[Federal Register: September 28, 2005 (Volume 70, Number 187)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383 and 384
[Docket No. FMCSA-2005-21603]
Commercial Driver's License Standards; School Bus Endorsement
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Interim final rule.
SUMMARY: FMCSA amends the Federal Motor Carrier Safety Regulations
(FMCSRs) to specify that a driver who passed knowledge and skills tests
approved by the Agency for a Commercial Driver's License (CDL) school
bus endorsement prior to September 30, 2002, meets the requirements of
49 CFR 383.123. FMCSA also amends the FMCSRs to provide that States
have until September 30, 2006, to administer knowledge and skills tests
that comply, to all school bus drivers. Finally, to conform with
extension of the compliance date, the expiration date for allowing
States to waive the driving skills test under 49 CFR 383.123(b) is
extended to September 30, 2006. As a result of this interim rule, the
2-year exemptions for drivers in 11 States from the knowledge and
skills testing requirement proposed in the FMCSA notice published July
14, 2005, are no longer necessary.
DATES: Effective September 28, 2005. Comments must be received by
October 28, 2005.
ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FMCSA-2005-21603 by any of the following methods:
- Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic site.
- Fax: 1-202-493-2251.
- Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
- Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
- Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
Instructions: All submissions must include the agency name and
docket number (FMCSA-2005-21603) or Regulatory Identification Number
(RIN) for this rulemaking (RIN 2126-AA94). Note that all comments
received will be posted without change to http://dms.dot.gov, including
any personal information provided. Please see the Privacy Act heading
for further information.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000, (65 FR 19477) or you may visit http://dms.dot.gov.
Comments received after the comment closing date will be included
in the docket, and we will consider late comments to the extent
practicable. FMCSA may, however, issue a final rule at any time after
the close of the comment period.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Lamm, Chief, State
Programs Division (MC-ESS), Federal Motor Carrier Safety
Legal Basis for Rulemaking
The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) (Pub. L. 9-
570) established the commercial driver's license (CDL) program and
directed the Secretary of Transportation to prescribe regulations
establishing minimum standards which States must meet when licensing
drivers of commercial motor vehicles (CMVs), as defined in 49 U.S.C.
31301.\1\ Sec. 12005 of the CMVSA directed that these regulations must,
among other things, prescribe minimum standards for written and driving
tests of an individual operating a CMV (see 49 U.S.C. 31305). The
regulations governing minimum testing and fitness standards for
obtaining a CDL are contained in 49 CFR part 383.
\1\ As pertinent to this rulemaking, a CMV is a motor vehicle
used in commerce that is designed to transport at least 16
passengers, including the driver. See 49 U.S.C. 31301(4)(B).
Section 214 of the Motor Carrier Safety Improvement Act of 1999
(MCSIA) (Pub. L. 106-159) directed the Secretary to establish, through
rulemaking, a special CDL endorsement for drivers of school buses. At a
minimum, this endorsement must include a driving skills test in a
school bus, and address proper safety procedures for loading and
unloading children, using emergency exits and traversing highway rail
grade crossings (see 49 U.S.C. 31305 note). The regulations
implementing section 214 of MCSIA are found at 49 CFR 383.123. As
provided in 49 CFR 384.301, States must implement Sec. 383.123 no
later than September 30, 2005.
Section 4140(a) of the recently enacted Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU or the Act) (Pub. L. 10-59) requires the Secretary to "* *
* recognize any driver who passes a test approved by the Federal Motor
Carrier Safety Administration as meeting the knowledge test requirement
for a school bus endorsement under section 383.123 of title 49, Code of
Federal Regulations." Because Sec. 383.123 requires a driver to pass
both knowledge and skills tests, FMCSA interprets the Act to require
the Secretary to recognize any driver who passes approved knowledge and
skills tests. As discussed in greater detail later in this interim
final rule, section 4140 was enacted in response to FMCSA's previous
determination that a driver who passed a State's knowledge and skills
tests before the September 30, 2002, effective date of Sec. 383.123,
would not be in compliance with that section, even if the tests were
compatible with the Federal standards. Section 4140(a) overrides
FMCSA's determination and eliminates the need for States to retest
drivers who passed State knowledge and skills tests before September
30, 2002, that FMCSA determines are compatible with Sec. 383.123.
Section 4140(b) of the Act was enacted in response to requests to
Congress from interested parties, including the States, to extend the
compliance date for meeting the Federal testing requirement from
September 30, 2005, to September 30, 2006. Currently section 383.123(b)
permits States to waive the driving skills test requirement for
currently-licensed school bus drivers who meet certain conditions.
However, this provision expires on September 30, 2005. Because this
sunset date for waiving the skills tests is part of the testing
provisions of Sec. 383.123, FMCSA interprets this section of the Act
as also having extended the sunset date of Sec. 383.123(b) from
September 30, 2005, to September 30, 2006.
This interim final rule implements section 4140 of SAFETEA-LU.
FMCSA issues this interim rule without prior notice and opportunity to
comment under section 4 of the Administrative Procedure Act (APA) [5
U.S.C. 553(b)]. Section 4 of the APA allows the Agency to issue a final
rule without notice and opportunity to comment when the agency, for
good cause, finds that notice and comment procedures are
"impracticable, unnecessary or contrary to the public interest."
Prior notice and opportunity to comment are impracticable for this
interim final rule because Congress directed, in section 4140, that
States be given until September 30, 2006, to comply with 49 CFR
383.123, rather than September 30, 2005. Therefore, it is necessary to
implement the regulatory changes required by section 4140 before
October 1, 2005, to specify that States have an additional year to
comply with Sec. 383.123. Because of the need for expedited action,
FMCSA finds that providing prior notice and opportunity for public
comment under 5 U.S.C. 553(b) is impracticable and contrary to the
public interest. Furthermore, because the regulatory changes made by
this rule must take effect by no later than September 30, 2005, FMCSA
finds there is good cause to make this rule effective upon publication,
in accordance with APA provisions found at 5 U.S.C. 553(d).
MCSIA included 17 new provisions aimed at improving the overall
effectiveness of the CDL program. Section 214 of MCSIA, codified at 49
U.S.C. 31311(a), directed FMCSA to establish a special CDL endorsement
for drivers of school buses. The endorsement is to, at a minimum,
1. A driving skills test conducted in a school bus; and
2. A knowledge test that addresses proper safety procedures for--
a. Loading and unloading children;
b. Using emergency exits; and
c. Traversing highway rail grade crossings.
A final rule implementing most of the MCSIA provisions, including
the school bus endorsement, was published on July 31, 2002, [67 FR 49742] and became effective on September 30, 2002.
Under 49 CFR 384.301(b), States were allowed up to 3 years after
the effective date of the regulation to implement the new CDL
requirements. Thus, by September 30, 2005, each State was required to
pass enabling legislation or issue regulations, as necessary, and begin
enforcing the new provisions, including the school bus ("S")
endorsement. States that failed to meet the deadline would be
considered "not in substantial compliance" with 49 U.S.C. 31311(a)
and subject to the loss of highway grant funds, in accordance with 49
CFR part 384, subpart D.
FMCSA worked with States to determine whether their tests would be
in compliance with the new school bus endorsement requirement. An
example of these efforts is documented by the October 22, 2004, letter
to Ohio approving its CDL school bus tests as meeting the requirements
of Sec. 383.123. The letter clearly points out that FMCSA approval
applies only to drivers who took the tests on or after September 30,
2002. A copy of the letter to Ohio is in the docket for this
At the annual American Association of Motor Vehicle Administrators
(AAMVA)/FMCSA co-sponsored meeting for CDL coordinators from all
States, held in December 2004, FMCSA was asked to explain more details
about the school bus endorsement requirement. FMCSA explained that
because Sec. 383.123 sets current and future requirements, tests
administered before the rule took effect could not be recognized as
complying with the rule. Therefore, every current school bus driver was
required to take and pass the tests required by Sec. 383.123 on or
after September 30, 2002. Drivers who passed otherwise compatible State
tests before September 30, 2002, would have to be retested before
September 30, 2005, if the States were to remain in substantial
compliance under 49 CFR part 384.
Subsequently, Ohio wrote to FMCSA expressing its disagreement with
FMCSA's position that only school bus drivers who had passed the
State's FMCSA approved test on or after September 30, 2002, could be
issued an "S" endorsement. Ohio was unhappy about the costs
associated with retesting drivers who had passed an approved test,
particularly because it did not see how the retesting requirement
contributed to safety. A copy of Ohio's letter to FMCSA is in the
docket for this rulemaking. Other States also advised FMCSA that they
needed an alternative to reduce the near-term burden on those States
that previously administered compatible knowledge and skills tests to
drivers, and who did not require such drivers to retake the knowledge
and skills tests for the school bus endorsement when they last renewed
Two separate actions were initiated to mitigate the potential
adverse impact on school bus operations for the fall of 2005. First,
based on expressions from State representatives at the AAMVA meeting,
the letter from Ohio and similar expressions from other States, FMCSA
began a process to grant 2-year exemptions from testing requirements
for school bus drivers who had passed tests compatible with FMCSA's
requirements before September 30, 2002. Second, several interested
parties, including the States, the National Education Association, and
the school bus transportation industry requested Congress to grant
authority for FMCSA to accept certain tests administered prior to
September 30, 2002, and to extend the September 30, 2005, compliance
date for issuing school bus CDL endorsements for all States, as part of
the transportation reauthorization bill (subsequently SAFETEA-LU).
FMCSA initiated its effort to offer 2-year exemptions to drivers
through a memorandum to all FMCSA Division Administrators, dated March
25, 2005, signed by William Paden, Associate Administrator for
Enforcement and Program Delivery. That memorandum and the FMCSA
response to Ohio based on this initiative are in the docket for this
Each Division Administrator was to notify his or her State that the
State could apply on behalf of its drivers for 2-year exemptions from
the retesting requirement. If the State wished to do so, it was to
submit copies of its tests administered before September 30, 2002,
including what was the minimum allowed passing test score. FMCSA would
review the tests and determine whether the tests were compatible. A
determination of whether exemptions would be granted to the drivers
would be made according to the procedures of Part 381, Subpart C--
Procedures for Applying for Exemptions. Sixteen States responded to
Tests submitted by three States were not deemed to meet the new
requirements of Sec. 383.123, and two States withdrew their tests from
consideration. Thus, tests for school bus drivers that were
administered by 11 States prior to September 30, 2002, were determined
by FMCSA to meet the requirements of the current regulations. The State
submissions also provided a measure of the number of school bus CDL
drivers who would need to be retested absent the proposed exemption.
FMCSA proposed in a July 14, 2005, notice [70 FR 40779] to grant 2-
year exemptions to the approximately 170,000 drivers identified by
these 11 approved States. The applications in response to the FMCSA
initiative, from the 11 approved States, are in the docket for this
rulemaking. Even with the proposed 2-year exemption for those drivers,
they would have been required to be retested by the end of the 2-year
The 11 States whose tests administered before September 30, 2002
were recognized by FMCSA as meeting Federal regulations are: Alabama,
Delaware, Illinois, Minnesota, Ohio, Pennsylvania, South Carolina,
South Dakota, Tennessee, Virginia, and Wisconsin. These States required
applicants to take a skills test in a school bus of the same vehicle
group as the vehicle the applicant intended to drive. They also used
school bus knowledge tests that incorporated the three topics required
by Sec. 383.123:
1. Loading and unloading children, including the safe operation of
stop signals, external mirror systems, flashing lights and other
warning devices and passenger safety devices required for school buses
by State or Federal law or regulation.
2. Emergency exits and procedures for safely evacuating passengers
in an emergency.
3. State and Federal laws and regulations related to safely
traversing highway rail grade crossings.
All comments to the docket for the July 14, 2005, notice supported
the proposed exemption. The commenters also pointed out that unless
some form of relief, such as the driver exemptions in the proposed
notice, was granted to their State from the September 30, 2005,
compliance retesting deadline, school bus operations would experience
major driver shortage problems beginning the first school day in
A second initiative took place at the same time. Several interested
parties including the States, the National Education Association, and
the school bus transportation industry, also requested Congress to: (1)
Clarify that tests administered before September 30, 2002 that complied
with FMCSA standards meet the compliance provisions of the CDL school
bus endorsement; and (2) extend the compliance date for the school bus
In response to the first part of their request, Congress enacted
section 4140(a) of SAFETEA-LU directing the Secretary to recognize any
driver who passes a test approved by FMCSA as meeting the knowledge
test requirement [[Page 56592]] for a school bus endorsement under 49 CFR 383.123. Because Sec.
383.123 requires both knowledge and skills tests, FMCSA believes
Congress intended to give FMCSA the authority to accept FMCSA-approved
knowledge and skills tests administered prior to September 30, 2002, as
being in compliance with Sec. 383.123. This is the interpretation
FMCSA is adopting today in this IFR. Therefore, 2-year exemptions for
such drivers in the 11 approved States are no longer necessary or
Additionally, in response to the second part of their request,
section 4140(b) requires that all States be given an additional year to
fully implement 49 CFR 383.123. Therefore, the compliance date in Sec.
384.301(b) for full implementation and enforcement of the requirements
in 49 CFR 383.123 is extended to September 30, 2006. Because Sec.
383.123(b)(3), which includes a sunset date for waiving the skills
test, is explicitly tied to the compliance date of September 30, 2005,
FMCSA believes Congress also intended that the sunset date be extended
to September 30, 2006. This is the interpretation FMCSA is adopting
today in this IFR.
The provisions of this IFR, as directed by section 4140 of SAFETEA-
LU, provide the required relief cited by the States in the docket, and
thus avoids any adverse impact on school bus driver availability
beginning the first school day in October 2005.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
FMCSA determined this action is a not a significant regulatory
action according to Executive Order 12866, and is not significant
within the meaning of Department of Transportation regulatory policies
and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034,
February 26, 1979). This rule implements congressionally-mandated
changes, including acceptance of approved knowledge and skills tests
administered prior to September 30, 2002, for CDL school bus
endorsements, and States are provided an additional year to finish
administering such knowledge and skills tests to school bus drivers.
There are no new costs imposed on the States.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement and Fairness Act (SBREFA), requires
Federal agencies to analyze the impact of rulemakings on small
entities, unless the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The Agency certifies that this interim final rule does not have a
significant economic impact on a substantial number of small entities.
This rule does not impose any additional costs or burdens on school bus
companies or local governments. A brief analysis of the impact of this
rule on small entities has been placed in the docket for this
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.
1532) requires each agency to assess the effects of its regulatory
actions on State, local, and tribal governments and the private sector.
The Act requires that any agency promulgating a final rule likely to
result in a Federal mandate requiring expenditures by a State, local,
or tribal government or by the private sector of $100 million or more
in any one year must prepare a written statement incorporating various
assessments, estimates, and descriptions that are delineated in the
Act. The Department of Transportation uses a threshold value of $120.7
million, which is the value of $100 million 1995 dollars inflated to
2003 dollars. FMCSA has determined that the changes in this rulemaking
will not have an impact of $120.7 million or more in any one year.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
Executive Order 13045, "Protection of Children from Environmental
Health Risks and Safety Risks" (April 23, 1997, 62 FR 19885), requires
that agencies issuing "economically significant" rules that also have
an environmental health or safety risk that an agency has reason to
believe may disproportionately affect children must include an
evaluation of the environmental health and safety effects of the
regulation on children. Section 5 of Executive Order 13045 directs an
agency to submit for a "covered regulatory action" an evaluation of
its environmental health or safety effects on children. The agency has
determined that this rule is not a "covered regulatory action" as
defined under Executive Order 13045.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Executive Order 13132 (Federalism)
Congress initially mandated establishment of CDL school bus
endorsements in MCSIA. Congress most recently, in section 4140 of
SAFETEA-LU, mandated that FMCSA-approved tests given before September
30, 2002, be accepted as meeting the requirement for a school bus
endorsement, and that States be given an additional year to meet the
school bus endorsement requirement of MCSIA. There are no new
Federalism impacts associated with this rulemaking's implementation of
the Congressional mandate.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires Federal agencies to obtain approval from OMB for each
collection of information they conduct, sponsor, or require through
regulations. FMCSA has determined that the changes in this interim
final rule will not change any of the existing information collection
National Environmental Policy Act
The agency analyzed this Interim Final Rule for the purpose of the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et
seq.) and determined under our environmental procedures Order 5610.1,
published March 1, 2004 in the Federal Register (69 FR 9680), that this
action is categorically excluded (CE) under Appendix 2, paragraph 6.s
(6) of the Order from further environmental documentation. That CE
relates to establishing regulations and actions taken pursuant to these
regulations that concern requirements for States to give knowledge and
skills tests to all qualified applicants for commercial driver's
licenses. In addition, the agency believes that the action includes no
extraordinary circumstances that would have any effect on the quality
of the environment. Thus, the action does not require an environmental assessment or an environmental impact
We have also analyzed this proposed rule under the Clean Air Act,
as amended (CAA) section 176(c), (42 U.S.C. 7401 et seq.) and
implementing regulations promulgated by the Environmental Protection
Agency. Approval of this action is exempt from the CAA's General
conformity requirement since it involves rulemaking and policy
development and issuance. See 40 CFR 93.153(c)(2). It would not result
in any emissions increase nor would it have any potential to result in
emissions that are above the general conformity rule's de minimis
emission threshold levels. Moreover, it is reasonably foreseeable that
the rule would not increase total CMV mileage, change the routing of
CMVs, how CMVs operate, or the CMV fleet-mix of motor carriers. This
action merely clarifies procedures and extends compliance dates for CDL
school bus operators obtaining a school bus endorsement on their CDL.
Executive Order 13211 (Energy Supply, Distribution, or Use)
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. This action is not a significant energy action
within the meaning of section 4(b) of the Executive Order because it is
not economically significant and not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Additionally, the Administrator of the Office of Information and
Regulatory Affairs has not designated this rule as a significant energy
action. For these reasons, a Statement of Energy Effects under
Executive Order 13211 is not required.
List of Subjects
49 CFR Part 383
Administrative practice and procedure, Highway safety, and Motor
49 CFR Part 384
Administrative practice and procedure, Highway safety, and Motor
In consideration of the foregoing, FMCSA amends title 49, Code of
Federal Regulations chapter III, subchapter B, as set forth below.
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
1. The authority citation for 49 CFR part 383 is revised to read as
Authority: 49 U.S.C. 521, 31136, 31301 et seq., 31502; sec. 214
of Pub. L. 106-159, 113 Stat. 1766, 1767; sec. 1012(b) of Pub. L.
107-56, 115 Stat. 397; sec. 4140 of Pub. L. 10-59, 119 Stat. 1144;
and 49 CFR 1.73.
2. Amend Sec. 383.123 by adding a new paragraph (a)(4), and revising
paragraph (b)(3) to read as follows:
Sec. 383.123 Requirements for a school bus endorsement.
(a) * * *
(4) Exception. Knowledge and skills tests administered before
September 30, 2002 and approved by FMCSA as meeting the requirements of
this section, meet the requirements of paragraphs (a)(2) and (a)(3) of
(b) * * *
(3) After September 30, 2006, the provisions in paragraph (b) of
this section do not apply.
PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM
3. The authority citation for part 384 is revised to read as follows:
Authority: 49 U.S.C. 31136, 31301 et seq., 31502; sec. 103 of
Pub. L. 106-159, 113 Stat. 1753, 1767; sec. 4140 of Pub. L. 10-59,
119 Stat. 1144; and 49 CFR 1.73.
4. Section 384.301 is amended by revising paragraph (b) to read as
Sec. 384.301 Substantial compliance-general requirements.
* * * * *
(b)(1) A State must come into substantial compliance with the
requirements of subpart B of this part in effect as of September 30,
2002 as soon as practical, but, unless otherwise specifically provided
in this part, not later than September 30, 2005.
(2) Exception. A State must come into substantial compliance with
49 CFR 383.123 not later than September 30, 2006.
Issued on: September 20, 2005.
Annette M. Sandberg,
[FR Doc. 05-19292 Filed 9-27-05; 8:45 am]
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