PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 3.2 of Title 15 NYCRR.
Statutory authority:
Vehicle and Traffic Law, sections 215(a) and 501(2)(c)
Finding of necessity for emergency rule:
Preservation of public safety.
Specific reasons underlying the finding of necessity:
Effective Jan 30, 2009, the Federal Motor Carrier Administration (FMCSA) adopted revisions to 49 CFR Parts 383, 384, 390 and 391, which, among other things, require states to modify their driver licensing processes for the issuance of Commercial Drivers Licenses (CDL). Specifically, the regulations require states to collect, record and disseminate medical certification information on qualifying types of CDL drivers. Certain types of drivers are exempt from the medical certification requirement and each state has the option to require or exempt certain types of intrastate operation from the medical certificate requirement.
Failure to comply with the federal regulation by January 30, 2012, subjected states to a penalty of up to 5% of their federal highway funds if FMCSA declared the state out of compliance and if the FMCSA had not approved an action plan submitted by the state demonstrating its path to compliance. The FMCSA deemed New York State out of compliance but approved the State’s action plan to come into compliance.
A critical piece of New York’s action plan is contacting the 560,000 CDL holders and providing them with the opportunity to both declare their driving type and provide a medical certificate if their driving type requires one. (Part 383.5 defines four types of drivers—Non-excepted interstate, excepted interstate, non-excepted intrastate and excepted intrastate.) As part of the State’s planning and ongoing communication with FMCSA, the State has determined that the latest date that the DMV can start mailing notices to drivers and have a reasonable chance of completing the entire enrollment process by January 30, 2014, the next federal compliance date, is July 18, 2013. This leaves 6 months to contact the drivers, have them respond, enter the driver information, and then contact drivers who are non-compliant to begin the process of downgrading such non-compliant driver’s licenses from a CDL to a non-CDL. This process presupposes approximately 93,000 contacts per month between the DMV and the CDL holders.
The proposed amendment is integral to the process of contacting 560,000 CDL holders, since many of such holders will need to have the A3 restriction recorded on their driver’s license, because they are exempt from the medical requirements. Because the proposed amendment significantly expands the scope of the restriction, it is critical that the CDL holders are aware of all of the categories covered by the new A3 restriction. The current version of the A3 restriction only exempts school bus and municipal drivers, while the new version covers 12 exempt categories. If the new A3 restriction is not in place when the DMV begins the process of notifying drivers, drivers who are eligible for the A3 restriction will not be able to be served in DMV offices or by mail. Therefore, the number of drivers who could be processed will be reduced. It is expected based on current information that the A3 designation will be a popular selection as it reduces the burden on the drivers who qualify. Without the legal authority to place the revised A3 restriction on the driver record and license, the DMV would need to delay implementation of programming to implement such restriction. Delays in computer programming will inordinately delay the implementation of the entire program.
DMV needs to contact, and then collect information from and take subsequent action regarding all of the affected drivers before January 30, 2014. Because of the sheer number of drivers involved (560,000), any delay in starting the process places the State in serious risk of not meeting required deadlines. Should FMCSA take note of the delay, they have the option to declare us out of compliance and withhold up to $65 million in state highway funds from NYS DOT as of October 1, 2013.
Subject:
A3 restriction.
Purpose:
Expands the scope of the A3 restriction for CDL holders who are exempt from certain federal medical standards.
Text of emergency rule:
Paragraph (3) of subdivision (c) of section 3.2 is amended to read as follows:
A3 [SCHOOL BUS/MUNICIPAL VEHICLE] Med Cert Exempt
This notice is intended
to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires October 15, 2013.
Text of rule and any required statements and analyses may be obtained from:
Heidi Bazicki, Department of Motor Vehicles, 6 Empire State Plaza, Rm. 522A, Albany, NY 12228, (518) 474-0871, email: heidi.bazicki@dmv.ny.gov
Regulatory Impact Statement
1. Statutory authority: Vehicle and Traffic Law (VTL) section 215(a) provides that the Commissioner of Motor Vehicles may enact rules and regulations that regulate and control the exercise of the powers of the Department of Motor Vehicles (DMV). Section 501(2)(c) of the VTL provides that the Commissioner may by regulation provide for additional restrictions based upon other types of vehicles or other factors deemed appropriate by the Commissioner.
2. Legislative objectives: Section 501(2)(c) of the VTL authorizes the Commissioner to establish driver license restrictions when necessary to comply with statutory and/or programmatic needs. On December 1, 2008, the Federal Motor Carrier Safety Administration (FMCSA) published a final rule in the Federal Register (73 Fed. Reg. 73096) that amended 49 CFR 383, 384, 390 and 391 to require states to modify their driver licensing processes for the issuance of Commercial Drivers Licenses (CDL). The rule was effective January 30, 2009. Specifically, the federal regulations require states to collect, record and appropriately disseminate medical certification information on qualifying types of CDL drivers. The federal regulations permit the states to exempt certain categories of CDL holders from the medical certification requirements. In accordance with this authority, New York State has decided to exempt several categories of CDL holders from the medical certification requirements. This regulation establishes the A3 “Med Cert Exempt” restriction, which will be placed on the driver’s licenses of persons included in one of the exempt categories.
3. Needs and benefits: The purpose of this regulation is to establish the A3 “Med Cert Exempt” restriction for CDL holders who are exempt from the federal medical certification requirements. Specifically, the federal regulations require states to collect, record and appropriately disseminate medical certification information on qualifying types of CDL drivers.
The federal law provides that no person shall operate a commercial motor vehicle unless such person meets the physical qualifications and physical examination requirements, as set forth in 49 CFR 391.41 and 391.43. Drivers performing “non-excepted” operation must meet the physical qualification requirements contained in 49 CFR 391 and must obtain a Medical Examiner’s Certificate. Drivers performing “excepted operation” are exempt from federal and state regulations requiring a Medical Examiner’s Certificate. Such “excepted” drivers must have the A3 Restriction recorded on their driver’s license, which indicates that they are exempt from the medical requirements.
Currently, the A3 restriction only exempts school bus and municipal drivers from the medical requirements. However, under federal regulations (49 CFR 390.3 and 391.2) and New York State DOT regulations (17 NYCRR 721.3(f) and 820.3), the State must exempt other drivers from the federal medical requirements, including drivers who operate commercial motor vehicles:
Transporting school children and/or school staff between home and school (49 CFR 390.3(f)(1));
As federal, State or local government employees (49 CFR 390.3(f)(2));
Transporting human corpses or sick or injured persons (49 CFR 309.3(f)(4));
Driving fire truck or rescue vehicles during emergencies and other related activities (49 CFR 390.3(f)(5));
Primarily in the transportation of propane winter heating fuel when responding to an emergency condition requiring immediate response such as damage to a propane gas system after a storm or flooding (49 CFR 390.3(f)(7));
In response to a pipeline emergency condition requiring immediate response such as a pipeline leak or rupture (49 CFR 390.3(f)(7));
In custom harvesting on a farm or to transport farm machinery and supplies used in the custom harvesting operation to and from a farm or to transport custom harvested crops to a storage or market (49 CFR 391.2(a));
As a beekeeper in the seasonal transportation of bees (49 CFR 391.2(b));
That are farm vehicles, but not combination vehicles (power unit and towed unit), used to transport agricultural products, farm machinery or farm supplies (no placardable hazardous materials) to and from a farm and within 150 air-miles of the farm (49 CFR 391.2(c));
As a private motor carrier of passengers for non-business purposes (49 CFR 390.3(f)(6));
Transporting migrant workers (49 CFR 398.3(b));
Drivers who obtained their CDL prior to September 9, 1999, which is the date that NYS Department of Transportation adopted regulations incorporating by reference the federal medical requirements for commercial motor vehicle operators (17 NYCRR 721.3(f) and 820.3).
This proposed rule is necessary to put CDL applicants and CDL holders on notice about the scope of the medical certification exemption, so that the A3 restriction is applied to their driver’s licenses and driving records when appropriate.
4.Costs:
a. Cost to regulated parties and customers: There is no cost to the citizens of the State.
b: Costs to the agency and local governments: There is no cost to local governments or to DMV.
5. Local government mandates: There are no local government mandates.
6. Paperwork: There are no new paperwork requirements associated with this proposed rule.
7. Duplication: This proposal does not duplicate, overlap or conflict with any relevant rule or legal requirement of the State and federal governments.
8. Alternatives: A no action alternative was not considered because CDL holders must have the option of obtaining a CDL with the A3 restriction, if appropriate.
9. Federal standards: The proposal does not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance schedule: The proposed rule would take effect immediately.
Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not attached because this rule will not have a disproportionate impact on small businesses or local governments, nor will it impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments.
Rural Area Flexibility Analysis
A RAFA is not attached because this rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.
Job Impact Statement
A Job Impact Statement is not submitted with this rule because it will not have an adverse impact on job creation or development.
