this rule does not impose any new
requirements on MEs. MEs are already required, under the 2015 final
rule, to report results of all CMV drivers' physical examinations
(including the results of examinations where the driver was found not
to be qualified) to FMCSA by midnight (local time) of the next calendar
day following the examination. In addition, this rule does not result
in additional costs or benefits, nor does it inhibit the realization of
the cost savings identified in the 2015 final rule. The unanticipated
National Registry outage and subsequent IT development issues have led
to delays in the development of the process for the electronic
transmission of MEC information and medical variances, and the final
specifications have not yet been published and released to the SDLAs.
This rule aligns
[[Page 32648]]
the compliance date with the date when the systems will be ready and
thus, when the costs and benefits estimated in the 2015 final rule can
be realized. As such, this rule will not result in a significant
economic impact on the MEs.
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\5\ 76,396 certified MEs were listed on the National Registry as
of April 27, 2021.
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CMV drivers are not considered small entities because they do not
meet the definition of a small entity in Section 601 of the RFA.
Specifically, CMV drivers are considered neither a small business under
the RFA (5 U.S.C. 601(3)), nor are they considered a small organization
under the RFA (5 U.S.C. 601(4){time} .
All motor carriers will likely be impacted by this rule; however,
the rule would impose no new obligations. FMCSA does not know how many
of these motor carriers are considered ``small.'' The U.S. Small
Business Administration (SBA) defines the size standards used to
classify entities as small. SBA establishes separate standards for each
industry, as defined by the North American Industry Classification
System (NAICS).\6\ This rule may affect many different industry
sectors; for example, the transportation sector (e.g., general freight
trucking industry group (4841) and the specialized freight trucking
industry group (4842)), the agricultural sector (11), and the
construction sector (23). Industry groups within these sectors have
size standards based on the number of employees, or on the amount of
annual revenue. Regardless of how many small entities are in this
population, this rule is not expected to generate any economic costs or
benefits. Therefore, FMCSA estimates that, while this rule as proposed
may affect a substantial number of small entities, it will not have a
significant impact on those entities.
---------------------------------------------------------------------------
\6\ Executive Office of the President, Office of Management and
Budget (OMB). ``North American Industry Classification System.''
2017. Available at: https://www.census.gov/eos/www/naics/2017NAICS/2017_NAICS_Manual.pdf (accessed March 20, 2018).
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This rule directly affects the States through their SDLAs. Under
the standards of the RFA, as amended by the SBREFA, the States are not
small entities. States are not considered small entities because they
do not meet the definition of a small entity in the RFA. Specifically,
States are not considered small governmental jurisdictions under the
RFA 5 U.S.C. 601(5), both because State government is not included
among the various levels of government listed in Section 601(5), and
because, even if this were the case, no State, including the District
of Columbia, has a population of less than 50,000, which is the
criterion for a governmental jurisdiction to be considered small under
the RFA.
Consequently, I hereby certify that this action will not have a
significant economic impact on a substantial number of small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996,\7\ FMCSA wants to assist small
entities in understanding this final rule so they can better evaluate
its effects on themselves and participate in the rulemaking initiative.
If the rule will affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance; please consult the person listed
under FOR FURTHER INFORMATION CONTACT.
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\7\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
---------------------------------------------------------------------------
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 regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.
E. 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. The Act addresses actions that may result in the
expenditure by a State, local, or Tribal government, in the aggregate,
or by the private sector of $168 million (which is the value equivalent
of $100 million in 1995, adjusted for inflation to 2019 levels) or more
in any 1 year. Though this final rule would not result in such an
expenditure, the Agency does discuss the effects of this rule elsewhere
in this preamble.
F. Paperwork Reduction Act
This rule contains no new information collection requirements under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
G. E.O. 13132 (Federalism)
A rule has implications for federalism under section 1(a) of E.O.
13132 if it has ``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.''
FMCSA has determined that this rule will not have substantial
direct costs on or for States, nor would it limit the policymaking
discretion of States. Nothing in this document preempts any State law
or regulation. Therefore, this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Impact
Statement.
H. Privacy
The Consolidated Appropriations Act, 2005,\8\ requires the Agency
to assess the privacy impact of a regulation that will affect the
privacy of individuals. This final rule would not require the
collection of personally identifiable information (PII).
---------------------------------------------------------------------------
\8\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency that receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002,\9\ requires Federal agencies to
conduct a PIA for new or substantially changed technology that
collects, maintains, or disseminates information in an identifiable
form.
---------------------------------------------------------------------------
\9\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 17,
2002).
---------------------------------------------------------------------------
No new or substantially changed technology would collect, maintain,
or disseminate information as a result of this rule. Accordingly, FMCSA
has not conducted a PIA.
I. 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.
[[Page 32649]]
J. National Environmental Policy Act of 1969
FMCSA analyzed this final rule for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1 (69 FR 9680), Appendix 2,
paragraph (s)(7) and paragraph (t)(2). The Categorical Exclusion (CE)
in paragraph (s)(7) covers requirements for State-issued commercial
license documentation and paragraph (t)(2) addresses regulations that
ensure States have the appropriate information systems and procedures
concerning CDL qualifications. The content in this final rule is
covered by these CEs and the final action does not have any effect on
the quality of the environment.
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
49 CFR Part 391
Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety,
Transportation.
In consideration of the foregoing, FMCSA amends 49 CFR subtitle B,
chapter III, parts 383, 384, and 391 to read as follows:
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES
0
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. 1748, 1766, 1767;
sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of
Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141,
126 Stat. 405, 830; secs. 5401 and 7208 of Pub. L. 114-94, 129 Stat.
1312, 1546, 1593; and 49 CFR 1.87.
0
2. Amend Sec. 383.71 by revising paragraphs (h)(1) and (3) to read as
follows:
Sec. 383.71 Driver application and certification procedures.
* * * * *
(h) * * *
(1) New CLP and CDL applicants. (i) Before June 23, 2025, a new CLP
or CDL applicant who certifies that he/she will operate CMVs in non-
excepted, interstate commerce must provide the State with an original
or copy (as required by the State) of a medical examiner's certificate
prepared by a medical examiner, as defined in 49 CFR 390.5, and the
State will post a medical qualification status of ``certified'' on the
CDLIS driver record for the driver;
(ii) On or after June 23, 2025, a new CLP or CDL applicant who
certifies that he/she will operate CMVs in non-excepted, interstate
commerce must be medically examined and certified in accordance with 49
CFR 391.43 as medically qualified to operate a CMV by a medical
examiner, as defined in 49 CFR 390.5. Upon receiving an electronic copy
of the medical examiner's certificate from FMCSA, the State will post a
medical qualifications status of ``certified'' on the CDLIS driver
record for the driver;
* * * * *
(3) Maintaining the medical certification status of ``certified.''
(i) Before June 23, 2025, in order to maintain a medical certification
status of ``certified,'' a CLP or CDL holder who certifies that he/she
will operate CMVs in non-excepted, interstate commerce must provide the
State with an original or copy (as required by the State) of each
subsequently issued medical examiner's certificate;
(ii) On or after June 23, 2025, in order to maintain a medical
certification status of ``certified,'' a CLP or CDL holder who
certifies that he/she will operate CMVs in non-excepted, interstate
commerce must continue to be medically examined and certified in
accordance with 49 CFR 391.43 as physically qualified to operate a
commercial motor vehicle by a medical examiner, as defined in 49 CFR
390.5. FMCSA will provide the State with an electronic copy of the
medical examiner's certificate information for all subsequent medical
examinations in which the driver has been deemed qualified.
0
3. Amend Sec. 383.73 by revising paragraphs (a)(2)(vii), (b)(5),
(o)(1)(i) introductory text, (o)(1)(ii) introductory text, (o)(2),
(o)(3), (o)(4)(i)(A), and (o)(4)(ii) to read as follows:
Sec. 383.73 State procedures.
(a) * * *
(2) * * *
(vii)(A) Before June 23, 2025, for drivers who certified their type
of driving according to Sec. 383.71(b)(1)(i) (non-excepted interstate)
and, if the CLP applicant submits a current medical examiner's
certificate, date-stamp the medical examiner's certificate, and post
all required information from the medical examiner's certificate to the
CDLIS driver record in accordance with paragraph (o) of this section.
(B) On or after June 23, 2025, for drivers who certified their type
of driving according to Sec. 383.71(b)(1)(i) (non-excepted interstate)
and, if FMCSA provides current medical examiner's certificate
information electronically, post all required information matching the
medical examiner's certificate to the CDLIS driver record in accordance
with paragraph (o) of this section.
(b) * * *
(5)(i) Before June 23, 2025, for drivers who certified their type
of driving according to Sec. 383.71(b)(1)(i) (non-excepted interstate)
and, if the CDL holder submits a current medical examiner's
certificate, date-stamp the medical examiner's certificate and post all
required information from the medical examiner's certificate to the
CDLIS driver record in accordance with paragraph (o) of this section.
(ii) On or after June 23, 2025, for drivers who certified their
type of driving according to Sec. 383.71(b)(1)(i) (non-excepted
interstate) and, if FMCSA provides current medical examiner's
certificate information electronically, post all required information
matching the medical examiner's certificate to the CDLIS driver record
in accordance with paragraph (o) of this section.
* * * * *
(o) * * *
(1)(i) Status of CLP or CDL holder. Before June 23, 2025, for each
operator of a commercial motor vehicle required to have a CLP or CDL,
the current licensing State must:
* * * * *
(ii) Status of CLP or CDL holder. On or after June 23, 2025, for
each operator of a commercial motor vehicle required to have a CLP or
CDL, the current licensing State must:
* * * * *
(2) Status update. (i) Before June 23, 2025, the State must, within
10 calendar days of the driver's medical examiner's certificate or
medical variance expiring, the medical variance being rescinded or the
medical examiner's certificate being voided by FMCSA, update the
medical certification status of that driver as ``not certified.''
(ii) On or after June 23, 2025, the State must, within 10 calendar
days of the driver's medical examiner's certificate or medical variance
expiring, the medical examiner's certificate becoming invalid, the
medical variance being
[[Page 32650]]
rescinded, or the medical examiner's certificate being voided by FMCSA,
update the medical certification status of that driver as ``not
certified.''
(3) Variance update. (i) Before June 23, 2025, within 10 calendar
days of receiving information from FMCSA regarding issuance or renewal
of a medical variance for a driver, the State must update the CDLIS
driver record to include the medical variance information provided by
FMCSA.
(ii) On or after June 23, 2025, within 1 business day of
electronically receiving medical variance information from FMCSA
regarding the issuance or renewal of a medical variance for a driver,
the State must update the CDLIS driver record to include the medical
variance information provided by FMCSA.
(4) * * *
(i) * * *
(A)(1) Before June 23, 2025, notify the CLP or CDL holder of his/
her CLP or CDL ``not-certified'' medical certification status and that
the CMV privileges will be removed from the CLP or CDL unless the
driver submits a current medical examiner's certificate and/or medical
variance, or changes his/her self-certification to driving only in
excepted or intrastate commerce (if permitted by the State);
(2) On or after June 23, 2025, notify the CLP or CDL holder of his/
her CLP or CDL ``not-certified'' medical certification status and that
the CMV privileges will be removed from the CLP or CDL unless the
driver has been medically examined and certified in accordance with 49
CFR 391.43 as physically qualified to operate a commercial motor
vehicle by a medical examiner, as defined in 49 CFR 390.5, or the
driver changes his/her self-certification to driving only in excepted
or intrastate commerce (if permitted by the State).
* * * * *
(ii)(A) Before June 23, 2025, if a driver fails to provide the
State with the certification contained in Sec. 383.71(b)(1), or a
current medical examiner's certificate if the driver self-certifies
according to Sec. 383.71(b)(1)(i) that he/she is operating in non-
excepted interstate commerce as required by Sec. 383.71(h), the State
must mark that CDLIS driver record as ``not-certified'' and initiate a
CLP or CDL downgrade following State procedures in accordance with
paragraph (o)(4)(i)(B) of this section.
(B) On or after June 23, 2025, if a driver fails to provide the
State with the certification contained in Sec. 383.71(b)(1), or, if
the driver self-certifies according to Sec. 383.71(b)(1)(i) that he/
she is operating in non-excepted interstate commerce as required by
Sec. 383.71(h) and the information required by paragraph (o)(2)(ii) of
this section is not received and posted, the State must mark that CDLIS
driver record as ``not-certified'' and initiate a CLP or CDL downgrade
following State procedures in accordance with paragraph (o)(4)(i)(B) of
this section.
* * * * *
PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM
0
4. The authority citation for part 384 continues 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; sec. 32934 of
Pub. L. 112-141, 126 Stat. 405, 830; secs. 5401 and 7208 of Pub. L.
114-94, 129 Stat. 1312, 1546, 1593 and 49 CFR 1.87.
0
5. Amend Sec. 384.301 by revising paragraph (i) to read as follows:
Sec. 384.301 Substantial compliance-general requirements.
* * * * *
(i) A State must come into substantial compliance with the
requirements of subpart B of this part and part 383 of this chapter in
effect as of June 22, 2015, as soon as practical, but, unless otherwise
specifically provided in this part, not later than June 23, 2025.
* * * * *
PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTORS
0
6. The authority citation for part 391 continues to read as follows:
Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, and 31502;
sec. 4007(b), Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114, Pub.
L. 103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113
Stat. 1748, 1767; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830;
secs. 5403 and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1560;
sec. 2, Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.
0
7. Amend Sec. 391.23 by revising paragraphs (m)(2)(i)(B)(1),
(m)(2)(i)(C), (m)(3)(i)(B)(1) and (m)(3)(i)(C), to read as follows:
Sec. 391.23 Investigation and inquiries.
* * * * *
(m) * * *
(2) * * *
(i) * * *
(B)(1) Beginning on May 21, 2014, and through June 22, 2025, 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. Beginning on January 30, 2015, and through June 22,
2025, 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(b)(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.
* * * * *
(3) * * *
(i) * * *
(B)(1) Through June 22, 2025, 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) Through June 22, 2025, 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)(2)(vii) 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.
* * * * *
0
8. Amend Sec. 391.41 by revising paragraphs (a)(2)(i) and (ii), to
read as follows:
Sec. 391.41 Physical qualifications for drivers.
(a) * * *
(2) * * *
(i)(A) Beginning on January 30, 2015 and through June 22, 2025, 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 49 CFR 383.71(h)
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.
(B) On or after June 23, 2025, a driver required to have a
commercial driver's license or a commercial learner's permit under 49
CFR part 383, and who has a current medical examiner's certificate
documenting that he or she meets the physical qualification
requirements of
[[Page 32651]]
this part, no longer needs to carry on his or her person the medical
examiner's certificate specified at Sec. 391.43(h).
(ii) Beginning on July 8, 2015, and through June 22, 2025, 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.
* * * * *
0
9. Amend Sec. 391.43 by revising paragraphs (g)(2) and (3) to read as
follows:
Sec. 391.43 Medical examination; certificate of physical
examination.
* * * * *
(g) * * *
(2)(i) Before June 23, 2025, if the medical examiner finds that the
person examined is physically qualified to operate a commercial motor
vehicle in accordance with Sec. 391.41(b), he or she must complete a
certificate in the form prescribed in paragraph (h) of this section and
furnish the original to the person who was examined. The examiner must
provide a copy to a prospective or current employing motor carrier who
requests it.
(ii) On or after June 23, 2025, if the medical examiner identifies
that the person examined will not be operating a commercial motor
vehicle that requires a commercial driver's license or a commercial
learner's permit and finds that the driver is physically qualified to
operate a commercial motor vehicle in accordance with Sec. 391.41(b),
he or she must complete a certificate in the form prescribed in
paragraph (h) of this section and furnish the original to the person
who was examined. The examiner must provide a copy to a prospective or
current employing motor carrier who requests it.
(3) On or after June 23, 2025, if the medical examiner finds that
the person examined is not physically qualified to operate a commercial
motor vehicle in accordance with Sec. 391.41(b), he or she must inform
the person examined that he or she is not physically qualified, and
that this information will be reported to FMCSA. All medical examiner's
certificates previously issued to the person are not valid and no
longer satisfy the requirements of Sec. 391.41(a).
* * * * *
0
10. Amend Sec. 391.45 by revising paragraph (g) to read as follows:
Sec. 391.45 Persons who must be medically examined and certified.
* * * * *
(g) On or after June 23, 2025, any person found by a medical
examiner not to be physically qualified to operate a commercial motor
vehicle under the provisions of paragraph (g)(3) of Sec. 391.43.
0
11. Amend Sec. 391.51 by revising paragraphs (b)(7)(ii) and (b)(9)(ii)
to read as follows:
Sec. 391.51 General requirements for driver qualification files.
* * * * *
(b) * * *
(7) * * *
(ii) 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 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, and through June 22, 2025, 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.
* * * * *
(9) * * *
(ii) Through June 22, 2025, for drivers required to have a CDL, a
note relating to verification of medical examiner listing on the
National Registry of Certified Medical Examiners required by Sec.
391.23(m)(2).
* * * * *
Issued under authority delegated in 49 CFR 1.87.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-13177 Filed 6-21-21; 8:45 am]
BILLING CODE 4910-EX-P