[Federal Register: April 9, 2008 (Volume 73, Number 69)]
[Proposed Rules]
[Page 19281-19317]
[DOCID:fr09ap08-16]

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Part II

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; Proposed Rule

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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: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
proposes to revise the commercial driver's license (CDL) knowledge and
skills testing standards, and to require new Federal minimum standards
for States to issue commercial learner's permits (CLPs). FMCSA also
proposes that a CLP holder meet virtually the same requirements as
those for a CDL holder. This means that a driver holding a CLP would be
subject to the same driver disqualification offenses as apply to a CDL
holder. This NPRM responds to 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). The purpose
of this proposal is to enhance safety by ensuring that only qualified
drivers are allowed to operate commercial motor vehicles on our
nation's highways.

DATES: Please submit comments regarding this NPRM by June 9, 2008.

ADDRESSES: Please submit comments by only one of the following
methods--Internet, facsimile, regular mail, or hand-deliver. Please do
not submit the same comments multiple times or by more than one method.
The Federal eRulemaking portal is the preferred method for submitting
comments, and we urge you to use it.
     Federal eRulemaking Portal: Search the Federal Docket
Management System (FDMS) Web site at http://www.regulations.gov. In the
Comment or Submission section, type Docket ID Number ``FMCSA-2007-
27659'', select ``Go'', and then click on ``Send a Comment or
Submission.'' You will receive a tracking number when you submit a
comment.
     Mail, Courier, or Hand-Deliver: U.S. Department of
Transportation, Docket Operations (M-30), West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Office
hours are between 9 a.m. and 5 p.m., ET, Monday through Friday, except
Federal holidays.
     Telefax:<PHONE_NUMBER>.
     Docket: To read all comments and background material in
the docket, go to http://www.regulations.gov and type ``FMCSA-2007-
27659''.
    Privacy Act: Regardless of the method used for submitting comments,
all comments will be posted without change to the Federal Docket
Management System (FDMS) at http://www.regulations.gov. Anyone can
search the electronic form of all our dockets in FDMS, by the name of
the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
The DOT's complete Privacy Act Statement was published in the Federal
Register on April 11, 2000 (65 FR 19476), and can be viewed at the URL
http://docketsinfo.dot.gov.

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: This NPRM is organized as follows:

I. Legal Basis for the Rulemaking
II. Background
    A. Summary of This NPRM
    B. History
III. General Discussion of the Issues and Proposals
    1. Strengthen Legal Presence Requirement
    2. Social Security Number Verification Before Issuing CLP or CDL
    3. Surrender of CLP, CDL, and Non-CDL Documents
    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. Recording the CLP in CDLIS
    7. Maximum Initial Validity and Renewal Periods for CLP and CDL
    a. Initial Validity and Renewal Periods for 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
    10. Limit Endorsements on CLP to Passenger (P) Only
    11. Methods of Administering CDL Tests
    12. Update Federal Knowledge and Skills Test Standards
    13. New Standardized Endorsements and Restriction Codes
    14. Previous Driving Offenses by CLP Holders and CLP Applicants
    a. Holders of a CLP
    b. Applicants for a CLP
    15. Motor Carrier Prohibitions
    16. Incorporate CLP-Related Regulatory Guidance Into Regulatory
Text
    17. Incorporate SAFE Port Act Provisions
IV. Section-by-Section Discussion of the Proposals
    A. Proposed Changes to Part 383
    1. Section 383.5, Definitions
    2. Section 383.9, Matter Incorporated by Reference
    3. Section 383.23, Commercial Driver's License
    4. Section 383.25, Commercial Learner's Permit
    5. Section 383.37, Employer's Responsibilities
    6. Section 383.51, Disqualification of Drivers
    7. Section 383.71, Driver Application Procedures
    8. Section 383.72, Implied Consent to Alcohol Testing
    9. Section 383.73, State Procedures
    10. Section 383.75, Third Party Testing
    11. Section 383.77, Substitute for Driving Skills Test
    12. Section 383.79, Skills Testing of Out-of-State Students
    13. Section 383.93, Endorsements
    14. Section 383.95, Air Brake Restrictions
    15. Section 383.110, General Requirement
    16. Section 383.111, Required Knowledge
    17. Section 383.113, Required Skills
    18. Sections 383.115, Requirements for Double/Triple Trailers
Endorsement, 383.117, Requirements for Passenger Endorsement,
383.119, Requirements for Tank Vehicle Endorsement, 383.121,
Requirements for Hazardous Materials Endorsement, and 383.123,
Requirements for a School Bus Endorsement
    19. Appendix to Subpart G
    20. Section 383.131, Test Manuals
    21. Section 383.133, Test Methods
    22. Section 383.135, Passing knowledge and Skills Tests
    23. Subpart J, Commercial Driver's License Document
    24. Section 383.155, Tamperproofing Requirements
    B. Proposed Changes to Part 384
    1. Sections 384.105, Definitions; 384.204, CDL Issuance and
Information; 384.205, CDLIS Information; 384.207, Notification of
Licensing; 384.208, Notification of Disqualification; 384.209,
Notification of Traffic Violations; 384.210, Limitations on
Licensing; 384.212, Domicile Requirement; Section 384.214,
Reciprocity; 384.220, Problem Driver Pointer System Information;
384.225, Record of Violation; 384.226, Prohibition on Masking
Convictions; 384.231, Satisfaction of State Disqualification
Requirement; and 384.405, Decertification of State CDL Program
    2. Section 384.206, State Record Checks
    3. Section 384.211, Surrender of Old Licenses

    4. Section 384.217, Drug Offenses
    5. Section 384.227, Record of Digital Image or Photograph
    6. Section 384.228, Examiner Training and Record Checks
    7. Section 384.229, Skills Test Examiner Auditing and Monitoring
    8. Section 384.301, Substantial Compliance--General Requirements
    C. Proposed Changes to Part 385
V. Regulatory Analyses and Notices

I. Legal Basis for the Rulemaking

    This rulemaking 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 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 such
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 NPRM is proposing a
Federal requirement for a commercial learner's permit (CLP) as a pre-
condition for issuing a CDL and proposing various other changes to
enhance the CDL program. A summary of the proposed changes organized by
section number appears below in the Section-by-Section Discussion of
the Proposals.
    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 NPRM, 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 part 383 proposed in this rule would help to ensure that drivers who
operate CMVs are legally 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 NPRM, 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 4122 of SAFETEA-LU required the Department of
Transportation (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 the data on each CLP holder
must be added to the driver's record in the Commercial Driver's License
Information System (CDLIS).\1\ This NPRM includes each of those
requirements, as explained later in this preamble.
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    \1\ CDLIS is an information system to exchange 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 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 in a report issued by the
OIG on February 7, 2006 [``Oversight of the Commercial Driver's License
Program''] dealing with 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 regulatory proposal incorporates
all of the OIG's recommendations which are discussed in more detail
later in the preamble. 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
proposed rule discusses those issues later in the preamble and more
comprehensively in a separate document filed in the docket.

II. Background

A. Summary of This NPRM

    The Notice of Proposed Rulemaking (NPRM) proposes 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, would be required before issuance of the CLP.
The NPRM would incorporate by reference the latest American Association
of Motor Vehicle Administrators' (AAMVA) Model Test package for
knowledge and skill standards. It would include a prohibition on use of
foreign language interpreters in the administration of the knowledge
and skills tests, to reduce the potential for fraud.
(2) Issuance of and Standards for CLPs and CDLs
    The NPRM would specifically require that each applicant obtain a
CLP and hold it for a minimum of 30 days before applying for a CDL. It
would establish a minimum age of 18 for issuance of a CLP. The CLP
would have to be a separate document from the CDL or non-commercial
driver's license (non-

CDL \2\ ), would have to be tamperproof to the extent possible, and
would have to include the same information as the CDL. The only
endorsement allowed on the CLP would be a restricted passenger (P)
endorsement. Each State would be 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 to a driver, the issuing State would be
required to perform a check of the driver's previous driving record
using both CDLIS and the Problem Driver Pointer System (PDPS) to ensure
the driver is not subject to the sanctions of Sec.  383.51, based on
previous motor vehicle violations. Discovery of such sanctions would
result in the State's refusal to issue a CLP to the driver.
    The NPRM would strengthen the legal presence requirements and
increase documentation required for CLP and CDL applicants to
demonstrate their legal presence in the United States, as discussed
under section III.1, below. For example, State driver's license
agencies would be required to verify the applicant's Social Security
Number with the Social Security Administration (SSA). The NPRM would
also address applicants who wish to attend a driver training school in
a State other than the applicant's State of domicile. States would be
required to recognize CLPs issued by other States for training
purposes. The NPRM would limit the initial and renewal periods for both
CLPs and CDLs. It would clarify under what circumstances an applicant
must surrender the CLP, CDL, or non-CDL. It would also require all
States to use standardized endorsement and restriction codes on CDLs.
    Many of the program areas and issues dealt with in this NPRM are
also addressed in the Department of Homeland Security's (DHS) 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). Although FMCSA and DHS have coordinated efforts to write
regulations that neither overlap nor conflict, the statutes underlying
these two rules serve different purposes and apply to distinct kinds of
licenses and driver populations. FMCSA welcomes suggestions for
clarifying both the commonalities between this rule and the REAL ID
rule and the differences between them. For example, we recognize that
certain REAL ID requirements exceed those proposed in this rule and
that a State in compliance with the former would automatically comply
with the latter. In this situation, one alternative would be to adopt
the REAL ID requirements, either verbatim or by reference, into the
FMCSRs.
    FMCSA recognizes that further harmonization with the REAL ID rule
may be needed before adopting a final rule. We welcome all suggestions
consistent with the requirements of the CDL program which would help us
achieve that goal. We are especially interested in comments from the
States, which have the primary responsibility for complying with the
FMCSA and DHS requirements and the greatest expertise in managing
licensing programs. Their views on the possibility of adopting the
language of the REAL ID rule for various requirements in this
regulation would be valuable.
(3) Measures for Prevention of Fraud
    The NPRM would include proposed requirements intended to improve
the ability of States to detect and prevent fraudulent testing and
licensing activity in the CDL program. These measures would include the
following:
    [cir] Requiring verification of social security numbers.
    [cir] Requiring CLP and CDL applicants to prove legal presence in
the United States.
    [cir] Requiring that a digitized photo of the driver be preserved
by the State driver licensing agency.
    [cir] Requiring computer system controls to allow overrides by
supervisory personnel only.
    [cir] Requiring background checks and formal training for all test
driving examiners.
    [cir] Requiring the establishment of oversight systems for all
examiners and testers (including third-party).
    [cir] Disallowing the use of language interpreters for the
knowledge and skills tests.
    In addition proposed amendments to part 384 would require these
items to be reviewed whenever FMCSA conducts a CDL compliance review of
the State program. States found in substantial non-compliance with
these fraud control measures, as well as the other requirements of part
384, would be subject to the loss of Federal-aid highway funds.
(4) Other Regulatory Changes
    The proposed rule would specifically prohibit a motor carrier from
using a driver to operate a CMV who does not hold a current and
appropriate CLP or CDL or to operate a vehicle in violation of the
restrictions on the CLP or CDL. Also, it would incorporate into the
regulations current FMCSA guidance (available on the Agency's Web site,
under ``Guidance for Regulations,'' at http://www.fmcsa.dot.gov/rules-
regulations/administration/fmcsr/fmcsrguide.htm, related to issues
addressed by this rulemaking. Finally, there would be numerous minor
editorial corrections and updates.

B. History

    The CDL program was established by the Commercial Motor Vehicle
Safety Act 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
or 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 outcome creates 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 Federal Highway
Administration (FHWA) published an NPRM on August 22, 1990 (55 FR
34478). (Note: 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 other rulemakings, regulatory guidance, legislation, and policy
decisions. For example, the September 11, 2001, terrorist attacks
prompted Congress and FMCSA to expand the scope of the CDL program to
include issues related to fraud and security. The issuance of CDLs to
unqualified persons and persons with false identities significantly
complicated detection and prevention of fraud. All of these major
changes made the 1990 proposal obsolete. Thus, FMCSA withdrew the 1990
NPRM on February 23, 2006 (71 FR 42741). The current rulemaking effort
revisits these issues and proposes regulatory changes to implement
section 4019 of TEA-21, section 4122 of SAFETEA-LU, and section 703 of
the SAFE Port Act.

III. General Discussion of the Issues and Proposals

    FMCSA identified 17 issues to be addressed in the NPRM. This
section includes a description of each issue, alternatives considered
to address the issue, and FMCSA's proposed solution. This section also
identifies the sections in 49 CFR parts 383 and 384 that would be
amended. A summary of the regulatory changes organized by section
number appears below in the Section-By-Section Discussion of the
Proposals.

1. Strengthen Legal Presence Requirement

    Virtually all States currently issue CLPs and CDLs to U.S. citizens
and persons with permanent legal presence in the country who may not be
domiciled (i.e., permanent home and principal residence) in their
State. CLPs and CDLs are also being issued to persons who have
temporary legal presence in the country and are, therefore, domiciled
in a foreign country.
    On June 4, 2004, the DOT OIG issued a Management Advisory on the
need for FMCSA to establish a legal presence requirement for obtaining
a CDL. The OIG recommended, at a minimum, requiring proof of
citizenship, or permanent residency or legal presence in the United
States before a State issues a CDL. The OIG recommended that this
requirement be made part of the licensing regulations, and FMCSA
proposes in the NPRM to require an applicant for a CLP to make a
similar demonstration.
    Although ``domicile'' is not defined in parts 383 or 384, ``State
of domicile'' is defined in Sec.  383.5 to mean that State ``where a
person has his/her true, fixed, and permanent home and principal
residence and to which he/she has the intention of returning whenever
he/she is absent.'' If a State requires proof of domicile as a
prerequisite for a learner's permit, then those applicants who can
demonstrate that they permanently live in the State, i.e., U.S.
citizens and lawful permanent residents, would be successful.
    A related issue is the documentation that would be acceptable as
proof of domicile. Presumably, the States recognize their own non-CDLs
or other evidence of a home or residence in the State, for example, a
utility bill. While many States take precautions to check an
applicant's record, such as conducting Social Security Number (SSN)
verification, this demonstration of domicile can be made by an
applicant who does not qualify. In some cases, both U.S. and non-U.S.
citizens might be able to meet residency requirements using a driver's
license or showing of residence that masks lack of domicile and/or
citizenship or legal status. Currently, levels of documentation for
residency are not uniform or stringent enough to meet the OIG's
standards of legal presence.
    The list of acceptable documents to show proof of citizenship or
immigration status for obtaining a hazardous materials endorsement
(Table 1 to Sec.  383.71) could be adopted for all issuances of a CLP
and CDL. An additional method for proving identity and reducing fraud
is verifying applicants' SSNs with the Social Security Administration
(SSA), which is discussed under Issue 2.
    The NPRM proposes to reinforce ``State of domicile,'' as currently
defined in the regulations, as the basis for the States' actions to
issue CLPs and CDLs. The NPRM revises the regulations to specify that a
State may only issue a CLP or CDL to an applicant who is a U.S. citizen
or a lawful permanent resident of the United States. Applicants
domiciled in a foreign country, other than Canada and Mexico, who have
temporary or indefinite legal presence in the country may be issued a
Nonresident CLP or Nonresident CDL (regulations preclude issuing
Nonresident licenses to Canada and Mexico). The NPRM also requires an
applicant to demonstrate legal domicile (not just prove legal
presence), and to present certain documentation to obtain a Nonresident
CLP and CDL. To accomplish this goal, FMCSA adopts OIG recommendations
for document verification for all CLP and CDL drivers, that is, the
same document verification process as is required for hazardous
materials (hazmat) endorsements under Sec.  383.71(a)(9).
    These requirements for verification, along with other OIG
recommendation for verifying Social Security Numbers, would help to
reduce the incidence of fraud in the CDL program. FMCSA proposes to
revise Sec. Sec.  383.71 and 383.73 to address this issue.

2. Social Security Number Verification Before Issuing CLP or CDL

    When a CLP or CDL is issued to an applicant, it is important to
verify that the information provided on the application form is
accurate, and that the person submitting the application is who he or
she claims to be. FMCSA has provided CDL grant funds to encourage
States to verify social security numbers (SSNs) when issuing CDLs.
Currently, 45 States perform at least limited verification of SSN,
name, and date of birth with the Social Security Administration (SSA).
    FMCSA considered two alternatives for SSN verification. First, take
no action.
    Second, the CLP and CDL issuance procedures should 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 CLP or CDL if the SSA database
does not match the data provided by the applicant. This should provide
an effective safeguard against issuing CLPs or CDLs to applicants who
apply for a CLP or CDL based on fraud.
    FMCSA proposes the second alternative because approximately 45
States currently conduct SSN verification for CDL applicants. Thus,
requiring SSN verification for both CLPs and CDLs would appear to
impose no additional burden on the majority of States; nor would it
appear to be an unreasonable burden on those States that do not
currently subject CLP or CDL applicants to SSN verification.
    Verification of SSN can be accomplished electronically through both
individual and batch methods with minimum administrative cost or burden
to States. The SSN verification would only have to be performed once on
a CLP or CDL applicant if a notation is placed on the driver record
that the verification had been done and the results matched information
provided by the applicant.
    The OIG mentioned fingerprinting as an alternative to a more
thorough verification of SSNs, rather than as a program that should be
undertaken in parallel with SSN verification. FMCSA is not proposing to
require States to perform fingerprinting of CLP or CDL applicants at
this time because the cost of fingerprinting is significantly higher
than the cost of electronic verification of SSNs. Furthermore, the
incremental benefits in terms of security do not appear to justify the
cost in terms of equipment, training, and staffing, necessary to
develop a fingerprinting program for each State. Thus, FMCSA proposes
to add a provision to Sec.  383.73. FMCSA believes that its proposed
revision adequately addresses OIG concerns.

3. Surrender of CLP, CDL, and Non-CDL Documents

    Currently, Sec. Sec.  383.71 and 383.73 require the surrender of an
existing license only when a CDL is being issued and the license it is
replacing is either a non-CDL or a CDL from out of State.

There is no requirement in the current regulations that requires a
driver to surrender (1) his or her license when being issued a CDL, if
the license is from the same State that is issuing the CDL, (2) his or
her CLP when it is being renewed or upgraded or a CDL is issued, or (3)
an old CDL when the CDL is renewed or upgraded to add a new endorsement
or class of license to the new CDL. Although some States do require the
surrender of the old CDL when it is renewed or upgraded, sometimes the
old CDL is returned to the driver with a corner cut off or a hole
punched in it as indication of invalidating the old document. In some
cases, the hole is punched on the expiration date making it impossible
for law enforcement to determine whether it is a valid license. Better
stewardship requirements are needed for the surrender of all non-CDLs,
CLPs, and previously issued CDLs when a new CDL is issued.
    FMCSA proposes to amend Sec. Sec.  383.71, 383.73, and 384.211, and
to add proposed Sec.  383.25, to expand the current surrender
requirements to include any transaction where a CLP is being upgraded
or a CDL is being initially issued, upgraded, or transferred. FMCSA
also proposes to incorporate into its regulations, the regulatory
guidance posted on the Agency's Web site for Sec.  383.73 question 11
and Sec.  384.211 question 1 on stewardship requirements for
surrendered CDLs and to apply it to all of the above-mentioned
transactions. This guidance allows licensing jurisdictions to meet the
stewardship requirements for surrendered licenses by physically marking
the license in some way as not valid and returning it to a driver. The
document must be perforated with the word ``VOID'' or with holes large
enough to make it easily identifiable to a casual observer as an
invalid document. Punching a hole through the expiration date is not
sufficient. Thus, in the case of renewed CDLs, if a State requires the
surrender of the old CDL, the stewardship requirements must be
followed.

4. CDL Testing Requirements for Out-of-State Driver Training School
Students

    Current regulations (Sec. Sec.  383.23(a)(2) and 384.212) allow a
jurisdiction to license a driver only if the driver is ``domiciled'' in
that jurisdiction. Drivers who temporarily go to another jurisdiction
to receive driver training cannot legally obtain either a CLP or a CDL
from the jurisdiction in which the training occurs because they are not
``domiciled'' in that jurisdiction. Further, some States do not
recognize an out-of-State CLP for on-the-road training.
    Motor carriers and driver training schools advertise that they will
assist drivers in obtaining CDLs upon completion of their training
programs. Many training entities provide their students with a
representative CMV for use in taking the skills test, and a driver with
a CDL to accompany the student to the skills test location. Generally,
these organizations can provide such a representative vehicle only
within the jurisdiction in which the carrier's training facility or the
school is located, i.e., the jurisdiction where the training is given.
The driver holding a CLP who has left his/her State of domicile and
licensure to obtain training then must return to his or her State of
domicile and licensure to complete the skills testing. This presents
the challenge of finding a vehicle that represents the type a driver
expects to operate and finding a driver with a currently valid CDL to
accompany the driver to the skills test location. Further, the costs
associated with obtaining the vehicle and accompanying driver can be
considerable, estimated at $150 to $200 per day. Finally, the applicant
for a CLP or CDL must also meet the insurance requirements for using
the representative vehicle when that cost is not borne by the employing
motor carrier or a training school.
    Another problem with the existing system is the perceived
inconsistency of State approaches to issuing CLPs or accepting
knowledge or skills testing from other jurisdictions.
    FMCSA considered two alternatives based on issuance of a CLP after
a demonstration of the applicant's State of domicile. First, after
successful completion of a knowledge test, a person who holds a non-CDL
in his or her State of domicile (or who holds a CDL that he/she wishes
to upgrade) could obtain a CLP from that State of domicile and receive
skills training in any State. The CLP would be recognized in all States
in the same manner as CDLs. Upon successful completion of a skills test
out of State, the driver could surrender both the CLP and the
underlying CDL \3\ or non-CDL to the State of training and receive a
temporary, non-renewable, Nonresident CDL which would expire in 60 or
90 days. During this 60- to 90-day period the driver would return to
his or her State of domicile to obtain a permanent CDL. The temporary
Nonresident CDL would be recognized by the State of domicile.
---------------------------------------------------------------------------

    \3\ Assuming the driver already has a CDL, but is training to
upgrade his/her CDL to a higher class (i.e. Group C to B) or to add
an endorsement that requires skills testing (i.e. passenger
endorsement).
---------------------------------------------------------------------------

    However, this alternative is dependent upon whether the State in
which the training is provided has the desire and authority to issue a
Nonresident CDL. Other new CLP requirements in the NPRM would decrease
the vulnerability to fraudulent licensing practices under this
alternative. FMCSA would maintain the ``one-driver, one-license, one-
record concept'' by proposing to link an underlying non-CDL to the
issuance of a CLP and require both from the driver's State of domicile.
Also, when the CLP and non-CDL are surrendered, the State of training
temporarily becomes the State of licensure because the driver's records
are transferred to that State.
    Under the second alternative, a person who holds a CDL or non-CDL
in his or her State of domicile could obtain a CLP from that State and
obtain training in any State. A person would take the skills test in
the State where the training was conducted. The State of training would
send the skills test results to the State of domicile. The State of
domicile would accept the results of the skills test and issue a CDL
when the student returns to his or her State of domicile. This
alternative is based upon a driver's State of domicile accepting the
results of a CDL skills test taken out-of-State. The problem with this
alternative results from the States' perceived lack of standardization
of skills testing and potential for fraudulent testing. Consequently,
some States might be reluctant to accept the liability of issuing a CDL
based on the results of an out-of-State CDL skills test. This
alternative involves reciprocity of skills testing results. FMCSA is
confident that the new proposed skills test standards would provide the
States with a basis for accepting another State's test results.
    FMCSA proposes to revise Sec.  383.23(c) to reflect the second
alternative. Current paragraph (c) and other issues that are exclusive
to the CLP would be redesignated as new Sec.  383.25. FMCSA believes
that the proposed revisions to the minimum standards for knowledge
testing in subparts G and H of Part 383 would provide a basis for a
State to accept another State's knowledge testing and CLP for the
purpose of allowing the driver to participate in skills training out-
of-State.

5. State Reciprocity for CLPs

    Currently, Federal CDL regulations are silent on whether a CLP must
be recognized by other States. This situation has caused some States to
recognize an out-of-State CLP when the

holder is taking commercial driver training in their State, while other
States have said the student can only take commercial driver training
if the CLP is also from that State. Some States, even though they do
not recognize a CLP from another State for training purposes, will
issue an out-of-State student a CLP and establish a driver record, but
allow the student to maintain his or her base license and driving
record from his/her State of domicile.
    FMCSA proposes to amend Sec.  383.73(h), which would be
redesignated as Sec.  383.73(l), by adding a new requirement for CLP
reciprocity. In order to maintain the ``one driver, one license, one
driving record concept'' of the CDL program and to establish uniformity
in the issuance of CLPs, the CLPs would only be issued by the State of
domicile; but the CLP must be recognized for training purposes by all
other States in the same manner as CDLs are recognized under Sec.
383.73(h).

6. Minimum Uniform Standards for Issuing a CLP

a. Passing the General Knowledge Test To Obtain a CLP
    Currently, some States do not require a knowledge test as a
prerequisite to issuing a CLP. In its May 2002 audit report ``Improving
Testing and Licensing of Commercial Drivers,'' the OIG recommended that
FMCSA require applicants to pass a knowledge test to obtain a CLP.
Section 4122 of SAFETEA-LU mandates CLP applicants pass a written test
before the CLP is issued.
    FMCSA proposes that every commercial driver-trainee be required to
successfully complete the CDL knowledge tests before being issued a
CLP. A driver who holds a valid non-CDL in his or her State of domicile
would obtain a CLP from the State of domicile upon successful
completion of a general CDL knowledge test. The proposal to require
knowledge testing for all persons applying for a CLP is addressed in
Sec.  383.25 and proposed amendments to Sec. Sec.  383.71 and 383.73.
This requirement would provide for a safer driving environment by
ensuring that a student demonstrates basic knowledge of operating a CMV
before he or she gets behind the wheel.
b. Requiring the CLP To Be a Separate Document From the CDL or Non-CDL
    States vary in the type of document that serves as a commercial
learner's permit and the relationship of the commercial learner's
permit to a CDL or non-CDL. In extreme cases, a non-CDL serves as the
CLP and, once the driver passes the skills test, as a temporary CDL.
Standardizing the CLP is a key component of this NPRM.
    FMCSA proposes to establish the central requirement that the CLP be
a separate document from the CDL or non-CDL. The CLP document would
have to meet much the same requirements as a CDL document, but with the
words ``Commercial Learner's Permit'' or ``CLP'' displayed prominently
at the top. FMCSA also proposes that the restriction codes, vehicle
group, and endorsement for which the driver has passed knowledge tests
should be printed on the CLP document, as well as the license number of
the underlying CDL or non-CDL. FMCSA also proposes that the CLP
document include the statement that the permit is not valid for driving
a CMV unless the driver also has on his/her possession the underlying
CDL or non-CDL and only drives when accompanied by a valid CDL holder.
More information about the proposal that the CLP be a separate
document, but tied to the underlying CDL or non-CDL, is addressed in
proposed Sec.  383.25 and amendments to Sec. Sec.  383.151 and 383.153.
c. CLP Document Should Be Tamperproof
    The States permit a variety of documents to serve as CLPs. Some
States issue paper documents that would be easy targets for tampering.
To narrow the range of documents that serve this purpose and to improve
security, section 4122 of SAFETEA-LU requires that the CLP be
tamperproof and the content of the CLP document be the same as the
content of the CDL document. The CLP would state that without the
underlying State CDL or non-CDL the CLP is invalid. The license number
of the underlying CDL or non-CDL would be displayed on the CLP.
    FMCSA proposes to add a definition for ``CLP'' and ``Nonresident
CLP'' to Sec.  383.5 (Definitions). Substantive information
requirements for the CLP would be analogous to the information required
for a CDL and Nonresident CDL; and the term ``Commercial Learner's
Permit'' or ``CLP'' must be prominently displayed on the document. If
the person being issued a CLP is domiciled in a foreign jurisdiction,
other than Canada or Mexico, the word ``Nonresident'' must also appear
on the CLP.
    FMCSA also proposes that a photograph or digitized image of the
driver, the appropriate vehicle group, endorsement, and restriction
codes must be shown on the CLP document. The proposed Sec. Sec.
383.153 and 383.155 reflect these changes.
d. Recording the CLP in CDLIS
    Current State policies make it possible for a driver to obtain a
CLP from more than one State, because only about half the States create
a CLP driver record in CDLIS. To address this problem, the OIG
recommended that, the CLP be recorded in the CDLIS, and section 703 of
the SAFE Port Act required the Agency to implement the report that
included the recommendation. In addition, section 4122 of SAFETEA-LU
requires the inclusion of the CLP in CDLIS.
    Because the CLP together with an underlying non-CDL is a form of
CDL for training when the driver is accompanied by a CDL holder, it is
important that the CLP be subject to the same recordkeeping
requirements as a CDL (49 CFR 383.23(c)). Moreover, these recordkeeping
provisions would aid in the administration of nationwide CLP
reciprocity and ensure uniform application of disqualifications to CLP
holders. FMCSA has determined that the CDLIS has the capacity to handle
the additional entries that are anticipated as a result of this
proposal. Finally, the provision fulfills the OIG recommendation and
SAFETEA-LU requirement that CDLIS be notified of all CLPs issued.
    FMCSA proposes to amend Sec. Sec.  383.71, 383.73, 384.205,
384.206, 284.207, and 384.225 to create a CDLIS record for a CLP and to
require posting all CLP transactions to CDLIS.

7. Maximum Initial Validity and Renewal Periods for CLP and CDL

a. Initial Validity and Renewal Periods for CLP
    The general principle behind limiting the duration of a CLP and
restricting the number of times it can be renewed without retaking the
general CDL knowledge and endorsement tests is public safety on the
highway. Every CLP holder is expected to demonstrate the minimum level
of requisite skills in a test situation and obtain a CDL within a
reasonable period of time (Sec.  383.25(d)). If the CLP holder does not
obtain the CDL within a reasonable period of time, it could be an
indication that the CLP holder is having difficulty developing the
required skills to handle a CMV safely. Consequently, a protracted
learning period for a CLP holder could pose a safety hazard on the
nation's public roads and highways. Therefore, it is important to
closely monitor CLP holders to determine if they might be experiencing
any safety problems. Such monitoring could be accomplished by checking
the driver

record prior to granting a renewal of the CLP.
    Some States, such as Alabama, are considering issuing CLPs for the
same period as licenses, 5 years. When a CLP is issued for a lengthy
period of time, it has been used illegally in some cases as a CDL in a
co-driver situation, while the CDL holder is in the sleeper berth.
    FMCSA considered two alternatives for limiting the initial issuance
and renewal periods for CLPs.
    First, a commercial driver training program including classroom and
behind the wheel training usually takes 6 to 8 weeks. Considering that
some students may need additional behind the wheel experience before
taking the skills test for a CDL, a CLP valid for 90 days would be
reasonable. Likewise, some driver-students may not pass the skills test
on the first attempt and scheduling a retest may take several weeks. In
that situation, the students would be allowed to renew their CLP for an
additional 90 days without having to retake the general and endorsement
knowledge tests.
    Under the second alternative, FMCSA recognizes that not all CLP
holders take formal training at a commercial driving school. They may
need more time (e.g., 180 days) to pass the skills test because they
are not training and practicing behind-the-wheel skills on a full time
basis as they would in a formal training program. Therefore, FMCSA
could propose a CLP be valid for 180 days. Again, some driver-students
may not pass the skills test on the first attempt and scheduling a
retest may take several weeks, so the students could be allowed to
renew their CLP for an additional 90 days without having to retake the
general and endorsement knowledge tests.
    FMCSA believes public safety demands a limitation on the time
allowed for a student to obtain a CDL without having to start the
process over by retaking the general and endorsement knowledge tests.
There is also concern that limiting initial validity to a short period
of time (e.g., 90 days) puts an undue burden on both the driver and the
State licensing agency in processing more renewals. Therefore, FMCSA
proposes the second alternative and proposes to add new Sec.  383.25
and to amend Sec. Sec.  383.71 and 383.73.
b. Initial Validity and Renewal Periods for a CDL
    The States vary in their initial duration and renewal periods for
CDLs. The trend has been to expand the time periods in order to handle
more drivers with the same staff and budget. In New York, for example,
the renewal period for a driver's license, including CDLs, has gone
from 5 years to 8 years. In Arizona, for example, all driver's
licenses, including CDLs, do not have to be renewed until the driver
turns 65 years old.
    The ever increasing length of initial and renewal periods for CDLs
is defeating the purpose of renewal. The renewal process allows the
driver to update information on the license and the State to update
this information on the electronic driving record, place a new
photograph on the license, check the driving record (i.e. current State
of licensure, CDLIS, and Problem Driver Pointer System (PDPS)), and, in
the case of the hazardous materials endorsement, require the driver to
retake the test required by Sec.  383.71.
    FMCSA considered two alternatives for limiting the initial term and
renewal periods for CDLs.
    Under the first alternative, the current average validity period
for a license in the United States is slightly under 5 years. Some
States use periods as low as 2 years and others use 8 years; a few
licenses remain valid to age 65. Since the hazardous materials
endorsement threat assessment must be performed at least every 5 years
in accordance with a Transportation Security Administration interim
rule, the initial and renewal periods could be set at a maximum of 5
years to bring the CDL renewal and threat assessment cycles into
agreement. This would promote uniformity among the States and limit the
escalating length of validity periods. However, FMCSA recognizes that
States with periods over 5 years may object because they could not
handle more frequent transactions with current staffing and budget
levels.
    Under the second alternative, while the current average validity
period for a license in the United States is just under 5 years, the
number of drivers is increasing. Therefore, States would need some
flexibility to extend the validity periods to accommodate the increase
with current staffing and budget levels. Except for Arizona and
Georgia, we know of no State that currently has an initial and renewal
period greater than 8 years. An 8-year period is also the renewal
period DHS has adopted in its final rule to implement the REAL ID Act.
By proposing an 8-year maximum renewal period, FMCSA agrees with the
DHS requirements for all drivers' licenses. An 8-year period would
provide most States the flexibility to expand beyond 5 years. At the
same time, it would still promote highway safety by placing a cap on
the maximum validity periods and preventing more States from following
Arizona's lead by eliminating any renewal until age 65. At least once
every eight years, the driver would update information on the license
and the State would update this information on the electronic driving
record, place a new photograph on the license, and check the driving
record.
    FMCSA proposes the second alternative, and Sec. Sec.  383.71 and
383.73 would be modified.

8. Establish a Minimum Age for CLP

    An individual is not eligible to operate a CMV in intrastate
commerce before age 18 (49 CFR 350.341(f)), and in interstate commerce
before 21 years (49 CFR 391.11(b)(1)), except for those persons either
excepted or exempted under 49 CFR 390.3(f), 391.2 and subpart G of part
391. Despite this fact, some States are currently issuing CLPs to
applicants younger than 18 years of age. As a result, an individual who
cannot operate a CMV in intrastate or interstate commerce is allowed to
train and obtain behind-the-wheel experience in a CMV under the age of
18.
    FMCSA considered two alternatives for setting a minimum age for
issuing a CLP. First, to avoid the inconsistency between States for
setting the minimum age for operating a CMV with a CLP, FMCSA could
recommend that an applicant for a CLP be at least 18 years old. The age
limit is especially important if a CLP holder, as proposed, would be
granted reciprocity to drive in another State while training.
    The second alternative is the same as the first alternative.
However, the exceptions and exemptions to the 21 years of age
requirement for interstate commerce under 49 CFR 390.3(f), 391.2, and
subpart G of part 391 would also be recognized for the issuance of a
CLP.
    FMCSA proposes the second alternative to be consistent with the
exceptions and exemptions from age requirements granted in Parts 390
and 391 to operate in interstate commerce and, if adopted by the State,
in intrastate commerce. A provision would be added to new Sec.  383.25
and to Sec.  383.71 to specify a minimum age requirement with limited
exceptions.

9. Preconditions To Taking the CDL Skills Test

    Currently, issuance of a CLP is not a precondition for issuance of
a CDL. Therefore, a CDL applicant could legally obtain behind-the-wheel
training on any public or private road without a CLP. Also, there is
the issue of applicants without a CLP getting less than two weeks
training at so called ``CDL mills rather than 6 to 8 weeks of training
that

teaches them to properly operate a CMV.
    In addition, the CLP holder should not be eligible to take the CDL
skills test in the first 30 days after initial issuance of the CLP,
because it affords the applicant an opportunity to obtain skills
training and to practice what he or she is taught. This 30-day
prohibition on taking the skills test may also have an effect on the
training period and thoroughness of the curriculum being taught at the
CDL mills, because of the interval between the general training to pass
the knowledge test for a CLP and the point at which the driver is
eligible to take the skills test.
    FMCSA proposes to add these conditions in Sec.  383.25 and to amend
part 383, subpart H. The Agency has published a NPRM (72 FR 73226,
December 26, 2007) that would require that applicants for a CDL obtain
training that meets specific curriculum requirements. The entry level
driver training requirement (RIN 2126-AB06) would work together with
the requirements in this rulemaking to ensure that applicants for a CDL
have received adequate training and have had adequate opportunity to
learn safe driving skills behind the wheel of a CMV. The comment period
for the Agency's entry-level driver training rule expires on May 23,
2008 (73 FR 15471, March 24, 2008).

10. Limit Endorsements on CLP to Passenger (P) Only

    This rule proposes that persons who are learning to drive a CMV
with a CLP should not operate specialized vehicles (e.g., double/triple
trailers or tank vehicles) or carry dangerous or high-value cargo (such
as hazardous materials or passengers) before they acquire basic
knowledge and skills.
    However, some States issue endorsements on their CLPs, or allow
drivers to train on CMVs that require an endorsement without the need
for the endorsement on the CLP or CDL. Section 383.93 requires a driver
to pass the general knowledge and skills test for a CDL before being
eligible to add endorsements for double/triple trailers, passenger
vehicles, tank vehicles, vehicles used to transport hazardous
materials, and school buses. While all endorsements require a knowledge
test specific to the endorsement, only the passenger (P) endorsement
under Sec.  383.93(c)(2) and the school bus (S) endorsement under Sec.
383.93(c)(5) require successful completion of both a knowledge and
skills test. Thus, only the P and S endorsements require the applicant
to obtain behind-the-wheel experience to prepare to pass the skills
test.
    FMCSA proposes that only the P endorsement be allowed on the CLP
after the driver successfully passes the endorsement knowledge test. We
further propose that the CLP holder with the P endorsement be
prohibited from driving a CMV carrying passengers. While the S
endorsement requires skills training to pass the skills test, it is
only needed when the driver is actually transporting students. Thus,
there is no need to have the S endorsement on the CLP when training for
the CDL because it would not be a safe practice to allow driver
trainees to transport students. If the applicant is training on a
school bus, the endorsement knowledge test must be passed and noted on
the driver's record.
    FMCSA also proposes that the P endorsement on the CLP be class
specific. The driver can only undergo skills testing in a class of
passenger vehicles or school bus for which he or she has passed
knowledge training. This requirement is similar to what is required for
P or S endorsements as CDL upgrades. The CLP holder must also be
accompanied and directly supervised by a driver qualified for such a
vehicle type.
    No other endorsements should be allowed on a CLP for safety
reasons. The hazardous materials (H) endorsement is currently
prohibited for security reasons. FMCSA sees no justification for
allowing CLP holders to train on double/triple vehicles, tank vehicles,
and vehicles carrying hazardous materials. Drivers wishing to develop
skills on these vehicles must first obtain a CDL and then seek
additional training needed for an endorsement.
    FMCSA proposes to add Sec.  383.25 and to amend Sec. Sec.  383.71,
383.73, 383.93, and 383.153. These proposed requirements and
restrictions for the P and S endorsements on the CLP would apply
whether the CLP holder has only a non-CDL, or already has a CDL and is
seeking an upgrade by adding the P or S endorsements.

11. Methods of Administering CDL Tests

    State and Federal investigations have revealed applicant and
examiner fraud in the use of interpreters during knowledge and skills
testing. The OIG has issued recommendations on this issue. The agency
has issued Regulatory Guidance on 49 CFR Part 383 concerning the use of
interpreters and written, verbal, and automated foreign language tests.
The use of interpreters during knowledge testing has resulted in fraud;
questions are sometimes answered by the interpreter, not the applicant.
The use of interpreters during skills testing could pose a serious
safety hazard to the driver, the examiner, the CMV and the general
public on the highway. For example, if would be dangerous if a testing
official gave the driver a command based on an observed hazard or
situation, but the driver did not immediately comprehend the command.
    The OIG also recommended in its 2002 CDL audit report that FMCSA
require testing protocols and performance oriented requirements for
English language proficiency.
    FMCSA proposes to amend Sec.  383.133. The fraud and safety
concerns identified over the past few years lead FMCSA to conclude that
the rules should provide clear guidance on test administration. The
NPRM would propose to eliminate the use of interpreters in both the
knowledge and the skills testing. There are alternate ways to conduct
knowledge tests in foreign languages through the use of written,
recorded and automated testing. With regard to skills testing,
interpreters are a safety issue, not a language accommodation issue.
While a foreign speaking applicant may have difficulty comprehending
long questions and multiple choice responses in English, immediate
response to verbal commands and instructions in English by a skills
test examiner is vital to public safety. This proposed rule attempts to
strike a balance between accommodation of applicants for whom English
is their second language and who undergo CDL testing, while preserving
the necessary protections against fraud and safety risks to drivers,
skills test examiners, and the general public on highways.

12. Update Federal Knowledge and Skills Test Standards

    Section 4019 of TEA-21 required FMCSA to complete a review of the
current system of CDL knowledge and skills testing, and determine if it
is an accurate measure of an individual's knowledge and skills as an
operator of a CMV. Section 4019 further required FMCSA to issue
regulations reflecting the results of the review. This mandate was
addressed by the American Association of Motor Vehicle Administrators
(AAMVA) and the FMCSA jointly. The recently updated versions of AAMVA's
model CDL knowledge and skills tests, and driver and examiner manuals
were released to the States in January 2006. The updated model test
package (Version 2005) meets a higher standard of knowledge and skills
testing than the current Federal standards in part 383, subparts G and
H. While some States are voluntarily adopting the updated model test

package (tests and manuals), the majority of the States will not fully
adopt them until the Federal testing standards are raised to meet the
model test standards.
    FMCSA considered two alternatives for updating the Federal
knowledge and skills testing standards.
    Under the first alternative, FMCSA would incorporate the AAMVA
model test package (Version 2005) by reference into the Federal
regulation for CDL knowledge and skills standards. This is justified
because AAMVA's 2005 model testing package was developed with major
input by representatives from the industry that would be affected by
the new testing standards, and as a way of promoting uniformity among
the States.
    Some modifications to part 383, subparts G and H, would be needed
to match the knowledge standards in the model testing package. These
modifications would address: (1) The number of questions that are
required on the general and endorsement knowledge tests; (2) the number
of knowledge categories (domains) that must be represented with
questions on the general and endorsement knowledge tests; and (3) the
adoption of the AAMVA 2005 Requirements Document algorithm for creating
multiple versions of the knowledge test.
    In addition, modifications to part 383, subparts G and H, would be
needed to: (1) Make the entire pre-trip inspection (not just the air
brake inspection) part of the skills standard, rather than the current
knowledge standard; (2) 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); (3) adopt the expanded definition of CMV in
section 4011(a) of TEA-21 to include both ``gross vehicle weight rating
and gross vehicle weight'' and ``gross combination weight rating and
gross combination weight,'' ``whichever is greater.'' ;\4\ (4)
eliminate Sec.  383.77, since the substitute for a driving skills test
was intended only for the initial testing cycle prior to April 1, 1992;
and (5) adopt the OIG recommendation to require covert monitoring of
State and third party skills test examiners.
---------------------------------------------------------------------------

    \4\ The expanded definition should be limited to roadside
enforcement and not used for skills testing in order to maintain the
representative vehicle concept.
---------------------------------------------------------------------------

    The second alternative is the same as the first alternative, except
that the AAMVA model testing package would not be adopted by reference.
Only the major aspects of the model testing package would be
incorporated into the Federal knowledge and skills testing standards,
similar to what is in the current testing standards in part 383,
Subparts G and H.
    FMCSA proposes the first alternative in order to promote more
uniformity among the States. FMCSA proposes to amend Sec.  383.5 and
part 383, subparts G and H, and to add Sec.  384.229.

13. New Standardized Endorsements and Restriction Codes

    Currently, uniform codes are not required for all endorsements and
restrictions on a CDL. For example, unlike the standardized CDL codes
for the double /triple trailer (T), hazardous materials (H), tank
vehicle (N), passenger vehicle (P) and school bus (S) endorsements, the
air brake restriction has no standardized code. The fact that States
are using five different codes causes enforcement problems. In one
State a ``K'' restriction means an air brake restriction while in
another State it means an intrastate-only restriction.
    Several issues have been raised by motor carriers and State driver
licensing skills examiners in regard to CMVs with (1) automatic
transmissions or manual transmissions; (2) air over hydraulic versus
air brakes; and (3) non-fifth wheel (e.g., pintle hook) versus fifth
wheel combination vehicles. Motor carriers are concerned when they hire
drivers with a CDL who (1) cannot operate manual transmission vehicles;
(2) cannot test or operate a full air brake system; and/or (3) cannot
hook up a fifth wheel power unit with a semi-trailer. State examiners
are concerned when they cannot test the applicant on (1) a full air
brake system; (2) a manual transmission; and/or (3) fifth wheel
combination hookup because the vehicle brought to the test is not so.
However, there is no current Federal requirement that the test vehicles
be outfitted with these features. A number of States have imposed
restrictions on CDLs for drivers who take the skills test in a CMV that
is missing one or more of these features, but there are no standardized
codes for these restrictions.
    Another issue related to endorsements is the confusing definition
of ``tank vehicle'' under Sec.  383.5 because of the reference to the
definition of ``cargo tank'' in 49 CFR part 171. The definition in Part
383 implies that a driver needs a tank endorsement to operate a vehicle
with a permanently attached tank that has a rated capacity greater than
119.5 gallons. In the case of a portable tank temporarily attached to
the vehicle, a tank endorsement is needed only if the portable tank has
a rated capacity of 1,000 gallons or more.
    FMCSA proposes to amend Sec. Sec.  383.5, 383.93, 383.95, and
383.153. FMCSA believes that Federal restrictions should be developed
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 non-fifth wheel (pintle hook). All three restrictions would be
assigned standardized restriction codes, along with a standardized code
for the current air brake restriction.
    The disparity in minimum rated capacity between permanently
attached tanks (119 gallons) and temporarily attached portable tanks
(1000 gallons) for the tank vehicle endorsement makes no sense. As
FMCSA has no reports of any problems with drivers transporting portable
tanks with a rated capacity under 1,000 gallons, the NPRM proposes a
rated capacity threshold of 1,000 or more gallons for all tanks before
a driver would need a tank endorsement. This would also eliminate the
controversy over whether the driver of a ready mix concrete truck
equipped with a small water tank to clean the mixer drum or a truck
transporting generators with small fuel tanks needs a tank vehicle
endorsement.

14. Previous Driving Offenses by CLP Holders and CLP Applicants

a. Holders of a CLP
    FMCSA does not currently subject a CLP holder to the basic rules of
the CDL program. The question has been raised whether a CLP holder is
subject to the disqualifying offenses in Sec.  383.51 for major
offenses under Table 1 and minor offenses under Table 2, including
those that occur when operating a non-CMV. In other words, is a CLP
holder ``a CDL holder'' for purpose of being disqualified? Under
current Sec.  383.51, the answer is no.
    FMCSA considered two alternatives for dealing with disqualifying
offenses of a CLP holder. Under the first alternative, FMCSA could
leave the regulations unchanged and not apply the disqualifications to
CLP holders. This would allow some CLP holders who are convicted of
disqualifying offenses while operating a non-CMV to continue avoiding
license sanctions. In the second alternative, FMCSA could subject the
holder of the CLP to the same rules as a driver who holds a CDL. This
would ensure that drivers who have been convicted of the violations
described in Sec.  383.51, whether they occurred in a CMV or non-CMV,
would not operate CDL vehicles on our nation's highways until the end
of the full disqualification period for the offense in the non-CMV.

    FMCSA proposes the second alternative because of the increased
level of safety that would result from higher qualification standards
for CMV drivers. FMCSA also proposes to amend Sec. Sec.  383.5,
383.51(b) and (c), 383.71, and 383.73.
b. Applicants for a CLP
    Applicants for a CLP are not currently subject to the basic rules
of the CDL program. An applicant who has been disqualified from driving
an automobile can nevertheless obtain and use a CLP, even during the
disqualification period. This driver would then be able to upgrade to a
CDL later, potentially resulting in an unsafe driver behind the wheel
of a CMV on the highway.
    FMCSA considered two alternatives for dealing with disqualifying
offenses of a CLP applicant. First, FMCSA could leave the current
regulations as they are currently written and not apply the
disqualifications to CLP applicants. This would allow an applicant for
a CLP to remain exempt from the disqualifying offenses of Sec.  383.51.
    Second, FMCSA could subject the applicant for the CLP to the same
rules that exist today for a CDL applicant. Before issuing a CLP to a
driver, the issuing State would be required to perform a check into the
driver's current driving record at the current State of licensure, and
using both CDLIS and the Problem Driver Pointer System (PDPS) to ensure
the driver is not subject to the sanctions of Sec.  383.51 or any
license suspension, revocation, or cancellation under State law and
that the person does not have a driver's license from more than one
State or jurisdiction. Discovery of such sanctions would result in the
State's refusal to issue a CLP until the end of the full
disqualification period for the offense. This would ensure that drivers
who have been convicted of the unsafe driving violations described in
Sec.  383.51 prior to applying for a CLP, regardless if they occurred
in a CMV or non-CMV, would not operate CMVs on our nation's highways
while disqualified.
    This NPRM proposes the second alternative because of the increased
level of safety that would result from higher qualification standards
for CMV drivers. FMCSA proposes to amend Sec. Sec.  383.5, 383.51(b)-
(c), 383.71, and 383.73 accordingly.

15. Motor Carrier Prohibitions

    Current Sec.  383.37 prohibits employers from allowing disqualified
drivers to operate a CMV. However it does not include a prohibition on
using a driver who simply does not have a current CLP or CDL or who
does not have a CDL with the proper class or endorsements, or using a
driver to operate a CMV that violates a restriction on the driver's
CDL. This omission makes it difficult for FMCSA to properly cite and
take enforcement action against a motor carrier.
    FMCSA proposes 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.
FMCSA proposes to amend Sec.  383.37 and Appendix B to Part 385.

16. Incorporate CLP-Related Regulatory Guidance Into Regulatory Text

    Over the past several years, FMCSA has published a number of
interpretations in response to requests for clarification of
regulations applicable to CLPs and driver testing. While these
interpretations do not have the force of regulation, they nonetheless
guide Agency enforcement. (The current interpretations are available on
the FMCSA Web site under ``Guidance for Regulations'' at http://
www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/
fmcsrguide.htm. The interpretations are listed under the applicable 49
CFR part.) However, the parties who requested the interpretations had
no opportunity to question them or to amplify the inquiry, and other
parties might be unaware of the Agency's position. Regulatory Guidance,
once issued, should therefore be incorporated into regulatory text, as
needed.
    FMCSA proposes to codify regulatory guidance related to this
rulemaking by subjecting it to public notice and comment. Regulatory
guidance made obsolete by the changes in this rulemaking would be
eliminated. This would include 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 document). FMCSA proposes to amend Sec. Sec.  383.25, 383.73,
383.77, 383.95, 383.113, 383.131, 383.133 and 383.153.

17. Incorporate SAFE Port Act Provisions

    On October 13, 2006, the President signed into law the Security and
Accountability For Every Port Act of 2006 (SAFE Port Act), Public Law
109-347. Section 703, Trucking Security, requires FMCSA to implement
requirements from two Office of Inspector General (OIG) reports:
    (a) June 4, 2004 Memorandum: Need to Establish a Legal Presence
Requirement for Obtaining a Commercial Driver's License (Control No.
2004-054). This 2004 OIG report recommended that FMCSA establish a
legal presence requirement for obtaining a CDL. The report said that
all CDL applicants should demonstrate either citizenship or lawful
permanent residence in the United States before a State may issue a
CDL. FMCSA has addressed this recommendation in this NPRM.
    (b) February 7, 2006 Memorandum: Report on Federal Motor Carrier
Safety Administration Oversight of Commercial Driver's License Program
(Report Number MH-2006-037). This 2006 OIG report contains three broad
recommendations to detect and prevent fraudulent testing and licensing
activity in the CDL program:
    (1) Direct the States to report on the final disposition of all
suspect drivers identified by the States. These disposition reports
should emphasize but not necessarily be limited to instances where
there is specific or direct evidence that the driver participated in a
fraudulent activity to obtain the CDL.
    (2) Determine that State CDL programs are out of compliance, under
Federal regulations, if the State fails to impose adequate internal
controls to prevent fraud or fails to take or propose necessary
corrective action.
    (3) Impose sanctions, under Federal regulations, against those
States that fail to establish adequate fraud control measures for their
CDL programs.
    The first recommendation in the 2006 OIG report was based on a
February 24, 2005, OIG memorandum to FMCSA on data collected from the
States, which identified 15,032 CDL holders suspected of fraudulent
activities. The States took action against 8,293 of these drivers,
including removing CDL privileges. The status of the remaining 6,739
suspect drivers was not determined at that time because the drivers had
moved from their original State of record. FMCSA said that it would ask
the States to determine the final disposition of these drivers, but the
Agency does not have legal authority under parts 383 or 384 to require
the States to make such a report.
    As a short term solution to this problem, FMCSA addressed this
recommendation by contacting the States and requesting that they report
the final disposition of the 6,739 suspect CDL holders. As a long term
solution, FMCSA proposes to require States to invalidate CDLs issued as
the result of examiner fraud and to retest the driver. However, if a
driver was convicted of

fraudulent activities related to the issuance of a CDL, the issuing
State would be required to withdraw the driver's CDL and post this
information on his/her CDLIS record. The driver would not be allowed to
reapply for a new CDL for one year.
    With regard to the second recommendation in the 2006 OIG report,
FMCSA proposes new requirements to combat fraud (prohibiting
interpreters, requiring social security number verification, checking
legal presence, etc). This NPRM proposes to require that:
    [cir] A digitized photo of the driver be kept on file by the State
licensing agency.
    [cir] The State establish computer system controls that prevent
changes to records of transactions, unless they are done by supervisory
personnel only and are documented.
    [cir] Background checks and formal training be mandatory for all
driving test examiners.
    [cir] The States establish oversight systems for all examiners,
including third-party examiners.
    Regarding the OIG's third recommendation in the OIG 2006 report,
FMCSA proposes that the measures described above be added to the
requirements of part 384, thus requiring these items to be reviewed for
compliance whenever a State undergoes a CDL compliance review by FMCSA.
States found in substantial non-compliance with these fraud control
measures, as well as the other requirements of part 384, would be
subject to the loss of Federal-aid highway funding. FMCSA proposes to
amend Sec. Sec.  383.73 and 383.75, and to add Sec. Sec.  384.227,
384.228, and 384.229.

IV. Section-By-Section Discussion of the Proposals

    This section includes a summary of the regulatory changes proposed
for 49 CFR parts 383, 384, and 385 organized by section number.

A. Proposed Changes to Part 383

    Part 383, Commercial Driver's License Standards; Requirements and
penalties, contains the requirements for CDLs and CLPs. With certain
exceptions, the rules in this part apply to every person who operates a
commercial motor vehicle (CMV) in interstate, foreign, or intrastate
commerce, to all employers of such persons, and to all States.
1. Section 383.5, Definitions
    FMCSA proposes to add a definition of ``CDL driver'' to clarify
that the requirements that apply to CDL driver also apply to anyone
required to hold a CDL, even if the person does not currently hold a
CDL. This change would facilitate enforcement of the rules against
those who do not properly obtain a CDL.
    FMCSA proposes to add a definition of ``commercial learner's
permit'' to specify that a CLP, in combination with an underlying
license, provides authority to operate a CMV on public highways for the
purpose of behind the wheel training when accompanied by a qualified
CDL holder. FMCSA also proposes 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'' and ``gross combination weight rating
and gross combination weight,'' ``whichever is greater.'' The expanded
definition is proposed to be limited to roadside enforcement of the CDL
requirements to cite drivers who are trying to avoid the need for a CDL
by operating a vehicle that has a gross vehicle weight rating (GVWR) or
a gross combination weight rating (GCWR) under 26,001 pounds, but then
overload the vehicle so the gross vehicle weight (GVW) or gross
combination weight (GCW) is over 26,000 pounds. As currently specified
in Sec.  383.91(b), only the GVWR or GCWR of the vehicle is used for
skills testing because overloading a vehicle to obtain a GVW or GCW
over 26,000 pounds is both unsafe and not a representative vehicle for
demonstrating driving skills for a CDL.
    The definition of ``imminent hazard'' would be amended to add one
phrase. Under 49 U.S.C. 31310(f), FMCSA is authorized to disqualify a
CDL holder who is determined to constitute ``an imminent hazard (as
such term is defined in section 5102).'' Section 383.52 implements that
authority, and section 383.5 defines ``imminent hazard'' in the same
terms as 49 U.S.C. 5102. This amendment is necessary because section
7102(4) of SAFETEA-LU amended the definition in section 5102 to say
that imminent hazard ``means the existence of a condition relating to
hazardous materials that presents a substantial likelihood that death *
* * '' Since this definition governs FMCSA's authority under Sec.
383.52, the corresponding definition in Sec.  383.5 must be changed.
The effect of the change is to narrow somewhat the scope of Sec.
383.52.
    The definition of ``serious traffic violation'' would be removed
because the substance of the definition was previously incorporated
into Sec.  383.51 and the definition is no longer necessary.
    The definition of ``tank vehicle'' would be revised to clarify that
only tanks with a rated capacity of 1,000 gallons or more come under
the definition.
    FMCSA proposes to add definitions of ``third party skills test
examiner'' and ``third party tester'' to clarify to whom the new
requirements on third party testers proposed for part 384 would apply.
    References to ``CLP'' are proposed to be added in the definitions
of ``disqualification,'' ``driver applicant,'' ``endorsement,'' and
``non-resident CDL.''
    In addition, editorial changes are proposed for the definitions of
``commercial driver's license'' and ``United States.''
2. Section 383.9, Matter Incorporated by Reference
    Subpart H of part 383 currently has general language describing the
CDL knowledge and skills testing procedures, testing methods, and
passing scores. In order to promote more uniformity among the States,
more specific language on administering the tests is needed. Therefore,
FMCSA is proposing to incorporate by reference the current edition of
AAMVA's ``2005 CDL Test System.''
    FMCSA is providing the public an opportunity to comment on the
incorporation by reference of this AAMVA ``2005 CDL Test System,'' and
would provide similar opportunity before incorporating any updates to
the 2005 edition.
    Incorporating the AAMVA CDL test system by reference complies with
the requirements in 5 U.S.C. 552, which allows agencies to publish
rules in the Federal Register by referring to materials already
published elsewhere. Section 552 authorizes incorporation by reference
with the approval of the Director of the Federal Register to reduce the
volume of material published in the Federal Register and the CFR. The
legal effect of incorporation by reference is that the material is
treated as if it were published in the Federal Register. This material,
like any other properly issued rule, would then have the force and
effect of law.
3. Section 383.23, Commercial Driver's License
    FMCSA proposes to amend Sec.  383.23 by moving current paragraph
(c) on learner's permits to a new Sec.  383.25 that would contain
expanded requirements for CLPs. A new paragraph (b)(3) adds operating
with a CLP to the list of exceptions to the requirement to hold a

CDL, if the CLP is properly issued under the requirements of proposed
Sec.  393.25.
4. Section 383.25, Commercial Learner's Permit
    FMCSA proposes to add a new Sec.  383.25 for the expanded
requirements for CLPs. Under the proposed rules, a driver would have to
obtain a CLP and hold it for at least 30 days before becoming eligible
for a CDL. Section 383.25 would also contain specific requirements for
the CDL holder who must accompany the CLP holder and would specify the
eligibility requirements for the CLP applicant, such as age and
knowledge and skills tests. Section 383.25 would also specify that the
CLP must be separate from the CDL and that it may be valid for no more
than 180 days, with one 90 day renewal.
5. Section 383.37, Employer's Responsibilities
    FMCSA proposes to amend Sec.  383.37 to specify that an employer
may not allow a driver to operate a CMV without or in violation of a
current CLP or CDL with the proper class or endorsements. Although it
is obvious that a driver must have a proper license to legally operate
a CMV, adding the specific prohibition to Sec.  383.37 would facilitate
enforcement actions against negligent employers.
6. Section 383.51, Disqualification of Drivers
    FMCSA proposes to add references to CLPs throughout Sec.  383.51 to
make a person with a CLP subject to the same disqualifying offenses
that apply to a CDL holder in Sec.  383.51, Tables 1 and 2, including
those that occur when operating a non-CMV.
7. Section 383.71, Driver Application Procedures
    Section 383.71 would be completely revised to add specific
application procedures for CLPs and to amend the application procedures
for CDLs by updating the requirements for providing information on the
applicant's actual address or domicile and for surrendering previously
issued licenses.
8. Section 383.72, Implied Consent to Alcohol Testing
    Section 383.72 would be revised to apply the section to CLP holders
as well as CDL holders.
9. Section 383.73, State Procedures
    Section 383.73 would be revised to impose specific requirements for
how States may issue CLPs. Also, the requirements on State procedures
for processing CDL applications would be amended to update the
requirements for providing information on citizenship and the
applicant's actual address or domicile; for completing the Social
Security Number verification; for surrendering previously issued
licenses; and to limit CDLs to a maximum term of 8 years before renewal
is required. Also, to control against use of false addresses, the State
would be required to mail the initial CLP or CDL to the address
provided on the application form. Three other fraud control measures
would be added: A requirement that the State have at least two persons
check and verify all documents involved in the licensing process; a
requirement that the State establish computer system controls that
prevent changes to records of transactions, unless they are done by
supervisory personnel only and are documented; and a requirement that
the State cancel or revoke a CDL if the holder has been convicted of
fraud related to the CDL application or testing process.
10. Section 383.75, Third Party Testing
    Section 383.75 would be revised to add new requirements to ensure
that third party testers use the same materials and procedures as State
testers, to enhance State oversight, and to facilitate the prevention
of fraud.
    Specifically, the third party tester would be required to use the
same test scoring sheets, written instructions for applicants, and
skills tests as the State uses. Also, the third party tester would be
required to use designated road test routes that have been approved by
the State.
    Enhanced oversight measures would include the following:
     The State would be required to conduct an annual on-site
inspection of the test sites.
     The third party tester and individual examiners employed
by the tester would be required to apply for a skills testing
certificate. To qualify for the certificate, the individual examiners
would have to successfully complete a formal skills test examiner
training course.
     The third party tester would have to submit a weekly
schedule of skills test appointments for the following week. This would
allow State inspectors to plan visits to the testing sites on days when
tests will be administered.
     The third party tester would have to maintain copies of
records showing compliance with these rules at its principal place of
business.
     The third party tester would have to conduct at least 50
skills tests annually and each individual examiner employed by the
tester would have to conduct at least 10 skills test annually. These
minimums would ensure that the costs of oversight do not exceed the
benefits to the State that accrue from having the third party tester.
In addition, the minimums would ensure that each tester and examiner is
conducting enough tests to maintain his/her expertise. However, FMCSA
is aware that some States have approved motor carriers as third party
testers to conduct tests for their own employees. FMCSA specifically
requests comments on whether the requirements for minimum numbers of
tests per year would adversely affect such motor carriers.
    Measures intended to ensure the integrity of the test process would
include the following:
     At least annually, State employees would be required to
co-score actual skills tests along with the third party tester to
compare pass/fail results.
     The results of any test conducted by a third party
examiner would have to be transmitted to the State through a secure
electronic means.
     The third party tester would be required to maintain a
bond in an amount specified by the State. In cases where a third party
examiner has been involved in fraudulent activities, the State may
decide that all or some of the drivers that had been tested by that
examiner should be retested to ensure that they are qualified to hold a
CDL. The bond would be used to reimburse the State for the expense of
retesting these drivers.
11. Section 383.77, Substitute for Driving Skills Test
    FMCSA proposes to remove and reserve Sec.  383.77 because this
section was originally intended to be used only for the initial testing
cycle prior to April 1, 1992, when the CDL program was initiated. It is
no longer needed.
12. Section 383.79, Skills Testing of Out-of-State Students
    Section 383.79 would be added to prescribe how a State must handle
the administration of skills tests to applicants who have taken driver
training in that State, but are domiciled in a different State.
13. Section 383.93, Endorsements
    Section 383.93 would be amended to add the requirement that the
only endorsement allowed on a CLP is a passenger endorsement, which
allows a CLP holder to only drive an empty bus, accompanied by a CDL
holder, for training purposes. The States would also be required to use
the codes listed in Sec.  383.153 on the CLP or CDL to show

the endorsements for which that driver has qualified.
14. Section 383.95, Air Brake Restrictions
    FMCSA proposes to broaden the scope of this section to address
other types of restrictions, such as the automatic transmission, non-
fifth wheel, and passenger vehicle restrictions.
15. Section 383.110, General Requirement
    FMCSA proposes to update the requirements in Sec.  383.110 and the
other sections in subpart G to require States to use the knowledge and
skills testing standards developed jointly by AAMVA and FMCSA. The
current requirements are general and do not mandate that all States
follow the same specific requirements for designing the knowledge and
skills tests.
16. Section 383.111, Required Knowledge
    Section 383.111 would be revised to add more details to the lists
of topics that must be included in the knowledge tests. The new
requirements include 20 general areas of knowledge.
17. Section 383.113, Required Skills
    Section 383.113 would be revised to add more details to the lists
of skills that must be demonstrated in the skills tests. The new items
include requirements relating to pre-trip vehicle inspections, basic
vehicle control, and safe on-road driving skills.
18. Sections 383.115, Requirements for Double/Triple Trailers
Endorsement, 383.117, Requirements for Passenger Endorsement, 383.119,
Requirements for Tank Vehicle Endorsement, 383.121, Requirements for
Hazardous Materials Endorsement, and 383.123, Requirements for a School
Bus Endorsement
    FMCSA proposes to amend Sec. Sec.  383.115-383.123 to add general
operating practices and procedures to the list of topics applicants
must know for each of these endorsements. This new category covers
questions in the tests that do not fit into the other categories, but
address important safety issues. In addition, Sec.  383.123(a)(1) would
be amended to clarify that applicants for a school bus endorsement must
also obtain a passenger vehicle endorsement, that is, both a ``P'' and
an ``S'' endorsement to qualify to operate a school bus.
19. Appendix to Subpart G
    FMCSA proposes to remove the appendix to subpart G of part 383. It
contains sample guidelines for States to use in choosing topics to
include in the knowledge and skills tests that they administer to CDL
applicants. The appendix would not be needed because FMCSA proposes to
incorporate by reference the AAMVA 2005 Requirements Document as the
Federal knowledge and skills testing standard. (See proposed Sec.
383.9.) The AAMVA test package contains the specific tests and manuals
that States would be required to use.
20. Section 383.131, Test Manuals
    FMCSA proposes to revise paragraphs (a) and (b) of Sec.  383.131 to
require States to use the current 2005 edition of AAMVA's ``Model
Commercial Driver Manual'' and ``Model CDL Examiner's Manual'' that are
components of AAMVA's ``2005 CDL Test System'' and are to be
incorporated by reference under proposed Sec.  383.9.
    FMCSA also proposes to add a new paragraph (c) to Sec.  383.131 to
require States to record and retain the knowledge and skills test
scores for each applicant. As part of a fraud detection and prevention
program, the test scores will be verified before the issuance of a CLP
or CDL.
21. Section 383.133, Test Methods
    FMCSA proposes to revise Sec.  383.133 to require States to use the
current edition of AAMVA's ``2005 CDL Test System'' that would be
incorporated by reference under proposed Sec.  383.9 to develop,
administer, and score the knowledge and skills tests for each vehicle
group and endorsements.
    FMCSA also proposes to add language to Sec.  383.133 to specify in
what form the knowledge test may be administered. These changes would
incorporate the current guidance on the testing methods to be used by
States.
22. Section 383.135, Passing knowledge and Skills Tests
    FMCSA proposes to change the title of Sec.  383.135 to better
reflect the content of the proposed revisions to the section. The
revisions would include a clarification as to what restrictions must be
placed on a CLP or CDL when an applicant fails the air brake and/or
combination vehicle knowledge tests or performs the skills tests in a
vehicle that is not equipped with full air brakes, air over hydraulic
brakes, manual transmission, and/or in a combination vehicle without a
fifth wheel trailer connection. The revision also proposes to clarify
that an applicant does not have to take the complete set of skills
tests to remove one or more of the restrictions. It is also proposed
that the current 2005 edition of AAMVA's ``2005 CDL Test System'' be
used by the States in scoring the skills tests.
23. Subpart J, Commercial Driver's License Document
    Subpart J of part 383, including Sec. Sec.  383.151 and 383.153,
would be expanded in scope to address the document requirements for
CLPs as well as for CDLs.
24. Section 383.155, Tamperproofing Requirements
    Section 383.155 would be revised to apply the requirements for
tamperproofing to CLPs, as well as CDLs.

B. Proposed Changes to Part 384

    The purpose of part 384, State Compliance With Commercial Driver's
License Program, is to ensure that the States comply with the
provisions of section 12009(a) of the Commercial Motor Vehicle Safety
Act of 1986 (49 U.S.C. 31311(a)). Part 384 includes the minimum
standards for the actions States must take to be in substantial
compliance with each of the 21 requirements of 49 U.S.C. 31311(a),
establishes procedures for FMCSA determinations of State compliance,
and specifies the consequences of State noncompliance.
1. Sections 384.105, Definitions; 384.204, CDL Issuance and
Information; 384.205, CDLIS Information; 384.207, Notification of
Licensing; 384.208, Notification of Disqualification; 384.209,
Notification of Traffic Violations; 384.210, Limitations on Licensing;
384.212, Domicile Requirement; Section 384.214, Reciprocity; 384.220,
Problem Driver Pointer System Information; 384.225, Record of
Violation; 384.226, Prohibition on Masking Convictions; 384.231,
Satisfaction of State Disqualification Requirement; and 384.405,
Decertification of State CDL Program
    These sections would be amended to apply the requirements for State
issuance of CDLs to the issuance of CLPs as well. In addition, Sec.
384.220 would be revised to refer to the Problem Driver Pointer System
instead of the National Driver Register.
2. Section 384.206, State Record Checks
    This section would be revised to apply the requirements for State
issuance of CDLs to the issuance of CLPs as well. The proposal would
also add specific required actions that States must take as a result of
receiving

adverse information about an applicant or CLP/CDL holder.
3. Section 384.211, Surrender of Old Licenses
    This section would be revised to specify that previously issued
licenses, including a CLP or non-CDL, must be surrendered not only when
a CDL is initially issued, but also when a CDL is upgraded or
transferred.
4. Section 384.217, Drug Offenses
    Section 384.217 would be revised to add commission of certain
felonies committed by CDL holders in non-CMVs to the list of offenses
for which the States must disqualify persons from operating CMVs. This
change corrects an omission in the current regulations. Current Sec.
384.217 fails to require the State to enforce Sec.  383.51(b) for
offenses in both CMVs and non-CMVs.
5. Section 384.227, Record of Digital Image or Photograph
    Section 384.227 would be added to require States to include a
digitized color photograph in the driver history records and to review
the photograph when replacement licenses are issued. This requirement
would prevent a different individual from obtaining a license by
falsely claiming that a CDL had been lost or stolen.
6. Section 384.228, Examiner Training and Record Checks
    Section 384.228 would be added to impose new training requirements
and background checks for examiners. This section would apply to all
examiners, both those employed by the State and those employed by third
party testers. The State would be required to establish initial and
refresher training that meets or exceeds the requirements established
in this section. The established requirements for the examiner and
refresher training are based on the December 2006 edition developed by
AAMVA, titled ``International Certified Commercial Certification
Program.'' This program which supplements AAMVA's ``2005 CDL Test
System,'' was developed by AAMVA in cooperation with FMCSA. Therefore,
a test examiner certified under this program who maintains the
certification will meet these proposed training requirements.
    All examiners would have to successfully complete the CDL test
examiner training course and pass an examination before the State may
certify them to administer CDL tests.
    The State would also have to conduct initial and annual criminal
background checks of all test examiners. The State would also be
required to maintain records of the training and certification of the
examiners and the results of the criminal background checks. The State
would be required to rescind the examiner's certification if he/she
does not successfully complete the refresher training or fails the
annual criminal background check.
7. Section 384.229, Skills Test Examiner Auditing and Monitoring
    Section 384.229 would be added to require States to audit and
monitor both State and third party examiners who work for third party
testers to ensure that the CDL program is working as intended. States
would be required to conduct unannounced annual on-site inspections of
third party tester and examiner records to compare the results of the
tests of applicants who receive CDLs with the scoring sheets for the
tests. States would also be required to conduct both covert and overt
monitoring of both State and third party skills test examiners. The
State would have to establish and maintain databases that contain
information on each examiner, information on the tests administered by
each examiner, and the results of audits and monitoring, including the
pass/fail rates of individual examiners. This would enable the State to
identify examiners who have unusually high pass or failure rates.
8. Section 384.301, Substantial Compliance--General Requirements
    Section 384.301 would be amended by adding a new paragraph (c).
FMCSA has always given the States 3 years after the effective date of
any new rule to come into substantial compliance with new CDL
requirements. This allows the States time to pass any necessary new
legislation and modify State systems to comply with the new
requirements, including CDLIS. New paragraph (c) would specify the 3
year compliance date for States.

C. Proposed Changes to Part 385

    One of the purposes of part 385, Safety Fitness Procedures, is to
establish the FMCSA's procedures to determine the safety fitness of
motor carriers, to assign safety ratings, to direct motor carriers to
take remedial action when required, and to prohibit motor carriers
receiving a safety rating of ``unsatisfactory'' from operating a CMV.
FMCSA proposes to add Sec.  383.37(a) as an acute violation in appendix
B of part 385. Allowing a driver to operate a CMV without a CLP or CDL,
or without the appropriate endorsement, is a serious matter warranting
classification as acute.

V. Regulatory Analyses and Notices

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

    FMCSA has determined that this action is a significant regulatory
action within the meaning of Executive Order (E.O.) 12866, as amended
by E.O. 13258 and E.O. 13422, and the meaning of Department of
Transportation regulatory policies and procedures because of public and
Congressional interest in CMV licensing issues. However, we expect the
costs of the proposed rule to be fairly low. The Agency has prepared a
preliminary regulatory analysis analyzing the costs and benefits of
this undertaking, summarized below. A copy of the complete preliminary
analysis document is included in the docket referenced at the beginning
of this notice.
    Many of the provisions of this rule would not impose significant
costs on the States or industry either because most States are already
complying with the proposed requirements or because other regulations
have already brought the States or industry into compliance with these
rules (for instance, the minimum age requirement for CLPs would not
have any costs associated with it because drivers under 18 are banned
by current regulations from operating CMVs in commerce). Those
provisions estimated to be of minimal economic significance include:
strengthening the legal presence requirements; Social Security number
verification; surrender of CLP, CDL, and non-CDL documents; maximum
issuance and renewal periods for CLPs and CDLs; establishing a minimum
age for a CLP; limiting endorsements on the CLP to passenger only;
methods of administering the CDL test; new standardized endorsement and
restriction codes; motor carrier prohibitions; and incorporating
regulatory guidance into text. Other provisions in this rule do have
some cost implications, and include minimum standards for issuing a
CLP; checking for previous driving offenses by a CLP holder; CDL
testing requirements for out-of-State training schools; State
reciprocity for CLPs; updating Federal knowledge and skills test
standards; and incorporating certain of the SAFE Port Act provisions.
    Of the proposed rule changes that have potential cost implications,
many affect the States by requiring extra steps in processing CLPs and
CDLs. These include recording CLPs on CDLIS and

making the CLP a tamper-proof document (under minimum uniform standards
for issuing CLPs); checking for previous driving offenses by CLP/CDL
holders (which would require an additional PDPS record check); and
implementing section 703a of the SAFE Port Act. We estimate that these
provisions, taken together, would add 5 minutes to the amount of time
it takes a State to process a license document. In addition, an extra
$1.40 per CLP issued would be incurred to make the CLP tamper-proof,
and a $1 cost would be incurred for each CLP placed on CDLIS that is
not eventually converted into a CDL. States are charged $1 for each
record on CDLIS. Since both CDLs and CLPs count as a record, each CLP
recorded on CDLIS that is not converted to a CDL costs States an extra
$1 per year when compared to the status quo, in which States only have
to record CDLs on CDLIS. Converting a CLP to a CDL does not result in
an additional record on CDLIS, so the CLP holders who successfully
convert to CDLIS would be added to the system anyway and would
therefore not result in an extra cost to the States. Taking all of
these costs together, the estimated cost of these provisions is $1.76
million annually.
    The SAFE Port Act provisions would result in additional costs to
the States. These provisions would require the States to enhance
training programs for CDL skills test examiners, and to conduct
additional oversight of these examiners to ensure that they are
properly conducting skills tests and to deter fraud. All States
currently have training programs for skills test examiners, but these
programs vary widely. It is estimated that the requirements of this
rule would result in the need for States to add an additional day to
their current training program for skills test examiners. In addition,
there is a continuing or refresher training requirement incorporated
into these provisions, and it is estimated that this continuing
education requirement would necessitate 16 hours of additional training
for skills test examiners every 4 years. The cost of these training
requirements is $280,000 for the additional day of initial training,
and $560,000 for the continuing education requirement, which would be
incurred every 4th year after the year of implementation. It is assumed
that this training would facilitate the States' adoption of the new
knowledge and skills testing standards, and that, therefore, no
additional costs would be incurred for adoption of these standards.
    In addition to improved training, this rule would require States to
enhance monitoring of skills test examiners. These measures would
include an annual review of each skills test examiner location, and
overt and covert monitoring of the skills test examiners at each
location, to protect against fraud and ensure that examiners are
conducting the test properly. States are currently required to conduct
reviews of third party testers annually, and to overtly monitor third
party testers in one of two ways. Some States monitor third party
examiners by re-testing a portion of the drivers the third party
tested, to ensure that those drivers have the skills to pass the test.
In other States, a State representative takes the CDL skills test from
examiners at each location as if the State employee were a driver
taking the test. The intent of both of these measures is to ensure that
the skills test examiners at each third party testing organization are
properly conducting tests.
    Some States are already conducting both covert and overt monitoring
of skills test examiners, but others provide much less oversight.
However, all States should be conducting annual reviews of all third
party testers and conducting some monitoring of the examiners to ensure
that they are conducting the test properly, and to protect against
fraud. This rule would require the States with less rigorous oversight
to track the performance and record of all skills test examiners, and
invest in enhanced enforcement, which may mean hiring or re-designating
a certain number of enforcement personnel to engage in covert and overt
monitoring of CDL examiners.
    The Agency has personnel who also conduct reviews and overt and
covert monitoring of skills test examiners. These reviews typically
take one day for both overt and covert monitoring. This analysis will
assume that each State is currently conducting overt reviews/audits of
skills test examiners and overt monitoring of skills test examiners as
required by current regulations. Each State would, therefore, have to
add the covert monitoring piece to its oversight program, and covert
reviews would take approximately half a day to conduct. The Agency
estimates that there are somewhere between 500 and 1,800 skills test
locations in the United States. Taking a rough midpoint between these
two figures yields an estimated 1,200 skills testing sites. Halving
this number to account for the half day covert review of each sight
yields an estimated 600 monitoring days each year. Assuming each
examiner works 250 days a year, an additional 2.4 full time equivalent
examiners would be required nationwide to conduct monitoring of skills
testing sites. According to the United States Bureau of Labor
Statistics, detectives and criminal investigators make an annual salary
of $58,750. We inflate this figure by 30 percent to account for the
value of non-monetary benefits earned by people in this occupation, for
a total annual compensation of $76,375. The cost associated with the
additional 2.4 full time equivalent examiners is $183,000. This would
be the annual cost of the enhanced monitoring of skills test examiners.
    Table 1 below presents the total cost of these provisions over 10
years. In addition to the cost of specific provisions contained in this
rule, FMCSA estimated $200,000 per State for the minor IT upgrades that
may be needed to comply with these requirements. These costs are
presented in the IT Upgrades row. Years 6-10 mimic years 2-5 with
respect to cost, and are therefore lumped together in one column. As
can be seen, the total cost of these provisions vary between $1.9 and
$12 million per year. The estimated 10 year cost of this rule would be
approximately $26 million.

                                                                 Table 1.--Costs of Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Year 1          Year 2          Year 3          Year 4          Year 5        Years 6-10         Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
CDL Processing..........................      $1,759,850      $1,759,850      $1,759,850      $1,759,850      $1,759,850      $8,799,250     $17,598,500
Skills Test Training....................         280,000               0               0               0         560,000         560,000       1,400,000
Covert Monitoring.......................         183,300         183,300         183,300         183,300         183,300         916,500       1,833,000
IT Upgrades.............................      10,200,000               0               0               0               0               0      10,200,000
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................      12,423,150       1,943,150       1,943,150       1,943,150       2,503,150      10,275,750      31,031,500
                                         ===============================================================================================================

    Total, 7 percent discount...........      12,423,150       1,816,028       1,697,222       1,586,189       1,909,641       6,404,139      25,836,370
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Two other provisions of this rule have cost implications. CLP
reciprocity and CDL testing requirements for out-of-State driver
training school students would serve to reduce costs compared to
current practices. Two alternatives to the status quo were considered
by the Agency. Both alternatives require State reciprocity in
recognizing CLPs issued by other States. One alternative would then
allow the State in which training and testing occurs to issue a
temporary CDL to out-of-State students who pass that State's skills
test. These students would then return to their State of domicile and
convert the temporary CDL into a CDL. The other alternative would
require States to recognize the results of skills tests conducted in
any other State. Under this alternative, the driver would train and
test in another State, and then his or her State of domicile would
issue a permanent CDL based on the other State's skills test results.
The baseline scenario will be referred to as Alternative 1, the
temporary CDL scenario will be referred to as Alternative 2, and the
skills test scenario will be referred to as Alternative 3.
    For those who go out of their State of domicile to train, the
options differ regarding the number of licenses (and hence fees) that
trainees must obtain.
    Currently, drivers who go out of State to train do so in violation
of the domicile requirement. Those drivers must obtain a driver's
license and a CLP from the State in which they are trained (in addition
to, or to replace, the driver's license from their State of domicile).
They can either return to their home State to be tested (and they must
find a vehicle to be tested in); or, they can be skills tested in the
State of training (in which case the training school will usually
provide a vehicle for the skills test).
    CDL costs, on average, $45.15, although the fees States charge for
a driver's license vary widely. The costs of the alternatives being
considered here will, therefore, vary widely depending on the State
where drivers train and their State of domicile. This analysis will use
national average figures to estimate the costs of the rule for the
``average'' driver. The average cost of a CLP is $16.88, and $22.10 for
a driver's license. For the purposes of this analysis, it will be
assumed that all applicants for a learner's permit already have a
driver's license from their State of domicile. The total cost of
Alternative 1, which requires drivers to obtain both a new driver's
license in the training State ($22.10), a CLP in the training State
($16.88), a CDL in the training State ($45.15), and a CDL transfer to
their State of domicile ($45.15), will average $129.28 per out-of-State
trainee.
    For Alternative 2, driver trainees must get a CLP from their State
of domicile, attend training and be tested out of State, be issued an
out-of-State temporary CDL, and return to their home State to convert
the temporary CDL into a CDL from their home State. While the average
cost of a regular CDL is known, FMCSA has no information on what States
might charge for issuing a temporary out-of-State CDL. It will be
assumed here that the cost of the temporary CDL is the same as the cost
of a CLP, as both are temporary documents. Given this assumption, the
cost to the driver of this alternative would be $78.91, consisting of
the cost of a CLP, a temporary CDL, and a permanent CDL in the driver's
State of domicile. The driver would not have to obtain a new base
license from the training State because, due to CLP reciprocity, the
driver would be able to use his current driver's license from his State
of domicile to train in another State.
    The final alternative would be to require States of domicile to
accept skills test results from a training facility in another State.
Under this scenario, the driver would incur the cost of one CLP, issued
by his or her State of domicile, and one CDL, also issued by the State
of domicile. The total cost to the driver of this alternative would
therefore be $62.03. This alternative obviously minimizes costs for
driver trainees. The driver-related costs of the three alternatives are
summarized in Table 2 below. As can be seen, Alternative 2 cuts the
fees associated with getting a CDL by more than 50 percent for out-of-
State driver trainees.

                         Table 2.--Cost per Driver of Out-of-State Training Alternatives
----------------------------------------------------------------------------------------------------------------
                                                                                Alternative 2
                                                            Status quo (with    Alternative 1     (skills test
                                                              out-of-State     (temporary CDL)        score
                                                                training)                          acceptance)
----------------------------------------------------------------------------------------------------------------
Driver's License Costs....................................            $22.10               N/A               N/A
Learner's Permit Costs....................................             16.88            $16.88            $16.88
CDL Costs.................................................             90.30             62.03             45.15
                                                           -----------------------------------------------------
    Total Cost to Driver..................................            129.28             78.91             62.03
----------------------------------------------------------------------------------------------------------------

    Table 3 below presents the total cost savings of Alternatives 2 and
3 in comparison to Alternative 1. These cost figures are based on an
estimated 610,000 CLPs issued per year. It is assumed that
approximately 20 percent of CDL trainees currently attend out-of-State
training schools, so the total cost is based on 122,000 out-of-State
drivers training in other States, and the licensing cost implications.
Related to the licensing costs described for these three Alternatives
are costs to CDL applicants for obtaining a license. CDL applicants
must pay licensing fees, but also lose time at a State driver licensing
agency (SDLA) office every time they must obtain a new license or
permit. Drivers must apply in person for a CDL, CLP, or to transfer a
CDL from one State to another. Since each of the alternatives described
here differs in the number of licenses or permits the driver must
obtain, they vary in respect to the amount of time drivers must spend
at SDLA offices. All of the alternatives are equivalent to one another
for drivers

who train in his/her State of domicile. Only drivers who train out of
State are affected. For these drivers, Alternative 1 (the status quo)
requires 4 license transactions (regular operator's license from the
training State, CLP from the training State, CDL from the training
State, and a license transfer back to the State of domicile);
Alternative 2 requires 3 licensing transactions (CLP from State of
domicile, temporary CDL from training State, and permanent CDL from
State of domicile); and Alternative 3 requires 2 licensing transactions
(CLP from State of domicile, and CDL from State of domicile).
    We assume that each license transaction will take approximately 30
minutes of time, and that a trip to the SDLA will take, on average, 30
minutes round trip (15 minutes each way), for a total of an hour per
licensing transaction. We value this time at the average wage for
production (manufacturing) workers, which is $14.37. We inflate this
figure by 30 percent to account for the value of benefits to $18.68.
The cost for each Alternative can then be calculated by multiplying the
number of licensing transactions by the hourly compensation rate. For
Alternative 1, this cost is 4 x $18.68 = $74.72. Alternative 2 has a
per trainee cost of $56.04. Alternative 3 has a per trainee cost of
$37.36. Given the estimated 475,000 licenses issued per year and the
assumption that 20 percent of trainees go out-of-State for driver
training, we apply the costs for each alternative to 122,000 drivers-
in-training. Table 3 summarizes these costs. The final row of this
table, cost savings over baseline, provides the estimated benefits of
accommodating out-of-State training under both alternatives to the
current situation.

                                  Table 3.--Total Cost Savings for Alternatives
----------------------------------------------------------------------------------------------------------------
                                                              Alternative 1     Alternative 2     Alternative 3
----------------------------------------------------------------------------------------------------------------
Number of licensing transactions..........................                 4                 3                 2
Total Licensing fees (122,000 drivers)....................       $15,772,160        $9,627,020        $7,567,660
Lost time cost............................................         9,115,840         6,836,880         4,557,920
                                                           -----------------------------------------------------
    Total.................................................        24,888,000        16,463,900        12,125,580
                                                           =====================================================
    Cost Savings over baseline............................                NA         8,424,100        12,762,420
----------------------------------------------------------------------------------------------------------------

    Table 4 below presents a comparison of the benefits and costs of
this rule over 10 years, including the costs discussed above for CDL
processing, skills test examiner training, etc. Costs for Alternative
1, the baseline scenario, are not presented because they are analogous
to the costs as presented in Table 1. The annual benefits presented for
Alternatives 2 and 3 are the annual cost savings that accrue to drivers
due to accommodating out-of-State training. As can be seen, both
alternatives have positive net benefits. This NPRM proposes to adopt
Alternative 3.

            Table 4.--Comparison of Total Benefits and Costs
------------------------------------------------------------------------
                                        Alternative 2     Alternative 3
------------------------------------------------------------------------
10 Year Total Cost, from Table 1 (7        $25,836,370       $25,836,370
 percent discount)..................
Total Benefit.......................        63,309,068        95,912,550
                                     -----------------------------------
    Net Benefit.....................        37,472,698        70,076,180
------------------------------------------------------------------------

Safety Benefits
    Most of the provisions of the NPRM are intended to have positive
safety benefits, including the minimum age requirement for CLPs,
requiring that the general knowledge and P endorsement knowledge tests
be passed prior to issuing a CLP or P endorsement on a CLP, and the
standardization of CDL knowledge and skills testing. Although the new
tests may be somewhat more rigorous than the current versions being
used by the States, it is unclear whether the new test models would be
so rigorous as to lower pass rates for applicants or significantly
improve driver safety. However, this rule should improve detection and
deterrence of fraud, and significant safety benefits may result from
preventing unqualified drivers from fraudulently obtaining CDLs.
    It is reasonable to argue that drivers who cannot develop the
skills necessary to pass either the skills or knowledge test would pose
an increased safety risk. Most States allow drivers multiple chances to
pass both the knowledge and skills test, and with proper training, most
drivers should be able to develop the skills necessary to pass. Those
who cannot have demonstrated that they are incapable of meeting a safe
minimum standard for controlling their vehicle and, therefore, pose an
increased risk to the public.
    The average number of large CMV crashes over the past 5 years for
which statistics are available is 420,000 per year, rounded to the
nearest 1,000. On average, a large truck crash is valued at $91,112 per
crash (including property-damage-only crashes). A non fatal injury
crash has an estimated cost of $195,258, and a fatal crash has an
estimated cost of $3,604,518. The costs of this rule are estimated at
$6.5 million in the most expensive years (those in which continuing
education is required of skills test examiners), $5 million in the
initial year, and $3.7 million in other years. We have estimated the
discounted safety benefits of this rule at approximately $75 million
over 10 years. Adding the $75 million in total 10 year net benefits due
to crash reduction to the estimated $70 million in 10 year net benefits
associated with improved driver training opportunities, this rule has a
potential 10 year net benefit of $145 million.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act, as amended, (5
U.S.C. 601-612), FMCSA has considered the effects of this proposed
regulatory action on small entities and determined that this proposed
rule would not have a significant impact on a substantial

number of small entities, as defined by the U.S. Small Business
Administration's Office of Size Standards. This rulemaking proposal
would primarily affect drivers rather than motor carriers, and most of
the provisions apply primarily to new drivers rather than drivers who
have CDLs. The exception would be drivers who have a class B or C CDL
and are applying to move up to a Group A, or drivers seeking
specialized endorsements which require a skills test, such as a P
endorsement. Since this rule applies to drivers rather than motor
carriers, owner-operator motor carriers would be the only small
entities directly affected by this rule. We estimate that there are
roughly 300,000 owner-operators currently operating in the United
States. The drivers of these vehicles may be affected by these
regulations if they want to change classes or gain new endorsements on
their CDL. For the most part, this proposal has a positive impact on
CDL drivers or driver-applicants because it facilitates the ability of
these drivers to obtain the lowest cost or most convenient training for
their CDL, CDL upgrade, or endorsement skills test.
    The other type of entity affected by this rule would be third party
skills test examiners. These examiners would undergo periodic covert
monitoring, but assuming they are administering the skills test
properly, this monitoring would be at no cost to them. In addition, the
employees who conduct skills testing may have to participate in
additional training in order to remain eligible to conduct skills test
examinations. The Agency estimates that there are approximately 1,200
third party skills testing organizations currently in operation in the
United States. Information on these organizations is difficult to
obtain, but some are affiliated with larger motor carriers. Others
would qualify as small businesses, but the Agency is currently unsure
of how many might fall into the small business category. We estimate
that half, or 600, skills testing organizations are small businesses.
These organizations would have to bear the cost of enhanced training of
the examiners they employ. These costs were estimated in the Regulatory
Impact Analysis at $200 per examiner per day of training, at an average
of one-half day of training every year. The cost to these entities
would, therefore, be approximately $100 per year per skills test
examiner employed. Most skills testers are trucking firms, educational
organizations, or municipal organizations that do not derive their
primary income from skills testing. Based on Census Bureau data, we
estimate that trucking firms have an annual average profit margin of