Final Rule on CDL Improvements

October 12, 2009

By the National School Transportation Association

On July 31, 2002 the Federal Motor Carrier Safety Administration (FMCSA) published new rules affecting commercial drivers and the CDL licensing program. The significance of these rules will vary depending on the state, but they will affect every school bus carrier (including school district operations) to some degree. The following analysis highlights the additions and changes to the CDL program, in the order of importance to NSTA members. All parts of the rule are effective September 30, 2002 , though carriers won’t see the effects until their states adopt conforming rules. States have three years to come into compliance.

School Bus Endorsement

As expected, the final rule requires all school bus drivers to obtain an “S” endorsement in order to drive a school bus. Despite comments from NSTA and NASDPTS that the definition of “school bus” be changed to mirror the NHTSA definition (a vehicle designed to carry more than ten passengers including the driver), FMCSA chose to retain the CMV definition (more than 15 passengers including the driver). They specifically say, however, that this is a minimum standard, and states are allowed to impose more stringent standards, including lowering the passenger threshold for the required endorsement.

In order to qualify for a school bus endorsement, a driver must first obtain a passenger endorsement. FMCSA declined to incorporate the requirements for a passenger endorsement into the school bus endorsement, as requested by NSTA and other commenters, saying that to do so would effectively restrict a driver from operating other passenger vehicles. “While this may be a practical economic issue, the FMCSA believes that Congress established the school bus endorsement to promote the safe operation of school buses, not to restrict a driver’s future employment opportunities.”

Drivers must also pass a driving skills test in a school bus of the size he/she will drive, and a knowledge test covering at least the following subjects:

Loading and unloading children, including the safe operation of stop signal devices, external mirror systems, flashing lights and other warning and passenger safety devices required for school buses by state or federal law;
Emergency exits and procedures for safely evacuating passengers in an emergency;
State and federal laws and regulations related to safe highway-rail grade crossing.

States may waive the driving skills test for any driver who, during the last two years:

Held a valid CDL with passenger endorsement to operate a school bus of the size he will drive;
Was regularly employed as a school bus driver and provides evidence of such employment;
Has not had her driver’s license or CDL suspended, revoked, or cancelled, or been disqualified from operating a CMV;
Has not been convicted of a major offense (see below) in a CMV or non-CMV;
Has not had more than one conviction of a serious traffic violation (see below) in any type of motor vehicle; and
Has not had any conviction for a traffic violation in relation to a traffic accident.

Waivers will be allowed only until September 30, 2005.

What does it mean for you?

The federal school bus endorsement will be reciprocal among states, just as the passenger endorsement is. That means that a driver who resides and is licensed in one state will be able to drive in another state without passing additional tests and going through a certification process in the second state. This will make it easier for contractors operating in border districts to hire out-of-state drivers and for multi-state contractors to move drivers around on a temporary basis.

States will have to determine whether their current testing of school bus drivers meets the minimum standards of the final rule. Many states will have to add a written school bus test; but the requirement for the skills test is so vague that most states can probably claim compliance. We suggest that contractors make the most of this opportunity to influence the licensing program by contacting the state agency and offering to help design tests that are specific to and appropriate for school bus drivers. (This is also an opportunity to push for a state school bus restriction on the CDL and/or to apply the CDL to vehicles designed to carry more than ten passengers and used to transport students.)

If your state does not already require a knowledge test (or if the test does not cover all the required topics), then all current school bus drivers will have to be tested within the next three years; grandfathering does not apply to the written test. Again, work with the state agency in charge (usually the DMV) to ensure that the mass testing is conducted in a way that is least disruptive of your operations. You can also discuss ways to make the physical change on the license-i.e. adding the “S” endorsement to each driver’s license-as smooth as possible.

To determine how many of your drivers can be grandfathered without taking the skills test,

Take out all drivers who have been licensed for less than two years.
Check all drivers who have been licensed for two or more years but have been in your employ for less than two years; take out any who cannot prove that they were employed as school bus drivers prior to joining your company.
Obtain motor vehicle driving records for all remaining drivers.
Take out all drivers whose MVR shows any conviction, administrative penalty or fine for driving under the influence of alcohol or controlled substance or refusal to test, or for leaving the scene of an accident IN ANY VEHICLE during the past two years.
Take out all drivers whose MVR shows more than one conviction or combination of convictions, administrative penalty or fines for speeding more than 15 miles over the limit, reckless driving, improper lane change, or tailgating IN ANY VEHICLE during the past two years.
Take out all drivers who received a ticket in an accident during the past two years.

The drivers who are left can be grandfathered.

Driver Disqualifications

The final rule significantly expands the list of violations for which CDL drivers will be disqualified from driving commercial vehicles, primarily by including violations in non-CMVs. Currently, if a driver gets a speeding ticket in a personal car, it doesn’t affect his CDL in the same way that a speeding ticket in a school bus does. Under this rule, there is no difference; the sanctions are the same for most violations whether they occur in a school bus or on a motorcycle.

The disqualifying violations are displayed in a series of charts showing the periods of disqualification for each set of circumstances. For example, drivers are disqualified for one year for a first conviction of DWI in any vehicle; for a second conviction, they are disqualified for life. (Note, though, that the 0.04 BAC level does not apply to the personal vehicle.) Other “major offenses” resulting in a one-year disqualification for the first offense are being under the influence of a controlled substance, refusing to take an alcohol test, leaving the scene of an accident, and using a vehicle to commit a felony. New additions to this category are driving a CMV when the driver is disqualified, and causing a fatality through the negligent operation of a CMV. A driver who is disqualified for life can be reinstated after ten years if he completes a rehabilitation program.

The second table shows the consequences for “serious violations” committed in a CMV or in a non-CMV. All violations in any vehicle are counted toward the total resulting in disqualification. A second conviction (the term “conviction” includes paying the fine for a ticket, whether or not the driver goes to court) of any of the following in a three year period results in disqualification for 60 days; a third conviction in a three year period results in an additional 120 days. The offenses are speeding more than 15 miles over the limit, tailgating, improper lane changes, reckless driving, or any violation related to a fatal accident.

Several new offenses have been added to the list of serious violations that apply only to the operation of CMVs. For driving a CMV without a CDL of the proper class or without the proper endorsements, and for railroad crossing violations in a CMV, the 60/120 day disqualification periods apply. For driving an out-of-service CMV, a driver is disqualified for no less than 90 days for the first violation, and from one to five years for the second violation in a ten-year period. The driver is also subject to a civil penalty of from $1,100 to $2,750.

The final rule also clarifies that the state must suspend, revoke, cancel, or otherwise withdraw the CDL privileges of a driver who is disqualified, and the state must make conviction information available to employers (but not necessary notify them directly) within ten days.

What does it mean for you?

You need to make sure that your drivers understand the consequences of unsafe driving behaviors in their personal vehicles. While school bus drivers rarely commit serious traffic violations while driving school buses, they may be less careful when driving their own cars. It is not inconceivable that a driver would receive a speeding ticket and a ticket for unsafe lane change in a three-year period, and he would then be unable to drive a school bus for 60 days.

The non-CMV violations that are on a driver’s record before September 30, 2002 , do not count, but any violations in a CMV do. So if a driver got a ticket for tailgating in a CMV, for example, last fall, and next year gets a ticket for speeding more than 15 miles over the limit in his personal car, he will be disqualified. Your company policies should address the consequences of a short-term disqualification: Will drivers be terminated, suspended without pay, assigned to non-driving duties? Better to make the decision now and advise drivers in advance than to be caught without a policy when you have to take a driver off the road.

We suggest you work with your licensing agency to develop procedures for timely notification to employers or their authorized agents when school bus drivers are disqualified.

State Program Requirements

The final rule requires states to conduct a check of CDL drivers’ motor vehicle records in all states where the driver held a license to operate any type of vehicle for the past ten years. This check will be run on all new CDL applicants and on the first renewal of all current CDL licenses. It also requires states to notify within ten days the state of issuance when an out-of-state driver is convicted of a violation of a serious or major traffic offense.

States are prohibited from issuing provisional, temporary, or hardship licenses or permits that allow a CDL driver to drive a CMV when she is disqualified or when her regular driver’s license is suspended or revoked (e.g. a “work permit”).

States are prohibited from masking convictions that affect CDL drivers’ licenses, or from using diversion programs (such as accelerated rehabilitation) or any other disposition that would defer the listing of a conviction on a driver’s record.

States must comply with the requirements of the final rule by September 30, 2005 , or risk losing all their MCSAP funds and five percent of their federal highway funds. To be in compliance, the state must adopt laws, regulations, and/or administrative procedures to mirror all the requirements of the final rule.

If the FMCSA determines that a state is in substantial noncompliance, it must decertify the state’s CDL program. The agency expects that this sanction would be invoked rarely, and only after other attempts to bring the state into compliance have failed. If a state is decertified, the CDL drivers who are licensed there may continue to drive CMVs as long as their licenses are valid. When the licenses expire, the drivers would have to go to another state and obtain a nonresident CDL.

What does it mean for you?

The expanded MVR check for CDL applicants may slow down the licensing procedure, especially in the first years. Keep in mind the additional out-of-state license check requirement for the first CDL renewal, since that may increase the processing time. Encourage drivers not to wait until the day before their licenses expire to go for renewal.

It will take time for states to make the necessary statutory and regulatory changes to come into compliance, so you probably won’t see immediate changes this fall. But the fact that the state has to adopt laws and regulations gives you an opportunity to influence the changes. Remember that the FMCSA rule represents a minimum standard; states may be more restrictive in their implementation.

If your state is decertified . . . well, let’s not even think about that. Suffice it to say that it would be a major inconvenience.

Users can download the entire final rule, including the charts of disqualifying violations, from FMCSA’s website, http://www.fmcsa.dot.gov.