[Federal Register Volume 86, Number 192 (Thursday, October 7, 2021)]
[Rules and Regulations]
[Pages 55718-55743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21928]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 382, 383, 384, 390, and 392

[Docket No. FMCSA-2017-0330]
RIN 2126-AC11


Controlled Substances and Alcohol Testing: State Driver's 
Licensing Agency Non-Issuance/Downgrade of Commercial Driver's License

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: FMCSA is amending its regulations to establish requirements 
for State Driver's Licensing Agencies (SDLAs) to access and use 
information obtained through the Drug and Alcohol Clearinghouse (DACH 
or Clearinghouse), an FMCSA-administered database containing driver-
specific controlled substance (drug) and alcohol records. SDLAs must 
not issue, renew, upgrade, or transfer a commercial driver's license 
(CDL), or commercial learner's permit (CLP), as applicable, for any 
individual prohibited under FMCSA's regulations from performing safety-
sensitive functions, including driving a commercial motor vehicle 
(CMV), due to one or more drug and alcohol program violations. Further, 
SDLAs must remove the CLP or CDL privilege from the driver's license of 
an individual subject to the CMV driving prohibition, which would 
result in a downgrade of the license until the driver complies with 
return-to-duty (RTD) requirements. This rule also requires States 
receiving Motor Carrier Safety Assistance Program (MCSAP) grant funds 
to adopt a compatible CMV driving prohibition applicable to CLP and CDL 
holders who violate FMCSA's drug and alcohol program requirements and 
makes clarifying and conforming changes to current regulations. The 
final rule will help keep unsafe drivers off the road by increasing 
compliance with the CMV driving prohibition.

DATES: 
    Effective date: November 8, 2021.
    Compliance date: Compliance with the final rule is required 
November 18, 2024.
    Petitions for Reconsideration of this final rule must be submitted 
to the FMCSA Administrator no later than November 8, 2021.

FOR FURTHER INFORMATION CONTACT: Ms. Gian Marshall, Drug and Alcohol 
Programs Division, Federal Motor Carrier Safety Administration, 1200 
New Jersey Avenue SE, Washington, DC 20590-0001, clearinghouse@dot.gov, 
(202) 366-0928. If you have questions on viewing material in the 
docket, contact Dockets Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: This final rule is organized as follows:

I. Rulemaking Documents
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Summary of Major Provisions
    C. Costs and Benefits
III. Abbreviations and Acronyms
IV. Legal Basis for the Rulemaking
V. Background
    A. Purpose and Intent of State-Related Clearinghouse 
Requirements
    B. AAMVA's Petition for Reconsideration
    C. Impact of MAP-21 on State Laws
VI. Discussion of Proposed Rulemaking and Comments
    A. Proposed Rulemaking
    B. Comments and Responses
VII. International Impacts
VIII. Privacy Act Applicability
IX. Explanation of Changes From the NPRM
X. Section-by-Section Analysis
    A. Part 382
    B. Part 383

[[Page 55719]]

    C. Part 384
    D. Part 390
    E. Part 392
XI. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures
    B. Congressional Review Act
    C. Regulatory Flexibility Act (Small Entities)
    D. Assistance for Small Entities
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act (Collection of Information)
    G. E.O. 13132 (Federalism)
    H. Privacy
    I. E.O. 13175 (Indian Tribal Governments)
    J. National Environmental Policy Act of 1969

I. Rulemaking Documents

Availability of Rulemaking Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2017-0330/document and 
choose the document to review. To view comments, click this final rule, 
then click ``Browse Comments.'' If you do not have access to the 
internet, you may view the docket online by visiting Dockets Operations 
in Room W12-140 on the ground floor of the DOT West Building, 1200 New 
Jersey Avenue SE Washington, DC 20590-0001, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. To be sure someone is 
there to help you, please call (202) 366-9317 or (202) 366-9826 before 
visiting Dockets Operations.

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    The purpose of this final rule is to improve highway safety by 
ensuring that CLP or CDL holders with drug and alcohol program 
violations do not operate a CMV until they complete the return to duty 
(RTD) process and can lawfully resume driving. Currently, most SDLAs do 
not receive drug and alcohol program violation information about CDL or 
CLP holders licensed in their State. Therefore, these SDLAs are unaware 
when a CMV operator is subject to the driving prohibition set forth in 
49 CFR 382.501(a), and the CMV operator continues to hold a valid CDL 
or CLP despite the driving prohibition.\1\ The rule closes that 
knowledge gap by ensuring that all SDLAs are able to determine whether 
CMV drivers licensed in their State are subject to FMCSA's CMV driving 
prohibition. The rule facilitates enforcement of the driving 
prohibition by requiring that SDLAs deny certain commercial licensing 
transactions and remove the commercial driving privileges of 
individuals who are prohibited from operating a CMV and performing 
other safety-sensitive functions, due to drug and alcohol program 
violations. By requiring SDLAs to downgrade the driver's licensing 
status by removing the commercial driving privilege, the final rule 
will also permit all traffic safety enforcement officers to readily 
identify prohibited drivers by conducting a license check during a 
traffic stop or other roadside intervention.
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    \1\ As discussed further below in section V.C., several States 
currently require motor carrier employers or their service agents to 
report positive test results and/or test refusals to the SDLA.
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    In the final rule titled ``Commercial Driver's License Drug and 
Alcohol Clearinghouse'' (81 FR 87686 (Dec. 5, 2016)), FMCSA implemented 
the statutory requirement of the Moving Ahead for Progress in the 21st 
Century Act (MAP-21), codified at 49 U.S.C. 31306a, to establish the 
Clearinghouse as a repository for driver-specific drug and alcohol 
program violation records, as well as RTD information. The 2016 final 
rule incorporated the statutory requirement, imposed by MAP-21, 
codified at 49 U.S.C. 31311(a)(24), that States check the Clearinghouse 
prior to renewing or issuing a CDL to avoid having Federal highway 
funds withheld under 49 U.S.C. 31314. The 2016 final rule did not 
otherwise address the SDLAs' use of Clearinghouse information for CMV 
drivers licensed, or seeking to become licensed, in their State. This 
final rule establishes requirements for SDLAs to access and use 
information from the Clearinghouse indicating that CLP or CDL holders 
or applicants may not lawfully operate a CMV because they violated the 
drug and alcohol use and testing prohibitions in 49 CFR part 382, 
subpart B. The rule also makes certain clarifying and conforming 
changes to existing regulations, as described below.

B. Summary of Major Provisions

Non-Issuance
    As noted above, the Clearinghouse regulations require that SDLAs 
check the driver's status by querying the Clearinghouse prior to 
issuing, renewing, transferring, or upgrading a CDL.\2\ The final rule 
provides that, if the reply to the query indicates the driver is 
prohibited from operating a CMV, the SDLA must deny the requested 
commercial licensing transaction, resulting in non-issuance. Drivers 
may re-apply to complete the transaction after complying with the RTD 
requirements set forth in 49 CFR part 40, subpart O, and a negative RTD 
test result has been reported to the Clearinghouse. As discussed 
further below, the rule extends the SDLAs' query requirement to 
applicants seeking to obtain, renew, or upgrade a CLP.
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    \2\ See 49 CFR 383.73(b)(10); (c)(10); (d)(9); (e)(8); and 
(f)(4).
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Mandatory CDL Downgrade
    In addition to the non-issuance requirement, the rule requires that 
SDLAs initiate the process to remove the CLP or CDL privilege from the 
driver's license after receiving notification from FMCSA that, in 
accordance with 49 CFR 382.501(a), an individual is prohibited from 
operating a CMV. Pursuant to 49 CFR 383.5, ``CDL downgrade'' is defined 
to include removal of the commercial privilege; \3\ the final rule 
requires the State to complete and record the CDL downgrade on the 
CDLIS driver record within 60 days of notification. The CDL downgrade 
requirement rests on the simple, but safety-critical, premise that 
drivers who cannot lawfully operate a CMV because they engaged in 
prohibited use of drugs or alcohol or refused a test should not hold a 
valid CDL or CLP.
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    \3\ In 49 CFR 383.5, ``CDL downgrade'' is defined, in part, as: 
``(4) A State removes the CDL privilege from the driver license.'' 
The final rule amends this definition to include removal of the CLP 
privilege.
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    There are two ways the SDLA will receive notification of the 
driver's prohibited status: (1) The SDLA ``pulls'' the information from 
the Clearinghouse by conducting a required query prior to a specified 
commercial licensing transaction; and (2) FMCSA ``pushes'' the 
information to the SDLA whenever a drug or alcohol program violation is 
reported to the Clearinghouse for a CLP or CDL holder licensed in that 
State. FMCSA will also ``push'' a notification to the SDLA when the 
driver complies with RTD requirements and is no longer prohibited by 
FMCSA's regulations \4\ from operating a CMV. In addition, if FMCSA 
determines that a driver was erroneously identified as prohibited, the 
Agency will notify the SDLA that the individual is not prohibited from 
operating a CMV; the SDLA must promptly reinstate the commercial 
driving privilege to the driver's license, and expunge the driving 
record accordingly.
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    \4\ The impact of MAP-21 and this rule on existing State 
requirements is discussed below in Section V.C.
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    The final rule does not establish specific downgrade or 
reinstatement procedures. All States currently have established 
procedures to downgrade

[[Page 55720]]

the CDL or CLP of a driver whose medical certification has expired or 
otherwise been invalidated, as required by 49 CFR 383.73(o)(4). The 
Agency anticipates that States will adapt their existing processes to 
remove the CLP or CDL credential from the license of any driver subject 
to the CMV driving prohibition set forth in 49 CFR 382.501(a), and to 
reinstate the commercial privilege following receipt of notification 
from FMCSA that the individual is no longer prohibited from driving a 
CMV (or was incorrectly identified as prohibited).
Application of the State Query Requirement to CLP Holders
    Pursuant to 49 CFR 383.25, CLPs are deemed a valid CDL for purposes 
of behind-the-wheel training on public roads and highways. Because CLP 
holders are authorized to operate a CMV on a public road if accompanied 
by a CDL holder, they are subject to drug and alcohol testing under 49 
CFR part 382, and thus subject to the CMV driving prohibition in 49 CFR 
382.501(a). Accordingly, the final rule adds CLP holders to the scope 
of the States' query requirements set forth in 49 CFR 383.73, requiring 
SDLAs to conduct a check of the Clearinghouse prior to issuing, 
renewing, or upgrading a CLP.
Addition of the CMV Driving Prohibition to Part 392
    The final rule amends 49 CFR part 392, subpart B, ``Driving of 
Commercial Motor Vehicles,'' to add the CMV driving prohibition 
currently set forth in 49 CFR 382.501(a), thereby requiring States 
receiving MCSAP funding to adopt and enforce a comparable 
prohibition.\5\ State-based MCSAP personnel authorized to enforce 
highway safety laws can electronically access the operating status of a 
CLP or CDL holder through cdlis.dot.gov or Query Central. If, during a 
roadside intervention, the MCSAP officer determines the driver is 
prohibited from operating a CMV due to a drug and alcohol program 
violation, the driver will be placed out-of-service and subject to 
citation. The final rule will further facilitate enforcement of the 
driving prohibition for CMV operators who still hold a valid CLP or 
CDL--i.e., during the period in which the State is notified of the 
driver's prohibited status, but before the downgrade has been recorded 
on the CDLIS driver record--by clarifying the basis for citing the CMV 
operator during this period.
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    \5\ In order to qualify for MCSAP Funds, 49 CFR 350.207(a)(2) 
requires, in part, that States adopt and enforce State laws 
compatible with the Federal Motor Carrier Safety Regulations (49 CFR 
parts 390-397). Amending part 392 in the final rule will provide 
State-based enforcement personnel specific authority to enforce the 
prohibition in 382.501(a).
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    As explained in the notice of proposed rulemaking (NPRM), some non-
MCSAP traffic safety enforcement personnel cannot electronically access 
the driver's prohibited status at roadside during this period.\6\ The 
Agency notes, however, that after the SDLA completes the downgrade, 
thereby changing the driver's license status, non-MCSAP officers will 
be aware the driver is not lawfully operating a CMV, simply by 
conducting a routine license check. Operating a CMV without a valid CDL 
is currently prohibited under 49 CFR 383.23(a)(2) and 49 CFR 
391.11(b)(5). The downgrade requirement ensures the CMV driver's 
license status is available to all traffic safety enforcement 
personnel, thus closing the loophole that currently permits these 
drivers to evade detection.
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    \6\ See 85 FR 23670, 23682 (Apr. 28, 2020). Nationwide, there 
are approximately 12,000 State-based MCSAP traffic safety officers, 
who have specialized knowledge and training related to CMV safety. 
There are also more than 500,000 State and local safety personnel 
throughout the United States authorized to enforce traffic safety 
laws.
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Actual Knowledge Violations Based on Issuance of a Citation for DUI in 
a CMV
    The final rule revises how employers' reports of actual knowledge, 
as currently defined in 49 CFR 382.107, of a driver's prohibited use of 
drugs or alcohol, based on a citation for Driving Under the Influence 
(DUI) in a CMV, would be maintained in the Clearinghouse. Currently, 
employers who have actual knowledge of a driver's prohibited use of 
drugs or alcohol, based on the issuance of a citation or other document 
charging DUI in a CMV, must report the ``actual knowledge'' violation 
to the Clearinghouse in accordance with 49 CFR 382.705(b)(4). The final 
rule clarifies that a CLP or CDL holder who is charged with DUI in a 
CMV has violated part 382, subpart B, regardless of whether the driver 
is ultimately convicted of the offense. Therefore, the driver is 
prohibited from operating a CMV until completing RTD. The rule amends 
the Clearinghouse regulations by requiring that this type of actual 
knowledge violation remain in the Clearinghouse for 5 years, or until 
the driver has completed RTD, whichever is later, regardless of whether 
the driver is convicted of the DUI charge.\7\ The rule also permits 
drivers to add documentary evidence of non-conviction to their 
Clearinghouse record so that future employers will be aware of that 
outcome. FMCSA makes this change to fully comply with the MAP-21 
requirements that all violations of part 382, subpart B, be reported to 
the Clearinghouse and retained for 5 years (49 U.S.C. 31306a(a)(3), 
(g)(1)(C), and (g)(6)(A), (B)), and to provide full disclosure to 
employers, while maintaining fairness to drivers.
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    \7\ 49 CFR 382.717(a)(2)(i) currently permits drivers to request 
that an actual knowledge violation, based on the issuance of a 
citation for DUI in a CMV, be removed from the Clearinghouse, when 
the citation did not result in a conviction.
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Compliance Date
    States must achieve substantial compliance with the applicable 
requirements of the final rule as soon as practicable, but not later 
than November 18, 2024. The requirements set forth in 49 CFR 390.3, 
390.3T, and 392.15 amend the Federal Motor Carrier Safety Regulations 
(FMCSRs). In accordance with the MCSAP eligibility requirements in 49 
CFR 350.303(b), the State must amend its laws or regulations to ensure 
compatibility with any new addition or amendment to the FMCSRs as soon 
as practicable, but not later than 3 years after the effective date of 
such changes. The Agency believes a 3-year period also allows States 
sufficient time to adopt necessary changes in State law and regulation, 
conduct training for SDLA personnel, and complete information 
technology (IT) changes that will allow SDLAs to request and receive 
Clearinghouse information electronically. This time frame also accounts 
for FMCSA's development of technical specifications that will allow the 
information to be efficiently and securely transmitted to the SDLAs, 
via CDLIS or a direct web-based interface with the Clearinghouse. In 
the meantime, SDLAs may determine whether a CLP or CDL applicant is 
qualified to operate a CMV by accessing the Clearinghouse as an 
authorized user, as currently permitted by 49 CFR 382.725(a)(1).

C. Costs and Benefits

    This rule will result in IT costs for SDLAs, the American 
Association of Motor Vehicle Administrators (AAMVA), and the Federal 
government, customer service costs for SDLAs, and opportunity costs for 
drivers and motor carriers. This rule finalizes the Agency's preferred 
alternative by requiring a mandatory downgrade, while allowing the 
SDLAs to choose the most cost beneficial method of information 
transmission.
    In the NPRM, FMCSA proposed two alternative methods for information 
transmission; CDLIS and a web-based services option, which relies on 
cloud technology. The Agency estimated that the CDLIS option would be 
more costly

[[Page 55721]]

to implement. Under the final rule, SDLAs may choose between 
transmitting information via CDLIS or a web-based services platform. 
FMCSA anticipates that SDLA costs for IT system development will depend 
on many variables and could range from $60,000 to $300,000. For 
analysis purposes, the Agency estimates that each SDLA will incur IT 
development costs of approximately $200,000 in the first year of the 
analysis, and operation and maintenance costs equal to 20 percent of 
development cost in each of years 2 through 10. Two States also 
indicated they will incur costs to manage additional customer service 
inquiries related to the mandatory downgrade. FMCSA estimates that the 
annual cost for all SDLAs to manage additional customer service 
inquiries will total approximately $159,000. In addition to SDLA costs, 
AAMVA indicated it may incur costs for aligning the Clearinghouse 
information with disqualification data that already exists in CDLIS. 
FMCSA will work with AAMVA to determine the necessity and extent of 
these costs, but for analysis purposes estimates that they would not be 
greater than $200,000 for development, with an annual operations and 
maintenance cost of $40,000. FMCSA will incur costs of approximately $1 
million for development of a web-based services application and 
approximately $200,000 for annual operations and maintenance costs in 
years 2 through 10 of the analysis. Under the final rule, a driver may 
incur an opportunity cost equal to the income forgone between the time 
he or she is eligible to resume operating a CMV (i.e., when an employer 
reports a negative RTD test result to the Clearinghouse) and when the 
SDLA reinstates the driver's privilege to operate a CMV. The estimate 
of opportunity costs drivers may incur is a function of the number of 
drivers that may be subject to a downgrade, the time spent at the SDLA 
to reinstate their CLP/CDL privileges, the forgone wages, and the 
travel costs to drive to and from the SDLA. As discussed in Section XI. 
below, FMCSA estimates that, annually, approximately 5,000 drivers will 
spend one 10-hour day at the SDLA, resulting in annual costs for all 
drivers of approximately $1.6 million. Motor carrier opportunity costs 
are estimated because drivers subject to reinstatement would not be 
eligible to resume safety-sensitive functions, such as driving a CMV, 
until the SDLA restores the CLP or CDL privilege to the driver's 
license. FMCSA estimates that motor carrier opportunity cost resulting 
from this rule will total just below $200,000 per year.
    The table below shows the 10-year and annualized total cost 
estimates for the final rule. The Agency estimates the 10-year total 
cost of the rule at $51.7 million; the estimated annualized cost is 
$5.2 million. At a 7 percent discount rate, the 10-year total estimated 
cost is $38.5 million, and the estimated annualized cost is $5.5 
million.

                          Table 1--Total 10-Year and Annualized Costs of the Final Rule
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                                                  Undiscounted (2019 $ million)    Discounted at 7% ($ million)
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                 Cost category                    10-year total                    10-year total
                                                      cost          Annualized         cost         Annualized
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SDLA Cost......................................           $30.1            $3.0            $23.1            $3.3
AAMVA IT Cost..................................             0.6             0.1              0.4             0.1
Federal Government IT Cost.....................             2.8             0.3              2.2             0.3
Driver Opportunity Cost........................            16.4             1.6             11.5             1.6
Motor Carrier Opportunity Cost.................             1.8             0.2              1.3             0.2
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    Total......................................            51.7             5.2             38.5             5.5
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    This rule will improve the enforcement of the current driving 
prohibition by requiring that States refrain from issuing, renewing, 
transferring, or upgrading the CLP or CDL of affected drivers. Removal 
of the commercial privilege from the driver's license (mandatory CLP or 
CDL downgrade) will ensure more consistent roadside enforcement against 
drivers who continue to operate a CMV in violation of the prohibition. 
The mandatory downgrade may also reduce drug and alcohol program 
violations, since a driver's loss of the commercial privilege directly 
impacts his or her ability to obtain employment that involves operating 
a CMV. This rule will also permit the Agency to use its enforcement 
resources more effectively. The final rule's costs and benefits are 
addressed further below in Section XI.

III. Abbreviations and Acronyms

AAMVA American Association of Motor Vehicle Administrators
ATA American Trucking Associations
CA DMV California (CA) Department of Motor Vehicles
CFR Code of Federal Regulations
CDL Commercial Driver's License
CDLIS Commercial Driver's License Information System
CLP Commercial Learner's Permit
CMV Commercial Motor Vehicle
DACH or Clearinghouse Drug and Alcohol Clearinghouse
DOT Department of Transportation
DUI Driving Under the Influence
FMCSA Federal Motor Carrier Safety Administration
FR Federal Register
Greyhound Greyhound Lines Inc.
Illinois Office of the Illinois Secretary of State
IOT Intensive Outpatient Treatment
Iowa DOT Iowa Department of Transportation
IT Information Technology
MCSAP Motor Carrier Safety Assistance Program
MDOJ-MVD Montana Department of Justice--Motor Vehicle Division
Nebraska State of Nebraska Department of Motor Vehicles
NMFTA National Motor Freight Traffic Association
Nlets The International Justice and Public Safety Network
NRCME National Registry of Certified Medical Examiners
NSTA The National School Transportation Association
NYSDMV New York State Department of Motor Vehicles
OOIDA Owner-Operator Independent Drivers Association
Oregon Oregon Department of Transportation, Driver and Motor Vehicle 
Services
RTD Return to Duty
SDLA State Driver's Licensing Agency
Secretary U.S. Secretary of Transportation
Texas DPS State of Texas, Department of Public Safety
TCA Truckload Carriers Association
Trucking Alliance The Alliance for Driver Safety & Security
U.S.C. United States Code
Virginia DMV Commonwealth of Virginia, Department of Motor Vehicles

[[Page 55722]]

IV. Legal Basis for the Rulemaking

    Title 49 of the Code of Federal Regulations (CFR), sections 1.87(e) 
and (f), delegates authority to the FMCSA Administrator to carry out 
the functions vested in the Secretary of Transportation (the Secretary) 
by 49 U.S.C. chapter 313 and 49 U.S.C. chapter 311, subchapters I and 
III, relating to CMV programs and safety regulations.
    MAP-21 identified the remedial purposes of the Clearinghouse as 
twofold: To improve compliance with the drug and alcohol program 
applicable to CMV operators and to improve roadway safety by ``reducing 
accident and injuries involving the misuse of alcohol or use of 
controlled substances'' by CMV operators (49 U.S.C. 31306a(a)(2)). As 
noted above, MAP-21 requires that the Secretary establish a national 
clearinghouse for records relating to alcohol and controlled substances 
testing by CMV operators who hold CDLs. The Agency implemented that 
requirement in the ``Commercial Driver's License Drug and Alcohol 
Clearinghouse'' final rule (81 FR 87686 (Dec. 5, 2016)). MAP-21 also 
requires that the Secretary establish a process by which the States can 
request and receive an individual's Clearinghouse record, for the 
purpose of ``assessing and evaluating the qualifications of the 
individual to operate a commercial motor vehicle'' (49 U.S.C. 
31306a(h)(2)). MAP-21 (49 U.S.C. 31311(a)(24)) requires that States 
request information from the Clearinghouse before renewing or issuing a 
CDL to an individual to avoid having Federal highway funds withheld 
under 49 U.S.C. 31314. This final rule establishes the processes by 
which SDLAs will access DACH information to determine whether the 
driver has the qualifications to operate a CMV. (Drivers prohibited 
from operating a CMV under 49 CFR 382.501(a) are not so qualified.)
    The rule is also based on FMCSA's broad authority in 49 U.S.C. 
chapter 313, (provisions originally enacted as part of the Commercial 
Motor Vehicle Safety Act of 1986 (1986 Act)). Section 31308 requires 
the Secretary, through regulation, to establish minimum standards for 
the issuance of CLPs and CDLs by the States. The final rule requires 
that States must not issue a CLP or CDL to an individual prohibited, 
under 49 CFR 382.501(a), from operating a CMV due to a drug and alcohol 
program violation. Pursuant to this same authority, the rule also 
establishes standards for the States' removal of the CLP or CDL 
privilege from the driver's license of such individuals, as well as 
subsequent reinstatement of the commercial privilege.
    Section 31305(a) requires the Secretary to establish minimum 
standards for, among other things, ``ensuring the fitness of an 
individual operating a commercial motor vehicle.'' In order to avoid 
having Federal highway funds withheld under 49 U.S.C. 31314, section 
31311(a)(1) requires States to adopt and carry out a program for 
testing and ensuring the fitness of individuals to operate CMVs 
consistent with the minimum standards imposed by the Secretary under 49 
U.S.C. 31305(a).
    The final rule will help ensure the fitness of CMV operators by 
requiring that States must not issue, renew, transfer, or upgrade a 
CDL, or issue, renew, or upgrade a CLP, for any driver prohibited from 
operating a CMV due to a drug and alcohol program violation. Driver 
fitness is further ensured by the final rule's requirement that States 
remove the CLP or CDL privilege from the driver's licenses of 
individuals who violate the Agency's drug and alcohol program 
requirements, until those drivers complete the RTD requirements 
established by 49 CFR part 40, subpart O.
    The Department's drug and alcohol use and testing regulations are 
authorized by 49 U.S.C. 31306 (originally enacted as part of the 
Omnibus Transportation Employee Testing Act of 1991). Among other 
things, 49 U.S.C. 31306(f) authorizes the Secretary to determine 
``appropriate sanctions for a commercial motor vehicle operator who is 
found, based on tests conducted and confirmed under this section, to 
have used alcohol or a controlled substance'' in violation of 
applicable use testing requirements (i.e., 49 CFR parts 40 and 382). As 
explained elsewhere in this preamble, FMCSA believes that non-issuance, 
as well as the mandatory downgrade, are appropriate sanctions that will 
improve compliance with existing drug and alcohol program requirements.
    This final rule also relies on the authority of 49 U.S.C. chapter 
311, subchapter III (provisions originally enacted as part of the Motor 
Carrier Safety Act of 1984), which provides concurrent authority to 
regulate drivers, motor carriers, and vehicle equipment. Section 
31136(a) requires the Secretary to prescribe safety standards for CMVs 
which, at a minimum, shall ensure that: (1) CMVs are maintained, 
equipped, loaded, and operated safely; (2) the responsibilities imposed 
on CMV operators do not impair their ability to operate the vehicles 
safely; (3) the physical condition of the CMV operators is adequate to 
enable them to operate vehicles safely; (4) CMV operation does not have 
a deleterious effect on the physical condition of the operators; and 
(5) CMV drivers are not coerced by a motor carrier, shipper, receiver, 
or transportation intermediary to operate a CMV in violation of the 
regulations promulgated under 49 U.S.C. 31136 or 49 U.S.C. chapters 51 
or 313 (49 U.S.C. 31136(a)).
    The final rule will help ensure that CMVs are ``operated safely,'' 
as mandated by section 31136(a)(1), and that the physical condition of 
CMV operators is adequate to enable their safe operation, as required 
by section 31136(a)(3). The requirement that States enforce the CMV 
driving prohibition on individuals who engage in prohibited use of 
drugs or alcohol will promote the safe operation of CMVs. Specifically, 
it will improve compliance with current regulatory requirements set 
forth in 49 CFR 382.501(a) and 382.503, which prohibit a CLP or CDL 
holder from operating a CMV, or performing other safety-sensitive 
functions, after engaging in prohibited use of drugs or alcohol, until 
the driver has completed the RTD requirements established by 49 CFR 
part 40, subpart O. The final rule does not directly address the 
operational responsibilities imposed on CMV drivers (section 
31136(a)(2)) or possible physical effects caused by driving (section 
31136(a)(4)). FMCSA has no reason to believe that the final rule will 
result in the coercion of CMV drivers by motor carriers, shippers, 
receivers, or transportation intermediaries (section 31136(a)(5)), as 
the rule primarily concerns the transmission of Clearinghouse 
information between FMCSA and the States, and the use of that 
information by the SDLAs and State-based traffic safety enforcement 
personnel. The Agency notes, however, that the 2016 Clearinghouse final 
rule prohibits employers from submitting false violation reports to the 
Clearinghouse, or from using Clearinghouse information for any purpose 
other than determining whether a driver is prohibited from operating a 
CMV, which could have coercive effects on drivers.\8\
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    \8\ See 49 CFR 382.705(e), 382.723.
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    Before prescribing regulations, FMCSA must consider their ``costs 
and benefits'' and ``State laws and regulations on commercial motor 
vehicle safety, to minimize their unnecessary preemption'' (section 
31136(c)(2)). Those factors are addressed elsewhere in this preamble.

[[Page 55723]]

V. Background

    The NPRM addressed the MAP-21 mandates underlying the 2016 
Clearinghouse final rule (identified above), the MAP-21 provisions 
addressing the preemption of State laws, the Agency's interpretation of 
those provisions, and the AAMVA petition for reconsideration of the 
2016 final rule (see 85 FR 23670, 23675-23677, 23679 (Apr. 28, 2020)). 
The elements of that discussion most relevant to this final rule are 
summarized below.

A. Purpose and Intent of State-Related Clearinghouse Requirements

    Though the CDL program was established by Federal statute (the 1986 
Act) and is governed in part by Federal regulations (49 CFR parts 383 
and 384), the authority to issue and remove CDLs and CLPs resides 
solely in the States. As explained in the NPRM, FMCSA considers the 
separate MAP-21 provisions requiring that (1) States request 
information from the Clearinghouse before renewing or issuing a CDL to 
an individual (49 U.S.C. 31311(a)(24)); and (2) the Secretary establish 
a process enabling State licensing authorities to access the 
Clearinghouse to determine whether an individual applying for a CDL is 
qualified to operate a CMV (49 U.S.C. 31306a(h)(2)(B)(ii)), as two 
parts of an integrated whole.\9\ Both provisions implicitly recognize 
that only SDLAs may act on commercial licenses.\10\
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    \9\ This interpretation clarifies the Agency's views expressed 
in the 2016 Clearinghouse final rule. See 81 FR 87686, 87708 (Dec. 
5, 2016). In discussing the two statutory provisions, both of which 
contemplate that SDLAs would have access to Clearinghouse 
information, FMCSA characterized section 31311(a)(24) as requiring 
access and 31306a(h)(2) as permitting such access, viewing the 
separate requirements as inconsistent. In the Clearinghouse final 
rule, FMCSA ultimately required States to access the Clearinghouse 
prior to issuing CDLs. As noted above, in this final rule, FMCSA 
views the two provisions as part of a unified statutory scheme.
    \10\ The term Chief Commercial Driver's Licensing Official is 
defined as ``the official in a State who is authorized to (A) 
maintain a record about commercial driver's licenses issued by the 
State; and (B) take action on commercial driver's licenses issued by 
the State'' (49 U.S.C. 31306a(m)(2)) (emphasis supplied).
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    FMCSA acknowledges that neither of these State-specific statutory 
provisions requires that States restrict the issuance of commercial 
licenses or endorsements of CMV operators subject to the driving 
prohibition in 49 CFR 382.501(a), or that States downgrade the CDLs of 
drivers subject to the prohibition. However, in promulgating this final 
rule, FMCSA does not view the two State-related MAP-21 provisions in a 
vacuum. The stated goals of the Clearinghouse are to increase 
compliance with existing DOT-regulated drug and alcohol program 
requirements and to improve highway safety by reducing crashes and 
injuries caused by the misuse of drugs or alcohol by CMV drivers (49 
U.S.C. 31306a(a)(2)). And MAP-21 authorizes SDLAs to access 
Clearinghouse information and requires SDLAs to request information 
from the Clearinghouse before renewing or issuing a CDL to an 
individual. With this framework in mind, and given the fact that 
commercial licensing authority is vested exclusively in the States, 
FMCSA relies on 49 U.S.C. 31306a and 31311(a)(24), as well as FMCSA's 
authority under 49 U.S.C. 31305(a) and 31308, to require that States 
use their licensing authority to help ensure compliance with the CMV 
driving prohibition. This final rule thus achieves the broad remedial 
purpose of MAP-21, i.e., the reduction of risk to public safety caused 
by CMV operators who are prohibited from driving due to drug and 
alcohol program violations but continue to be commercially licensed.

B. AAMVA's Petition for Reconsideration

    Following FMCSA's publication of the 2016 Clearinghouse final rule, 
AAMVA, asserting that ``[t]he authority for taking action based on 
federal clearinghouse records should remain solely with the employer 
and FMCSA,'' \11\ requested that FMCSA remove SDLAs from the scope of 
the rule. In response, the Agency explained that, because MAP-21 
requires the States to access Clearinghouse information in order to 
avoid a loss of funds apportioned from the Highway Trust Fund (49 
U.S.C. 31311(a)(24)), MAP-21 did not vest in FMCSA the discretion to 
``remove'' the States from the Clearinghouse process.\12\ Further, the 
Agency does not have authority to issue or remove CDLs, which is 
exclusively a State function.
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    \11\ See AAMVA Petition for Reconsideration of the Commercial 
Driver's License Drug and Alcohol Clearinghouse Final Rule (June 29, 
2017), Docket No. FMCSA-2011-0031. AAMVA petitioned for 
reconsideration of the Clearinghouse final rule but did not submit 
the petition within 30 days after publication of the rule in the 
Federal Register, as required by 49 CFR 389.35(a). Therefore, in 
accordance with 49 CFR 389.35(a), the Agency considers AAMVA's 
submission to be a petition for rulemaking submitted under 49 CFR 
389.31.
    \12\ See Letter from Raymond Martinez (FMCSA) to Anne Ferro 
(AAMVA) (Apr. 12, 2018), p. 2, Docket No. FMCSA-2011-0031.
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    In its petition, AAMVA also identified questions and concerns 
related to the States' role in the Clearinghouse, which were not 
addressed in the 2016 final rule. These included: What specific 
information would States receive about an individual CDL holder or 
applicant; how would States be expected to use information they receive 
from the Clearinghouse; how would the privacy of driver-specific 
Clearinghouse information transmitted to the States be protected; how 
would erroneous Clearinghouse information be corrected; to what extent 
would foreign-licensed drivers be included in the query and reporting 
process; and what would be the cost implications for the SDLAs. FMCSA 
agreed that AAMVA raised legitimate issues regarding the States' use of 
driver-specific Clearinghouse information and granted AAMVA's request 
for regulatory clarification. This final rule addresses the issues 
identified by AAMVA.

C. Impact of MAP-21 on State Laws

    MAP-21 expressly preempts State laws and regulations that are 
inconsistent with the Clearinghouse regulations, including State-based 
requirements for ``the reporting of violations of valid positive 
results from alcohol screening tests and drug tests,'' as well as 
alcohol and drug test refusals and other violations of part 382, 
subpart B (49 U.S.C. 31306a(l)(1) and (2)). The Agency interprets 49 
U.S.C. 31306a(l)(1) and (2) to mean that State-based reporting 
requirements inconsistent with the reporting requirements in 49 CFR 
382.705 are preempted. As noted in the NPRM, as of 2018, at least eight 
States required that, for testing conducted in accordance with 49 CFR 
part 382 or part 40, CDL holders' positive test results and/or test 
refusals be reported to the SDLA. States uncertain about whether their 
reporting requirements are inconsistent with preemption provisions set 
forth in 49 U.S.C. 31306a(l)(1) and (2) may request an advisory opinion 
from the Agency.
    MAP-21 specifically excepts from preemption State requirements 
relating to ``an action taken with respect to a commercial motor 
vehicle operator's commercial driver's license or driving record'' due 
to violations of FMCSA's drug and alcohol program requirements (49 
U.S.C. 31306a(l)(3)). FMCSA is aware, for example, that at least three 
States currently disqualify CDL holders who test positive or refuse a 
drug or alcohol test regulated under 49 CFR part 382 or part 40, from 
operating a CMV until completing RTD requirements. Based on its 
interpretation of 49 U.S.C. 31306a(l)(3), the Agency believes that 
State-based requirements such as these likely fall within the scope of 
the statutory exception because they relate to an action taken on a 
CDL.
    As discussed further below, in Section VI. B., Meaning of the Term 
CDL

[[Page 55724]]

Downgrade, the downgrade requirement, based on the authority of 49 
U.S.C. 31305(a) and 31308, is the minimum action States must take, to 
avoid having Federal highway funds withheld under 49 U.S.C. 31314, to 
remove the CLP or CDL privilege from the license of drivers prohibited 
from operating a CMV due to a drug and alcohol program violation. 
Consistent with the MAP-21 preemption exception in 49 U.S.C. 
31306a(l)(3), the final rule does not prohibit States from taking an 
alternative licensing action (e.g., suspension, revocation, 
disqualification) to accomplish the removal of the commercial 
privilege.
    The final rule also affords States maximum flexibility to maintain 
the driving records of individuals who are prohibited from operating a 
CMV due to a drug and alcohol program violation. The final rule does 
not require any State action related to the driving record, other than 
the requirement that States record the downgrade on the CDLIS driver 
record within 60 days of receiving notification of a CLP or CDL 
holder's prohibited status. States will determine whether the reason 
for the downgrade (or other discretionary licensing action), or the 
individual's prohibited CMV driving status, is posted on a CMV 
operator's driving record, and for how long the information would 
remain.

VI. Discussion of Proposed Rulemaking and Comments

A. Proposed Rulemaking

    On April 28, 2020, FMCSA published in the Federal Register (Docket 
No. FMCSA-2017-0330, (85 FR 23670)) an NPRM titled ``Controlled 
Substances and Alcohol Testing: State Driver's Licensing Agency Non-
Issuance/Downgrade of Commercial Driver's License.'' The NPRM proposed 
to prohibit SDLAs from issuing, renewing, transferring, or upgrading a 
CDL or CLP for any driver banned from operating a CMV under 49 CFR 
382.501(a) (``non-issuance''). Further, the Agency proposed two 
alternatives addressing how SDLAs would receive and use Clearinghouse 
information pertaining to CDL or CLP holders licensed in their State 
who are prohibited from operating a CMV: (1) FMCSA's preferred 
alternative, a ``push'' notification of the driver's prohibited status 
and the SDLA's mandatory downgrade of the driver's license; or (2) 
permitting SDLAs the option to receive notification of a driver's 
prohibited status, with the State determining whether, and how, the 
information would be used to enforce the driving prohibition. FMCSA 
also proposed several clarifying and conforming changes to current 
regulations.

B. Comments and Responses

    FMCSA solicited comments on the NPRM for 60 days, through June 29, 
2020. By that date, 32 comments were received from commenters 
representing 9 individual States (CA, IA, IL, MT, NE, NY, OR, TX, and 
VA), 9 entities, and 14 private citizens. The following entities 
submitted comments: AAMVA, American Trucking Associations (ATA), Driver 
iQ, Greyhound Lines, Inc. (Greyhound), National Motor Freight Traffic 
Association (NMFTA), National Student Transportation Association 
(NSTA), Owner-Operator Independent Drivers Association (OOIDA), 
Truckload Carriers Association (TCA), and the Alliance for Driver 
Safety & Security (Trucking Alliance).
    Comments on the NPRM were mixed. Most commenters, including all 
States, supported the proposed non-issuance requirement. Most entities, 
several States, and some individuals supported the proposed mandatory 
downgrade (or other State enforcement action on the driver's license), 
while other States and AAMVA opposed it. Two commenters suggested 
alternative approaches to the mandatory downgrade. The majority of 
commenters addressing FMCSA's second proposed alternative, optional 
notice to States of a driver's prohibited status, opposed it. Several 
comments addressed drug and alcohol testing issues outside the scope of 
the rulemaking. The comments and the Agency's responses, organized by 
topic, are summarized below.
Non-Issuance
    The NPRM proposed that States be prohibited from completing 
specified CDL/CLP transactions if the mandatory SDLA query to the 
Clearinghouse indicates the applicant is currently subject to the CMV 
driving prohibition in 49 CFR 382.501(a).
    Comments: All commenters specifically addressing this proposal, 
including the nine State commenters, supported it, citing the benefit 
to public safety. The Commonwealth of Virginia, Department of Motor 
Vehicles (Virginia DMV) observed that ``. . . SDLAs are the only 
entities that can enforce the driving prohibition through the licensing 
process.'' Similarly, the Iowa Department of Transportation (Iowa DOT) 
noted that non-issuance ``would effectively close the DACH regulatory 
loopholes allowing drivers testing positive to avoid detection, 
continue holding a valid CDL, and evade the CMV driving prohibition.'' 
The Oregon Department of Transportation, Driver and Motor Vehicle 
Services (Oregon DOT) said that it said that it agrees with FMCSA's 
interpretation that the intent of MAP-21 was ``to deny issuance when an 
individual has adverse information in the Clearinghouse . . . .'' 
Driver iQ expressed a similar opinion regarding congressional intent. 
The ATA commented that non-issuance ``is a necessary step to close the 
loophole in FMCSA's regulations that continues to allow prohibited 
drivers to operate,'' while TCA described the proposal as 
``commonsense.''
    FMCSA Response: The Agency acknowledges the commenters' broad 
support for this provision. We agree that non-issuance is an important 
next step in achieving MAP-21's goal of using Clearinghouse information 
to improve highway safety. As noted above in Section II. B., FMCSA 
retains the non-issuance requirements in the final rule, with one 
clarifying change, addressed below.
Renewal of the H Endorsement Subject to Non-Issuance
    Comment: The Oregon DOT asked FMCSA to clarify whether a driver 
renewing a hazardous material endorsement under 49 CFR 383.141 is 
``subject to non-issuance when adverse information is present in the 
Clearinghouse.''
    FMCSA Response: Yes. Drivers transporting hazardous materials, as 
defined in 49 CFR 383.5, are subject to the CDL requirements of part 
383 and, therefore, subject to FMCSA's drug and alcohol testing 
regulations. The hazardous material (H) endorsement is unique, however, 
in that it is the only endorsement subject to renewal, as required by 
49 CFR 383.141(d). The initial issuance of the H endorsement would, 
therefore, be an upgrade, and the SDLA would query the Clearinghouse in 
accordance with 49 CFR 383.73(e)(8) prior to issuance. The renewal of 
the H endorsement falls within the SDLA's query requirement in 49 CFR 
383.73(d)(9). If the driver is prohibited from operating a CMV, the 
SDLA must not renew the H endorsement, and must comply with the 
downgrade requirements in 49 CFR 383.73(q), as applicable. FMCSA 
clarifies the regulatory text of 49 CFR 383.73(d)(9) accordingly.
Mandatory Downgrade (Alternative #1)
    Under the Agency's preferred proposed alternative (``Alternative 
#1''), SDLAs would be required to remove the CLP or CDL privilege from 
the driver's license after receiving electronic notification from FMCSA 
(by ``push'' or

[[Page 55725]]

``pull'') that the individual is prohibited from operating a CMV. Upon 
receiving notification, SDLAs would initiate State downgrade 
procedures, and must complete and record the downgrade on the CDLIS 
driver record within 30 days of receiving such notice.
    Comments Supporting Alternative #1: Eight of the nine entities 
commenting on the NPRM supported the downgrade (or some other form of 
mandatory State action on the driver's license), as did several States 
and individuals. The New York State Department of Motor Vehicles 
(NYSDMV) said that, under this alternative, ``a uniform nationwide 
system will improve safety and consistency.'' Greyhound also noted the 
benefit of a uniform approach, stating that ``[a]s a nationwide 
carrier, Greyhound needs this uniformity.'' The Virginia DMV, though 
concerned about FMCSA's ability to efficiently implement the electronic 
notification process, nevertheless supported this alternative, stating 
that ``[d]owngrading a credential allows for more avenues of 
enforcement that will ultimately take unsafe drivers off the road.'' 
The State of Nebraska Department of Motor Vehicles (Nebraska DMV) 
supported the downgrade ``at the time of issuance (i.e., renewal, 
upgrade, adding/removing restrictions or transferring from another 
state),'' but not otherwise, due to ``complexities'' associated with 
downgrading the license outside of the issuance process. The State of 
Texas Department of Public Safety (DPS), citing safety concerns posed 
by prohibited drivers, said that it favored State action on the 
driver's license, but would prefer an enforcement action, such as 
revoking, suspending, or disqualifying the CDL, over a license 
downgrade. The NSTA expressed a similar preference. (Note: State-based 
enforcement actions on the driver's license are discussed separately 
below, under the topic, Meaning of the Term ``CDL Downgrade''.) Driver 
iQ said that, under Alternative #1, ``the carrier is far more likely to 
become aware of this downgrade either through established employer 
notification systems, the required annual motor vehicle record review 
required under 49 CFR 391.25(a), or via a roadside inspection, and 
remove the driver from the safety sensitive function.'' The NMFTA noted 
that, in addition to the safety benefits of Alternative #1, it would 
also reduce motor carriers' exposure to liability. An individual said 
the downgrade ``will give [CMV drivers] more incentive to not do drugs 
or drink and drive.'' The ATA observed that failing to require the 
downgrade would allow ``some states to ignore readily available safety 
information,'' while requiring the downgrade ``would provide a level of 
assurance to motor carriers and the motoring public that individuals 
who maintain a valid CLP/CDL are both safe and qualified.'' OOIDA 
recognized that Alternative #1 ``would ensure that drivers with 
legitimate drug and alcohol violations are not able to operate CMVs 
until they have satisfied return-to-duty protocols.''
    FMCSA Response: The Agency agrees with comments recognizing the 
safety benefits of the proposed mandatory downgrade. As explained in 
the NPRM, FMCSA prefers this alternative because it uses driver-
specific Clearinghouse information to increase compliance with the CMV 
driving prohibition, consistent with the purpose of MAP-21, as set 
forth in 49 U.S.C. 31306a(a)(2)(A) and (B). The downgrade requirement, 
retained in the final rule, will accomplish this objective in a uniform 
and effective way by ensuring that CMV drivers subject to the 
prohibition in 49 CFR 382.501(a) do not hold a valid CLP or CDL.
    Comments Opposing Alternative #1: The States of CA, IA, IL, MT, and 
OR opposed the mandatory downgrade, as did AAMVA and several individual 
commenters. As noted above, Nebraska DMV believed that the downgrade 
should be required only during the CLP/CDL issuance process. Commenters 
based their opposition on various implementation and policy concerns, 
which are addressed separately by topic, below.
Proposed 30-Day Time Window for Completing the Downgrade
    In the NPRM, FMCSA asked whether the proposed 30-day timeline for 
completing the downgrade allowed SDLAs sufficient time to comply with 
State-based procedural due process requirements. FMCSA noted its 
intention, when notifying drivers that a violation has been reported to 
the Clearinghouse, to also inform them that their State of licensure 
has been notified and must downgrade the driver's license within 30 
days. FMCSA asked whether its notification of drivers would satisfy 
existing State-based notice requirements, thereby relieving States of 
this administrative burden.
    Comments: Most SDLAs confirmed that, even if FMCSA notified the 
driver of an impending downgrade, they would still be required to 
notify the driver directly, as required by State law. Two State 
commenters noted the proposed 30-day time frame would not allow 
sufficient time for the SDLA to comply with these requirements, which 
include notifying the driver of the pending license action (e.g., 
downgrade) and, in some cases, providing opportunity for an 
administrative hearing prior to completing the action. One State said 
the time period should be consistent with the medical certification 
downgrade process, which allows the State 60 days to downgrade the 
license and update the CDLIS driver record. ATA and NMFTA commented 
that 30 days is sufficient and expressed concern that extending the 
time frame beyond 30 days would adversely impact highway safety.
    Other commenters were concerned that drivers would complete RTD 
well within the 30-day window, rendering the downgrade procedures 
meaningless. The Office of the Illinois Secretary of State (Illinois) 
said that ``[w]e do not feel downgrading the driver is the best action 
because they may be cleared to return to service by the time the 
downgrade is completed.'' AAMVA and several State commenters suggested 
that FMCSA withhold the push notification to the SDLA for 30 days, 
which would give drivers an opportunity to avert a licensing action by 
quickly completing RTD, and would allow SDLAs to avoid the 
administrative burden of providing procedural due process for such 
drivers. In support of this approach, commenters pointed to FMCSA's 
estimate, discussed in the NPRM, that 82 percent of drivers choosing to 
complete the RTD process would do so before the SDLA records the 
downgrade.\13\ The Iowa DOT noted that, based on FMCSA's estimate, some 
individuals could conceivably complete RTD before receiving the initial 
downgrade notice from the SDLA, resulting in confusion for drivers, and 
the SDLA's need to hire additional staff to address drivers' questions. 
The Oregon DOT commented that a ``waiting period'' of 15 to 30 days 
before FMCSA notifies the SDLA of a driver's status ``would remove the 
burden on States to notify individuals who go on to resolve their Sec.  
382.501(a) CMV driving prohibition'' within the waiting period.
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    \13\ See 85 FR 23670, 23688. As discussed in the NPRM, this 
estimate is based on: (1) The assumption, as stated in the 
Regulatory Impact Analysis for the Clearinghouse final rule, that 75 
percent of drivers violating FMCSA's drug and alcohol program would 
be referred to a 16-hour education program that can be completed 
well within 30 days; and (2) a 2018 report, issued by HHS' Substance 
Abuse and Mental Health Services Administration, indicating that 82 
percent of individuals receiving substance abuse treatment 
participated in outpatient education programs.
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    FMCSA response: FMCSA accepts the SDLAs' explanation that they must 
abide by the driver notification requirements in their respective 
States, even if FMCSA notifies the driver that

[[Page 55726]]

his or her license is subject to downgrade. The Agency also 
acknowledges that 30 days would not provide some SDLAs enough time to 
accommodate applicable due process requirements. FMCSA, therefore, 
extends the time frame for completing the downgrade from 30 days, as 
proposed, to 60 days, in this final rule. FMCSA notes the 60-day time 
window aligns with current medical certification downgrade requirements 
in 49 CFR 383.73(o)(4). The Agency acknowledges the concern that 
extending the period beyond 30 days could negatively impact safety. In 
response, FMCSA notes that SDLAs may complete and record the downgrade 
sooner than 60 days, if their State processes allow. FMCSA encourages 
SDLAs to complete the downgrade as soon as possible, as permitted by 
State law.
    FMCSA does not agree with the suggestion to withhold notification 
to SDLAs of the driver's prohibited status for up to 30 days, to allow 
States to avoid downgrade-related administrative costs for drivers who 
timely complete RTD. The Agency emphasizes that CMV drivers who engage 
in the prohibited use of drugs or alcohol pose an immediate risk to 
public safety, and it would be irresponsible for FMCSA to withhold that 
information from SDLAs. As noted in the NPRM, the prohibition in 49 CFR 
382.501(a) takes effect as soon as the drug and alcohol program 
violation occurs. Moreover, FMCSA's estimate that 82 percent of drivers 
completing RTD will do so within 30 days, as set forth in the NPRM, 
must be viewed in context. The NPRM, citing the Regulatory Impact 
Analysis (RIA) of the 2016 Clearinghouse final rule, also estimated 
that 45 percent of drivers who test positive elect to consult with an 
SAP and begin the RTD process.\14\ The remaining 55 percent presumably 
leave the industry, voluntarily give up their CDL to drive CMVs not 
requiring a commercial license, or continue to operate in violation of 
the driving prohibition. Given that the majority of drivers who test 
positive do not complete RTD, FMCSA's withholding notice of prohibited 
status from SDLAs, for any length of time, would be contrary to public 
safety. (The Agency's estimate of the number of drivers who will 
complete RTD is discussed further below, in Section XI., Regulatory 
Analyses.)
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    \14\ The NPRM cited the 2016 Clearinghouse final rule RIA's 
estimate that 53,500 drivers would test positive and be required to 
complete RTD before resuming safety-sensitive functions, including 
operating a CMV. Of these, 24,000 drivers (45 percent) would 
complete RTD. See 85 FR 23670, 23688.
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Procedural/Due Process Concerns
    Comments: The Nebraska DMV commented that downgrading the license 
outside the issuance process, which would be ``the result of [FMCSA's] 
request,'' raises procedural questions. Specifically, Nebraska DMV 
asked: ``. . . who the driver is supposed contact with questions; Who 
sends the driver the downgrade letter? How will we know when the 
driver's issue is resolved with FMCSA? If FMCSA sends the letter, but 
the SDLA is responsible for the CDLIS record, what happens if FMCSA 
doesn't send the letter in a timely manner or at all?'' AAMVA asked 
whether the surrender of a CLP or CDL would be required as part of the 
proposed downgrade. The Virginia DMV, though supporting the downgrade, 
expressed concern ``with conducting hearings for individuals contesting 
the downgrade of their credential.'' The Virginia DMV noted that it 
would have no evidence to justify the downgrade ``other than the 
notification based on the report of an employer received from the 
Clearinghouse.''
    FMCSA Response: As discussed above, State laws determine whether 
the SDLA must notify a driver of the impending downgrade, and, if so, 
how and when that would be accomplished. Drivers with questions about 
their specific licensing status, including how they can reinstate the 
CLP or CDL if a downgrade occurs, will need to contact the SDLA that 
issued the license. Drivers with questions about their Clearinghouse 
record, the impact of a violation on their CMV operating status, or 
what the Federal regulations require the SDLAs to do once notified of a 
driver's prohibited status, may contact FMCSA through the Clearinghouse 
website (https://clearinghouse.fmcsa.dot.gov/). As explained in the 
NPRM, State downgrade processes will be initiated when FMCSA notifies 
the SDLA, through CDLIS or other electronic means, of a driver's 
prohibited status. The Agency will also notify the SDLA when the 
driver, having complied with RTD requirements, is no longer prohibited 
from operating a CMV. FMCSA's first notification to the SDLA will occur 
when a driver's employer, or the employer's service agent (i.e., 
medical review officer, consortium/third party administrator), reports 
a violation to the Clearinghouse. The second notice will occur when a 
driver's negative RTD test result is reported to the Clearinghouse. The 
final rule retains these notification requirements, as proposed.
    As noted in the NPRM, FMCSA, when notifying drivers of a reported 
violation, as required by 49 CFR 382.707(a), intends to also let 
drivers know their SDLA has been informed of their prohibited status, 
and is required to initiate a downgrade of their license. If the driver 
is registered in the Clearinghouse, FMCSA will notify the driver via 
email; otherwise, drivers will receive notification by U.S. mail. The 
purpose of this notice is simply to further clarify the process for 
drivers and let them know what to expect. In response to AAMVA's 
question about surrender of the CLP or CDL, the Agency notes that 
States will rely on their established procedures to remove the CLP or 
CDL privilege from the driver's license. Whether a physical surrender 
of the credential is required as part of that process will, therefore, 
be determined by the State.
    In response to the Virginia DMV's comment, the Agency notes that 
each State maintains its own due process requirements. It is, 
therefore, entirely within the States' discretion to determine whether 
CMV drivers may contest a downgrade or other pending license action. 
The evidentiary standards and burden of proof applicable in such 
proceedings would be determined on a State-by-State basis.
Downgrade for Issuance of Citation for DUI
    Comment: The Iowa DOT opposed Alternative #1 because it ``would 
require us to initiate a commercial downgrade after receiving an OWI 
and prior to receiving an OWI conviction,'' which would create 
confusion and cause delays to existing processes. (In Iowa, `operating 
while intoxicated,' or OWI, is the equivalent of DUI.) The Iowa DOT 
takes action only when the driver refuses or fails an OWI test, or is 
criminally convicted of OWI. In that situation, the Iowa DOT revokes 
``a person's base driving privilege, which thereby disqualifies their 
commercial driving privileges.''
    FMCSA Response: Currently, if a motor carrier employer knows that a 
driver it employs has received a citation for DUI in a CMV, the 
employer has ``actual knowledge'' of the employee's prohibited use of 
drugs or alcohol, as defined in 49 CFR 382.107. The employer's report 
of actual knowledge of prohibited use (``actual knowledge violation''), 
based on the issuance of a citation for DUI in a CMV, must be reported 
to the Clearinghouse, as required by 49 CFR 382.705(b)(4). (This issue 
is discussed further below under

[[Page 55727]]

the topic heading, ``Actual Knowledge Violations Based on Issuance of 
Citation for DUI in a CMV.'') FMCSA notes that, after the employer 
reports the actual knowledge violation to the Clearinghouse, the SDLA 
will receive notice only of the driver's prohibited status, and will 
not be aware of the driver's specific drug or alcohol violation (i.e., 
positive test result, test refusal, or the employer's actual knowledge 
of prohibited use of drugs or alcohol). The downgrade is therefore 
triggered by the actual knowledge violation reported to the 
Clearinghouse by the employer, rather than the DUI citation itself.
    FMCSA notes, however, that drivers prohibited from operating a CMV 
under 49 CFR 382.501(a) face separate, and more severe, consequences if 
they are ultimately convicted of DUI in a CMV. If a driver is convicted 
of that offense, he/she would be disqualified from operating a CMV for 
a minimum of 1 year, in accordance with 49 CFR 383.51(b)(1) or (2).
Necessity of Downgrade
    Comments: The Montana Department of Justice, Motor Vehicle Division 
(MDOJ-MVD) commented that the downgrade is unnecessary since a driver's 
prohibited operating status is accessible to roadside enforcement 
officers through Nlets.\15\ Similarly, the Iowa DOT noted that roadside 
detection of the driver's prohibited status through the ``CDLIS Central 
Site'' would preclude the need for SDLA involvement. AAMVA commented 
that, instead of a downgrade, ``direct law enforcement access to DACH 
data could more appropriately accomplish the goal of enforcing against 
prohibited drivers.'' The Oregon DOT believed that CDLIS is ``not an 
appropriate location to attempt to represent adverse Clearinghouse 
data,'' and suggested that ``FMCSA may instead wish to provide for 
enhanced capabilities for law enforcement to view an individual's 
status in the Clearinghouse during roadside stops.''
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    \15\ Nlets, formerly the National Law Enforcement 
Telecommunications System, is now operating as the Nlets-
International Justice and Public Safety Network. Its mission is to 
facilitate the electronic exchange of public-safety information, 
including motor vehicle and drivers' data, among State law 
enforcement agencies, Federal agencies with a justice component, and 
other strategic partners serving the law enforcement community.
---------------------------------------------------------------------------

    FMCSA Response: A license downgrade and roadside access to a 
driver's prohibited status are not mutually exclusive; each provides a 
separate basis for enforcement intervention. As explained in the NPRM 
(85 FR 23670, 23682) and above in Section II. B., MCSAP officers' 
roadside access to the driver's prohibited status (determined before 
the downgrade takes effect and the CLP/CDL is still valid), will enable 
enforcement of the driving prohibition under 49 CFR 392.15. However, 
some non-MCSAP State and local traffic safety officers would be unaware 
of the driver's prohibited status during the period before the 
downgrade is completed because, unlike MCSAP personnel, they lack 
reliable roadside access to FMCSA's enforcement data through 
cdlis.dot.gov or Query Central (the driver's DACH status is not 
currently accessible through Nlets). The downgrade of a CMV driver's 
license will allow these State and local traffic safety officers to 
determine the driver is not legally authorized to operate a CMV by 
conducting a routine license check. If the SDLA has completed the 
downgrade at the time the check is conducted, the officer will know the 
driver does not hold a valid CLP or CDL, thereby providing a basis for 
enforcement action in accordance with 49 CFR 391.11(b)(5). In the 
absence of a license downgrade, some of these officers would be unaware 
of the driver's prohibited status because, unlike MCSAP personnel, they 
lack reliable roadside access to FMCSA's enforcement data through 
cdlis.dot.gov. Non-MCSAP officers will, however, be able to detect 
prohibited drivers by conducting a routine license check, if the SDLA 
has completed the downgrade at the time the check is conducted. The 
downgrade will therefore strengthen roadside enforcement of the CMV 
driving prohibition by allowing all traffic safety personnel to be 
aware that the prohibited driver is not licensed to operate a CMV. 
Further, the downgrade, by increasing the consequences of non-
compliance for CMV drivers, provides an incentive for drivers to 
complete RTD to restore their commercial driving privileges. The Agency 
believes it may also deter the prohibited use of drugs and alcohol.
FMCSA's Legal Authority/Congressional Intent
    Comments: The MDOJ-MVD questioned whether ``federal law authorizes 
FMCSA to regulate SDLAs to downgrade CLP/CDL outside of issuance 
transactions.'' AAMVA maintained that congressional intent underlying 
the State-specific Clearinghouse statutory requirements is ``less clear 
than FMCSA concludes.'' AAMVA further asserted that, ``[c]ontrary to 
FMCSA's proposal in this NPRM, there is no legal basis for a state to 
downgrade, not issue, or otherwise take a state licensing action for a 
driver refusal or failure of a drug or alcohol test.''
    FMCSA Response: The Agency's legal authority to issue the final 
rule is explained above in Section IV., Legal Basis for the Rulemaking 
(and was set forth in the Legal Basis section of the NPRM). As noted 
therein, in addition to MAP-21, FMCSA relies on the concurrent 
statutory authority of 49 U.S.C. chapter 313, which establishes the 
Agency's jurisdiction to set minimum standards for the issuance of CLPs 
and CDLs and the fitness of CMV operators. As discussed in Section 
V.A., FMCSA relies on the authority of 49 U.S.C. 31308 and 31305(a) to 
adopt the downgrade requirement in this final rule. The Agency notes 
that the downgrade requirement is also consistent with the MAP-21 
requirements in 49 U.S.C. 31311(a)(24) and 49 U.S.C. 31306a(h)(2).
Suggested Alternatives to Proposed Mandatory Downgrade
    Comments: In lieu of a downgrade, an individual commenter suggested 
that SDLAs issue a ``temporary CDL,'' valid for 30-60 days, which would 
provide time for drivers to resolve the issue while still driving 
legally; ``[t]he fact that it is a temporary CDL and the reason why 
would be shown on their MVR.'' The Iowa DOT said that a better way to 
ensure effective enforcement of the driving prohibition would be the 
adoption of uniform standards for disqualification when a CLP or CDL 
holder ``has a certain number or severity of violations under the drug 
and alcohol program,'' for example, ``a certain number of positive test 
results within an established time frame results in a 30-day 
disqualification.'' AAMVA stated that ``FMCSA must make a determination 
on whether the driver is disqualified and notify the licensing 
authority accordingly.''
    FMCSA Response: As noted above, the CMV driving prohibition in 49 
CFR 382.501(a) takes effect at the time the driver engages in conduct 
violating FMCSA's drug and alcohol program. The issuance of a temporary 
CDL allowing the driver to operate after a violation occurs would be 
contrary to the prohibition and poses an obvious risk to public safety. 
As explained in the NPRM, CLP and CDL holders subject to the downgrade 
are not ``disqualified'' under 49 CFR part 383.\16\ Each of the driver 
disqualifications required under part 383 is specifically set forth in 
statute (49 U.S.C. 31310). Driver disqualifications under 49 CFR 383.51 
require that the individual be convicted

[[Page 55728]]

of a specified traffic violation, while drivers are disqualified under 
Sec.  383.52 only if they are determined to constitute an imminent 
hazard, as defined in Sec.  383.5. While drug and alcohol program 
violations raise obvious safety concerns, drivers subject to the CMV 
driving prohibition do not meet either of these disqualification 
criteria. Moreover, under the drug and alcohol program requirements set 
forth in 49 CFR parts 40 and 382, a driver is eligible to resume 
safety-sensitive functions following completion of RTD requirements. 
The purpose of the RTD requirements is rehabilitative, not punitive. 
FMCSA believes that disqualifying drivers for a pre-determined period 
of time, regardless of their RTD status, is inconsistent with this 
principle.
---------------------------------------------------------------------------

    \16\ 85 FR 23670, 23678.
---------------------------------------------------------------------------

Meaning of the Term ``CDL Downgrade''
    The NPRM proposed that, for individuals subject to the CMV driving 
prohibition, SDLAs downgrade the driver's license (i.e., remove the 
commercial driving privilege) by changing the commercial status on the 
CDLIS driver record from ``licensed'' to ``eligible'' for CDL holders, 
and changing the permit status from ``licensed'' to ``eligible'' for 
CLP holders. These designations, currently set forth in the AAMVA CDLIS 
State Procedures Manual \17\ (AAMVA CDLIS Manual), describe how the 
State currently records the downgrade on the CDLIS driver record of 
individuals whose medical certification status changes from 
``certified'' to ``not certified,'' as required by 49 CFR 383.73(o)(4). 
In order to further clarify the meaning of the term downgrade, as used 
in the NPRM, FMCSA proposed to amend the current definition of CDL 
downgrade, set forth in 49 CFR 383.5, and to add a new definition of 
CLP downgrade, incorporating the AAMVA CDLIS Manual procedures 
described above.
---------------------------------------------------------------------------

    \17\ AAMVA CDLIS Procedures Manual, Release 5.3.3 (Dec. 2015), 
at 95; AAMVA CDLIS Technical Specifications Manual, Release 5.3.3 
(Dec. 2015), at pp. 669-70, 683.
---------------------------------------------------------------------------

    Comments: As noted previously, both the Texas DPS and the NSTA 
stated their preference for enforcement action on the license, such as 
suspension, revocation, or cancellation of the CDL, over a downgrade. 
Texas noted that ``[t]he act of downgrading a CMV driver does not have 
the same impact as suspending, revoking, or disqualifying the CDL,'' 
and that an enforcement action, recorded in the driver history, ``would 
allow for proper tracking and enforcement roadside.'' The NSTA said 
that a downgrade ``results in additional steps for the SDLAs, and 
leaves room for error as a result.'' AAMVA urged FMCSA to clarify what 
is to appear on the driver record, observing that ``[S]tates should not 
be left to interpret what the [prohibited] designation means in terms 
of eligibility.''
    FMCSA Response: As set forth in 49 CFR 383.5, the term CDL 
downgrade means, among other things, the State's removal of the CDL 
privilege from the driver's license. In the NPRM, FMCSA intended to 
clarify how SDLAs would accomplish the downgrade by proposing that 
AAMVA's CDLIS procedures, described above, be incorporated into the 
regulatory definition of downgrade. We did not, however, intend to 
convey that changing the commercial license or permit status from 
``licensed'' to ``eligible'' would be the only action States could take 
to remove the CLP or CDL privilege from the driver's license. 
Accordingly, to avoid confusion on this issue, FMCSA does not 
incorporate the proposed definitions of CDL downgrade and CLP downgrade 
in the regulatory text of this final rule. (The final rule does, 
however, clarify that the term CDL downgrade also includes the removal 
of the CLP privilege.)
    As explained in the NPRM, and discussed above in Section V.C., 
Impact of MAP-21 on State Laws, MAP-21 excepts from Federal preemption 
State licensing actions relating to a driver's CDL, or driving record, 
due to violations of FMCSA's drug and alcohol program.\18\ The final 
rule requires that the SDLA downgrade the driver's license of CLP or 
CDL holders who are subject to the CMV driving prohibition, as 
proposed; this is a minimum requirement. FMCSA anticipates that States 
will record the downgrade by changing the commercial status on the 
CDLIS driver record from ``licensed'' to ``eligible,'' consistent with 
current practice for medical certification downgrades required by 49 
CFR 383.73(o)(4).\19\ The Agency notes that States may, at their 
discretion, suspend, revoke, cancel, or otherwise remove the CLP or CDL 
from the license, relying on existing State procedures to record the 
action on the CDLIS driver record. In the Agency's judgment, this 
approach is consistent with the preemption exception in MAP-21, 
discussed above, while also maintaining a uniform outcome across the 
country, i.e., the States' removal of the commercial driving privilege 
from the driver's license of CMV operators subject to the prohibition. 
Regardless of how the State removes the commercial privilege, the CDLIS 
driver record must show that the driver does not hold a valid CLP or 
CDL. The State must record the downgrade, or other discretionary 
licensing action, on the CDLIS driver record within 60 days of 
receiving notice of the driver's prohibited status.
---------------------------------------------------------------------------

    \18\ 82 FR 23670, 23679-23680. MAP-21 excepts from Federal 
preemption State requirements relating to ``an action taken with 
respect to a commercial motor vehicle operator's commercial driving 
license or driving record'' due to a verified positive test result, 
a test refusal, or other violations of 49 CFR part 382, subpart B 
(49 U.S.C. 31306a(l)(3)).
    \19\ AAMVA CDLIS State Procedures Manual, Release 5.3.3 (Dec. 
2015), at 95; AAMVA CDLIS Technical Specifications Manual, Release 
5.3.3 (Dec. 2015), at pp. 669-70; 683.
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Integration of Clearinghouse and Medical Fitness Requirements
    Comments: AAMVA observed that the Agency's citation of 49 U.S.C. 
31305(a), which requires the Secretary to prescribe minimum standards 
for testing and fitness of CMV drivers, ``implies that [Clearinghouse] 
program requirements are directly linked to medical fitness 
requirements rather than any new or additional requirements.'' AAMVA 
further stated: ``. . . from a policy standpoint, if drug and alcohol 
testing failures are to be comprehensively considered as part of 
`medical fitness' it seems those programs should also be contracted as 
a single, comprehensive source for making medical fitness 
determinations by external entities (including SDLAs)'' (emphasis in 
original).
    FMCSA Response: Because fitness,\20\ as the term is used in 49 
U.S.C. 31305(a), is not defined in statute, FMCSA interprets the term 
according to its plain meaning. For example, the Oxford Dictionary 
defines fitness as, alternatively, ``the condition of being physically 
fit and healthy,'' or ``the quality of being suitable to fulfill a 
particular role or task.'' The Agency's reference to 49 U.S.C. 31305(a) 
simply reflects that CLP or CDL holders or applicants who are subject 
to the prohibition in 49 CFR 382.501(a) are not ``fit'' to operate a 
CMV. FMCSA did not, therefore, intend to imply a ``direct link'' 
between its drug and alcohol program requirements in 49 CFR part 382 
and medical certification requirements in 49 CFR part 391, subpart E. 
The two sets of regulatory requirements each have distinct purposes and 
underlying statutory authorities. These programs have always been 
administered separately, and the NPRM did not propose to change that.
---------------------------------------------------------------------------

    \20\ The Oxford Dictionary, available at https://www.lexico.com/definition/fitness (accessed Jan. 14, 2021).

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[[Page 55729]]

Downgrades Based on Incorrect Clearinghouse Information
    As noted in the NPRM, if violation information reported to the 
Clearinghouse is subsequently determined to be incorrect, or fails to 
meet reporting requirements, it may be removed from the Clearinghouse 
in accordance with 49 CFR 382.717, or DOT's Privacy Act regulations in 
49 CFR part 10. FMCSA proposed that, if a driver's license is 
downgraded as the result of incorrect Clearinghouse information, the 
SDLA should reinstate the commercial privilege, and update the driving 
record, ``as fairly and efficiently as possible'' following 
notification from the Agency that the driver is not prohibited from 
operating a CMV. We requested comment from SDLAs and drivers on whether 
FMCSA should include corrective action procedures in the final rule, or 
whether States should rely on their own processes to address this 
issue.
    Comments: The seven State commenters addressing this question all 
preferred that the SDLAs rely on existing State procedures to correct 
errors on an individual's license or driving record, once notified by 
FMCSA. AAMVA commented that FMCSA should not mandate how the 
reinstatement should occur since SDLAs have existing correction 
procedures, but that ``FMCSA should be the sole party responsible for 
correcting erroneous information contained in the DACH. . . .'' The 
Agency received no driver comments in response to this question.
    FMCSA Response: The final rule does not establish specific 
procedures for States' reinstatement of the CDL or CLP to the driver's 
license, or correction of the driving record, following FMCSA's 
notification that a Clearinghouse error occurred. It does, however, 
require the SDLA to reinstate the commercial privilege, and expunge the 
driving record, following error correction. As explained in the NPRM, 
FMCSA is responsible for ensuring the accuracy of information in a 
driver's Clearinghouse record, and for informing the SDLA when an error 
affecting a driver's licensing status is discovered. Accordingly, the 
Agency will promptly notify the SDLA that the driver's prohibited 
status, previously reported to the SDLA, was based on erroneous 
Clearinghouse information, and the driver is not prohibited from 
operating a CMV. If the State has completed the downgrade (or other 
discretionary licensing action) at that point, it must expeditiously 
reinstate the commercial privilege to the driver's license, and correct 
the driving record,\21\ in accordance with established State 
procedures. FMCSA believes these requirements will mitigate, to the 
extent possible, the impact of State licensing actions on drivers based 
on erroneous Clearinghouse information.
---------------------------------------------------------------------------

    \21\ In this context, the term driving record includes the CDLIS 
driver record, as defined in 49 CFR 383.5, and the Motor vehicle 
record, as defined in 49 CFR 390.5, if applicable.
---------------------------------------------------------------------------

    The Agency notes that reinstatement following error correction is 
distinct from the ``regular'' reinstatement process proposed in the 
NPRM. In that scenario, the driver's drug and alcohol program violation 
is reported to the Clearinghouse; the SDLA initiates a downgrade of the 
driver's license following notification from FMCSA of the driver's 
prohibited status; and, following the driver's completion of RTD 
requirements, the SDLA receives notification that the driver is no 
longer prohibited from operating a CMV. At that point, the driver would 
be eligible for reinstatement of the CLP or CDL, as permitted by State 
law. The final rule retains this reinstatement provision, essentially 
as proposed (49 CFR 383.73(q)(2)).
Optional Notice of Prohibited Status (Alternative #2)
    This proposed alternative would permit, but not require, SDLAs to 
receive ``push'' notifications of a driver's prohibited status. States 
would determine whether, and how, to use the information to improve 
compliance with the CMV driving prohibition.
    Comments: AAMVA and the MDOJ-MVD preferred this alternative over 
the mandatory downgrade, citing the flexibility it affords to States. 
Other commenters expressed concern about the lack of uniformity 
inherent in this approach. The Iowa DOT opposed the adoption of 
Alternative #2, stating that it ``will create inconsistent consequences 
for a driver's drug and alcohol program violation, and therefore, 
create confusion and complaints among drivers and carriers.'' Driver iQ 
said that this approach ``would allow States to abdicate their 
responsibility for highway safety by ignoring risk and/or failing to 
act.'' The NMFTA noted that Alternative #2 would result in ``a 
complicated and confused regulatory framework'' in which ``drivers and 
carriers operating in states with less stringent CDL and [CLP] checks 
would have a competitive advantage over others operating under stricter 
rulesets.''
    FMCSA Response: The Agency agrees with commenters noting the 
drawbacks of the State-by-State approach envisioned under Alternative 
#2. As discussed above, the final rule does not adopt this alternative.
Inclusion of CLP Holders in State Query
    The proposed inclusion of CLP holders in the States' mandatory 
query was intended to correct an oversight in the Clearinghouse final 
rule, as the query requirement is currently limited to CDL holders.
    Comments: AAMVA noted that ``until an applicant is issued a CLP, 
they would not have a corresponding record in the DACH, making this 
process irrelevant in some cases.''
    FMCSA Response: The Agency acknowledges that CLP applicants who 
have no prior commercial license history will not have a Clearinghouse 
record. However, the query is necessary because some CLP applicants may 
have previously held a CLP or CDL issued by another State. The final 
rule requires, as proposed, that States query the Clearinghouse prior 
to issuing, renewing, or upgrading a CLP.
Addition of CMV Driving Prohibition to 49 CFR Part 392
    FMCSA proposed to add the prohibition, set forth in 49 CFR 
382.501(a), to part 392, to further assist the States' enforcement of 
the prohibition in connection with CMV traffic stops, inspections, and 
other roadside interventions.
    Comments: Driver iQ supported this proposal, noting that ``all 
state law enforcement should be authorized to hold drivers accountable 
at roadside.'' AAMVA asked for confirmation that the ``FMCSA views the 
new prohibition incorporated into Sec.  392.15 as a `disqualification' 
for purposes of performing a CDLIS record check [as required by Sec.  
384.205].''
    FMCSA Response: As explained in the NPRM, the purpose of adding the 
prohibition to part 392 is to assist in the States' roadside 
enforcement during the period in which a driver, who is prohibited, 
nevertheless holds a valid CLP or CDL because the commercial privilege 
has not yet been removed from the driver's license. The provision is 
therefore adopted as proposed. This provision does not render the 
prohibited driver ``disqualified'' for purposes of the CDLIS check 
required in 49 CFR 384.205. In the NPRM, FMCSA noted that, if the SDLA 
``pulled'' driver-specific information from the Clearinghouse using the 
existing CDLIS platform, the driver's status would be provided as part 
of the CDLIS check already required under 49 CFR 384.205. The point was 
merely that using the

[[Page 55730]]

CDLIS platform would make a separate SDLA query to the Clearinghouse 
unnecessary. Adding the prohibition to part 392 is entirely unrelated 
to the SDLAs' CDLIS check, and the NPRM did not suggest any connection 
between the two.
Actual Knowledge Violations Based on Issuance of Citation for DUI in a 
CMV
    Under 49 CFR 382.107, employers have ``actual knowledge'' of a 
driver's prohibited drug or alcohol use if they are aware that the 
driver was issued a traffic citation for DUI in a CMV; under the 2016 
Clearinghouse final rule, the actual knowledge violations must be 
reported to the Clearinghouse. Drivers who are not convicted of the 
offense may petition to have the actual knowledge violation removed 
from their Clearinghouse record. The NPRM clarified that under current 
regulations, when a CLP or CDL holder is cited for DUI in a CMV, the 
driver has engaged in conduct prohibited by 49 CFR part 382, subpart B, 
regardless of whether the driver is ultimately convicted of the 
offense. FMCSA proposed, therefore, that reports of actual knowledge 
based on the issuance of a traffic citation for DUI in a CMV should 
remain in the Clearinghouse for 5 years, regardless of whether the 
driver is convicted; drivers not convicted of the offense could add 
evidence of non-conviction to their Clearinghouse record so that future 
prospective employers would be aware that the driver, though charged 
with DUI in a CMV, was not convicted of the offense.
    Comments: The ATA supported the proposed revision, commenting that 
it would ``ensure compliance with the Clearinghouse's statutory 
requirements to include all DOT alcohol and drug violations while 
providing fairness to drivers and full disclosure to employers.'' The 
Trucking Alliance was also in favor of the change, noting that 
``[c]onviction of a traffic citation is a separate issue and carries 
different consequences.'' There were no comments opposing the proposed 
revision.
    FMCSA Response: As proposed, the final rule requires that actual 
knowledge violations based on this issuance of a traffic citation \22\ 
for DUI in a CMV remain in the Clearinghouse for 5 years, commensurate 
with other drug and alcohol prohibitions identified in 49 CFR part 382, 
subpart B.\23\ Drivers may submit documentary evidence of non-
conviction to their Clearinghouse record, which will ensure future 
prospective employers who conduct pre-employment queries on the driver 
will be aware that the driver was not convicted of DUI in a CMV by 
viewing his/her Clearinghouse record.
---------------------------------------------------------------------------

    \22\ In 2019, the Agency amended 49 CFR 382.107 to clarify that 
traffic citation, as the term is used in the definition of actual 
knowledge in Sec.  382.107, means ``a ticket, complaint, or other 
document charging driving a CMV while under the influence of alcohol 
or controlled substances.'' See 84 FR 51427, 51428 (Sept. 30, 2019).
    \23\ 49 U.S.C. 31306a(g)(6)(A) requires that violations be 
retained in the Clearinghouse for 5 years; this requirement is set 
forth in 49 CFR 382.719(a)(4).
---------------------------------------------------------------------------

Proposed Change to 49 CFR 382.503--Resumption of Safety-Sensitive 
Functions
    This section currently provides that a driver who has engaged in 
conduct prohibited by 49 CFR part 382, subpart B, must not perform 
safety-sensitive functions, including operating a CMV, until completing 
RTD requirements. Under Alternative #1, the NPRM proposed to clarify 
this provision by stating that a driver whose CLP or CDL was 
downgraded, in accordance with 49 CFR 383.73(q), could not resume 
driving a CMV until the State restored the commercial driving privilege 
to the driver's license.
    Comment: AAMVA interpreted the proposed change ``to mean that a 
driver may only resume driving operations once the driver record 
transaction has been completed by the SDLAs,'' and noted that ``the 
possible conflict in timing of clearance creates an inequity for 
drivers that is inconsistent with Clearinghouse law.''
    FMCSA Response: AAMVA correctly interprets the proposed change, 
which is adopted in this final rule. As discussed in the NPRM, FMCSA is 
aware that processes for reinstating the CLP/CDL privilege following a 
downgrade vary among the States. Depending on applicable State 
procedures, a gap may exist between the time the SDLA receives 
notification that the driver is no longer prohibited from operating a 
CMV, and the time the SDLA restores the CLP or CDL to the driver's 
license. The amendment to 49 CFR 382.503, by implicitly recognizing 
this possibility, is intended to clarify that an individual may not 
resume driving a CMV until fully licensed to do so. In the NPRM, FMCSA 
acknowledged that drivers and their employers may incur modest 
opportunity costs during this ``gap'' period and estimated what those 
costs would be. (The Agency's estimates of motor carrier and driver 
opportunity costs related to reinstatement following completion of RTD 
are discussed further below in Section XI.)
Transmission of Clearinghouse Information to the SDLAs
    FMCSA proposed two alternatives for the electronic transmission of 
the driver's CMV operating status (prohibited or not prohibited) to 
SDLAs: (1) The existing CDLIS platform; or (2) a web-based service 
call, which would require an electronic interface between the SDLA and 
the Clearinghouse. We invited comment on the alternatives, and asked 
whether States should have the option to determine which method of 
electronic transmission would best suit their existing IT 
infrastructure.
    Comments: Some State commenters addressing this question preferred 
the CDLIS platform, while others were unsure which option would be more 
efficient. The NYSDMV opposed ``shifting to a web-based system when 
CDLIS is an established working system that meets all our needs.'' The 
Virginia DMV commented that CDLIS would be a more efficient and cost-
effective alternative, noting that ``SDLAs already use CDLIS to obtain 
other information during licensing transactions.'' The Nebraska DMV 
strongly preferred using ``the existing CDLIS platform for electronic 
transmission of Clearinghouse information during time of issuance.'' 
Illinois said that CDLIS is currently the most efficient option but 
noted that they ``are in the process of system modernization so this 
may change to web based by the time this program is implemented.'' 
AAMVA recommended that ``the final rule be developed in such a way that 
the technology solution is not prescriptive and affords states maximum 
flexibility in complying with regulatory requirements.''
    FMCSA Response: The comments reflect that States have varying IT 
system capabilities and resources. The Agency, therefore, does not 
establish a specific method of electronic transmission in the final 
rule. As AAMVA noted, a non-prescriptive IT requirement will allow each 
SDLA the flexibility to determine the IT solution that is the best fit 
for them. FMCSA will work closely with AAMVA and the States in 
developing system specifications that will accommodate the States' use 
of the CDLIS platform, as well as web-based alternatives, to request 
and receive information from the Clearinghouse.
Compliance Date
    FMCSA requested comment on how long it would take States to 
implement changes to their IT systems that would enable them to 
electronically request and receive Clearinghouse information,

[[Page 55731]]

once FMCSA makes the technical specifications available.\24\
---------------------------------------------------------------------------

    \24\ As noted in the NPRM, the current compliance date of 
January 6, 2023, which applies to the States' query requirements set 
forth in 49 CFR 382,725(a) and 383.73, will be replaced by the date 
established by the final rule.
---------------------------------------------------------------------------

    Comments: State responses to this question varied, ranging from 18 
months to 4 years following FMCSA's development of technical 
specifications. The Virginia DMV also pointed out that simultaneous 
implementation of the electronic initiatives associated with the 
National Registry of Certified Medical Examiners (NRCME), the Training 
Provider Registry (TPR), and the Clearinghouse, would place an 
intolerable burden on the SDLAs. State commenters also noted the need 
to obtain State legislative authority to take licensing actions based 
on Clearinghouse information. AAMVA explained that ``the time frame 
needs to account for legislative changes that may span multiple 
sessions, or be applicable to State legislatures that do not meet 
annually.''
    FMCSA Response: FMCSA concludes that, in order to achieve full 
implementation of the State requirements set forth in the final rule, a 
3-year compliance date is necessary. The Agency believes a 3-year 
period allows FMCSA sufficient time to develop the technical 
specifications States will need to modify their IT systems, and for 
States to implement those system changes. This time frame will also 
accommodate the SDLAs' need to obtain necessary legislative and fiscal 
authority from their respective States. In response to the Virginia 
DMV's concern about the ``intolerable burden'' of simultaneously 
implementing this final rule, along with the TPR and NRCME initiatives, 
FMCSA notes that implementation of the TPR (and other provisions of the 
Entry-Level Driver Training final rule) is on schedule to meet the 
compliance date of February 7, 2022. FMCSA recently extended the date 
by which States must comply with the medical examiners certification 
integration requirements, from June 22, 2021 to June 23, 2025. FMCSA is 
committed to providing States with the technical specifications 
underlying both the NRCME and DACH initiatives as soon as possible, so 
that States will have ample time complete the necessary modifications 
to their IT systems. (As noted above, in accordance with 49 CFR 
350.303(b), FMCSA also adopts a 3-year compliance date for the 
requirements in 49 CFR 390.3, 390.3T, and 392.15 as set forth in this 
final rule.)
Costs
    In the NPRM, FMCSA estimated cost impacts of the proposal, 
including CLP/CDL reinstatement costs and opportunity costs for drivers 
whose licenses are downgraded, opportunity costs for carriers that 
employ downgraded drivers, and SDLA costs related to IT modifications. 
In estimating SDLA costs, the Agency included IT system development and 
annual expenses for operations and maintenance for each proposed method 
of electronic transmission, as well as each of the proposed regulatory 
alternatives (downgrade; optional notice of prohibited status). FMCSA 
requested comment on the estimated costs and asked whether there are 
other costs to SDLAs that the Agency should consider.
    Comments: State commenters identified various cost impacts not 
addressed in the NPRM, including: processing driver reinstatements, 
notifying drivers of a pending downgrade, training SDLA personnel, 
updating training materials, hiring additional personnel to process the 
downgrade and respond to customer questions and complaints, and 
updating SDLA websites to provide links and other information about the 
impact of the final rule on State licensing processes. AAMVA noted that 
``[e]ven with reliance on existing downgrade procedures, the cost 
associated with ongoing record maintenance and fulfilling the 
additional volume of data transactions on the record represent 
additional labor hours, IT resources, and systems testing,'' and 
provided qualitative cost information for each of the proposed methods 
for electronic transmission. In addition, AAMVA indicated CDLIS system 
modifications would be necessary. As noted above, FMCSA did not receive 
comments specifically addressing the estimated costs to drivers and 
motor carriers.
    FMCSA Response: FMCSA acknowledges the information that AAMVA and 
SDLAs provided concerning costs not accounted for in the NPRM; we 
considered these comments when revising the cost estimates for the 
final rule. The Agency notes that State-based due process requirements, 
such as notice, already exist, and are therefore not imposed by this 
final rule. For example, the rule does not require that States notify 
drivers of an impending downgrade. Therefore, to the extent a State 
incurs notification costs, they derive directly from State-based 
requirements. (As discussed above, FMCSA intends to notify drivers of 
the downgrade requirement when informing them that a drug or alcohol 
violation has been reported to the Clearinghouse.) FMCSA agrees that 
States will likely need to train their employees on any new process and 
procedures related to the final rule. FMCSA assumes this will occur as 
part of routine training related to periodic changes in statutory or 
regulatory requirements, and therefore does not estimate a separate 
training cost in this rule. FMCSA agrees that States will incur costs 
for customer service inquiries and for initial IT development, and 
ongoing operations and maintenance, in order to comply with this rule. 
In Section XI., the Agency explains the assumptions used to determine 
cost impacts of the final rule on SDLAs. FMCSA acknowledges that AAMVA 
may need to make updates to CDLIS in order to transmit additional data 
elements on the driver record and incorporated a cost for CDLIS updates 
in Section XI.
Comments Outside the Scope of the NPRM
    An individual commenter suggested increased oversight on the 
substance abuse professionals who administer RTD requirements. Another 
individual, noting that motor carrier employers must pay a fee to 
access Clearinghouse information, recommended that FMCSA also charge 
the States a fee for their use of the Clearinghouse. One commenter 
thought the current regulations are too harsh and suggested that 
drivers who fail a drug test for the first time should have the 
violation removed from their record if no further program violations 
occur within one year. The NSTA, noting increased delays in CLP and CDL 
issuance due to COVID-related backlogs, suggested that FMCSA consider 
the merits of a ``School Bus Only'' CDL as a means of ensuring 
qualified drivers. The Trucking Alliance proposed that FMCSA amend the 
definition of actual knowledge in 49 CFR 382.107, to include the 
employer's knowledge of a driver's positive hair test result. Several 
entities, including the Alliance, TCA, and the ATA, supported some form 
of employer notification of a driver's prohibited status, or a change 
in the driver's licensing status. The ATA and TCA proposed that FMCSA 
expand the 30-day ``lookback'' provision, currently applicable only to 
pre-employment queries, to annual queries as well.
    FMCSA Response: With the exception of minor conforming changes, the 
NPRM did not propose changes to FMCSA's drug and alcohol program, or to 
the operation of the Clearinghouse vis-[agrave]-vis employers. The 
comments summarized above are, therefore, outside the scope of the 
proposed rule,

[[Page 55732]]

and FMCSA does not respond to these suggestions in this final rule.

VII. International Impacts

    FMCSA's drug and alcohol program requirements apply to drivers who 
are licensed in Canada and Mexico and operate CMVs in commerce in the 
United States, and to their employers (49 CFR 382.103(a)). Accordingly, 
foreign-licensed drivers and their employers are subject to the CMV 
driving prohibitions set forth in 49 CFR 382.501(a) and (b). Canadian 
and Mexican licensing authorities are not authorized users of the 
Clearinghouse, however, as MAP-21 granted direct access only to the 
SDLAs in the 50 States and the District of Columbia.
    In the NPRM, FMCSA described how it would enforce the CMV driving 
prohibition for drivers licensed in Canada and Mexico. Currently, a 
foreign-licensed driver's operating status is available to enforcement 
officials. Enforcement personnel who electronically initiate a foreign-
licensed driver status request through cdlis.dot.gov or Query Central 
can discern that, under Sec.  382.501(a), the driver is prohibited from 
operating a CMV in the United States. The foreign-licensed driver is 
cited for violating the driving prohibition and placed out of service 
at roadside.
    FMCSA also notifies the foreign-licensed driver that he/she is 
prohibited from operating a CMV within the borders of the United States 
until he or she complies with RTD requirements, as required by Sec.  
382.503. When the driver's negative RTD test is reported to the 
Clearinghouse, FMCSA removes the prohibited status designation from the 
Clearinghouse and notifies the driver that the individual is no longer 
prohibited from operating a CMV in the United States. In addition, 
FMCSA notifies drivers if they are erroneously identified as prohibited 
from operating a CMV and removes the prohibited status from the 
Clearinghouse. The Agency notes that, because these procedures rely on 
FMCSA's existing enforcement authority, no revision to 49 CFR parts 
382, 383, or 384 is necessary.

VIII. Privacy Act Applicability

    MAP-21 requires that the ``release of information'' from the 
Clearinghouse comply with the applicable provisions of the Privacy Act 
of 1974 (49 U.S.C. 31306a(d)(1)). The Privacy Act (5 U.S.C. 552a) 
prohibits the disclosure of information maintained in a Federal system 
of records, except to the extent disclosures are specifically permitted 
by the Privacy Act, or pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record 
pertains.\25\ Section (b)(3) of the Privacy Act permits disclosure of 
information from a system of records when the disclosure is a ``routine 
use.'' As defined in 5 U.S.C. 552a(a)(7), ``the term `routine use' 
means, with respect to the disclosure of a record, the use of such 
record for a purpose which is compatible with the purpose for which it 
was collected.'' Under the Privacy Act, each routine use for a record 
maintained in the system, including the categories of users and the 
purpose of such use, must be included in a System of Records Notice 
(SORN) published in the Federal Register.
---------------------------------------------------------------------------

    \25\ See 5 U.S.C. 552a(b). The Clearinghouse final rule requires 
the individual's prior written consent for the release of certain 
Clearinghouse records to employers. See 49 CFR 382.703.
---------------------------------------------------------------------------

    The Agency published a SORN for the new system of records titled 
``Drug and Alcohol Clearinghouse (Clearinghouse),'' on October 22, 2019 
(84 FR 56521). The SORN describes the information to be maintained in 
the Clearinghouse and the circumstances under which the driver's 
consent must be obtained prior to the release of information to a 
current or prospective employer. The SORN also identifies the general 
and specific routine uses applicable to the Clearinghouse, including 
the disclosure of a driver's CMV operating status (prohibited or not 
prohibited) to an SDLA. As explained in the SORN, this routine use 
permits the SDLA to verify the driver's eligibility to obtain or hold a 
CLP or CDL, as required by MAP-21.

IX. Explanation of Changes From the NPRM

49 CFR Part 382

    Currently 49 CFR 382.725(a)(1) permits SDLAs to access DACH 
information for CDL applicants on a voluntary basis until January 6, 
2023; subparagraph (a)(2) requires the SDLA to check the DACH prior to 
issuing a CDL on or after January 6, 2023. In the NPRM, FMCSA proposed 
to revise 49 CFR 382.725 by combining subparagraphs (a)(1) and (2), 
which would account for the fact that, as of the compliance date of 
this final rule, subparagraph (a)(1), granting SDLAs' permissive access 
to the DACH, would be moot. However, FMCSA's proposed revision 
inadvertently eliminated the permissive Clearinghouse access provision 
for SDLAs, which the Agency adopted in the 2019 final rule extending 
the compliance date for the SDLA's mandatory query requirements in 49 
CFR 382.725 and 383.73.\26\ FMCSA added subparagraph (1) to 49 CFR 
382.725(a) in 2019 so that States wishing to voluntarily access the 
DACH could do so until the compliance date established by this final 
rule. Consistent with that intent, the Agency retains 49 CFR 
382.725(a)(1) and changes the compliance date to November 18, 2024. 
FMCSA also revises subparagraph (a)(1) to clarify that SDLAs may check 
the DACH record of CLP applicants. As proposed, FMCSA updates the 
compliance date for the mandatory query and requires that CLP holders 
be included within the scope of the mandatory query in 
subparagraph(a)(2). The Agency adopts the proposed revisions to 49 CFR 
382.503 and 382.717 without change.
---------------------------------------------------------------------------

    \26\ 84 FR 68052 (Dec.13, 2019).
---------------------------------------------------------------------------

49 CFR Parts 390 and 392

    FMCSA also adopts a 3-year compliance date for the requirements set 
forth in 49 CFR 390.3, 390.3T and 392.15. The Agency makes this change 
to comply with 49 CFR 350.303(b), which requires that, no later than 3 
years after the effective date of any new amendment to the FMCSRs, the 
State must amend its laws, regulations, standards, and orders to ensure 
compatibility.

49 CFR 383.73(a)(3), (b)(10), (c)(10), (d)(9), (e)(8), and (f)(4)

    FMCSA adopts the non-issuance requirements in 49 CFR 383.73 as 
proposed, but for one minor change: in Sec.  383.73(d)(9), the H 
endorsement is added to the scope of the provision, to clarify that, if 
a driver seeking to renew the H endorsement is prohibited from 
operating a CMV, the SDLA must not renew the endorsement.

49 CFR 383.73(q)

    As noted above, the Agency adopts the mandatory downgrade 
requirement, proposed as one of two regulatory alternatives, in this 
final rule. FMCSA made two changes in the downgrade procedures set 
forth in 49 CFR 383.73(q). First, the time period in which SDLAs must 
complete and record the downgrade on the CDLIS driver record is 
extended from 30 days, as proposed, to 60 days from the date the SDLA 
receives notification from FMCSA of the driver's prohibited status. The 
Agency makes this change in response to comments that 30 days did not 
provide adequate time for some SDLAs to comply with driver notice and 
other State-based due process requirements. The final rule does not 
prohibit SDLAs from completing the downgrade in less than 60 days, if 
their State processes permit them to do so. Second, the Agency adds a 
requirement, set forth in

[[Page 55733]]

Sec.  383.73(q), new subparagraph (3), ``Reinstatement after 
Clearinghouse error correction,'' that SDLAs must promptly reinstate 
the commercial driving privilege following notification that FMCSA 
incorrectly identified the driver as prohibited from operating a CMV. 
Further, any reference to the driver's prohibited status must be 
expunged from his or her State-maintained driving record. SDLAs will 
rely on their existing error correction processes to comply with these 
requirements.

49 CFR 383.5

    The term CDL downgrade is currently defined, in 49 CFR 383.5, 
subparagraph (4) to reference a situation in which ``a State removes 
the CDL privilege from the driver's license.'' FMCSA proposed to amend 
the definition of CDL downgrade in subparagraph (4) by specifying that 
the privilege is removed by changing the commercial status from 
``licensed'' to ``eligible'' on the CDLIS driver record. FMCSA also 
proposed to add a similar definition of CLP downgrade to subparagraph 
(4). The Agency proposed the revisions to clarify how SDLAs would 
accomplish the downgrade. In the final rule, FMCSA does not amend 
subparagraph (4) as proposed. Instead, the final rule amends 
subparagraph (4) only to clarify that the term CDL downgrade also 
includes the removal of the CLP privilege. The reason for this change 
from the proposal is that some commenters understood the proposed 
revisions to mean that States could remove the CLP or CDL only by 
changing the commercial status in the manner proposed. As explained 
above, that was not FMCSA's intention. At their discretion, SDLAs may 
also disqualify the CLP or CDL, in accordance with State law.

X. Section-by-Section Analysis

    FMCSA amends 49 CFR parts 382, 383, 384, 390, and 392 as follows.

A. Part 382

    Part 382 establishes controlled substances and alcohol use and 
testing requirements for CLP and CDL holders and their employers. FMCSA 
amends part 382 in the following ways.
Section 382.503
    This section currently states that drivers who violate drug or 
alcohol use or testing prohibitions cannot resume safety-sensitive 
functions, including driving a CMV, until completing RTD requirements. 
FMCSA designates the current provision as paragraph (a). New paragraph 
(b) clarifies that drivers whose license was downgraded due to a drug 
and alcohol program violation cannot resume driving a CMV until the 
State reinstates the CLP or CDL privilege.
Section 382.717
    Under the current Sec.  382.717(a)(2)(i), drivers may request that 
FMCSA remove from the Clearinghouse an employer's report of actual 
knowledge, based on the issuance of a citation for driving under the 
influence (DUI) in a CMV, if the citation did not result in the 
driver's conviction. FMCSA revises subparagraph (a)(2)(i) by deleting 
the reference to removal of the employer's actual knowledge report from 
the Clearinghouse and providing, instead, that the driver may request 
that FMCSA add documentary evidence of non-conviction of the offense of 
DUI in a CMV to the driver's Clearinghouse record.
Section 382.725
    Subparagraphs (a)(1) and (a)(2) of Section 382.725 currently state 
that, prior to January 6, 2023, SDLAs may determine whether a CDL 
applicant is qualified to operate a CMV by accessing the Clearinghouse 
as an authorized user, and that, beginning January 6, 2023, SDLAs must 
request information from the Clearinghouse for CDL applicants. Section 
382.725(b) currently provides that a driver applying for a CDL is 
deemed to have consented to the release of information from the 
Clearinghouse. FMCSA amends Sec.  382.725(a)(1) and (2) by changing the 
date from January 6, 2023, to November 18, 2024. FMCSA also revises 
paragraphs (a) and (b) to clarify that the provisions also apply to CLP 
applicants.

B. Part 383

    Part 383 sets forth the requirements for the issuance and 
administration of CLPs and CDLs. FMCSA amends part 383 in the following 
ways.
Section 383.5
    Subparagraph (4) of the definition of CDL downgrade currently 
provides that the term means that a State removes the CDL privilege 
from the driver's license. FMCSA revises subparagraph (4) to clarify 
that the term also includes the removal of the CLP privilege.
Section 383.73
    FMCSA adds subparagraph (3) to paragraph (a) and revises paragraphs 
(b)(10); (c)(10); (d)(9); (e)(8); and (f)(4) to require that if, in 
response to the required request for information, FMCSA notifies the 
SDLA that, pursuant to Sec.  382.501(a), the individual is prohibited 
from operating a CMV, the SDLA must not complete the specified CLP, 
CDL, non-domiciled CDL, or non-domiciled CLP transaction, and must 
initiate the downgrade process, as set forth in new paragraph (q). In 
addition, FMCSA makes a non-substantive conforming change to paragraphs 
(b)(10); (c)(10); (d)(9); (e)(8); and (f)(4) by deleting the phrase 
``in accordance with Sec.  382.725 of this chapter'', which is 
unnecessary. FMCSA also revises paragraph (d)(9) to clarify that the 
SDLA must not renew an H endorsement if FMCSA notifies the SDLA that 
the individual is prohibited from operating a CMV, and must initiate a 
downgrade, as applicable. FMCSA revises paragraph (f)(4) to clarify 
that the requirement also applies to non-domiciled CLPs.
    FMCSA adds new paragraph (q) to specify the actions that SDLAs are 
required to take upon receipt of information from FMCSA. SDLAs must 
complete and record a CLP or CDL downgrade on the CDLIS driver record 
within 60 days of receiving notification from FMCSA that the driver is 
prohibited from operating a CMV due to a drug and alcohol program 
violation. SDLAs will rely on established State processes to initiate 
and complete the downgrade. Under subparagraph (1), headed 
``Termination of the downgrade process when the driver is no longer 
prohibited'', if FMCSA notifies the SDLA that the driver completed the 
RTD process before the SDLA completes and records the downgrade on the 
CDLIS driver record, the SDLA, if permitted by State law, must 
terminate the downgrade process at that point. Subparagraph (2), headed 
``Reinstatement after FMCSA notification that the driver is no longer 
prohibited'', provides that drivers who complete RTD after the 
downgrade is completed and recorded by the SDLA will be eligible for 
reinstatement of the CLP or CDL privilege to their driver's license. 
Subparagraph (3), headed ``Reinstatement after Clearinghouse error 
correction'', requires SDLAs to reinstate the CDL or CLP privilege to a 
driver's license as expeditiously as possible, following notification 
by FMCSA that the driver's prohibited status, previously reported to 
the SDLA, was based on erroneous Clearinghouse information. States must 
also clear the individual's driving record of any reference to the 
driver's prohibited status.

C. Part 384

    The purpose of Part 384 is to ensure that the States comply with 49 
U.S.C. 31311(a). FMCSA amends part 384 in the following ways.

[[Page 55734]]

Section 384.225
    FMCSA revises this section by adding new subparagraph (a)(3) to 
require the State to post and maintain, as part of the CDLIS driver 
record, the removal of the CLP or CDL privilege from the driver's 
license, in accordance with Sec.  383.73(q).
Section 384.235
    FMCSA amends this section by establishing the date by which the 
State must begin complying with the requirements set forth in Sec.  
383.73 applicable to request for Clearinghouse information, 
noncompletion of the transaction, downgrade, and reinstatement.
Section 384.301
    This section sets forth the general requirements for the State to 
be in substantial compliance with 49 U.S.C. 31311(a). FMCSA adds new 
paragraph (o) to require that the State be in substantial compliance 
with the requirements in Sec. Sec.  383.73, 384.225, and 384.235 no 
later than the compliance date established by this final rule.

D. Part 390

    This part, entitled ``Federal Motor Carrier Safety Regulations; 
General'', establishes general applicability provisions, definitions, 
general requirements, and information as they pertain to persons 
subject to 49 CFR chapter 3. FMCSA amends Sec.  390.3T(f)(1) to add new 
Sec.  392.15 to the list of provisions that remain applicable to school 
bus operations as defined in Sec.  390.5T. FMCSA also amends Sec.  
390.3(f)(1) in the same way, so when the temporary section is removed 
and the changes made by the Unified Registration System final rule take 
effect,\27\ the change made by this final rule will also be in effect.
---------------------------------------------------------------------------

    \27\ 82 FR 5292 (Jan. 17, 2017).
---------------------------------------------------------------------------

E. Part 392

    This part, entitled ``Driving of Commercial Motor Vehicles'', sets 
forth requirements pertaining to the management, maintenance, operation 
or driving of CMVs. FMCSA adds new Sec.  392.15 to prohibit any driver 
subject to Sec.  382.501(a) from operating a CMV.

XI. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    FMCSA has considered the impacts of this rule under E.O. 12866 (58 
FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as 
supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving 
Regulation and Regulatory Review, and DOT's regulatory policies and 
procedures. The Office of Information and Regulatory Affairs within the 
Office of Management and Budget (OMB) has determined that this 
rulemaking is not a significant regulatory action under section 3(f) of 
E.O. 12866. Accordingly, OMB has not reviewed it under that E.O.
    As described above, this rule prohibits SDLAs from issuing, 
renewing, upgrading, or transferring the CDL, or issuing, renewing, or 
upgrading the CLP, of any driver who is prohibited from operating a CMV 
due to drug and alcohol program violations. In addition, SDLAs will be 
required to downgrade the CLP or CDL of drivers who are prohibited from 
operating a CMV due to drug and alcohol program violations. FMCSA 
believes that the rule will increase safety by enhancing the 
enforcement of the current CMV driving prohibition. These factors are 
discussed below.
Need for Regulation
    The 2016 Clearinghouse final rule included the MAP-21 requirement 
that SDLAs check the Clearinghouse prior to renewing or issuing a CDL. 
However, the rule did not address how SDLAs should use Clearinghouse 
information for drivers licensed, or seeking to become licensed, in 
their State. Therefore, under the current rule, drivers who violate the 
drug and alcohol program can continue to hold a valid CLP or CDL, even 
though they are prohibited from operating a CMV until completing RTD. 
These drivers, who are illegally operating a CMV, are thus able to 
evade detection by enforcement personnel. The Agency considers this 
result a form of market failure caused by ``inadequate or asymmetric 
information,'' as described in OMB Circular A-4.\28\ The final rule 
addresses this failure by improving the flow of information to SDLAs 
and enforcement officials from the Clearinghouse.
---------------------------------------------------------------------------

    \28\ OMB, Circular A-4: Regulatory Analysis, September 17, 2003, 
pp. 4-5. Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf, (accessed April 22, 
2021).
---------------------------------------------------------------------------

Cost Impacts
    The RIA published with the Clearinghouse final rule in 2016 (2016 
RIA) assumed that SDLAs would incur no costs to query the Clearinghouse 
using CDLIS. However, the 2016 RIA did not include SDLAs' IT 
development costs or operating and maintenance expenses (O&M) 
associated with the interface that would connect the Clearinghouse and 
CDLIS. Hence, they are accounted for in the estimate of the costs 
associated with this rule.
    The NPRM proposed two alternatives related to the States' use of 
Clearinghouse information, and two methods for electronically 
transmitting information from the Clearinghouse to the SDLAs. The 
estimated cost of the proposed rule varied based on the regulatory 
alternative and method of information transmission. The final rule 
follows the Agency's preferred alternative by requiring a license 
downgrade, but allows the SDLA to choose the most cost beneficial 
method of information transmission. This rule will result in IT costs 
for SDLAs, AAMVA, and the Federal government, and in opportunity costs 
for drivers and motor carriers.
    In the NPRM, FMCSA proposed two methods for information 
transmission: CDLIS and a web-based services option. The Agency 
estimated that the CDLIS option would be more costly. Some States 
commented they preferred to use CDLIS due to familiarity with that 
platform, while others were not sure which method would be most cost 
effective. Under the final rule, SDLAs can choose between transmitting 
information via CDLIS or a web-based services platform.
    As provided by MAP-21 and current FMCSA regulations, SDLAs, prior 
to issuing a CLP or CDL, will be required to check the CDLIS driver 
record to ensure that the driver has not been disqualified in another 
State and that other regulatory requirements have been met. This final 
rule, by electronically linking the CDLIS pointer system either 
directly to the Clearinghouse or indirectly through a web-based 
services call, will allow this record check to electronically capture 
relevant Clearinghouse information (i.e., a driver's prohibited status) 
along with other driver-specific data, such as moving violations or 
medical certification status. Thus, the Agency intends that SDLAs will 
therefore request information from the Clearinghouse by initiating a 
check of the CDLIS driver record. Under either method of transmission, 
no additional query or request by the SDLA will be required at the time 
of the licensing transaction, thereby minimizing the burden of 
performing the required check of the Clearinghouse.
    Because SDLAs already perform CDLIS driver record checks when 
conducting a commercial license transaction, FMCSA finds that SDLAs 
would not incur labor costs to ``pull'' Clearinghouse information 
through

[[Page 55735]]

CDLIS by performing a query. The Agency also assumes that AAMVA would 
not charge SDLAs additional CDLIS-related costs to receive driver-
specific violation information ``pushed'' to the SDLAs by FMCSA, 
because CDLIS already provides daily updates of licensing information 
to the SDLAs. FMCSA intends that Clearinghouse information would be an 
additional data element included in the daily transmission. Thus, the 
Agency finds that SDLAs will not incur transaction-specific CDLIS costs 
as a result of this rule.
    Using the existing CDLIS platform will result in costs to SDLAs for 
initial system development, and to make the needed upgrades and 
modifications, as well as ongoing operations and maintenance expenses. 
In the NPRM, the Agency reviewed four SDLA grant applications submitted 
in 2017 for IT system upgrades needed to interface and receive 
information from the NRCME database, and used the grant applications as 
a proxy for the IT development costs SDLAs would incur using CDLIS to 
access Clearinghouse information. FMCSA estimated that each SDLA's IT 
development costs would total approximately $200,000. In preparation 
for the final rule, FMCSA reviewed 2020 Commercial Driver's License 
Program Implementation (CDLPI) grant applications and found that four 
States requested funds focused on the Clearinghouse, with an average 
cost of $300,000. However, some of these applications deal with 
Clearinghouse issues unrelated to this final rule, and thus FMCSA 
assumes that $300,000 per SDLA would be an overestimate for costs 
attributed to using the CDLIS platform.
    SDLAs will also have the option of transmitting information from 
the Clearinghouse to the SDLAs using a web-based services call, which 
relies on cloud-based technology. The capacity for this alternative 
would reside within the DOT's Amazon Web Service (AWS) cloud. By using 
the DOT AWS cloud, FMCSA would be able to make efficient updates to the 
system on an as-needed basis. As explained below, FMCSA anticipates 
that the web-based services call IT development cost will average 
approximately $56,500 per SDLA.
    AAMVA indicated it may incur costs for aligning the Clearinghouse 
information with disqualification data that already exists in CDLIS. 
FMCSA will work with AAMVA to determine the necessity and extent of 
these costs, but for analysis purposes estimates that they would not be 
greater than $200,000 for development, with an annual operations and 
maintenance cost of $40,000. FMCSA will incur costs of approximately $1 
million for development of a web-based services application and 
approximately $200,000 for annual operations and maintenance costs in 
years 2 through 10 of the analysis.
    In order to implement a web-based services call, FMCSA will develop 
an interface between the Clearinghouse and the SDLAs. FMCSA envisions 
that the interface would connect seamlessly to the existing State 
interface so that when a State employee initiates the CDLIS driver 
record check, the State system would simultaneously query the 
Clearinghouse. FMCSA would provide the application programming 
interface (API) code, or other technical specifications, and work with 
the States to integrate the interface into their existing technology 
platforms. In developing this interface, FMCSA would leverage the 
current FMCSA web-based services calls, such as Query Central, to 
reduce development costs wherever possible.
    SDLAs using this method will incur costs for initial modification 
of their systems to interface with the Clearinghouse, and annual 
operations and maintenance expenses. FMCSA expects that SDLAs' costs to 
implement the interface specifications would vary based on the 
characteristics of their individual IT systems. The Agency's IT staff 
estimated a representative initial/upfront cost taking into account 
that some States currently use a mainframe application and others use 
an existing web interface. The initial development costs for each 
method to interface with the Clearinghouse were estimated based on the 
labor hours it would take a programmer to develop an application for 
use in a mainframe environment and in a non-mainframe environment. 
Developing a web interface in a mainframe environment is estimated to 
take 1,080 hours. Developing a web interface in a non-mainframe 
environment is estimated to take 360 hours. These hours were monetized 
in 2019 dollars using the United States Department of Labor, Bureau of 
Labor Statistics (BLS) $41.61 per hour median wage for a computer 
programmer.\29\ The hourly wage is adjusted for a 73 percent fringe 
benefit rate obtained the from the BLS June 2019 ``Employer Cost of 
Employee Compensation News Release,'' \30\ and a 15.9 percent overhead 
rate based on indirect cost rates provided by States in their 2020 
CDLPI grant applications. The resulting labor cost is $78.53 per hour. 
At that hourly rate, the cost for a programmer to develop an interface 
in a non-mainframe environment is estimated at $28,271 (360 hours x 
$78.53 per hour) and $84,812 (1,080 hours x $78.53 per hour) in a 
mainframe environment. The average of these two cost estimates results 
in an initial IT development of $56,500 per SDLA (rounded to the 
nearest hundred).
---------------------------------------------------------------------------

    \29\ This hourly median wage is for the BLS-SOC 15-1251 computer 
programmer. See https://www.bls.gov/oes/current/oes151251.htm 
(accessed November 2, 2020).
    \30\ BLS, ``Employer Cost of Employee Compensation 4th Quarter 
News Release,'' Table 4--employer Costs for Employee Compensation 
for private industry workers by occupational and industry group, 
available at https://www.bls.gov/news.release/archives/ecec_03192020.pdf (accessed Nov. 2, 2020). The fringe benefit rate 
is the ratio of hourly wage for average hourly wage for a private 
industry worker and the associated hourly benefit rate (73 percent = 
$25.85/14).
---------------------------------------------------------------------------

    Because the Agency is allowing SDLAs to choose the method that 
works best for their particular system and framework, FMCSA continues 
to estimate initial IT development costs for SDLAs to be $200,000 per 
SDLA, accounting for both CDLIS costs of likely just below $300,000 and 
web-based services costs of less than $60,000. Multiplying this cost by 
the number of SDLAs (51) results in a total of $10.2 million ($200,000 
x 51) in SDLA initial/upfront development costs. This one-time cost 
occurs in the first year of the 10-year analysis period.
    The Agency assumes that SDLAs' annual operations and maintenance 
expenses would be equal to 20 percent of the upfront costs, or $40,000 
($200,000 x 20 percent). Multiplying the operations and maintenance 
expense rate by the number of SDLAs resulted in $2.04 million of annual 
operations and maintenance expenses ($40,000 x 51 SDLAs). The Agency 
assumes that SDLAs would incur operations and maintenance expenses 
annually, beginning in the second year of the 10-year analysis period. 
Operations and maintenance expenses over the 10-year analysis period 
are estimated at $18.4 million ($2.04 million x 9 years). FMCSA 
estimates that the total undiscounted IT development and operations and 
maintenance expenses over the 10-year analysis period are $28.6 million 
($10.2 million IT development costs + $18.4 million operations and 
maintenance expenses).
    In response to comments from two States, FMCSA includes a recurring 
cost to manage in-person and phone or email inquiries related to the 
downgrade procedures. The States did not indicate how long it takes to 
handle customer service inquiries, but FMCSA estimates that an average 
of one hour per downgraded license is a conservative

[[Page 55736]]

estimate, and values this time at a loaded median hourly rate of $31.50 
for customer service representatives.\31\ This results in an annual 
cost of approximately $159,000 (5,045 downgraded licenses per year x 1 
hour x $31.50).
---------------------------------------------------------------------------

    \31\ The hourly median wage for the BLS-SOC 43-4051 Customer 
Service Representative is $16.69. FMCSA adjusts this wage rate using 
the previously identified fringe benefits rate of 73 percent and the 
overhead rate of 15.9 percent. See https://www.bls.gov/oes/current/oes151251.htm.
---------------------------------------------------------------------------

    In sum, FMCSA estimates 10-year total costs for SDLAs to be 
approximately $30.1 million undiscounted. At a 7 percent discount rate, 
the 10-year total cost is estimated at $23.1 million and the annualized 
cost is estimated at $3.3 million. FMCSA notes that States can apply 
for CDLPI grant program funding to offset the cost associated with IT 
development and operations and maintenance.
    FMCSA will incur initial IT development costs of just over $1.0 
million in 2019 dollars in the first year of the 10-year analysis 
period. FMCSA would incur annual operations and maintenance expenses of 
$203,000 ($1.02 million x 20 percent) beginning in the second year of 
the 10-year analysis period. Over the remaining 9 years of the analysis 
period, the Agency will incur $1.8 million of operations and 
maintenance expenses ($203,000 x 9 years). The sum of initial IT 
development costs and annual O&M expenses results in FMCSA incurring 
total undiscounted costs of $2.8 million over the 10-year analysis 
period ($1.0 million + $1.8 million). At a 7 percent discount rate, the 
Agency is estimated to incur $2.2 million in IT development and 
operations and maintenance expenses over the 10-year analysis period. 
The annualized cost at a 7 percent discount rate is estimated at $0.3 
million.
Driver Opportunity Cost and CLP/CDL Reinstatement Cost
    Under the final rule, a driver could incur an opportunity cost 
equal to the income forgone between the time he or she is eligible to 
resume operating a CMV (i.e., when an employer reports a negative RTD 
test result to the Clearinghouse) and when the SDLA reinstates the 
commercial privilege to the driver's license.
    The estimate of opportunity costs drivers may incur is a function 
largely of the number of drivers that SAPs refer to outpatient 
education programs versus intensive outpatient treatment (IOT) 
programs. In the 2016 RIA, the Agency assumed an education program 
would be completed in 16 hours and an IOT program would be completed in 
108 hours over 12 weeks. The final rule requires SDLAs to record a 
downgrade on the driver's CDLIS record within 60 days. If the driver 
completes the RTD process before the SDLA records a downgrade in CDLIS, 
the SDLA would be required to terminate the downgrade, consistent with 
State law. A driver referred to a 16-hour education program by a SAP 
may complete the RTD process before the SDLA records the downgrade in 
CDLIS. In this case, a driver would be qualified to operate a CMV 
without having to comply with State-established procedures to reinstate 
the CMV driving privilege and would not incur opportunity costs.
    In the 2016 RIA, the Agency assumed that 75 percent of drivers who 
violated the drug and alcohol program would be referred to a 16-hour 
education program. The remaining drivers would be referred to a 108-
hour IOT program. In July 2018, the Substance Abuse and Mental Health 
Service Administration (SAMHSA), published a report titled National 
Survey of Substance Abuse Treatment Services (N-SSATS): 2017. Data on 
Substance Abuse Treatment Facilities. SAMHSA reported that 82 percent 
of individuals in outpatient programs participated in education 
programs. The remaining 18 percent participated in IOT programs.\32\ 
FMCSA reviewed the 2018 SAMHSA survey report and found that the client 
characteristics regarding outpatient program attendance were not 
reported, and therefore the 2017 report provides the most recent 
estimate of the percentage of individuals completing education 
programs. The Clearinghouse, which has been operational since January 
2020, accurately reports driver count information that informs the 
percentage of drivers who complete RTD procedures within the 60-day 
timeframe.\33\ However, this data was collected during the coronavirus 
disease 2019 (COVID-19) pandemic, which has had significant short-term 
impacts on the U.S. economy and labor market. While the long-term 
impacts remain unclear, FMCSA does not think it prudent to estimate 
costs over a 10-year period based on information collected during the 
COVID-19 pandemic, which drastically affected employment, freight 
rates, and even mental health and substance abuse prevalence. Further, 
FMCSA did not receive comments regarding any inaccuracy of the SAMHSA 
data and therefore continues to rely on it for the purposes of this 
analysis.
---------------------------------------------------------------------------

    \32\ The report is available at https://www.samhsa.gov/data/report/national-survey-substance-abuse-treatment-services-n-ssats-2017-data-substance-abuse, Table 5-1a (accessed June 16, 2019).
    \33\ As of January 1, 2021, the Clearinghouse recorded just over 
52,000 drivers with a drug or alcohol violation, of which more than 
60% had not started the RTD process. Over 30% of drivers with a 
violation had either started or completed RTD. While this data is 
logically consistent with the assumptions in this analysis, FMCSA 
cannot determine how the COVID pandemic affected either the total 
number of violations or the RTD process and is not using 
Clearinghouse data to inform impact estimates at this time.
---------------------------------------------------------------------------

    Based on the U.S. DOT's survey data for 2018, extrapolated to the 
entire CDL population, FMCSA estimates that 62,279 drivers will test 
positive and be required to complete the RTD process annually.\34\ The 
2016 RIA estimated that 45 percent, or 28,026 of these drivers, will 
complete the RTD process.\35\ Based on SAMHSA's survey, the Agency 
estimates that 82 percent, or 22,981 of the 28,026 drivers, will 
complete the RTD process before SDLAs record the downgrade and will not 
incur opportunity costs.\36\ The remaining 5,045 drivers (28,026 
drivers x 18 percent) presumably will be referred to an IOT program and 
be required to comply with any reinstatement procedures established by 
the State that could cause a driver to incur opportunity costs.
---------------------------------------------------------------------------

    \34\ U.S. DOT Agency MIS data. Available at: https://www.transportation.gov/odapc/DOT_Agency_MIS_Data. Accessed on 
November 2, 2020.
    \35\ DOT FMCSA Commercial Driver's License Drug and Alcohol 
Clearinghouse: Final Rulemaking Regulatory Impact Analysis. December 
13, 2016. Available at: https://beta.regulations.gov/document/FMCSA-2011-0031-0183.
    \36\ FMCSA notes that, while States have 60 days to complete a 
downgrade of the CLP/CDL, they may elect to record the downgrade 
sooner, thereby reducing the time frame for drivers to complete the 
RTD process requirements prior to the downgrade. If this occurs, 
drivers referred to the 16-hour education program may be subject to 
reinstatement procedures at the SDLA. FMCSA is unable to estimate 
the likelihood or frequency of such an occurrence, and continues to 
assume all drivers referred to a 16-hour education program will 
complete the RTD process prior to the State recording the downgrade. 
The Agency believes this is a reasonable assumption, particularly 
given the increased incentive to quickly complete the RTD process 
following the notification to drivers of an impending downgrade.
---------------------------------------------------------------------------

    Depending on the State, a driver may be required to appear in 
person at the SDLA to complete the reinstatement process that could 
require the driver to incur opportunity costs for the time to travel to 
and from the SDLA. Some SDLAs allow the transaction to be completed by 
email or through the SDLA website. For purposes of this analysis, the 
Agency assumes that drivers will need to complete the transaction in 
person, which may result in an overestimation of the cost to drivers. 
The Agency assumes that it will take one day for a driver to travel to 
an SDLA and complete the reinstatement

[[Page 55737]]

process. Thus, drivers will incur opportunity cost for time spent 
traveling and out-of-pocket travel costs. The Agency's estimate of 
driver opportunity costs and reinstatement costs is based on the 
following assumptions:
    1. One day to travel to and from the SDLA and complete the 
reinstatement process.
    2. 10 hours of lost wages.
    3. 5,045 drivers subject to mandatory downgrades.
    4. A representative driver wage of $31.00 per hour to estimate 
income forgone.
    5. $0.575 per-mile cost for use of private vehicle.\37\
---------------------------------------------------------------------------

    \37\ The mileage rate is the General Services Administration 
current reimbursement rate for use of private vehicles. The mileage 
rate for private vehicle use is available at https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates (accessed Oct. 29, 
2020).
---------------------------------------------------------------------------

    6. 50 miles round-trip to the SDLA.
    Based on these assumptions, the upper bound of annual opportunity 
costs for one day spent traveling to the SDLA and completing the 
reinstatement process is estimated at $1.6 million ((10 hours x 5,045 
drivers x $31 per hour) + (5,045 drivers x 50 miles x $0.575 per 
mile)), and the 10-year total cost is estimated at $16.3 million. At a 
7 percent discount rate, the 10-year cost is estimated at $11.5 million 
and the annualized cost is estimated at $1.6 million.
    Drivers may also incur reinstatement costs attributed to SDLA 
requirements for restoring the commercial privilege, such as payment of 
a reinstatement fee, and partial or full retesting.\38\ The States have 
established a broad spectrum of procedures for reinstatement of the 
CLP/CDL privilege to the driver's license following a downgrade due to 
invalid medical certification as required by Sec.  383.73(o)(4), and 
the Agency expects that the States will adopt or modify existing 
procedures when downgrading a CLP/CDL due to a drug or alcohol 
violation. FMCSA reviewed current procedures used by the States for 
drivers whose CLP or CDL has been downgraded for failure to maintain 
their medical certification. The Agency is aware that about half of the 
States require knowledge and/or skills retesting before removing a 
downgrade. However, in these States, retesting is required only if a 
driver is not able to present a new medical certificate before the 
expiration of a prescribed grace period. None of these States has a 
retesting grace period less than six months. In the 2016 RIA, the 
Agency conservatively assumed that it would take a driver 12 weeks to 
complete a 108-hour program based on one 9-hour session per week. Thus, 
the Agency finds that drivers referred to IOT programs will complete 
the IOT program and the RTD process without having to retest to have 
the CLP or CDL privilege restored to their license. Therefore, FMCSA is 
not estimating reinstatement costs or fee payments resulting from this 
rule.
---------------------------------------------------------------------------

    \38\ A requirement to retake the knowledge and skills test would 
cause the driver to forgo income during the 14-day waiting period 
required before taking the skills test.
---------------------------------------------------------------------------

Motor Carrier Opportunity Costs
    Motor carrier opportunity costs are estimated because drivers 
subject to reinstatement would not be eligible to resume safety-
sensitive functions, such as driving, until the SDLA restores the CLP 
or CDL privilege to the driver's license. This represents a change from 
current requirements in parts 382 and 40, which permit resumption of 
safety-sensitive functions immediately following a negative RTD test 
result. Thus, motor carriers may also incur opportunity costs based on 
the profits forgone from the loss of productive driving hours between 
the time the driver completes the RTD process and State reinstatement. 
The Agency estimates that a motor carrier will lose 10 hours of 
productive driving time while a driver completes the reinstatement 
process. FMCSA bases this estimate on current processes the States 
employ to reinstate a CLP or CDL privilege following a downgrade of the 
driver's license due to invalid medical certification.
    In concert with the driver opportunity cost estimates, the Agency 
estimates that motor carriers would lose 50,446 hours of productive 
driving time each year (5,045 drivers x 10 hours) while drivers 
complete the reinstatement process. Broadly speaking, the opportunity 
cost to the motor carrier (the firm) of a given regulatory action is 
the value of the best alternative that the firm must forgo in order to 
comply with the regulatory action. In this analysis, FMCSA follows the 
methodology used in the Entry-Level Driver Training rulemakings 
published in 2016 \39\ and 2019 \40\ and values the change in time 
spent in nonproductive activity as the opportunity cost to the firm, 
which is represented by the now attainable profit, using three 
variables: The marginal cost of operating a CMV, an estimate of a 
typical average motor carrier profit margin, and the change in 
nonproductive time.
---------------------------------------------------------------------------

    \39\ 81 FR 88732 (Dec. 8, 2016).
    \40\ 84 FR 10437 (Mar. 21, 2019).
---------------------------------------------------------------------------

    The American Transportation Research Institute (ATRI) report, An 
Analysis of the Operational Costs of Trucking: 2019 Update, found that 
marginal operating costs were $71.78 per hour in 2018.\41\ These 
marginal costs include vehicle-based costs (e.g., fuel costs, insurance 
premiums, etc.), and driver based costs (i.e., wages and benefits).
---------------------------------------------------------------------------

    \41\ ATRI. An Analysis of the Operational Costs of Trucking: 
2019 Update. October 2019. Table 10, pg. 19. Available at: https://truckingresearch.org/wp-content/uploads/2019/11/ATRI-Operational-Costs-of-Trucking-2019-1.pdf (accessed April 19, 2021). Source data 
are assumed to be presented in 2018 dollar terms.
---------------------------------------------------------------------------

    Next, the Agency estimated the profit margin for motor carriers. 
Profit is a function of revenue and operating expenses, and ATA defines 
the operating ratio of a motor carrier as a measure of profitability 
based on operating expenses as a percentage of gross revenues.\42\ 
Armstrong & Associates, Inc. (2009) states that trucking companies that 
cannot maintain a minimum operating ratio of 95 percent (calculated as 
Operating Costs / Net Revenue) will not have sufficient profitability 
to continue operations in the long run.\43\ Therefore, Armstrong & 
Associates states that trucking companies need a minimum profit margin 
of 5 percent of revenue to continue operating in the future. Transport 
Topics publishes data on the ``Top 100'' for-hire carriers, ranked by 
revenue.\44\ For 2014, 39 of these Top 100 carriers also had net income 
information reported by Transport Topics. FMCSA estimates that the 39 
carriers with both revenue and net income information have an average 
profit margin of approximately 4.3 percent for 2014. For 2018, 33 of 
these Top 100 carriers had net income information reported by Transport 
Topics, with an average profit margin of approximately 6 percent for 
2018.\45\ The higher profit margin experienced in 2018 is reinforced by 
a Forbes article that found net profit margin for freight trucking 
companies ``expanded to 6 percent in 2018, compared with an annual 
average of between 2.5 percent and 4 percent each

[[Page 55738]]

year since 2012.'' \46\ In 2019, the data provided by Transport Topics 
showed a similar pattern based on the 28 companies that provided net 
income information, with an average profit margin of 5.8 percent.\47\ 
It is uncertain whether the recent surge in net profit margin will 
continue through the analysis period, so FMCSA assumes the lower profit 
margin of 5 percent for motor carriers for purposes of this analysis.
---------------------------------------------------------------------------

    \42\ ATA. American Trucking Trends 2015. Page 79.
    \43\ Armstrong & Associates, Inc. Carrier Procurement Insights. 
2009. Pages 4-5. Available at: https://www.3plogistics.com/product/carrier-procurement-insights-trucking-company-volume-cost-and-pricing-tradeoffs-2009/ (accessed Jan. 5, 2016).
    \44\ Transport Topics. 2014. Top 100 For-Hire Carriers. 
Available at: http://ttnews.com/top100/for-hire/2014 (accessed April 
19, 2021).
    \45\ Transport Topics. 2018. Top 100 For-Hire Carriers. 
Available at: https://www.ttnews.com/top100/for-hire/2018 (accessed 
April 19, 2021).
    \46\ Forbes. Trucking Companies Hauling in Higher Sales. 
Available at: https://www.forbes.com/sites/sageworks/2018/03/04/trucking-companies-hauling-in-higher-sales/#40e0012f3f27 (accessed 
April 19, 2021).
    \47\ Transport Topics. 2019. Top 100 For-Hire Carriers. 
Available at: https://www.ttnews.com/top100/for-hire/2019 (accessed 
April 19, 2021).
---------------------------------------------------------------------------

    Using the assumed profit margin of 5 percent for motor carriers, 
FMCSA estimates the revenue gained per hour for motor carriers by 
multiplying the marginal cost per hour by the profit margin. This 
calculation results in a profit per hour of $3.59.
    Based on the loss of 50,446 driving hours, the Agency estimates 
motor carrier undiscounted opportunity costs at $1.8 million over the 
10-year analysis period ($3.59 per hour x 50,446 hours x 10 years). The 
annualized cost is estimated at $181,051. At a 7 percent discount rate, 
motor carrier opportunity costs are estimated at $1.3 million over 10 
years. The annualized cost is estimated at $181,051.
Summary of the Estimated Cost of the Proposed Rule
    Table 2 compares the total 10-year and annualized costs, both 
undiscounted and at a 7 percent discount rate. FMCSA estimates the 
total 10-year costs of this final rule at $51.7 million undiscounted, 
and $38.5 million discounted at 7 percent. Expressed on an annualized 
basis, this equates to $5.2 million undiscounted, and $5.5 million in 
costs at a 7 percent discount rate.

                          Table 2--Total 10-Year and Annualized Cost of the Final Rule
----------------------------------------------------------------------------------------------------------------
                                                  Undiscounted  (2019 $ million)   Discounted at 7%  ($ million)
                                                ----------------------------------------------------------------
                 Cost category                    10-Year total                    10-Year total
                                                      cost          Annualized         cost         Annualized
----------------------------------------------------------------------------------------------------------------
SDLA Costs.....................................           $30.1            $3.0            $23.1            $3.3
AAMVA IT Cost..................................             0.6             0.1              0.4             0.1
Federal Government IT Cost.....................             2.8             0.3              2.2             0.3
Driver Opportunity Cost........................            16.4             1.6             11.5             1.6
Motor Carrier Opportunity Cost.................             1.8             0.2              1.3             0.2
                                                ----------------------------------------------------------------
    Total......................................            51.7             5.2             38.5             5.5
----------------------------------------------------------------------------------------------------------------

Benefits
    The 2016 Clearinghouse final rule required States to request 
information from the Clearinghouse when processing specified licensing 
transactions. This final rule builds on that requirement by prohibiting 
SDLAs from issuing, renewing, upgrading, or transferring the CDL, or 
issuing, renewing, or upgrading the CLP, of any driver prohibited from 
operating a CMV due to drug and alcohol program violations. In 
addition, the rule requires SDLAs to downgrade the driver licenses of 
individuals prohibited from operating a CMV due to drug and alcohol 
program violations. SDLAs will rely on applicable State law and 
procedures to accomplish the downgrade and any subsequent reinstatement 
of the CLP or CDL privilege. FMCSA believes these requirements will 
improve highway safety by increasing the detection of CLP or CDL 
holders not qualified to operate a CMV due to a drug or alcohol program 
violation. The safety benefits attributable to the increased 
distribution of information about the driver's prohibited status must 
be viewed in the context of the current regulatory scheme, as explained 
below.
    The current CMV driving prohibition has been largely self-enforcing 
in that it relies on motor carrier employers to prevent non-compliant 
drivers from operating. The Agency is aware, through motor carrier 
compliance reviews, targeted investigations, and other forms of 
retrospective compliance monitoring, that non-compliance with the 
driving prohibition occurs. Non-compliant drivers evade detection 
because, although subject to the driving prohibition, these drivers 
continue to hold a valid CLP or CDL in 47 States and the District of 
Columbia. Consequently, during a traffic stop or roadside inspection, 
traffic safety enforcement officers had no way of knowing the driver is 
not qualified to operate a CMV. The Clearinghouse changed that by 
making the information available to highway safety enforcement officers 
able to access the driver's operating status in real time at roadside 
through FMCSA's electronic enforcement tools, thereby increasing the 
detection of drivers not qualified to operate a CMV. MCSAP personnel 
can immediately place these drivers out of service.
    The mandatory downgrade will further strengthen detection of 
drivers not qualified to operate due to a drug and alcohol program 
violation. The reason is that not all traffic safety enforcement 
officers have reliable access to FMCSA's electronic enforcement tools 
that, after the Clearinghouse became operational, made the driver's 
prohibited status available at roadside. While the approximately 12,000 
officers who are trained and certified under MCSAP have consistent 
roadside access to a CMV driver's prohibited status, most of the 
approximately 500,000 non-MCSAP enforcement officers do not. 
Accordingly, if a driver subject to the prohibition holds a valid CLP 
or CDL at the time of a traffic stop, non-MCSAP personnel do not have 
access to the driver's prohibited operating status. However, all 
traffic safety officers have access to the driver's license status; a 
check of the license is conducted whenever there is a roadside 
intervention. Therefore, a driver whose license is downgraded due to a 
drug and alcohol program violation will be detected, through a routine 
license check, as not qualified to operate a CMV. The downgrade, by 
increasing the detection of individuals unlawfully driving a CMV, will 
therefore improve public safety.
    Just as a driver's prohibited status is not currently available to 
non-MCSAP officers, most SDLAs cannot currently

[[Page 55739]]

identify drivers who are subject to the prohibition. This rule will 
address this information gap by making the driver's prohibited status 
known to SDLAs at the time of a driver's requested licensing 
transaction. Under this approach, if the SDLA's mandated Clearinghouse 
query results in notice that the driver is subject to the CMV driving 
prohibition in Sec.  382.501(a), the SDLA must not complete the 
transaction, resulting in non-issuance. This requirement will 
strengthen enforcement of the CMV prohibition by ensuring that these 
drivers complete RTD requirements before obtaining, renewing, 
transferring, or upgrading a CLP or CDL, as applicable.
    The Agency anticipates that, by ``raising the stakes'' of non-
compliance, the non-issuance and mandatory downgrade requirements will 
increase compliance with the CMV driving prohibition. As a result, 
FMCSA expects that some CLP and CDL holders will be deterred from the 
misuse of drugs or alcohol, though the Agency is unable to estimate the 
extent of deterrence.
    Finally, this rule permits the Agency to use its enforcement 
resources more efficiently. Previously, FMCSA generally became aware 
that a driver was operating a CMV in violation of Sec.  382.501(a) 
during the course of a compliance review of a motor carrier, or through 
a focused investigation of a carrier or service agent. The process for 
imposing sanctions on a driver who tested positive for a controlled 
substance, but continued to operate a CMV, is a lengthy one that 
involves outreach to the driver to determine whether RTD requirements 
have been met, issuance of a Notice of Violation, the driver's possible 
request for a hearing (and potentially a subsequent request for 
administrative review), and possible issuance of a Letter of 
Disqualification (LOD) to the driver, based on Sec.  391.41(b)(12).\48\ 
FMCSA may then forward the LOD to the SDLA, requesting that the 
driver's CDL be downgraded. Under current regulations, the SDLA is not 
obligated to comply with that request. The downgrade requirement 
obviates the need for this time-consuming and labor-intensive process, 
thus enabling the Agency's enforcement resources to be deployed more 
effectively.
---------------------------------------------------------------------------

    \48\ Section 391.41(b)(12) applies only to the use of controlled 
substances; alcohol use, test refusals, and actual knowledge 
violations are not a basis for disqualification under this 
provision.
---------------------------------------------------------------------------

B. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.), 
the Office of Information and Regulatory Affairs (OIRA) designated this 
rule as not a ``major rule,'' as defined by 5 U.S.C. 804(2).\49\
---------------------------------------------------------------------------

    \49\ A ``major rule'' means any rule that the Administrator of 
OIRA at OMB finds has resulted in or is likely to result in (a) an 
annual effect on the economy of $100 million or more; (b) a major 
increase in costs or prices for consumers, individual industries, 
Federal agencies, State agencies, local government agencies, or 
geographic regions; or (c) significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with 
foreign-based enterprises in domestic and export markets (5 U.S.C. 
804(2)).
---------------------------------------------------------------------------

C. Regulatory Flexibility Act (Small Entities)

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601, et 
seq.), as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal 
agencies to consider the impact of their regulatory proposals on small 
entities, analyze effective alternatives that minimize small entity 
impacts, and make their analyses available for public comment. 
Accordingly, DOT policy requires an analysis of the impact of all 
regulations on small entities and mandates that agencies strive to 
lessen any adverse effects on these entities. Consistent with SBREFA 
and DOT policy, FMCSA conducted an initial regulatory flexibility 
analysis (IRFA), published the analysis with the NPRM, and requested 
comments. FMCSA subsequently reviewed the available information on the 
number affected small entities and the impact of the rule on those 
small entities and presents the analysis and certification below.
Affected Small Entities
    The term small entities means small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000. This rule will impact States, AAMVA, drivers, 
motor carriers, and FMCSA. Under the standards of the RFA, as amended, 
States are not small entities because they do not meet the definition 
of a small entity in section 601 of the RFA. Specifically, States are 
not small governmental jurisdictions under section 601(5) of the RFA, 
both because State government is not among the various levels of 
government listed in section 601(5), and because, even if this were the 
case, no State, including the District of Columbia, has a population of 
less than 50,000, which is the criterion to be a small governmental 
jurisdiction under section 601(5) of the RFA.
    CLP and CDL holders are not considered small entities because they 
do not meet the definition of a small entity in Section 601 of the RFA. 
Specifically, these drivers are considered neither a small business 
under Section 601(3) of the RFA nor a small organization under Section 
601(4).
    Under the RFA, as amended, motor carriers may be considered small 
entities based on the SBA-defined size standards used to classify 
entities as small. SBA establishes separate standards for each 
industry, as defined by the North American Industry Classification 
System (NAICS).\50\ This rule could affect motor carriers in many 
different industry sectors in addition to the Transportation and 
Warehousing sector (NAICS sectors 48 and 49); for example, the 
Construction sector (NAICS sector 23), the Manufacturing sector (NAICS 
sectors 31, 32, and 33), and the Retail Trade sector (NAICS sectors 44 
and 45). Industry groups within these sectors have size standards for 
qualifying as small based on the number of employees (e.g., 500 
employees), or on the amount of annual revenue (e.g., $27.5 million in 
revenue). Not all entities within these industry sectors will be 
impacted by this rule, and therefore FMCSA cannot determine the number 
of small entities based on the SBA size standards. However, it is 
plausible to estimate that if each affected driver worked for a 
distinct motor carrier, a maximum of 5,045 motor carriers would be 
impacted by this rule annually. The 2020 Pocket Guide to Large Truck 
and Bus Statistics estimates that there were approximately 603,000 
interstate motor carriers and intrastate hazardous materials motor 
carriers in 2019.\51\ Therefore, this rule could impact a maximum of 
0.84 percent of interstate motor carriers and intrastate hazardous 
materials motor carriers. FMCSA does not consider 0.84 percent to be a 
substantial number of small entities.
---------------------------------------------------------------------------

    \50\ Executive Office of the President, OMB. ``North American 
Industry Classification System.'' 2017. Available at: https://www.census.gov/eos/www/naics/2017NAICS/2017_NAICS_Manual.pdf 
(Accessed July 24, 2020).
    \51\ U.S. Department of Transportation, Federal Motor Carrier 
Safety Administration. ``2020 Pocket Guide to Large Truck and Bus 
Statistics'' October 2020. Available at: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-10/FMCSA%20Pocket%20Guide%202020-v8-FINAL-10-29-2020.pdf (accessed on October 30, 2020).
---------------------------------------------------------------------------

Impact
    Motor carriers may incur opportunity costs as a result of this rule 
if a driver employed by a given motor carrier is

[[Page 55740]]

subject to reinstatement and is ineligible to resume safety-sensitive 
functions, such as driving, until the SDLA restores the CLP or CDL 
privilege to the driver's license. In order to determine if this impact 
would be significant, FMCSA considers the impact as a percentage of 
annual revenue and estimates the impact to be significant if it 
surpasses one percent of revenue. For each affected driver, the motor 
carrier will incur an opportunity cost of $36 ($3.59 x 10 hours). The 
motor carrier would need to have annual revenue below $3,589 ($36 / 
0.01) in order for this impact to reach the threshold of significance. 
It is not possible to determine the maximum number of drivers that 
would be affected at a given motor carrier in any one year. For 
illustrative purposes, FMCSA depicts the impact if a motor carrier 
employed 15 affected drivers. The annual opportunity cost would be $538 
($3.59 x 10 hours x 15 drivers), and the motor carrier would need to 
have annual revenues of $53,835 for the impact to be considered 
significant. FMCSA considers it unlikely that a motor carrier would be 
able to operate with such low revenues in light of the sizeable 
expenses to own and maintain CMVs, and support employees. The impact of 
this rule increases linearly with the number of affected drivers (i.e., 
for each affected driver, the impact increases by $36 per year), and as 
such, FMCSA does not anticipate that this rule will result in a 
significant impact on small motor carriers regardless of the number of 
affected drivers per motor carrier.
    Therefore, I hereby certify that this rule will not have a 
significant impact on a substantial number of small entities.

D. Assistance for Small Entities

    In accordance with section 213(a) of SBREFA, FMCSA wants to assist 
small entities in understanding this final rule so they can better 
evaluate its effects on themselves and participate in the rulemaking 
initiative. If the final rule will affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please consult the 
person listed under FOR FURTHER INFORMATION CONTACT.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman (Office of the National 
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness 
Boards. The Ombudsman evaluates these actions annually and rates each 
agency's responsiveness to small business. If you wish to comment on 
actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). 
DOT has a policy regarding the rights of small entities to regulatory 
enforcement fairness and an explicit policy against retaliation for 
exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector of $168 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2019 levels) or more in any one year. Though this final rule would not 
result in such an expenditure, the Agency does discuss the effects of 
this rule elsewhere in this preamble.

F. Paperwork Reduction Act (Collection of Information)

    This final rule contains no new information collection requirements 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The 
information collection requirements established in the 2016 final rule 
were approved under OMB Control Number 2126-0057. Notwithstanding any 
other provision of law, no person is required to respond to a 
collection of information unless that collection displays a valid OMB 
control number.

G. E.O. 13132 (Federalism)

    A rule has implications for federalism if, pursuant to Section 1(a) 
of E.O. 13132, it has ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' FMCSA analyzed this final rule under that Order and 
determined that it has implications for federalism. A summary of the 
impact of federalism in this rule follows.
    MAP-21 (49 U.S.C. 31306a(l)(1) and (2)) expressly preempts State 
laws and regulations pertaining to CDL holders who have violated drug 
and alcohol program requirements that are inconsistent with Section 
31306a or Federal regulations implementing Section 31306a. Section 
31306a(l)(2) specifies that State-based requirements pertaining to the 
reporting of violations of FMCSA's drug and alcohol use and testing 
program are included within the scope of the preemption set forth in 
subparagraph (1). MAP-21 excepts from preemption State laws and 
regulations relating to an action taken on the CDL of a driver who 
violates FMCSA's drug and alcohol program (49 U.S.C. 31306a(l)(3)). The 
impact of these statutory provisions on the States is discussed in 
Section V. as noted below.
    In addition, this final rule establishes minimum requirements for 
the issuance of CLPs and CDLs by the States, consistent with the 
Agency's authority under 49 U.S.C. 31308 and 31305(a). Though the 
Agency's CDL regulations in 49 CFR parts 383 and 384 impact the States, 
they do not directly preempt any State law or regulation. In order to 
avoid having amounts withheld from their Highway Trust Fund 
apportionment, States participating in the CDL program must 
substantially comply with the requirements of 49 U.S.C. 31311(a), as 
defined in 49 CFR 384.301, and must annually certify substantial 
compliance as set forth in 49 CFR 384.305. States determined by FMCSA 
to be in substantial non-compliance are subject to withholding of a 
portion of the State's Highway Trust Fund apportionment in accordance 
with 49 U.S.C. 31314 and 49 CFR 384.401.
    In accordance with section 6(c)(2) of E.O. 13132, the Agency's 
federalism summary impact statement, set forth below, describes FMCSA's 
prior consultation with State officials, summarizes their concerns and 
the Agency's position supporting the need to issue the final rule, and 
addresses the extent to which the concerns of State officials have been 
met.
Federalism Summary Impact Statement
    In accordance with sections 4(e) and 6(c)(1) of E.O. 13132, FMCSA 
consulted with the National Governors Association, the National 
Conference of State Legislatures, and AAMVA early in the process of 
developing this rule to gain insight into the federalism implications 
of regulations implementing the MAP-21 requirements. The States' 
representatives requested that the rule delineate the States' role and 
responsibilities regarding the Clearinghouse, as well as the potential 
cost implications for the States, as clearly as possible and in a 
manner consistent with congressional intent. They also requested that 
the preemptive effect of MAP-21 on existing State laws requiring the 
reporting of FMCSA's drug and alcohol program violation to the

[[Page 55741]]

SDLA be specifically discussed, and that FMCSA allow States the time 
they need to enact laws or regulations implementing Federal regulatory 
requirements related to the Clearinghouse. AAMVA recommended that the 
Agency disqualify drivers who commit drug or alcohol violations, which 
would provide SDLAs a clear basis on which to take action on the 
commercial license. Additionally, prior to issuance of the NPRM, the 
Agency consulted directly with the SDLAs during FMCSA's CDL Roundtable, 
a bimonthly forum convened to discuss regulatory developments. 
Following publication of the NPRM, FMCSA presented an overview of the 
proposal to SDLAs participating in AAMVA's CDLIS Working Group and 
encouraged the States to submit comments to the rulemaking docket.
    Drivers who violate FMCSA's drug and alcohol program and continue 
to operate a CMV despite the existing prohibition pose a significant 
risk to public safety. The Agency believes the final rule is necessary 
in order to mitigate that risk. By requiring States receiving MCSAP 
grant funds to adopt the CMV driving prohibition, and requiring that 
States, to avoid having Federal highway funds withheld under 49 U.S.C. 
31314, deny certain commercial licensing transactions and remove the 
commercial driving privileges of drivers prohibited from operating a 
CMV due to drug and alcohol program violations, the final rule will 
improve safety by keeping prohibited drivers off our Nation's highways.
    The final rule addresses the questions and concerns of the States, 
as noted above, in Section II., subsections A. (Purpose and Summary of 
the Regulatory Action), B. (Summary of Major Provisions), and C. (Costs 
and Benefits); Section IV. (Legal Basis for the Rulemaking); Section 
V., subsections A. (Purpose and Intent of State-Related Clearinghouse 
Requirements), B. (AAMVA's Petition for Rulemaking), and C. (Impact of 
MAP-21 on State Laws); Section VI., subsection B. (Comments and 
Responses); Section XI., subsection A. (E.O. 12866 (Regulatory Planning 
and Review), E.O. 13563 (Improving Regulation and Regulatory Review), 
and DOT Regulatory Policies and Procedures); and in relevant portions 
of the regulatory text.\52\
---------------------------------------------------------------------------

    \52\ For more detailed information regarding questions and 
concerns raised about the extent and nature of the States' role in 
the Clearinghouse, and the preemptive effect of MAP-21 on State-
based reporting requirements, see the NPRM (85 FR 23670), located in 
docket FMCSA-2017-0330 accessible at www.regulations.gov.
---------------------------------------------------------------------------

H. Privacy

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, note following 5 U.S.C. 552a), requires the 
Agency to conduct a Privacy Impact Assessment of a regulation that will 
affect the privacy of individuals. The assessment considers impacts of 
the rule on the privacy of information in an identifiable form and 
related matters. The FMCSA Privacy Officer has evaluated the risks and 
effects the rulemaking might have on collecting, storing, and sharing 
personally identifiable information and has evaluated protections and 
alternative information handling processes in developing the rule to 
mitigate potential privacy risks. FMCSA preliminarily determined that 
this rule would not require the collection of individual personally 
identifiable information beyond that which is already required by the 
Clearinghouse final rule.
    In addition, the Agency submitted a Privacy Threshold Assessment 
analyzing the rulemaking and the specific process for collection of 
personal information to the DOT, Office of the Secretary's Privacy 
Office. The DOT Privacy Office has determined that this rulemaking does 
not create privacy risk.
    The E-Government Act of 2002, Public Law 107-347, sec. 208, 116 
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct 
a Privacy Impact Assessment for new or substantially changed technology 
that collects, maintains, or disseminates information in an 
identifiable form. No new or substantially changed technology would 
collect, maintain, or disseminate information because of this final 
rule.

I. E.O. 13175 (Indian Tribal Governments)

    This rule does not have Tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

J. National Environmental Policy Act of 1969

    FMCSA analyzed this rule pursuant to the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action 
is categorically excluded from further analysis and documentation in an 
environmental assessment or environmental impact statement under FMCSA 
Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph 
(6)(t)(2). The categorical exclusion (CE) in paragraph (6)(t)(2) covers 
regulations ensuring States comply with the Commercial Motor Vehicle 
Act of 1986, by having the appropriate information technology systems 
concerning the qualification and licensing of persons who apply for and 
persons who are issued a CDL. The requirements in this rule are covered 
by this CE, and this action does not have the potential to 
significantly affect the quality of the environment.

List of Subjects

49 CFR Part 382

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Drug testing, Highway safety, Motor carriers, Penalties, Safety, 
Transportation.

49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers.

49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 392

    Alcohol abuse, Drug abuse, Highway safety, Motor carriers.

    For the reasons discussed in this preamble, FMCSA amends 49 CFR 
parts 382, 383, 384, 390, and 392 as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

0
1. The authority citation for part 382 is revised to read as follows:

    Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec. 
32934 of Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.


0
2. Amend Sec.  382.503 by:
0
a. Revising the section heading;
0
b. Designating the text as paragraph (a); and
0
c. Adding paragraph (b).
    The revision and addition read as follows:

[[Page 55742]]

Sec.  382.503  Required evaluation and testing, reinstatement of 
commercial driving privilege.

* * * * *
    (b) No driver whose commercial driving privilege has been removed 
from the driver's license, pursuant to Sec.  382.501(a), shall drive a 
commercial motor vehicle until the State Driver Licensing Agency 
reinstates the CLP or CDL privilege to the driver's license.

0
3. Amend Sec.  382.717 by revising paragraph (a)(2)(i) to read as 
follows:


Sec.  382.717  Procedures for correcting information in the database.

    (a) * * *
    (2) * * *
    (i) Petitioners may request that FMCSA add documentary evidence of 
a non-conviction to an employer's report of actual knowledge that the 
driver received a traffic citation for driving a commercial motor 
vehicle while under the influence of alcohol or controlled substances 
if the citation did not result in a conviction. For the purposes of 
this section, conviction has the same meaning as used in 49 CFR part 
383.
* * * * *

0
4. Amend Sec.  382.725 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  382.725  Access by State licensing authorities.

    (a)(1) Before November 18, 2024, in order to determine whether a 
driver is qualified to operate a commercial motor vehicle, the chief 
commercial driver's licensing official of a State may obtain the 
driver's record from the Clearinghouse if the driver has applied for a 
commercial driver's license or commercial learner's permit from that 
State.
    (2) On or after November 18, 2024, in order to determine whether a 
driver is qualified to operate a commercial motor vehicle, the chief 
commercial driver's licensing official of a State must obtain the 
driver's record from the Clearinghouse if the driver has applied for a 
commercial driver's license or commercial learner's permit from that 
State.
    (b) By applying for a commercial driver's license or a commercial 
learner's permit, a driver is deemed to have consented to the release 
of information from the Clearinghouse in accordance with this section.
* * * * *

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES

0
5. The authority citation for part 383 is revised to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs. 
214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 
1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of Pub. L. 
109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141, 126 
Stat. 405, 830; and 49 CFR 1.87.


0
6. Amend Sec.  383.5 by revising paragraph (4) of the definition of 
``CDL downgrade'' to read as follows:


Sec.  383.5  Definitions.

* * * * *
    CDL downgrade * * *
    (4) A State removes the CLP or CDL privilege from the driver's 
license.
* * * * *

0
7. Amend Sec.  383.73 by:
0
a. Adding paragraph (a)(3);
0
b. Revising paragraphs (b)(10), (c)(10), (d)(9), (e)(8), and (f)(4); 
and
0
c. Adding paragraph (q).
    The additions and revisions read as follows:


Sec.  383.73  State procedures.

    (a) * * *
    (3) Beginning November 18, 2024, the State must request information 
from the Drug and Alcohol Clearinghouse, and if, in response to the 
request, the State receives notification that pursuant to Sec.  
382.501(a) of this chapter the applicant is prohibited from operating a 
commercial motor vehicle, the State must not issue, renew, or upgrade 
the CLP. If the applicant currently holds a CLP issued by the State, 
the State must also comply with the procedures set forth in paragraph 
(q) of this section.
    (b) * * *
    (10) Beginning November 18, 2024, the State must request 
information from the Drug and Alcohol Clearinghouse. If, in response to 
that request, the State receives notification that pursuant to Sec.  
382.501(a) of this chapter the applicant is prohibited from operating a 
commercial motor vehicle, the State must not issue the CDL.
* * * * *
    (c) * * *
    (10) Beginning November 18, 2024, the State must request 
information from the Drug and Alcohol Clearinghouse. If, in response to 
that request, the State receives notification that pursuant to Sec.  
382.501(a) of this chapter the applicant is prohibited from operating a 
commercial motor vehicle, the State must not transfer the CDL.
    (d) * * *
    (9) Beginning November 18, 2024, the State must request information 
from the Drug and Alcohol Clearinghouse. If, in response to that 
request, the State receives notification that pursuant to Sec.  
382.501(a) of this chapter the applicant is prohibited from operating a 
commercial motor vehicle, the State must not renew the CDL or H 
endorsement and must comply with the procedures set forth in paragraph 
(q) of this section.
    (e) * * *
    (8) Beginning November 18, 2024, the State must request information 
from the Drug and Alcohol Clearinghouse. If, in response to that 
request, the State receives notification that pursuant to Sec.  
382.501(a) of this chapter the applicant is prohibited from operating a 
commercial motor vehicle, the State must not issue an upgrade of the 
CDL and must comply with the procedures set forth in paragraph (q) of 
this section.
* * * * *
    (f) * * *
    (4) Beginning November 18, 2024, the State must request information 
from the Drug and Alcohol Clearinghouse. If, in response to that 
request, the State receives notification that pursuant to Sec.  
382.501(a) of this chapter the applicant is prohibited from operating a 
commercial motor vehicle, the State must not issue, renew, transfer or 
upgrade a non-domiciled CLP or CDL and must comply with the procedures 
set forth in paragraph (q) of this section, as applicable.
* * * * *
    (q) Drug and Alcohol Clearinghouse. Beginning November 18, 2024, 
the State must, upon receiving notification that pursuant to Sec.  
382.501(a) of this chapter, the CLP or CDL holder is prohibited from 
operating a commercial motor vehicle, initiate established State 
procedures for downgrading the CLP or CDL. The downgrade must be 
completed and recorded on the CDLIS driver record within 60 days of the 
State's receipt of such notification.
    (1) Termination of downgrade process when the driver is no longer 
prohibited. If, before the State completes and records the downgrade on 
the CDLIS driver record, the State receives notification that pursuant 
to Sec.  382.503(a) of this chapter the CLP or CDL holder is no longer 
prohibited from operating a commercial motor vehicle, the State must, 
if permitted by State law, terminate the downgrade process without 
removing the CLP or CDL privilege from the driver's license.
    (2) Reinstatement after FMCSA notification that the driver is no 
longer prohibited. If, after the State completes and records the 
downgrade on the CDLIS driver record, FMCSA notifies the State that 
pursuant to Sec.  382.503(a) of this chapter a driver is no longer 
prohibited from operating a commercial motor vehicle, the State must 
make the driver eligible for reinstatement of the

[[Page 55743]]

CLP or CDL privilege to the driver's license, if permitted by State 
law.
    (3) Reinstatement after Clearinghouse error correction. If, after 
the State completes and records the downgrade on the CDLIS driver 
record, FMCSA notifies the State that the driver was erroneously 
identified as prohibited from operating a commercial motor vehicle, the 
State shall:
    (i) Reinstate the CLP or CDL privilege to the driver's license as 
expeditiously as possible; and
    (ii) Expunge from the CDLIS driver record and, if applicable, the 
motor vehicle record, as defined in Sec.  390.5T of this chapter, any 
reference related to the driver's erroneous prohibited status.

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

0
8. The authority citation for part 384 is revised to read as follows:

    Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs. 103 
and 215 of Pub. L. 106-159, 113 Stat. 1748, 1753, 1767; sec. 32934 
of Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524 of Pub. L. 114-94, 
129 Stat. 1312, 1560; and 49 CFR 1.87.


0
9. Amend Sec.  384.225 by adding paragraph (a)(3) to read as follows:


Sec.  384.225  CDLIS driver recordkeeping.

    (a) * * *
    (3) The removal of the CLP or CDL privilege from the driver's 
license in accordance with Sec.  383.73(q) of this chapter.
* * * * *

0
10. Revise Sec.  384.235 to read as follows:


Sec.  384.235  Commercial driver's license Drug and Alcohol 
Clearinghouse.

    Beginning November 18, 2024, the State must:
    (a) Request information from the Drug and Alcohol Clearinghouse in 
accordance with Sec.  383.73 of this chapter and comply with the 
applicable provisions therein; and
    (b)(1) Comply with Sec.  383.73(q) of this chapter upon receiving 
notification from FMCSA that, pursuant to Sec.  382.501(a) of this 
chapter, the driver is prohibited from operating a commercial motor 
vehicle; and
    (2) Comply with Sec.  383.73(q) of this chapter upon receiving 
notification from FMCSA that, pursuant to Sec.  382.503(a) of this 
chapter, the driver is no longer prohibited from operating a commercial 
motor vehicle; or that FMCSA erroneously identified the driver as 
prohibited from operating a commercial motor vehicle.

0
11. Amend Sec.  384.301 by adding paragraph (o) to read as follows:


Sec.  384.301  Substantial compliance--general requirements.

* * * * *
    (o) A State must come into substantial compliance with the 
requirements of subpart B of this part and part 383 of this chapter in 
effect as of November 8, 2021, as soon as practicable, but, unless 
otherwise specifically provided in this part, not later than November 
18, 2024.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
12. The authority citation for part 390 continues to read as follows:

    Authority: 49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 
31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108 
Stat. 1673, 1677; secs. 212 and 217, Pub. L. 106-159, 113 Stat. 
1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and 
transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 
109-59, 119 Stat. 1144, 1726, 1743; sec. 4136, Pub. L. 109-59, 119 
Stat. 1144, 1745; secs. 32101(d) and 32934, Pub. L. 112-141, 126 
Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; secs. 
5403, 5518, and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1558, 
1560; sec. 2, Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.


0
13. Amend Sec.  390.3 as follows:
0
a. Lift the suspension of the section;
0
b. Revise paragraph (f)(1); and
0
c. Suspend the section indefinitely.


Sec.  390.3  General applicability.

* * * * *
    (f) * * *
    (1) All school bus operations as defined in Sec.  390.5, except for 
Sec. Sec.  391.15(e) and (f), 392.15, 392.80, and 392.82 of this 
chapter;
* * * * *

0
14. Amend Sec.  390.3T by revising paragraph (f)(1) to read as follows:


Sec.  390.3T  General applicability.

* * * * *
    (f) * * *
    (1) All school bus operations as defined in Sec.  390.5T, except 
for Sec. Sec.  391.15(e) and (f), 392.15, 392.80, and 392.82 of this 
chapter;
* * * * *

PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES

0
15. The authority citation for part 392 is revised to read as follows:

    Authority: 49 U.S.C. 504, 13902, 31136, 31151, 31502; Section 
112 of Pub. L. 103-311, 108 Stat. 1673, 1676 (1994), as amended by 
sec. 32509 of Pub. L. 112-141, 126 Stat. 405-805 (2012); and 49 CFR 
1.87.

0
16. Add Sec.  392.15 to read as follows:


Sec.  392.15  Prohibited driving status.

    No driver, who holds a commercial learner's permit or a commercial 
driver's license, shall operate a commercial motor vehicle if 
prohibited by Sec.  382.501(a) of this subchapter.

    Issued under authority delegated in 49 CFR 1.87.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-21928 Filed 10-6-21; 8:45 am]
BILLING CODE 4910-EX-P


