[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Rules and Regulations]
[Pages 26854-26897]
[FR Doc No: 2011-10510]

Vol. 76

Monday,

No. 89

May 9, 2011

Part III

Department of Transportation

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Federal Motor Carrier Safety Administration

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49 CFR Parts 383, 384 and 385

Commercial Driver's License Testing and Commercial Learner's Permit
Standards; Final Rule

Federal Register / Vol. 76 , No. 89 / Monday, May 9, 2011 / Rules and
Regulations

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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.

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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<EMAIL_ADDRESS>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 Sec.  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.
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    \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.
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    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.
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    \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.
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    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 Sec.
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
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        Name of commenter                     Abbreviated name
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Advocates for Highway and Auto     Advocates.
 Safety.
Alabama Department of Public       Alabama.
 Safety.
American Moving and Storage        AMSA.
 Association.
Arkansas Department of Finance     Arkansas.
 and Administration.
U.S. Department of the Army......  Army.
American Trucking Associations...  ATA.
B-J School Buses, Inc............  B-J School Bus.
California Department of Motor     California.
 Vehicles.
C.R. England, Inc................  CR England.
CRST Van Expedited, Inc..........  CRST.
California Trucking Association..  CTA.
Commercial Vehicle Training        CVTA.
 Association, Inc.
Delaware Department of             Delaware.
 Transportation, DMV.
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     Florida.
 and Motor Vehicles.
Georgia Department of Driver       Georgia.
 Services.
Idaho Department of Motor          Idaho.
 Vehicles.
Illinois Fertilizer and Chemical   IFCA.
 Assoc.
Driver Services Dept--Illinois     Illinois.
 Office of the Secretary of State.
Indiana Association of Rural       Indiana Rural Electrics.
 Electric Cooperatives.
International Union of Operating   IUOE.
 Engineers National Training Fund.
Joint School District 2,  Joint School District.
 Idaho 2.
John Wood Community College......  Wood CC.
Louisiana Office of Motor          Louisiana.
 Vehicles.
Michigan Department of State.....  Michigan.
Minnesota Department of Public     Minnesota.
 Safety.
Missouri Department of Revenue &   Missouri.
 Missouri State Highway Patrol;
 Missouri Department of
 Transportation.
National Automobile Dealers        NADA.
 Association.
Nebraska Agri-Business             NE Agri-Business.
 Association.
Nebraska Department of Motor       Nebraska.
 Vehicles.
New York DMV Motor Carrier Bureau  New York.
North Dakota Department of         North Dakota.
 Transportation.
National School Transportation     NSTA.
 Association.
Ohio State Highway Patrol........  Ohio.
Oklahoma Department of Public      Oklahoma.
 Safety.
Owner-Operator Independent         OOIDA.
 Drivers Association, Inc.
Oregon DMV.......................  Oregon.
Pennsylvania Department of         Pennsylvania.
 Transportation.
Schneider National, Inc..........  Schneider.
South Carolina DMV...............  South Carolina.
South Dakota Driver Licensing      South Dakota.
 Program.
Truckload Carriers Association...  TCA.
Tennessee Department of Safety...  Tennessee.
Texas Dept of Public Safety......  Texas.
Commonwealth of Virginia DMV.....  Virginia.
Washington State Dept of           Washington.
 Licensing.
Wisconsin Dept of Transportation.  Wisconsin.
Winkle Bus Company...............  Winkle.
Wyoming Joint Transportation,      Wyoming.
 Highways & Military Affairs
 Committee.
------------------------------------------------------------------------

    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 Sec.  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 Sec. Sec.  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 Sec.  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 Sec. Sec.  383.71, 383.73 and 384.211 and
adding Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  383.25 and amending Sec. Sec.
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 Sec.  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 Sec.  383.25 and amending Sec. Sec.
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 Sec. Sec.  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 Sec.  383.153 and adding new Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  383.25 and amending Sec.  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 Sec.  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 Sec.  391.11(b)(2) is
currently under Agency review. If the Agency makes changes to Sec.
391.11(b)(2), it may also propose corresponding changes to Sec.
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 Sec.  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 Sec.  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 Sec.  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 Sec.  383.77 (Substitution of Experience for Skills
Tests)
    Modifications to part 383, subparts G and H, were proposed to
eliminate Sec.  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 Sec.  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 Sec.
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 Sec.  384.229(b), Sec.  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 Sec.  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 Sec. Sec.
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 Sec. Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  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 Sec.  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
Sec.  383.23 (CLP), questions 1, 2, and 4; part 383, Subparts G and H,
all questions (knowledge and skills testing); and Sec.  383.153,
questions 1-7 (CLP and CDL documents). FMCSA proposed to amend
Sec. Sec.  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 Sec.  383.73 and Questions 2 and 3,
interpreting Sec.  383.95. In the NPRM, the Agency proposed
incorporating the substance of Question 11, interpreting Sec.  383.73
into Sec.  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 Sec.  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 Sec. Sec.  383.73 and 383.75, and to add Sec. Sec.
384.227, 384.228, and 384.229.
a. CDLs Obtained Through Fraud
    FMCSA proposed in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  384.228(j)(2). However, as Sec.  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 Sec.  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 Sec.  384.228(d) requires refresher training every four years,
but proposed Sec.  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 Sec.  384.228, have been
redesignated as Sec.  384.228(d), which now applies to skills test
examiners. The previously proposed paragraphs (b)(1) through (3) of
Sec.  384.228, have been redesignated as Sec.  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
Sec. Sec.  384.228(d) and 384.228(h)(1) by amending Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  383.153 and adding new Sec.  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 Sec.  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 Sec.  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 Sec.  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 by safety considerations, congressional mandate, OIG
recommendations and general principles of fraud prevention.
c. Domicile
    Comments. A number of commenters objected to FMCSA's use of the
State of domicile as the only jurisdiction for licensure. Many
suggested amending this requirement to permit licensure in the State of
residency.
    FMCSA Response. Congress mandated that the State of licensure for
CDLs be the State of domicile. As this is a statutory requirement,
FMCSA does not have the authority to make the requested changes.
d. State Compliance Issues
    Comments. ATA commented that States may not have the resources to
implement the new requirements of this rule in addition to others FMCSA
has indicated it will promulgate such as the Medical Certification as
Part of the CDL and Entry Level Driver Training. ATA opposes
implementation of this rule until FMCSA can demonstrate that the States
are consistently showing substantial compliance with the pre-existing
CDL program rules. Rather than adoption of new rules, ATA suggests that
the Agency should focus on enforcement actions against non-compliant
States under existing CDL rules.
    FMCSA Response. FMCSA disagrees with ATA's position. The creation
of a uniform, national CDL program is an important safety objective
that is designed to facilitate improved safety performance and reduce
instances of fraud. Many of these program features are mandated by
Congress, recommended by the OIG or both. FMCSA believes that
implementation of these rules in conjunction with improved enforcement
activities will greatly enhance the effectiveness of the CDL program.

IV. Changes to the Proposed Rule in This Final Rule

    This final rule makes the following changes to the NPRM, consistent
with the discussion of public comments in this preamble, and as further
explained below.

Changes To Conform Rule With Medical Certification Final Rule

    The NPRM for this final rule was published on April 9, 2008 (73 FR
18272). On December 1, 2008, FMCSA published a final rule to
incorporate certain medical certification requirements into the CDL
process (73 FR 73096). The medical certification final rule made
changes to many of the CFR sections that are affected by this final
rule. Therefore the rule language that was proposed has been updated to
include those amendments made on December 1, 2008, so that today's
amendments make changes to the current rule language. The sections that
were updated for this purpose are Sec. Sec.  383.71, 383.73, 384.206,
384.225, 384.226, and 384.301.

Terminology Changes Throughout

    The final rule removes the terms ``suspension,'' ``cancellation,''
and ``revocation,'' in reference to CDLs and CLPs, and replaces them
with the term ``disqualification.'' See ``CDLs obtained through fraud''
in the discussion of comments above for an explanation of this change.
    The final rule replaces ``nonresident'' CDLs and CLPs with ``Non-
domiciled'' CDLs and CLPs in accordance with the definition change at
Sec.  383.5. See ``Nonresident CDL'' in the discussion of comments
above for an explanation of this change.
    The final rule abbreviates ``commercial driver's license'' with CDL
and ``commercial learner's permit'' with CLP where appropriate.

Part 383--Commercial Driver's License Standards; Requirements and
Penalties

    Section 383.5. The final rule changes the proposed rule by adding a