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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

          - [Docket No. FMCSA-2008-0232] 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Notice of final disposition; granting of application for exemption. 

# SUMMARY:

FMCSA approves an application from the Commonwealth of Virginia Department of Motor Vehicles (Virginia DMV) for an exemption for a period of 2 years from a provision of the Agency's commercial driver's license (CDL) regulations requiring that each CDL issued by a State contain a color photograph of the driver. Virginia DMV requested that it be allowed to use a black and white, laser-engraved photograph in lieu of a color photograph. Virginia DMV believes that the issuance of CDLs with black-and-white, laser-engraved photographs would enhance the security of the credential and assist law enforcement officials with the identification of the CDL holder. FMCSA has determined that the exemption would provide for a level of safety that is equivalent to or greater than the level of safety achieved without the exemption. 

# DATES:

This exemption is effective March 9, 2009 and expires on March 9, 2011. 

# FOR FURTHER INFORMATION CONTACT:

                        Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations. Telephone: 202-366-4325, or E-mail:                         *MCPSD@dot.gov.*

# SUPPLEMENTARY INFORMATION:

## Background 

Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption for a maximum of 2 years if it finds “* * *  such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption * * *.” The procedure for requesting an exemption is prescribed by 49 CFR part 381. 

The Virginia DMV is in the project-planning phase of its transition to centralized issuance of drivers' licenses and identification cards. Virginia DMV is working towards meeting the requirements of the REAL ID Act of 2005 (Pub. L. 109-13, May 11, 2005, 119 Stat. 231, 302), and U.S. Department of Homeland Security's (DHS) implementing regulations (73 FR 5271, January 29, 2008). Under the REAL ID Act, Federal Agencies are prohibited, effective May 11, 2008, from accepting a driver's license or State-issued personal identification card for an official purpose unless the issuing State has met the requirements of the Act. 

## Virginia DMV Application for Exemption 

Virginia DMV has applied for an exemption from 49 CFR 383.153(a)(4), which requires each CDL to contain a color photograph of the driver. Virginia DMV requested that it be allowed to use a black and white, laser-engraved photograph on Virginia-issued CDLs in lieu of a color photograph. In its application for an exemption, Virginia DMV explains in detail how the use of black and white, laser-engraved photographs on Virginia CDLs will enhance the security of the credential, in particular because the laser-engraved photograph cannot easily be altered. Virginia DMV also stated that a black and white, laser-engraved image actually enhances driver identification because, with hair and eye color absent, the image provides greater emphasis on other, less readily-altered, facial features. A copy of the Virginia DMV's application for an exemption is included in the docket referenced at the beginning of this notice. 

## Comments 

Three comments were received to this docket. Canadian Bank Note Company, Ltd., supported the application, stating that the process proposed by Virginia DMV would provide “the most secure means of applying a photograph,” and a clearer image as well. L-1 Identity Solutions (L-1) opposed the application, suggesting that Virginia DMV employ both a color and a black and white photograph on each CDL. L-1 also recommended certain color technologies it believed to be more secure than the Virginia DMV technology. The third commenter, Virginia DMV, provided additional detail about its proposed black and white, laser-engraved technology indicating that it is no less secure than other technologies. 

## FMCSA Decision 

FMCSA has evaluated Virginia DMV's application on its merits following full consideration of the comments submitted to the docket, and has decided to grant the exemption from 49 CFR 383.153(a)(4) for a period of 2 years. FMCSA determined that the exemption would maintain a level of safety equivalent to, or greater than, the level achieved without the exemption (49 U.S.C. 31315(b)(1)). 

In reaching its decision, FMCSA considered DHS's January 29, 2008, final rule implementing certain provisions of the REAL ID Act. The final rule permits State licensing agencies to use either color or black and white photographs on driver's licenses and identification cards (6 CFR 37.17(e)(2)). DHS determined through a notice-and-comment rulemaking proceeding that laser-engraved black and white photography provides a comparable if not greater level of security or deterrence to falsification. (See 73 FR 5301) 

                    The regulation from which the Virginia DMV is exempted does not concern the qualifications of the CDL holder or his or her safety performance. Furthermore, the rule does not pertain to FMCSA's requirement that the CDL document be tamperproof or tamper resistant. (See 49 CFR 383.155.) Because the exemption is limited to the actual photograph or image of the CDL holder and the State would continue to be required to maintain compliance with all other CDL document rules, FMCSA concludes the exemption would not have an adverse impact on safety.                           ( print page 10121)    

FMCSA's tamper-proofing rule (49 CFR 383.155) should not be construed to apply a higher standard of document security than the rules prescribed by DHS on January 29, 2008. The Agency concludes that the objections to laser-engraved black and white images raised by L-1 should be addressed to DHS, as they relate to DHS's decision in its READ ID Act rulemaking. The Agency will not attempt to resolve those concerns here. 

For the reasons discussed above, FMCSA grants the Virginia DMV's application for an exemption from 49 CFR 383.153(a)(4) for a period of 2 years.

Issued on: March 2, 2009. 

Rose A. McMurray, 

Acting Deputy Administrator.

[FR Doc. E9-4930 Filed 3-6-09; 8:45 am] 

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