[Federal Register Volume 86, Number 192 (Thursday, October 7, 2021)]
[Rules and Regulations]
[Pages 55718-55743]
[FR Doc No: 2021-21928]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

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

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

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

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

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION: This final rule is organized as follows:

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

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

I. Rulemaking Documents

Availability of Rulemaking Documents

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

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

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

B. Summary of Major Provisions

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

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

C. Costs and Benefits

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

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

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

III. Abbreviations and Acronyms

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

IV. Legal Basis for the Rulemaking

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

V. Background

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

A. Purpose and Intent of State-Related Clearinghouse Requirements

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

B. AAMVA's Petition for Reconsideration

    Following FMCSA's publication of the 2016 Clearinghouse final rule,
AAMVA, asserting that ``[t]he authority for taking action based on
federal clearinghouse records should remain solely with the employer
and FMCSA,'' \11\ requested that FMCSA remove SDLAs from the scope of
the rule. In response, the Agency explained that, because MAP-21
requires the States to access Clearinghouse information in order to
avoid a loss of funds apportioned from the Highway Trust Fund (49
U.S.C. 31311(a)(24)), MAP-21 did not vest in FMCSA the discretion to
``remove'' the States from the Clearinghouse process.\12\ Further, the
Agency does not have authority to issue or remove CDLs, which is
exclusively a State function.
---------------------------------------------------------------------------

    \11\ See AAMVA Petition for Reconsideration of the Commercial
Driver's License Drug and Alcohol Clearinghouse Final Rule (June 29,
2017), Docket No. FMCSA-2011-0031. AAMVA petitioned for
reconsideration of the Clearinghouse final rule but did not submit
the petition within 30 days after publication of the rule in the
Federal Register, as required by 49 CFR 389.35(a). Therefore, in
accordance with 49 CFR 389.35(a), the Agency considers AAMVA's
submission to be a petition for rulemaking submitted under 49 CFR
389.31.
    \12\ See Letter from Raymond Martinez (FMCSA) to Anne Ferro
(AAMVA) (Apr. 12, 2018), p. 2, Docket No. FMCSA-2011-0031.
---------------------------------------------------------------------------

    In its petition, AAMVA also identified questions and concerns
related to the States' role in the Clearinghouse, which were not
addressed in the 2016 final rule. These included: What specific
information would States receive about an individual CDL holder or
applicant; how would States be expected to use information they receive
from the Clearinghouse; how would the privacy of driver-specific
Clearinghouse information transmitted to the States be protected; how
would erroneous Clearinghouse information be corrected; to what extent
would foreign-licensed drivers be included in the query and reporting
process; and what would be the cost implications for the SDLAs. FMCSA
agreed that AAMVA raised legitimate issues regarding the States' use of
driver-specific Clearinghouse information and granted AAMVA's request
for regulatory clarification. This final rule addresses the issues
identified by AAMVA.

C. Impact of MAP-21 on State Laws

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

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

VI. Discussion of Proposed Rulemaking and Comments

A. Proposed Rulemaking

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

B. Comments and Responses

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

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

    \13\ See 85 FR 23670, 23688. As discussed in the NPRM, this
estimate is based on: (1) The assumption, as stated in the
Regulatory Impact Analysis for the Clearinghouse final rule, that 75
percent of drivers violating FMCSA's drug and alcohol program would
be referred to a 16-hour education program that can be completed
well within 30 days; and (2) a 2018 report, issued by HHS' Substance
Abuse and Mental Health Services Administration, indicating that 82
percent of individuals receiving substance abuse treatment
participated in outpatient education programs.
---------------------------------------------------------------------------

    FMCSA response: FMCSA accepts the SDLAs' explanation that they must
abide by the driver notification requirements in their respective
States, even if FMCSA notifies the driver that

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

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

    \15\ Nlets, formerly the National Law Enforcement
Telecommunications System, is now operating as the Nlets-
International Justice and Public Safety Network. Its mission is to
facilitate the electronic exchange of public-safety information,
including motor vehicle and drivers' data, among State law
enforcement agencies, Federal agencies with a justice component, and
other strategic partners serving the law enforcement community.
---------------------------------------------------------------------------

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

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

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

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

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

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

    \18\ 82 FR 23670, 23679-23680. MAP-21 excepts from Federal
preemption State requirements relating to ``an action taken with
respect to a commercial motor vehicle operator's commercial driving
license or driving record'' due to a verified positive test result,
a test refusal, or other violations of 49 CFR part 382, subpart B
(49 U.S.C. 31306a(l)(3)).
    \19\ AAMVA CDLIS State Procedures Manual, Release 5.3.3 (Dec.
2015), at 95; AAMVA CDLIS Technical Specifications Manual, Release
5.3.3 (Dec. 2015), at pp. 669-70; 683.
---------------------------------------------------------------------------

Integration of Clearinghouse and Medical Fitness Requirements
    Comments: AAMVA observed that the Agency's citation of 49 U.S.C.
31305(a), which requires the Secretary to prescribe minimum standards
for testing and fitness of CMV drivers, ``implies that [Clearinghouse]
program requirements are directly linked to medical fitness
requirements rather than any new or additional requirements.'' AAMVA
further stated: ``. . . from a policy standpoint, if drug and alcohol
testing failures are to be comprehensively considered as part of
`medical fitness' it seems those programs should also be contracted as
a single, comprehensive source for making medical fitness
determinations by external entities (including SDLAs)'' (emphasis in
original).
    FMCSA Response: Because fitness,\20\ as the term is used in 49
U.S.C. 31305(a), is not defined in statute, FMCSA interprets the term
according to its plain meaning. For example, the Oxford Dictionary
defines fitness as, alternatively, ``the condition of being physically
fit and healthy,'' or ``the quality of being suitable to fulfill a
particular role or task.'' The Agency's reference to 49 U.S.C. 31305(a)
simply reflects that CLP or CDL holders or applicants who are subject
to the prohibition in 49 CFR 382.501(a) are not ``fit'' to operate a
CMV. FMCSA did not, therefore, intend to imply a ``direct link''
between its drug and alcohol program requirements in 49 CFR part 382
and medical certification requirements in 49 CFR part 391, subpart E.
The two sets of regulatory requirements each have distinct purposes and
underlying statutory authorities. These programs have always been
administered separately, and the NPRM did not propose to change that.
---------------------------------------------------------------------------

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

---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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

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

VII. International Impacts

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

VIII. Privacy Act Applicability

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

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

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

IX. Explanation of Changes From the NPRM

49 CFR Part 382

    Currently 49 CFR 382.725(a)(1) permits SDLAs to access DACH
information for CDL applicants on a voluntary basis until January 6,
2023; subparagraph (a)(2) requires the SDLA to check the DACH prior to
issuing a CDL on or after January 6, 2023. In the NPRM, FMCSA proposed
to revise 49 CFR 382.725 by combining subparagraphs (a)(1) and (2),
which would account for the fact that, as of the compliance date of
this final rule, subparagraph (a)(1), granting SDLAs' permissive access
to the DACH, would be moot. However, FMCSA's proposed revision
inadvertently eliminated the permissive Clearinghouse access provision
for SDLAs, which the Agency adopted in the 2019 final rule extending
the compliance date for the SDLA's mandatory query requirements in 49
CFR 382.725 and 383.73.\26\ FMCSA added subparagraph (1) to 49 CFR
382.725(a) in 2019 so that States wishing to voluntarily access the
DACH could do so until the compliance date established by this final
rule. Consistent with that intent, the Agency retains 49 CFR
382.725(a)(1) and changes the compliance date to November 18, 2024.
FMCSA also revises subparagraph (a)(1) to clarify that SDLAs may check
the DACH record of CLP applicants. As proposed, FMCSA updates the
compliance date for the mandatory query and requires that CLP holders
be included within the scope of the mandatory query in
subparagraph(a)(2). The Agency adopts the proposed revisions to 49 CFR
382.503 and 382.717 without change.
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    \26\ 84 FR 68052 (Dec.13, 2019).
---------------------------------------------------------------------------

49 CFR Parts 390 and 392

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

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

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

49 CFR 383.73(q)

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

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

49 CFR 383.5

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

X. Section-by-Section Analysis

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

A. Part 382

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

B. Part 383

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

C. Part 384

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

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

D. Part 390

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

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

E. Part 392

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

XI. Regulatory Analyses

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

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

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

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

CDLIS by performing a query. The Agency also assumes that AAMVA would
not charge SDLAs additional CDLIS-related costs to receive driver-
specific violation information ``pushed'' to the SDLAs by FMCSA,
because CDLIS already provides daily updates of licensing information
to the SDLAs. FMCSA intends that Clearinghouse information would be an
additional data element included in the daily transmission. Thus, the
Agency finds that SDLAs will not incur transaction-specific CDLIS costs
as a result of this rule.
    Using the existing CDLIS platform will result in costs to SDLAs for
initial system development, and to make the needed upgrades and
modifications, as well as ongoing operations and maintenance expenses.
In the NPRM, the Agency reviewed four SDLA grant applications submitted
in 2017 for IT system upgrades needed to interface and receive
information from the NRCME database, and used the grant applications as
a proxy for the IT development costs SDLAs would incur using CDLIS to
access Clearinghouse information. FMCSA estimated that each SDLA's IT
development costs would total approximately $200,000. In preparation
for the final rule, FMCSA reviewed 2020 Commercial Driver's License
Program Implementation (CDLPI) grant applications and found that four
States requested funds focused on the Clearinghouse, with an average
cost of $300,000. However, some of these applications deal with
Clearinghouse issues unrelated to this final rule, and thus FMCSA
assumes that $300,000 per SDLA would be an overestimate for costs
attributed to using the CDLIS platform.
    SDLAs will also have the option of transmitting information from
the Clearinghouse to the SDLAs using a web-based services call, which
relies on cloud-based technology. The capacity for this alternative
would reside within the DOT's Amazon Web Service (AWS) cloud. By using
the DOT AWS cloud, FMCSA would be able to make efficient updates to the
system on an as-needed basis. As explained below, FMCSA anticipates