[Federal Register Volume 85, Number 82 (Tuesday, April 28, 2020)]
[Proposed Rules]
[Pages 23670-23698]
[FR Doc No: 2020-08230]

Vol. 85

Tuesday,

No. 82

April 28, 2020

Part III

Department of Transportation

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Federal Motor Carrier Safety Administration

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49 CFR Parts 382, 383, 384, et al.

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

Federal Register / Vol. 85 , No. 82 / Tuesday, April 28, 2020 /
Proposed Rules

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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), DOT.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: FMCSA proposes to prohibit State Driver's Licensing Agencies
(SDLAs) from issuing, renewing, upgrading, or transferring a commercial
driver's license (CDL), or commercial learner's permit (CLP), for
individuals prohibited under current regulations from driving a
commercial motor vehicle (CMV) due to controlled substance (drug) and
alcohol program violations. The CMV driving ban is intended to keep
these drivers off the road until they comply with return-to-duty (RTD)
requirements. FMCSA also seeks comment on alternate proposals
establishing additional ways that SDLAs would use information, obtained
through the Drug and Alcohol Clearinghouse (Clearinghouse), to increase
compliance with the CMV driving prohibition. Further, the Agency
proposes to revise how reports of actual knowledge violations, based on
a citation for Driving Under the Influence (DUI) in a CMV, would be
maintained in the Clearinghouse. These proposed changes would improve
highway safety by increasing compliance with existing drug and alcohol
program requirements.

DATES: Comments on this document must be received on or before June 29,
2020.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2017-0330 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Mail: Docket Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments, including collection of information comments for the Office
of Information and Regulatory Affairs, OMB.

FOR FURTHER INFORMATION CONTACT: Juan Moya, Compliance Division,
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, by email at<EMAIL_ADDRESS>or
by telephone at<PHONE_NUMBER>. If you have questions on viewing or
submitting material to the docket, contact Docket Services, telephone
(202) 366-9826.

SUPPLEMENTARY INFORMATION:
    This notice of proposed rulemaking (NPRM) is organized as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Waiver of Advance Notice of Proposed Rulemaking
II. Executive Summary
    A. Purpose and Summary of the Proposal
    B. Summary of Major Provisions
    C. Costs and Benefits
III. Legal Basis for the Rulemaking
IV. Background
    A. MAP-21 Mandates
    B. AAMVA's Petition
V. Discussion of Proposed Rulemaking
    A. The SDLAs' Role in the Clearinghouse
    B. Impact of the NPRM on SDLAs
    C. Compliance Date
    D. Impact of MAP-21 and the NPRM on State Laws
    E. Impact on CLP/CDL Holders
    F. Roadside Enforcement of the CMV Driving Prohibition
    G. Foreign-Licensed Drivers
    H. Privacy Act Applicability
    I. Fair Credit Reporting Act (FCRA) Applicability
    J. Major Issues on Which the Agency Seeks Comment
VI. International Impacts
VII. Section-by-Section Analysis
VIII. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulations
    B. E.O. 13771 Reducing Regulation and Controlling Costs
    C. Congressional Review Act
    D. Regulatory Flexibility Act (Small Entities)
    E. Assistance for Small Entities
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act
    H. E.O. 13132 (Federalism)
    I. Privacy
    J. E.O. 13783 (Promoting Energy Independence and Economic
Growth)
    K. E.O. 13175 (Indian Tribal Governments)
    L. National Technology Transfer and Advancement Act (Technical
Standards)
    M. Environment (National Environmental Policy Act)

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2017-0330), indicate the specific section of
this document to which each comment applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission. The Agency specifically invites comment on
the 13 issues identified below in section V.J, ``Major Issues on Which
the Agency Seeks Comment.''
    To submit your comment online, go to http://www.regulations.gov,
enter the docket number, FMCSA-2017-0330, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
    Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is
exempt from public disclosure. If your comments responsive to this NPRM
contain

commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this NPRM, it is important that you clearly designate the
submitted comments as CBI. Please mark each page of your submission
that constitutes CBI as ``PROPIN'' to indicate it contains proprietary
information. FMCSA will treat such marked submissions as confidential
under the Freedom of Information Act, and they will not be placed in
the public docket for this rulemaking. Submissions containing CBI
should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis
Division, Federal Motor Carrier Safety Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590. Any comments FMCSA receives that are
not specifically designated as CBI will be placed in the public docket
for this rulemaking.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2017-0330, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the Internet, you may view the docket online by visiting
Docket Operations in Room W12-140 on the ground floor of the DOT West
Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9
a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

D. Waiver of Advance Notice of Proposed Rulemaking

    Under the Fixing America's Surface Transportation Act (FAST Act)
(Pub. L. 114-94), FMCSA is required to publish an advance notice of
proposed rulemaking (ANPRM) or conduct a negotiated rulemaking ``if a
proposed rule is likely to lead to the promulgation of a major rule''
(49 U.S.C. 31136(g)(1)). As this proposed rule is not likely to result
in the promulgation of a major rule, the Agency is not required to
issue an ANPRM or to proceed with a negotiated rulemaking.

II. Executive Summary

A. Purpose and Summary of the Proposal

    The NPRM would assist enforcement and improve compliance with
existing regulations prohibiting CMV drivers who violate FMCSA's drug
and alcohol from operating a CMV or performing other safety-sensitive
functions until completing RTD requirements set forth in part 40,
subpart O. In effect, the CMV driving prohibition has been largely
self-enforcing; FMCSA relies primarily on drivers themselves, and their
employers, to comply (49 CFR 382.501(a) and (b)).\1\ The reason is
that, before the Clearinghouse was established, the Agency did not have
real time access to drug and alcohol program violations of CDL holders.
The Clearinghouse final rule addressed that information gap so that,
based on violations reported to the Clearinghouse, FMCSA can now
provide certain State enforcement personnel real-time notice of the
driver's prohibited driving status. However, the information gap still
exists with regard to the SDLAs. This NPRM would establish how, and
when, SDLAs would access and use driver-specific information from the
Clearinghouse to keep CMV drivers who violate drug and alcohol use
testing rules off the road until they complete RTD requirements.
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    \1\ 49 CFR 382.501(a) prohibits a driver from performing safety-
sensitive functions, including operating a CMV, if the driver has
engaged in drug or alcohol-related conduct prohibited by part 382,
subpart B, or violated the drug and alcohol rules of another DOT
agency. Section 382.501(b) states that no employer may permit a
driver to perform safety-sensitive functions, including driving a
CMV, if the employer has determined that the driver violated this
section. Section 382.503 prohibits any driver who violates drug and
alcohol program rules from performing safety-sensitive functions
until completing the RTD requirements of part 40, subpart O that
enable the individual to resume operating a CMV and other safety-
sensitive functions. Under Sec.  382.503, no employer is permitted
to allow the driver to resume safety-sensitive functions until the
driver has completed RTD.
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    In the final rule titled ``Commercial Driver's License Drug and
Alcohol Clearinghouse'' (Clearinghouse) (81 FR 87686 (Dec. 5, 2016)),
FMCSA implemented the MAP-21 requirement to establish the Clearinghouse
as a repository for drivers' drug and alcohol program violations. The
final rule primarily addressed how motor carrier employers and their
service agents will interact with the Clearinghouse by accessing and
adding drug and alcohol testing information to a driver's record. While
the final rule did incorporate the statutory requirement that SDLAs
check the Clearinghouse prior to renewing or issuing a CDL, the rule
did not otherwise address the SDLAs' use of Clearinghouse information
for drivers licensed, or seeking to become licensed, in their State.
This proposal responds to operational questions and legal issues
identified by SDLAs, individually and through the American Association
of Motor Vehicle Administrators \2\ (AAMVA), following publication of
the final rule.
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    \2\ 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.
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B. Summary of Major Provisions

Non-Issuance
    As noted above, the Clearinghouse regulations require that SDLAs
check a driver's status by querying the Clearinghouse prior to issuing,
renewing, upgrading or transferring a CDL.\3\ When an SDLA's required
query to the Clearinghouse indicates the driver is prohibited from
operating a CMV, the NPRM would require the SDLA to deny the licensing
transaction, resulting in non-issuance. A driver whose licensing
transaction is denied would need to re-apply after completing RTD
requirements. The manner in which SDLAs would electronically request
(``pull'') and receive information from the Clearinghouse in connection
with the required queries (e.g., via CDLIS or other electronic means)
is discussed below in section V.A., ``Impact on SDLAs.''
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    \3\ See 49 CFR 383.73(b)(10; (c)(10); (d)(9); (e)(8); and
(f)(4). MAP-21, as codified in 49 U.S.C. 31311(a)(24), explicitly
requires that States query the Clearinghouse.
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    In addition to non-issuance, FMCSA proposes alternative ways in
which SDLAs would use Clearinghouse information to further aid in the
enforcement of the CMV driving prohibition.
Preferred Alternative--Mandatory Downgrade
    This alternative would require that SDLAs remove the CLP or CDL
privilege of any driver subject to the CMV driving prohibition
(mandatory downgrade), after receiving a ``push'' notification from the
Clearinghouse that the driver is prohibited from operating a CMV.
Currently, most States are not aware when a CDL holder licensed in
their State is prohibited from driving a CMV due to an alcohol or drug
testing violation. Consequently, there is no Federal requirement that
SDLAs take any action on the license of drivers subject to that
prohibition. As a result,

a driver can continue to hold a valid CLP or CDL, even while prohibited
from operating a CMV under FMCSA's drug and alcohol regulations. The
proposed downgrade would align a driver's CLP or CDL status with his or
her CMV driving status under Sec.  382.501(a), thus closing the current
regulatory loophole that allows these CMV drivers to evade detection.
    SDLAs would accomplish the mandatory downgrade by changing the
commercial status on the CDLIS driver record (as defined in 383.5) \4\
from ``licensed'' to ``eligible'' for CDL holders, and changing the
permit status from ``licensed'' to ``eligible'' for CLP holders. This
proposed mandatory downgrade procedure is identical to the process
SDLAs currently use to record the removal of the CLP/CDL privilege on
the CDLIS driver records of individuals whose medical certification
standing changes from ``certified'' to ``not certified,'' as required
under Sec.  383.73(o)(4).\5\
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    \4\ Sec.  383.5 defines ``CDLIS driver record'' as ``the
electronic record for the CDL driver's status and history stored by
the State-of-Record as part of the Commercial Driver's License
Information System (CDLIS) established under 49 U.S.C. 31309.''
    \5\ See, 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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    Under this alternative, FMCSA also proposes to revise the
definition of ``CDL downgrade,'' as set forth in Sec.  383.5, and add a
new definition of ``CLP downgrade'' to specifically set forth how
removal of the CDL/CLP privilege is recorded on the CDLIS driver
record. FMCSA proposes these definitional changes to ensure clarity and
consistency in the downgrade process.
    FMCSA prefers this alternative because it would enable effective
and uniform enforcement of the CMV driving prohibition, minimize
disruption at the State level by largely relying on existing processes,
and take into account the SDLAs' preference for clear direction from
the Agency concerning their use of Clearinghouse information.
Alternative #2--Optional Notice of Prohibited Status
    This alternative would permit, but not require, SDLAs to receive
``push'' notifications from the Clearinghouse whenever CMV drivers
licensed in their State are prohibited from driving due to a drug or
alcohol testing violation (optional notice of prohibited status). SDLAs
opting to receive this information through the Clearinghouse would also
be notified when the driver is able to resume operating a CMV following
completion of the RTD process, in accordance with Sec.  382.503. Under
this optional notification alternative, the State would determine
whether, and how, to use the information to enhance enforcement of the
driving prohibition. For example, the State could make the CLP or CDL
holder's ``prohibited'' status more accessible to roadside enforcement
officers,\6\ or, under State law, use the information to initiate an
action on the driver's license, such as suspending the CLP or CDL
privilege while the driving prohibition is in effect. This approach
would afford maximum flexibility to the States.
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    \6\ The means by which roadside enforcement officers, including
non-MCSAP personnel, will be able to access the driver's prohibited
status is explained in section V.E., ``Roadside Enforcement.''
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Application to CLP Holders
    The Clearinghouse final rule required that SDLAs query the
Clearinghouse before issuing, renewing, upgrading, or transferring of a
CDL. However, CLP holders are currently subject to drug and alcohol
testing under part 382 and the Clearinghouse final rule, and therefore
subject to the driving prohibition. Accordingly, the NPRM would include
CLP holders within the scope of the States' query required in Sec.
383.73, meaning that SDLAs would check the Clearinghouse before
issuing, renewing, or upgrading a CLP (CLPs cannot be transferred). In
addition, CLP holders would also be subject to non-issuance and
mandatory downgrade (removal of the CLP privilege) if they are
prohibited from driving under Sec.  383.501(a).
Addition of Driving Prohibition to Part 392
    In order to receive MCSAP funding, a State must, among other
things, adopt and enforce safety regulations comparable to those set
forth in parts 390-397 (Sec.  350.201(a)). The NPRM would add the CMV
driving prohibition now set forth in Sec.  383.501, to part 392,
subpart B, ``Driving of Commercial Motor Vehicles,'' as well. The
purpose of this proposed amendment is to facilitate States' enforcement
of the driving prohibition. Currently, 49 States and the District of
Columbia receive MCSAP funding.
Actual Knowledge Violations Reported to the Clearinghouse--Issuance of
Citation for DUI in a CMV
    The NPRM would revise how an employer's report of actual knowledge
of a driver's drug or alcohol use to the Clearinghouse, based on the
issuance of a citation to the employee-driver for DUI in a CMV, are
handled. First, the employer's report would remain in the
Clearinghouse, regardless of whether the driver is ultimately convicted
of the offense. The reason is that a driver violates part 382, subpart
B, when he or she receives a citation for DUI in a CMV; \7\ a
subsequent conviction carries separate consequences under part 383.\8\
Second, drivers who are not convicted of the offense of DUI in a CMV
could petition FMCSA to add documentary evidence of that fact to their
Clearinghouse record.
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    \7\ FMCSA, when adopting the current definition of ``actual
knowledge,'' noted: ``Actual knowledge `includes' knowledge that the
driver has received a traffic citation for driving a CMV while under
the influence of alcohol or controlled substances. A CMV driver who
receives a traffic citation while in a CMV is considered to have
violated subpart B.'' (66 FR 43103, 43097, 43099 (Aug. 17, 2001))
    \8\ Any driver convicted of that offense is, under 383.51(b),
disqualified from operating a CMV for a minimum of one year.
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    These proposed changes, explained more fully below, would ensure
compliance with the statutory requirement that all violations
identified in part 382, subpart B, be reported and retained in the
Clearinghouse (49 U.S.C. 31306a(g)(1) and (6)), and would provide
fairness to drivers and full disclosure to employers.

C. Costs and Benefits

    The Agency proposes two ways that SDLAs could use Clearinghouse
information. Alternative #1 would require SDLAs to initiate a mandatory
downgrade of the CLP and CDL driving privilege. Drivers would be
required to complete the RTD process and comply with any State-
established procedures for reinstatement of the CMV driving
privilege.\9\ Under Alternative #2, SDLAs would be provided optional
notice of a driver's prohibited status from the Clearinghouse. The
States would decide whether, and how they would use the information
under State law and policy to prevent a driver from operating a CMV
without a valid CLP or CDL.
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    \9\ The cost incurred by drivers to complete the RTD process
were accounted for in the Regulatory Impact Analysis (RIA) published
with the Clearinghouse final rule.
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    After completing the RTD process, a driver might incur an
opportunity cost in the form of forgone income between the time he or
she completes RTD requirements that permit the driver to resume
operating a CMV and the point at which the SDLA reinstates the
privilege to operate a CMV. Motor carriers might incur opportunity
costs in the form of forgone profits due to the loss of productive
driving hours during the same period. Alternative #1 would require the
States to rely on their own

established procedures to accomplish the downgrade and any subsequent
reinstatement. The loss of productive driving hours and the associated
costs would be the result of the proposed rule.
    Under Alternative #2, in addition to determining when and how an
SDLA would use Clearinghouse information, the States could establish
reinstatement procedures that would follow drivers' completion of the
RTD process. Were States to establish reinstatement procedures, any
opportunity costs or reinstatement costs that drivers would incur to
comply with such procedures would be the result of a State action, not
the proposed rule. Any associated motor carrier opportunity costs would
also be the result of a State action, not the proposed rule.
    Under Alternative #1, the procedures States establish for
reinstating the CMV driving privilege could vary significantly. The
Agency bases this assumption on the variations in downgrade procedures
the States have established to reinstate CMV driving privilege
following a medical certification-related mandatory downgrade pursuant
to Sec.  383.73(o)(4).
    Based on currently available information, under existing State
procedures, a number of States would likely reinstate the CMV driving
privilege upon receiving Clearinghouse information that a driver has
completed the RTD process, but require no reinstatement fee; other
States would restore the CLP or CDL to the license upon payment of the
reinstatement fee; and other States would require the driver to retake
knowledge and/or skills test prior to reinstatement. All States
imposing a retesting requirement do so only after a defined period of
time has elapsed between the time of the downgrade and reinstatement,
ranging from six months to a year or more. One State requires full
retesting if more than 90 days has passed.
    The Agency believes that, based on established downgrade
procedures, drivers will incur minimal opportunity costs and
reinstatement costs for a number of reasons. First, the vast majority
of drivers (82 percent) would be referred by substance abuse
professionals (SAPs) to two-day education programs, as part of the RTD
process. This finding is based on results substance abuse treatment
survey performed by Substance Abuse and Mental Health Service
Administration (SAMHSA).\10\ Given the short duration of these
programs, the Agency expects that drivers would complete the RTD
process before a downgrade would be recorded on their CDLIS record (the
NPRM proposes that the downgrade be recorded within 30 days of the
SDLA's receiving notification of the driver's prohibited status through
the Clearinghouse). Thus, they would incur neither opportunity costs
nor reinstatement costs. The Agency expects that downgrades will be
recorded on the CDLIS records of drivers referred by SAPs to intensive
outpatient treatment programs (IOT) because of the length of these
programs, many of which last for a minimum of 90 days. As noted above,
the Agency reviewed current State reinstatement procedures for
restoring the CMV privilege for drivers downgraded due to invalid
medical certification.
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    \10\ The report is titled National Survey of Substance Abuse
Treatment Services (N-SSATS): 2017. Data on Substance Abuse
Treatment Facilities. SAMHSA. 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).
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    Assuming that States would apply these procedures, described above,
to drivers downgraded due to drug or alcohol program violations, the
Agency anticipates that drivers in most States would complete the RTD
process before having to retest in order to have the CMV driving
privilege restored. All but one State imposing retesting requirements
do so no earlier than 6 months following the downgrade, which would
allow ample time to complete most RTD programs. The remaining States
require only that drivers provide a new medical certificate, and in
some cases, pay a reinstatement fee to have the CMV driving privilege
restored. Reinstatement fees would be a transfer payment. Thus, the
Agency finds that the only opportunity costs and reinstatement costs
that drivers would incur is the value of their time and the expense to
travel to and from the SDLA, if they are licensed in a State that
requires the driver to appear in person, and the Agency assumes this
would be accomplished in one day. Since many States permit drivers to
pay reinstatement fees electronically, many drivers will be able to
complete the process in less than one day.
    The Agency requests comments on the reinstatement procedures an
SDLA would institute under Alternative #1, and the time it would take
for a driver to comply with the requirements for reinstatement.
    The Agency proposes two IT solutions, (referred to as Method #1 and
Method #2) for transmitting Clearinghouse information to the SDLAs. The
costs include IT system development costs and annual operating and
maintenance expenses (O&M) incurred by the SDLAs and FMCSA. Method #1
uses the existing CDLIS platform to interface with the Clearinghouse.
The Agency included these costs in the Regulatory Impact Analysis
prepared for the Clearinghouse final rule. Therefore, only the SDLAs
would incur costs under Method #1. Method #2 uses a web-based service
call to transfer Clearinghouse information. SDLAs and FMCSA would incur
IT development and O&M expenses under Method #2. Table 1 shows two cost
estimates for Alternative #1 and Alternative #2. The totals include IT
development and annual O&M expenses, driver opportunity costs and
reinstatement costs and motor carrier opportunity costs. Driver
opportunity costs and reinstatement costs, and motor carrier
opportunity costs are included in Alternative #1 costs only. This is
because these costs would only be incurred under Alternative #2 by
drivers and motor carriers if SDLAs choose to initiate a downgrade
based on receiving optional notification from the Clearinghouse that a
driver has tested positive. Undiscounted costs are expressed in 2016
dollars. The total costs for the 10-year analysis period and the
annualized costs are also estimated at a 7 percent discount rate. The
Agency estimates the cost of Alternative #1, with Clearinghouse
information transmitted using Method #1 at $44.0 million over the10-
year analysis period. The annualized cost is estimated at $4.4 million.
At a 7 percent discount rate, the 10-year cost of the proposed rule is
estimated at $32.8 million, with an annualized cost of $4.7 million. If
Clearinghouse information is transmitted using Method #2, the cost of
Alternative #1 is estimated at $25.5 million over the 10-year analysis
period, and the estimated annualized cost is $2.5 million. At a 7
percent discount rate, the 10-year total cost is estimated at $18.5
million. The estimated annualized cost is $2.6 million.

         Table 1--Comparison of the Cost of Options for Transmitting and Using Clearinghouse Information
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                     Option                        Undiscounted (2016 $ million)   Discounted at 7% ($ million)
----------------------------------------------------------------------------------------------------------------
                                                   10-year total                   10-year total
    Clearinghouse information transfer method          cost         Annualized         cost         Annualized
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                                                 Alternative #1
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Method 1: CDLIS Option..........................           $44.0            $4.4           $32.8            $4.7
Method 2 Web Services Option....................            25.5             2.5            18.5             2.6
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                                                 Alternative #2
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Method 1: CDLIS Option..........................            28.0             2.8            21.5             3.1
Method 2 Web Services Option....................             9.4             0.9             7.2             1.0
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    Under Alternative #2, with Clearinghouse information transmitted
using Method #1, the 10-year total cost of the proposed rule is
estimated at $28.0 million. The estimated annualized cost is $2.8
million. At a 7 percent discount rate, the 10-year total cost is
estimated at $21.5 million. The estimated annualized cost is estimated
at $3.1 million. If Clearinghouse information is transmitted to SDLAs
using Method #2, the 10-year total cost of Alternative #2 is estimated
at $9.4 million, and the annualized cost is estimated at $0.9 million.
At a 7 percent discount rate, the 10-year total cost is estimated at
$7.2 million, and the annualized cost is estimated at $1.0 million.
    The NPRM would improve the enforcement of the current driving
prohibition by requiring that States not issue, renew, transfer or
upgrade the CLP or CDL of affected drivers. Removal of the commercial
privilege from the driver's license (mandatory CLP or CDL downgrade),
as proposed in FMCSA's preferred alternative, would ensure more
consistent roadside enforcement against drivers who continue to operate
a CMV in violation of the prohibition. The Agency also believes that
the mandatory downgrade would further reduce drug and alcohol testing
violations, since a driver's loss of the commercial privilege directly
impacts his or her ability to obtain employment that involves operating
a CMV. The Agency's preferred alternative would also permit the Agency
to use its enforcement resources more effectively. The NPRM's costs and
benefits are addressed further below in section VIII.A, of ``E.O.
12866''.

III. 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 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.
    The ``Commercial Driver's License Drug and Alcohol Clearinghouse''
final rule (81 FR 87686 (Dec. 5, 2016)) implements section 32402 of the
Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L.
112-41, 126 Stat. 405, codified at 49 U.S.C. 31306a), which requires
that the Secretary establish a national clearinghouse for records
relating to alcohol and controlled substances testing by CMV operators
who hold CDLs. As part of that mandate, MAP-21 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)). Section
32305(b)(1) of MAP-21, codified at 49 U.S.C. 31311(a)(24), requires
that States request information from the Clearinghouse before renewing
or issuing a CDL to an individual. This NPRM proposes the processes by
which the Agency and the States would implement these statutory
requirements.
    FMCSA also relies on the broad authority of the Commercial Motor
Vehicle Safety Act of 1986 (the 1986 Act) (Pub. L. 99-570, Title XII,
100 Stat. 3207-170, codified at 49 U.S.C. chapter 313). Section 31308
requires the Secretary, through regulation, to establish minimum
standards for the issuance of CLPs and CDLs by the States. This
proposal would establish the requirement that States could not issue a
CLP or CDL to an individual prohibited, under 49 CFR 382.501(a), from
operating a CMV due to a drug or alcohol testing violation. The NPRM
would also establish standards for the States' removal and
reinstatement of the CLP or CDL privilege from the driver's licenses of
such individuals, proposed under the Agency's preferred mandatory
downgrade alternative. Additionally, 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.'' This NPRM will help ensure the fitness of CMV operators by
requiring that States do 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 or alcohol program violation. Under the
Agency's preferred alternative, States would 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.
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 Department's drug and alcohol use and testing regulations are
authorized by the Omnibus Transportation Employee Testing Act of 1991
(OTETA) (Pub. L. 102-143, Title V, 105 Stat. 917, at 952, codified at
49 U.S.C. 31306). Among other things, OTETA authorizes the Secretary to
determine ``appropriate sanctions for a commercial motor vehicle
operator who is found to have used alcohol or a controlled substance''
in violation of applicable use testing requirements (e.g., 49 CFR parts
40 and 382) (49 U.S.C. 31306(f)). As explained further below, FMCSA
believes that non-issuance, as well as the proposed mandatory
downgrade, are appropriate sanctions which will improve compliance with
existing drug and alcohol program requirements.

    Additionally, this NPRM is based on the authority of the Motor
Carrier Safety Act of 1984 (the 1984 Act) (Pub. L. 98-554, Title II, 98
Stat. 2832, codified at 49 U.S.C. 31136), which provides concurrent
authority to regulate drivers, motor carriers, and vehicle equipment.
Section 31136(a) of the 1984 Act 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)).
    This NPRM would 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 proposed mandatory downgrade alternative,
requiring that States remove the CLP or CDL privilege from the license
of an individual who engages in prohibited drug and/or alcohol-related
conduct would promote the safe operation of CMVs. Specifically, it
would 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 conduct prohibited by FMCSA's drug and alcohol
testing and use program, until the driver has completed the RTD
requirements established by 49 CFR part 40, subpart O. The NPRM 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 does not believe this NPRM would
result in the coercion of CMV drivers by motor carriers, shippers,
receivers, or transportation intermediaries (section 31136(a)(5)), as
these proposed regulatory changes concern only the transmission of
Clearinghouse information between FMCSA and the States and the use of
that information by the SDLAs. The Agency notes, however, that the
Clearinghouse final rule prohibits employers from submitting false
reports of drug or alcohol violations to the Clearinghouse, which could
have coercive effects on drivers.\11\
---------------------------------------------------------------------------

    \11\ See 49 CFR 382.723
---------------------------------------------------------------------------

    The 1984 Act also requires that, 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 below.

IV. Background

A. MAP-21 Mandate

    The Clearinghouse final rule implemented the Congressional mandate,
set forth in section 32402 of MAP-21 requiring the establishment of a
national Drug and Alcohol Clearinghouse containing CDL holders'
violations of FMCSA's drug and alcohol testing regulations set forth in
49 CFR part 382. MAP-21 identified the purposes of the Clearinghouse as
twofold: To improve compliance with the drug and alcohol testing
program applicable to CMV operators and to improve roadway safety by
``reducing accident and injury involving the misuse of alcohol or use
of controlled substances'' by CMV operators (49 U.S.C. 31306a(a)(2)).
Accordingly, the Clearinghouse regulations will enable FMCSA and motor
carrier employers to identify drivers who, under 49 CFR 382.501(a), are
prohibited from operating a CMV due to drug and alcohol program
violations. The NPRM would help ensure that such drivers receive the
required evaluation and treatment before operating a CMV on public
roads, as required by Sec.  382.503.
    Additionally, MAP-21 required that SDLAs be provided access to the
Clearinghouse records of individuals applying for a CDL in order to
determine whether that person is qualified to operate a CMV and that
SDLAs request information from the Clearinghouse before renewing or
issuing a CDL to an individual (49 U.S.C. 31311(a)(24)). This NPRM
further addresses those requirements.\12\ The Clearinghouse information
would allow the SDLA to determine whether the applicant is qualified to
operate a CMV (49 U.S.C. 31306a(h)(2)(B)(ii)).
---------------------------------------------------------------------------

    \12\ See 49 CFR 382.725; 49 CFR 383.73(b)(10), (c)(10), (d)(9),
(e)(8), and (f)(4); and 49 CFR 384.235.
---------------------------------------------------------------------------

    In the preamble to the Clearinghouse final rule, FMCSA noted that
information in the Clearinghouse ``may have a direct impact on the
ability of the individual to hold or obtain a CDL,'' and that if an
applicant is not qualified to operate a CMV, ``that driver should not
be issued a CDL.'' \13\ However, as explained above, although drivers
who incur drug and alcohol program violations are prohibited from
operating a CMV until achieving a negative result on a RTD test, there
is no current regulatory requirement that SDLAs take any specific
licensure action if the driver's Clearinghouse record shows a violation
of the Agency's drug and/or alcohol prohibitions in part 382.
---------------------------------------------------------------------------

    \13\ See 81 FR 87686, 87708 (Dec. 5, 2016).
---------------------------------------------------------------------------

    Following publication of the Clearinghouse final rule, AAMVA, as
well as some individual States, noted that the rule did not provide any
direction to SDLAs should they become aware of a driver's drug or
alcohol violation after conducting the required check of the
Clearinghouse. AAMVA also raised a number of other questions and
concerns. The NPRM is intended to address those issues by clarifying
how SDLAs would use Clearinghouse information.

B. AAMVA's Petition

    AAMVA's petition for reconsideration of the Clearinghouse final
rule raised concerns related to the requirement, as set forth in Sec.
383.73, that SDLAs request information from the Clearinghouse prior to
the issuance, renewal, transfer, or upgrade of a CDL.\14\ AAMVA
asserted that FMCSA should not expect States to play any role in the
Clearinghouse process, noting that ``states cannot be expected to take
action on a license as the result of a query against the Clearinghouse
even if that process is integrated seamlessly.'' \15\ Concluding that
``[t]he authority for taking action based on federal clearinghouse
records should remain solely with the employer and FMCSA,'' AAMVA
requested that ``SDLAs be removed from the process as described in the
final rule.'' \16\
---------------------------------------------------------------------------

    \14\ 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; however, it 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 382.35(a), the Agency considers AAMVA's
submission to be a petition for rulemaking submitted under 49 CFR
389.31.
    \15\ Ibid., at 2.
    \16\ Ibid., at 3.
---------------------------------------------------------------------------

    As noted above, 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)). As explained in the
Agency's response to

AAMVA's petition,\17\ FMCSA therefore has no discretion to ``remove''
the States from the Clearinghouse process. Further, although a Federal
statute required that the CDL program be established, and the program
is governed in part by Federal regulations, the Agency does not have
authority to issue or rescind CDLs. Under the current regulatory
scheme, only States may act on a commercial license. As discussed
further below, FMCSA believes Congress intended that States, as the
issuers and administrators of CDLs and CLPs, should exercise their
commercial licensing authority to help keep drug and alcohol program
violators off the road until they are legally permitted to operate a
CMV.
---------------------------------------------------------------------------

    \17\ See Letter from Raymond Martinez (FMCSA) to Anne Ferro
(AAMVA) (April 12, 2018), p. 2, Docket No. FMCSA-2011-0031.
---------------------------------------------------------------------------

    AAMVA also asserted that various operational questions related to
the States' role in the Clearinghouse process were not addressed in the
final rule. These concerns included: What does FMCSA intend that the
States do with information they receive from the Clearinghouse; what
specific information would States receive in response to a request for
information about an individual CDL holder or applicant; what privacy
and data controls will be applied to the transmission of Clearinghouse
information to SDLAs; how would an erroneous Clearinghouse record be
corrected; to what extent would foreign-licensed drivers be included in
the query and reporting process; and what are the cost implications for
the SDLAs. AAMVA also cautioned FMCSA against requiring SDLAs to take a
licensing action based on information received from the Clearinghouse,
noting the direct impact of such action on an individual's livelihood.
    This NPRM responds to the SDLAs' questions and concerns, as
identified by AAMVA. The Agency explains how the NPRM addresses these
issues in section V, ``Discussion of Proposed Rulemaking,'' below. The
NPRM's estimated cost impact on the States, noted above in section
II.C, ``Costs and Benefits'', is discussed further below in section
VIII.A, ``Regulatory Analyses, E.O. 12866.''

V. Discussion of Proposed Rulemaking

A. The SDLAs' Role in the Clearinghouse

    While the MAP-21 requirements pertaining to the SDLAs' role in the
Clearinghouse are straightforward, the intent of these provisions is
less clear and thus subject to interpretation. The Agency therefore
relies on its authority, delegated by Congress through the Secretary,
to interpret and implement the MAP-21 requirements summarized above.
    First and foremost, FMCSA views the Clearinghouse provisions in
MAP-21 as remedial, intended to address the risk to public safety posed
by CLP and CDL holders who commit drug or alcohol testing violations,
but continue to operate a CMV without completing RTD requirements. This
NPRM is part of FMCSA's effort to address that problem. According to
the National Highway Traffic Safety Administration's Fatality Analysis
Reporting System (FARS), the number of large truck drivers involved in
fatal crashes who tested positive for drug use increased 48.2 percent
between 2012 and 2017.\18\
---------------------------------------------------------------------------

    \18\ The FARS data is available at https://www-fars.nhtsa.dot.gov/QueryTool/QuerySection/SelectYear.aspx, (accessed
August 19, 2019).
---------------------------------------------------------------------------

    FMCSA, proceeding under accepted standards of statutory
construction, interprets the Clearinghouse requirements in a way that
will achieve Congress's remedial purpose as stated in MAP-21:
Increasing compliance with current drug and alcohol program
requirements and improving highway safety (49 U.S.C. 31306a(a)(2)). The
Agency starts with the assumption that Congress intended that the
separate statutory requirements pertaining specifically to States and
to SDLAs be read as a whole, and therefore in harmony with one
another.\19\ The provision requiring States (through SDLAs) check the
Clearinghouse before issuing or renewing a CDL (49 U.S.C. 31311(a)(24))
does not indicate the specific purpose of that request for information.
The provision does, however, expressly cross-reference the
Clearinghouse provisions in 49 U.S.C. 31306a. FMCSA therefore views
these statutory sections, both enacted as part of MAP-21, as two parts
of an integrated whole.
---------------------------------------------------------------------------

    \19\ This interpretation differs from the Agency's views
expressed in the 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(24) as requiring
access and 31306a(h)(2) as permitting such access. FMCSA concluded
the separate requirements were therefore contradictory. As explained
above, the Agency now views the two provisions as part of an
integrated statutory scheme.
---------------------------------------------------------------------------

    With this in mind, the Agency reaches the following conclusions.
First, the required check of the Clearinghouse is intended to provide
SDLAs with information about the driver's qualifications to operate a
CMV (49 U.S.C 31306a(h)(2)(B)(ii)). Second, Congress included SDLAs in
the process because they are the only authorized user of the
Clearinghouse with authority to take action on a driver's license, such
as issuance or renewal.\20\ Third, SDLAs should use their licensing
authority to enforce the existing CMV driving prohibition in
382.501(a). The Agency acknowledges that a licensing action, based on
information from the Clearinghouse, is not an explicit statutory
requirement. However, to assume that Congress required that States
(SDLAs) query the Clearinghouse to assess the driver's qualifications
to drive a CMV and then take no action if the query discloses that the
driver is prohibited from operating a CMV would ascribe to Congress an
irrational purpose, plainly contrary to the stated goals of the
statute, noted above.
---------------------------------------------------------------------------

    \20\ 49 U.S.C. 31306a(m)(2) defines ``chief commercial driver's
licensing official'' as the State official authorized to ``maintain
a record about commercial driver's licenses issued by the State''
and ``take action on commercial driver's licenses issued by the
State.''
---------------------------------------------------------------------------

    Having concluded that Congress intended SDLAs to use their
licensing authority to further the goals of MAP-21, FMCSA proposes to
require SDLAs ``act'' on the license by denying the requested issuance,
upgrade, renewal or transfer of the CLP or CDL, as applicable, if the
Clearinghouse query results in notice that the individual is prohibited
from operating a CMV. For purposes of the NPRM, FMCSA considers non-
issuance to be the minimum licensing action required by MAP-21.
    However, in FMCSA's judgment, it would be contrary to public safety
to infer that non-issuance is the only license action authorized under
MAP-21.\21\ Drug and alcohol information reported to the Clearinghouse
will make it possible to identify current CLP or CDL holders subject to
the driving prohibition. But non-issuance applies only to a subset of
that group: Individuals seeking a specified license transaction. For
example, the non-issuance requirement would preclude a current CDL
holder from adding an endorsement to their license if the SDLA's
Clearinghouse query disclosed that the individual is subject to the
driving prohibition and therefore not qualified to operate a CMV. If
denying the upgrade is the only action taken by the SDLA, however, that
driver would continue to hold a valid CDL, which may not expire for
years. FMCSA does not believe Congress intended that

result, because these drivers pose an obvious risk to highway safety. A
driver not qualified to add an endorsement to their license due to a
drug or alcohol testing violation is also not qualified to hold that
license until he or she complies with RTD requirements that will allow
the commercial driving privilege to be reinstated.
---------------------------------------------------------------------------

    \21\ As discussed in Section III, ``Legal Basis'', in addition
to MAP-21, the NPRM is also based on the concurrent statutory
authorities of the Commercial Motor Vehicle Safety Act of 1986 and
the Motor Carrier Safety Act of 1984.
---------------------------------------------------------------------------

    The Agency therefore proposes alternate means to further effectuate
Congress's intent and increase compliance with the driving prohibition.
FMCSA's preferred alternative, ``mandatory downgrade'' would require
that SDLAs downgrade the license of any CLP or CDL holder subject to
the CMV driving prohibition, whether the driver is actively pursuing a
commercial licensing transaction or not. Under this approach, SDLAs
would receive ``push'' notifications from the Clearinghouse, in
addition to ``pulling'' driver status information through the query
process.
    Under the second proposed alternative, ``optional notice of
prohibited status,'' States would decide whether, and how, they would
use the information to enforce the CMV driving prohibition in
accordance with State law or policy (e.g., suspend the CLP or CDL
privilege until the driver can operate a CMV in accordance with Sec.
382.503, and/or make the driver's prohibited status more widely
available to traffic safety enforcement officers in their State). This
alternative would allow, but not require, SDLAs to identify all
individuals in their State subject to the CMV prohibition by choosing
to receive ``push'' notifications.

B. Impact of the NPRM on SDLAs

Non-Issuance
    The Clearinghouse regulations require that SDLAs request (``pull'')
information from the Clearinghouse prior to issuing, transferring,
renewing, or upgrading a CDL (Sec.  383.73(b)(c)(d)(e)(f)). The NPRM
proposes that if, in response to that request, the SDLA is notified
that the applicant is prohibited from operating a CMV due to a drug or
alcohol testing violation, the SDLA must not complete the licensing
transaction (non-issuance). The driver would need to re-apply after
complying with RTD requirements that permit him or her to resume
safety-sensitive functions, such as driving a CMV.
Application to CLP Holders
    The Clearinghouse final rule did not require that States request
information from the Clearinghouse for CLP applicants. The NPRM
addresses this apparent oversight by proposing that SDLAs must check
the Clearinghouse prior to issuing, renewing or upgrading a CLP. FMCSA
believes it is appropriate that SDLAs query the Clearinghouse for
information pertaining to CLP applicants, because the driver may have
previously held a CLP or CDL from another State, and a drug and alcohol
program violation may have been reported to the Clearinghouse during
that licensure period. In accordance with 382.103, CLP holders are
subject to the requirements of part 382 and are therefore subject to
the driving prohibition in Sec.  382.501(a). Accordingly, States could
not issue, renew, or upgrade the CLP of an applicant prohibited from
operating a CMV under Sec.  382.501(a). The proposed mandatory
downgrade would also apply to CLP holders.
Mandatory Downgrade
    Under the Agency's preferred alternative, FMCSA proposes that, in
addition to non-issuance, SDLAs also would be required to downgrade the
driver's license of CLP and CDL holders who violate FMCSA's drug and
alcohol program rules. As discussed above, the proposed downgrade
requirement is based on a simple premise: An individual prohibited from
operating a CMV due to a drug and alcohol program violation should not
hold a valid CLP or CDL until they are legally permitted to operate a
CMV. As previously noted, and discussed further below, the NPRM would
add the CMV driving prohibition to part 392, so that States receiving
MCSAP funds would be required to adopt and enforce a comparable
provision.
    SDLAs would accomplish the downgrade by changing the commercial
status from ``licensed'' to ``eligible'' on the CDLIS driver record,
thereby removing the CLP or CDL privilege from the license. The
downgrade would be initiated following notification from FMCSA that,
under Sec.  382.501(a), the CLP or CDL holder is prohibited from
operating a CMV. SDLAs would learn of the driver's prohibited status by
``pulling'' the information from the Clearinghouse prior to a requested
license transaction, and by receiving a ``push'' notification whenever
a violation is reported to the Clearinghouse for a CLP or CDL holder
licensed in that State. The SDLAs would rely on their respective State
laws and processes to downgrade the license and to reinstate the CLP or
CDL privilege to the license following ``push'' notification of the
driver's completion of RTD requirements. Pushing notifications to SDLAs
is necessary to address the situation under which drivers who are
prohibited from operating a CMV continue to possess a valid CDL or CLP,
enabling them to avoid detection while driving unlawfully.
    Under this alternative, SDLAs must complete and record the
downgrade on the CDLIS driver record within 30 days of the date the
State received notification from FMCSA that the driver is prohibited
from prohibited from operating a CMV. FMCSA understands that immediate
licensing action may not be feasible in all States. The Agency believes
that the 30-day period would allow SDLAs sufficient time to take the
required action, taking into account any State-imposed due process
requirements, such as providing notice of the pending downgrade to the
affected driver.\22\ However, the NPRM would not prohibit SDLAs from
completing the downgrade before the end of the 30-day period. FMCSA
requests comment on the proposed 30-day time frame for SDLAs to
complete and record the downgrade on the CDLIS driver record.
---------------------------------------------------------------------------

    \22\ However, FMCSA, notes that affected drivers would
nevertheless remain subject to en route enforcement of the driving
prohibition during the period before the downgrade is recorded on
the individual's driving record. See, section V.F, ``Roadside
Enforcement,'' infra.
---------------------------------------------------------------------------

    The Agency prefers the mandatory downgrade alternative because (1)
it could be implemented through the States' existing downgrade
processes; (2) would ensure more consistent treatment of drivers
subject to the CMV driving prohibition; and (3) it would strengthen
enforcement of the prohibition by making the driver's status readily
available to all roadside enforcement personnel, not just those
specifically trained through MCSAP funding to enforce the Federal Motor
Carrier Safety Regulations (FMCSRs). This issue is discussed further
below in section V.F., ``Roadside Enforcement of the CMV Driving
Prohibition.'' Other benefits of the proposed mandatory downgrade are
discussed in section VIII.A., ``E.O. 12866.''
    FMCSA requests comment on the mandatory downgrade alternative. The
Agency invites SDLAs to identify any specific operational issues
associated with implementing the downgrade, as proposed.
Reinstatement of the CLP/CDL Following RTD Completion
    Under the mandatory downgrade alternative, FMCSA would ``push''
notice to the SDLAs when a driver's negative RTD test result is
reported to the Clearinghouse, thereby informing

them that the driver is no longer prohibited from operating a CMV. If
the SDLA receives that notification before the downgrade is recorded,
FMCSA would require that, subject to applicable State law, SDLAs
terminate the downgrade process, since the CLP or CDL holder is no
longer prohibited from driving a CMV. If the SDLA receives notice from
FMCSA that the driver is no longer prohibited from operating a CMV
after completing and recording the downgrade, the driver would be
eligible for reinstatement of the CLP or CDL privilege to their license
in accordance with State law and procedures. However, if the downgrade
has been recorded on the CDLIS driver record, the driver could not
operate a CMV until the CLP or CDL privilege is reinstated to the
driver's license by the State. The NPRM would amend Sec.  382.503 to
make this clear.
    FMCSA believes the reinstatement should be as efficient as possible
so that drivers can resume their operation of a CMV as soon as they are
qualified to do so. The Agency requests information on current
reinstatement processes, including how long it takes to reinstate the
CLP or CDL privilege to the driver's license.
Notice to Drivers of Downgrade/Reinstatement
    The NPRM does not require that States notify the CLP or CDL holder
that the downgrade process, proposed under the preferred alternative,
is underway. (Such notice is currently required prior to the downgrade
of a driver's license due to a change in medical certification status
(Sec.  383.73(o)(4)(i)(A)). The Agency, by implementing its own
notification procedures required by the Clearinghouse regulations,
would like to relieve SDLAs of the administrative burden of directly
notifying a CLP or CDL holder of the licensing action (i.e., downgrade
or reinstatement). Pursuant to Sec.  382.707(a), FMCSA must notify
drivers whenever information about them has been added to, revised, or
removed from the Clearinghouse. When notifying the driver that a
violation has been reported to the Clearinghouse, the Agency intends to
let drivers know that FMCSA has informed their SDLA of the driver's
prohibited operating status, and that the State must downgrade of the
driver's license within 30 days. In addition, as part of FMCSA's
required notification to the driver that a negative RTD test result has
been reported to the Clearinghouse, the Agency would also inform
drivers that FMCSA has notified their SDLA that the driver is no longer
subject to the driving prohibition. FMCSA would notify drivers through
first-class mail, or through electronic mail if the driver has
registered in the Clearinghouse and selected that option. FMCSA
requests comment on whether its intended method of notice to drivers,
as described above, would satisfy existing State-based driver
notification requirements.
Impact of Removing the CLP or CDL Privilege From the Driver's License
    In its petition, AAMVA cautioned the Agency against requiring the
SDLAs to take a licensing action that could affect the individual's
livelihood. In response, FMCSA notes that a person's ability to earn a
living can be impacted anytime an SDLA removes or restricts a driver's
license, for any type of vehicle. Taking away the privilege to drive
has serious consequences to the affected individual; that is the
essence of the States' licensing authority when exercised to protect
the public by keeping unsafe drivers off the road.
    Further, SDLAs are already required to downgrade the CLP or CDL of
any driver not having valid medical certification (Sec.  383.73(o)(4)).
That requirement is intended to keep drivers from operating a CMV until
they are medically certified to do so, as required under Sec.
391.41(a)(1)(i). Similarly, the proposed licensing actions related to a
drug or alcohol program testing violation (i.e., non-issuance and
mandatory downgrade) would improve compliance with current regulations
(Sec.  382.501). Individuals who obtain the CLP or CDL credential are
responsible for knowing the associated regulatory requirements, as well
as the consequences of noncompliance. CMV drivers can therefore avoid
the threat to their livelihood, posed by non-issuance or a downgrade,
by complying with FMCSA's drug and alcohol program.
    AAMVA's petition also asked whether licensing action would be in
the form of a downgrade or a disqualification. FMCSA notes that CMV
drivers subject to downgrade are not ``disqualified'' under part 383.
Driver disqualifications under Sec.  383.51 require that the individual
be convicted of a specified traffic violation. Drivers prohibited from
operating a CMV due to a drug or alcohol testing violation do not meet
that criteria for disqualification.\23\ Further, violation of FMCSA's
drug and alcohol use testing regulations do not necessarily indicate
impairment while driving.\24\ Therefore, while a positive drug or
alcohol test, or other program violation certainly raises safety
concerns, such violations do not inherently constitute a basis for
disqualification under Sec.  383.51.
---------------------------------------------------------------------------

    \23\ Driver disqualifications under part 383 are required by
statute (49 U.S.C. 31310).
    \24\ Under Sec.  383.51(b), persons convicted of driving under
the influence of drugs or alcohol are disqualified from operating a
CMV for a minimum of one year.
---------------------------------------------------------------------------

Alternative #2--Optional Notice of Prohibited Status
    Under the second proposed alternative, the push notifications
described above would also be available to SDLAs so that they could
choose whether to receive the information and how to use it. As
discussed above in section II.B, ``Summary of Major Provisions,'' the
NPRM would add the driving prohibition, currently set forth in Sec.
382.501, to part 392, thereby requiring States that receive MCSAP
funding to adopt and enforce a comparable prohibition under State law.
This would enable roadside enforcement by providing law enforcement
personnel with electronic access to the CMV driver's prohibited
operating status. However, as explained below in section V.F.,
``Roadside Enforcement of the CMV Driving Prohibition,'' traffic
enforcement officers who are not funded through the MCSAP program may
have limited electronic access to that information.
    Under this optional notification alternative, SDLAs choosing to
receive ``push'' notifications of a driver's prohibited status could
use the information to enhance their enforcement efforts in a number of
different ways, consistent with MAP-21 \25\ and State law or policy.
Although the Agency would not require SDLAs to take action on CDLs,
they would have the option to receive push notifications of a CLP or
CDL holder's prohibited operating status. The SDLA would then choose
how to use the information to facilitate enforcement of the driving
prohibition, as required by MCSAP funding. States would remain
responsible for enforcing the driving prohibition, but would have the
flexibility to determine how to comply with that requirement.
---------------------------------------------------------------------------

    \25\ MAP-21 requires that States ensure information in the
driver's Clearinghouse record ``is not divulged to any person not
directly involved in assessing and evaluating the qualifications of
the individual to operate a commercial motor vehicle'' (49 U.S.C.
31306a(h)(2)(B)(ii)).
---------------------------------------------------------------------------

    For example, SDLAs could make the driver's prohibited CMV operating
status more accessible to non-MCSAP law enforcement at roadside,
depending on their technological capability to do so. States opting to
receive ``push'' notifications could also enact a law to suspend the
commercial privilege from the driver's license until he or she
completes RTD requirements, as three

States have already done.\26\ Under this proposed alternative, it would
be up to the State to determine whether, and how, to use the
information.
---------------------------------------------------------------------------

    \26\ The ways in which States currently use information of
driver violations of FMCSA's drug and alcohol program is described
below in section V.C, ``Impact of MAP-21 and the NPRM on State
Laws.''
---------------------------------------------------------------------------

    The Agency invites comment on the optional notification proposal.
Would States opt to receive the CMV driver status information if FMCSA
did not require a downgrade? Why or why not? How would States choosing
to receive driver notification specifically use that information to
enhance enforcement of the driving prohibition? If FMCSA did not
require a downgrade, should SDLAs be required to receive the
information, rather than having the option to do so? Why or why not?
Content of Driver-Specific Information Provided to SDLAs
    The driver-specific information that would be provided to SDLAs,
through both ``push'' and ``pull'' notifications, would indicate only
that the driver is prohibited from operating a CMV. Because FMCSA would
not disclose any specific information concerning the details of the
driver's drug and alcohol program violation (e.g., whether the driver
tested positive or refused a test), SDLAs would not need to interpret
drug or alcohol test results or other Clearinghouse data. After a
negative RTD test has been reported to the Clearinghouse, FMCSA would
``push'' a notification to the SDLA that initially received
notification of prohibited status, indicating the driver is no longer
prohibited from operating a CMV.
Proposed Methods of Transmitting Driver-Specific Information to SDLAs
    FMCSA expects to notify the SDLAs of the driver's status, either by
``pull'' or ``push'', through either the existing CDLIS platform, a web
services call, some combination of the two, or other automated
electronic means. The Agency invites comment concerning the preferred
method for FMCSA's automated electronic transmission, by ``push'' or
``pull'', of the CLP or CDL holder's Clearinghouse information to the
SDLAs, including associated costs and benefits. For example, if the
existing CDLIS platform is utilized, what new data elements or fields
would be required? Would a new AAMVA Code Dictionary (ACD) code be
required? As noted below in the discussion of the estimated costs of
the NPRM, if States ``pulled'' notification of a driver's CMV operating
status from the Clearinghouse via the CDLIS platform, the Agency
intends that, under this option, the information would be provided as
part of the CDLIS driver record check already required under Sec.
384.205. Under this approach, SDLAs would not be required to perform a
separate query of the Clearinghouse; they would receive relevant
Clearinghouse information along with any other driver-specific data,
such as medical certification status, provided in response to the CDLIS
record check.
    Alternatively, the Agency requests comment on whether a web service
call should be used to transmit information between the Clearinghouse
and SDLAs. As noted above, this option would presumably require FMCSA
to establish an interface between the SDLAs and the Clearinghouse.
Should SDLAs have the option to determine which electronic transmission
format best suits their needs, or is a uniform system of Clearinghouse
data transmission preferable? How would the NPRM affect States that
permit drivers to complete commercial license transactions online?

C. Compliance Date

    The Agency generally allows States three years to achieve
compliance with new requirements imposed on them under parts 383 and
384. Accordingly, the NPRM proposes that States come into compliance
with the proposed requirements no later than three years following
publication of a final rule. FMCSA acknowledges, however, that the time
needed for implementation of the proposed data transmission options,
identified above, may vary. FMCSA therefore requests comment on the
time necessary for SDLAs to implement changes to their information
technology systems in order to electronically request and receive
information from the Clearinghouse, once the technical specifications
are made available. To the extent possible, commenters should estimate
the length of time needed to comply, depending on how the Clearinghouse
information would be transmitted (i.e., through the existing CDLIS
platform, a web-based service, or some other electronic means). For
example, can one method of transmission be implemented more quickly
than another?
    The Agency previously extended the date by which States must comply
with the query requirement established by the Clearinghouse final rule.
The initial compliance date of January 6, 2020, was extended to January
6, 2023 (84 FR 68052). As FMCSA noted at the time that change made, the
extension was necessary because the way in which SDLAs would
electronically receive Clearinghouse information, as well as the way
SDLAs would be required to use that information, has not yet been
determined. This NPRM addresses those factors. The current compliance
date of January 23, 2023 will, if necessary, be replaced by the date
established by the final rule resulting from this NPRM; however, the
Agency does not expect the ``final'' compliance date to occur before
January 23, 2023.

D. Impact of MAP-21 and the NPRM on State Laws

Reporting Requirements
    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)(2)). Once the Clearinghouse is
operational, drug and alcohol testing violation information must be
reported to the Clearinghouse in accordance with Sec.  382.705
(``Reporting to the Clearinghouse''). The Agency interprets 49 U.S.C.
31306a(l)(2) to mean that State-based reporting requirements
inconsistent with the requirements in Sec.  382.705 would be preempted.
    FMCSA is aware that at least eight States (Arkansas, California,
New Mexico, North Carolina, Oregon, South Carolina, Texas, and
Washington \27\) currently require that CDL holders' positive test
results and/or test refusals be reported to the State. States uncertain
about whether their reporting requirements are inconsistent with the
Clearinghouse statute (49 U.S.C. 31306a) or the Clearinghouse final
rule may request a determination from the Agency.
---------------------------------------------------------------------------

    \27\ See A.C.A. section 27-23-205; Ann. Cal. Vehicle Code
sections 34520(c), 13376(b)(3); N.M.S.A. section 65-13-14(B); O.R.S.
section 825.410(3); 37 T.A.C. section 4.21(a).
---------------------------------------------------------------------------

State Actions on the Commercial Driver License or Driving Record
    MAP-21 specifically excepts from Federal 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)). Several States currently take
such licensing actions based on certain violations of FMCSA's drug and
alcohol testing program. At least three States (North Carolina, South
Carolina, and Washington) currently disqualify CDL

holders who test positive for drugs or alcohol, or refuse to submit to
a test, from operating a CMV until completing RTD requirements.\28\
Some States take additional licensing actions related to drug and
alcohol program violations. For example, in Washington State, persons
disqualified from driving a CMV due to a positive drug or alcohol
confirmation test under the DOT testing program, more than twice in a
five-year period, ``are disqualified for life.'' \29\ In North
Carolina, drivers testing positive for drugs or alcohol, or refusing to
test, under 49 CFR part 382 are disqualified from operating a CMV for a
minimum of 30 days and until completion of RTD requirements.\30\ Based
its interpretation of 49 U.S.C. 31306a(l)(3), the Agency believes that
State-based requirements such as these would likely fall within the
scope of the exception because they relate to an action taken on a CDL.
---------------------------------------------------------------------------

    \28\ N.C.G.S.A. section 20-17.4(l); S.C. Code Ann. section 56-1-
2110(G); Wash. Rev. Code section 46.25.090(7).
    \29\ Wash. Rev. Code 46.25.090(7).
    \30\ N.C.G.S.A. section 20-17.4(l).
---------------------------------------------------------------------------

    The exception in 49 U.S.C. 31306a(l)(3) also applies to State
actions related to a CMV operator's driving record resulting from an
individual's violation of FMCSA's drug and alcohol program. The NPRM's
sole impact on the driving record is the requirement, proposed in
FMCSA's preferred alternative, that the downgrade of the CLP or CDL be
recorded on the CDLIS driver record for the downgrade to take effect.
FMCSA does not propose that the reason for the downgrade, or the
individual's prohibited CMV driving status, be posted on a CMV
operator's driving record, though the NPRM does not prohibit States
from doing so. Nor does the Agency propose any time limit for how long
posted violation information may be retained on the driving record.
Accordingly, the NPRM complies with Congress's intent, as expressed in
MAP-21, to accord States the flexibility to record drug and alcohol
violation information on the driving records of CLP and CDL holders as
they deem appropriate.
    States should, however, be aware of the MAP-21 privacy protection
requirements applicable to SDLAs, including the need to ``ensure that
the information in the [Clearinghouse] record is not divulged to any
person [who] is not directly involved in assessing and evaluating the
qualifications of the person to operate a commercial motor vehicle.''
\31\ Further, State-maintained records of a driver's status and history
are subject to the requirements of the Federal Driver's Privacy
Protection Act of 1994.\32\ State laws and procedures must therefore
comply with these statutory requirements.
---------------------------------------------------------------------------

    \31\ 49 U.S.C. 31306a(h)(2)(B)(ii). See also 49 CFR 382.725(c).
    \32\ See 18 U.S.C. 2721-2725 (1994 & Supp. IV 1998), amended by
Public Law 106-69, section 350, 113 Stat. 956, 1025-26 (1999).
---------------------------------------------------------------------------

E. Impact on CLP/CDL Holders

Proposed Commercial Licensing Actions
    As discussed above, pursuant to Sec.  382.501(a), CLP and CDL
holders are currently prohibited from operating a CMV if they engage in
drug or alcohol-related conduct prohibited by subpart B of part 382, or
if they violate the drug and alcohol requirements of another DOT
agency. Once the CLP or CDL holder has met the RTD evaluation and
testing requirements of part 40, the driver is eligible to resume
operating a CMV, in accordance with Sec.  382.503.
    FMCSA proposes to enforce those requirements by prohibiting SDLAs
from issuing, renewing, upgrading, or transferring a CDL, or issuing,
renewing or upgrading a CLP, of any driver subject to the CMV driving
prohibition in Sec.  382.501(a).
    Additionally, under the Agency's preferred mandatory downgrade
alternative (#1), SDLAs would be required to downgrade the driver
license of individuals prohibited from operating a CMV, resulting in
the removal of the CDL or CLP privilege by changing the commercial or
permit status from ``licensed'' to ``eligible'' on the CDLIS driver
record. In this way, a driver's commercial license status would be
aligned with his or her CMV driving status under Sec.  382.501(a).
Simply put, FMCSA believes that an individual prohibited from operating
a CMV due to a drug and alcohol program violation should not hold a
valid CLP or CDL until they are legally permitted to operate a CMV.
This proposed approach is consistent with the Agency's current
requirement that SDLAs downgrade the CDL or CLP of drivers who do not
comply with FMCSA's medical certification requirements.\33\
---------------------------------------------------------------------------

    \33\ See 49 CFR 383.73(o)(4).
---------------------------------------------------------------------------

    Under the optional notice of prohibited status alternative (#2),
States would have the flexibility to decide whether to receive notice
of the driver's prohibited status in order to enhance roadside
enforcement of the prohibition or to suspend the CDL/CLP privilege in
accordance with State law.
Driver-Specific Notifications to SDLAs
    FMCSA proposes to notify the SDLA that a CLP or CDL holder is
prohibited from operating a CMV, pursuant to Sec.  382.501(a), and,
when applicable, that the driver is no longer prohibited from operating
a CMV, in accordance with Sec.  382.503. The Agency notes that, while
the notification that a driver is prohibited from operating a CMV would
be based on specific violation information reported to the
Clearinghouse (e.g., a verified positive drug test result), the Agency
would not disclose that information to the SDLA. FMCSA believes the
proposed limited disclosure of an individual's CMV driving status under
Sec.  382.501(a) would provide the States with the information they
need to take commercial licensure actions (non-issuance; mandatory
downgrade) required under the NPRM, while also reasonably accommodating
the privacy interests of drivers.
Economic Impact of Proposed Mandatory Downgrade
    Under FMCSA's preferred alternative, States must complete and
record the downgrade on the CDLIS driver record within 30 days of
receiving notice from FMCSA that the driver is prohibited from
operating a CMV. Depending on the State, a driver whose license is
downgraded may be required to pay a reinstatement fee, re-apply for a
CLP or CDL, and/or repeat applicable skills or knowledge tests before
the State would reinstate the CLP/CDL privilege to the driver license.
Potential reinstatement-related costs on drivers are addressed in
sections II.C., ``Costs and Benefits,'' and VIII. A., ``E.O. 12866.''
    Under Sec.  383.23(a)(2), no person may legally operate a CMV
without possessing a valid CDL; under Sec.  323.25(a), a CLP is
considered a valid CDL for purposes of behind-the-wheel training on
public roads. Therefore, drivers who complete the RTD requirements
after the downgrade is recorded by the SDLA could not drive a CMV until
the CLP or CDL privilege is reinstated. The Agency acknowledges that
this outcome could be viewed as inconsistent with Sec.  382.503, which
currently states that drivers may resume safety sensitive functions,
including driving a CMV, once the driver satisfies the RTD requirements
of part 40, subpart O.\34\ In order to clarify this issue, the
mandatory downgrade proposal would amend Sec.  382.503 to make clear
that a valid CLP or CDL is required before the driver can operate a CMV
after complying with RTD requirements. FMCSA notes, however, that the
driver could perform other

safety-sensitive functions that do not involve driving a CMV, such as
loading or unloading a vehicle, since those functions do not require a
valid CLP or CDL.
---------------------------------------------------------------------------

    \34\ Under 49 CFR 40.305(b), an employer cannot return an
employee to safety-sensitive duties until the employee has a
negative result on a RTD drug or alcohol test.
---------------------------------------------------------------------------

    FMCSA is aware that a CDL holder, otherwise qualified to operate a
CMV by completing RTD requirements, may lose driving-related income
while waiting for the CDL privilege to be reinstated. Similarly, a
driver's behind-the-wheel training on public roads could not be
completed until the CLP privilege is restored following completion of
RTD requirements. The Agency requests comment on these potential
economic impacts.
    As discussed further below in section VIII.A. ``E.O. 12866,'' the
Agency anticipates that most drivers could complete RTD requirements
within 16 hours if the substance abuse professional (SAP) refers the
driver to an outpatient education program. If the SAP refers the driver
to an intensive outpatient treatment program, the time to complete the
RTD is estimated at 108 hours. For drivers referred to an outpatient
education program, it is possible the driver would complete the RTD
process before the SDLA records the downgrade on the CDLIS driver
record. The proposed rule would allow SDLAs 30 days to complete the
downgrade. Under the proposed mandatory downgrade, SDLAs, consistent
with applicable State law, would be required to terminate the downgrade
process if FMCSA notifies the SDLA that the driver is no longer
prohibited from operating a CMV before the SDLA has recorded the
downgrade on the driving record. Because no licensing action would be
taken in that situation, drivers would be qualified to operate a CMV
upon completing the RTD requirements.
Licensing Actions Based on Inaccurate Clearinghouse Information
    The Agency recognizes that CLP and CDL holders may be concerned
that non-issuance or a license downgrade could occur due to erroneous
information reported to the Clearinghouse. AAMVA's petition also noted
the potential impact of inaccurate Clearinghouse information on the
commercial licensure process. FMCSA understands the importance of
maintaining the accuracy and privacy of driver information in the
Clearinghouse. The Agency notes, for example, that in response to
drivers' concerns about the potential for false reports of actual
knowledge of drug or alcohol use (other than actual knowledge that the
driver received a citation for operating a CMV under the influence of
drugs or alcohol) or test refusals to the Clearinghouse, the final rule
requires specified supporting documentation, such as an affidavit, to
prevent false reporting of these violations.\35\ Further, as part of
its Clearinghouse implementation protocol, FMCSA intends to ensure that
the required documentation has been provided before releasing the
actual knowledge or test refusal violations from the Clearinghouse in
accordance with Sec.  382.701, and before relying on those reports as a
basis for notifying the SDLA that the driver is prohibited from
operating a CMV.
---------------------------------------------------------------------------

    \35\ See 49 CFR 382.705(b)(3) and (4).
---------------------------------------------------------------------------

    Further, due to the extensive and time-tested procedures for
verifying the accuracy of positive drug and alcohol test results, as
set forth in 49 CFR part 40, FMCSA expects that the reporting of
inaccurate test results to the Clearinghouse will be exceedingly rare.
    However, the reporting of inaccurate driver information to the
Clearinghouse may occur, despite the Agency's best efforts to prevent
it.\36\ In such cases, incorrect information could result in non-
issuance (i.e., the SDLA would not process the requested license
issuance, renewal, upgrade, or transfer). Under the Clearinghouse
regulations, if FMCSA corrects driver information, or removes it from
the Clearinghouse, the driver must be notified (Sec.  382.707(a)).
Therefore, if non-issuance occurred due to inaccurate information
subsequently corrected or removed from the Clearinghouse, the driver,
after receiving notice of correction or removal, would return to the
SDLA to complete the licensing transaction.
---------------------------------------------------------------------------

    \36\ The Clearinghouse regulations provide for the timely
correction of inaccurate information, as do the Privacy Act
regulations. See 49 CFR 382.717(e)(2); 49 CFR 10.43.
---------------------------------------------------------------------------

    Under the proposed mandatory downgrade alternative, if a driver's
license is downgraded based on erroneous information subsequently
corrected or removed from the Clearinghouse, FMCSA would notify the
SDLA that the driver is not subject to the CMV driving prohibition. The
SDLA should reinstate the CLP or CDL privilege as fairly and
efficiently as possible after receiving such notification. In addition,
if an SDLA chooses to enter drug or alcohol testing violation
information on a CMV operator's driving record, and FMCSA later
determines the information is inaccurate and removes it from the
Clearinghouse, the SDLA should also remove it from the individual's
State-based driving record. FMCSA requests comment from drivers and
SDLAs on whether a mandatory corrective action process should be
included in the final rule resulting from this NPRM, and, if so, what
the elements of that process should be.
CMV Driving Prohibition Adopted Under State Law
    The NPRM proposes that the CMV driving prohibition in Sec.  382.501
be added to part 392, so that States receiving MCSAP funds would be
required to adopt and enforce a comparable provision. As discussed
further below, the proposed change would enable roadside enforcement of
the prohibition. Drivers who operate a CMV in violation of the
prohibition would therefore be subject to appropriate intervention by
safety enforcement personnel in these jurisdictions.
Actual Knowledge Violation Based on Citation for DUI in a CMV
    Finally, drivers could be impacted by proposed changes to the way
in which an actual knowledge violation, based on the employer's
knowledge that the driver was issued a citation for DUI in a CMV, would
be maintained in the Clearinghouse. Section Sec.  382.717(a)(2)(i)
states that, when the DUI citation does not result in the driver's
conviction, the driver can petition FMCSA to remove the employer's
report of the actual knowledge violation from the Clearinghouse. As the
Agency then explained: ``Prohibiting a driver from performing safety
sensitive functions when a citation does not result in a conviction
contravenes fundamental principles of fairness.'' \37\ This provision
was based on the erroneous assumption that drivers issued a citation
for DUI in a CMV, but not convicted, do not have to complete RTD
requirements.
---------------------------------------------------------------------------

    \37\ 81 FR 87686, 87706 (Dec. 5, 2016).
---------------------------------------------------------------------------

    Under the NPRM, drivers would no longer be permitted to request
removal of the actual knowledge report if the DUI citation did not
result in a conviction. The proposed change is necessary for two
reasons. First, as explained above in section II.B., ``Summary of Major
Provisions,'' when an employer is aware that a driver received a
citation for DUI in a CMV, that employer has actual knowledge that a
driver engaged in the prohibited use of drugs or alcohol (Sec.
382.107). The driver therefore has violated FMCSA's drug and alcohol
program requirements (Sec.  382.501(a)). The violation occurs whether
the driver is ultimately convicted of the offense or not. Consequently,
the Agency erred in stating that drivers not convicted of DUI in a CMV
are not required to complete

RTD requirements. If an employer reports an actual knowledge violation
to the Clearinghouse, based on the issuance of a citation for DUI in a
CMV, the driver must not perform safety-sensitive functions until
complying with RTD requirements, as required by Sec.  382.503.
    The second reason is that MAP-21 requires all violations of part
382, subpart B, be reported to the Clearinghouse, and that reported
violations remain in the Clearinghouse for five years.\38\ These
statutory requirements therefore preclude the Agency from removing the
actual knowledge violation report from the Clearinghouse, based solely
on evidence that the driver was not convicted of DUI in a CMV.
---------------------------------------------------------------------------

    \38\ See 49 U.S.C. 31306a(g)(1)(C); 31306a(g)(6).
---------------------------------------------------------------------------

    The Agency believes that, in the interest of fairness, a driver who
is not convicted of the offense of DUI in a CMV should be permitted to
request that FMCSA add documentary evidence of non-conviction to their
Clearinghouse record. The information, if accepted, would be available
to employers who subsequently check the driver's record in accordance
with Sec.  382.701(a) or (b). Making the information available to
employers would allow them to assess the relevance of non-conviction
when deciding whether to hire or retain the driver.

F. Enforcement of the CMV Driving Prohibition

    Under FMCSA's current regulations, a CLP or CDL holder who engages
in prohibited drug or alcohol-related conduct cannot lawfully operate a
CMV until complying with RTD requirements (Sec.  382.501(a)). The
driving prohibition applies as soon as the drug or alcohol testing
violation occurs. Ideally, traffic safety enforcement officials
conducting roadside interventions should be able to determine whether a
CMV driver is subject to the prohibition as soon as possible after the
violation occurs. Today, however, the Agency's State and local
enforcement partners have limited ability to identify drivers who pose
a safety risk by continuing to drive CMVs in violation of FMCSA's drug
and alcohol rules. As discussed above, only three States currently
suspend the CDL of drivers who violate FMCSA's drug and alcohol
program. Consequently, most individuals prohibited from driving a CMV
due to a drug or alcohol testing violation can still hold a valid CLP
or CDL.
    The Clearinghouse will help close this knowledge gap. Based on
violations reported to the Clearinghouse, FMCSA will be able to provide
its State-based roadside enforcement partners notice of the driver's
prohibited CMV operating status in real time by making the information
available after a driver violation is reported to the Clearinghouse.
(The Agency emphasizes that traffic safety personnel would not have
access to the Clearinghouse, and would not receive any specific
violation information about a CLP or CDL holder.) Additionally, the
NPRM proposes to add the CMV driving prohibition to part 392, thereby
requiring States receiving MCSAP funding to adopt and enforce a
comparable provision, in accordance with Sec.  350.201(a). The combined
effect of these actions will improve highway safety by increasing the
roadside detection of drivers who hold a valid CLP or CDL, but continue
to operate a CMV in violation of the prohibition.
    FMCSA will exercise its existing enforcement authority to make the
driver's prohibited CMV operating status available to CMV safety
enforcement personnel authorized to enforce highway safety laws.
Incident to a traffic stop, or inspection at a roadside check point
(e.g., a CMV weigh station), highway traffic safety officers trained
under FMCSA's Motor Carrier Safety Assistance Program (MCSAP) have
access, through cdlis.gov, to the CLP or CDL holder's driving record
through FMCSA's electronic enforcement tools. Nationwide, there are
approximately 12,000 MCSAP officers, who have specialized knowledge and
experience related to CMV safety. In addition, there are more than
500,000 safety personnel authorized to enforce traffic laws throughout
the United States. Some non-MCSAP enforcement officers are currently
able to access FMCSA's data through cdlis.gov or National Law
Enforcement Telecommunication System (Nlets), and would therefore be
aware of the driver's prohibited status. However, this information is
not consistently and widely available to non-MCSAP enforcement
personnel, due to resource limitations, or the inability to access an
electronic database at roadside. Consequently, these traffic safety
officers would not necessarily know the CMV driver's prohibited status.
    However, at a minimum, all traffic safety enforcement officers,
including non-MCSAP personnel, initiate a license check on any driver
stopped for a traffic violation. Under the proposed mandatory downgrade
alternative, drivers unlawfully operating a CMV would be detected
through a license check if the CLP or CDL privilege had been removed
from the license when the check is made. FMCSA believes that the
downgrade requirement would therefore strengthen enforcement of the
driving ban because it would enable all traffic safety officers, not
just those trained and funded under MCSAP, to detect drivers prohibited
from operating a CMV (i.e., drivers whose license is downgraded due to
a drug or alcohol testing violation).
    FMCSA invites comment, particularly from traffic safety
stakeholders, on the Agency's intended enforcement protocol, as
described above. FMCSA also seeks comment on whether the proposed
downgrade would further improve highway safety by enabling more
extensive roadside detection of drivers not qualified to operate a CMV.

G. Foreign-Licensed Drivers

    FMCSA's drug and alcohol program requirements apply to drivers
licensed in Canada and Mexico who operate CMVs in commerce in the
United States, and to those who employ such drivers.\39\ Accordingly,
pursuant to Sec. Sec.  382.501(a) and 382.503, if a drug or alcohol
violation is reported to the Clearinghouse for a driver licensed in
Canada or Mexico, that individual cannot operate a CMV in the United
States until completing RTD requirements.
---------------------------------------------------------------------------

    \39\ See 49 CFR 382.103(a)(2) and (3).
---------------------------------------------------------------------------

    As the Agency acknowledged in the preamble to the Clearinghouse
final rule, Canadian and Mexican licensing authorities will not have
direct access to the Clearinghouse because MAP-21 authorized such
access only for SDLAs in the 50 States and the District of Columbia.
FMCSA noted, however, that it would explore other ways in which drug
and alcohol information in the Clearinghouse could be made available to
foreign licensing authorities and to U.S. enforcement personnel.
Accordingly, FMCSA intends to rely on the following enforcement
protocol when a drug or alcohol violation by a foreign-licensed driver
is reported to the Clearinghouse. The Agency intends to ``push'' a
notification from the Clearinghouse to the Foreign Convictions and
Withdrawal Database (FCWD) indicating that, under Sec.  382.501(a), the
driver is prohibited from operating a CMV in the United States.
Enforcement personnel who use CDLIS to electronically initiate a
foreign-licensed driver status request will also receive notifications
provided to the FCWD and would thus be informed that the driver is
prohibited from operating a CMV in the United States. The foreign-
licensed driver could

be subject to citation for violating the driving prohibition.\40\
---------------------------------------------------------------------------

    \40\ The NPRM proposes to add the CMV driving prohibition to
part 392, so that States receiving MCSAP funds would be required to
adopt and enforce a comparable provision.
---------------------------------------------------------------------------

    FMCSA would also notify the foreign-licensed driver (and the
relevant foreign licensing authority) that the driver 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, a
similar notification would be ``pushed'' to the FCWD, and FMCSA would
also notify the driver and foreign licensing authority that the
individual is no longer prohibited from operating a CMV in the United
States. Under this process, foreign-licensed drivers who commit drug
and alcohol program violations would, in effect, be treated no
differently than their U.S.-licensed counterparts.
    The Agency notes that these notification procedures are based on
FMCSA's existing enforcement authority; therefore, no revision to 49
CFR parts 382, 383, or 384 is necessary. However, FMCSA intends to
provide additional guidance on this enforcement protocol prior to its
implementation.

H. 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 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.\41\
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(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.
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    \41\ 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.
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    The Agency's proposed SORN for the new system of records titled
``Drug and Alcohol Clearinghouse (Clearinghouse),'' was published on
October 22, 2019 (84 FR 56521). The SORN described 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 proposed SORN
also identified 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.

I. Fair Credit Reporting Act (FCRA) Applicability

    In the preamble to the 2016 Clearinghouse final rule, the Agency
briefly discussed how the FCRA would apply to FMCSA's administration of
the Clearinghouse.\42\ The Agency takes this opportunity to clarify its
position. The FCRA, among other things, imposes certain obligations on
``consumer reporting agencies'' as that term is defined in the
statute.\43\ Because the Agency does not fall within FCRA's definition
of ``consumer reporting agency,'' it is not subject to those
obligations. Consequently, the FCRA requirements imposed on ``consumer
reporting agencies'' do not apply to the Agency's administration of the
Clearinghouse regulations, including these proposed requirements.
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    \42\ See 81 FR 87686, 87691 (Dec. 5, 2016).
    \43\ See 15 U.S.C. 1681a(f). This statute defines ``consumer
reporting agency'' as ``any person which, for monetary fees, dues,
or on a cooperative nonprofit basis, regularly engages in whole or
in part in the practice of assembling or evaluating consumer credit
information or other information on consumers for the purpose of
furnishing consumer reports to third parties, and which uses any
means or facility of interstate commerce for the purpose of
preparing or furnishing consumer reports.''
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J. Major Issues on Which the Agency Seeks Comment

    1. The NPRM proposes that SDLAs be prohibited from completing
certain CLP or CDL transactions if the driver is subject to the CMV
driving prohibition in Sec.  382.501(a), resulting in non-issuance. Do
you agree with that proposal? Why or why not?
    2. In addition to non-issuance, should SDLAs be required to
downgrade the license of CMV drivers subject to the driving
prohibition, as proposed in FMCSA's preferred alternative? Why or why
not?
    3. How would SDLAs choosing to receive notice of a driver's
prohibited CMV driving status, as proposed in the second alternative,
use the information to enforce the prohibition? For example, would the
State enact a law to suspend the CLP or CDL of affected drivers?
    4. The Agency's preferred alternative proposes that SDLAs must
complete and record the downgrade on the CDLIS driver record within 30
days after receiving notice that a driver is prohibited from operating
a CMV due to a drug and alcohol program violation. Does 30 days allow
sufficient time to complete and record the downgrade? If not, please
explain why more time would be needed.
    5. If the SDLA removes the CLP or CDL privilege, or takes other
action on the license or driving record, based on information that
FMCSA subsequently corrects or removes from the Clearinghouse, should
FMCSA determine how States would reinstate the privilege and/or amend
the driving record, or should that process be left to the States? Do
SDLAs currently have established processes to correct errors on an
individual's license or driving record?
    6. Based on SDLAs' experience with the medical certification
downgrade requirements currently in effect under Sec.  383.73(o)(4),
how long does it take to reinstate the CLP or CDL privilege to the
driver's license?
    7. If a driver's license is downgraded, he or she may incur costs,
including fees associated with license reinstatement; time spent
complying with reinstatement requirements; or the inability to earn
income from driving during the period after RTD is completed, but
before the license is reinstated. FMCSA invites comment, including
quantitative data, addressing the economic impact of the proposed
downgrade.
    8. How would the proposed non-issuance and downgrade rules impact
SDLAs and drivers in States allowing commercial licensing transactions,
such as renewals, upgrades and transfers, to be completed online?
    9. How can FMCSA electronically transmit Clearinghouse information
to the SDLAs most efficiently (e.g., by using the existing CDLIS
platform, a web-based service, or some other automated means)? What are
the pros and cons of these transmittal options?
    10. How would the two options proposed for electronically
transmitting Clearinghouse information (i.e., CDLIS or a web-based
alternative) impact the States in terms of cost? Please be as specific
as possible when answering this question, and include, for example,
one-time development costs, as well as the cost of ongoing operation
and maintenance, if applicable.
    11. In addition to IT-related costs, driver and motor carrier
opportunity

costs, and the cost incurred by drivers to have their CLP or CDL
privilege reinstated, are there other costs to SDLAs that the Agency
should consider in evaluating the regulatory impact of the proposed
requirements?
    12. How much time do the SDLAs need to adapt their IT systems and
implement related processes to request, receive, and act on information
from the Clearinghouse, as proposed in this NPRM? Please indicate
whether the amount of time needed would vary according to the method of
electronic transmission (i.e., CDLIS or web-based), and whether the
proposed downgrade would impact the time needed to make IT system
changes.
    13. Can the SDLAs that, under State law, currently disqualify CDL
holders from operating a CMV due to violations of FMCSA's drug and
alcohol program, provide quantitative or qualitative data addressing
the safety benefit of those requirements?

VI. International Impacts

    The specific impact of this NPRM on foreign-licensed drivers
operating a CMV in the United States is discussed above in section V.E.

VII. Section-by-Section Analysis

    This section includes a summary of the regulatory changes proposed
for 49 CFR parts 382, 383, 384, 390, and 392, organized by section
number.

A. Proposed Changes to Part 382

    Part 382 establishes controlled substances and alcohol use and
testing requirements for CLP and CDL holders and employers of such
persons. FMCSA proposes to amend 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.
Under the mandatory downgrade alternative, the section would be revised
by designating the current provision as new paragraph (a). New
paragraph (b) would be added to clarify that drivers whose licenses
were downgraded due to a drug or alcohol testing violation cannot
resume driving a CMV until the CLP or CDL privilege has been
reinstated.
Section 382.717
    Under Sec.  382.717(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 DUI in a CMV, if the citation did not
result in the driver's conviction. This sub-paragraph would be revised
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
    This section would be revised to require that SDLAs request
information from the Clearinghouse for CLP applicants. A driver
applying for a CLP would be deemed to have consented to the release of
information from the Clearinghouse.

B. Proposed Changes to Part 383

    Part 383 sets forth the requirements for the issuance and
administration of CLPs and CDLs. FMCSA proposes to amend part 383 in
the following ways.
Section 383.5
    Under the mandatory downgrade alternative, the definition of ``CDL
downgrade'' would be revised to clarify that the CDL privilege is
removed from the driver license by changing the commercial status from
``licensed'' to ``eligible'' on the CDLIS driver record. A new
definition of ``CLP downgrade'' would be added, clarifying that the CLP
privilege is removed from the driver license by changing the permit
status from ``licensed'' to ``eligible'' on the CDLIS driver record.
Section 383.73
    Paragraph (a): Sub-paragraph (3) would be added to paragraph (a) to
require that States request information from the Clearinghouse prior to
CLP issuance, renewal or upgrade, beginning on the date established by
the final rule resulting from this NPRM. If, in response to that
request, FMCSA notifies the SDLA that the driver is prohibited from
operating a CMV, the SDLA would not complete the CLP licensing
transaction. Further, under the proposed mandatory downgrade
alternative, if the applicant holds a CLP from that State at the time
of the requested transaction, SDLAs would be required to initiate the
downgrade process at that time, as set forth in new paragraph (q).
    Paragraphs (b)(10); (c)(10); (d)(9); (e)(8) and (f)(4): These
paragraphs address the issuance, transfer, renewal, or upgrade of a
CDL, and the issuance, renewal, upgrade, or transfer of a non-domiciled
CDL or CLP, respectively. Paragraph (f)(4) would be revised to include
non-domiciled CLPs. Paragraphs (b)(10), (c)(10), (d)(9), (e)(8), and
(f)(4) would each be revised to require that, beginning on the date
established by the final rule resulting from this NPRM, States request
information from the Clearinghouse incident to the specified licensing
transaction. If, in response to that request for information, FMCSA
notifies the SDLA that, pursuant to Sec.  382.501(a), the individual is
prohibited from operating a CMV, the SDLA would not complete the
specified CDL, non-domiciled CDL, or non-domiciled CLP transaction.
Under the mandatory downgrade alternative, the State would be required
to initiate the downgrade process at that time, as set forth in new
paragraph (q).
    New paragraph (q): Under the preferred alternative, this new
paragraph specifies the actions that SDLAs would be required to take
upon receipt of information from the Clearinghouse, as proposed under
the mandatory downgrade alternative. SDLAs, upon receiving notification
from FMCSA that the driver is prohibited from operating a CMV due to a
drug and alcohol program violation, would be required to initiate
established State procedures to downgrade the license. States would be
required to complete and record the CLP or CDL downgrade on the CDLIS
driver record within 30 days of receiving notification from FMCSA that
the driver is prohibited from operating a CMV. 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, would terminate the downgrade process
at that point. Drivers who complete RTD after the downgrade is
completed and recorded by the SDLA would be eligible for reinstatement
of the CLP or CDL privilege to their driver license. Under Alternative
#2, States who elect to receive push notifications from the
Clearinghouse would be required to use such information in accordance
with Sec.  382.725(c).

C. Proposed Changes to Part 384

    The purpose of Part 384 is to ensure that the States comply with
the provisions of section 12009(a) of the Commercial Motor Vehicle
Safety Act of 1986 (49 U.S.C. 31311(a)). FMCSA proposes to amend part
384 in the following ways.
Section 384.225
    Under the mandatory downgrade alternative, this section would be
revised by adding new sub-paragraph

(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
license in accordance with Sec.  383.73(q).
Section 384.235
    This Agency has proposed, in a separate rulemaking, that the State,
beginning December 13, 2019 (84 FR 68052) must request information from
the Clearinghouse in accordance with Sec.  383.73. The section would be
amended by replacing the current compliance date with the date
established by the final rule resulting from this NPRM, and by adding
that the State must comply with the provisions of Sec.  383.73
applicable to non-issuance. Under the mandatory downgrade alternative,
additional text would be added to require compliance with those
requirements. Under Alternative #2, additional text would be added to
require States to adhere to the permissible use of information received
from the Clearinghouse.
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). New paragraph (m)
would be added to require that the State be in substantial compliance
with the requirements in Sec. Sec.  383.73 and 384.235 no later than
the compliance date established by the final rule resulting from this
NPRM.

D. Proposed Changes to Part 390

    This part, entitled ``Federal Motor Carrier Safety Regulations;
General'', establishes general applicability, definitions, general
requirements and information as they pertain to persons subject to 49
CFR chapter 3. FMCSA proposes to amend Sec.  390.3T(f)(1) to add the
newly proposed Sec.  392.13, described below, to the list of provisions
that remain applicable to school bus operations as defined in Sec.
390.5T. FMCSA also proposes to amend Sec.  390.3(f)(1) in the same way;
this amendment would become effective on the date that Sec.
390.3T(f)(1) is no longer in effect.

E. Proposed Changes to Part 392

    This part, entitled ``Driving of Commercial Motor Vehicles'', sets
forth requirements pertaining to the management, maintenance, operation
or driving of CMVs. New section 392.13, ``Driving prohibition,'' would
be added to prohibit any driver subject to Sec.  382.501(a) from
operating a CMV.

VIII. Regulatory Analyses

A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 (Improving
Regulation and Regulatory Review), and DOT Regulations

    Under E.O. 12866, ``Regulatory Planning and Review'' (issued
September 30, 1993, published October 4 at 58 FR 51735, as supplemented
by E.O. 13563 and DOT policies and procedures, FMCSA must determine
whether a regulatory action is ``significant'' and therefore subject to
Office of Management and Budget (OMB) review. E.O. 12866 defines
``significant regulatory action'' as one likely to result in a rule
that may: (1) Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal government or communities.
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency. (3) Materially alter the
budgetary impact of entitlements, grants, user fees, or loan programs
or the rights and obligations of recipients thereof. (4) Raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles. OMB has determined that this proposed
rule is not a significant regulatory action under Executive Order
12866, Regulatory Planning and Review.
    As described above, the proposed 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. Additionally, under the
Agency's preferred alternative, SDLAs would be required to downgrade
the CLP or CDL of drivers who are prohibited from operating a CMV due
to drug and alcohol program violations. Depending on which of the
alternatives for the use of Clearinghouse information, and which method
for transmitting Clearinghouse information to the SDLAs is selected,
the proposed rule would result in differences in the costs, as well as
the extent to which all or some of the entities would be affected by
the rule (i.e., SDLAs, drivers, motor carriers and FMCSA). The FMCSA
also believes that the proposed rule would result in an increase in
safety benefits. These factors are discussed below.
Need for Regulation
    The 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, a driver who violates
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 roadside 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.\44\ The
NPRM would address this failure by improving the flow of information to
SDLAs and enforcement officials from the Clearinghouse.
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    \44\ Office of Management and Budget, CircularA-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 August 1, 2019).
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Costs
    The RIA published with the Clearinghouse final rule assumed that
SDLAs would incur no costs to query the Clearinghouse using CDLIS.
However, the final rule 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 the
proposed rule.
    The estimated cost of the proposed rule varies based on the
alternative the Agency ultimately selects for the licensing action
SDLAs would take in response to a positive test reported in the
Clearinghouse. The estimated cost also depends on the method used to
electronically transmit information from the Clearinghouse to SDLAs.
The choice of two alternatives for SDLA use of Clearinghouse
information, and the choice of two methods to transmit Clearinghouse
information to SDLAs, results in four options the Agency is
considering. The Agency notes that the non-issuance requirement
pertaining to SDLAs' query of the Clearinghouse prior to completing a
licensing transaction would apply to both Alternative #1 and
Alternative #2, and thus, applies to the four options the Agency is
considering.
    The Agency estimates the cost of Alternative #1 (mandatory
downgrade), transmitting Clearinghouse information to the SDLAs using
Method #1 (CDLIS), at $44.0 million over 10 years with an annualized
cost of $4.4 million. At a 7

percent discount rate, the 10-year cost is estimated at $32.8 million,
with an annualized cost at a 7 percent discount rate is estimated at
$4.7 million.
    Alternative #1 (mandatory downgrade) using Method #2 (web services/
API) is estimated to cost $25.5 million over the 10-year analysis
period. The annualized cost is estimated at $2.5 million. At a 7
percent discount rate, the 10-year total cost is estimated at $18.5
million. The annualized cost is estimated at $2.6 million.
    The Agency estimates the cost of Alternative #2 (optional notice of
prohibited status), with data transmitted using Method #1 (CDLIS), at
$28.0 million. The annualized cost is estimated at $2.8 million. At a 7
percent discount rate the 10-year total cost is estimated at $21.5
million. The annualized cost is estimated at $3.1 million. The
estimated costs of Alternative #2 with data transmitted using Method #2
over the 10-year analysis period is estimated at $9.4 million. The
annualized cost is estimated at $0.9 million. At a 7 percent discount
rate, the estimated 10-year cost is $7.2 million. The annualized cost
is estimated at $1.0 million.
    Although the alternatives addressing the SDLAs' use of
Clearinghouse information and the method by which the information would
be electronically transferred vary, they all include consideration of
SDLA and FMCSA IT development costs, and annual operating and
maintenance (O&M) expenses. Driver opportunity costs and reinstatement
costs, and motor carrier opportunity costs, are considered under
Alternative #1 only, because they would be incurred because of the
proposed rule. With respect to Alternative #2, the States would
determine whether to receive the Clearinghouse information to enforce
the driving prohibition. Thus, State law or policy, and not the
proposed rule would cause drivers to incur opportunity costs and
reinstatement costs.
Electronic Transmission Method #1: Information Transfer via CDLIS
    Method #1 would transmit Clearinghouse information to the SDLAs
using the existing CDLIS technology platform. SDLAs, in conducting the
required query, prior to issuing, renewing, upgrading or transferring a
commercial license, would check the CDLIS driver record in order to
ensure that the driver has not been disqualified in another State and
that other regulatory requirements have been met. The proposed rule, by
electronically linking the CDLIS pointer system to the Clearinghouse,
the record check would 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 would comply
with the requirement that they request information from the
Clearinghouse by initiating a check of the CDLIS driver record. No
additional query or request by the SDLA would be required at the time
of the licensing transaction.
    Because SDLAs already perform CDLIS driver record checks when
engaging in a commercial license transaction, FMCSA finds that SDLAs
would not incur labor costs to ``pull'' Clearinghouse information
through CDLIS by performing a query.\45\ 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,