Attachment D: Final Rule 67 FR 49742

Wednesday,
July 31, 2002

Part II

Department of
Transportation
Federal Motor Carrier Safety
Administration
49 CFR Parts 350, et al.
Commercial Driver’s License Standards,
Requirements and Penalties; Commercial
Driver’s License Program Improvements
and Noncommercial Motor Vehicle
Violations; Final Rule

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

PO 00000

Frm 00001

Fmt 4717

Sfmt 4717

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49742

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 350, 383, 384 and 390
[Docket Nos. FMCSA–2001–9709 and
FMCSA–00–7382]
RIN 2126–AA60 and RIN 2126–AA55

Commercial Driver’s License
Standards, Requirements and
Penalties; Commercial Driver’s
License Program Improvements and
Noncommercial Motor Vehicle
Violations
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Final rule.
SUMMARY: The FMCSA revises its
Commercial Driver’s License (CDL)
Program. The Motor Carrier Safety
Improvement Act of 1999 (MCSIA)
mandates these revisions. They are
designed to enhance the safety of
commercial motor vehicle (CMV)
operations on our nation’s highways by
ensuring that only safe drivers operate
CMVs.
EFFECTIVE DATE: September 30, 2002.
The incorporation by reference of
certain publications in this rule is
approved by the Director of the Federal
Register as of September 30, 2002.
FOR FURTHER INFORMATION CONTACT: Mr.
Robert Redmond, Office of Safety
Programs, (202) 366–5014, Federal
Motor Carrier Safety Administration,
400 Seventh Street, SW., Washington,
DC 20590. Office hours are from 7:45
a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION

Regulatory Information
The FMCSA published two Notices of
Proposed Rulemaking (NPRMs) [66 FR
22499 on May 4, 2001 and 66 FR 39248
on July 27, 2001] to amend various
provisions of parts 350, 383, 384 and
390 of Title 49 Code of Federal
Regulations (CFR) to implement
congressionally mandated changes.
Nearly 200 comments were received in
response to these two NPRMs. Both
NPRMs are being finalized in this
action.
This rule uses plain language so that
individuals unfamiliar with FMCSA
regulations will find it easier to follow.
We are making the text clearer,
standardizing terms, changing to the
active voice, reorganizing material for
added clarity, inserting or revising
headings to reflect content accurately,
and correcting typographical,

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

punctuation, and grammatical errors.
The FMCSA is also revising the
disqualification sanctions found
in§ 383.51 by organizing them into an ifthen table format that we believe is
easier to understand than the current
regulatory text.
Background
The Commercial Motor Vehicle Safety
Act of 1986 (CMVSA) [Public Law 99–
570, Title XII, 100 Stat. 3207–170, 49
U.S.C. chapter 313] established the
Commercial Driver’s License (CDL)
Program and the Commercial Driver’s
License Information System (CDLIS) to
serve as a clearinghouse and repository
of commercial driver licensing and
conviction data. The CMVSA also
requires States to ensure that drivers
convicted of certain serious traffic
violations be prohibited from operating
a CMV. The Secretary of Transportation
was directed to monitor the States’
compliance with the standards
established under the CMVSA. The goal
of the CMVSA is to improve highway
safety by ensuring that drivers of large
trucks and buses are qualified to operate
those vehicles and to remove unsafe and
unqualified drivers from the highways.
In 1994, the agency initiated a study
to evaluate the effectiveness of the CDL
program. The final report, submitted to
Congress in 1999, documented
vulnerabilities within the CDL program
and provided recommendations to
correct them.
Responding in part to the findings of
this report, Congress passed the Motor
Carrier Safety Improvement Act of 1999
(MCSIA) [Public Law 106–159,113 Stat.
1748]. The MCSIA amended numerous
provisions of title 49 of the United
States Code relating to the licensing and
sanctioning of CMV drivers required to
hold a CDL, and directed the
Department of Transportation (DOT) to
amend its regulations to correct specific
weaknesses in the CDL program.
This rule also clarifies the FMCSA
relationship to the Commercial Driver’s
License Information System (CDLIS).
Section 12007 of the CMVSA, codified
as 49 U.S.C. 31309, requires the
Secretary of Transportation to establish
or designate an information system to
serve as the clearinghouse and
depository of information about any
person who operates CMVs, including
his/her identification, licensing history,
and disqualification history. This
system, known as CDLIS, also includes
information about a person required to
have a CDL who has been convicted of
any of the disqualifying offenses listed
in 49 CFR 383.51.
In 1988, the Federal Highway
Administration (FHWA) entered into an

PO 00000

Frm 00002

Fmt 4701

Sfmt 4700

agreement pursuant to 49 U.S.C. 31309
with the American Association of Motor
Vehicle Administrators and its former
affiliate AAMVAnet, Inc.1 (AAMVAnet),
to establish a communications network
to implement the CDLIS. The agreement
designated AAMVAnet the CDLIS
operator. Section 106(b) of MCSIA,
transferred the agreement from the
FHWA to the FMCSA where it remains
in effect until the FMCSA modifies or
terminates it. A copy of the 1988
agreement is in the public docket.
Because States regularly utilize
AAMVAnet to access the CDLIS to
obtain and transmit information on CDL
drivers, the AAMVAnet agreement and
CDLIS operational procedures are being
incorporated by reference into this
rulemaking.
The following commentary will
analyze the content of the regulations
and address significant issues raised in
comments received in response to the
NPRMs.
Section-by-Section Discussion of
Comments with FMCSA Response
Section 350.217—What Are the
Consequences for a State With a CDL
Program Not in Substantial Compliance
With 49 CFR Part 384, Subpart B?
Section 103(e) of the MCSIA requires
the FMCSA to withhold all Motor
Carrier Safety Assistance Program
(MCSAP) grant funds authorized under
Section 103(b)(1) of MCSIA from States
not in substantial compliance with 49
CFR part 384, subpart B. This new
sanction is added to the one currently
contained in 49 CFR part 384, subpart
D requiring the agency to withhold five
percent of some of a State’s Federal-aid
highway funds following the first year
of noncompliance and 10 percent of
such funds following the second and
subsequent years of noncompliance.
Fifteen States and State affiliated
associations commenting on this
provision oppose the withholding of
MCSAP funds from States not in
substantial compliance with the Federal
Motor Carrier Safety Regulations
(FMCSRs). Of particular concern was
the fact that the agencies facing the
potential loss of MCSAP funds,
primarily law enforcement agencies,
have no direct control over compliance
by other State agencies, particularly the
courts. Compliance with the proposed
10-day conviction reporting requirement
of 49 CFR 384.209 is the issue which
raises the greatest concerns. One agency
also proposes that the withholding of
MCSAP funding requirement be
1 On May 31, 2002, AAMVAnet, Inc. was merged
into AAMVA. AAMVAnet, Inc. no longer exists as
a separate corporation.

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
amended to adopt the same formula
used to withhold highway funding from
States in substantial noncompliance.
The FMCSA understands these
concerns, but is bound by statutory
language of the MCSIA requiring the
withholding of MCSAP funds from
those States found to be in substantial
noncompliance with 49 CFR part 384,
subpart B. The FMCSA urges each
State’s chief executive to coordinate the
efforts of all State agencies—including
the judiciary—to ensure their
compliance with these requirements.
Section 383.5—Definitions.
Section 383.5 will add four new
definitions and change four existing
definitions of terms used in 49 CFR
parts 383 and 384 to implement
provisions of the MCSIA. The new
definitions include ‘‘fatality,’’
‘‘imminent hazard,’’ ‘‘non-CMV,’’ and
‘‘school bus.’’ The revised definitions
include ‘‘disqualification,’’ ‘‘driving a
commercial motor vehicle while under
the influence of alcohol,’’ ‘‘nonresident
CDL,’’ and ‘‘serious traffic violation.’’
The term ‘‘serious traffic violation’’ is
being amended to add three new
offenses to the existing list of offenses
warranting disqualification of a CDL
holder.
The FMCSA has added a new
definition for the term ‘‘non-CMV’’ to
identify the vehicles types in which—if
a driver is convicted of committing a
serious traffic offense other than those
specifically limited to commercial
vehicles—he/she is subject to
disqualification.
One commenter suggested that the
definition of ‘‘fatality’’ be revised to be
consistent with current Federal
definitions, without providing an
example of the preferred definition(s).
FMCSA notes that the 49 CFR 390.5
fatality definition— ‘‘ * * * any injury
which results in the death of a person
at the time of the motor vehicle accident
or within 30 days of the accident’’
(emphasis added)—is primarily used
within the context of fatality reporting.
Because the new 49 CFR part 383
definition is to be used within the
context of driver sanctions, FMCSA has
deleted the reference to a 30-day time
period. Otherwise a driver involved in
an accident which results in a death
more than 30 days after the accident
could possibly avoid sanctions. Such an
effect is both inconsistent with the
objective of CDL sanctioning
requirements and contrary to general
principles of common law under which
any death occurring within one year of
the event may be charged criminally.
FMCSA recognizes, of course that a
death which occurs long after an

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

accident may have a proximate cause or
causes other than the injuries sustained
in the accident. Therefore, the deletion
of the ‘‘30-day’’ reference is in no way
intended to weaken the causal link
necessary to qualify as a fatality.
Seven commenters proposed revisions
to the definition of ‘‘school bus.’’ Three
proposed that the FMCSA use the
National Highway Traffic Safety
Administration (NHTSA) definition or
that the term only include vehicles that
transport 16 or more passengers
including the driver; while two
proposed that the passenger capacity be
lowered to 10 or more passengers. Two
other commenters objected to the
proposed definition, but offered less
specific comments. The FMCSA has
reviewed the NHTSA definition and
believes that the proposed definition is
consistent with it, except for using the
term CMV. The term CMV was included
in the ‘‘school bus’’ definition because
only vehicles meeting the CMV
definition are subject to the CDL
licensing requirements of 49 CFR part
383, including the new school bus
endorsement. As with other CDL
requirements in 49 CFR part 383, the
school bus definition is intended to
establish a minimum standard. A State
is free to establish more stringent
standards for CDL drivers. Allowable
variations to the school bus definition
include lowering the vehicle passenger
capacity threshold for which a school
bus endorsement is required. For these
reasons, the FMCSA has included the
‘‘school bus’’ definition proposed in the
NPRM to this final rule.
The commentary to § 383.23 discusses
comments concerning the definition of
‘‘nonresident CDL.’’
One commenter questioned the
different terminology proposed in the
NPRM for one of the serious traffic
violations described in Sec. 201(c) of
MCSIA. New 49 U.S.C. 31301(12)(F)
reads:
‘‘(F) Driving a commercial motor vehicle
when the individual has not met the
minimum testing standards—
(i) Under section 31305(a)(3) for the
specific class of vehicle the individual is
operating; or
(ii) Under section 31305(a)(5) for the type
of cargo the vehicle is carrying; and.’’

Paragraph (h) under the § 383.5
definition for ‘‘serious traffic violation’’
reads ‘‘Driving a CMV without the
proper class of CDL and/or
endorsements for the specific vehicle
group being operated or for the
passengers or type of cargo being
transported.’’ The FMCSA believes that
the revised language more clearly
conveys congressional intent that only
those drivers who are fully qualified to

PO 00000

Frm 00003

Fmt 4701

Sfmt 4700

49743

operate a specific vehicle be allowed to
operate it. The evidence that a driver
has met the minimum CDL testing
standards is that he/she has been issued
a CDL and all required endorsements for
the class and specific type of CMV he/
she intends to operate.
Section 383.7—Validity of CDL Issued
by Decertified State.
Sec. 383.7 is a new provision to
clarify that a CDL issued by a State
subsequently prohibited from issuing
CDLs under 49 CFR 384.405 remains
valid until expiration. Based upon the
fact that FMCSA received no opposing
comments and a single supporting
comment on this provision, it is
included in the final rule as proposed.
Section 383.23—Commercial Driver’s
License.
Section 383.23 has been amended to
allow a driver who is domiciled in a
State that has been prohibited (under
the decertification provisions found in
§ 384.405) from issuing CDLs, to apply
for a nonresident CDL from any other
State that is both in compliance with
such decertification provisions and
elects to issue nonresident CDLs.
References to the date ‘‘April 1, 1992’’
have also been deleted from this section
because the date referred to a
compliance deadline which is no longer
relevant.
Six States expressed concern that the
proposed new language in this section
would require them to issue nonresident
CDLs to drivers living in States that had
been decertified. The intent of this new
language was to authorize, but not
require States to issue nonresident CDLs
to such drivers. The FMCSA has added
language to the final rule to clarify this
issue.
A State objected that allowing States
to issue nonresident CDLs to drivers
domiciled in other States would result
in confusion over State-specific
endorsements. Because the agency
anticipates that the sanction under
§ 384.405 will rarely be invoked, the
FMCSA believes that State-specific
endorsements will not pose a significant
problem to States issuing nonresident
CDLs or States taking enforcement
action against drivers possessing
nonresident CDLs.
Section 383.51—Disqualification of
Drivers.
Section 383.51 has been revised to
incorporate requirements of Section 201
of the MCSIA. These revisions include:
imposing a disqualification on CDL
drivers who have been convicted of
traffic offenses while operating a nonCMV which result in their license being

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49744

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

canceled, revoked or suspended; or of
committing drug or alcohol related
offenses while driving a non-CMV; and
adding two new disqualifying offenses:
driving a CMV after the driver’s CDL
was revoked, suspended or canceled for
violations while operating a CMV and
causing a fatality through the negligent
or criminal operation of a CMV. As
discussed in the commentary to § 383.5,
three new offenses are being added to
the serious traffic violations for which a
driver can be disqualified if convicted
two or more times within a three-year
period. These three new offenses are: (1)
Driving a CMV when the driver has not
obtained a CDL, (2) driving a CMV
without a CDL in the driver’s
possession, and (3) driving a CMV
without having met the minimum
testing standards for the specific class of
CMV being operated or for the type of
cargo being transported on the vehicle.
This section is also being amended to
specify the disqualification period for
first-time and subsequent offenders.
The CMVSA originally required the
disqualification of drivers only for
offenses committed while operating a
CMV (49 U.S.C. 31310). The MCSIA
made additional offenses disqualifying,
even if they were committed while
operating a non-CMV. For these
offenses, the Secretary of Transportation
is required to specify the
disqualification periods to be imposed
by the States.
In addition, the FMCSA is clarifying
that any person who operates a CMV
must first obtain a CDL and that these
drivers are subject to the same
disqualification period as a CDL holder.
While the MCSIA addresses the type of
offenses that must result in a
disqualification if committed in a nonCMV, it is silent regarding the length of
the CMV disqualification, requiring only
that the disqualification period be no
longer than the disqualification period
for the same or similar offenses
committed while operating a CMV.
Based on this language, the FMCSA has
added language to this section clarifying
that CDL holders convicted of serious
traffic violations and other offenses in
either a non-CMV or a CMV serve the
same period of disqualification.
The revised § 383.51 lists both the
CMV convictions of CDL holders for the
original offenses under the CMVSA and
the non-CMV convictions for other
offenses added in subsequent statutory
amendments. A clarification is also
provided in § 383.51(a)(4) that both
CMV and non’CMV convictions for
disqualifying offenses will be used in
determining first and subsequent
violations. The entire section is being

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

revised to incorporate an easy to
understand ‘‘if-then’’ table format.
Five commenters expressed their view
that the if-then table format was
confusing or did not clearly indicate the
circumstances that triggered the stated
disqualification period for offenses
listed in the various headings and
columns. Based on these comments, the
FMCSA has reviewed the tables and has
made a few minor changes to clarify
their intended meaning. The agency
believes that after users become familiar
with the new format, they will find it
easier to locate the appropriate
disqualification period for all of the
disqualifying offenses.
The FMCSA received a total of 96
comments on the May 4, 2001 NPRM
concerning ‘‘Noncommercial Motor
Vehicle Violations.’’ While most
comments expressed general support for
the concept of CDL holders being held
accountable for offenses committed in
both CMVs and non-CMVs, many
comments offered suggestions for
revisions to the final rule. Some
comments specifically mentioned that
the tables listing the offenses and the
period for which a driver is disqualified
were a great improvement over narrative
explanations of these disqualifying
offenses. Other comments suggested that
changes to other areas of the rule may
need to be made. The following
discussion addresses these comments.
Ten comments indicated that no other
profession prevents a person from
making a living based on driving
convictions that occurred while
operating a private automobile or other
noncommercial vehicle. CDL holders
are, unlike most licensed passenger car
drivers, professional drivers. They earn
their living by operating large, heavy
vehicles and/or transporting passengers.
Given their status as professionals, CDL
holders are held to a higher standard.
CDL holders should not engage in risky,
unsafe behavior while pursuing their
profession—driving. The Congress has
chosen, in the interest of safety, not to
distinguish between risk-taking
behavior in a passenger car or a CMV.
Section 201(b) of the MCSIA specifically
directed the Secretary of Transportation
to issue regulations requiring the
disqualification of CDL holders
convicted of serious offense while
operating a non-CMV.
Twenty commenters fully support the
concept of CDL drivers being held to a
higher standard by being accountable
for both CMV and non-CMV
convictions, while seven other
commenters supported this concept in
regard to alcohol and drug related
offenses, but do not believe that
convictions for serious traffic violations

PO 00000

Frm 00004

Fmt 4701

Sfmt 4700

in a non-CMV for excessive speed and
following too closely should be
included. Seven comments oppose
holding CDL drivers accountable for
non-CMV convictions and describe it as
an unnecessary burden and a double
standard. The FMCSA believes that all
serious traffic violations by a CDL
holder should be counted when
operating a non-CMV because these
types of violations have consistently
contributed to crashes and fatalities.
Ten comments suggest that if CDL
holders are going to be held to higher
standards and penalties when operating
a non-CMV than drivers with an
automobile license, then everyone who
drives a vehicle should be liable for
these higher penalties when operating
their private automobiles. This
suggestion falls outside the scope of this
rulemaking and the authority of the
agency. The FMCSA does not have
authority to set standards and penalties
for drivers licensed to operate only nonCMVs.
Fourteen comments recommended
that penalties for a conviction in a nonCMV should be less than in a CMV, at
a higher threshold as far as the number
of convictions that would cause the
driver to be disqualified or that the
FMCSA should let each State decide the
length of the penalties. These comments
argue that if Congress wanted the same
penalties for both types of offenses, it
would have been specifically addressed
in Federal law. The FMCSA has the
authority to set the same penalties for
both types of offenses; Congress simply
said that penalties in a non-CMV may
not be greater than the penalties for the
same offense in a CMV. The FMCSA
believes that by setting the minimum
penalties for all offenses rather than
leaving non-CMV penalties to the States,
there will be greater national uniformity
and consistency in the administration of
the CDL program.
Ten comments object to railroadhighway grade crossing offenses being
included in non-CMV offenses, either as
currently worded because these types of
offenses do not apply to non-CMVs, or
because the inclusion of these offenses
goes beyond the intent of Congress. The
FMCSA agrees that the wording of these
types of offenses specifically addresses
actions that only apply to CDL holders
while operating a CMV. Therefore the
non-CMV railroad-highway grade
crossing offenses have been eliminated
from the final rule.
Five comments request a clarification
of the relationship between alcohol
related ‘‘convictions,’’ ‘‘administrative
per se suspensions’’ and ‘‘refusal to be
tested’’ in Table 1 to § 383.51. They
express confusion over what action is to

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
be taken against a driver’s CDL under
these three actions, particularly for nonCMV offenses. The FMCSA has
modified Table 1 to § 383.51 to clarify
what actions must be taken for alcohol
related ‘‘convictions’’ and ‘‘refusal to be
tested.’’ The relationship between
‘‘convictions’’ and ‘‘administrative per
se suspensions’’ is discussed in current
regulatory text under § 383.51(f) and is
being moved to § 384.203 to make it
more visible.
Concerning the relationship between
‘‘convictions’’ and ‘‘administrative per
se suspensions,’’ the FMCSA offers the
following background information. The
CMVSA required that CDL drivers
convicted of operating a CMV with an
alcohol concentration of 0.04 or greater
be subject to being disqualified from
operating a CMV for a period of one to
three years for a first conviction,
depending on the cargo being
transported. This sanction does not
apply to CDL drivers operating a nonCMV at this alcohol concentration.
Table 1 to § 383.51 has been revised to
clarify this fact. The § 383.5 definition
of ‘‘conviction’’ includes guilty findings
by ‘‘an authorized administrative
tribunal.’’ This definition was intended
to encompass any type of administrative
determination of guilt including State
administrative per se DWI laws.
Accordingly, a CDL driver found guilty
of operating a CMV with an alcohol
concentration of 0.04 or greater or of
violating a State’s DWI laws as a result
of an administrative hearing, while
operating a CMV or non-CMV, would be
subject to being disqualified under the
requirements of § 383.51.
One comment asks whether the
definition of ‘‘non-CMV’’ includes
recreational vehicles used in an off road
environment (e.g. snowmobiles,
watercraft, all terrain vehicles, etc.). The
regulations define the term ‘‘motor
vehicle’’ in § 383.5 as a vehicle ‘‘ * * *
used on highway * * *’’ It does not
include recreational vehicles designed
for off road use.
Four comments ask whether
conviction in a non-CMV prior to
applying for a CDL will prevent the
issuance of the CDL. The Act clearly
states that penalties for offenses
committed by a CDL holder in a nonCMV shall be counted. Therefore, only
non-CMV convictions for offenses
committed after a person obtains a CDL
can be counted against his or her
driving record.
Seven comments ask if a State must
include non-CMV convictions that
occurred prior to enactment of MCSIA.
The FMCSA can only take action on
offenses that occur after the effective
date of the final rule and a State only

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

has to take action upon the effective
date of its State law or regulation.
Three comments state that the new
disqualification requirements are
complex and difficult to understand in
the tables. While the FMCSA developed
these tables in keeping with guidelines
for using plain language and if/then
tables for Federal regulations, we have
made some revisions to help clarify the
intent of the new requirements. There
were also several comments that
indicate that the tables make it easier to
understand the requirements.
Eight comments indicate that 49
U.S.C. 31310(g) refers to operators of
CMVs who are convicted of drug or
alcohol related offenses in a non-CMV,
and that only convictions for serious
offenses in a non-CMV which result in
State revocation, suspension or
cancellation of a driver’s non-CMV
privileges shall result in the
disqualification from operating a CMV.
The comments argue that by naming
specific offenses and penalty periods
the FMCSA has exceeded its authority.
The language of Section 31310(g),
enacted by Sec. 201 of MCSIA gives the
FMCSA ample authority to specify what
constitutes a ‘‘serious offense,’’ although
the violation will not be disqualifying
unless the State also finds that the
circumstances of the offense warrant
‘‘revocation, cancellation, or suspension
of the individual’s license.’’ Section
31310(g)(2) specifically authorizes the
FMCSA to ‘‘establish the minimum
periods for which the disqualification
shall be in effect * * *’’ That is exactly
what the agency has done in § 383.51 in
order to promote safety and uniformity
among the States. The FMCSA further
believes that Congress, in using the term
‘‘serious offense’’ in Section
31310(g)(1)(A), was referring to the
‘‘serious traffic violations’’ already
specified in §§ 383.5 and 383.51(c).
Violations are not listed as disqualifying
in § 383.51 unless they are
demonstrably significant, i.e., contribute
to crashes and fatalities.
Three comments state that the
FMCSA should not give the States the
option of using .04-alcohol
concentration as a disqualifying offense
for a non-CMV conviction. The FMCSA
only has the authority to establish a
minimum alcohol concentration
disqualification standard for CDL
drivers. As with other minimum
standards, however, individual States
are free to impose more stringent
standards, including establishing a
lower alcohol concentration, for both
CDL and non-CDL drivers licensed by
their State.
One comment proposed revisions to
permit a driver to operate while a CMV

PO 00000

Frm 00005

Fmt 4701

Sfmt 4700

49745

conviction is under judicial appeal. The
FMCSA defers to State law and
procedure to determine this issue. If, as
is the case in many jurisdictions, a trial
court judgment does not become a final
conviction for a certain period of time
to allow a defendant to appeal the
verdict, the driver may continue to
operate until that time or if an appeal is
filed, until the appellate court renders
judgment. However, if a conviction is
entered as final, the penalty provisions
of this regulation apply.
One comment recommends that the
rule require States to record the number
of miles per hour by which the driver
of a non-CMV exceeds the posted speed
limits. The only disqualifying offense
for speeding in a CMV or non-CMV is
excessive speeding, i.e., 15 miles per
hour or more over the posted speed
limit. A code already exists in the
CDLIS for this offense when it is
committed in a CMV. The code will be
revised to include CMV and non-CMV.
Three comments suggest that both the
May 4 and July 27 NPRMs be given the
same effective date because many
provisions are tied together. The
FMCSA agrees. We decided to merge
both MCSIA proposals into one final
rule with a single effective date for all
provisions.
Three comments ask if the State of
licensure can disqualify CMV drivers for
failure to pay child support. Each State
has the authority to set additional
disqualification requirements for drivers
licensed in their State, including failure
to pay child support. This rule only sets
the minimum disqualification
requirements for a State to remain in
substantial compliance with the Federal
requirements.
One comment questions whether the
costs of the rule on non-CMV violations
constitute an unfunded mandate under
the Federal regulations when
considered with other CDL-related
MCSIA requirements. Based on the
agency’s economic analysis of this issue
discussed in the Rulemaking Analyses
and Notices section of this rulemaking,
the FMCSA does not believe that this
requirement imposes an unfunded
mandate on the States.
One comment requested clarification
of the use of a non-CMV in the
commission of a felony involving a
controlled substance. The FMCSA
believes that this is self-explanatory. If
the vehicle is used in the
manufacturing, distributing, or
dispensing of a ‘‘controlled substance’’
as defined in 49 CFR 383.5, it is a CDL
felony offense.
One comment suggests that the
FMCSA also provide a narrative text
describing the offenses and

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49746

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

disqualification penalty in Tables 1
through 4 to § 383.51. Such a narrative
would defeat the purpose of the tables:
to provide a more easily understandable
description of the offenses and
penalties. Each State is, however, free to
use a narrative form of the tables in its
own legislation or regulations. A
narrative form can be easily developed
from the tables.
One comment asks why hazardous
materials drivers are being penalized
differently from other CDL drivers for
violations that occur in a non-CMV that
is not carrying hazardous materials. The
commenter appears to have misread the
§ 383.51 table, which only requires that
enhanced penalties be imposed against
drivers who are actually carrying
hazardous materials in a CMV at the
time of the offense.
One comment states that proposed
§§ 383.51, 384.218 and 384.219 are
drafted in a style completely different
from § 384.224. The commenter suggests
either that all sections cross-reference
§ 383.51 or that each section require
disqualification for particular offenses.
All the sections mentioned by the
comment relate to compliance with
§ 383.51. The styles in which they are
written are different because there are
separate State substantial compliance
requirements for second and third
serious traffic violations while there is
only one specific requirement for nonCMV violations.
Two comments request the FMCSA to
develop a definition of the term
‘‘authorized agents.’’ The FMCSA
believes that this term is sufficiently
defined under individual State statute,
regulation or case law, and need not be
included in this rulemaking.
One comment asks why the NPRM
does not address how the new
regulations on non-CMV violations of a
CDL holder will apply to Mexican,
Canadian and other foreign drivers.
Mexican and Canadian CDL drivers may
operate in the U.S. on a license issued
by their home jurisdiction in accordance
with reciprocity agreements between the
U. S. and Canada and Mexico as noted
in the footnote to 49 CFR 383.23(b).
These drivers are subject to all of the
U.S. CDL requirements while operating
in the U.S., including disqualification
for convictions while operating a nonCMV in the U.S. The Department will
initiate discussions with Mexico and
Canada on the issue of non-CMV
offenses by these drivers while
operating in their home country. All
other foreign CDL drivers must obtain a
nonresident CDL to legally operate in
the U.S. The issuance of the nonresident
CDL subjects these drivers to the same

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

requirements as other CDL holders
while operating in the U.S.
Thirteen comments challenge the
accuracy of our cost data analysis. This
issue is being addressed in the
economic analysis area of this
rulemaking.
One commenter requests that the rule
explicitly state that the disqualification
action must be based on a conviction of
the listed offenses. FMCSA has
amended Table 1, 2, 3 and 4 to § 383.51
to clarify this issue.
One commenter asks if the two new
disqualifying offenses being added to
Table 1 to § 383.51 are subject to the 10year reinstatement provision of
§ 383.51(a)(5). The answer is yes, and
the text of this section has been
amended to reflect this fact.
A few additional comments point out
typographical errors in the Tables.
These errors have been corrected in the
final rule.
Four commenters noted that the
FMCSA omitted certain qualifying
language enacted by Sec. 201(a) of the
MCSIA. Specifically, 49 U.S.C.
31310(b)(1)(D) and (c)(1)(D) require a 1year disqualification the first time a
driver is convicted of driving a CMV
when his/her CDL is revoked,
suspended, or canceled, or when he/she
is disqualified from driving a CMV,
providing the revocation, suspension,
cancellation or disqualification was
‘‘based on the individual’s operation of
a commercial motor vehicle’’. In other
words, the 1-year disqualification is not
required if the driver’s CDL was
revoked, suspended, or canceled, or he/
she was disqualified, for violations that
occurred in a non-CMV. The
commenters are correct. Also, in the
situation where more than one
conviction is required to be disqualified,
all convictions must have occurred
while operating a CMV. The FMCSA has
added this qualifying language to the
final rule.
One commenter proposed that the
FMCSA establish standards for notifying
drivers that their CDL had been
suspended or revoked or that they had
been disqualified from operating a CMV.
The FMCSA believes that each State has
laws or procedures addressing this
issue. Establishing such standards for
States to provide notice of the loss of a
driving privilege is beyond the scope of
this rulemaking.
Thirteen comments raise issues
related to the language in the NPRM
used to describe the new disqualifying
offense of causing a fatality through the
negligent or criminal operation of a
CMV. To address concerns raised in
these comments, the FMCSA has added
language to the final rule to clarify the

PO 00000

Frm 00006

Fmt 4701

Sfmt 4700

type of offense of which a driver must
be convicted to be subject to this
disqualification.
One of the proposed serious traffic
violation disqualifications that received
several comments was ‘‘driving a CMV
without a CDL in the driver’s
possession.’’ Ten commenters expressed
concern that a driver could be
disqualified for not having a CDL with
them on a particular day because they
may have lost it or had their wallet
stolen. The MCSIA addresses this
situation in 49 U.S.C. 31301(12)(E):
‘‘Any individual who provides proof to
the enforcement authority that issued
the citation, by the date the individual
must appear in court or pay any fine for
such a violation, that the individual
held a valid CDL on the date the citation
was issued, shall not be guilty of this
offense.’’ Although this language was
included in the 49 CFR 383.5 definition
of this new serious traffic violation, it
was inadvertently omitted from Table 2
to § 383.51. To clarify this issue, the
FMCSA has added this language in a
footnote to Table 2 to § 383.51.
Section 383.52—Disqualification of
Drivers Determined To Constitute an
Imminent Hazard.
Section 383.52 establishes FMCSA
authority for imposing an emergency
disqualification of CDL drivers posing
an imminent hazard required by Section
201(b) of the MCSIA (49 U.S.C.
31310(f)).
Seven commenters raised questions
concerning proposed procedures for
imposing an emergency disqualification,
many requesting the agency to provide
greater detail on how the
disqualification determination would be
made and asking that various
procedural safeguards be included in
the rule. The FMCSA believes that the
statutory mandate, as reflected in this
regulation, together with existing agency
administrative procedures, provide
sufficient guidance for the agency to
make this determination in accordance
with accepted due process standards.
Eight comments questioned the
proposed criteria to be used by the
FMCSA in making a determination of
whether or not an emergency
disqualification should be imposed on a
driver. Based on a review of the
comments, the FMCSA has decided not
to include in the final rule the six
factors proposed in the NPRM to be
considered by the agency in making its
determination of whether a driver
constitutes an imminent hazard. The
agency believes that the definition of
‘‘imminent hazard’’ which the MCSIA
requires the Department to use in
making this determination provides

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
sufficient guidance for making this
decision.
Although no comments were received
on the issue, the agency has decided to
delegate the authority for making the
imminent hazard determination to the
Assistant Administrator, who is also the
Chief Safety Officer, rather than the
Associate Administrator for
Enforcement. This delegation is
consistent with current practice, since
the authority to impose civil penalties,
hear ratings appeals, and make other
similar decisions is already delegated to
that officer.
One commenter noted that the MCSIA
requires the disqualification of a driver
determined to constitute an imminent
hazard. The FMCSA agrees with this
statement, and has accordingly
amended the final rule to state that a
driver must be disqualified where the
Assistant Administrator finds the
driver’s continued operation of a CMV
poses an imminent hazard.
Nine comments focus on the question
of who should be notified that a driver
has received an emergency
disqualification. The statute does not
require the FMCSA to notify a driver’s
State of licensure of an emergency
disqualification, and one State objects to
being required to maintain this
information on a driver’s record.
Nonetheless, the FMCSA believes
requiring a notification to the State of
licensure of a driver’s emergency
disqualification and requiring such
information to become a part of the
driver’s permanent record is a logical
extension of imposing the emergency
disqualification.
Three commenters requested the
FMCSA to specifically describe how
this information will be transmitted to
the driver’s home State. The FMCSA
does not believe such details should be
included in this rulemaking. The agency
is working closely with AAMVAnet to
develop a new code to identify a Federal
CDL disqualification. Once such a code
has been developed, it should facilitate
the electronic transmission of this
information to the State where the
disqualified driver is licensed, and
make this information readily available
to State law enforcement and licensing
agencies checking the CDLIS on a CDL
driver’s status.
Section 383.71—Driver Application
Procedures.
Section 383.71 is being amended to
require applicants for an initial CDL,
and those transferring or renewing a
CDL to provide the State with the name
of all States where they have previously
been licensed to drive any type of motor
vehicle so that the State may obtain the

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

applicant’s complete driving record in
accordance with Section 202(a) of the
MCSIA (49 U.S.C. 31311(a)(6)). Section
383.71(a)(6) is also being amended to
clarify that the term ‘‘disqualification’’
applies only to sanctions under § 383.51
and that the other licensing sanctions
are based on actions taken under State
law. The comments received addressing
this new requirement, which falls
mainly on the States, will be discussed
in the commentary to the next section
and § 384.206.
Section 383.73—State Procedures.
Section 383.73 is being amended to
require the State to request the complete
driving record of applicants for an
initial license, renewal or transfer of a
CDL from all States where the applicant
has previously been licensed to drive
any type of motor vehicle. Eight
comments strongly support the
expanded driver records check, while
an additional 11 point out potential
problems and propose a few changes.
Comments on the time period that
driver records must be retained by a
State are discussed in the commentary
for § 384.206.
One commenter asked why the new
driver license check of all States in
which a driver held any type of driver’s
license had to be performed on drivers
who had already received a CDL. The
FMCSA believes that Congress
expanded the record check to all CDL
drivers, both those already licensed as
well as new CDL applicants, to be sure
that the issuing State obtains a complete
driving record for every CDL driver it
licenses. In analyzing the comments
received in response to this provision,
the FMCSA agrees that once this record
check of all States where a driver held
any type of driver’s license has been
conducted for every CDL driver, and in
light of the fact that the Federal
regulations require all future
convictions to be forwarded to and
recorded on the driver record of the
State where a CDL driver is licensed,
requiring the States to conduct this
expanded State record check after the
initial CDL renewal would serve no
useful purpose. Accordingly, the
FMCSA is amending § 383.73(a)(3)(iv) of
the final rule to limit this record check
to CDL drivers renewing their license
for the first time after the effective date
of this rulemaking, provided that a
notation is made on the driver’s record
that this expanded driver record check
has been made and the date it was done.
Section 383.93—Endorsements.
Section 383.93 is being amended to
add a new paragraph for the school bus
endorsement mandated by Section 214

PO 00000

Frm 00007

Fmt 4701

Sfmt 4700

49747

of the MCSIA and specifying that
applicants must pass both a knowledge
and a skills test to obtain this
endorsement. Comments related to the
proposed school bus endorsement are
discussed in the next section.
Section 383.123—Requirements for a
School Bus Endorsement.
Section 214 of the MCSIA requires the
FMCSA to create a new endorsement
that CDL holders must obtain to operate
a school bus. To implement this new
endorsement, the FMCSA has added
definitions of ‘‘school bus’’ and
‘‘fatality’’ to 49 CFR 383.5; amended
other provisions of part 383 to recognize
the new school bus endorsement; added
a license code for the endorsement; and
specified that applicants must pass both
a knowledge and a skills test to obtain
the endorsement. This section
establishes the minimum knowledge
and skills test requirements for this new
endorsement.
Seven of the comments support, while
two oppose, the new school bus
endorsement. An issue raised by three
commenters is whether States such as
California, which already have a
comprehensive school bus licensing or
certification program in place, need to
comply with the requirements of this
rulemaking. As with other CDL
requirements found in 49 CFR part 383,
the new school bus testing standards are
intended to establish a minimum
standard. States are free to establish
more stringent standards for CDL
drivers they license. States with a
school bus licensing program that meets
or exceeds the FMCSA requirements in
49 CFR 383.123(a) may, therefore,
continue to license school bus drivers in
accordance with that program. For the
sake of national uniformity and
consistency, they must, however,
comply with the school bus
endorsement requirements of 49 CFR
383.153(a)(9)(vi).
Nine commenters, primarily those
representing school transportation
agencies and affiliated associations,
expressed their belief that the school
bus endorsement should be a standalone endorsement, encompassing all
current requirements of a passenger
vehicle endorsement. The practical
effect of adopting this recommendation
would be to restrict those drivers who
obtain a school bus endorsement from
operating any other type of passengercarrying CMV without taking additional
knowledge and skills tests. The
argument in support of this proposition
is that companies and government
entities hiring school bus drivers often
pay the cost of training drivers, only to
have them leave for other employment

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49748

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

after receiving this training and
obtaining their passenger endorsement.
While this may be a practical economic
issue, the FMCSA believes that Congress
established the school bus endorsement
to promote the safe operation of school
buses, not to restrict a driver’s future
employment opportunities. Issues
related to restricting the future
employment of such drivers should be
addressed through agreements between
the parties. Based upon this analysis,
the FMCSA declines to incorporate the
passenger endorsement requirements
into the school bus endorsement.
In the July 22 NPRM, the FMCSA
proposed including a provision in
§ 383.123 giving States the option of not
requiring applicants for the school bus
endorsement to take the skills test
where the applicant had past experience
driving a school bus and met the safety
criteria established in that section. The
agency believes that such a ‘‘grandfather
clause,’’ which proved successful
during the implementation of the
CMVSA, incorporates appropriate
experience and safety requirements to
accomplish the objective of the MCSIA
without imposing an undue burden on
the States.
Thirteen comments received
expressed strong support for
grandfathering experienced drivers,
although there were a few suggestions
for changes to these proposed
requirements. Based on the comments,
the FMCSA has amended the text to
clarify these criteria in the final rule.
Section 383.153—Information on the
Document and Application.
Section 383.153 adds a license code
for the proposed school bus
endorsement. One State and the
American Association of Motor Vehicle
Administrators express concern that
some States already use an ‘‘S’’
endorsement and asked the FMCSA to
select another designation for the new
school bus endorsement. Based on the
fact that only two commenters raised
this issue, the FMCSA does not believe
adopting an ‘‘S’’ endorsement will
impose an undue burden on those few
States that may already use it for some
other purpose. Since States use a wide
variety of letters for various other nonFederal endorsements or purposes, there
is also a likelihood that any alternative
letter designation proposed by the
FMCSA for the school bus endorsement
would already be used by one or more
States. For these reasons, the FMCSA
will include the ‘‘S’’ endorsement for
school bus drivers in the final rule.

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

Section 384.107—Matter Incorporated
by Reference.
The FMCSA is incorporating by
reference the AAMVAnet publication
CDLIS State Procedures Manual cited in
49 CFR 384.231(d) Recordkeeping
requirements. A discussion of the
analysis for this action, a complete
description of the document, and the
reasons for its incorporation can be
found in the commentary to § 384.231.
One comment seeks clarification on
whether the reference to CDLIS in the
May 4 NPRM preamble discussion of
the ‘‘Number of CDL citations’’ means
the central site or the overall system.
The reference to CDLIS in the NPRM is
to the overall system.
Another comment asks whether the
FMCSA would consider comments on
the AAMVAnet State Procedures
Manual, which is being incorporated by
reference into the Code of Federal
Regulations. The FMCSA received no
comments on the Manual, but would
not have considered comments on this
document because no changes to it were
being proposed.
Section 384.203—Driving While Under
the Influence.
The FMCSA has removed a provision
titled ‘‘Substantial Compliance by
States,’’ from 49 CFR 383.51(f) and
added it to this section, where it more
appropriately belongs. It is designated
49 CFR 384.203(b) and (c).
Section 384.206—State Record Checks.
As previously discussed in the
commentary to 49 CFR 383.73, Section
202(a) of the MCSIA requires States to
request the applicant’s driving record
from each State that issued him or her
any kind of driver’s license [49 U.S.C.
31311(a)(6)] before issuing or renewing
a CDL. The FMCSA is amending
§§ 383.71, 383.73 and 384.206 to
incorporate these new requirements.
Five commenters asked how far back
this record check should extend. After
reviewing the issue and noting that
National Driver Register (NDR)
guidelines require numerous offenses to
remain on a driver’s record for a period
of 10 years, the FMCSA has amended
§ 384.206 to limit this expanded record
check to the 10 years preceding the date
of the driver’s license application.
Section 384.208—Notification of
Disqualification.
Section 384.208 has been amended to
comply with Section 202(b) of the
MCSIA, which amended 49 U.S.C.
31311(a)(8) to require that States
include and record the violation that
resulted in the driver’s disqualification,
or the revocation, suspension or

PO 00000

Frm 00008

Fmt 4701

Sfmt 4700

cancellation of his or her CDL, as part
of the notification they were previously
required to make under this statutory
provision. This notification must be
made no later than 10 days after the
driver is disqualified.
Because the only comment addressing
this issue was favorable, the FMCSA is
incorporating it into the final rule as
proposed.
Section 384.209—Notification of Traffic
Violations.
Section 202(c) of the MCSIA clarifies
a State’s responsibility for notifying the
State where an out-of-state CDL driver is
licensed whenever such a driver is
convicted of violating any State or local
law relating to motor vehicle traffic
control (other than a parking violation),
even if the driver was operating a nonCMV when the offense was committed
[49 U.S.C. 31311(a)(9)]. The MCSIA also
requires the State where the offense was
committed to notify the State where the
driver is licensed if the offense was
committed in a CMV, even if the driver
did not have a CDL at the time. The
MCSIA further requires that this
notification be made no later than ten
days after the driver’s conviction. This
section implements these requirements.
Eighteen commenters expressed their
views on this provision, with industry
and safety groups generally supporting
the proposed 10-day conviction
reporting period and States raising
numerous concerns associated with
implementing this requirement. Much
of the States’ concerns focused on the
fact that driver licensing and law
enforcement agencies are held
accountable for actions of the State
courts to meet the 10-day convictionreporting requirement.
The FMCSA first notes that this 10day reporting requirement is not new.
Its origins are rooted in the CMVSA
itself. In the final rule establishing the
standards States must meet to be in
compliance with that Act, published in
the Federal Register on May 18, 1994 at
59 FR 26029, the FHWA recognized that
it would be difficult for many States to
meet this 10-day reporting standard, and
accordingly delayed implementation of
the requirement. The agency cautioned
in that rulemaking, however, that this
important issue would be the subject of
future rulemaking.
Three other commenters object to the
proposed extended implementation
period for States to comply with the
conviction reporting requirements of
this section. As the agency stated in the
July 27 NPRM, based on its current
knowledge of State capabilities to obtain
and transmit driver conviction
information, the FMCSA believes that to

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
immediately impose a ten-day time
period would place an unreasonable
burden on the States. Accordingly, the
NPRM proposed that this 10-day time
limitation be phased in over six years
according to the following time
schedule. Within three years of the
effective date of the final rule,
notification would be required within
30 days of the conviction. Within six
years, notification would be required
within ten days. States are encouraged
to move as quickly as possible to meet
the 10-day requirement and should seek
to do so wherever possible. After
considering the comments, the FMCSA
has decided to adopt the phase-in
proposal.
In light of the importance of States
obtaining timely conviction information
on CDL drivers who are convicted of
offenses while driving in other States, it
is critical that States make every effort
to meet the compliance schedule
established in this rulemaking. The
FMCSA urges all State agencies to work
together to accomplish this objective.
One commenter also asked whether
the 10-day notification period began
when the verdict was rendered or at the
time the conviction became final. The
FMCSA defers to State law and
procedure to determine this issue. If, as
is the case in many jurisdictions, a trial
court verdict does not become a final
conviction for a stated period after the
verdict to allow a defendant time to
appeal, the conviction information must
be transmitted 10 days after the appeal
window closes, or if an appeal is filed,
after the conviction is upheld.
Section 384.210—Limitation on
Licensing-Prohibition on State Issuing
Hardship Licenses.
Section 384.210 is being amended in
accordance with provisions of Section
202(d) of the MCSIA (49 U.S.C.
31311(a)(10)(B)) to prohibit a State from
issuing a special commercial driver’s
license or permit (including a
provisional or temporary license) to any
CDL driver who is disqualified or who
has his or her non-commercial driver’s
license or driving privilege revoked,
suspended or canceled.
Of the ten comments addressing this
issue, a few State licensing and law
enforcement agencies point out the
difficulty of getting any legislation
passed and the fact that they do not
control court actions in issuing such
licenses. While cognizant of the need for
coordination between judicial,
executive, and legislative branches that
implementing and complying with this
provision may impose on the States, the
FMCSA notes that this action is
required by the MCSIA and urges all

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

States to take appropriate action to bring
their laws, regulations and ajudicatory
procedures into compliance with this
new requirement for identifying and
removing drivers whose violations
warrant such action. The statute
anticipates and FMCSA believes that the
branches of government can work
cooperatively to address this public
safety issue.
Section 384.225—Record of Violations.
Section 202(f) of the MCSIA requires
the States to maintain a driver history
record for CDL drivers of all convictions
of State or local motor vehicle traffic
control laws while operating any type of
motor vehicle [49 U.S.C. 31311(a)(18)].
It also specifies that this information
must be made available to authorized
CDLIS users including the Secretary of
Transportation, States, drivers,
employing motor carrier and
prospective employing motor carriers,
as part of normal operating practices.
While the MCSIA does not specify a
retention period for information on
these convictions and other licensing
actions, a minimum retention period of
three years is included in this rule to
promote uniformity among the States.
Although Section 31311(a)(18) requires
a driver history record only for CDL
drivers, Section 31311(a)(9) goes beyond
that. When an out-of-State driver
commits a violation, paragraph (a)(9)
requires the State where the violation
occurred to notify the State that issued
his/her driver’s license. This rule
applies both to CDL holders and to
drivers operating a CMV (illegally)
without a CDL. Because a State could
not provide notification of a violation by
a CMV driver who did not have a CDL
without first entering the conviction in
the driver information system, the
FMCSA has concluded that this
requirement is implicit in paragraph
(a)(9) despite the fact that no such
requirement is included in paragraph
(a)(18). Stated alternatively, § 384.225(a)
(‘‘CDL holders’’) is based on 49 U.S.C.
31311(a)(18), while § 384.225(b) (‘‘NonCDL holders’’) is based on 49 U.S.C.
31311(a)(9).
Seven comments support the
requirement for States to enter all traffic
convictions on driver records; however,
three States questioned which driving
records should be maintained and
proposed alternative retention periods.
Paragraph (d) of § 384.231 requires
States to maintain driver records for
CDL drivers on the CDLIS for the time
periods the FMCSA finds necessary to
enforce the disqualifications called for
in §§ 384.215 through 384.219 and
§§ 384.221 through 384.224. These time
periods range from a minimum of 3

PO 00000

Frm 00009

Fmt 4701

Sfmt 4700

49749

years for serious traffic violations and
railroad-highway grade crossing
violations to life for major alcohol, drug
and felony offenses. Since the minimum
retention period for a disqualifying
offense is currently set at 3 years, the
FMCSA believes that a minimum record
retention period of 3 years for all other
offenses in a CMV and non-CMV is
reasonable. It is a good balance between
allowing authorized users to see the
current driving record of a CDL driver
without placing an undue burden on the
States to carry convictions on a driving
record that will not affect any future
driver disqualification action. The more
serious the offense, the longer the
conviction will remain on the driving
record for review by authorized users of
CDLIS. Based upon the fact that the
CDLIS driver record retention standards
are well known and adhered to by all
States, the FMCSA does not believe any
additional record retention period needs
to be included in this rulemaking.
Another issue raised in four of the
comments was that the authorized
agents of people and entities designated
in the MCSIA as having access to driver
record information should also be
allowed to obtain this information. The
FMCSA agrees that the MCSIA permits
access to these records by agents, and
has amended the final rule to reflect this
fact.
One State asked whether they will be
allowed to charge motor carriers for
providing driver history information.
The FMCSA believes this is a decision
for each State to make consistent with
the object of this rulemaking.
Accordingly, it has not been addressed
in this rulemaking.
Section 384.226—Prohibition on
Masking Convictions.
Section 202(g) of the MCSIA prohibits
the practice of masking convictions
required to be maintained by or
transmitted to the State where the driver
is licensed [49 U.S.C. 31311(a)(19)]. A
Joint Explanatory Statement issued by
Congress in conjunction with the
MCSIA (145 Cong. Rec. H12870–12874
(daily ed. Nov. 18, 1999; 145 Cong. Rec.
S15207–15211 (daily ed. Nov. 19, 1999))
makes clear that this new provision is
intended to prohibit States not only
from masking convictions, but also from
using diversion programs or any other
disposition that would defer the listing
of a guilty verdict on a CDL driver’s
record. This provision also requires that
records of such conviction information
be made available to all authorized
parties and government entities. The
FMCSA urges State Executive Branch
agencies to work with the State Judicial
Branch to eliminate the practice of

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49750

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

masking. This practice allows unsafe
drivers to continue to pose a risk to
other motorists by allowing their
continued operation on the nation’s
highways.
Section 384.231—Satisfaction of State
Disqualification Requirements.
All paragraphs are amended to
replace the word ‘‘shall’’ with the word
‘‘must.’’
The FMCSA is amending paragraph
(a) to include cross references to the
disqualifications resulting from railroadhighway grade crossing violations
added as 49 CFR 384.223 by a final rule
published on September 2, 1999 (64 FR
48104), and new §§ 384.222 and 384.224
promulgated by this final rule.
Paragraph (b)(2) is being amended to
remove the May 18, 1997, compliance
date from the heading of the paragraph
because that date has passed and the
rule now applies to all non-CDL
holders. The FMCSA is also replacing
the undefined term ‘‘non-CDL holder’’
with ‘‘a person required to have a CDL’’
within the heading and body of
paragraph (b)(2) because the term ‘‘nonCDL holder’’ could include a person
who is not even required to have a CDL.
The intent of this paragraph is to require
each State to disqualify any person
required to have a CDL who was
convicted of a disqualifying offense in a
CMV under § 383.51.
Paragraph (d) is being amended to
incorporate by reference the current
version of the AAMVAnet State
Procedures Manual. Each Statelicensing agency has a copy of the most
recent version of the CDLIS State
Procedures Manual. A copy of this
CDLIS State Procedures Manual is also
in the public docket.
Section 384.401—Withholding of Funds
Based on Noncompliance.
In order to avoid the withholding of
certain Federal aid highway funds,
States must be in substantial
compliance, as defined in 49 CFR
384.301, with the standards set forth in
Subpart B of part 384. Section 103(e) of
the MCSIA also requires the FMCSA to
withhold Motor Carrier Safety
Assistance Program (MCSAP) funds
from States that fail to be in substantial
compliance with these standards. This
section incorporates this new
sanctioning requirement. A discussion
of the comments on this requirement
can be found in the commentary to
§ 350.217.
Section 384.405—Decertification of
State CDL Program.
Section 203 of the MCSIA requires the
FMCSA to prohibit a State from issuing,

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

renewing, transferring, or upgrading
CDLs if the agency has determined that
the State is in substantial
noncompliance with the requirements
of Section 31311 of title 49 U.S.C. (49
CFR part 384, subpart B). Because of the
severity of this new sanction and the
potential effect on drivers and motor
carriers located in States found to be in
noncompliance, it is envisioned that
this penalty will be used only after other
attempts to bring the State into
substantial compliance with CDL
requirements have failed. As noted in
the commentary to § 383.23, the FMCSA
envisions this sanction being invoked
only in rare situations.
To mitigate the impact on drivers and
motor carriers in States that have been
decertified, the MCSIA is adding a
provision to 49 CFR 383.7 and
384.405(h) allowing drivers licensed
before a State was decertified to
continue to operate CMVs, as long as
their licenses remain valid. The FMCSA
has also included language in 49 CFR
383.23(b)(2) authorizing States that are
in substantial compliance to issue
nonresident CDLs to drivers living in
States that have been decertified.
In response to one comment raised
concerning how other States will know
that a State has been decertified, the
FMCSA will notify all States whenever
a State has been decertified or
recertified.
Section 384.407—Emergency CDL
Grants.
Section 384.407 implements Section
103(d) of the MCSIA (49 U.S.C.
31107(c)) by authorizing the FMCSA to
provide emergency CDL grants to assist
States whose CDL programs may fail to
meet the compliance requirements of 49
U.S.C. 31311(a) [49 CFR part 384,
subpart B]. These grants of up to
$1,000,000 per State are subject to the
annual appropriation of funds by
Congress for information system grants.
Two comments to the NPRM
addressed this issue. One proposed that
only States making a good faith effort to
comply with the CDL requirements be
eligible to receive these grant funds and
the other proposed that the traditional
20% State grant-matching requirement
be waived. The FMCSA agrees with the
first of these suggestions and has added
language to the final rule clarifying that
only States making a good faith effort to
comply with the CDL requirements are
eligible to receive these grants. As for
the second comment, these
discretionary grants do not require a
State matching contribution and
§ 384.407 includes no such implication.

PO 00000

Frm 00010

Fmt 4701

Sfmt 4700

Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this
action is not a significant regulatory
action within the meaning of Executive
Order 12866, and is not significant
within the meaning of Department of
Transportation regulatory policies and
procedures (44 FR 11034, February 26,
1979). It has not been reviewed by the
Office of Management and Budget.
Nonetheless, the FMCSA prepared a
regulatory evaluation of this rule. This
section summarizes the regulatory
evaluation. A copy of the complete
regulatory evaluation is available in the
docket described above under
ADDRESSES.
The regulatory evaluation addresses
seven of the provisions contained in this
rule, primarily those provisions that
FMCSA expected would have economic
costs to State government agencies and
the motor carrier industry. These
provisions include:
• Section 201(a) of MCSIA—
Disqualification for Driving While
Suspended, Disqualified and Causing a
Fatality. This provision creates two new
Federal disqualifying offenses: (1)
Driving a CMV while revoked,
suspended, or cancelled, or while the
driver is disqualified based upon the
driver’s operation of a CMV; and (2)
causing a fatality through the negligent
or criminal operation of a CMV. *
• Section 201(b) of MCSIA—
Emergency Disqualification of Drivers
Posing an Imminent Hazard.
• Sections 201(b) and 202(h) of
MCSIA—Disqualification for Violations
Committed while Driving a Non-CMV.
• Section 201(c) of MCSIA—
Expanded Definition of Serious Traffic
Violations.
• Section 202(a) of MCSIA—
Expanded State Driver Record Check.
• Section 202(c) of MCSIA—New
Notification Requirements. This section
requires States to notify CDLIS and the
State that issued the CDL no later than
10 days after disqualifying a CDL holder
from operating a CMV (or revoking,
suspending, or canceling a CDL) for at
least 60 days and the reason for the
action.
• Section 202(g) of MCSIA—Masking
Prohibition. This section of MCSIA
prohibits the practice of masking
convictions and thereby requires the
record to be maintained or transmitted
to the State where the driver is licensed.
As stated, the regulatory evaluation
addresses seven ‘‘major’’ provisions of
the rule. Although the remaining nine
provisions were initially examined,

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
FMCSA determined through a
preliminary evaluation that these nine
would not impose significant economic
costs on State government agencies or
the motor carrier industry.

FMCSA derived benefits estimates for
this rule by examining the number of
truck-related crashes, using average
costs for various types (e.g. fatal, injury,
and property-damage-only) that must be
avoided during the analysis period

49751

(2003–2011) for this rule to be cost
effective. Note that no crash reduction is
assumed to occur during the first year
of implementation (2002). Results of
this analysis are contained in Table 1
below.

TABLE 1.—SUMMARY OF FINAL RULE COSTS AND OTHER RELEVANT FACTORS
Net Present Value of Costs, 2002–2011 .....................................................................................................
Net Present Value of Benefits if 700 Truck-Related Crashes are Avoided Annually between 2003–2011
Type of truck-related crash
Fatal Crashes involving 7 ‘‘Large Trucks’’ ..................................................................................................
Injury-Related ‘‘Large Truck’’ Crashes ........................................................................................................
Property-Damage-Only ‘‘Large Truck’’ Crashes ..........................................................................................

$373 million
$404 million
Average cost per
crash1
$3,419,202
217,000
11,300

Annual Reduction
Required 2
7
147
546

1 From ‘‘Cost of Large-Truck and Bus-Involved Crashes, Final Report for the Federal Motor Carrier Safety Administration, Zaloshnja, Miller, &
Spicer, 2000.
2 For discounted benefits of the rule to exceed discounted costs, a total of 700 truck-related crashes (e.g., fatal, injury, & PDO combined) must
be avoided annually during the last nine years of the analysis period (2003–2011). This reduction represents about 0.15 percent of the total number of reported truck-related crashes annually. The reductions are proportional to the frequencies found by ‘‘Trends in Motor Vehicle Crashes’’
(FMCSA, December 2000).

Costs
The total discounted costs from each provision’s implementation are included in Table 2 below.

TABLE 2.—TOTAL DISCOUNTED COSTS, BY MCSIA SECTION AND TITLE
MCSIA section

201(a)
201(b)
201(b)
201(c)
202(a)
202(c)
202(g)

Total discounted
costs (millions of
discounted dollars)

Final rule section title

.......................................................
.......................................................
& 202(h) ........................................
.......................................................
.......................................................
.......................................................
.......................................................

‘‘* * * Driving While Suspended * * * ...................................................................
‘‘* * * Imminent Hazard’’ ........................................................................................
‘‘Disqualifications for non-CMV Offenses’’ .............................................................
‘‘Expanded Definition of Serious Traffic Violations’’ ...............................................
‘‘Expanded Driver Record Check’’ ..........................................................................
‘‘New Notification Requirements’’ ...........................................................................
‘‘Masking Prohibition’’ .............................................................................................

$89.1
8.3
169.7
43.3
42.5
3.8
16.3

Total ..................................................

All Seven Provisions ...............................................................................................

373

While the costs associated with each provision are somewhat unique, the types of costs generally fall into one
of two categories: start-up costs (Table 3) or ongoing costs (Table 4).

TABLE 3.—TOTAL ‘‘FIRST-YEAR’’ COSTS OF FINAL RULE PROVISIONS, BY MCSIA SECTION
MCSIA section

201(a)
201(b)
201(b)
201(c)
202(a)
202(c)
202(g)

Total first-year
costs (millions of
discounted dollars)

Final rule section title

.......................................................
.......................................................
& 202(h) ........................................
.......................................................
.......................................................
.......................................................
.......................................................

‘‘* * *Driving While Suspended* * *’’ ....................................................................
‘‘* * *Imminent Hazard’’ .........................................................................................
‘‘Disqualifications for non-CMV Offenses’’ .............................................................
‘‘Expanded Definition of Serious Traffic Violations’’ ...............................................
‘‘Expanded Driver Record Check’’ ..........................................................................
‘‘New Notification Requirements’’ ...........................................................................
‘‘Masking Prohibition’’ .............................................................................................

$1.61
2.15
1.73
1.41
1.461
0.581
2.42

Total ..................................................

.................................................................................................................................

11.4

1 Information

system implementation costs were spread over three calendar years.

TABLE 4.—TOTAL ‘‘LATER-YEAR’’ COSTS OF FINAL RULE, BY MCSIA SECTION
Total later-year
costs (millions of
discounted dollars)

MCSIA section

Final rule section title

201(a) .......................................................
201(b) .......................................................

‘‘* * *Driving While Suspended * * *’’ ..................................................................
‘‘* * *Imminent Hazard’’ .........................................................................................

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

PO 00000

Frm 00011

Fmt 4701

Sfmt 4700

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

$87.5
6.2

49752

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
TABLE 4.—TOTAL ‘‘LATER-YEAR’’ COSTS OF FINAL RULE, BY MCSIA SECTION—Continued
MCSIA section

201(b)
201(c)
202(a)
202(c)
202(g)

Total later-year
costs (millions of
discounted dollars)

Final rule section title

& 202(h) ........................................
.......................................................
.......................................................
.......................................................
.......................................................

‘‘Disqualifications for non-CMV Offenses’’ .............................................................
‘‘Expanded Definition of Serious Traffic Violations’’ ...............................................
‘‘Expanded Driver Record Check’’ ..........................................................................
‘‘New Notification Requirements’’ ...........................................................................
‘‘Masking Prohibition’’ .............................................................................................

168.0
41.9
41.0
3.2
13.9

Total ..................................................

.................................................................................................................................

361.7

Each of the seven major provisions
examined is analyzed separately here,
since many of the annual or ongoing
costs of the provisions are somewhat
unique (e.g., effects on driver
suspensions and disqualifications).
Section 201(a) of MCSIA—
Disqualification for Driving While
Suspended, Disqualified and Causing a
Fatality—creates two new disqualifying
offenses under the FMCSRs. They are:
(1) Driving a CMV while revoked,
suspended, or cancelled, or while the
driver is disqualified based upon the
driver’s operation of a CMV; and (2)
causing a fatality through the negligent
or criminal operation of a CMV. Firstyear information system development
and implementation costs average
$36,234 per State. Extrapolating to all
fifty States and the District of Columbia
results in total system development and
implementation costs of $1.61 million
when discounted to the year 2002.
Annual costs thereafter include
additional data entry by State
government staff and new driver
disqualifications resulting from new
FMCSR offenses. The FMCSA assumes
10 percent of CDL drivers with
suspended licenses (or 3,864) will
violate the new provision and will
subsequently receive disqualifications
of one year on average (or 2,080 working
hours) and that these drivers will secure
alternative employment at a 10 percent
wage reduction.
We expect 4,296 new CDL drivers to
be disqualified annually either for being
convicted of driving while suspended or
for causing a fatality through negligent
or criminal operation of a CMV, for an
average of one year each, and that each
accepts alternative employment at a 10
percent wage reduction. Additionally,
the FMCSA included the costs for data
entry and for each CDL driver’s record
to be checked by a patrolman, costing
about $450,000 (undiscounted,
combined) annually for the period 2005
through 2011. The present value of total
costs for this section is $89.1 million.
Section 201(b) of MCSIA—Emergency
Disqualification of Drivers Posing an

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

Imminent Hazard—authorizes the
Secretary to impose an emergency
disqualification on drivers whose
continued operation of a CMV the
Secretary determines would constitute
an imminent hazard. In cases where the
Secretary proposes emergency
disqualification beyond 30 days, the
driver must be notified of the proposed
action and provided the opportunity for
a hearing. We assume that all such
drivers would request a hearing and
include: (a) Costs to review CDL drivers’
records for IH designation; (b) costs to
hold hearings for each driver when an
IH designation is assigned to a CDL
driver; (c) costs to CDL drivers who are
given the IH designation; and (d) data
entry costs for State employees where
the IH designation is applied. These
discounted ‘‘later year’’ costs (using
OMB-prescribed seven percent discount
rate) total $6.2 million, for the period
2004 through 2011. Therefore, with the
$2.15 million set-up costs, the present
value of costs of Section 201(b) of
MCSIA total $8.3 million.
Sections 201(b) and 202(h) of
MCSIA—Disqualification for non-CMV
Violations’prohibits the holder of a CDL
from operating a CMV if the CDL holder
commits certain offenses while
operating a non-CMV. First-year costs
for this rule should total approximately
$1.73 million (present value); most of
these are for information system
developments and modifications by
State agencies. Annual costs are
estimated at $168.7 million (present
value) and include wages lost by an
average of 9,661 CDL holders who
would be suspended or disqualified
because of this rule. FMCSA estimates
that those CDL holders who would be
disqualified because of this rule would
find alternative work at a 10 percent
reduction in hourly wages, for an
average of 317 days, over the 10-year
analysis period. The total cost of this
provision is approximately $170.4
million (present value) over the ten-year
analysis period for 2004 through 2013,
using a discount rate of 7 percent.

PO 00000

Frm 00012

Fmt 4701

Sfmt 4700

Section 201(c) of MCSIA—Expanded
Definition of Serious Traffic
Violations—adds three new offenses to
the FMCSR definition of serious traffic
violations. These new violations
include: (1) Driving a CMV when the
driver has not obtained a CDL; (2)
driving a CMV without a CDL in the
driver’s possession; and (3) driving a
CMV without the driver having met the
minimum testing standards for the
specific class of CMV being operated, or
for the type of cargo being transported
in the vehicle. This increases the total
number of serious traffic violations, as
defined in Part 383 of the FMCSRs, from
five to eight. System development and
implementation costs include hardware,
software, and personnel costs to
implement this provision and average
$29,643 per State. Extrapolating these
results to all fifty States and the District
of Columbia results in a discounted cost
of $1.41 million. Annual, or ongoing,
costs for this provision include: (a)
Costs to patrolmen to write the
convictions for 3 new serious traffic
violation offenses; (b) costs to input the
new conviction data into CDL drivers’
records and report disqualifying
information to CDLIS; and (c) costs to
CDL drivers who will be disqualified as
a result of the 3 new serious traffic
violations. The present value of these
annual costs is $41.9 million. That
brings the total cost for this section to
$43.3 million.
Section 202(a) of MCSIA—Expanded
Driver Record Check—first-year costs
equal approximately $1.46 million
(present value) for all fifty States and
Washington, DC. Discounted ‘‘later
year’’ costs total $41.0 million for the
period 2004 through 2011. Therefore,
present values costs of Section 202(a) of
MCSIA total $42.5 million.
Section 202(c) of MCSIA—New
Notification Requirements—requires
States to notify CDLIS and the State that
issued the CDL no later than 10 days
after disqualifying a CDL holder from
operating a CMV (or revoking,
suspending, or canceling a CDL) for at
least 60 days. Information system

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
development and implementation costs
include hardware, software, and
personnel costs and average $34,339 per
State. Extrapolating these results to all
fifty States and the District of Columbia
results in total system development and
implementation costs of Section 202(c)
of MCSIA of $1.75 million. This
regulation allows these costs to be
spread over three years, so the first-year
costs are just less than $0.6 million.
Annual, or ongoing, costs begin in 2005
and include the on-going costs to State
government agencies to ensure that CDL
convictions are consistently transferred
within the 10-day window and for
States to transmit specific conviction
information with each driver
disqualification record. FMCSA
assumes that this provision would not
result in any new disqualifications,
since it primarily addresses the amount
of CDL holder information transmitted.
Discounted later year costs total $3.2
million for the remaining two years of
the implementation and the period 2005
through 2011 combined. Therefore,
present value costs for Section 202(b) of
MCSIA total $3.8 million.
Section 202(g) of MCSIA—Masking
Prohibition—prohibits the practice of
masking convictions and thereby
requires the CDL record to be
maintained or transmitted to the State
where the driver is licensed and be
made available to all authorized parties
and government entities. Information
system development and
implementation costs include hardware,
software, and personnel costs and
average $47,393 per State. Extrapolating
these results to all fifty States and the
District of Columbia results in total
system development and
implementation costs of $2.42 million.
Annual, or ongoing, costs begin in 2002
and are primarily comprised of wage
reduction costs to those CDL holders
who will be disqualified because
conviction information is being
transmitted to their home State
licensing agency. Assuming that States
that mask convictions are similar to
States that do not mask, and that States
mask all convictions if they mask at all,
the maximum number of FMCSRrequired withdrawal convictions that
could be unmasked would be 5,173 as
a result of this provision’s
implementation. That would result in
wage reductions of approximately $4.3
million annually. Since it is unrealistic
to assume that all convictions are
masked or that no convictions are
masked, we assume that half are
masked. The present value of costs from
the ‘‘Masking Prohibition’’ total $16.3.

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

Benefits: Crashes Avoided for the Final
Rule To Be Cost Effective
The primary societal benefits
expected from this rule are the truckrelated crashes that one would expect to
be avoided due to the additional CMV
operators (mainly CDL holders) who
will be suspended or disqualified for
violations of the new disqualifying
offenses and serious traffic violations. It
was not possible to estimate the specific
number of truck-related crashes that
would be avoided from implementing
each provision of this rule, given that
FMCSA has no data directly linking
these specific FMCSR-defined offenses
and truck-related crashes. However,
FMCSA did use cost data on truckrelated crashes from Zaloshnja, Miller,
and Spicer (‘‘The Costs of Large Truckand Bus-Involved Crashes,’’ 2000) to
derive an estimate of the total number
of truck-related crashes that would have
to be avoided per year (during the
analysis period) for this rule to be cost
effective (i.e. for discounted benefits to
equal/exceed discounted costs). Those
benefits are found in Tables 1 through
4 above.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA),
as amended by the Small Business
Regulatory Enforcement and Fairness
Act (SBREFA), requires Federal agencies
to analyze the impact of rulemakings on
small entities, unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities. We
do not believe that these proposals meet
the threshold values for requiring an
RFA analysis, since the anticipated
impact is fairly small. Nonetheless,
because of the public interest in these
proposals, the FMCSA has prepared this
RFA analysis.
(1) A description of the reasons why
action by the agency is being
considered. The CDL program has been
in operation since 1986. Since that time,
potential process improvements to
enhance car safety have been identified.
This rule implements some of those
changes.
(2) A succinct statement of the
objectives of, and the legal basis for, the
proposed rule. In 1999, Congress passed
the Motor Carrier Safety Improvement
Act (MCSIA). Sections of that Act direct
changes in the CDL program. The
changes in procedures are a direct
response to this legislation. FMCSA
hopes that these changes will make the
CDL program more effective in
preventing dangerous drivers from
continuing to drive and will result in
improved safety by improving the

PO 00000

Frm 00013

Fmt 4701

Sfmt 4700

49753

performance of drivers and removing
unsafe drivers from the road.
(3) A description and, where feasible,
an estimate of the number of small
entities to which the rule will apply. In
the trucking industry, there are a few
large firms with many employees and
many very small firms with only a
handful of employees. To the extent
which the rule imposes costs on firms,
these small firms will endure the largest
portion of that burden. The incidence of
driver disqualification is not likely to be
different among firms, however large
firms are better able to spread the risk
of having a driver disqualified.
(4) A description of the proposed
reporting, recordkeeping and other
compliance requirements of the
proposed rule, including an estimate of
the classes of small entities which will
be subject to the requirement and the
type of professional skills necessary for
preparation of the report or record.
Although these small entities will have
to keep records on all of their
employees’ status regarding the CDL,
there is no additional administrative
cost borne by them because they already
have to maintain those records under
the current system. The avenue through
which these small businesses might be
adversely affected is a reduction in the
number of available drivers who can
qualify under the stricter rules. If that
number is significantly reduced,
employers may find that they have to
pay drivers a premium wage in order to
continue to provide their level of
service.
(5) Identification, to the extent
practicable, of all relevant Federal rules
which may duplicate, overlap or conflict
with the proposed rule. The FMCSA is
not aware of any other rules or
procedures that duplicate or conflict
with this rule.
(6) Significant Alternatives Available.
Allowing differences in compliance or
reporting for small entities would be
contrary to the intent of Congress in
issuing this mandate. The purpose of
MCSIA is to strengthen and standardize
the CDL program. Another key
component of the CDL program is
national uniformity and consistency in
its administration. This promotes
effective enforcement.
We certify that the rule will not have
a significant impact on a substantial
number of small entities.
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49754

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

eliminate ambiguity, and reduce
burden.
Executive Order 13045 (Protection of
Children)
We have analyzed this rule under E.O.
13045, ‘‘Protection of Children from
Environmental Health Risks and Safety
Risks.’’ This rule is not economically
significant and does not involve an
environmental risk to health or safety
that would disproportionately affect
children.
Executive Order 12630 (Taking of
Private Property)
This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
Executive Order 13132 (Federalism)
This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132 dated August 4, 1999, and it has
been determined that this action does
not have substantial direct Federalism
implications that would limit the
policymaking discretion of the States.
This action will not have a significant
effect on the States’ ability to execute
traditional State governmental
functions, and any additional
administrative cost borne by the States
should be negligible.
Executive Order 12372
(Intergovernmental Review)
Catalog of Federal Domestic
Assistance Program Number 20.217,
Motor Carrier Safety. The regulations
implementing Executive Order 12372
regarding intergovernmental
consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501–3520), a
Federal agency must obtain approval
from the Office of Management and
Budget (OMB) for each collection of
information it conducts, sponsors, or
requires through regulations. An
analysis of this rule has been made by
the FMCSA, and it has been determined
that it will affect the information
collection burden associated with the
currently-approved information
collection covered by OMB Control No.
2126–0011, titled ‘‘Commercial Driver
Licensing and Test Standards.’’ The
OMB approved the most recent update
of this information collection on
October 3, 2001, at 620,802 burden

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

hours. The approval period runs
through October 31, 2004.
The implementation of this final rule
will require the State DMVs to enter
additional information into CDLIS—
whether the CDL holder committed the
violation in a CMV or a non-CMV. We
estimate the time required to complete
this additional information in CDLIS to
be approximately 2 seconds per
applicant. The currently-approved
estimate for completing a CDLIS entry is
2 minutes. We believe the 2 additional
seconds can be folded into the 2
minutes and that the 2-minute estimate
is still accurate. Therefore, there is no
increase in burden hours from this
provision.
The currently-approved estimate of
the number of violations is 1 violation
every 3 years for the 10,000,000 CDL
holders. We estimate that with the
additional violations, approximately
one-quarter of the 10,000,000 CDL
holders (2,500,000) will receive an
additional violation over the 3-year
period. This would be 833,333
additional violations. The currentlyapproved estimate of staff time to input
the new violations into State systems
and transfer to CDLIS is 2 minutes.
Therefore, the additional burden created
by this final rule is 27,778 burden hours
[833,333 x 2 minutes/60 minutes].
Start-up costs include information
system, or computer, costs incurred by
State government agencies to implement
the new CDL program provisions under
MCSIA. Specific examples include costs
required to establish or modify
computer systems within each State to
log, review, and transfer the new serious
traffic violations identified under
MCSIA. Additionally, these costs
include information systems costs to
implement the new notification
requirements for States under MCSIA.
Such costs include hardware, software,
and personnel costs to establish or
modify computer systems within each
State. Estimates of the combined startup, or first-year, costs for the 50 States
and the District of Columbia are shown
below.
Final rule section title
‘‘* * * Driving While Suspended * * *’’ .......................
‘‘* * * Imminent Hazard’’ ..........
‘‘Disqualifications for non-CMV
Offenses’’ ..............................
‘‘Expanded Definition of Serious Traffic Violations’’ ...........
‘‘Expanded Driver Record
Check’’ ..................................
‘‘New Notification Requirements’’ ...................................

PO 00000

Frm 00014

Fmt 4701

Sfmt 4700

Final rule section title

Total firstyear costs
(in millions)

‘‘Masking Prohibition’’ ...............
Total ...................................

2.42
11.4

At NPRM stage, we requested
comments on the information collection
aspects of this rule. No comments
regarding the information collection
burden hours were received. You may
submit any additional comments on the
information collection burden
addressed by this final rule to the Office
of Management and Budget (OMB). The
OMB must receive your comments by
August 30, 2002. You must mail or hand
deliver your comments to: Attention:
Desk Officer for the Department of
Transportation, Docket Library, Office of
Information and Regulatory Affairs,
Office of Management and Budget,
Room 10102, 725 17th Street, NW.,
Washington, DC 20503.
National Environmental Policy Act
The Federal Motor Carrier Safety
Administration is a new administration
within the Department of
Transportation. We are striving to meet
all of the statutory and executive branch
requirements on rulemaking. The
FMCSA is currently developing an
agency order that will comply with all
statutory and regulatory policies under
the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.). We
expect the draft FMCSA Order to appear
in the Federal Register for public
comment in the near future. The
framework of the FMCSA Order is
consistent with and reflects the
procedures for considering
environmental impacts under DOT
Order 5610.1C. The FMCSA analyzed
this rule under the NEPA and DOT
Order 5610.1C. We believe it would be
among the type of regulations that
would be categorically excluded from
any environmental assessment.
Executive Order 13211 (Energy Supply,
Distribution, or Use)

We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use. This action is not
$1.61 a significant energy action within the
$2.15 meaning of section 4(b) of the Executive
Order because it is not economically
1.73 significant and not likely to have a
significant adverse effect on the supply,
1.41
distribution, or use of energy.
1.46 Additionally, the Administrator of the
Office of Information and Regulatory
0.58 Affairs has not designated this rule as a

Total firstyear costs
(in millions)

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
significant energy action. For these
reasons, a Statement of Energy Effects
under Executive Order 13211 is not
required.
Unfunded Mandates Reform Act of 1995
This rule does not impose a Federal
mandate resulting in the expenditure by
State, local, or tribal governments, in the
aggregate, or by the private sector, of
$100 million or more in any one year.
(2 U.S.C. 1531 et seq.)
List of Subjects
49 CFR Part 350
Grant programs—transportation,
Highway safety, Motor carriers, Motor
vehicle safety, Reporting and
recordkeeping requirements.
49 CFR Part 383
Administrative practice and
procedure, Alcohol abuse, Commercial
driver’s license, Commercial motor
vehicles, Drug abuse, Highway safety,
Motor carriers, Motor vehicle safety.
49 CFR Part 384
Administrative practice and
procedure, Alcohol abuse, Commercial
driver’s license, Commercial motor
vehicles, Drug abuse, Highway safety,
Incorporation by reference,
Intergovernmental relations, Motor
carriers, Motor vehicle safety, Reporting
and recordkeeping requirements.
49 CFR Part 390
Highway safety, Intermodal
transportation, Motor carriers, Motor
vehicle safety, Reporting and
recordkeeping requirements.
In consideration of the foregoing, the
FMCSA amends title 49, Code of
Federal Regulations, Chapter III, parts
350, 383, 384, and 390 as set forth
below:
PART 350—COMMERCIAL MOTOR
CARRIER SAFETY ASSISTANCE
PROGRAM
1. Revise the authority citation for
part 350 to read as follows:
Authority: 49 U.S.C. 31100–31104, 31108,
31136, 31140–31141, 31161, 31310–31312,
31502; Sec. 103 of Pub. L. 106–159, 113 Stat.
1753; and 49 CFR 1.73.

2. Add § 350.217 to subpart B to read
as follows:
§ 350.217 What are the consequences for
a State with a CDL program not in
substantial compliance with 49 CFR part
384, subpart B?

(a) A State with a CDL program not in
substantial compliance with 49 CFR
part 384, subpart B, as required by 49
CFR part 384, subpart C, is subject to the

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

loss of all Motor Carrier Safety
Assistance Program (MCSAP) grant
funds authorized under sec. 103(b)(1) of
the Motor Carrier Safety Improvement
Act of 1999 [Pub. L. 106–159, 113 Stat.
1748] and loss of certain Federal-aid
highway funds, as specified in 49 CFR
part 384, subpart D.
(b) Withheld MCSAP grant funds will
be restored to the State if the State meets
the conditions of § 384.403(b) of this
subchapter.
PART 383—COMMERCIAL DRIVER’S
LICENSE STANDARDS;
REQUIREMENTS AND PENALTIES
3. Revise the authority citation for
part 383 to read as follows:
Authority: 49 U.S.C. 521, 31136, 31301 et
seq., 31502; Sec. 214 of Pub. L. 106–159, 113
Stat. 1766; and 49 CFR 1.73.

4. Revise § 383.3(f)(3)(i)(C) to read as
follows:
§ 383.3

Applicability

*

*
*
*
*
(f) * * *
(3) * * *
(i) * * *
(C) Has not had any conviction for
any type of motor vehicle for the
disqualifying offenses contained in
§ 383.51(b);
*
*
*
*
*
5. Amend § 383.5 to revise the
definitions of the terms
‘‘disqualification,’’ ‘‘driving a
commercial motor vehicle while under
the influence of alcohol,’’ ‘‘non-resident
CDL’’ and ‘‘serious traffic violation’’ and
to add the definitions of the terms
‘‘fatality,’’ ‘‘imminent hazard,’’ ‘‘nonCMV,’’ and ‘‘school bus’’ in alphabetical
order to read as follows:
§ 383.5

Definitions.

*

*
*
*
*
Disqualification means any of the
following three actions:
(a) The suspension, revocation, or
cancellation of a CDL by the State or
jurisdiction of issuance.
(b) Any withdrawal of a person’s
privileges to drive a CMV by a State or
other jurisdiction as the result of a
violation of State or local law relating to
motor vehicle traffic control (other than
parking, vehicle weight or vehicle defect
violations).
(c) A determination by the FMCSA
that a person is not qualified to operate
a commercial motor vehicle under part
391 of this chapter.
*
*
*
*
*
Driving a commercial motor vehicle
while under the influence of alcohol
means committing any one or more of
the following acts in a CMV—

PO 00000

Frm 00015

Fmt 4701

Sfmt 4700

49755

(a) Driving a CMV while the person’s
alcohol concentration is 0.04 or more;
(b) Driving under the influence of
alcohol, as prescribed by State law; or
(c) Refusal to undergo such testing as
is required by any State or jurisdiction
in the enforcement of § 383.51(b) or
§ 392.5(a)(2) of this subchapter.
*
*
*
*
*
Fatality means the death of a person
as a result of a motor vehicle accident.
*
*
*
*
*
Imminent hazard means the existence
of a condition that presents a substantial
likelihood that death, serious illness,
severe personal injury, or a substantial
endangerment to health, property, or the
environment may occur before the
reasonably foreseeable completion date
of a formal proceeding begun to lessen
the risk of that death, illness, injury or
endangerment.
*
*
*
*
*
Nonresident CDL means a CDL issued
by a State under either of the following
two conditions:
(a) To an individual domiciled in a
foreign country meeting the
requirements of § 383.23(b)(1).
(b) To an individual domiciled in
another State meeting the requirements
of § 383.23(b)(2).
*
*
*
*
*
Non-CMV means a motor vehicle or
combination of motor vehicles not
defined by the term ‘‘commercial motor
vehicle (CMV)’’ in this section.
*
*
*
*
*
School bus means a CMV used to
transport pre-primary, primary, or
secondary school students from home to
school, from school to home, or to and
from school-sponsored events. School
bus does not include a bus used as a
common carrier.
Serious traffic violation means
conviction of any of the following
offenses when operating a CMV, except
weight, defect and parking violations:
(a) Excessive speeding, involving any
single offense for any speed of 15 miles
per hour or more above the posted
speed limit;
(b) Reckless driving, as defined by
State or local law or regulation,
including but not limited to offenses of
driving a CMV in willful or wanton
disregard for the safety of persons or
property;
(c) Improper or erratic traffic lane
changes;
(d) Following the vehicle ahead too
closely;
(e) A violation, arising in connection
with a fatal accident, of State or local
law relating to motor vehicle traffic
control;
(f) Driving a CMV without obtaining
a CDL;

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49756

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

(g) Driving a CMV without a CDL in
the driver’s possession. Any individual
who provides proof to the enforcement
authority that issued the citation, by the
date the individual must appear in court
or pay any fine for such a violation, that
the individual held a valid CDL on the
date the citation was issued, shall not be
guilty of this offense; or
(h) Driving a CMV without the proper
class of CDL and/or endorsements for
the specific vehicle group being
operated or for the passengers or type of
cargo being transported.
*
*
*
*
*
6. Add § 383.7 to subpart A to read as
follows:
§ 383.7 Validity of CDL issued by
decertified State.

A CDL issued by a State prior to the
date the State is notified by the
Administrator, in accordance with the
provisions of § 384.405 of this
subchapter, that the State is prohibited
from issuing CDLs, will remain valid
until its stated expiration date.
7. Amend § 383.23 to revise
paragraphs (a)(2) and (b) to read as
follows:
§ 383.23

part, issued by his/her State or
jurisdiction of domicile.
(b) Exception. (1) If a CMV operator is
not domiciled in a foreign jurisdiction
which the Administrator has
determined tests drivers and issues
CDLs in accordance with, or under
standards similar to, the standards
contained in subparts F, G, and H of this
part, the person may obtain a
Nonresident CDL from a State which
does comply with the testing and
licensing standards contained in such
subparts F, G, and H of this part.1
(2) If an individual is domiciled in a
State while that State is prohibited from
issuing CDLs in accordance with
§ 384.405 of this subchapter, that
individual is eligible to obtain a
Nonresident CDL from any State that
elects to issue a Nonresident CDL and
which complies with the testing and
licensing standards contained in
subparts F, G, and H of this part.
*
*
*
*
*
8. Revise § 383.51 to read as follows:
§ 383.51

Commercial driver’s license.

(a) * * *
(2) Except as provided in paragraph
(b) of this section, no person may legally
operate a CMV unless such person
possesses a CDL which meets the
standards contained in subpart J of this

Disqualification of drivers.

(a) General. (1) A driver or holder of
a CDL who is disqualified must not
drive a CMV.
(2) An employer must not knowingly
allow, require, permit, or authorize a
driver who is disqualified to drive a
CMV.
(3) A driver is subject to
disqualification sanctions designated in

paragraphs (b) and (c) of this section, if
the holder of a CDL drives a CMV or
non-CMV and is convicted of the
violations.
(4) Determining first and subsequent
violations. For purposes of determining
first and subsequent violations of the
offenses specified in this subpart, each
conviction for any offense listed in
Tables 1 through 4 to this section
resulting from a separate incident,
whether committed in a CMV or nonCMV, must be counted.
(5) Reinstatement after lifetime
disqualification. A State may reinstate
any driver disqualified for life for
offenses described in paragraphs (b)(1)
through (b)(8) of this section (Table 1 to
§ 383.51) after 10 years if that person
has voluntarily entered and successfully
completed an appropriate rehabilitation
program approved by the State. Any
person who has been reinstated in
accordance with this provision and who
is subsequently convicted of a
disqualifying offense described in
paragraphs (b)(1) through (b)(8) of this
section (Table 1 to § 383.51) must not be
reinstated.
(b) Disqualification for major offenses.
Table 1 to § 383.51 contains a list of the
offenses and periods for which a driver
must be disqualified, depending upon
the type of vehicle the driver is
operating at the time of the violation, as
follows:

TABLE 1 TO § 383.51

For a first conviction or refusal to
be tested while
operating a CMV,
a person required
to have a CDL
and a CDL holder
must be disqualified from operating a CMV for
. . .

For a first conviction or refusal to
be tested while
operating a nonCMV, a CDL
holder must be
disqualified from
operating a CMV
for . . .

For a first conviction or refusal to
be tested while
operating a CMV
transporting hazardous materials
required to be
placarded under
the Hazardous
Materials Regulations (49 CFR
part 172, subpart
F), a person required to have a
CDL and CDL
holder must be
disqualified from
operating a CMV
for . . .

(1) Being under the influence of alcohol
as prescribed by State law * * *.

1 year ..................

1 year ..................

3 years ................

Life ......................

Life.

(2) Being under the influence of a controlled substance * * *.

1 year ..................

1 year ..................

3 years ................

Life ......................

Life.

If a driver operates a motor vehicle and is
convicted of:

1 Effective December 29, 1988, the Administrator
determined that commercial drivers’ licensees
issued by Canadian Provinces and Territories in
conformity with the Canadian National Safety Code
are in accordance with the standards of this part.
Effective November 21, 1991, the Administrator

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

determined that the new Licencias Federales de
Conductor issued by the United Mexican States are
in accordance with the standards of this part.
Therefore, under the single license provision of
§ 383.21, a driver holding a commercial driver’s
license issued under the Canadian National Safety

PO 00000

Frm 00016

Fmt 4701

Sfmt 4700

For a second
conviction or refusal to be tested
in a separate incident of any combination of offenses in this
Table while operating a CMV, a
person required
to have a CDL
and a CDL holder
must be disqualified from operating a CMV for
. . .

For a second
conviction or refusal to be tested
in a separate incident of any combination of offenses in this
Table while operating a non-CMV,
a CDL holder
must be disqualified from operating a CMV for
. . .

Code or a new Licencia Federal de Conductor
issued by Mexico is prohibited from obtaining
nonresident CDL, or any other type of driver’s
license, from a State or other jurisdiction in the
United States.

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

49757

TABLE 1 TO § 383.51—Continued

For a first conviction or refusal to
be tested while
operating a CMV,
a person required
to have a CDL
and a CDL holder
must be disqualified from operating a CMV for
. . .

For a first conviction or refusal to
be tested while
operating a nonCMV, a CDL
holder must be
disqualified from
operating a CMV
for . . .

For a first conviction or refusal to
be tested while
operating a CMV
transporting hazardous materials
required to be
placarded under
the Hazardous
Materials Regulations (49 CFR
part 172, subpart
F), a person required to have a
CDL and CDL
holder must be
disqualified from
operating a CMV
for . . .

(3) Having an alcohol concentration of
0.04 or greater while operating a CMV
* * *.

1 year ..................

Not applicable .....

3 years ................

Life ......................

Not applicable.

(4) Refusing to take an alcohol test as required by a State or jurisdiction under
its implied consent laws or regulations
as defined in § 383.72 of this part * * *.

1 year ..................

1 year ..................

3 years ................

Life ......................

Life.

(5) Leaving the scene of an accident * * *

1 year ..................

1 year ..................

3 years ................

Life ......................

Life.

(6) Using the vehicle to commit a felony,
other than a felony described in paragraph (b)(9) of this table * * *.

1 year ..................

1 year ..................

3 years ................

Life ......................

Life.

(7) Driving a CMV when, as a result of
prior violations committed operating a
CMV, the driver’s CDL is revoked, suspended, or canceled, or the driver is
disqualified from operating a CMV.

1 year ..................

Not applicable .....

3 years ................

Life ......................

Not applicable.

(8) Causing a fatality through the negligent operation of a CMV, including but
not limited to the crimes of motor vehicle manslaughter, homicide by motor
vehicle and negligent homicide.

1 year ..................

Not applicable .....

3 years ................

Life ......................

Not applicable.

(9) Using the vehicle in the commission of
a felony involving manufacturing, distributing, or dispensing a controlled substance * * *.

Life-not eligible
for 10-year reinstatement.

Life-not eligible
for 10-year reinstatement.

Life-not eligible
for 10-year reinstatement.

Life-not eligible
for 10-year reinstatement.

Life-not eligible
for 10-year reinstatement

If a driver operates a motor vehicle and is
convicted of:

For a second
conviction or refusal to be tested
in a separate incident of any combination of offenses in this
Table while operating a CMV, a
person required
to have a CDL
and a CDL holder
must be disqualified from operating a CMV for
. . .

For a second
conviction or refusal to be tested
in a separate incident of any combination of offenses in this
Table while operating a non-CMV,
a CDL holder
must be disqualified from operating a CMV for
. . .

(c) Disqualification for serious traffic violations. Table 2 to § 383.51 contains a list of the offenses and the periods
for which a driver must be disqualified, depending upon the type of vehicle the driver is operating at the time of
the violation, as follows:

TABLE 2 TO § 383.51

If the driver operates a motor and is convicted
of:

(1) Speeding excessively, involving any speed
of 24.1 kmph (15 mph) or more above the
posted speed limit * * *.

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

For a second conviction of any combination of offenses in this
Table in a separate
incident within a 3year period while operating a CMV, a person required to have
a CDL and a CDL
holder must be disqualified from operating a CMV for...

For a second conviction of any combination of offenses in this
Table in a separate
incident within a 3year period while operating a non-CMV, a
CDL holder must be
disqualified from operating a CMV for...

For a third or subsequent conviction of
any combination of offenses in this Table in
a separate incident
within a 3-year period
while operating a
CMV, a person required to have a CDL
and a CDL holder
must be disqualified
from operating a CMV
for...

For a third or subsequent conviction of
any combination of offenses in this Table in
a separate incident
within a 3-year period
while operating a nonCMV, a CDL holder
must be disqualified
from operating a CMV
for...

60 days ......................

60 days ......................

120 days ....................

120 days.

PO 00000

Frm 00017

Fmt 4701

Sfmt 4700

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49758

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
TABLE 2 TO § 383.51—Continued
For a second conviction of any combination of offenses in this
Table in a separate
incident within a 3year period while operating a CMV, a person required to have
a CDL and a CDL
holder must be disqualified from operating a CMV for...

For a second conviction of any combination of offenses in this
Table in a separate
incident within a 3year period while operating a non-CMV, a
CDL holder must be
disqualified from operating a CMV for...

For a third or subsequent conviction of
any combination of offenses in this Table in
a separate incident
within a 3-year period
while operating a
CMV, a person required to have a CDL
and a CDL holder
must be disqualified
from operating a CMV
for...

For a third or subsequent conviction of
any combination of offenses in this Table in
a separate incident
within a 3-year period
while operating a nonCMV, a CDL holder
must be disqualified
from operating a CMV
for...

(2) Driving recklessly, as defined by State or
local law or regulation, including but, not
limited to, offenses of driving a motor vehicle in willful or wanton disregard for the
safety of persons or property * * *.

60 days ......................

60 days ......................

120 days ....................

120 days.

(3) Making improper or erratic traffic lane
changes * * *.

60 days ......................

60 days ......................

120 days ....................

120 days.

(4) Following the vehicle ahead too closely
* * *.

60 days ......................

60 days ......................

120 days ....................

120 days.

(5) Violating State or local law relating to
motor vehicle traffic control (other than a
parking violation) arising in connection with
a fatal accident * * *.

60 days ......................

60 days ......................

120 days ....................

120 days.

(6) Driving a CMV without obtaining a CDL ....

60 days ......................

Not applicable ...........

120 days ....................

Not applicable.

(7) Driving a CMV without a CDL in the driver’s possession 1.

60 days ......................

Not applicable ...........

120 days ....................

Not applicable.

(8) Driving a CMV without the proper class of
CDL and/or endorsements for the specific
vehicle group being operated or for the passengers or type of cargo being transported.

60 days ......................

Not applicable ...........

120 days ....................

Not applicable.

If the driver operates a motor and is convicted
of:

1 Any individual who provides proof to the enforcement authority that issued the citation, by the date the individual must appear in court or pay
any fine for such a violation, that the individual held a valid CDL on the date the citation was issued, shall not be guilty of this offense.

(d) Disqualification for railroad-highway grade crossing offenses. Table 3 to § 383.51 contains a list of the offenses
and the periods for which a driver must be disqualified, when the driver is operating a CMV at the time of the
violation, as follows:

TABLE 3 TO § 383.51

For a first conviction a person required to have a CDL
and a CDL holder must be
disqualified from operating
a CMV for . . .

For a second conviction of
any combination of offenses in this Table in a
separate incident within a
3-year period, a person required to have a CDL and a
CDL holder must be disqualified from operating a
CMV for . . .

For a third or subsequent
conviction of any combination of offenses in this
Table in a separate incident
within a 3-year period, a
person required to have a
CDL and a CDL holder
must be disqualified from
operating a CMV for . . .

(1) The driver is not required to always stop, but fails
to slow down and check that tracks are clear of an
approaching train * * *.

No less than 60 days .........

No less than 120 days .......

No less than 1 year.

(2) The driver is not required to always stop, but fails
to stop before reaching the crossing, if the tracks
are not clear * * *.

No less than 60 days .........

No less than 120 days .......

No less than 1 year.

(3) The driver is always required to stop, but fails to
stop before driving onto the crossing * * *.

No less than 60 days .........

No less than 120 days .......

No less than 1 year.

(4) The driver fails to have sufficient space to drive
completely through the crossing without stopping
* * *.

No less than 60 days .........

No less than 120 days .......

No less than 1 year.

If the driver is convicted of operating a CMV in violation of a Federal, State or local law because . . .

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

PO 00000

Frm 00018

Fmt 4701

Sfmt 4700

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

49759

TABLE 3 TO § 383.51—Continued

For a first conviction a person required to have a CDL
and a CDL holder must be
disqualified from operating
a CMV for . . .

For a second conviction of
any combination of offenses in this Table in a
separate incident within a
3-year period, a person required to have a CDL and a
CDL holder must be disqualified from operating a
CMV for . . .

For a third or subsequent
conviction of any combination of offenses in this
Table in a separate incident
within a 3-year period, a
person required to have a
CDL and a CDL holder
must be disqualified from
operating a CMV for . . .

(5) The driver fails to obey a traffic control device or
the directions of an enforcement official at the
crossing * * *.

No less than 60 days .........

No less than 120 days .......

No less than 1 year.

(6) The driver fails to negotiate a crossing because of
insufficient undercarriage clearance * * *.

No less than 60 days .........

No less than 120 days .......

No less than 1 year.

If the driver is convicted of operating a CMV in violation of a Federal, State or local law because . . .

(e) Disqualification for violating out-of-service orders. Table 4 to § 383.51 contains a list of the offenses and periods
for which a driver must be disqualified when the driver is operating a CMV at the time of the violation, as follows:

TABLE 4 TO § 383.51

If the driver operates a CMV and is convicted of . . .

For a first conviction while
operating a CMV, a person
required to have a CDL and
a CDL holder must be disqualified from operating a
CMV for . . .

For a second conviction in
a separate incident within a
10-year period while operating a CMV, a person required to have a CDL and a
CDL holder must be disqualified from operating a
CMV for . . .

For a third or subsequent
conviction in a separate incident within a 10-year period while operating a CMV,
a person required to have a
CDL and a CDL holder
must be disqualified from
operating a CMV for . . .

(1) Violating a driver or vehicle out-of-service order
while transporting nonhazardous materials . . .

No less than 90 days or
more than 1 year.

No less than 1 year or
more than 5 years.

No less than 3 years or
more than 5 years.

(2) Violating a driver or vehicle out-of-service order
while transporting hazardous materials required to
be placarded under part 172, subpart F of this title,
or while operating a vehicle designed to transport
16 or more passengers, including the driver . . .

No less than 180 days or
more than 2 years.

No less than 3 years or
more than 5 years.

No less than 3 years or
more than 5 years.

9. Add § 383.52 to read as follows:
§ 383.52 Disqualification of drivers
determined to constitute an imminent
hazard.

(a) The Assistant Administrator or
his/her designee must disqualify from
operating a CMV any driver whose
driving is determined to constitute an
imminent hazard, as defined in § 383.5.
(b) The period of the disqualification
may not exceed 30 days unless the
FMCSA complies with the provisions of
paragraph (c) of this section.
(c) The Assistant Administrator or
his/her delegate may provide the driver
an opportunity for a hearing after
issuing a disqualification for a period of
30 days or less. The Assistant
Administrator or his/her delegate must
provide the driver notice of a proposed
disqualification period of more than 30
days and an opportunity for a hearing to
present a defense to the proposed
disqualification. A disqualification
imposed under this paragraph may not
exceed one year in duration. The driver,
or a representative on his/her behalf,
may file an appeal of the
disqualification issued by the Assistant

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

Administrator’s delegate with the
Assistant Administrator, Adjudications
Counsel, Federal Motor Carrier Safety
Administration (Room 8217), 400
Seventh Street, SW., Washington, DC
20590.
(d) Any disqualification imposed in
accordance with the provisions of this
section must be transmitted by the
FMCSA to the jurisdiction where the
driver is licensed and must become a
part of the driver’s record maintained by
that jurisdiction.
(e) A driver who is simultaneously
disqualified under this section and
under other provisions of this subpart,
or under State law or regulation, shall
serve those disqualification periods
concurrently.
10. Revise § 383.53(b)(1) to read as
follows:
§ 383.53

Penalties.

*

*
*
*
*
(b) Special penalties pertaining to
violation of out-of-service orders—(1)
Driver violations. A driver who is
convicted of violating an out-of-service
order shall be subject to a civil penalty
of not less than $1,100 nor more than

PO 00000

Frm 00019

Fmt 4701

Sfmt 4700

$2,750, in addition to disqualification
under § 383.51(e).
*
*
*
*
*
11. Amend § 383.71 to revise
paragraphs (a)(6), (a)(7), (b)(3), (b)(4),
and (c)(3); and to add new paragraphs
(a)(8), (b)(5), and (c)(4) to read as
follows:
§ 383.71

Driver application procedures.

(a) * * *
(6) Certify that he/she is not subject to
any disqualification under § 383.51, or
any license suspension, revocation, or
cancellation under State law, and that
he/she does not have a driver’s license
from more than one State or
jurisdiction;
(7) Surrender the applicant’s non-CDL
driver’s licenses to the State; and
(8) Provide the names of all States
where the applicant has previously been
licensed to drive any type of motor
vehicle during the previous 10 years.
(b) * * *
(3) If the applicant wishes to retain a
hazardous materials endorsement,
comply with State requirements as
specified in § 383.73(b)(4);

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49760

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

(4) Surrender the CDL from the old
State of domicile to the new State of
domicile; and
(5) Provide the names of all States
where the applicant has previously been
licensed to drive any type of motor
vehicle during the previous 10 years.
(c) * * *
(3) If a person wishes to retain a
hazardous materials endorsement, pass
the test for such endorsement as
specified in § 383.121; and
(4) Provide the names of all States
where the applicant has previously been
licensed to drive any type of motor
vehicle during the previous 10 years.
*
*
*
*
*
12. Revise § 383.73(a)(3) to read as
follows:

the driver record check required by this
paragraph (a)(3) has been made and
noting the date it was done; and
*
*
*
*
*
13. Revise § 383.77(a)(3) to read
follows:

§ 383.73

§ 383.93

State procedures.

(a) * * *
(3) Initiate and complete a check of
the applicant’s driving record to ensure
that the person is not subject to any
disqualification under § 383.51, or any
license suspension, revocation, or
cancellation under State law, and that
the person does not have a driver’s
license from more than one State or
jurisdiction. The record check must
include, but is not limited to, the
following:
(i) A check of the applicant’s driving
record as maintained by his/her current
State of licensure, if any;
(ii) A check with the CDLIS to
determine whether the driver applicant
already has been issued a CDL, whether
the applicant’s license has been
suspended, revoked, or canceled, or if
the applicant has been disqualified from
operating a commercial motor vehicle;
(iii) A check with the National Driver
Register (NDR) to determine whether the
driver applicant has:
(A) Been disqualified from operating
a motor vehicle (other than a
commercial motor vehicle);
(B) Had a license (other than CDL)
suspended, revoked, or canceled for
cause in the 3-year period ending on the
date of application; or
(C) Been convicted of any offenses
contained in section 205(a)(3) of the
National Driver Register Act of 1982 (23
U.S.C. 401 note); and
(iv) A request for the applicant’s
complete driving record from all States
where the applicant was previously
licensed over the last 10 years to drive
any type of motor vehicle. Exception: A
State is only required to make the
driving record check specified in this
paragraph (a)(3) for drivers renewing a
CDL for the first time after September
30, 2002, provided a notation is made
on the driver’s record confirming that

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

§ 383.77

Substitute for driving skills tests.

*

*
*
*
*
(a) * * *
(3) Has not had any convictions for
any type of motor vehicle for the
disqualifying offenses contained in
§ 383.51(b);
*
*
*
*
*
14. Amend § 383.93 to revise
paragraphs (b)(3), (b)(4), (c)(3), and
(c)(4); and to add new paragraphs (b)(5)
and (c)(5) to read as follows:
Endorsements.

*

*
*
*
*
(b) * * *
(3) Tank vehicles;
(4) Required to be placarded for
hazardous materials; or
(5) School buses.
(c) * * *
(3) Tank vehicle—a knowledge test;
(4) Hazardous Materials—a
knowledge test; and
(5) School bus—a knowledge and a
skills test.
15. Add § 383.123 to subpart G to read
as follows:
§ 383.123 Requirements for a school bus
endorsement.

(a) An applicant for a school bus
endorsement must satisfy the following
three requirements:
(1) Qualify for passenger vehicle
endorsement. Pass the knowledge and
skills test for obtaining a passenger
vehicle endorsement.
(2) Knowledge test. Must have
knowledge covering at least the
following three topics:
(i) Loading and unloading children,
including the safe operation of stop
signal devices, external mirror systems,
flashing lights and other warning and
passenger safety devices required for
school buses by State or Federal law or
regulation.
(ii) Emergency exits and procedures
for safely evacuating passengers in an
emergency.
(iii) State and Federal laws and
regulations related to safely traversing
highway rail grade crossings.
(3) Skills test. Must take a driving
skills test in a school bus of the same
vehicle group (see § 383.91(a)) as the
school bus applicant will drive.
(b) Substitute for driving skills test. (1)
At the discretion of a State, the driving
skills test required in paragraph (a)(3) of

PO 00000

Frm 00020

Fmt 4701

Sfmt 4700

this section may be waived for an
applicant who is currently licensed, has
experience driving a school bus, has a
good driving record, and meets the
conditions set forth in paragraph (b)(2)
of this section.
(2) An applicant must certify and the
State must verify that, during the twoyear period immediately prior to
applying for the school bus
endorsement, the applicant:
(i) Held a valid CDL with a passenger
vehicle endorsement to operate a school
bus representative of the group he or she
will be driving;
(ii) Has not had his or her driver’s
license or CDL suspended, revoked or
canceled or been disqualified from
operating a CMV;
(iii) Has not been convicted of any of
the disqualifying offenses in § 383.51(b)
while operating a CMV or of any offense
in a non-CMV that would be
disqualifying under § 383.51(b) if
committed in a CMV;
(iv) Has not had more than one
conviction of any of the serious traffic
violations defined in § 383.5, while
operating any type motor vehicle;
(v) Has not had any conviction for a
violation of State or local law relating to
motor vehicle traffic control (other than
a parking violation) arising in
connection with any traffic accident;
(vi) Has not been convicted of any
motor vehicle traffic violation that
resulted in an accident; and
(vii) Has been regularly employed as
a school bus driver, has operated a
school bus representative of the group
the applicant seeks to drive, and
provides evidence of such employment.
(3) After September 30, 2005 the
provisions in paragraph (b) of this
section do not apply.
16. Amend § 383.153 to revise
paragraph (a)(9)(v), redesignate
paragraph (a)(9)(vi) as paragraph
(a)(9)(vii) and add new paragraph
(a)(9)(vi) to read as follows:
§ 383.153 Information on the document
and application.

(a) * * *
(9) * * *
(v) X for a combination of tank vehicle
and hazardous materials endorsements;
(vi) S for school bus; and
(vii) At the discretion of the State,
additional codes for additional
groupings of endorsements, as long as
each such discretionary code is fully
explained on the front or back of the
CDL document.
*
*
*
*
*

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
PART 384—STATE COMPLIANCE
WITH COMMERCIAL DRIVER’S
LICENSE PROGRAM
17. Revise the authority citation for
part 384 to read as follows:
Authority: 49 U.S.C. 31136, 31301 et seq.,
31502; Sec. 103 of Pub. L. 106–159, 113 Stat.
1753; and 49 CFR 1.73.

18. Add § 384.107 to subpart A to read
as follows:
§ 384.107 Matter incorporated by
reference.

(a) Incorporation by reference. This
part includes references to certain
matter or materials. The text of the
materials is not included in the
regulations contained in this part. The
materials are hereby made a part of the
regulations in this part. The Director of
the Office of the Federal Register has
approved the materials incorporated by
reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. For materials
subject to change, only the specific
version approved by the Director of the
Office of the Federal Register and
specified in the regulation are
incorporated. Material is incorporated
as it exists on the date of the approval
and a notice of any change in these
materials will be published in the
Federal Register.
(b) Materials incorporated. The
AAMVAnet, Inc.’s ‘‘Commercial Driver
License Information System (CDLIS)
State Procedures,’’ Version 2.0, October
1998, IBR approved for §384.231(d).
(c) Addresses. (1) All of the materials
incorporated by reference are available
for inspection at:
(i) The Department of Transportation
Library, 400 Seventh Street, SW,
Washington, DC 20590 in Room 2200.
These documents are also available for
inspection and copying as provided in
49 CFR part 7.
(ii) The Office of the Federal Register,
800 North Capitol Street, NW, Suite 700,
Washington, DC.
(2) Information and copies of all of the
materials incorporated by reference may
be obtained by writing to: American
Association of Motor Vehicle
Administrators, Inc., 4301 Wilson Blvd,
Suite 400, Arlington, VA 22203.
19. Revise § 384.203 to read as
follows:
§ 384.203 Driving while under the
influence.

(a) The State must have in effect and
enforce through licensing sanctions the
disqualifications prescribed in
§ 383.51(b) of this subchapter for driving
a CMV with a 0.04 alcohol
concentration.

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

(b) Nothing in this section shall be
construed to require a State to apply its
criminal or other sanctions for driving
under the influence to a person found
to have operated a CMV with an alcohol
concentration of 0.04, except licensing
sanctions including suspension,
revocation, or cancellation.
(c) A State that enacts and enforces
through licensing sanctions the
disqualifications prescribed in
§ 383.51(b) of this subchapter for driving
a CMV with a 0.04 alcohol
concentration and gives full faith and
credit to the disqualification of CMV
drivers by other States shall be deemed
in substantial compliance with section
12009(a)(3) of the Commercial Motor
Vehicle Safety Act of 1986 (49 U.S.C.
31311(a)(3)).
20. Amend § 384.206 to revise
paragraph (a)(2) to read as follows:
§ 384.206

State record checks.

(a) * * *
(2) Other States’ records. Before the
initial or transfer issuance of a CDL to
a person, and before renewing a CDL
held by any person, the issuing State
must:
(i) Require the applicant to provide
the names of all States where the
applicant has previously been licensed
to operate any type of motor vehicle.
(ii) Within the time period specified
in § 384.232, request the complete
driving record from all States where the
applicant was licensed within the
previous 10 years to operate any type of
motor vehicle.
(iii) States receiving a request for the
driving record of a person currently or
previously licensed by the State must
provide the information within 30 days.
*
*
*
*
*
21. Add § 384.208 to read as follows:
§ 384.208

Notification of disqualification.

(a) No later than 10 days after
disqualifying a CDL holder licensed by
another State, or revoking, suspending,
or canceling an out-of-State CDL
holder’s privilege to operate a
commercial motor vehicle for at least 60
days, the State must notify the State that
issued the license of the
disqualification, revocation, suspension,
or cancellation.
(b) The notification must include both
the disqualification and the violation
that resulted in the disqualification,
revocation, suspension, or cancellation.
The notification and the information it
provides must be recorded on the
driver’s record.
22. Revise § 384.209 to read as
follows:

PO 00000

Frm 00021

Fmt 4701

Sfmt 4700

§ 384.209

49761

Notification of traffic violations.

(a) Required notification with respect
to CDL holders. Whenever a person who
holds a CDL from another State is
convicted of a violation of any State or
local law relating to motor vehicle
traffic control (other than a parking
violation), in any type of vehicle, the
licensing entity of the State in which the
conviction occurs must notify the
licensing entity in the State where the
driver is licensed of this conviction
within the time period established in
paragraph (c) of this section.
(b) Required notification with respect
to non-CDL holders. Whenever a person
who does not hold a CDL, but who is
licensed to drive by another State, is
convicted of a violation in a CMV of any
State or local law relating to motor
vehicle traffic control (other than a
parking violation), the licensing entity
of the State in which the conviction
occurs must notify the licensing entity
in the State where the driver is licensed
of this conviction within the time
period established in paragraph (c) of
this section.
(c) Time period for notification of
traffic violations. (1) Beginning on
September 30, 2005, the notification
must be made within 30 days of the
conviction.
(2) Beginning on September 30, 2008,
the notification must be made within 10
days of the conviction.
23. Revise § 384.210 to read as
follows:
§ 384.210

Limitation on licensing.

A State must not knowingly issue a
CDL or a commercial special license or
permit (including a provisional or
temporary license) permitting a person
to drive a CMV during a period in
which:
(a) A person is disqualified from
operating a CMV, as disqualification is
defined by § 383.5 of this subchapter, or
under the provisions of § 383.73(g) or
§ 384.231(b)(2) of this subchapter;
(b) The CDL holder’s noncommercial
driving privilege has been revoked,
suspended, or canceled; or
(c) Any type of driver’s license held
by such person is suspended, revoked,
or canceled by the State where the
driver is licensed for any State or local
law related to motor vehicle traffic
control (other than parking violations).
24. Revise § 384.213 to read as
follows:
§ 384.213
CMVs.

State penalties for drivers of

The State must impose on drivers of
CMVs appropriate civil and criminal
penalties that are consistent with the

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49762

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

penalties prescribed under part 383,
subpart D, of this subchapter.
25. Revise § 384.215(a) to read as
follows:
§ 384.215

First offenses.

(a) General rule. The State must
disqualify from operating a CMV each
person who is convicted, as defined in
§ 383.5 of this subchapter, in any State
or jurisdiction, of a disqualifying offense
specified in items (1) through (8) of
Table 1 to § 383.51 of this subchapter,
for no less than one year.
*
*
*
*
*
26. Revise § 384.216 to read as
follows:
§ 384.216

Second offenses.

(a) General rule. The State must
disqualify for life from operating a CMV
each person who is convicted, as
defined in § 383.5 of this subchapter, in
any State or jurisdiction, of a
subsequent offense as described in
Table 1 to § 383.51 of this subchapter.
(b) Special rule for certain lifetime
disqualifications. A driver disqualified
for life under Table 1 to § 383.51 may
be reinstated after 10 years by the
driver’s State of residence if the
requirements of § 383.51(a)(5) have been
met.
27. Revise § 384.217 to read as
follows:
§ 384.217

Drug offenses.

The State must disqualify from
operating a CMV for life each person
who is convicted, as defined in § 383.5
of this subchapter, in any State or
jurisdiction of a first offense, of using a
CMV in the commission of a felony
described in item (9) of Table 1 to
§ 383.51 of this subchapter. The State
shall not apply the special rule in
§ 384.216(b) to lifetime disqualifications
imposed for controlled substance
felonies as detailed in item (9) of Table
1 to § 383.51 of this subchapter.
28. Revise § 384.218 to read as
follows:
§ 384.218

Second serious traffic violation.

The State must disqualify from
operating a CMV for a period of not less
than 60 days each person who, in a
three-year period, is convicted, as
defined in § 383.5 of this subchapter, in
any State(s) or jurisdiction(s), of two
serious traffic violations as specified in
Table 2 to § 383.51.
29. Revise § 384.219 to read as
follows:
§ 384.219

Third serious traffic violation.

The State must disqualify from
operating a CMV for a period of not less

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

than 120 days each person who, in a
three-year period, is convicted, as
defined in § 383.5 of this subchapter, in
any State(s) or jurisdiction(s), of three
serious traffic violations as specified in
Table 2 to § 383.51. This
disqualification period must be in
addition to any other previous period of
disqualification.
30. Add § 384.222 to read as follows:
§ 384.222
orders.

Violation of out-of-service

The State must have and enforce laws
and/or regulations applicable to drivers
of CMVs and their employers, as
defined in § 383.5 of this subchapter,
which meet the minimum requirements
of §§ 383.37(c), Table 4 to 383.51, and
383.53(b) of this subchapter.
31. Revise § 384.223 to read as
follows:
§ 384.223 Railroad-highway grade
crossing violation.

The State must have and enforce laws
and/or regulations applicable to CMV
drivers and their employers, as defined
in § 383.5 of this subchapter, which
meet the minimum requirements of
§§ 383.37(d), Table 3 to 383.51, and
383.53(c) of this subchapter.
32. Add § 384.224 to read as follows:
§ 384.224 Noncommercial motor vehicle
violations.

The State must have and enforce laws
and/or regulations applicable to drivers
of non-CMVs, as defined in § 383.5 of
this subchapter, which meet the
minimum requirements of Tables 1 and
2 to § 383.51 of this subchapter.
33. Add § 384.225 to read as follows:
§ 384.225

Record of violations.

The State must:
(a) CDL holders. Record and maintain
as part of the driver history all
convictions, disqualifications and other
licensing actions for violations of any
State or local law relating to motor
vehicle traffic control (other than a
parking violation) committed in any
type of vehicle.
(b) A person required to have a CDL.
Record and maintain as part of the
driver history all convictions,
disqualifications and other licensing
actions for violations of any State or
local law relating to motor vehicle
traffic control (other than a parking
violation) committed while the driver
was operating a CMV.
(c) Make driver history information
required by this section available to the
users designated in paragraph (e) of this
section, or to their authorized agent,
within 10 days of:

PO 00000

Frm 00022

Fmt 4701

Sfmt 4700

(1) Receiving the conviction or
disqualification information from
another State; or
(2) The date of the conviction, if it
occurred in the same State.
(d) Retain on the driver history record
all convictions, disqualifications and
other licensing actions for violations for
at least 3 years or longer as required
under § 384.231(d).
(e) Only the following users or their
authorized agents may receive the
designated information:
(1) States—All information on all
driver records.
(2) Secretary of Transportation—All
information on all driver records.
(3) Driver—Only information related
to that driver’s record.
(4) Motor Carrier or Prospective Motor
Carrier—After notification to a driver,
all information related to that driver’s,
or prospective driver’s, record.
34. Add § 384.226 to read as follows:
§ 384.226 Prohibition on masking
convictions.

The State must not mask, defer
imposition of judgment, or allow an
individual to enter into a diversion
program that would prevent a CDL
driver’s conviction for any violation, in
any type of motor vehicle, of a State or
local traffic control law (except a
parking violation) from appearing on the
driver’s record, whether the driver was
convicted for an offense committed in
the State where the driver is licensed or
another State.
35. Revise § 384.231 to read as
follows:
§ 384.231 Satisfaction of State
disqualification requirement.

(a) Applicability. The provisions of
§§ 384.203, 384.206(b), 384.210,
384.213, 384.215 through 384.219,
384.221 through 384.224, and 384.231
of this part apply to the State of
licensure of the person affected by the
provision. The provisions of § 384.210
of this part also apply to any State to
which a person makes application for a
transfer CDL.
(b) Required action. (1) CDL holders.
A State must satisfy the requirement of
this part that the State disqualify a
person who holds a CDL by, at a
minimum, suspending, revoking, or
canceling the person’s CDL for the
applicable period of disqualification.
(2) A person required to have a CDL.
A State must satisfy the requirement of
this subpart that the State disqualify a
person required to have a CDL who is
convicted of an offense or offenses
necessitating disqualification under
§ 383.51 of this subchapter. At a
minimum, the State must implement the

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations
limitation on licensing provisions of
§ 384.210 and the timing and
recordkeeping requirements of
paragraphs (c) and (d) of this section so
as to prevent such a person from legally
obtaining a CDL from any State during
the applicable disqualification period(s)
specified in this subpart.
(c) Required timing. The State must
disqualify a driver as expeditiously as
possible.
(d) Recordkeeping requirements. The
State must conform to the requirements
of the October 1998 edition of the
AAMVAnet, Inc.’s ‘‘Commercial Driver
License Information System (CDLIS)
State Procedures,’’ Version 2.0.
(Incorporated by reference, see
§ 384.107.) These requirements include
the maintenance of such driver records
and driver identification data on the
CDLIS as the FMCSA finds are
necessary to the implementation and
enforcement of the disqualifications
called for in §§ 384.215 through
384.219, and 384.221 through 384.224
of this part.
36. Revise § 384.301 to read as
follows:
§ 384.301 Substantial compliance-general
requirements

(a) To be in substantial compliance
with 49 U.S.C. 31311(a), a State must
meet each and every standard of subpart
B of this part by means of the
demonstrable combined effect of its
statutes, regulations, administrative
procedures and practices, organizational
structures, internal control mechanisms,
resource assignments (facilities,
equipment, and personnel), and
enforcement practices.
(b) A State shall come into substantial
compliance with the requirements of
subpart B of this part in effect as of
September 30, 2002 as soon as practical,
but, unless otherwise specifically
provided in this part, not later than
three years after September 30, 2002.
37. Revise § 384.307 to read as
follows:
§ 384.307 FMCSA program reviews of
State compliance.

(a) FMCSA Program Reviews. Each
State’s CDL program will be subject to
review to determine whether or not the
State meets the general requirement for
substantial compliance in § 384.301.
The State must cooperate with the
review and provide any information
requested by the FMCSA.
(b) Preliminary FMCSA determination
and State response. If, after review, a
preliminary determination is made
either that the State has not submitted
the required annual self-certification or
that the State does not meet one or more

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

of the minimum standards for
substantial compliance under subpart B
of this part, the State will be informed
accordingly.
(c) Reply. The State will have up to
30 calendar days to respond to the
preliminary determination. The State’s
reply must explain what corrective
action it either has implemented or
intends to implement to correct the
deficiencies cited in the notice or,
alternatively, why the FMCSA
preliminary determination is incorrect.
The State must provide documentation
of corrective action as required by the
agency. Corrective action must be
adequate to correct the deficiencies
noted in the program review and be
implemented on a schedule mutually
agreed upon by the agency and the
State. Upon request by the State, an
informal conference will be provided
during this time.
(d) Final FMCSA determination. If,
after reviewing a timely response by the
State to the preliminary determination,
a final determination is made that the
State is not in compliance with the
affected standard, the State will be
notified of the final determination. In
making its final determination, the
FMCSA will take into consideration the
corrective action either implemented or
planned to be implemented in
accordance with the mutually agreed
upon schedule.
(e) State’s right to judicial review. Any
State aggrieved by an adverse decision
under this section may seek judicial
review under 5 U.S.C. Chapter 7.
38. Revise § 384.401 to read as
follows:
§ 384.401 Withholding of funds based on
noncompliance.

(a) Following the first year of
noncompliance. A State is subject to
both of the following sanctions:
(1) An amount equal to five percent of
the Federal-aid highway funds required
to be apportioned to any State under
each of sections 104(b)(1), (b)(3), and
(b)(4) of title 23, U.S.C., shall be
withheld on the first day of the fiscal
year following such State’s first year of
noncompliance under this part.
(2) The Motor Carrier Safety
Assistance Program (MCSAP) grant
funds authorized under section
103(b)(1) of the Motor Carrier Safety
Improvement Act of 1999 (Public Law
106–159, 113 Stat. 1754) shall be
withheld from a State on the first day
of the fiscal year following the fiscal
year in which the FMCSA determined
that the State was not in substantial
compliance with subpart B of this part.
(b) Following second and subsequent
year(s) of noncompliance. A State is

PO 00000

Frm 00023

Fmt 4701

Sfmt 4700

49763

subject to both of the following
sanctions:
(1) An amount equal to ten percent of
the Federal-aid funds required to be
apportioned to any State under each of
sections 104(b)(1), (b)(3), and (b)(4) of
title 23, U.S.C., shall be withheld on the
first day of the fiscal year following
such State’s second or subsequent year
of noncompliance under this part.
(2) The Motor Carrier Safety
Assistance Program (MCSAP) grant
funds authorized under section
103(b)(1) of the Motor Carrier Safety
Improvement Act of 1999 (Public Law
106–159, 113 Stat. 1753) shall be
withheld from a State on the first day
of the fiscal year following the fiscal
year in which the FMCSA determined
that the State had not returned to
substantial compliance with subpart B
of this part.
39. Revise § 384.403 to read as
follows.
§ 384.403 Availability of funds withheld for
noncompliance.

(a) Federal-aid highway funds
withheld from a State under
§ 384.401(a)(1) or (b)(1) shall not
thereafter be available for
apportionment to the State.
(b) MCSAP funds withheld from a
State under § 384.401(a)(2) or (b)(2)
remain available until June 30 of the
fiscal year in which they were withheld.
If before June 30 the State submits a
document signed by the Governor or his
or her delegate certifying, and the
FMCSA determines, that the State is
now in substantial compliance with the
standards of subpart B of this part, the
withheld funds shall be restored to the
State. After June 30, unrestored funds
shall lapse and be allocated in
accordance with § 350.313 of this
subchapter to all States currently in
substantial compliance with subpart B
of this part.
40. Add § 384.405 to read as follows:
§ 384.405
program.

Decertification of State CDL

(a) Prohibition on CDL licensing
activities. The Administrator may
prohibit a State found to be in
substantial noncompliance from
performing any of the following four
licensing transactions:
(1) Issuance of initial CDLs.
(2) Renewal of CDLs.
(3) Transfer of out-of-State CDLs to
the State.
(4) Upgrade of CDLs.
(b) Conditions considered in making
decertification determination. The
Administrator will consider, but is not
limited to, the following five conditions
in determining whether the CDL

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2

49764

Federal Register / Vol. 67, No. 147 / Wednesday, July 31, 2002 / Rules and Regulations

program of a State in substantial
noncompliance should be decertified:
(1) The State computer system does
not check the Commercial Driver’s
License Information System (CDLIS)
and/or National Driver Register (NDR)
as required by § 383.73 of this
subchapter when processing CDL
applicants, drivers transferring a CDL
issued by another State, CDL renewals
and/or upgrades.
(2) The State does not disqualify
drivers convicted of disqualifying
offenses in commercial motor vehicles.
(3) The State does not transmit
convictions for out of State drivers to
the State where the driver is licensed.
(4) The State does not properly
administer knowledge and/or skills tests
to CDL applicants or drivers.
(5) The State fails to submit a
corrective action plan for a substantial
compliance deficiency or fails to
implement a corrective action plan
within the agreed upon time frame.
(c) Standard for considering
deficiencies. The deficiencies described
in paragraph (b) of this section must
affect a substantial number of either
CDL applicants or drivers.
(d) Decertification: preliminary
determination. If the Administrator
finds that a State is in substantial
noncompliance with subpart B of this
part, as indicated by the factors
specified in § 384.405(b), among other
things, the FMCSA will inform the State
that it has made a preliminary
determination of noncompliance and
that the State’s CDL program may
therefore be decertified. Any response
from the State, including factual or legal
arguments or a plan to correct the
noncompliance, must be submitted

VerDate Jul<25>2002

17:05 Jul 30, 2002

Jkt 197001

within 30 calendar days after receipt of
the preliminary determination.
(e) Decertification: final
determination. If, after considering all
material submitted by the State in
response to the FMCSA preliminary
determination, the Administrator
decides that substantial noncompliance
exists which warrants decertification of
the CDL program, he or she will issue
a decertification order prohibiting the
State from issuing CDLs until such time
as the Administrator determines that the
condition(s) causing the decertification
has (have) been corrected.
(f) Recertification of a State. The
Governor of the decertified State or his
or her designated representative must
submit a certification and
documentation that the condition
causing the decertification has been
corrected. If the FMCSA determines that
the condition causing the decertification
has been satisfactorily corrected, the
Administrator will issue a
recertification order, including any
conditions that must be met in order to
begin issuing CDLs in the State.
(g) State’s right to judicial review. Any
State aggrieved by an adverse decision
under this section may seek judicial
review under 5 U.S.C. Chapter 7.
(h) Validity of previously issued CDLs.
A CDL issued by a State prior to the date
the State is prohibited from issuing
CDLs in accordance with provisions of
paragraph (a) of this section, will remain
valid until its stated expiration date.
41. Add § 384.407 to read as follows:
§ 384.407

Emergency CDL grants.

The FMCSA may provide grants of up
to $1,000,000 per State from funds made
available under 49 U.S.C. 31107(a), to

PO 00000

Frm 00024

Fmt 4701

Sfmt 4700

assist States whose CDL programs may
fail to meet the compliance
requirements of subpart B of this part,
but which are determined by the
FMCSA to be making a good faith effort
to comply with these requirements.
PART 390—FEDERAL MOTOR
CARRIER SAFETY REGULATIONS;
GENERAL
42. The authority citation for part 390
is revised to read as follows:
Authority: 49 U.S.C. 13301, 13902, 31132,
31133, 31136, 31502, and 31504; sec. 204,
Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C.
701 note); sec. 217, Pub. L. 106–159, 113 Stat.
1748, 1767; and 49 CFR 1.73.

43. Amend § 390.5 to revise the
definition for ‘‘Driving a commercial
motor vehicle while under the influence
of alcohol’’ to read as follows:
§ 390.5

Definitions.

*

*
*
*
*
Driving a commercial motor vehicle
while under the influence of alcohol
means committing any one or more of
the following acts in a CMV: Driving a
CMV while the person’s alcohol
concentration is 0.04 or more; driving
under the influence of alcohol, as
prescribed by State law; or refusal to
undergo such testing as is required by
any State or jurisdiction in the
enforcement of Table 1 to § 383.51 or
§ 392.5(a)(2) of this subchapter.
*
*
*
*
*
Issued on: June 30, 2002.
Joseph M. Clapp,
Administrator.
[FR Doc. 02–18457 Filed 7–30–02; 8:45 am]
BILLING CODE 4910–EX–P

E:\FR\FM\31JYR2.SGM

pfrm17

PsN: 31JYR2