[Federal Register: May 4, 2001 (Volume 66, Number 87)]
[Proposed Rules]
[Page 22499-22512]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04my01-33]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383, 384, and 390
[Docket No. FMCSA-00-7382]
RIN 2126-AA55
Commercial Driver's License Standards; Requirements and
Penalties; Noncommercial Motor Vehicle Violations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FMCSA proposes disqualification regulations for drivers
subject to the Commercial Motor Vehicle Safety Act of 1986 (CMVSA).
Sections 201(b) and 202(h) of the Motor Carrier Safety Improvement Act
of 1999 (MCSIA) amended the CMVSA by adding disqualification
requirements for a commercial driver's license (CDL) holder convicted
of committing violations while operating a noncommercial motor vehicle
(non-CMV). Each State would be required to disqualify the CDL upon
conviction by revoking, suspending, or canceling it. Each employer
would be required to stop using a driver from driving a commercial
motor vehicle (CMV) upon the State's disqualification. The purpose of
this proposal is to enhance the safety of CMV operations on our
nation's highways.
DATES: You must submit comments on or before August 2, 2001.
ADDRESSES: You can mail, hand deliver, fax, or electronically submit
written comments to the Docket Management Facility, U.S. Department of
Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC
20590-0001; FAX: (202) 493-2251, on-line at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dmses.dot.gov/submit.
Please include the docket number that appears in the heading of
this document in your comment. You can examine and copy all comments
from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal
holidays at the docket facility. You can also examine the docket on the
Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov. If you want us to notify you of receipt
of your comments, please include a self-addressed, stamped envelope or
postcard, or after submitting comments electronically, print the
acknowledgment page.
FOR FURTHER INFORMATION CONTACT: Mr. Robert Redmond, (202) 366-9579,
and
[[Page 22500]]
for legal issues, Mr. Charles Medalen, (202) 366-1354. Both individuals
are at the FMCSA, 400 Seventh Street, SW., Washington, D.C. 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: We will consider all comments received
before the close of business on the comment closing date indicated in
the DATES section. We will file comments received after the comment
closing date in the docket and will consider late comments to the
extent practicable. The FMCSA may, however, issue a final rule at any
time after the close of the comment period.
This proposed rule uses plain language so those individuals
unfamiliar with FMCSA regulations will find it easier to follow. We
have made 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,
punctuation, and grammatical errors.
This NPRM focuses on changes to parts 383 and 384 that are required
by the MCSIA (Public Law 106-159, December 9, 1999, 113 Stat. 1749).
These parts relate to commercial driver licensing standards that affect
States, employers, and employees. Part 391 addresses the qualifications
that motor carriers must meet in selecting drivers to operate in
interstate commerce. These three parts necessarily interact. The FMCSA
is interested in any comments on possible changes to part 391 that it
should consider in order to increase our stakeholders' understanding of
the statutory and regulatory requirements imposed upon them.
Background
For the purposes of this document, the term CMV refers to the
definition of a CMV in the CMVSA and codified at 49 U.S.C. 31301 et
seq. Generally, a CMV is a motor vehicle used in commerce to transport
passengers or property that meets any one of the following three
conditions.
(1) The motor vehicle has a gross vehicle weight rating or gross
vehicle weight (whichever is greater) of at least 26,001 pounds (11,794
kilograms).
(2) The motor vehicle is designed to transport at least 16
passengers including the driver.
(3) The motor vehicle is used to transport material required to be
placarded under 49 CFR part 172 subpart F.
For the purposes of this document, the term non-CMV refers to
vehicles not covered by this definition of CMV.
Noncommercial Motor Vehicle Violations
The CMVSA disqualifications section, codified at 49 U.S.C. 31310,
has specified offenses related to operating a CMV requiring specific
periods a State must disqualify a driver from operating a CMV. The
MCSIA amended the CMVSA disqualifications at section 31310 by adding
specific offenses related to operating a non-CMV. The Secretary may
also specify disqualification periods the State must use when
disqualifying a driver from operating a CMV.
For example, a CDL holder operates a non-CMV and refuses to take an
alcohol test as required by a State's implied consent laws, as defined
in 49 CFR 383.72. Under this proposal, a State must disqualify the CDL
holder from operating a CMV for one year based on the first conviction
for refusing to take an alcohol test after operating the non-CMV.
A second example would be if a CDL holder uses a non-CMV in the
commission of a felony involving dispensing a controlled substance.
Under this proposal, a State must disqualify the CDL holder from
operating a CMV for life even though the conviction involved the
operation of a non-CMV. The State may never reinstate the person's
privilege to operate a CMV because the CMVSA does not provide
reinstatement privileges for felonies related to dispensing controlled
substances.
A third example would be a CDL holder who has been convicted of
three serious traffic violations in a CMV within a 3-year period. The
CDL holder makes erratic or improper traffic lane changes while
operating a non-CMV. Under this proposal, a State must disqualify the
CDL holder from operating a CMV for 120 days based on a fourth
conviction in separate incidents within a 3-year period while operating
either a CMV or non-CMV.
This document proposes to implement parts of Sec. 201(b) and all of
Sec. 202(h) of the MCSIA. These sections amend 49 U.S.C. 31310 and
31311 to require the disqualifications of CDL holders for certain
offenses committed in non-CMVs--typically private automobiles,
motorcycles, and light-duty and medium-duty trucks.
Background of CDLIS
This proposed rule would also modify and clarify the FMCSA's
Commercial Driver's License Information System (CDLIS). The Secretary
of Transportation must maintain an information system that serves as
the clearinghouse and depository of information about any person who
operates CMVs and his/her identification, licensing history, and
disqualification history. 49 U.S.C. 31309. The CDLIS also includes
information about a person required to have a CDL who has violated the
requirement to obtain a CDL before operating a CMV.
In 1988, the Federal Highway Administration (FHWA) entered into an
agreement under Sec. 31309(b) with the American Association of Motor
Vehicle Administrators and its affiliate AAMVAnet, Inc. (AAMVAnet), to
use its system as the CDLIS. The agreement made AAMVAnet the CDLIS
operator. Under Section 106(b) of MCSIA, the agreement transferred to
the FMCSA and remains in effect until the FMCSA modifies or terminates
it. A copy of the 1988 agreement is in the public docket.
The agreement states that AAMVAnet will ``cooperate fully with FHWA
[FMCSA] with respect to the operation of CDLIS including, but not
limited to, information content and the development of standards
relating to access to CDLIS by States and various employers and
employees.'' The FMCSA informs AAMVAnet of the specific driver records
and driver identification data necessary to the implementation and
enforcement of the disqualifications called for in 49 CFR 383.51. In
the State compliance regulations, Sec. 384.231(d) Recordkeeping
requirements requires each State to maintain driver records and cause
driver identification data to be retained on the CDLIS which are
necessary to the implementation and enforcement of the
disqualifications called for in Secs. 384.215 through 384.219. Cross-
references in these sections refer to Sec. 383.51 disqualifications.
CMV Offenses
Ensuring that only safe drivers are operating CMVs is an important
part of the FMCSA's safety strategy. Section 383.51 specifies that a
driver must be disqualified for specific periods for specific
disqualifying offenses involving the operation of a CMV. The CMVSA,
specifically 49 U.S.C. 31310(b), (c), (d), and (e), requires federally-
mandated disqualifications for the following eight offenses:
1. Driving drunk in a CMV.
2. Leaving the scene of an accident in a CMV.
3. Committing general felonies in a CMV.
[[Page 22501]]
4. Committing controlled substance-related felonies in a CMV.
5. Speeding excessively in a CMV.
6. Driving recklessly in a CMV.
7. Violating motor vehicle traffic control laws in a CMV and
causing an accident resulting in a fatality.
8. Violating other laws or regulations in a CMV that the FMCSA may
specify by regulation as serious.
Section 4009 of the Motor Carrier Safety Act of 1991, codified at
49 U.S.C. 31310(i), requires CDL disqualifications for driver
violations of out-of-service orders. Section 403 of the ICC Termination
Act of 1995 (ICCTA) codified at 49 U.S.C. 31310(j) and 31311(a)(17)),
requires CDL disqualifications for CMV drivers who are convicted of
violating laws or regulations pertaining to railroad-highway grade
crossings.
As part of this rulemaking, several amendments are also proposed to
clarify our regulations in Secs. 383.5, 383.71, and 383.73 about
disqualifying offenses. In addition, an amendment to Sec. 384.231(d)
would add an incorporation by reference requiring States to conform to
the recordkeeping requirements of AAMVAnet's ``Commercial Driver's
License Information System (CDLIS) State Procedures,'' Version 2.0,
October 1998. This amendment would also add cross-references to
Secs. 384.221 through 384.224.
Non-CMV Offenses
The MCSIA amendments proposed in this action prohibit the holder of
a CDL from operating a CMV if the CDL holder commits certain offenses
while operating a non-CMV. In addition, the amendment to Sec. 31311
requires each State to adopt and enforce the Federal sanctions
prescribed by Sec. 31310(g).
The FMCSA believes that a record of convictions for serious traffic
violations and other offenses while operating a non-CMV is just as
important as a conviction in a CMV in determining whether a driver
should retain his or her CDL. This is the essence of our proposal in
Sec. 383.51.
While a CDL holder repeatedly convicted of violations in non-CMVs
usually does not have a record of similar convictions while operating
CMVs, this does not necessarily mean that his/her driving habits in
CMVs are superior. The FHWA conducted a study for Congress about the
CDL program's effectiveness. The report is entitled ``Commercial
Driver's License Effectiveness Study,'' (Volume I, Executive Summary,
NTIS# PB99-139792; Volume II, Technical Report, NTIS# PB99-139800;
September 1998) (Study). The study documented that many CDL holders
receive citations for serious violations in CMVs. (See the docket for a
copy of this study.) Many of these violations are not entered into
their records as such, because they are either reduced through plea-
bargaining and deferral programs or ``masked'' from public view on
their record.
Furthermore, a high percentage of the convictions of CDL holders
list the type of vehicle being driven at the time of a violation as
``unknown'' or ``no.'' The ``unknown'' indicator is used when a State
licensing agency cannot determine whether the conviction occurred in a
CMV, based on the information provided to them with the conviction
document. Some States, rather than list the vehicle type as
``unknown,'' assume that an unknown vehicle is not a CMV and use the
indicator ``no'' meaning ``not in a CMV.'' This proposal and a
subsequent proposal (RIN 2126-AA60) to be published in the Federal
Register in the near future would attempt to solve 16 CDL-related
problems, including:
1. Disqualifying drivers for non-CMV convictions.
2. Defining an imminent hazard.
3. Creating an emergency disqualification of drivers posing an
imminent hazard.
4. Creating a new school bus endorsement.
5. Providing emergency grants to States in noncompliance with CDL
requirements.
6. Withholding MCSAP funds from States in noncompliance with CDL
requirements.
7. Upgrading disqualifications for driving while revoked,
suspended, or canceled, or the driver is disqualified from operating a
CMV.
8. Upgrading disqualifications for committing homicide by motor
vehicle, manslaughter, negligent homicide, or causing a fatality
through the criminal operation of a CMV.
9. Creating three new serious traffic violations for driving a CMV
when the driver has not obtained a CDL, driving a CMV without a CDL in
the driver's possession, and 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 on the vehicle.
10. Expanding driver record checks.
11. Adding new State notifications between the licensing agency and
the judicial system.
12. Prohibiting hardship licenses to a driver who loses his/her
base license.
13. Adopting penalties for violating licensing requirements.
14. Maintaining records of all violations.
15. Prohibiting the masking of convictions.
16. Decertifying a State CDL program for noncompliance.
Non-CMV Alcohol Offenses
The National Highway Transportation Safety Administration (NHTSA)
and the FHWA promote an alcohol standard of 0.08 for all non-CMV
drivers at 23 CFR Part 1225. Most of the non-CMVs subject to the new
MCSIA disqualification amendment in this proposal are motorcycles,
cars, pickups, and sport utility vehicles also covered by 23 CFR Part
1225. Other non-CMVs covered by the new MCSIA disqualifications
amendment in this proposal include commercial vehicles with a gross
vehicle weight rating of 11,794 kilograms (26,000 pounds) or less,
which are subject to the FMCSA's zero tolerance alcohol standard under
49 CFR 392.5.
The FMCSA is proposing one exception to the non-CMV alcohol-related
disqualifying offenses listed under Sec. 383.51. Current
Sec. 383.51(b)(2)(i)(A), requiring disqualification for an alcohol
concentration of 0.04 or more, is not included in the proposed non-CMV
alcohol offenses because it would be difficult to enforce in most
States. While all States support the higher standard of 0.04 or more
alcohol concentration (``under the influence'') for all drivers
operating large CMVs, their standard for non-CMV drivers is an alcohol
concentration of 0.08 to 0.10 percent (``intoxication'' or
``impairment'').
Requiring states to use two different alcohol standards for drivers
of these vehicles--one for CDL holders, one for all other license
holders--would be difficult to implement and enforce. CDL holders,
virtually all of whom drive private cars or light trucks, constitute
less than 5 percent of the total number of drivers licensed to operate
non-CMVs. The FMCSA believes that safety, in this situation, would be
better served by the strong enforcement of existing intoxication and
impairment laws for all non-CMV drivers. Under the proposed
requirements, if a CDL holder is convicted of ``being under the
influence,'' ``intoxicated,'' or ``impaired'' while operating a non-CMV
and his or her license is suspended, revoked, or canceled, the driver
would also be disqualified from operating a CMV.
Non-CMV Railroad-Highway Grade Crossing Violations
The FMCSA proposes to designate a railroad-highway grade crossing
violation in a non-CMV as a serious
[[Page 22502]]
offense, as permitted by MCSIA. Section 31310(g) of title 49 U.S.C.
permits the Secretary of Transportation to disqualify from operating a
CMV a person who has been convicted of ``a serious offense involving a
motor vehicle (other than a [CMV]) that has resulted in the revocation,
cancellation, or suspension of the individual's license * * *'' In its
report on a predecessor bill which included a disqualification
provision virtually identical to 49 U.S.C. 31310(g), as amended by
MCSIA, the House Committee on Transportation and Infrastructure said
``[t]he Committee expects the Department, in determining the
appropriate disqualifying offenses by rulemaking, will focus on serious
offenses, such as driving while intoxicated and reckless driving. The
Committee does not intend for this rule to include minor traffic
citations.'' H.R. Rep. No. 106-333, at 16 (1999). In section 403 of the
ICCTA, codified at 49 U.S.C. 31310(j), Congress added railroad-highway
grade crossing violations to the other disqualification offenses. The
Conference Report on the ICCTA ``directs the Secretary to issue
regulations establishing sanctions and fines for operators of [CMVs]
who violate railroad-highway crossing laws and regulations.'' H.R Rep.
No. 104-422, at 238 (1995), reprinted in 1995 U.S.C.C.A.N. 850, 923.
In considering the MCSIA, the House report states the Secretary is
required to issue regulations establishing criteria for disqualifying
from operating a CMV an individual who holds a CDL and who has been
convicted of serious offenses involving a vehicle other than a CMV. The
Congress, therefore, directed the Secretary to conduct a rulemaking to
determine the appropriate non-CMV offenses and minimum periods for
which a CDL holder should be disqualified. The statute, however,
provided that in no case would the types of non-CMV offenses or the
time periods for which CDL holders are disqualified for such offenses
be more stringent than the offenses and disqualification periods
involving a CMV. The FMCSA believes railroad-highway grade crossing
violations in non-CMVs are serious offenses that can and do lead to
fatalities, bodily injuries, and significant property damage.
The FMCSA is therefore proposing that CDL holders who violate
railroad-highway grade crossing regulations in non-CMVs be disqualified
from operating a CMV.
Number of CDL Citations
The FMCSA requires AAMVAnet to have in the CDLIS, and each State to
maintain on each violation, information on whether the vehicle being
operated at the time of the violation was a CMV. Each State
accomplishes this requirement by indicating on each traffic citation
whether the vehicle being operated at the time of the violation is a
CMV. Because of this proposed rule, AAMVAnet must modify the CDLIS and
would add a requirement for each State to indicate for every violation
whether the driver's license is a CDL. The FMCSA believes each State
will accomplish this requirement by indicating on the citation whether
the driver's license is a CDL. This proposed new requirement is
necessary to identify a CDL holder when he or she is cited for a
violation while operating a non-CMV because the violation may result in
a serious traffic violation conviction and the revocation, suspension,
or cancellation of the CDL.
Once the State records the conviction on the CDL record, the CDL
holder would then be disqualified from operating a CMV during the
period of suspension, revocation, or cancellation. Without this
indicator, there is no way of identifying a CDL holder in CDLIS with
any of the information currently captured on a citation. The FMCSA will
later propose (in RIN 2126-AA60) a maximum period from violation and
conviction to recording on the driver's record in the State of
domicile.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. The FMCSA must
estimate the additional paperwork burden that would be required by this
proposal to identify CDL holders on the citation. The FMCSA has a
cooperative agreement with TML Services (TML) to perform certain
commercial driver licensing functions. In its analysis conducted for
the FMCSA, TML used a 1996 sample database of CDL holder records with
conviction data from 1992 through 1996. This data was compiled for the
Commercial Motor Vehicle Effectiveness Study (discussed earlier in this
document). Using Study data, the FMCSA estimated that there were about
1.82 million convictions per year over the 4-year period. In 1996, 1.82
million convictions were tied to 8.3 million CDL records. The FMCSA
does not know how many of the 1.82 million convictions were in CMVs and
how many were in non-CMVs. Projecting an increase in the number of CDL
records at a rate of 40,000 per month through the middle of 2004, the
FMCSA estimates that 11.5 million CDL records will generate 2.53
million convictions per year.
Based on the survey of States conducted as part of the Study, the
FMCSA concluded that some States were not sending and/or posting all
out-of-State convictions. TML assumed that 25 to 75 percent of roughly
600,000 out-of-State convictions were either not sent to the home State
or not posted by the home State during the 1992 to 1996 period. If this
assumption is correct, an increase in the projected number of
convictions must be made. TML calculates that the projected 2.53
million convictions per year should be increased to 2.7 to 3.0 million
per year by the year 2004.
The number of convictions is clearly smaller than the number of
citations issued to CDL holders. The FMCSA asked AAMVAnet for help
determining the conviction rate. The AAMVAnet asked its State members
for help. Only Texas was able to provide us with needed information.
Based on calendar years 1998 and 1999 data, Texas concluded that 95
percent of CDL holder citations issued in the State resulted in
convictions. Using this rate, the FMCSA made national estimates that
between 2.84 and 3.16 million citations would be issued in 2004.
Incorporation by Reference
Paragraph (d) of Sec. 384.231 currently has ambiguous language
stating that each ``* * State shall maintain such driver records and
cause such driver identification data to be retained on the CDLIS as
the operator of the CDLIS specifies are necessary to the implementation
and enforcement of the disqualifications called for in Secs. 384.215
through 384.219.'' This implies that each State must conform their
information collection and recordkeeping requirements to what the
AAMVAnet specifies is necessary. The FMCSA, however, requires AAMVAnet,
as the CDLIS operator under the 1988 designation agreement, to have
certain information collected by States with respect to the operation
of CDLIS. The numerous pieces of information collected include, but are
not limited to, information content and the development of standards
relating to access to CDLIS by each State, employer, and employee.
Thus, AAMVAnet is acting as a third party in collecting information on
behalf of the FMCSA by passing on to each State the information
collection requirements specified by the FMCSA as necessary under the
1988 designation agreement.
The FMCSA believes AAMVAnet's CDLIS State Procedures manual should
be incorporated by reference to ensure
[[Page 22503]]
each State uses it. The Version 2.0 published in October 1998 is the
most recent version of the AAMVAnet manual. AAMVAnet plans to update
this manual to implement MCSIA amendments to the CDL system.
Incorporating the manual by reference, however, should ensure that each
State complies with the specific version required by AAMVAnet and the
FMCSA.
The FMCSA is providing the public an opportunity to comment on the
incorporation by reference of this AAMVAnet manual. In addition, the
FMCSA would provide additional opportunity for comment on updates to
Version 2.0 before any State would be required to comply with any newer
AAMVAnet manual in the future.
Incorporating the AAMVAnet standards by reference allows the FMCSA
to comply with the requirements in 5 U.S.C. 552 to publish rules in the
Federal Register by referring to materials already published elsewhere.
Section 552 authorizes incorporation by reference with the approval of
the Director of the Federal Register to reduce the volume of material
published in the Federal Register and the CFR. The legal effect of
incorporation by reference is that the material is treated as if it
were published in the Federal Register. This material, like any other
properly issued rule, would then have the force and effect of law.
Substantial Compliance
Each State must comply substantially with 24 specific requirements
of the CDL program to avoid the withholding of a certain percentage of
Federal highway funds otherwise apportioned for its Surface
Transportation Program, National Highway System, and Interstate
Maintenance System components. See 49 U.S.C. 31311 and 31314. Section
103(e) of the MCSIA added that if a State does not comply substantially
with the 24 specific requirements of the CDL program, a State's entire
allocation in supplemental funding which the MCSIA added to the Motor
Carrier Safety Assistance Program (MCSAP) might be withheld by FMCSA.
The requirement to adopt and enforce the disqualifications applicable
to a CDL holder who is convicted of serious offenses in a non-CMV was
added by section 202(h) of the MCSIA and codified at 49 U.S.C.
31311(a)(20). This requirement adds another condition necessary for
states to achieve substantial compliance with the CMVSA of 1986. The
FMCSA understands the complexity of revising State statutes and
establishing procedures to incorporate the new requirements into
existing systems. The FMCSA, therefore, proposes to set a deadline of 3
years after the effective date of this rule for states to achieve
substantial compliance with these requirements.
Section Analysis
Section 383.5 Definitions
The FMCSA proposes to revise the current definition of
``Disqualification'' in Sec. 383.5 to clarify the original intent that
disqualification of a CDL holder is only required for driver
convictions related to motor vehicle traffic control offenses.
The FMCSA proposes to remove current paragraph (c) that
automatically disqualifies a driver from operating a CMV upon
conviction of any offense listed in Sec. 383.51. The current paragraph
(c) conflicts with standard adjudication practices in most states.
Convicting and disqualifying a driver generally involves two separate
processes administered by two separate agencies. In most cases, only a
court has the authority to convict the driver, while the State
licensing agency has the separate authority to suspend, revoke, or
cancel the driver's license based upon the court conviction. In
addition, a driver has the right to appeal a conviction. Pending the
decision of the appellate court, the effect of the conviction is
stayed. The conviction, therefore, is not posted by the State licensing
agency and no disqualifying action is taken. This conflicts with
paragraph (c) of the current definition of Disqualification. Moreover,
disqualifying a driver who had filed an appeal, in defiance of a court
order staying the conviction, would bring a State licensing agency into
serious conflict with the judicial system. Appeals are not the only
source of delay. A driver can be convicted of an offense listed in
Sec. 383.51--and thus automatically disqualified from driving a CMV for
a certain period after that date--but the court may fail to notify the
State licensing agency of that fact, usually because the court system
and licensing agency have not perfected their electronic data transfer
systems. ``Diversion'' programs are even more serious. In many States,
courts suspend a conviction, seal or ``mask'' the driver's record, and
purge the conviction completely within some period if no further
violations occur. Therefore, the licensing agencies, and thus motor
carriers, sometimes learn of a driver's conviction (if at all) only
after the disqualification period automatically started by current
paragraph (c) is completed. Removal of paragraph (c) will correct some
of these problems. As discussed earlier in this document under the
heading ``Non-CMV Offenses,'' the FMCSA will address related issues in
an NPRM (RIN 2126-AA60) to be published in the Federal Register in the
future.
The original intent of the CMVSA and its implementing regulations
in parts 383 and 384 was to require the disqualification of a CDL
holder only for convictions related to motor vehicle traffic control
offenses. In fact, however, States have begun to suspend CDLs for
failure to pay child support, failure to pay parking tickets, and other
matters not directly related to unsafe or criminal behavior in a CMV.
In order to restore the original intent of the CMVSA, new paragraph (b)
in the definition of Disqualification would include ``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).'' The phrase ``motor vehicle traffic control'' is
taken directly from the CMVSA. The FMCSA recognizes that driving while
under the influence of alcohol or controlled substances may not be a
``motor vehicle traffic control'' offense in the same way as speeding
or illegal lane changes, but Congress used that phrase in the CMVSA and
clearly intended drug-and alcohol-related offenses to be covered by the
CDL disqualification regulations.
This change would not prevent States from including in CDLIS or
NHTSA's National Driver Register (NDR)--which also depends on a
distributed database--driver convictions and disqualifications for
offenses that are not related to motor vehicle traffic control, should
they wish to do so.
We are proposing to add to Sec. 383.5 a new definition for ``non-
CMV.'' A non-CMV would be any motor vehicle or combination of motor
vehicles not covered by the definition of a CMV in Part 383.
Section 383.51 Disqualification of Drivers
The FMCSA would revise the entire section by using an if-then table
format that we believe is more readily understandable than the current
regulatory text. The FMCSA would also propose to reserve rows within
the table for the proposal to be published in the Federal Register in
the near future under RIN 2126-AA60.
The revised Sec. 383.51 would combine the non-CMV and CMV
convictions of CDL holders for the original offenses under the CMVSA
and other offenses
[[Page 22504]]
added in subsequent statutory amendments. In addition, the FMCSA would
clarify that a person who operates a CMV must obtain a CDL and is
subject to the same disqualifications. This circumstance has always
been clear to States and the FMCSA, but employers and drivers have
frequently misunderstood this point.
While the MCSIA addresses the type of offenses that must result in
a disqualification, it is silent regarding the length of the CMV
disqualification. The Congress included both the type of offense and
the length of the CMV disqualification in the CMVSA and each of the
previous amendments before 1999. The MCSIA, however, only requires that
the disqualification period be no longer than for the same or similar
offenses that occur while operating a CMV. The FMCSA proposes 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 FMCSA invites the public to comment.
Although current regulations disqualify a CDL holder convicted of
driving a CMV with an alcohol concentration of 0.04 percent or more
[Sec. 383.51(b)(2)(i)(A)], that standard would not be included in the
list of alcohol-related disqualifying offenses committed while
operating a non-CMV. The reasons are explained earlier in the preamble
section under the heading ``Non-CMV Alcohol Offenses.''
The FMCSA is also proposing to add railroad-highway grade crossing
violations in a non-CMV as a serious traffic violation, as permitted by
49 U.S.C. 31301(12)(G) and 31310(g). See the discussion of the
rationale for this proposal earlier in this preamble under the heading
``Non-CMV Railroad-Highway Grade Crossing Violations.''
Paragraph (f) would be recodified as Sec. 384.203 paragraphs (b)
and (c). The FMCSA would also make conforming amendments by correcting
Sec. 383.51 cross-references in Secs. 383.3(f)(3)(i)(C), 383.53(b),
383.72, 383.77, 384.215, 384.217, 384.218, 384.219, 384.224, and cross
references in the two definitions of the term ``driving a CMV'' in
Secs. 383.5 and 390.5.
Sections 383.71 Driver Application Procedures and 383.73 State
Procedures
Section 383.71(a)(6) requires self-certification, and
Sec. 383.73(a)(3) requires each State to check, that a CDL applicant is
not subject to any disqualification, revocation, or cancellation ``as
contained in Sec. 383.51.'' The FMCSA regulatory interpretation for
Sec. 383.73, Question 3, published in the Federal Register on April 4,
1997 (62 FR 16396) provides a question and answer that reads as
follows:
To what does the phrase ``* * * as contained in Sec. 383.51''
refer to in Sec. 383.73(a)(3)?
Guidance: The phrase refers only to the word
``disqualification.'' Thus the State must check the applicant's
record to ensure that he/she is not subject to any suspensions,
revocations, or cancellations for any reason, and is not subject to
any disqualifications under Sec. 383.51.
In the phrase ``any disqualification, revocation, or cancellation
as contained in Sec. 383.51'' the phrase ``as contained in
Sec. 383.51'' was intended to modify only the word
``disqualification.'' The FMCSA has no authority to suspend, revoke, or
cancel a driver's CDL. The agency therefore proposes to amend
Secs. 383.71(a)(6) and 383.73(a)(3) to refer to ``any disqualification
under Sec. 383.51, or any license suspension, revocation, or
cancellation under State law * * * ''
Section 384.107 Matter Incorporated by Reference
The FMCSA is proposing to incorporate by reference the AAMVAnet
publication under Sec. 384.231(d) Recordkeeping requirements. See the
section analysis for Sec. 384.231 for a complete description of the
document and the reasons the FMCSA is proposing its incorporation.
Section 384.203 Driving While Under the Influence
The FMCSA would amend this section to re-codify Sec. 383.51(f)
Substantial compliance by States at this location. Paragraph (f) fits
more appropriately with Sec. 384.203. Both concern the 0.04 alcohol
concentration standard and the State substantial compliance issue.
Section 384.222 Violation of Out-of-Service Orders
This section would be added to require each State to have and
enforce all necessary laws and regulations applicable to drivers of
CMVs and their employers who violate out-of-service orders, which meet
the minimum requirements of Secs. 383.51(e), 383.37(c), and 383.53(b).
Part 384, State Compliance with Commercial Driver's License
Program, was created by an FHWA final rule published on May 18, 1994
[59 FR 26029]. States were not required to disqualify drivers convicted
of violating out-of-service (OOS) orders because, according to the
preamble, the FHWA ``has not yet issued a final rule'' on that subject.
However, Sec. 384.222 was reserved for such a State requirement when
the rule prohibiting violation of OOS orders was completed. In fact, a
second final rule which did exactly that was published the same day in
the same issue of the Federal Register [May 18, 1994, 59 FR 26022] and
codified at Sec. 383.51(d). Because of this error, the State
requirement to disqualify violators of OOS orders has never been added
to Sec. 384.222. The FMCSA is now proposing to correct that oversight.
Section 384.224 Noncommercial Motor Vehicle Violations
As required by section 202(h) of the MCSIA, the FMCSA proposes a
new section that would require the States to adopt and enforce the
sanctions that are applicable to holders of CDLs who are convicted of
offenses in a non-CMV.
Section 384.231 Satisfaction of State Disqualification Requirements
All paragraphs would be amended be replacing the word ``shall''
with the word ``must.''
The FMCSA would amend paragraph (a) by including cross references
to the disqualifications resulting from railroad-highway grade crossing
violations added to Sec. 384.223 by a final rule published in 64 FR
48104, September 2, 1999, and the proposed Secs. 384.222 and 384.224 in
this document.
Paragraph (b)(2) would be amended by removing the May 18, 1997,
compliance date from the heading of the paragraph. The FMCSA also
proposes replacing the undefined term ``non-CDL holder'' with ``a
person required to have a CDL'' within the heading and body of
paragraph (b)(2). The intent of this paragraph was to require each
State to disqualify any person required to have a CDL who was convicted
of a disqualifying offense under Sec. 383.51. The term ``non-CDL
holder,'' however, could include a person who is not even required to
have a CDL. The FMCSA would correct this potential problem. Paragraph
(d) would be amended to incorporate by reference the AAMVAnet State
Procedures Manual. This paragraph does not clearly state that the FMCSA
imposes recordkeeping requirements upon AAMVAnet, its designated CDLIS
operator, and that each State must conform its recordkeeping
information systems to the AAMVAnet system manuals. Each State
licensing agency has a copy of the most recent version of the CDLIS
State Procedures Manual. A copy of the 1998 CDLIS State Procedures
Manual is in the public docket.
[[Page 22505]]
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this regulatory action is not
significant within the meaning of Executive Order 12866. The FMCSA has
determined this proposal is not a significant regulatory action under
section 3(f) of Executive Order 12866 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that Order.
This regulatory action also is not significant under the regulatory
policies and procedures of the DOT (44 FR 11034, February 26, 1979).
The FMCSA believes a full Regulatory Evaluation is unnecessary under
paragraph 10e of the regulatory policies and procedures of DOT, because
the economic impact of this rule will be minimal.
Estimated Costs
The FMCSA believes the costs of this rule include the following:
1. Information system implementation, modification, and maintenance
costs to state government agencies.
2. Labor costs to the state government agencies to handle new data
collection and processing.
3. Wage losses (costs) to CDL holders who are suspended or
disqualified for committing the new serious traffic violations and
disqualifying offenses addressed under this proposed rule.
First-year costs for this proposed rule should total approximately
$1.73 million (present value); most of these are for information system
developments and modifications by state government agencies. The FMCSA
obtained these first-year cost estimates by extrapolating results of an
AAMVAnet survey of State motor vehicle administrations on the potential
implementation costs of MCSIA. AAMVAnet conducted the survey in 2000.
AAMVAnet results are based on data from nine States. The FMCSA used the
AAMVAnet survey estimates and calculated the costs to all fifty states
and the District of Columbia. A copy of the AAMVAnet report is in the
docket.
Total costs occurring between 2004 and 2013 are estimated at $168.7
million (present value); most of these costs are wages lost by CDL
holders who would be suspended or disqualified from this proposal's
implementation. FMCSA estimates that an average of 9,661 CMV drivers
would have their CDLs revoked, suspended, or canceled (withdrawals)
annually because of this proposal. In an analysis conducted for the
FMCSA using data from the FHWA Study, TML estimated that in calendar
year 2000 there were approximately 38,643 CDL withdrawals required by
49 U.S.C. 31310 and 49 CFR 383.51 (CMVSA-required withdrawals). Also,
using sample data from the CDLIS for the Commercial Driver's License
Effectiveness Study, TML estimated that of all the out-of-state CDL
convictions logged, 49 percent noted that the CDL holder was either not
operating a CMV at the time of the citation, or that the type of
vehicle being driven was not known (e.g., not marked on the citation).
For in-state CDL convictions, the ratio of CDL holders either not
driving a CMV at the time of the citation, or having an ``unknown''
status, was even higher, at 88 percent.
For the purposes of estimating the number of ``new'' CDL
withdrawals resulting from this proposal, the FMCSA used a conservative
estimate. The FMCSA estimated that annual CMVSA-required withdrawals of
CDL holders would increase by 25 percent (or by 9,661 CDL holders
annually). The FMCSA conducted an analysis of CDLIS data from the
Commercial Drivers License Effectiveness Study on the distribution of
convictions for various serious traffic violations (e.g., excessive
speeding) and disqualifying (e.g., alcohol-related) offenses and data
on the disqualification periods defined for each under Sec. 383.51.
Based on this analysis, the FMCSA estimates that the average
disqualification period per CDL holder would be 317 days.
The unemployment rate was 4.2 percent in January 2001 and the FMCSA
estimates the driver shortage in the motor carrier industry to be
80,000. The FMCSA estimates that those CDL holders who would be
disqualified because of this proposal would quickly find alternative
work within the industry (or in closely-related industries), albeit at
a 10-percent reduction in hourly wages. All the estimates discussed
here were used to calculate the wage reduction costs to the 9,661 CDL
holders annually disqualified, for an average of 317 days, over the 10-
year analysis period.
The FMCSA estimates the total cost of this proposal to industry and
government agencies to be approximately $170.4 million (present value)
over the ten-year analysis period from 2004 through 2013, using a
discount rate of 7 percent.
Estimated Benefits
The primary societal benefits from this proposal are the CMV-
related crashes expected to be avoided when high-risk CDL holders are
disqualified. Effectively, CDL holders who are convicted of serious
traffic violations and disqualifying offenses (as defined under
Sec. 383.51) while operating a non-CMV will now have their CDL
suspended or withdrawn or be disqualified because of this rule.
The FMCSA estimates conservatively that, on average, approximately
9,661 CDL holders are likely to be disqualified annually between the
years 2004 and 2013 if this proposal is made effective. The FMCSA
believes no disqualifications would occur in the first full year of
implementation since no State would be held to the standard until 2004.
Table VM-1 in the FHWA's Highway Statistics 1999 publication contains
data on the number of combination trucks registered (e.g., those likely
driven by CDL holders) in the United States and the vehicle-miles-
traveled (VMT) by these vehicles in 1999. A copy of Table VM-1 is in
the docket. A copy is also available on the Internet at. htt://
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fhwa.dot.gov./ohim/hs99/tables/vm1.pdf.
The average distance traveled in 1999 per combination truck was
65,261 miles. The FMCSA estimated one driver per vehicle, an average of
9,661 CDL disqualifications each year, and an average disqualification
period of close to one year (specifically, 317 working days within 365
calendar days). Using these conditions, the FMCSA estimated the total
VMT foregone in combination trucks by these CDL holders would be 630.5
million miles in each year from 2004 through 2013. The involvement rate
in police-reported crashes for combination unit trucks is 225.32 per
100 million VMT based on ``The Dimensions of Motor Vehicle Crash Risk''
by Wang, Knipling, and Blincoe (Journal of Transportation and
Statistics, Volume 2, Number 1, BTS Journal, 1999). A copy is in the
docket. A copy is also available on the Internet at. htt://
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.bts.gov/jts/V2N1/3wang.pdf. Using this data, the FMCSA estimates
the initial crash reduction benefit of this proposal to be 1,422 CMV-
related crashes per year (e.g., 630.5 million VMT times 225.32 crashes
per 100 million VMT).
The FMCSA believes CMV operators who have been disqualified are
likely to find alternative work within the motor carrier industry or
closely related industries. Many of these drivers would switch to
driving vehicles not specifically defined as CMVs in Sec. 383.5 (and
thus not requiring a CDL). Since many of these drivers will continue to
face exposure to motor vehicle crashes, the FMCSA's initial crash
reduction benefit estimate should be reduced. For the purposes of this
analysis, the
[[Page 22506]]
FMCSA conservatively estimated that two-thirds of disqualified CDL
holders would continue to drive as some part of their alternative
employment, so that only one-third would eliminate their crash exposure
during the 317-day disqualification period. The number of CMV-related
crashes avoided resulting from this proposal would be about 474 per
year (or one third of the original 1,422 CMV-combination-related
crashes).
The FMCSA estimates no reduction in CMV-related crashes during the
first year of implementation (2004). Therefore, the FMCSA expects that
at least 474 CMV-related crashes will be avoided annually during the
years 2004 through 2013 because of the additional CDL holder
disqualifications. The FMCSA used a recent comprehensive study to
estimate the costs of highway crashes involving large trucks and buses
by severity. In Zaloshnja, E., Miller, T., and Spicer, R., ``The Costs
of Large Truck- and Bus-Involved Crashes,'' FMCSA, December 14, 2000,
they estimated that the average cost of all police-reported crashes
(i.e., fatal, injury, and property-damage-only (PDO) crashes) involving
trucks with a gross weight rating of more than 10,000 pounds is $75,637
(in 1999 dollars). A copy of the study by Zaloshnja, et al. is in the
docket. A copy of the study is also available on the Internet at: htt:/
/ai.volpe.dot.gov./CarrieResearchResults/
CarrierResearchResults.asp?file=PDFs/CCT FinalReport.pdf
The average cost per large truck crash involving a fatality is
$3.54 million, for crashes involving injuries $217,000, and for those
involving property damage only $11,300. The FMCSA adjusted these
average costs to year 2000 dollars using the Consumer Price Index to
yield $3.66 million per fatal crash, $224,378 per injury-related crash,
and $11,684 per property-damage-only (PDO) crash. The Large Truck Crash
Profile Study (1999) indicates that fatal crashes represented one
percent of all truck-related crashes in 1999, injury-related crashes
represented 21 percent, and PDO crashes represented the remaining 78
percent. A copy of a report entitled ``Trends in Motor Vehicle Crashes;
Fatal Crashes 1975-1999 Injury and Property-Damage-Only Crashes 1988-
1999'' (December 2000) is in the docket. It has the same data as the
Large Truck Crash Profile Study. Using this information, the FMCSA
estimates annual (unadjusted) crash reduction benefits from this
proposal to be approximately $44 million using 474 crashes avoided.
The FMCSA estimates total 2004 through 2013 CMV-related crash
reduction benefits from this proposal to equal $268 million (present
value), using a discount rate of 7 percent. Examining the total
(present value) costs of this proposal, equal to $170.4 million, this
proposal's implementation yields a net benefit of $97.6 million over
the 10-year analysis period from 2004 through 2013.
The FMCSA invites you to submit comments to the docket about these
cost and benefit estimates.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FMCSA has considered whether this proposal would have a
significant economic impact on a substantial number of small entities.
We have determined that such entities would not be adversely affected
by this rule, either in absolute terms or relative to larger carriers.
The term ``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations less than 50,000.
In the motor carrier industry, the Small Business Administration
(SBA) defines small entities as those firms earning less than $18.5
million in gross receipts annually. The FMCSA examined U.S. Census
Bureau data from the 1997 Economic Census, in particular the revenue
size of firms in the ``General Freight Trucking'' sector (North
American Industry Classification System Code 4841). The vast majority
of firms represented in the sample fall below the SBA annual revenue
threshold. While these small entities represent over 90 percent of the
firms in the sample, they employ roughly 58 percent of the workers.
The primary focus of this proposal is to improve motor carrier
safety by expanding the list of serious traffic violations and other
offenses for which a CDL holder can be disqualified to those occurring
in non-CMVs. The proposal potentially affects all active CDL holders
(estimated from 3.2 million to 8.3 million, with a midpoint of 5.75
million), since all would be subject to the proposal. The 3.2 million
CDL holders comes from an estimate of ``active'' CDL holders reported
for calendar year 1999 in the FMCSA's 1999 Drug & Alcohol Survey, OMB
No. 2126-0012. This sample-based survey measures the percentage of CDL
holders that test positive for controlled substances and/or alcohol,
but in so doing, provides a count of CDL holders who have been employed
as a driver and operated a CMV within the past year, and therefore
provides an estimate of the number of ``active'' CDL holders
nationwide.
The CDL Effectiveness Study reported 8.3 million CDL holder records
in the CDLIS. Please note that the number of ``records'' will not match
the number of ``current'' or ``active'' CDL holders operating a CMV,
since there are many CDL holders who have other jobs as their primary
employment. Examples include those workers employed in non-driving
positions within trucking companies, and those CDL holders, presumably
owner-operators, who may suspend operation of CMV services and take
alternative employment outside of the trucking industry. The CDLIS does
not differentiate among these different types of CDL holders, so one
must be cautious when examining this total number of CDL holders within
CDLIS. The FMCSA invites the public to comment on whether the agency
should use the median of 5.75 million active CDL holders this proposal
will potentially affect.
The FMCSA does not currently have evidence that CDL holders
employed by small entities are more likely to be disqualified under
this rule than those employed by larger entities. Lastly, the number of
new driver disqualifications expected annually from this proposal
(approximately 9,661) represents only one-tenth to three-tenths of one
percent of all active CDL holders (depending on the specific estimate
of active CDL records used). Therefore, the number of CDL holders
likely to be disqualified annually because of this proposal is very
small and should keep it from adversely affecting any entity, large or
small.
Therefore, the FMCSA, in compliance with the Regulatory Flexibility
Act (5 U.S.C. 601-612), has considered the economic impacts of these
requirements on small entities and certifies that this rule would not
have a significant economic impact on a substantial number of small
entities. Comments on this conclusion are welcome and should be
submitted to the docket.
Unfunded Mandates Reform Act of 1995
This proposal would not impose a Federal mandate resulting in the
expenditure by State, local, and tribal governments, taken together, or
by the private sector, of $100 million or more in any one year over the
period analyzed. (2 U.S.C. 1531 et seq.).
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This proposed
[[Page 22507]]
action is not economically significant and does not concern an
environmental risk to health or safety that would disproportionately
affect children.
Executive Order 12630 (Taking of Private Property)
This proposed rule would not affect 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 proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132, dated
August 4, 1999 (64 FR 43255, August 10, 1999). The MCSIA requires this
rulemaking action. Consultation with States is not required when a rule
is required by statute. The FMCSA, however, has determined that this
action would not have significant Federalism implications or limit the
policymaking discretion of the States. Comments on this conclusion are
welcome and should be submitted to the docket.
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,
eliminate ambiguity, and reduce burden.
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 et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. The FMCSA has
determined that this action, if promulgated as a final rule, would have
an impact upon an existing currently approved information collection.
The information collection requirements relating to Commercial
Driver Licensing and Test Standards have been approved by OMB and
assigned the OMB control number 2126-0011. This proposed action would
require AAMVAnet to amend its state procedures manual to add one
additional data element: whether the driver's license is a CDL.
Many States have implemented former AAMVAnet state procedure manual
requirements by requiring police officers within those States to note
on traffic citations whether a motor vehicle is a CMV. The FMCSA
believes States would implement a similar requirement in response to an
AAMVAnet amendment resulting from sections 201(b) and 202(h) of the
MCSIA and this rulemaking.
The FMCSA estimates that between 2,840,000 and 3,160,000 traffic
citations are issued annually to CDL holders. It would take an
enforcement official approximately 2 seconds to record the additional
data element. Adding the data element would increase the current time
burden estimate by 1578 to 1756 hours [(2,840,000 to 3,160,000
citations) (2 seconds) = (5,680,000 to 6,320,000 sec.) / 3600 sec./hr.
= 1578 to 1756 hr.], resulting in a revised estimated annual time
burden of 691,877 to 692,055 hours.
OMB Control Number: 2126-0011.
Title: Commercial Driver Licensing and Test Standards.
Affected Public: Each State government, the District of Columbia
government, and approximately 500,000 motor carriers using
approximately 10 million drivers who operate CMVs in interstate and
intrastate commerce.
Estimated Annual Hour Burden: 1,578 to 1,756 burden hours.
The FMCSA believes these proposed requirements meet the principles
of the Paperwork Reduction Act of 1995 by ensuring--
(1) The information collection is the least burdensome necessary
for the proper performance of the FMCSA's safety and licensing
mandates.
(2) The information collection does not duplicate information
collected by other agencies.
(3) The information collection has practical utility. The FMCSA has
sought to minimize the cost to itself of collecting, processing, and
using the information, but would not accomplish this by shifting
disproportionate costs or burdens onto the public.
The FMCSA seeks public comment on this proposed information
collection requirement. Interested parties are invited to send comments
regarding any aspect of these information collection requirements,
including, but not limited to:
(1) Evaluating whether the collection of information is necessary
for the proper performance of the functions of the agency, including
whether the information will have a practical use;
(2) Evaluating the accuracy of the agency's estimate of the burden
of the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhancing the quality, usefulness, and clarity of the
information to be collected; and
(4) Minimizing the burden of collection of information on those who
are to respond, including using appropriate automated electronic,
mechanical, or other technological collection techniques or other forms
of information technology, such as permitting electronic submission of
responses.
National Environmental Policy Act
The agency has analyzed this proposal for the purpose of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
has determined under DOT Order 5610.1C (September 18, 1979) that this
action does not require any environmental assessment.
List of Subjects
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, 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 proposes to amend
title 49, Code of Federal Regulations, chapter III, parts 383, 384, and
390 as set forth below:
PART 383--[AMENDED]
1. Revise the authority citation for 49 CFR part 383 to read as
follows:
Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and 49 CFR
1.73.
2. Amend Sec. 383.3(f)(3)(i)(C) by revising the cross-reference
``Sec. 383.51(b)(2)'' to read ``Sec. 383.51''.
3. Amend Sec. 383.5 to revise the definitions for
``Disqualification'' and ``Driving a commercial motor vehicle
[[Page 22508]]
while under the influence of alcohol,'' to add a definition for ``Non-
CMV,'' and to place the definitions in alphabetical order, to read as
follows:
Sec. 383.5 Definitions.
* * * * *
Disqualification means any of the following three actions:
(1) The suspension, revocation, or cancellation of a CDL by the
State of issuance.
(2) 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).
(3) A determination by the FMCSA that a person is no longer
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: 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 Sec. 383.51(b) or Sec. 392.5(a)(2)
of this subchapter.
* * * * *
Non-CMV means a motor vehicle or combination of motor vehicles not
defined by the term ``commercial motor vehicle (CMV)'' in this section.
* * * * *
4. Revise Sec. 383.51 to read as follows:
Sec. 383.51 Disqualifications 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), (c), and (d) of this section, if the driver 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 each Table
in this section resulting from a separate incident, whether committed
in a CMV or non-CMV, 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)(6) of this section (Table 1) 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 who is
subsequently convicted of a disqualifying offense described in
paragraphs (b)(1) through (b)(6) of this section (Table 1) must not be
reinstated.
(6) Non-CMV enforcement. A State may apply the disqualification
sanctions required by paragraph (b)(3) of this section (Table 1) to
convictions of a CDL holder who operates a non-CMV with an alcohol
concentration of 0.04. Note, however, that the State is not required to
do so.
(b) Disqualification for major offenses. Table 1 to Sec. 383.51 of
this subpart contains a list of the offenses and period 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 Sec. 383.51
--------------------------------------------------------------------------------------------------------------------------------------------------------
For a first
conviction or refusal
to be tested while For a second
operating a CMV conviction or refusal For a second
For a first conviction transporting to be tested in a conviction or refusal
or refusal to be For a first conviction hazardous materials separate incident of to be tested in a
tested while operating or refusal to be required to be any offense in this separate incident of
If a driver operates a motor a CMV, a person tested while operating placarded under the Table while operating any offense in this
vehicle and-- required to have a CDL a non-CMV, a CDL Hazardous materials a CMV, a person Table while operating
and a CDL holder must holder must be Regulations (49 CFR required to have a a CMV or a non-CMV, a
be disqualified from disqualified from part 172, subpart F), CDL and a CDL holder CDL holder must be
operating a CMV for-- operating a CMV for-- a person required to must be disqualified disqualified from
have a CDL and a CDL from operating a CMV operating a CMV for--
holder must be for--
disqualified from
operating a CMV for--
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Is under the influence of 1 year................ 1 year................ 3 years.............. Life................. Life.
alcohol as prescribed by state law.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(2) Is under the influence of a 1 year................ 1 year................ 3 years.............. Life................. Life.
controlled substance.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(3) Has an alcohol concentration of 1 year................ Not applicable........ 3 years.............. Life................. Not applicable.
0.04 or greater while operating a
CMV.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(4) Refuses to take an alcohol test 1 year................ 1 year................ 3 years.............. Life................. Life.
as required by a State or
jurisdiction under its implied
consent laws or regulations as
defined in Sec. 383.72.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(5) Leaves the scene of an accident 1 year................ 1 year................ 3 years.............. Life................. Life.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(6) Uses the vehicle to commit a 1 year................ 1 year................ 3 years.............. Life................. Life.
felony, other than a felony
described in paragraph (b)(9) of
this section.
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[[Page 22509]]
(7) [Reserved].
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(8) [Reserved].
--------------------------------------------------------------------------------------------------------------------------------------------------------
(9) Uses the vehicle in the Life--not eligible for Life--not eligible for Life--not eligible Life--not eligible Life--not eligible
commission of a felony involving 10-year reinstatement. 10-year reinstatement. for 10-year for 10-year for 10-year
manufacturing, distributing, or reinstatement. reinstatement. reinstatement.
dispensing a controlled substance.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Disqualification for serious traffic violations. Table 2 to
Sec. 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 Sec. 383.51
----------------------------------------------------------------------------------------------------------------
For a third or For a third or
For a second For a second subsequent subsequent
conviction of any conviction of any conviction of any conviction of any
offense in this offsense in this offense in this offense in this
Table in a Table in a Table in a Table in a
separate incident separate incident separate incident separate incident
If the driver operates a motor within a 3-year within a 3-year within a 3-year within a 3-year
vehicle and-- period while period while period while period while
operating a CMV, a operating a CMV or operating a CMV, a operating a CMV or
pereson required non-CMV, a CDL person required to non-CMV, a CDL
to have a CDL must holder must be have a CDL must be holder must be
be disqualified disqualified from disqualified from disqualified from
from operating a operating a CMV operating a CMV operating a CMV
CMV for-- for-- for-- for--
----------------------------------------------------------------------------------------------------------------
(1) Speeds excessively, 60 days........... 60 days........... 120 days.......... 120 days.
involving any speed of 24.1
kmph (15 mph) or more above the
posted speed limit.
----------------------------------------------------------------------------------------------------------------
(2) Drives recklessly, as 60 days........... 60 days........... 120 days.......... 120 days.
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.
----------------------------------------------------------------------------------------------------------------
(3) Makes improper or erratic 60 days........... 60 days........... 120 days.......... 120 days.
traffic lane changes.
----------------------------------------------------------------------------------------------------------------
(4) Follows the vehicle ahead 60 days........... 60 days........... 120 days.......... 120 days.
too closely.
----------------------------------------------------------------------------------------------------------------
(5) Violates State or local law 60 days........... 60 days........... 120 days.......... 120 days.
relating to motor vehicle
traffic control (other than a
parking violation) arising in
connection with a fatal
accident.
----------------------------------------------------------------------------------------------------------------
(d) Disqualification for railroad-highway grade crossing offenses.
Table 3 to Sec. 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:
[[Page 22510]]
Table 3 to Sec. 383.51
--------------------------------------------------------------------------------------------------------------------------------------------------------
For a third or For a third or
For a second For a second subsequent subsequent
conviction of any conviction of any conviction of any conviction of any
For a first For a first offense in this offense in this offense in this offense in this
conviction while conviction while Table in a Table in a Table in a Table in a
If the driver operates a motor operating a CMV, a operating a CMV or separate incident separate incident separate incident separate incident
vehicle in violation of a person required to non-CMV, a CDL within a 3-year within a 3-year within a 3-year within a 3-year
federal, state or local law and-- have a CDL must be holder must be period while period while period while period while
disqualified from disqualified from operating a CMV, a operating a CMV or operating a CMV, a operating a CMV or
operating a CMV operating a CMV person required to non-CMV, a CDL person required to non-CMV, a CDL
for-- for-- have a CDL must be holder must be have a CDL must be holder must be
disqualified from disqualified from disqualified from disqualified from
operating a CMV operating a CMV operating a CMV operating a CMV
for-- for-- for-- for--
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) The driver is not required No less than 60 No less than 60 No less than 120 No less than 120 No less than 1 No less than 1
to always stop, but fails to days. days. days. days. year. year.
slow down and check that tracks
are clear of an approaching
train.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(2) The driver is not required No less than 60 No less than 60 No less than 120 No less than 120 No less than 1 No less than 1
to always stop, but fails to days. days. days. days. year. year.
stop before reaching the
crossing, if the tracks are not
clear.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(3) The driver is always No less than 60 No less than 60 No less than 120 No less than 120 No less than 1 No less than 1
required to stop, but fails to days. days. days. days. year. year.
stop before driving onto the
crossing.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(4) The driver fails to have No less than 60 No less than 60 No less than 120 No less than 120 No less than 1 No less than 1
sufficient space to drive days. days. days. days. year. year.
completely through the crossing
without stopping.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(5) The driver fails to obey a No less than 60 No less than 60 No less than 120 No less than 120 No less than 1 No less than 1
traffic control device or the days. days. days. days. year. year.
directions of an enforcement
official at the crossing.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(6) The driver fails to No less than 60 No less than 60 No less than 120 No less than 120 No less than 1 No less than 1
negotiate a crossing because of days. days. days. days. year. year.
insufficient undercarriage
clearance.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(e) Disqualification for violating out-of-service orders. Table 4
to Sec. 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 Sec. 383.51
----------------------------------------------------------------------------------------------------------------
For a third or
For a second conviction subsequent conviction
For a first conviction in a separate incident in a separate incident
while operating a CMV, within a 10-year period within a 10-year period
a person required to operating a CMV, a while operating a CMV,
If the driver operates a CMV and-- have a CDL and a CDL person required to have a person required to
holder must be a CDL and a holder must have a CDL and a CDL
disqualified from be disqualified from holder must be
operating a CMV for-- operating a CMV for-- disqualified from
operating a CMV for--
----------------------------------------------------------------------------------------------------------------
(1) Violates a driver or vehicle out- No less than 90 days or No less than 1 year or No less than 3 years or
of-service order while transporting more than 1 year. more than 5 years. more than 5 years.
non-hazardous materials.
----------------------------------------------------------------------------------------------------------------
(2) Violates a driver or vehicle out- No less than 180 days No less than 3 years or No less than 3 years or
of-service order while transporting or more than 2 years. more than 5 years. more than 5 years.
hazardous materials required to be
placarded under part 172, subpart F
of this title.
----------------------------------------------------------------------------------------------------------------
(3) Violates a driver or vehicle out- No less than 180 days No less than 3 years or No less than 3 years or
of-service order while operating a or more than 2 years. more than 5 years. more than 5 years.
vehicle designed or used to
transport 16 or more passengers,
including the driver.
----------------------------------------------------------------------------------------------------------------
5. Amend Sec. 383.53(b)(1) by revising the cross-reference
``Sec. 383.51(d)'' to read ``Sec. 383.51(e)''.
6. Revise Sec. 383.71(a)(6) to read as follows:
Sec. 383.71 Driver application procedures.
(a) * * *
(6) Certify that he/she is not subject to any disqualification
under Sec. 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. Amend Sec. 383.72 by revising the cross-reference
``Sec. 383.51(b)(2)(i)'' to read ``Sec. 383.51(b)''.
8. Revise the introductory text of paragraph (a)(3) in Sec. 383.73
to read as follows:
Sec. 383.73 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
Sec. 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 not be limited to the following:
* * * * *
[[Page 22511]]
9. Amend Sec. 383.77(a)(3) by revising the cross-reference
``Sec. 383.51(b)(2)'' to read ``Sec. 383.51(b)''.
PART 384--[AMENDED]
10. Revise the authority citation for 49 CFR part 384 to read as
follows:
Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and 49 CFR
1.73.
11. Add Sec. 384.107 to subpart A to read as follows:
Sec. 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
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 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's License Information System (CDLIS) State Procedures,'' Version
2.0, October 1998.
(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.
12. Revise Sec. 384.203 to read as follows:
Sec. 384.203 Driving while under the influence.
(a) The State must have in effect and enforce through licensing
sanctions the disqualifications prescribed in Sec. 383.51(b) of this
subchapter for driving a CMV with a 0.04 alcohol concentration.
(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 Sec. 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)).
13. Revise Sec. 384.215(a) to read as follows:
Sec. 384.215 First offenses.
(a) General rule. The State must disqualify from operating a CMV
each person who is convicted, as defined in Sec. 383.5 of this
subchapter, in any State or jurisdiction, of a disqualifying offense
specified in Sec. 383.51(b)(1) through (6) of this subchapter, for no
less than one year.
* * * * *
14. Revise Sec. 384.216 to read as follows:
Sec. 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 Sec. 383.5 of this
subchapter, in any State or jurisdiction, of a subsequent offense as
described in Sec. 383.51(b) of this subchapter.
(b) Special rule for certain lifetime disqualifications. The State
where the disqualified driver resides after 10 years of
disqualification have elapsed may reduce the lifetime disqualification
of a person disqualified for life under Sec. 383.51(b) of this
subchapter, to a minimum of ten years in accordance with
Sec. 383.51(a)(5) of this subchapter.
15. Revise Sec. 384.217 to read as follows:
Sec. 384.217 Drug offenses.
The State must disqualify from operating a CMV for life each person
who is convicted, as defined in Sec. 383.5 of this subchapter, in any
State or jurisdiction, of using a CMV in the commission of a felony
described in Sec. 383.51(b)(9) of this subchapter. The State shall not
apply the special rule in Sec. 384.216(b) to lifetime disqualifications
imposed for controlled substance felonies as detailed in
Sec. 383.51(b)(9) of this subchapter.
16. Revise Sec. 384.218 to read as follows:
Sec. 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 Sec. 383.5 of this subchapter, in any State(s)
or jurisdiction(s), of two serious traffic violations involving a CMV
operated by such person, as specified in Sec. 383.51(c) of this
subchapter.
17. Revise Sec. 384.219 to read as follows:
Sec. 384.219 Third serious traffic violation.
The State must disqualify from operating a CMV for a period of not
less than 120 days each person who, in a three-year period, is
convicted, as defined in Sec. 383.5 of this subchapter, in any State(s)
or jurisdiction(s), of three serious traffic violations involving a CMV
operated by such person, as specified in Sec. 383.51(c) of this
subchapter. This disqualification period must be in addition to any
other previous period of disqualification.
18. Add Sec. 384.222 to read as follows:
Sec. 384.222 Violation of out-of-service orders.
The State must have and enforce laws and/or regulations applicable
to drivers of CMVs and their employers, as defined in Sec. 383.5 of
this subchapter, which meet the minimum requirements of
Secs. 383.51(e), 383.37(c), and 383.53(b) of this subchapter.
19. Revise Sec. 384.223 to read as follows:
Sec. 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 Sec. 383.5 of this
subchapter, which meet the minimum requirements of Secs. 383.37(d),
383.51(d), and 383.53(c) of this subchapter.
20. Add Sec. 384.224 to read as follows:
Sec. 384.224 Noncommercial motor vehicle violations.
The State must have and enforce laws and/or regulations applicable
to drivers of CMVs, as defined in Sec. 383.5 of this subchapter, which
meet the minimum requirements of Sec. 383.51(b) through (d) of this
chapter.
21. Revise Sec. 384.231 to read as follows:
Sec. 384.231 Satisfaction of State disqualification requirement.
(a) Applicability. The provisions of Secs. 384.203, 384.206(b),
384.210, 384.213, 384.215 through 384.219, 384.221 through 384.224, and
384.231 apply to the State of licensure of the
[[Page 22512]]
person affected by the provision. The provisions of Sec. 384.210 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 Sec. 383.51 of this subchapter. At a minimum,
the State must implement the limitation on licensing provisions of
Sec. 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's License Information System (CDLIS) State
Procedures,'' Version 2.0. (See Sec. 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 Secs. 384.215 through 384.219, and 384.221 through 384.224.
PART 390--[AMENDED]
22. The authority citation for 49 CFR part 390 continues 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); and 49 CFR 1.73.
23. Amend Sec. 390.5 to revise the definition for ``Driving a
commercial motor vehicle while under the influence of alcohol'' to read
as follows:
Sec. 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 Sec. 383.51(b) or Sec. 392.5(a)(2)
of this subchapter.
* * * * *
Issued on: April 23, 2001.
Brian M. McLaughlin,
Acting Deputy Administrator.
[FR Doc. 01-10583 Filed 5-3-01; 8:45 am]
BILLING CODE 4910-EX-P