# Commercial Driver's License Testing and Commercial Learner's Permit Standards > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-10510 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 9, 2011 - **Citation:** 76 FR 26854 ## Text DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 383, 384, and 385 [Docket No. FMCSA-2007-27659] RIN 2126-AB02 Commercial Driver's License Testing and Commercial Learner's Permit Standards AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Final rule. SUMMARY: FMCSA amends the commercial driver's license (CDL) knowledge and skills testing standards and establishes new minimum Federal standards for States to issue the commercial learner's permit (CLP). The rule requires that a CLP holder meet virtually the same requirements as those for a CDL holder, meaning that a driver holding a CLP will be subject to the same driver disqualification penalties that apply to a CDL holder. This final rule also implements section 4019 of the Transportation Equity Act for the 21st Century (TEA-21), section 4122 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), and section 703 of the Security and Accountability For Every Port Act of 2006 (SAFE Port Act). It will enhance safety by ensuring that only qualified drivers are allowed to operate commercial motor vehicles on our nation's highways. DATES: Effective date: This final rule is effective on July 8, 2011. Compliance Date: States must be in compliance with the requirements in subpart B of Part 384 (49 CFR part 384) by July 8, 2014. Petitions for Reconsideration of any amendment made by this final rule must be received on or before June 8, 2011. Any petition for reconsideration submitted after this date will not be considered. ADDRESSES: Petitions for reconsideration should refer to Docket ID Number FMCSA-2007-27659 or RIN 2126-AB02, and be submitted to the Administrator, Federal Motor Carrier Safety Administration, by any of the following methods: • Mail to: Administrator, Federal Motor Carrier Safety Administration (MC-A), West Building-6th Floor, Room W60-308, 1200 New Jersey Avenue, SE., Washington, DC 20590. • Hand-Deliver: Docket Operations Unit, U.S. Department of Transportation, 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. • Federal eRulemaking portal at http://www.regulations.gov. All petitions for reconsideration will be posted on the Federal eRulemaking portal in Docket “FMCSA-2007-27659”. This final rule and all background documents and material related to this rule may be viewed and copied at http://www.regulations.gov, by typing “FMCSA-2007-27659”. The docket may also be viewed 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: Robert Redmond, Office of Safety Programs, Commercial Driver's License Division, telephone (202) 366-5014 or e-mail robert.redmond@dot.gov. Office hours are from 8 a.m. to 4:30 p.m. SUPPLEMENTARY INFORMATION: I. Legal Basis II. Background A. Summary of This Rule B. History III. Discussion of Comments on the NPRM 1. Strengthen Legal Presence Requirement a. Required Forms/Documents b. Nonresident CDL 2. Social Security Number Verification Before Issuing a CLP or CDL 3. Surrender of CLP, CDL and Non-CDL Documents a. Surrender of Documents b. Mailing of Initial License 4. CDL Testing Requirements for Out-of-State Driver Training School Students 5. State Reciprocity for CLPs 6. Minimum Uniform Standards for Issuing a CLP a. Passing the General Knowledge Test To Obtain a CLP b. Requiring the CLP To Be a Separate Document From the CDL or Non-CDL c. CLP Document Should Be Tamperproof d. Photograph on CLP e. Recording the CLP in CDLIS 7. Maximum Initial Validity and Renewal Periods for CLP and CDL a. Initial Validity and Renewal Periods for a CLP b. Initial Validity and Renewal Periods for a CDL 8. Establish a Minimum Age for CLP 9. Preconditions To Taking the CDL Skills Test a. CLP Prerequisite for CDL b. CLP Holder Accompanied by CDL Holder c. Waiting Period To Take Skills Test d. Relationship to Entry Level Driver Training Rulemaking 10. Limit Endorsements on CLP to Passenger (P) Only 11. Methods of Administering CDL TESTS 12. Update Federal Knowledge and Skills Test Standards a. Incorporate by Reference AAMVA 2005 CDL Test System b. Pre-Trip Inspection c. Skills Test Banking Prohibition d. Gross Vehicle Weight Rating (GVWR) Issues e. Removal of § 383.77 (Substitution of Experience for Skills Tests) f. Covert Monitoring of State and Third Party Skills Test Examiners 13. New Standardized Endorsements and Restriction Codes a. Uniform Endorsement Codes b. Testing Drivers on Vehicles With Air Brakes, Automatic Transmissions, and Non-Fifth Wheel Combination Vehicles c. Automatic Transmission Restriction d. Definition of Tank Vehicle 14. Previous Driving Offenses by CLP Holders and CLP Applicants 15. Motor Carrier Prohibitions 16. Incorporate CLP-Related Regulatory Guidance Into Regulatory Text 17. Incorporate Safe Port Act Provisions a. CDLs Obtained Through Fraud b. Computer System Controls—Supervisor Involvement c. Background Checks d. Training Requirements for Knowledge and Skills Examiners e. Minimum Number of Tests Conducted (Minimum Skills Tests for Testers and Examiners) f. Third Party Testing (Annual Inspection; Advance Scheduling of Tests; Separation of Training and Testing Functions) g. Third Party Bond Requirements 18. Other Issues Related to Fraud Prevention a. Black and White Photograph b. Check Photograph on File c. Two Staff Members Verify Test Scores and Other Documents 19. Miscellaneous Comments a. Applicability to Agricultural Sector b. Relation to REAL ID c. Domicile d. State Compliance Issues IV. Changes to the Proposed Rule in This Final Rule Changes to Conform Rule With Medical Certification Final Rule Terminology Changes Throughout Part 383—Commercial Driver's License Standards; Requirements and Penalties Part 384—State Compliance With Commercial Driver's License Program Part 385—Safety Fitness Procedures V. Regulatory Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures Unfunded Mandates Reform Act of 1995 Executive Order 12988 (Civil Justice Reform) Executive Order 13045 (Protection of Children) Executive Order 12630 (Taking of Private Property) Executive Order 13132 (Federalism) Privacy Impact Assessment Executive Order 12372 (Intergovernmental Review) Paperwork Reduction Act National Environmental Policy Act Executive Order 13211 (Energy Effects) List of Subjects The Final Rule I. Legal Basis This rule is based on the broad authority of the Commercial Motor Vehicle Safety Act of 1986 (CMVSA) (Pub. L. 99-570, Title XII, 100 Stat. 3207-170, 49 U.S.C. chapter 313); the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L. 98-554, Title II, 98 Stat. 2832, 49 U.S.C. 31136); and the Motor Carrier Act of 1935 (MCA) (Chapter 498, 49 Stat. 543, 49 U.S.C. 31502). It is also based on section 4019 of the Transportation Equity Act for the 21st Century (TEA-21), section 4122 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, at 1734, 49 U.S.C. 31302, 31308, and 31309); and section 703 of the Security and Accountability For Every Port Act of 2006 (SAFE Port Act) (Pub. L. 109-347, 120 Stat. 1884, at 1944). The CMVSA required the Secretary of Transportation, after consultation with the States, to prescribe regulations on minimum uniform standards for the issuance of commercial driver's licenses (CDLs) by the States and for information to be contained on each license (49 U.S.C. 31305, 31308). The CMVSA also authorized the Secretary to adopt regulations for a learner's permit (49 U.S.C. 31305(b)(2)). Paragraph (c) of 49 CFR 383.23 addresses the learner's permit by ratifying the States' regulations on this subject, provided they comply with certain Federal requirements. This final rule establishes a Federal requirement for a commercial learner's permit (CLP) as a pre-condition for issuing a CDL and also adopts various other changes to enhance the CDL program. The MCSA conferred authority to regulate drivers, motor carriers, and commercial motor vehicles (CMVs). It required the Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that: (1) Commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” (49 U.S.C. 31136(a)). This final rule, like the CDL regulations, is based in part on the requirements of 49 U.S.C. 31136(a)(1) and (2) that CMVs be “operated safely” and that “the responsibilities imposed on [CMV drivers] do not impair their ability to operate the vehicles safely.” The changes to 49 CFR part 383 of this rule will help to ensure that drivers who operate CMVs are licensed to do so and that they do not operate CMVs without having passed the requisite tests. The MCA authorized the Secretary of Transportation to prescribe requirements for the “qualifications * * * of employees” of for-hire and private motor carriers (49 U.S.C. 31502(b)). This rule, like the CDL regulations, is based in part on that authority and is intended to enhance the qualifications of CMV drivers by ensuring that they obtain a CLP before applying for a CDL. Section 4019 of TEA-21 required the Department of Transportation (DOT) to complete a review of the CDL testing system to determine if the current CDL system is an accurate measure of an individual's knowledge and skills as an operator of a CMV. It also authorized the Agency to issue regulations reflecting the results of its review. This rule includes new or enhanced requirements adopted in response to the Agency's review. Section 4122 of SAFETEA-LU required the DOT to prescribe regulations on minimum uniform standards for the issuance of CLPs, as it has already done for CDLs (49 U.S.C. 31308(2)). More specifically, section 4122 provided that an applicant for a CLP must first pass a knowledge test which complies with minimum standards prescribed by the Secretary and may have only one CLP at a time; that the CLP document must have the same information and security features as the CDL; and that a driver's record must be created for each CLP holder in the Commercial Driver's License Information System (CDLIS). 1 This rule includes each of those requirements, as explained in more detail in the preamble to this rule. 1 CDLIS is an information system that allows the exchange of commercial driver licensing information among all the States. CDLIS includes the databases of fifty-one licensing jurisdictions and the CDLIS Central Site, all connected by a telecommunications network. Section 703(a) of the SAFE Port Act required the Secretary of Transportation to issue regulations implementing the recommendations contained in a memorandum issued by the DOT's Office of the Inspector General (OIG) on June 4, 2004, concerning verification of the legal status of commercial drivers. Section 703(b) required the Secretary, in cooperation with the Department of Homeland Security, to issue a regulation to implement the recommendations contained in a report issued by the OIG on February 7, 2006 [“Oversight of the Commercial Driver's License Program”] that set forth steps needed to improve anti-fraud measures in the CDL program. In a 2002 CDL audit report, the OIG recommended that FMCSA require testing protocols and performance oriented requirements for English language proficiency. This final rule incorporates all of the OIG's recommendations. A discussion of these recommendations can be found in the preamble to the NPRM for this rule. Many of the operational procedures suggested by the OIG for carrying out the recommendations have also been adopted. In addition to the specific legal authorities discussed above, FMCSA is required, before prescribing regulations, to consider the “costs and benefits” of any proposal (49 U.S.C. 31136(c)(2)(A), 31502(d)). The Regulatory Flexibility Analysis prepared for this rule discusses those issues more comprehensively in a separate document filed in the docket. II. Background Acronyms and Terms Used in This Document AAMVA— American Association of Motor Vehicle Administrators CDL—Commercial Driver's License CDLIS—Commercial Driver's License Information System CLP—Commercial Learner's Permit CMV—Commercial Motor Vehicle CMVSA— Commercial Motor Vehicle Safety Act of 1986 CFR—Code of Federal Regulations DHS—Department of Homeland Security FHWA—Federal Highway Administration FMCSA—Federal Motor Carrier Safety Administration GCWR—Gross Combination Weight Rating GVWR—Gross Vehicle Weight Rating IBR—Incorporated by Reference N—Tank Vehicle Endorsement Non-CDL—Non-Commercial Driver's License NPRM—Notice of Proposed Rulemaking OIG—Office of Inspector General P—Passenger Endorsement PDPS—Problem Driver Pointer System S—School Bus Endorsement SDLA—State Driver Licensing Agency SSA—Social Security Administration SSN—Social Security Number A. Summary of This Rule FMCSA adopts the following revisions to the CDL knowledge and skills testing standards in response to the statutory mandates and OIG recommendations: (1) Knowledge and skills testing requirements. Successful completion of the knowledge test, currently a prerequisite for the CDL, is required before issuance of the CLP. This rule requires States to use driver and examiner reference materials, State testing questions and exercises, and State testing methodologies (herein referred to as State Testing System) that FMCSA has pre-approved. The State Testing System must be comparable to AAMVA's 2005 CDL Test System (July 2010 Version) for knowledge and skill standards, which FMCSA approves in this rule. It includes a prohibition on use of foreign language interpreters in the administration of the knowledge and skills tests, to reduce the potential for fraud. (2) Standards for issuing CLPs and CDLs. This rule specifically requires that each applicant obtain a CLP and hold it for a minimum of 14 days before applying for a CDL. It establishes a minimum age of 18 for issuance of a CLP. The CLP must be a separate document from the CDL or non-CDL, 2 must be tamperproof to the extent possible, and must include the same information as the CDL. The only endorsements allowed on the CLP are a restricted passenger (P) endorsement, a school bus (S) endorsement, and a tank vehicle (N) endorsement. Each State is required to create a CDLIS record for each CLP it issues. 2 A “non-CDL” is any other type of motor vehicle license, such as an automobile driver's license, a chauffeur's license, or a motorcycle license. Before issuing a CLP, the issuing State is required to perform a check of the driver's previous driving record using both CDLIS and the PDPS to ensure the driver is not subject to the sanctions of § 383.51, based on previous motor vehicle violations. If the State discovers that the driver is subject to such sanctions, it must refuse to issue a CLP to the driver. This rule strengthens the legal presence requirements and increases the documentation required for CLP and CDL applicants to demonstrate their legal presence in the United States. For example, SDLAs are required to verify the applicant's SSN with the SSA. The rule also addresses applicants who wish to attend a driver training school in a State other than the applicant's State of domicile. States are required to recognize CLPs issued by other States for training purposes. The rule limits the initial and renewal periods for both CLPs and CDLs. It clarifies under what circumstances an applicant must surrender his/her CLP, CDL, or non-CDL. It also requires all States to use standardized endorsement and restriction codes on CDLs. Many of the program areas and issues dealt with in this rule are also addressed in DHS's final rule implementing the REAL ID Act (“Minimum Standards for Driver's Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes,” 73 FR 5272, January 29, 2008, codified in 6 CFR part 37). FMCSA and DHS have coordinated efforts to write regulations that neither overlap nor conflict. The two agencies and the relevant statutory authority underlying these two rules serve different purposes. Although in some limited instances FMCSA has incorporated similar or identical requirements into this final rule, it does not adopt REAL ID or incorporate it by reference either wholly or in part. (3) Measures for prevention of fraud. This rule includes requirements to improve the ability of States to detect and prevent fraudulent testing and licensing activity in the CDL program. These measures include the following: • Requiring verification of social security numbers. • Requiring CLP and CDL applicants to prove legal presence in the United States. • Requiring that a digitized photo of the driver be preserved by the State driver licensing agency. • Requiring computer system controls to allow overrides by supervisory personnel only. • Requiring background checks and formal training for all test examiners. • Requiring the establishment of oversight systems for all examiners and testers (including third parties). • Disallowing the use of language interpreters for the knowledge and skills tests. In addition, amendments to part 384 require these items to be reviewed whenever FMCSA conducts a CDL compliance review of a State program. States found in substantial non-compliance with these fraud control measures, as well as the other requirements of part 384, may be subject to the loss of Federal-aid highway funds. (4) Other regulatory changes. The rule specifically prohibits a motor carrier from using a driver who does not hold a current and appropriate CLP or CDL to operate a CMV and from using a driver to operate a vehicle in violation of the restrictions on the CLP or CDL. It also incorporates into the regulations current FMCSA guidance related to issues addressed by this rulemaking (currently available on the Internet at “Guidance for Regulations,” at http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrguide.asp?section_type=G ). Finally, this rule includes minor editorial corrections and updates. B. History The CDL program was established by the CMVSA of 1986. Parts 383 and 384 of Title 49, Code of Federal Regulations, implement the CMVSA requirements. The CMVSA prohibits any person who does not hold a valid CDL or learner's permit issued by his/her State of domicile from operating a CMV that requires a driver with a CDL. The prohibition further affects driver training activities by limiting trainees to their State of domicile to (1) receive training and behind-the-wheel experience, and (2) take the knowledge and skills tests necessary to be issued a CDL. This has caused problems because commercial driver training facilities and the type of training needed are not equally available in all States. To address this and other issues, such as a lack of uniformity in the duration of learner's permits, associated driver history recordkeeping, and test reciprocity among States, the FHWA published an NPRM on August 22, 1990 (55 FR 34478). (In the discussion below, the responsible agency is referred to as the FMCSA, regardless of whether the action described occurred before or after the transfer of responsibility from FHWA to FMCSA in January 2000.) Since the 1990 NPRM, major changes have occurred in the CDL program through legislation, other rulemakings, regulatory guidance, and policy decisions. For example, in response to the Sept. 11, 2001 terrorist attacks, and because issuance of CDLs to unqualified persons and persons with false identities significantly complicated detection and prevention of fraud, Congress and FMCSA expanded the scope of the CDL program to include issues related to fraud and security. All of these major changes made the 1990 proposal obsolete. Thus, FMCSA withdrew the 1990 NPRM on February 23, 2006 (71 FR 42741). FMCSA issued a new NPRM on April 9, 2008 (73 FR 19282) to address these issues and establish regulatory changes to implement section 4019 of TEA-21, section 4122 of SAFETEA-LU, and section 703 of the SAFE Port Act. III. Discussion of Comments on the NPRM On April 9, 2008 FMCSA published an NPRM (73 FR 19282) to revise the standards for CDL testing and to require new standards for a CLP. Comments were initially due by June 9, 2008. However, in response to several requests, FMCSA extended the comment period until July 9, 2008 (73 FR 32520). In response to the NPRM, FMCSA received 103 comments. Commenters included representatives from Federal, State, and local government and enforcement agencies, industry, trade associations, advocacy groups, driver trainers, commercial motor vehicle drivers, individuals and national associations representing various transportation interests. Table 1 presents a commenter name and abbreviation list. Table 1—List of Commenters Name of commenter Abbreviated name Advocates for Highway and Auto Safety Advocates. Alabama Department of Public Safety Alabama. American Moving and Storage Association AMSA. Arkansas Department of Finance and Administration Arkansas. U.S. Department of the Army Army. American Trucking Associations ATA. B-J School Buses, Inc B-J School Bus. California Department of Motor Vehicles California. C.R. England, Inc CR England. CRST Van Expedited, Inc CRST. California Trucking Association CTA. Commercial Vehicle Training Association, Inc CVTA. Delaware Department of Transportation, DMV Delaware. Driver Holdings, LLC Driver Holdings. Elgin Community College Elgin CC. Farris Brothers, Inc Farris Bros. Florence School District One Florence S-D. Florida Dept of Highway Safety and Motor Vehicles Florida. Georgia Department of Driver Services Georgia. Idaho Department of Motor Vehicles Idaho. Illinois Fertilizer and Chemical Assoc IFCA. Driver Services Dept—Illinois Office of the Secretary of State Illinois. Indiana Association of Rural Electric Cooperatives Indiana Rural Electrics. International Union of Operating Engineers National Training Fund IUOE. Joint School District #2, Idaho 2 Joint School District. John Wood Community College Wood CC. Louisiana Office of Motor Vehicles Louisiana. Michigan Department of State Michigan. Minnesota Department of Public Safety Minnesota. Missouri Department of Revenue & Missouri State Highway Patrol; Missouri Department of Transportation Missouri. National Automobile Dealers Association NADA. Nebraska Agri-Business Association NE Agri-Business. Nebraska Department of Motor Vehicles Nebraska. New York DMV Motor Carrier Bureau New York. North Dakota Department of Transportation North Dakota. National School Transportation Association NSTA. Ohio State Highway Patrol Ohio. Oklahoma Department of Public Safety Oklahoma. Owner-Operator Independent Drivers Association, Inc OOIDA. Oregon DMV Oregon. Pennsylvania Department of Transportation Pennsylvania. Schneider National, Inc Schneider. South Carolina DMV South Carolina. South Dakota Driver Licensing Program South Dakota. Truckload Carriers Association TCA. Tennessee Department of Safety Tennessee. Texas Dept of Public Safety Texas. Commonwealth of Virginia DMV Virginia. Washington State Dept of Licensing Washington. Wisconsin Dept of Transportation Wisconsin. Winkle Bus Company Winkle. Wyoming Joint Transportation, Highways & Military Affairs Committee Wyoming. This final rule responds to the comments received on the 17 issues addressed in the NPRM preamble. The 18th section addresses issues related to fraud prevention and the 19th section addresses miscellaneous comments not specifically associated with any of the 17 original issues or fraud prevention. 1. Strengthen Legal Presence Requirement a. Required Forms/Documents FMCSA proposed amending § 383.71 to include a list of acceptable documents to prove citizenship or legal presence. Comments. Advocates, CRST, Elgin CC and the State of Tennessee supported the proposed change. DHS recommended either using the list of acceptable documents for establishing lawful status, which it published as a part of the REAL ID rule, or adopting REAL ID's method for verifying lawful status. Michigan supported harmonizing requirements with REAL ID. FMCSA Response. The final rule adopts the appropriate documents from the most recent list that DHS adopted for proof of citizenship or legal presence under REAL ID. ( See 73 FR 5272; January 29, 2008.) Use of this list will ensure greater compatibility with DHS programs including REAL ID. b. Nonresident CDL FMCSA proposed amending §§ 383.5, 383.23, 383.71 and 383.73 to reinforce “State of domicile,” as previously defined in the regulations, by specifying that a State may only issue a CLP or CDL to an applicant who is a U.S. citizen or lawful permanent resident. Under the proposal, applicants domiciled either in a foreign country other than those granted reciprocity by the Administrator, or in a State that had its CDL program decertified may be issued a Nonresident CLP or CDL. Comments. DHS objected to the term “Nonresident” because it is used differently for immigration purposes and could cause confusion. Under their current systems, Florida and New York already issue licenses to drivers who would qualify for Nonresident CLPs and CDLs under the proposed rule, but object to the change on the grounds that it would be burdensome to create a new category of license. Virginia does not currently issue CDLs to drivers domiciled in foreign countries and is opposed to expending resources to create this new category of license. Tennessee objected to Nonresident CLPs and CDLs without explanation. FMCSA Response. The final rule changes the term “Nonresident” to “Non-domiciled” for both CLPs and CDLs. This change will provide greater consistency with FMCSA's authorizing statute, which bases jurisdictional authority to issue CDLs on domicile, not residency. In addition, the change to “Non-domiciled” will avoid confusion and eliminate any actual or perceived conflicts with DHS' immigration programs. Other than the change to “Non-domiciled,” the rule remains as proposed in the final rule. 2. Social Security Number Verification Before Issuing a CLP or CDL FMCSA proposed amending § 383.73(g) to require States to verify certain identifying information ( e.g., name, date of birth, and SSN) submitted on the license application with the information on file with the SSA. The States would be prohibited from issuing, renewing, upgrading, or transferring a CDL if the information in the SSA database does not match applicant-provided data. FMCSA proposed that the SSN verification would only have to be performed once for each CLP or CDL applicant if a notation is placed on the driver record that the verification was done and the results matched information provided by the applicant. Comments. Georgia, Michigan, NADA, AMSA, and a community college support the proposal. Minnesota commented that the proposal may not consistently protect against or identify those applicants presenting false identities and that the process is burdensome and cost prohibitive. CRST supports the proposal only if the States are capable of managing the process without delays. Farris Bros. expressed concerns about privacy and information security. New York requested an exemption to this provision when an applicant presents a letter confirming the applicant has resolved a problem with a name or date of birth not matching the information in the SSA database. FMCSA Response. The SSN verification requirement remains as proposed in the NPRM. FMCSA views this requirement as a basic yet critical fraud prevention measure. FMCSA disagrees that this requirement is burdensome. Approximately 45 States currently conduct SSN verification for CDL applicants. Furthermore, verification is neither a lengthy process nor expensive (approximately $.025 for batch and $.03 for online transactions). FMCSA declines to adopt New York's exemption request. Verifying directly with the SSA that an applicant's name, date of birth and SSN all match after a discrepancy has been resolved is necessary to prevent fraud. 3. Surrender Of CLP, CDL and Non-CDL Documents a. Surrender of Documents FMCSA proposed amending §§ 383.71, 383.73 and 384.211 and adding § 383.25 to expand the current CLP and CDL surrender requirements to include any transaction where a CLP is being upgraded or a CDL is being initially issued, upgraded, or transferred. Comments. Florida and a community college support the proposal. Advocates supports the proposal but states that the language is ambiguous as to whether it is mandatory or optional. Georgia commented that 49 CFR 384.211 requires CDL applicants to surrender all previously issued CDLs and, therefore, it already complies with the proposed rule. Delaware commented that the proposal is unnecessary because an applicant's identity can be verified through other documents and electronic systems. New York commented that since it does not issue over-the-counter documents, applicants could be without any photo identification until the new or replaced CLP or CDL arrives in the mail. New York suggested perforating instead of surrendering documents. Michigan suggested that the Agency adopt a standardized document invalidation process such as clipping the corner of the prior document. Minnesota complained that finding a vendor to perforate old documents with the word “VOID” would be expensive. FMCSA Response. The surrender requirement is mandatory and remains as proposed. FMCSA disagrees that it is unnecessary to surrender prior documents. The surrender requirement is necessary to prevent fraud in the form of a driver holding more than one CDL document. Moreover, the rules recognize that not all States issue CDL documents over-the-counter and include an alternative standardized document invalidation process. As proposed in the NPRM, FMCSA is incorporating its guidance on stewardship requirements for surrendered documents into the final rule. As a result, the final rule provides for an alternative to surrender: Perforating old documents with the word “VOID.” b. Mailing of Initial License FMCSA proposed amending § 383.73 to require that States may only issue an initial CDL or CLP by mailing it to the address a driver provided on his/her application form. Comments. South Dakota opposed issuing CLPs by mail because States with over-the-counter procedures would have to develop special procedures. Florida claimed that the benefits associated with this change do not justify the costs required to establish a mailing system. North Dakota and Oklahoma argued that the proof of domicile requirement renders the mailing requirement unnecessary. Oklahoma further complained that forcing States to adopt central issuance would be costly. Tennessee questioned whether FMCSA is in fact requiring all States to change to a central issuance system. Georgia commented that if mailing is required, then States should be able to issue interim temporary CDLs over-the-counter. Illinois stated that unless the States are permitted to choose between mailing and implementing an address verification program, FMCSA is essentially mandating that the State adopt central issuance. Michigan does not believe that its practice of issuing CDLs and CLPs over-the-counter contributes to fraud. ATA, Driver Holdings and CR England complained that mailing will cause unnecessary delays for CLP holders entering driving schools. ATA further noted that DHS does not require mailing in the REAL ID rules. FMCSA Response. FMCSA has removed the requirement that States issue initial CLPs and CDLs by mail. This change is consistent with DHS's REAL ID rules and provides States with more flexibility, without a demonstrated reduction in fraud prevention, because, presumably, the same documents that are presented to prove domicile are used to verify mailing addresses. In addition, this change will prevent delays in applicants receiving CDLs and CLPs and will reduce the States' cost of compliance. 4. CDL Testing Requirements for Out-of-State Driver Training School Students FMCSA proposed to add § 383.79 to provide that a person who holds a CLP would be able to take the CDL skills test outside of his/her State of domicile. The testing State would then send the skills test results to the State of domicile. The State of domicile would accept the results of the skills test and, if the applicant passed, would issue a CDL. Comments. Advocates and an individual driver supported this proposal because reciprocity would increase national uniformity. NADA and AMSA also supported the concept of reciprocity. However, this proposal generated significant negative comments. CVTA commented that lack of uniform State testing standards would promote shopping for a State with the lowest testing standards. It also commented that many States do not grant reciprocity for CDLs, instead requiring even experienced drivers to retest. ATA, CVTA and CTA preferred temporary nonresident CDLs as an alternative. These associations, a number of carriers, a driver trainer and an individual driver commented that the proposed rule would require costly and time-consuming travel as well as delays to starting company-administered training and employment. Several trainers praised Illinois's high standards and objected to any rule that would inhibit the State's ability to do what it deemed necessary. All of the State agencies that submitted comments had issues with the proposal. The principal complaint was that the individual States would lose control over the integrity of the testing process. States that employ stringent anti-fraud measures in the testing process object to being required to accept results from States that are relatively lax. States that had previous experience with testing fraud were particularly opposed. Texas commented that the proposal had the potential for a significant increase in fraud because the State that issued the CDL would have no recourse against testers outside its jurisdiction. Several States suggested that FMCSA change the requirement to permit, but not require, reciprocity. Several States also complained that the proposed rule would increase costs in terms of program, procedure and training changes. A number of States had specific concerns about the electronic transmission of information between States and the costs associated with implementing an electronic system. FMCSA Response. After careful consideration of these comments, FMCSA has determined that the final rule will remain as proposed. States are required to accept the results of a skills test administered to an applicant by any other State. FMCSA is confident that the upgraded skills test and anti-fraud standards required and implemented by this rule will improve and standardize both skills testing and fraud prevention, creating more uniformity across all States' CDL programs. In addition, FMCSA believes that the new rule will help reduce barriers to entry into the driver labor market. Under current law and regulations, a driver may only obtain a CDL or CLP from his/her State of domicile. The new rule will facilitate driver training for applicants unable to train in the State of domicile. In addition, training schools often provide applicants with use of a truck for testing purposes. For many applicants, this is the only feasible option for testing. If applicants are required to return to their States of domicile for testing, they would have to secure use of a truck, obtain insurance and/or incur the cost of renting a truck simply to take the test. For many this is logistically or financially prohibitive. The travel costs raised by carriers in their comments are not related to the proposed rule change. Currently, many States do not enforce the requirement that only the State of domicile may issue a CDL or CLP. As a result, drivers are avoiding the travel costs associated with the return to the State of domicile by obtaining CDLs from States other than their States of domicile, in violation of federal statute and FMCSA's rules. With or without the rule change, these costs exist. It does not appear unreasonable to require a driver applicant to return to his/her State of domicile because this is where, by definition, he/she makes his/her permanent home and is the jurisdiction to which he/she intends to return. FMCSA leaves it to the States to determine what secure electronic method of transmitting test scores works best for them. At least one State currently has an electronic database that can be used for the transmission of test results between States. Other States may prefer to use more basic methods of electronic transmission such as e-mail. 5. State Reciprocity for CLPs FMCSA proposed amending § 384.214 to allow a person to obtain a CLP from his/her jurisdiction of licensure and then engage in CMV driver training located in whole or part in any State, similar to the reciprocity States grant other States' CDL holders who travel across State lines. Comments. South Carolina, Michigan, Advocates, NADA, CTA and two carriers support CLP reciprocity. CTA and a carrier commented that CLP reciprocity would reduce training and licensing costs and increase flexibility, but also suggested that States be able to issue temporary CLPs to driver-trainees domiciled in other States. OOIDA supports the proposed rule so long as it does not create an additional burden on the States or compromise the one driver/one license/one record principle. FMCSA Response. The final rule will remain as proposed: States will be required to grant reciprocity to CLPs issued in other States. This will permit a CLP holder to train in States other than his/her State of domicile. FMCSA believes that issuing temporary CLPs to driver-trainees domiciled out-of-State would violate the one driver/one license/one record principle. 6. Minimum Uniform Standards for Issuing a CLP a. Passing the General Knowledge Test To Obtain a CLP FMCSA proposed adding new § 383.25 and amending §§ 383.71 and 383.73 to require that every applicant successfully complete the CDL knowledge test before being issued a CLP. A driver who holds a valid non-CDL in his/her State of domicile would obtain a CLP from the State of domicile upon successful completion of a general CDL knowledge test. Comments. Advocates, two associations, two driver-trainers, a carrier and five States generally supported this proposal. FMCSA Response. The final rule will remain as proposed with the following clarification: A driver holding a valid CDL who seeks an upgrade for which a skills test is required must also pass the appropriate knowledge test prior to obtaining a CLP. This is consistent with the new § 383.25(d) which requires a CDL holder seeking an upgrade to his/her CDL to obtain a CLP if the upgrade requires a skills test. b. Requiring the CLP To Be a Separate Document From the CDL or Non-CDL FMCSA proposed adding new § 383.25 and amending §§ 383.151 and 383.153 to require that the CLP be a separate document from either the CDL or the non-CDL; contain the words “Commercial Learner's Permit” or “CLP” displayed prominently; and include a statement that it is not valid for driving a CMV unless presented with the underlying CDL or non-CDL. Comments. Advocates strongly supports the proposal. New York and Alabama commented that there is not enough room for the proposed language on the CLP. Tennessee commented that a two-part license would cause problems with tracking expiration dates, software upgrades and law enforcement officials having to review two documents. Georgia commented that the proposal may not be compatible with REAL ID because a driver may only hold one REAL ID-compliant identification document. Texas suggested having CLP holders surrender their underlying non-CDL documents and requiring States to issue one integrated document that would serve as both a CLP and non-CDL. Washington supports the proposal but notes that it will require changes to its document issuing process. FMCSA Response. The requirement remains as proposed—that the CLP be a separate document from the underlying license. This rule is not inconsistent with REAL ID because the license and the CLP are not two separate licenses; they are two parts of the same license. As a result, the CLP is not valid unless presented with the underlying license. Furthermore, the two documents share the same driver's license or record number. FMCSA believes that one integrated document would create problems since the CLP and non-CDL would likely have different expiration dates. Tracking expiration dates on separate documents should not present a significant problem because most States appear to do this under the current system. The standard language is necessary so that all parties checking the license (law enforcement, etc. ) understand the purpose and limitations of the CLP. c. CLP Document Should Be Tamperproof In accordance with section 4122 of SAFETEA-LU, FMCSA proposed amending §§ 383.153 and 383.155 to require that CLP documents be tamperproof and that the content of the CLP documents be the same as the content of the CDL documents. Comments. Georgia and Florida support the proposal. Delaware commented that tamperproofing is expensive and that it is not necessary because the CLP is only used for a short period of time. Michigan described its current system, which pairs a secure underlying license with a paper CLP, as more than adequate and does not believe it is cost-effective to expend resources to tamperproof a temporary document. FMCSA Response. The tamperproofing requirement, which Congress required in SAFETEA-LU, remains as proposed. d. Photograph on CLP FMCSA proposed amending § 383.153 and adding new § 384.227 to require that States include a color photograph or digitized color image of the driver on CLPs. Comments. Advocates asked FMCSA to provide data or information showing that a photograph or digitized image will substantially deter fraud. Pennsylvania and Michigan do not currently require a photograph on the CLP and object on the grounds that the change would be burdensome. Michigan argued that a photograph on the CLP would be unnecessary if the underlying CDL or non-CDL has a photograph. DHS objected to having a State issue two photograph IDs to a single person, stating that it would violate the one driver/one license/one record principle. FMCSA Response. After studying these comments and further considering the risk of fraud, FMCSA has decided not only to remove the requirement for a color photo on the CLP document, but also to prohibit a photo on the CLP document. FMCSA has determined that eliminating the photo makes the CLP more secure. Otherwise, a State would be issuing a single person two State-issued photo IDs and someone other than the record holder could present the CLP document as a photo ID to establish identity or for other purposes. This change also complies with the spirit and intent of one driver/one license principle: Drivers will not be issued more than one photo ID. The CLP is a two-part license comprised of the CLP document and the underlying CDL or non-CDL together, and the CLP document must be presented with the underlying CDL or non-CDL to be valid. The CLP document will have the same driver's license number as the underlying CDL or non-CDL as well as language stating the two-part nature of the document, making this relationship clear. e. Recording the CLP in CDLIS FMCSA proposed amending §§ 383.71, 383.73(h), 384.205, 384.206, 284.207, and 384.225 to require States to create a CDLIS record for a CLP and to require States to post all CLP transactions to CDLIS. Comments. Advocates, Tennessee and Georgia supported the proposal, as did South Carolina, which already complies with the proposal. Delaware objected to the requirement because of additional costs. CTA generally supported the idea behind the proposal but noted that it would be burdensome to the States. Arkansas commented that the proposal would require it to perform CDLIS checks before issuing a CLP, which would result in longer lines and additional expense. FMCSA Response. The rule's provisions requiring recording the CLP in CDLIS, which Congress required in SAFETEA-LU, remain as proposed. 7. Maximum Initial Validity and Renewal Periods for CLP and CDL a. Initial Validity and Renewal Periods for a CLP FMCSA proposed adding new § 383.25 to require that States make the initial CLP valid for 180 days and that they may renew it for an additional 90 days without requiring the CLP holder to retake the general and endorsement knowledge tests. Comments. NADA and CRST supported the proposal. Florida supported the proposal as long as it does not allow unlimited re-issuance of CLPs where applicants continue to pass the knowledge tests. Michigan requested clarification as to whether an applicant would have to take the knowledge test again to reset the cycle. California, New York, Virginia and the Army commented that the initial period was too short. Oregon, Illinois, Georgia and Wood CC suggested a one-year, initial non-renewable period. Minnesota specifically recommended a 9-month validity period. Advocates and CR England suggested a 90-day initial period with a 90-day renewal period. South Dakota, Georgia and Elgin CC commented that the renewal period was too short. Idaho and Washington supported a 6-month renewal period. The Florence S-D recommended two 6-month renewal periods. Wisconsin complained that the validity cycle was too short. South Carolina objected because it would require a change to existing systems. FMCSA Response. The FMCSA is making no change to the initial CLP validity period of 180 days but is changing the final rule to allow the CLP to be renewed for an additional 180 days (instead of 90 days) without requiring the CLP holder to retake the general and/or endorsement knowledge tests. This will give CLP holders more time to train and take the CDL skills test, and is generally in line with the majority of the comments, which recommend some combination of initial validity and renewal periods to a maximum of one year. Also, the longer validity period will ease the burden on DMV resources. The number of times a State permits re-issuance of a CLP after an applicant passes the knowledge test is not addressed in this rulemaking and is left to the States' discretion. b. Initial Validity and Renewal Periods for a CDL FMCSA proposed amending § 383.73 to establish maximum initial and renewal periods of 8 years for CDLs. Comments. ATA, AMSA and CRST support this provision. Advocates opposed it on the basis that this period will increase the potential for unsafe drivers to evade detection and magnify the possibility of fraud and the amount of time that fraudulent CDL actions can continue undetected. Missouri commented that because CDL drivers must be medically examined and certified every two years, the disparity between the duration of the CDL and the medical examination could prove to be cumbersome for SDLAs, if the medical certification is ultimately linked to CDL issuance. Georgia and Michigan support the proposal, but suggested that the final rule incorporate REAL ID by reference. Texas recommended that the term be for five years so it matches the CDL expiration date to the TSA Hazardous Materials Endorsement background check requirement. FMCSA Response. The requirement for maximum issuance and renewal periods of 8 years remains in the final rule. Some commenters misunderstood the proposal: Under the new rule 8 years is the maximum, but States are free to set shorter validity periods. This will affect only a small number of States that currently permit validity periods longer than 8 years. Finally, although FMCSA declines to adopt REAL ID by reference wholly or in part, this provision is consistent with maximum validity periods required by REAL ID. 8. Establish a Minimum Age for CLP FMCSA proposed amending § 383.71(a) to require that a CLP holder be at least 18 years old, the minimum age to operate a CMV in intrastate commerce. The Agency also proposed to apply the exceptions and exemptions from the age requirements for interstate commerce, granted in §§ 390.3(f) and 391.2 and subpart G of part 391, to the issuance of a CLP. Comments. ATA and two carriers, a citizen, a driver and a driver trainer supported the proposal. Six States commented that they are already in compliance with the proposed rule. AMSA endorsed the proposal, saying it would help enforce the current age limit on driving of CMVs. Advocates and the Transportation Defense Lawyers Network were concerned that allowing CLPs for driver as young as 18 when they could not drive in interstate commerce until the age of 21 would be used to justify lowering the age of interstate CDL driving. TCA urged FMCSA to develop an experimental program to determine the feasibility of using drivers 18 to 20 years old in interstate commerce. California and Illinois commented that the rule will create hardship in the agricultural community. FMCSA Response. The proposed requirement remains in the final rule. In the NPRM, FMCSA only proposed setting the minimum age for CLPs at 18. Lowering the minimum age for CDLs is beyond the scope of this rulemaking. For a discussion of the rule's applicability to the agricultural community, please see Section 19.a. below (Applicability to agricultural sector). 9. Preconditions to Taking the CDL Skills Test a. CLP Prerequisite for CDL FMCSA proposed adding new § 383.25(d) to require that obtaining a CLP is a precondition to the issuance or upgrade of a CDL. Comments. Idaho suggested that there should be an exclusion for drivers seeking upgrades or who have previously held CDLs. Delaware recommended that this requirement apply only to those who have never held a CDL. Florida did not oppose the requirement, but commented that it may adversely affect school districts and other organizations from hiring new people. New York and Wisconsin commented that this requirement would entail modifications to State systems. A carrier commented that CLPs are unnecessary, without further explanation. FMCSA Response. FMCSA has modified the final rule to state that, with respect to upgrades, a CLP is a precondition to the issuance only if the upgrade requires a skills test (as opposed to a knowledge test). Where skills testing is a part of the licensing process, FMCSA believes it is important for drivers to have the opportunity to practice on the public roads in a CMV under the supervision of an experienced driver. FMCSA believes that a CLP is an important document to distinguish between CDL holders and driver-trainees who must be accompanied by CDL holders. b. CLP Holder Accompanied by CDL Holder FMCSA proposed adding new § 383.25(a) to require that the CLP holder be accompanied by the holder of a valid CDL with the proper CDL group and endorsement. Comments. Wisconsin opposes this requirement and commented that permitting unaccompanied CLP holders can facilitate driver training. Advocates does not believe that having a CDL holder accompany a CLP holder provides sufficient assurances of safety because no standards exist for the accompanying CDL holder's driving skills, qualifications or length of time he/she has had his/her CDL. FMCSA Response. The final rule remains as proposed. Safety considerations outweigh convenience during driver training. FMCSA does not believe that it is safe to permit inexperienced drivers who have not yet passed the CDL skills test to drive unaccompanied. Because qualifications of the accompanying CDL holder were not addressed in the NPRM, they are beyond the scope of this rulemaking. c. Waiting Period To Take Skills Test FMCSA proposed adding new § 383.25(e) to require that the CLP holder is not eligible to take the CDL skills test within 30 days of issuance of the CLP. Comments. Tennessee, Georgia, Michigan and Advocates supported the 30-day waiting period. Twenty-one commenters opposed the 30-day waiting period. ATA and CVTA argued that the 30-day waiting period penalizes driver-trainees who successfully complete their training less than a month after obtaining their CLPs. ATA, NE Agri-Business, and NSTA commented that delaying the skills testing also means that driver training graduates will be forced to postpone their employment and subsequent ability to begin earning wages. It also will be costly for employers, who must either pay the drivers they have trained for not working while they wait to be licensed or risk losing them to another industry. NE Agri-Business and CVTA argued FMCSA offered no empirical evidence that trainees are better drivers or are better prepared for the skills test after 30 days' practice. Schneider recommended that FMCSA change the waiting period to 14 days, to avoid skills degradation between training and testing. The Joint School District recommended a waiting period of 10 days between taking the written exam and the skills test. Several commenters opposed the 30-day waiting period because classroom training is usually before a student applies for the CLP and, based on the hours in the proposed entry level training rule, the behind the wheel training will take no more than two weeks. FMCSA Response: FMCSA has amended the provision in the final rule to grant eligibility to take the CDL skills test 14 days after obtaining a CLP. FMCSA understands that some CLP holders may acquire driving skills more quickly than others. Regardless, FMCSA encourages CLP holders to train for as long as necessary to gain sufficient CDL driving skills. However, those who feel ready are eligible, but not required, to take the skills test 14 days after obtaining the CLP. FMCSA does not believe this will compromise safety because only qualified drivers will be able to pass the skills tests given in accordance with the enhanced standards mandated elsewhere in this rule. d. Relationship to Entry Level Driver Training Rulemaking On December 17, 2007, FMCSA published a Notice of Proposed Rulemaking addressing Entry Level Driver Training. This proposed rule would require both classroom and behind-the-wheel training for drivers seeking a CDL for the first time. Comments. Commenters requested clarification about the relationship between this rule and the Entry-Level Driver Training rule. FMCSA Response. The final rule for Entry Level Driver Training is still under development. While these are separate rules, FMCSA will ensure that any future requirements for driver training are completely compatible with the requirements of this rule. 10. Limit Endorsements on CLP to Passenger (P) Only FMCSA proposed adding new § 383.25 and amending § 383.93 to require that CLP holders not be eligible for any endorsement other than the passenger (P) endorsement. Comments. Advocates and CRST support the proposal. A number of entities supported a prohibition on hazardous material endorsements on CLPs but objected to prohibiting other endorsements. Six associations commented that the proposed limit on CLP endorsements would cause delays in providing employees necessary tanker, hazardous material, and school bus training, and would compound the problems the industry has in hiring and keeping full-time CDL employees. CVTA and ATA stated that this prohibition would create problems for drivers who wish to add an endorsement to their license as well as the motor carriers that employ them. They further commented that it would require a costly, time-consuming, two-stage training process and could have an unintended consequence of shifting endorsement training away from more standardized means of instruction such as at driver training schools. A driver trainer commented that the limit on CLP endorsements would make training very difficult. Schneider commented that in its experience, training CLP holders with tanker endorsements produces safer drivers. CR England asked FMCSA to clarify that the prohibition against a CLP driver carrying passengers does not apply to “trainers, trainees and Federal/State Auditors/Inspectors.” California commented that drivers should be able to train on the type of vehicle they will eventually be driving. Georgia supports additional endorsements so that drivers could get more behind-the-wheel training. New York, Oregon, and a school district recommended permitting a tanker endorsement. Illinois wants more flexibility in allowing training on tankers and double/triple trailers. Two driver trainers objected to prohibiting training on vehicles requiring endorsements because it sets up a two-step training process. One driver trainer suggested permitting CLP holders to obtain knowledge test endorsements, but that they should not be valid until the driver obtains a full CDL. A number of States had concerns about school bus drivers not being able to train on school buses without an endorsement. New York expressed concern about not having the school bus (S) endorsement on the CLP. The State said the presence of the S endorsement would be proof of the applicant passing the knowledge test before taking the skills test. FMCSA Response. The final rule includes the following in addition to maintaining the P endorsement FMCSA originally proposed: A CLP holder may obtain a school bus (S) endorsement with a no-passenger restriction. This change promotes consistency because the P and the S endorsements both require knowledge and skills testing. Also, it is logical to permit an S endorsement because it will provide proof that the CLP holder passed the S endorsement knowledge test before taking the S endorsement skills test. The final rule clarifies that the no-passenger restriction on the P and S endorsements does not apply to instructors, examiners, other trainees or Federal/State auditors/inspectors. A CLP holder may also obtain a tank vehicle (N) endorsement with the restriction that the tanker must be empty and must have been purged if it previously contained hazardous materials. An N endorsement on the CLP with an “empty” restriction balances safety concerns with industry needs to train drivers on the type of vehicles they will eventually be driving, but does not allow them to train under cargo-laden conditions until they have learned the basics of operating the vehicle. By limiting endorsements on the CLP, FMCSA intends for drivers to learn how to operate a CMV safely before taking on more dangerous operations requiring higher skill levels. It is permissible to take the knowledge test for endorsements at the same time as the knowledge test for the CLP, however, the driver must obtain a CDL before driving vehicles requiring endorsements (other than those set forth above). 11. Methods of Administering CDL Tests FMCSA proposed amending § 383.133 to prohibit the use of interpreters during the administration of the knowledge and skills tests, and to require that applicants be able to understand and respond to verbal commands in English by the skills test examiner. Comments. South Carolina, New York, Tennessee, Georgia, Alabama, Michigan, Texas, ATA, Advocates, CVTA, CR England, Elgin CC, Driver Holdings, three individuals and two drivers all support the proposal. OOIDA commented that understanding basic commands in English does not sufficiently demonstrate proficiency. Washington requested that FMCSA clarify whether the definition of “interpreter” includes bilingual testers and whether the NPRM proposed that skills testing be conducted in English only. Florida opposed that portion of the proposal that requires that the skills test be given in English only. Although it already prohibits the use of interpreters during skills tests, it permits examiners to interact with applicants in other languages. FMCSA Response. FMCSA has modified the final rule to make clear that examiners may interact with applicants only in English during the skills test. The OIG's 2002 report on improving CDL testing and standards noted that some States permit bilingual testers to test in languages other than English, while other States do not permit this practice. Under the final rule this practice is prohibited; bilingual or multilingual examiners are not permitted to test in languages other than English. This clarification is consistent with 49 CFR 391.11(b)(2), which requires drivers to have certain minimum English language skills and will promote national uniformity in testing standards. It is worth noting that § 391.11(b)(2) is currently under Agency review. If the Agency makes changes to § 391.11(b)(2), it may also propose corresponding changes to § 383.133. 12. Update Federal Knowledge and Skills Test Standards Some modifications to part 383, subparts G and H, were proposed to match the knowledge and skills test standards set forth in the AAMVA 2005 CDL Test System. Comments. CRST, Advocates, Indiana Rural Electrics, and AMSA were generally supportive of the rule's changes to Federal standards for CDL knowledge and skills testing. AMSA stated that its support was based on the fact that substantial input was taken from those in the affected industry and that the rule would promote uniformity across States. a. Incorporate by Reference AAMVA 2005 CDL Test System FMCSA proposed to add new § 383.9 to incorporate the AAMVA 2005 CDL Test System by reference into the Federal regulations for CDL knowledge and skills standards. Comments. NADA, Florida, Georgia and New York support adopting the 2005 CDL Test System. Georgia and Florida stated that they have already adopted the 2005 CDL Test System. Missouri supported the rule change but suggested that States be able to use paper versions of the tests to accommodate those testing sites that are not computerized. Oregon commented that although the new test system is good, it has limitations and flaws and that AAMVA has been slow to correct errors and issue updates. Oregon further commented on proposed § 383.133(b)(2)(i), which would require the total difficulty level of questions used in each version of a knowledge test to fall within a set range, by asking that AAMVA and FMCSA reconsider the way difficulty levels are used and remove reference to them. Oregon and Idaho both commented that the States should be given limited flexibility to deviate from the Test System. Minnesota suggested that the rule establish the AAMVA Test System as a minimum standard and that FMCSA allow States to alter the test as long as they satisfy this minimum. TCA objected to the new test system on the basis that endorsement of a single test was not necessarily in the interest of highway safety. Virginia, Illinois, California and Nebraska all expressed concern that the new standards would require expansion or reconfiguration of skills testing areas. New York expressed concern that it would not be able to test the required maneuvers in urban areas such as New York City. A community college expressed concern that not all existing testing centers could conform to the new standards, creating an economic hardship on applicants through increased travel costs. South Carolina commented that compliance with the computer generated test requirements would require significant IT solutions and substantial cost. FMCSA Response. In the final rule, FMCSA does not incorporate by reference the AAMVA 2005 CDL Test System, because doing so would have allowed examinees access to sensitive testing information. As a result, proposed § 383.9 is not included in the final rule. The final rule requires States to use an FMCSA pre-approved State Testing System that meets the minimum requirements established in this rule and that is comparable to the AAMVA 2005 CDL Test System (July 2010 version), which FMCSA approves in this rule. FMCSA will provide all State Driver Licensing Agencies with a copy of the Test System prior to the effective date of this rule. The July 2010 version contains minor, non-substantive revisions to the original (December 2005) version. FMCSA does not believe that the new test standards will be burdensome to the States. In fact, by the end of 2009, approximately 50 percent of States had adopted the 2005 CDL Test System. The 2005 CDL Test System, unmodified, is the appropriate standard to use because it has been rigorously pilot-tested and evaluated for validity and consistency. States concerned about the challenges of automating the generation of multiple versions of the knowledge test may consider relying on vendors who will make appropriate software available. Even though automated generation is the preferred method, States may nonetheless prepare the tests manually using the algorithm required by the standards. Although the testing standards for the skills test were upgraded to make performance of off-road maneuvers harder, States do not have to build new sites to test all of the maneuvers. The 2005 CDL Test System provides more flexibility to States in choosing driving skill components than previous versions. Instead they can choose the skills and maneuvers in the testing standards that are appropriate for their current sites, rendering significant reconfiguration or expansion of skills testing sites unnecessary. States using AAMVA's 2005 CDL Test System (Version July 2010) without modification do not need pre-approval from FMCSA. States seeking pre-approval to use other State Test Systems (including any modification to AAMVA's 2005 CDL Test System (Version July 2010)), must submit a request for approval to FMCSA's CDL Division. b. Pre-Trip Inspection In addition, modifications to part 383, subparts G and H, were proposed to make the entire pre-trip inspection (not just the air brake inspection) part of the skills testing standard, rather than the knowledge testing standard as it is currently. Comments. South Carolina supported making the pre-trip inspection part of the skills testing. Texas and Nebraska opposed making the pre-trip inspection part of the skills testing. Texas commented that administering the pre-trip inspection as a knowledge exam will not reduce safety. Nebraska commented that changing the pre-trip inspection back to a skills test would add 45 minutes to each skills test, thus increasing costs to the State. FMCSA Response. The pre-trip inspection will remain in the final rule as part of the skills test. The AAMVA 2005 CDL Test System includes the pre-trip inspection as part of the skills test because it is important to demonstrate the applicant's ability to inspect the vehicle for any defects. This should not be a burden to the States, because they now have the option of randomly administering one of three partial pre-trip inspection test options to the applicants, which will reduce the time needed to administer the pre-trip inspection as part of the skills test. c. Skills Test Banking Prohibition Modifications to part 383, subparts G and H, were proposed to prohibit the banking of parts of the skills test (for example, an applicant who passes the pre-trip and off-road maneuvers, but fails the on-road part of test must retake all three parts of the skills test). Comments. North Dakota supported the proposal to prohibit banking. New York said that it does not currently allow banking. However, most commenters who addressed “test banking” were opposed to the proposed prohibition of this practice. They either stated that FMCSA had not explained the intended safety benefits of the provision or asserted that there would be no safety benefits. Specifically, twelve State agencies objected to this change, arguing that it would lengthen the amount of time it takes to re-test a driver who fails the exam but has passed some portions of the test. States also commented that greater resources will have to be dedicated to skills testing drivers if banking is prohibited due to the increased length of time needed to re-test drivers who fail. Four associations, three carriers and four driver trainers expressed similar concerns. States also commented that the prohibition would increase administrative costs by making it difficult to schedule tests efficiently; requiring greater effort for examining personnel; requiring changes to testing systems, forms and process; and requiring staff retraining. FMCSA Response. After careful consideration of the many comments, FMCSA has decided to eliminate the proposed banking prohibition. FMCSA has introduced a number of new rules in this proceeding designed to improve the quality of CDL testing. Considering the number of negative comments and concerns about increased costs, the Agency has determined that, at this time, the safety benefits derived from this particular section do not justify States' anticipated costs of compliance. States remain, however, free to prohibit this practice. FMCSA has simply decided not to mandate that States prohibit banking. d. Gross Vehicle Weight Rating (GVWR) Issues Modifications to part 383, subparts G and H, were proposed to adopt the expanded definition of CMV in section 4011(a) of TEA-21 to include both “gross vehicle weight rating and gross vehicle weight,” “whichever is greater” and “gross combination weight rating and gross combination weight,” “whichever is greater.” Comments. Idaho commented that the expanded definition of CMV in section 4011(a) of TEA-21 combines overweight vehicle issues with CDL classifications. Illinois stated that it allows a person legally to register a vehicle for a greater amount than the manufacturer's GVWR/GCWR (the GVWR/GCWR of a vehicle is less than 26,001 pounds, but the plate displayed on the vehicle covers a weight more than 26,000 pounds). FMCSA Response. The proposed expanded definition of CMV remains in the final rule. The expanded definition of CMV in section 4011(a) of TEA-21 was not intended to allow overweight vehicles with a GVWR/GCWR of less than 26,001 pounds to be used as a representative vehicle for the purpose of taking a CDL skills test. The intent of including the actual gross vehicle weight and the gross combination weight in the expanded definition of CMV is to allow roadside enforcement against drivers who do not have a CDL, but are operating vehicles with an actual weight of more than 26,000 pounds. Therefore, the expanded definition of CMV is to be used for roadside enforcement, but only the GVWR and GCWR must be used for skills testing in order to maintain the representative vehicle concept. Allowing a person to register a vehicle for a greater amount than the manufacturer's GVWR/GCWR does not affect the expanded definition of CMV. Registered weight has never been a valid way of determining a representative vehicle. e. Removal of § 383.77 (Substitution of Experience for Skills Tests) Modifications to part 383, subparts G and H, were proposed to eliminate § 383.77, because the substitute for a driving skills test was intended only for the initial testing cycle prior to April 1, 1992. Comments. Several commenters, including New York, Florida, CTA, ATA and the Army complained that the proposed change would preclude States from granting the CDL skills test waivers to drivers with military CMV experience. ATA further stated that it is currently working with the Department of Defense to align the military's licensing standards more closely with commercial standards but is concerned that the proposed change would adversely affect the future ability of military CMV drivers to transition to a commercial setting. ATA and New York recommended keeping the CDL skills test waiver for holders of military driver's licenses with CMV experience. FMCSA Response. The final rule amends § 383.77 to limit the substitution of experience for the skills test to eligible drivers with military CMV experience. The skills test waiver provision in § 383.77 was promulgated in 1988 as a temporary “grandfathering” transition measure when FMCSA first adopted CDL regulations. Although this provision has been associated with fraudulent activities, including the falsification of documents to prove that the applicant has the experience and clean driving record necessary to qualify for the waiver, FMCSA believes this provision serves an important function for military personnel returning to the civilian work force. Limiting this provision to drivers who have military CMV experience should significantly reduce the fraudulent activities associated with this provision. Regardless, FMCSA continues to encourage military units to train their recruits as CMV drivers and have them obtain State-issued CDLs while still in active duty status to minimize any adverse effect on their future ability to transition to the civilian workforce. FMCSA will continue to work with the armed services to identify other ways to facilitate military drivers getting CDLs. f. Covert Monitoring of State and Third Party Skills Test Examiners Modifications to part 383, subparts G and H, were also proposed to adopt the OIG recommendation to require covert monitoring of State and third party skills test examiners. Comments. Missouri supported the proposal and recommended that federal funding be made available for implementation. Driver Holdings supported the proposal so long as the objective is to detect fraud, not mistakes or errors in judgment. Michigan complained that the proposal would increase State employees' work load significantly. Virginia commented that unannounced or covert monitoring is logistically difficult and burdensome—without advance notice, the necessary or appropriate people or documentation may not be available. The Army wants to have its CDL program certified in the future, and does not believe that covert monitoring can be conducted under current military installation and security requirements. South Carolina commented that it currently engages in covert monitoring of State employees. North Dakota does not think it should have to engage in covert monitoring of its own employees. Florida commented that the proposals are generally consistent with its programs, but that it finds announced visits more efficient than unannounced visits because, with the latter, key personnel can be unavailable. CTA commented that retesting a sample of drivers previously tested by a third party is burdensome. Several States object to all the monitoring being required and want funding from FMCSA. FMCSA Response. As proposed, covert monitoring of State and third party skills test examiners will remain in the final rule. In addition to the covert and overt monitoring of State and third party skills test examiners required at § 384.229(b), § 383.75(a)(5) requires States to perform one of the three alternative skills test exercises (covert test taking, co-scoring, and retesting) on third party examiners. FMCSA has determined that increased monitoring of State and third party skills test examiners' records and administration of skills tests, using both covert and overt methods, is an important part of both fraud prevention and quality control. Fraud prevention and quality control are, in turn, critical to achieving the goal of national uniformity in testing standards. Furthermore, the Agency adopts these monitoring requirements in accordance with the OIG's recommendation in its 2002 Report that it require covert monitoring of State and third party skills test examiners. FMCSA does not believe that these requirements are unreasonably burdensome. Although States may experience some inconveniences in the short term as they adjust their programs, FMCSA's goal is to improve the quality of testing standards over the long-term. 13. New Standardized Endorsements and Restriction Codes a. Uniform Endorsement Codes FMCSA proposed to amend § 383.153 to include uniform codes for all endorsements and restrictions on CDLs. Comments. Tennessee, Georgia, NADA, two carriers and a trainer supported the proposal. Wisconsin stated that this change would require legislation and a reconfiguration of the DMV's driver license data processing system. Virginia commented that it would require modifications to the DMV's automated system and was concerned it would require immediate reissuance of all CDLs. Delaware stated that this would be burdensome and commented that if a phased approach is acceptable to the FMCSA (change the license upon renewal), there will be some CDL holders who have the new endorsements and restrictions and others who have the old ones. If not, the DMV will have difficulty handling the volume of customers who would be required, within a limited time-frame, to have their licenses changed. Florida commented that the adoption of the new codes would be prohibitively expensive and that several of the proposed standard restriction codes are already in use for other purposes, while some of the proposed restrictions are represented by other codes. Florida and Minnesota suggested that the rule require CDLs to display explanations for the codes. New York commented that it would have to change its codes and that it would be burdensome. North Dakota and Illinois found the wording of the restrictions confusing in that some are restrictions and others are endorsements. Pennsylvania commented that current regulations are adequate. Michigan opposed the new codes because of the cost of implementation. Texas supported the proposal generally, but suggested that FMCSA establish a working group consisting of representatives from all States and jurisdictions, including AAMVA, to review this proposal and make a final recommendation on standardizing these codes to minimize the impact all States. FMCSA Response. The proposed changes remain in the final rule with minor modifications to clarify that the L, Z, E, O, M and N codes are restrictions, not endorsements. These comments demonstrate the need for standardizing the codes: States are using many inconsistent codes and have not, in many cases, followed the existing codes assigned by AAMVA. It is essential to have the new standardized codes on the licenses so that law enforcement officials across State lines can determine whether drivers have proper qualifications. FMCSA will not require CDLs with old codes to be reissued; the new codes will be used when the license is next renewed or reissued. FMCSA recognizes that during the transition period, law enforcement officials may encounter multiple sets of endorsement and restriction codes. However, this is no different than what is currently happening when CDL holders cross State lines. In the long term, the rule will correct this problem and promote national uniformity. An Agency outreach campaign to coincide with implementation should alleviate many of the States' concerns about the transition to the new codes. FMCSA disagrees that standardizing restriction codes will be prohibitively expensive. This rule does not require States to add endorsements or restrictions to their database or license. It only requires them to standardize the letter codes associated with the endorsements or restrictions they currently use. Thus, in some cases, States will have to replace one letter with another on the CDL license and in their SDLA data code. However, this is primarily a computer programming change limited to reassigning letter codes and should not result in the need to redesign CDL documents significantly. While the States will be required to adopt three new restriction codes, the majority of the mandated restriction codes in this final rule are the existing standardized national restriction codes that AAMVA adopted many years ago. These standardized codes were created by AAMVA so States would have uniform codes if they needed to use them as part of their licensing program. For those States that currently enforce these restrictions, but chose to use non-standardized codes, there will be a short-term burden in converting to the standardized codes. In the long run, it will benefit the CDL program by having all States use standardized codes for national restrictions. b. Testing Drivers on Vehicles With Air Brakes, Automatic Transmissions, and Non-Fifth Wheel Combination Vehicles FMCSA proposed to amend the Federal restrictions at §§ 383.5, 383.93, 383.95, and 383.153 for applicants who use a vehicle in the skills test that is equipped with (1) an automatic transmission; (2) air over hydraulic brakes; or (3) a trailer with a non-fifth wheel (pintle hook) connection. All three restrictions would be assigned standardized restriction codes, along with a standardized code for the current air brake restriction. Comments. Florida and South Carolina support the proposal. Pennsylvania questioned whether current CDL holders who do not have the new restrictions or endorsements would be grandfathered. Idaho commented that the new restrictions are unnecessary, costly and burdensome on the driver and was concerned about there being enough room on the CDL for the increasing number of restrictions. Oregon supported the automatic transmission restriction but, with respect to the other new restrictions, believes that regulatory objectives would be better served by establishing standard restrictions for small Class A CMVs. A carrier asked whether it would have to bring several trucks to the tests to gain all of the needed endorsements. FMCSA Response. The proposed new standardized endorsements and restrictions remain unchanged in the final rule. A CDL applicant will be licensed with restrictions based on the type of vehicle and equipment he/she uses for the skills test. FMCSA believes that it is an important safety objective to require applicants to demonstrate their ability to operate the vehicles and equipment covered by this section prior to licensure. Beginning 3 years after the effective date of this final rule, current CLP and CDL holders who do not have the standardized endorsement and restriction codes, and applicants for a CLP or CDL, are to be issued CLPs and CDLs with the standardized codes upon initial issuance, renewal, upgrade or transfer. Current CDL holders will not be required to be retested to determine whether they need any of the new restrictions for no full air brakes, no manual transmission and no tractor-trailer. They are, in effect, grandfathered from this requirement. These new restrictions only apply to CDL applicants who take skills tests beginning 3 years after the effective date of this final rule (even if those applicants previously held a CDL before the new restrictions went into effect). c. Automatic Transmission Restriction FMCSA proposed amending §§ 383.95 and 383.153 to require a restriction on applicants who use a vehicle in the skills test that is equipped with an automatic transmission. Comments. Florida, Oregon and South Carolina support the proposal. CRST generally supports the entire standardized endorsement proposal. However, Idaho commented that the automatic transmission restriction was unnecessary, costly and burdensome and that employers are in the best position to determine a driver's proficiency on manual transmissions. Farris Brothers does not think the restriction is necessary. North Dakota found the proposed language confusing. FMCSA Response. To clarify how the automatic transmission restriction will be applied, the final rule includes a definition for “manual transmission” in § 383.5. This definition will clarify what constitutes a manual transmission and promote national uniformity in the application of this restriction. It will promote highway safety by only allowing qualified drivers to operate CMVs with manual transmissions. A CDL holder with the automatic transmission restriction is restricted from driving any class CMV with a manual transmission. d. Definition of Tank Vehicle FMCSA proposed to amend § 383.5 to set an aggregate rated capacity threshold of 1,000 or more gallons for all tanks (permanent and portable) before a driver would need a tank endorsement. Comments. Advocates strongly opposed this change. It commented that FMCSA did not adequately justify this change, indicating that it believed that this change would exempt CMV operators from the tank endorsement requirement when transporting certain hazardous materials of less than 1,000 gallons. Oregon supports the change for tank vehicles, but suggested changing the threshold to 500 gallons. CVSA supports the change for tank vehicles and the clarification that the tank capacity threshold for needing a tank vehicle endorsement should be the aggregate capacity of tanks being transported. FMCSA Response. While the proposed amendment setting a 1,000 gallon aggregate capacity threshold will remain in the final rule, there is also a need to retain a minimum individual rated tank capacity for the purpose of determining the aggregate capacity of the vehicle carrying multiple tanks. In the current definition of tank vehicle, reference is made to cargo tanks and portable tanks as defined in 49 CFR 171. Both of these types of tanks are defined as “bulk packaging” which is further defined in part 171 as having a capacity greater than 119 gallons. Therefore, only tanks being transported with a rated capacity greater than 119 gallons will be considered for the purpose of determining the aggregate capacity threshold for needing a tank vehicle endorsement, The requirement for an endorsement for tank vehicles designed to transport 1,000 gallons or more is separate from the hazardous materials requirements. This rule does not affect any pre-existing hazardous material restrictions that might apply. 14. Previous Driving Offenses by CLP Holders and CLP Applicants FMCSA proposed amending §§ 383.5; 383.51; 383.71; and 383.73 to subject a CLP holder and CLP applicant to the same disqualification requirements as a CDL holder and CDL applicant. Comments. Michigan, Georgia, Texas, Advocates, ATA, AMSA and a training school commented that they had no objection. Texas also suggested that the proposed rule add drug offenses and certain felonies committed by CDL holders in non-CMVs to the list of offenses for which the States must disqualify persons from operating CMVs, as well as impose a lifetime disqualification for persons convicted of an offense under 8 U.S.C. 1323 and 1324 related to the transportation of undocumented aliens. Although not opposed to the basic requirements of the proposed regulations, Tennessee requested clarification of several issues. Tennessee asked specifically if a person with disqualifying offenses in his/her history would be able to obtain a CLP, or if he/she would be required to serve out the disqualification prior to training on a CMV. Delaware stated that the Agency should not force States to take action on a driver before he/she has full CDL privileges and that a driver should be removed from CDLIS if he/she does not convert the CLP to a CDL. Oregon commented that full implementation will require statutory revision, administrative rule revision and numerous procedural revisions, and will place additional stress on limited programming resources that are already fully dedicated to projects to comply with current and projected Federal regulations. Oregon also questions whether CDLIS is capable of handling the CLP holder information. Idaho opposed not permitting CLP holders to train during the disqualification period. California commented that it would be difficult to impose disqualifications on CLP holders. California currently has no reliable method of determining whether a driver cited for offenses on a non-CDL is a CLP holder for purposes of disqualification. The State would have to undertake major programming changes to its citation and conviction procedures to accommodate the rule change. New York commented that it already disqualifies CLP holders for certain non-CMV violations, but that implementing the proposed rule would require legislative changes. CVTA opposes the rule change because various States treat moving violations involving a non-CDL license in different ways, and the rules for license suspensions vary. CVTA also commented that the rule would impose a retrospective evaluation of CLP applicants' records that is not consistent with the manner in which SDLAs handle licensing actions. CRST commented that States would not be willing to assume the additional responsibility of performing background checks. FMCSA Response. The proposed CLP disqualification provisions remain in the final rule. CLP holders and applicants, like CDL holders and applicants, are authorized to drive on public roads. FMCSA believes that this rule implements an important safety objective that justifies changes to existing State programs. FMCSA does not believe that CLP holders and applicants, who generally have less driving experience, should be subjected to lower standards than the generally more experienced CDL holders and applicants. As for the issue raised by Tennessee, the answer is that a person disqualified from operating either a non-CMV or a CMV at the time he/she applies for a CLP would be required to serve out that disqualification period before receiving a CLP. Because the CLP is a two-part license, the underlying non-CDL or CDL must be valid at the time the CLP is issued and remain valid in order for the CLP to be valid. With regard to Delaware's comment, a driver with an expired CLP that is not converted to a CDL can be removed from CDLIS if there are no convictions for a disqualifying offense under 49 CFR 383.51. If there are disqualifying convictions, the rules for retaining these convictions must be followed before removal of the driver from CDLIS. The purpose of this rule is simply to extend the pre-existing list of CDL disqualification offenses to CLP holders. Because the NPRM did not contemplate expanding the list of disqualifying offenses, such measures are beyond the scope of this rulemaking. 15. Motor Carrier Prohibitions FMCSA proposed amending § 383.37 and appendix B to part 385 to include a specific prohibition against motor carriers using drivers who do not have a current CLP or CDL or who do not have a CDL with the proper class or endorsements, or using a driver to operate a CMV in violation of a restriction on the driver's CDL. Comments. Georgia, Michigan, Advocates, CRST, NADA and a community college supported the proposal. AMSA, ATA and CR England opposed the assessment of an “acute violation” under the Safety Rating Process for violations of proposed § 383.37 unless the Agency takes into account the number of such violations as compared against the number of drivers in a fleet. Otherwise, larger carriers could be unfairly penalized on a proportional or violation-per-driver basis. CR England and CTA commented that the Agency should implement a program to notify a motor carrier when a license has been suspended, downgraded, or otherwise adjusted. FMCSA Response. The proposed changes remain in the final rule. Motor carriers of all sizes bear the same responsibility for ensuring that all drivers are qualified to operate CMVs. Even one unlicensed or disqualified driver on the roads can present a serious risk to safety. Carriers are in the best position to determine that their own drivers are properly licensed. Implementation of a central database for monitoring and notifying carriers of status changes to CDL holders is beyond the scope of this rulemaking. 16. Incorporate CLP-Related Regulatory Guidance Into Regulatory Text FMCSA proposed codifying regulatory guidance related to this rulemaking and eliminating regulatory guidance made obsolete by the changes in this rulemaking. This includes regulatory guidance under § 383.23 (CLP), questions 1, 2, and 4; part 383, Subparts G and H, all questions (knowledge and skills testing); and § 383.153, questions 1-7 (CLP and CDL documents). FMCSA proposed to amend §§ 383.25, 383.73, 383.77, 383.95, 383.113, 383.131, 383.133 and 383.153. Comments. Elgin CC supports the proposal. Michigan and Georgia support the proposal so long as the Agency gives opportunity for comment. Advocates complained that there was not adequate explanation of why certain interpretations were slated for either incorporation into the rule text or deletion. FMCSA Response. The regulatory guidance proposed to be eliminated as obsolete in the NPRM will be eliminated without change in the final rule. In the NPRM, the Agency proposed a number of rule changes and solicited public comment. The regulatory guidance that will be codified in the final rule was explained as part of the rule changes in the NPRM. When these changes are implemented, some previously issued interpretive statements will no longer be appropriate because (a) they will repeat what is newly incorporated in the regulatory text, or (b) the new rules will create changes to the CDL program that render the old guidance inaccurate. Thus, having already given notice and opportunity for comment on the substantive issues as a part of this rulemaking proceeding as well as identifying the interpretive statements that would be affected by the rule, the Agency does not believe that further notice or opportunity for comment on rescinding redundant or obsolete guidance is necessary. The Agency inadvertently omitted from the NPRM additional regulatory guidance that will be rendered redundant and obsolete by the final rule. That guidance includes the following interpretations: Question 11, interpreting § 383.73 and Questions 2 and 3, interpreting § 383.95. In the NPRM, the Agency proposed incorporating the substance of Question 11, interpreting § 383.73 into § 383.73(i), but inadvertently omitted it from the list of interpretations that would be rendered redundant by this rule. In addition, the Agency proposed changes to § 383.95 that render questions 2 and 3 obsolete, but inadvertently omitted that guidance from the list of interpretations that would be eliminated as obsolete. To avoid any confusion, the Agency will eliminate these interpretations in addition to those identified in the NPRM. 17. Incorporate Safe Port Act Provisions In response to the requirements of the SAFE Port Act, FMCSA proposed to amend §§ 383.73 and 383.75, and to add §§ 384.227, 384.228, and 384.229. a. CDLs Obtained Through Fraud FMCSA proposed in § 383.73(k) that States be required to cancel or revoke a CDL if the holder has been convicted of fraud related to the CDL application or testing process. In addition, where States receive credible information that a CLP or CDL holder is suspected, but not convicted, of fraud related to the issuance of his/her CLP or CDL, the State must require the driver to be re-tested within 30 days. Comments. Oregon commented that the term “suspend” is more appropriate than “cancel or revoke.” California commented that the term “cancellation” was not sufficiently punitive where fraud is suspected. California also commented that each State should have the flexibility to investigate suspected fraud according to the circumstances and that the 30-day re-testing time frame was overly restrictive. Illinois requested a definition of “fraud,” “convicted” and “credible information.” Michigan requested that the rule be revised so that States must act within 30 days of notification of a conviction of fraud. FMCSA Response. In the final rule, FMCSA will remove the terms “cancel” and “revoke” and replace them with “disqualify.” This change is consistent with other parts of the rule: part 383 defines “disqualification” to include, among other things, the suspension, revocation or cancellation of a CLP or CDL. FMCSA believes that this change will give States the flexibility to manage their programs within the parameters of their existing rules. In addition, instead of requiring that States re-test drivers suspected of fraud within 30 days, the final rule will require the CLP or CDL holder, within 30 days of being notified to re-test, to make an appointment for and take the test at the next available appointment or testing time. This will give States as well as drivers more flexibility to schedule re-testing. New § 383.73(k)(1) requires States to “have policies in effect which result * * * in the disqualification of the CLP or CDL of a person who has been convicted of fraud * * *” The new rules require States to develop policies, but do not specify that the disqualification take place within 30 days of the conviction. Finally, FMCSA declines to create a special definition of “fraud,” “convicted” or “credible information.” b. Computer System Controls—Supervisor Involvement FMCSA proposed to amend § 383.73(m) to require that only supervisory level personnel may continue the CDL or CLP issuance process when driver record checks return suspect results. Comments. Idaho commented that this requirement is a burden on management staff, and that there is no guarantee that fraud or errors would be eliminated. Oregon commented that implementation would present significant programming challenges and costs. Oregon also commented that supervisory personnel may not always be available and that this proposal exceeds the intent of the OIG's 2006 Report. Wisconsin commented that, under its current system, its non-supervisory employees are well-trained on how to handle suspect results. Nebraska commented that it has fifteen one-person exam offices and 81 multiple-person offices that do not have full-time supervisory personnel on site full-time. Michigan currently has a two-tiered process that sends all suspect results to a separate group of subject matter experts located in a separate facility, but noted that they are not, technically, supervisory staff. Although Michigan supports the concept of the proposed amendment, it believes that its current system achieves the intended objective. FMCSA Response. In the final rule, FMCSA renumbers this section to be § 383.73(n)(2). In addition, in response to comments, FMCSA changes this section to require each State to demonstrate that it has a plan to prevent and detect fraud when a driver record check returns suspect results. FMCSA takes fraud prevention and detection seriously and the intent behind the proposed change was for all States to improve their standards for fraud prevention and detection. However, FMCSA recognizes that many States have developed anti-fraud measures tailored to their own systems and that they may combat fraud as well as or better than the proposed change. This change allows States more flexibility in implementing improved anti-fraud measures. c. Background Checks FMCSA proposed adding new § 384.228 to require background checks on all State and third party CDL examiners. Comments. Florida commented that this would increase costs without corresponding benefit. Oregon questioned whether the proposed rule applied to both skills and knowledge test examiners. If it applies to both, Oregon commented, this would increase costs. Wisconsin commented that it “fails” examiners with felony convictions only within the past four years, not ten years as proposed in the rule. Delaware opposes background checks of staff members with long, credible histories of government service and requested a grandfathering provision. Missouri questioned whether the proposal requires a nationwide or a State-wide background check. For the former, Missouri commented that States may vary in the way they define felony and fraudulent activity convictions. Missouri further requested special consideration for employees who report their convictions in a timely manner. Alabama requested information on what constitutes failure of a background check. Illinois questioned whether the background check is required to be a fingerprint- or a name-based check and commented that a fingerprint-based check should be considered sufficient. Minnesota currently conducts background checks at the time of hiring and requested that the costs of administering the rule be evaluated. Michigan requested an exemption if the state has a criminal history monitoring system that provides the regulatory agencies with the desired information on a more timely basis. FMCSA Response. The proposed background check requirement will remain in the final rule. This requirement applies to all test examiners, including both skills and knowledge test examiners. It also leaves the criteria and methods for the criminal background check to the States' discretion, so long as they include the minimum criteria set forth at § 384.228(j)(2). However, as § 383.228(j) clearly contemplates decertifying examiners who fail the test, it does not create any exemption for current examiners. Similarly, the rule prohibits certification (and requires decertification) of examiners with any conviction involving fraudulent activities or any felony conviction within the past ten years. Since no exception is made for convictions received out-of-State, States are required to conduct nationwide criminal background checks. Finally, this rule sets minimum standards for background checks. States are free to implement systems that provide criminal background checks on a continuing or more frequent basis than required under this rule. As stated above, FMCSA takes fraud prevention and detection seriously. At approximately $60 per background check, FMCSA acknowledges that these changes may impose additional financial requirements on the States in the short term. However, these changes are important to the implementation of uniform national standards proposed in this rulemaking docket. d. Training Requirements for Knowledge and Skills Examiners FMCSA proposed adding new § 384.228 to require mandatory training standards for all CDL knowledge and skills test examiners. Comments. Oregon strongly opposes requiring knowledge examiners to undergo the proposed training standards. Missouri commented that knowledge and skills examiners require different training and requested federal funding to cover costs. Oregon, Missouri and IUOE noted that proposed § 384.228(d) requires refresher training every four years, but proposed § 384.228(h)(1) appears to require it annually. IUOE also commented that the training standards could cause significant delays in the administration of CDL examinations. Florida commented that refresher training every four years would increase both the costs and the complexity of administering the CDL program without a corresponding benefit. California supports strengthening the certification and training requirements, but feels the proposed rules are overly prescriptive. New York suggested requiring refresher training every two years instead of annually. Alabama asked the Agency to clarify how many hours of training are required. Michigan generally opposes the requirement and commented that States should be free to set their own standards. B-J School Buses opposes the requirement as unnecessary. FMCSA Response. In the final rule, FMCSA establishes separate training standards for CDL knowledge test examiners and skills test examiners. Examiners that only administer standardized knowledge tests do not need extensive CDL skills test training. The previously proposed paragraphs (b)(1), (2), and (4) through (6) of § 384.228, have been redesignated as § 384.228(d), which now applies to skills test examiners. The previously proposed paragraphs (b)(1) through (3) of § 384.228, have been redesignated as § 384.228(c), which now applies to examiners who administer the knowledge test only. This change will allow for a more efficient allocation of State resources. In addition, FMCSA has corrected the discrepancy between proposed §§ 384.228(d) and 384.228(h)(1) by amending § 383.228(f) to reflect that refresher training is required once every four years. A number of changes in this rule are intended to promote national uniformity. In order to achieve that goal, all States must achieve consistent standards. Ensuring the continued qualifications of knowledge and skills test examiners is a critical part of achieving uniform national standards. Although certain States may experience some additional burdens in the short-term, FMCSA's goal is to improve the quality of testing standards over the long-term. e. Minimum Number of Tests Conducted (Minimum Skills Tests for Testers and Examiners) FMCSA proposed adding new § 384.228 to require that each company (tester) with a contract to perform third party testing would be decertified if it did not conduct at least 50 skills test examinations per calendar year and that each individual examiner's authority would be revoked if he/she did not conduct at least 10 skills test examinations per year. Comments. Michigan agrees that testers and examiners should be required to conduct a minimum number of tests per year, but thinks that each State should be able to set its own standards. Ten States commented that the proposed requirement would be very difficult to achieve, potentially putting third party testers out of business and increasing the burden on State testers. Most of the 10 States recognize the need to maintain skills, but do not support these minimum requirements. Oregon, Oklahoma and Minnesota objected to annual examination minimums for testers, but do not object to minimums for individual examiners. Wisconsin comments that its examiners are currently required to perform at least 12 tests per year, but that many testers cannot meet the 50-test minimum. South Carolina objected to the 10-test minimum because it has an annual evaluation system for examiners to make sure examiners maintain skills. Nebraska commented that a significant number of its testers and examiners would not be able to meet the minimums. Florida prefers its own system which requires a minimum of one test for testers and six for examiners. California objected to the focus on quantitative as opposed to qualitative qualifications. Missouri, three school districts, one school bus company and NTSA were concerned that the proposed rule would affect school districts or school bus contractors that test only their own employees. IUOE complained that the proposed rule does not take into account the diversity of circumstances across regions and industries. FMCSA Response. After considering these comments, FMCSA has made the following changes to the final rule: (a) Examiners who do not meet the 10-test minimum must either take refresher training or have a State examiner ride along to observe the third party examiner administer a skills test in order to maintain certification; and (b) the 50 tests per year minimum for testers is eliminated. The final rule will thus focus on the examiners' skills, which is the intent of the rule, and will not penalize small third party testers. It also provides an alternative for small, rural or in-house examiners who conduct fewer than 10 tests per year. f. Third Party Testing (Annual Inspection; Advance Scheduling of Tests; Separation of Training and Testing Functions) FMCSA proposed amending § 383.75 to require States to conduct an annual on-site inspection of each third party test site and to require that each third party tester submit a weekly schedule of skills test appointments no later than the last business day of the prior week. Comments. Schneider generally supports the proposed rule. With respect to the annual inspection requirement, Oregon and Michigan objected to an annual inspection of every site at which third party testers administer skills tests, saying that this would be burdensome. Five States commented on the submission of weekly schedules. All had concerns over the additional administrative and logistical burden that this requirement would create. Oregon, California, two carriers, two associations and an advocacy group all objected to the requirement that third party testers submit their schedules to the State a week in advance, on the grounds that it does not provide sufficient flexibility for scheduling. Minnesota commented that the proposed requirement is not compatible with the existing system, would interfere with its ability to plan its testing schedule efficiently and would require administrative rules for implementation. Nebraska commented that many drivers cannot schedule their tests a week in advance and that the proposed rule would place a burden on state examiners, shifting applicants away from third party testers. Florida complained that it would increase its administrative burden unnecessarily because it already has an effective fraud detection program and does not need any advance notice of test scheduling. Oregon and OOIDA recommended prohibiting third party testers (for example, commercial driver training schools) from testing CDL applicants trained by that tester. FMCSA Response. In consideration of these comments, FMCSA has made the following changes to the final rule: Each third party tester (not testing site) is required to be inspected once every two years. Annual inspection of every testing site would be impractical and overly burdensome because many third party testers administer skills tests at a variety of different sites. Also, some third party testers may not have tests scheduled regularly throughout the year, making it difficult to schedule annual inspections. Each third party tester must submit a schedule of CDL skills test appointments no later than two business days in advance of administering the test. Many testing sites do not have their weekly schedules fixed by the end of the prior week, so a two-business-day notification will give third party testers more flexibility in scheduling tests. Third party skills examiners are prohibited from administering skills tests to applicants they skill-train. A conflict of interest may arise when a trainer at a commercial training school is also a State-certified skills test examiner. In order to reduce both the opportunity for fraud and unintended bias in skills testing, the rule prohibits third party skills testers from administering skills tests to applicants their training school skill-trains. However, FMCSA has provided an exception to this prohibition when the nearest alternative third party tester or State skills testing facility is over 50 miles from the training school. g. Third Party Bond Requirements FMCSA proposed to amend § 383.75 to require that third party testers maintain bonds in an amount sufficient to pay for re-testing drivers in the event the examiners are involved in fraudulent activities related to skills testing. Comments. South Carolina commented that it evaluates its third party testers extensively, and that the additional bond requirement may drive participants from the program. Florida currently has a bond requirement that covers reimbursement to the State and to individual drivers and is concerned that the language of the rule restricts it from reimbursing individual drivers. California recommended that the regulations provide an exemption from the bond requirement for governmental or quasi-government agencies such as public utilities and transit authorities that participate in a State's third party testing program. Illinois commented that the bond requirement would be burdensome in the current economic environment and may cause a reduction in the number of third parties that participate in its program. IUOE opposes the requirement and commented that FMCSA has not provided any evidence that fraud is a problem in third party testing. FMCSA Response. The bond requirement remains as proposed in the final rule. FMCSA is aware of a number of third party testers whose examiners have been engaging in fraudulent activities. As a result, a number of CDL holders were required to be re-tested, causing States and individuals to incur additional expenses. The bond requirement will provide States and individuals an opportunity to recoup these expenses. This requirement does not prohibit States from providing for recovery of costs for individual drivers. Finally, if a tester is properly characterized as a third party examiner, as opposed to a State examiner, this requirement applies nevertheless. 18. Other Issues Related to Fraud Prevention a. Black and White Photograph FMCSA proposed amending § 383.153 and adding new § 384.227 to require that the photograph or digitized image that is placed on the CDL and now recorded as a part of the driver history continue to be captured in color. Comments. Virginia wants to use black and white laser engraved technology and claims it is equally as secure or more secure than color photographs or digital images. FMCSA Response. The final rule permits black and white laser engraved images in addition to color photographs and digital images. Today's black and white laser engraved technology is just as secure against alteration as color photography or digital images, and perhaps more secure. Further, in the REAL ID rule published on January 29, 2008, DHS approved black and white laser engraved technology as an alternative to color photographs. FMCSA has already acknowledged the acceptability of black and white laser engraved images by granting Virginia a two-year exemption from the prohibition on using black and white laser engraved images on March 9, 2009, and by permitting it to use such photos in lieu of color photographs on CDLs. b. Check Photograph on File FMCSA proposed adding new § 384.227 to require that States record the digital color image or photograph that is captured as a part of the application process and include it as a part of the driver history. FMCSA also proposed that States be required to check the photograph or digital image they must maintain on file for every CDL or CLP holder against the applicant in person whenever the CDL or CLP is renewed, upgraded or transferred and when a duplicate is issued. Comments. Missouri commented that retaining a digital photo of every CLP and CDL applicant could result in increased costs. California objected to comparing the applicant's photo to the person because it would require the applicant to appear in person at the field office and would eliminate the option of processing a CDL renewal application by mail or Internet. FMCSA Response. FMCSA has decided that the final rule will require States to check the photograph on file against the applicant in person only when the applicant appears in person. This will allow for processing by mail, and will lessen the burden of compliance on the States. The final rule will include the requirement that a digital color image or photograph or black and white laser engraved photograph be kept on file. FMCSA believes that this is an important measure to combat fraud. However, in accordance with § 383.153(b)(1) of the final rule, which prohibits States from placing a photo or other image on the CLP, States will not be required to capture a photograph, digital image or other representation of the applicant during the CLP application process. Instead, States are required to check the photograph or digital image on record against the CLP applicant when he/she appears in person. To the extent that there is no photograph or digital image on record to make sure the person on the license and the applicant are the same, States are to check the photograph or image on the base-license against the CLP applicant when he/she appears in person. c. Two Staff Members Verify Test Scores and Other Documents FMCSA proposed amending § 383.73(m) to require that two DMV staff members verify CLP and CDL applicants' test scores and completed application forms and documents to prove legal presence. Comments. Delaware, Nebraska, North Dakota, Tennessee, Texas, Washington, Wisconsin and South Dakota all made similar comments complaining that the proposed change would be time-consuming and expensive and would disrupt current licensing systems in remote areas, resulting in closures of SDLA offices or other inconveniences for States and drivers. Texas also commented that FMCSA should give States the discretion to conduct documentation reviews either before or after issuance of the license. Michigan complained that the proposal was vague and unmanageable, without further explanation. Farris Brothers expressed concern about the impact of the proposed rule on rural communities. FMCSA Response. In the final rule the FMCSA has provided an exception for DMV offices with only one staff member on duty. In such cases the documents must be verified by a supervisor before issuance or, when the supervisor is not available, copies must be made of the documents used to prove legal presence and domicile for a supervisor to verify along with the completed application form within one business day of issuance of a CLP or CDL. This change will provide protection against the risk of applicants presenting fraudulent documents, without affecting States' ability to maintain one-person satellite DMV offices to serve applicants in remote locations. This provision may involve some costs to States by increasing the amount of time and resources required to process CDLs. The requirement does not mean that two SDLA employees must each go through the entire CDL issuance process for a particular driver-applicant. For example, one person might review the legal presence and other documentation the driver presents, while a second SDLA employee would conduct the required driving record check for driving violations, take the applicant's photograph and issue the license. This splitting of driver processing may take additional time, but it will not double either the time or effort needed to issue a CDL. 19. Miscellaneous Comments a. Applicability to Agricultural Sector Comments. Several commenters raised questions about the rule's applicability to the agricultural segment of the industry. Five agricultural entities asked for an agricultural exemption from the rule. FMCSA Response. Many agricultural operations are exempt from the current CDL regulations, as well as the proposed rule. This rule does not affect any of these current agricultural exemptions. The request by farm suppliers for exemption from all CDL rules is beyond the scope of the NPRM. b. Relation to REAL ID Comments. New York commented that it has not decided whether to implement REAL ID and objects to any requirement that would force the State to do so through its CDL program. California, Pennsylvania and Missouri commented that if FMCSA adopted REAL ID as a standard for the CDL program, it would essentially convert a voluntary Federal program into a mandatory one. Texas commented that if FMCSA ties its CDL rules to REAL ID, States that decide not to adopt REAL ID will refuse to comply with CDL rules. Conversely, Michigan encourages FMCSA to link the two rules. FMCSA Response. FMCSA expressly declines to require States to adopt REAL ID in whole or in part. However, FMCSA has taken care not to implement any rules that conflict with REAL ID. Where FMCSA has implemented certain elements of the CDL program that contain provisions similar or identical to those of REAL ID, it does so on an independent basis driven [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-10510. Public record. Not legal advice.