CDL rules 2002

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Wednesday,

July 31, 2002

Part II

Department ofTransportation

Federal Motor Carrier SafetyAdministration

49 CFR Parts 350, et al.

Commercial Drivers License Standards,Requirements and Penalties; CommercialDrivers License Program Improvementsand Noncommercial Motor Vehicle

Violations; Final Rule

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49742 Federal Register / Vol. 67, No. 147/ Wednesday, July 31, 2002/ Rules and Regulations

1On May 31, 2002, AAMVAnet, Inc. was mergedinto AAMVA. AAMVAnet, Inc. no longer exists asa separate corporation.

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier SafetyAdministration

49 CFR Parts 350, 383, 384 and 390

[Docket Nos. FMCSA20019709 andFMCSA007382]

RIN 2126AA60 and RIN 2126AA55

Commercial Drivers LicenseStandards, Requirements andPenalties; Commercial DriversLicense Program Improvements andNoncommercial Motor VehicleViolations

AGENCY: Federal Motor Carrier SafetyAdministration (FMCSA), DOT.

ACTION: Final rule.

SUMMARY: The FMCSA revises itsCommercial Drivers License (CDL)Program. The Motor Carrier Safety

Improvement Act of 1999 (MCSIA)mandates these revisions. They aredesigned to enhance the safety ofcommercial motor vehicle (CMV)operations on our nations highways byensuring that only safe drivers operateCMVs.

EFFECTIVE DATE: September 30, 2002.The incorporation by reference ofcertain publications in this rule isapproved by the Director of the FederalRegister as of September 30, 2002.

FOR FURTHER INFORMATION CONTACT: Mr.Robert Redmond, Office of SafetyPrograms, (202) 3665014, Federal

Motor Carrier Safety Administration,400 Seventh Street, SW., Washington,DC 20590. Office hours are from 7:45a.m. to 4:15 p.m., e.t., Monday throughFriday, except Federal holidays.

SUPPLEMENTARY INFORMATION

Regulatory Information

The FMCSA published two Notices ofProposed Rulemaking (NPRMs) [66 FR22499 on May 4, 2001 and 66 FR 39248on July 27, 2001] to amend variousprovisions of parts 350, 383, 384 and390 of Title 49 Code of FederalRegulations (CFR) to implement

congressionally mandated changes.Nearly 200 comments were received inresponse to these two NPRMs. BothNPRMs are being finalized in thisaction.

This rule uses plain language so thatindividuals unfamiliar with FMCSAregulations will find it easier to follow.We are making the text clearer,standardizing terms, changing to theactive voice, reorganizing material foradded clarity, inserting or revisingheadings to reflect content accurately,and correcting typographical,

punctuation, and grammatical errors.The FMCSA is also revising thedisqualification sanctions foundin 383.51 by organizing them into an if-then table format that we believe iseasier to understand than the currentregulatory text.

Background

The Commercial Motor Vehicle SafetyAct of 1986 (CMVSA) [Public Law 99570, Title XII, 100 Stat. 3207170, 49U.S.C. chapter 313] established theCommercial Drivers License (CDL)Program and the Commercial DriversLicense Information System (CDLIS) toserve as a clearinghouse and repositoryof commercial driver licensing andconviction data. The CMVSA alsorequires States to ensure that driversconvicted of certain serious trafficviolations be prohibited from operatinga CMV. The Secretary of Transportationwas directed to monitor the Statescompliance with the standardsestablished under the CMVSA. The goalof the CMVSA is to improve highwaysafety by ensuring that drivers of largetrucks and buses are qualified to operatethose vehicles and to remove unsafe andunqualified drivers from the highways.

In 1994, the agency initiated a studyto evaluate the effectiveness of the CDLprogram. The final report, submitted toCongress in 1999, documentedvulnerabilities within the CDL programand provided recommendations tocorrect them.

Responding in part to the findings ofthis report, Congress passed the Motor

Carrier Safety Improvement Act of 1999(MCSIA) [Public Law 106159,113 Stat.1748]. The MCSIA amended numerousprovisions of title 49 of the UnitedStates Code relating to the licensing andsanctioning of CMV drivers required tohold a CDL, and directed theDepartment of Transportation (DOT) toamend its regulations to correct specificweaknesses in the CDL program.

This rule also clarifies the FMCSArelationship to the Commercial DriversLicense Information System (CDLIS).Section 12007 of the CMVSA, codifiedas 49 U.S.C. 31309, requires the

Secretary of Transportation to establishor designate an information system toserve as the clearinghouse anddepository of information about anyperson who operates CMVs, includinghis/her identification, licensing history,and disqualification history. Thissystem, known as CDLIS, also includesinformation about a person required tohave a CDL who has been convicted ofany of the disqualifying offenses listedin 49 CFR 383.51.

In 1988, the Federal HighwayAdministration (FHWA) entered into an

agreement pursuant to 49 U.S.C. 31309with the American Association of MotorVehicle Administrators and its formeraffiliate AAMVAnet, Inc.1 (AAMVAnet),to establish a communications networkto implement the CDLIS. The agreementdesignated AAMVAnet the CDLISoperator. Section 106(b) of MCSIA,transferred the agreement from the

FHWA to the FMCSA where it remainsin effect until the FMCSA modifies orterminates it. A copy of the 1988agreement is in the public docket.

Because States regularly utilizeAAMVAnet to access the CDLIS toobtain and transmit information on CDLdrivers, the AAMVAnet agreement andCDLIS operational procedures are beingincorporated by reference into thisrulemaking.

The following commentary willanalyze the content of the regulationsand address significant issues raised incomments received in response to theNPRMs.

Section-by-Section Discussion ofComments with FMCSA Response

Section 350.217What Are theConsequences for a State With a CDLProgram Not in Substantial ComplianceWith 49 CFR Part 384, Subpart B?

Section 103(e) of the MCSIA requiresthe FMCSA to withhold all MotorCarrier Safety Assistance Program(MCSAP) grant funds authorized underSection 103(b)(1) of MCSIA from Statesnot in substantial compliance with 49CFR part 384, subpart B. This newsanction is added to the one currentlycontained in 49 CFR part 384, subpartD requiring the agency to withhold fivepercent of some of a States Federal-aidhighway funds following the first yearof noncompliance and 10 percent ofsuch funds following the second andsubsequent years of noncompliance.

Fifteen States and State affiliatedassociations commenting on thisprovision oppose the withholding ofMCSAP funds from States not insubstantial compliance with the FederalMotor Carrier Safety Regulations(FMCSRs). Of particular concern wasthe 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 thecourts. Compliance with the proposed10-day conviction reporting requirementof 49 CFR 384.209 is the issue whichraises the greatest concerns. One agencyalso proposes that the withholding ofMCSAP funding requirement be


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49743Federal Register / Vol. 67, No. 147/ Wednesday, July 31, 2002/ Rules and Regulations

amended to adopt the same formulaused to withhold highway funding fromStates in substantial noncompliance.

The FMCSA understands theseconcerns, but is bound by statutorylanguage of the MCSIA requiring thewithholding of MCSAP funds fromthose States found to be in substantialnoncompliance with 49 CFR part 384,

subpart B. The FMCSA urges eachStates chief executive to coordinate theefforts of all State agenciesincludingthe judiciaryto ensure theircompliance with these requirements.

Section 383.5Definitions.

Section 383.5 will add four newdefinitions and change four existingdefinitions of terms used in 49 CFRparts 383 and 384 to implementprovisions of the MCSIA. The newdefinitions include fatality,imminent hazard,non-CMV, andschool bus. The revised definitionsinclude disqualification,driving acommercial motor vehicle while underthe influence of alcohol,nonresidentCDL, and serious traffic violation.The term serious traffic violation is

being amended to add three newoffenses to the existing list of offenseswarranting disqualification of a CDLholder.

The FMCSA has added a newdefinition for the term non-CMV toidentify the vehicles types in whichifa driver is convicted of committing aserious traffic offense other than thosespecifically limited to commercialvehicleshe/she is subject to

disqualification.One commenter suggested that thedefinition offatality be revised to beconsistent with current Federaldefinitions, without providing anexample of the preferred definition(s).FMCSA notes that the 49 CFR 390.5fatality definition * * * any injurywhich results in the death of a personat the time of the motor vehicle accidentor within 30 days of the accident(emphasis added)is primarily usedwithin the context of fatality reporting.Because the new 49 CFR part 383definition is to be used within the

context of driver sanctions, FMCSA hasdeleted the reference to a 30-day timeperiod. Otherwise a driver involved inan accident which results in a deathmore than 30 days after the accidentcould possibly avoid sanctions. Such aneffect is both inconsistent with theobjective of CDL sanctioningrequirements and contrary to generalprinciples of common law under whichany death occurring within one year ofthe event may be charged criminally.FMCSA recognizes, of course that adeath which occurs long after an

accident may have a proximate cause orcauses other than the injuries sustainedin the accident. Therefore, the deletionof the 30-day reference is in no wayintended to weaken the causal linknecessary to qualify as a fatality.

Seven commenters proposed revisionsto the definition ofschool bus. Threeproposed that the FMCSA use the

National Highway Traffic SafetyAdministration (NHTSA) definition orthat the term only include vehicles thattransport 16 or more passengersincluding the driver; while twoproposed that the passenger capacity belowered to 10 or more passengers. Twoother commenters objected to theproposed definition, but offered lessspecific comments. The FMCSA hasreviewed the NHTSA definition and

believes that the proposed definition isconsistent with it, except for using theterm CMV. The term CMV was includedin the school bus definition because

only vehicles meeting the CMVdefinition are subject to the CDLlicensing requirements of 49 CFR part383, including the new school busendorsement. As with other CDLrequirements in 49 CFR part 383, theschool bus definition is intended toestablish a minimum standard. A Stateis free to establish more stringentstandards for CDL drivers. Allowablevariations to the school bus definitioninclude lowering the vehicle passengercapacity threshold for which a school

bus endorsement is required. For thesereasons, the FMCSA has included theschool bus definition proposed in the

NPRM to this final rule.The commentary to 383.23 discusses

comments concerning the definition ofnonresident CDL.

One commenter questioned thedifferent terminology proposed in theNPRM for one of the serious trafficviolations described in Sec. 201(c) ofMCSIA. New 49 U.S.C. 31301(12)(F)reads:

(F) Driving a commercial motor vehiclewhen the individual has not met theminimum testing standards

(i) Under section 31305(a)(3) for thespecific class of vehicle the individual isoperating; or

(ii) Under section 31305(a)(5) for the typeof cargo the vehicle is carrying; and.

Paragraph (h) under the 383.5definition for serious traffic violationreads Driving a CMV without theproper class of CDL and/orendorsements for the specific vehiclegroup being operated or for thepassengers or type of cargo beingtransported. The FMCSA believes thatthe revised language more clearlyconveys congressional intent that onlythose drivers who are fully qualified to

operate a specific vehicle be allowed tooperate it. The evidence that a driverhas met the minimum CDL testingstandards is that he/she has been issueda CDL and all required endorsements forthe class and specific type of CMV he/she intends to operate.

Section 383.7Validity of CDL Issued

by Decertified State.Sec. 383.7 is a new provision to

clarify that a CDL issued by a Statesubsequently prohibited from issuingCDLs under 49 CFR 384.405 remainsvalid until expiration. Based upon thefact that FMCSA received no opposingcomments and a single supportingcomment on this provision, it isincluded in the final rule as proposed.

Section 383.23Commercial DriversLicense.

Section 383.23 has been amended toallow a driver who is domiciled in aState that has been prohibited (underthe decertification provisions found in 384.405) from issuing CDLs, to applyfor a nonresident CDL from any otherState that is both in compliance withsuch decertification provisions andelects to issue nonresident CDLs.References to the date April 1, 1992have also been deleted from this section

because the date referred to acompliance deadline which is no longerrelevant.

Six States expressed concern that theproposed new language in this sectionwould require them to issue nonresidentCDLs to drivers living in States that had

been decertified. The intent of this newlanguage was to authorize, but notrequire States to issue nonresident CDLsto such drivers. The FMCSA has addedlanguage to the final rule to clarify thisissue.

A State objected that allowing Statesto issue nonresident CDLs to driversdomiciled in other States would resultin confusion over State-specificendorsements. Because the agencyanticipates that the sanction under 384.405 will rarely be invoked, theFMCSA believes that State-specificendorsements will not pose a significant

problem to States issuing nonresidentCDLs or States taking enforcementaction against drivers possessingnonresident CDLs.

Section 383.51Disqualification ofDrivers.

Section 383.51 has been revised toincorporate requirements of Section 201of the MCSIA. These revisions include:imposing a disqualification on CDLdrivers who have been convicted oftraffic offenses while operating a non-CMV which result in their license being


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canceled, revoked or suspended; or ofcommitting drug or alcohol relatedoffenses while driving a non-CMV; andadding two new disqualifying offenses:driving a CMV after the drivers CDLwas revoked, suspended or canceled forviolations while operating a CMV andcausing a fatality through the negligentor criminal operation of a CMV. As

discussed in the commentary to 383.5,three new offenses are being added tothe serious traffic violations for which adriver can be disqualified if convictedtwo or more times within a three-yearperiod. These three new offenses are: (1)Driving a CMV when the driver has notobtained a CDL, (2) driving a CMVwithout a CDL in the driverspossession, and (3) driving a CMVwithout having met the minimumtesting standards for the specific class ofCMV being operated or for the type ofcargo being transported on the vehicle.This section is also being amended to

specify the disqualification period forfirst-time and subsequent offenders.The CMVSA originally required the

disqualification of drivers only foroffenses committed while operating aCMV (49 U.S.C. 31310). The MCSIAmade additional offenses disqualifying,even if they were committed whileoperating a non-CMV. For theseoffenses, the Secretary of Transportationis required to specify thedisqualification 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 thesedrivers are subject to the samedisqualification period as a CDL holder.While the MCSIA addresses the type ofoffenses that must result in adisqualification if committed in a non-CMV, it is silent regarding the length ofthe CMV disqualification, requiring onlythat the disqualification period be nolonger than the disqualification periodfor the same or similar offensescommitted while operating a CMV.Based on this language, the FMCSA hasadded language to this section clarifyingthat CDL holders convicted of serioustraffic violations and other offenses ineither a non-CMV or a CMV serve thesame period of disqualification.

The revised 383.51 lists both theCMV convictions of CDL holders for theoriginal offenses under the CMVSA andthe non-CMV convictions for otheroffenses added in subsequent statutoryamendments. A clarification is alsoprovided in 383.51(a)(4) that bothCMV and nonCMV convictions fordisqualifying offenses will be used indetermining first and subsequentviolations. The entire section is being

revised to incorporate an easy tounderstand if-then table format.

Five commenters expressed their viewthat the if-then table format wasconfusing or did not clearly indicate thecircumstances that triggered the stateddisqualification period for offenseslisted in the various headings andcolumns. Based on these comments, the

FMCSA has reviewed the tables and hasmade a few minor changes to clarifytheir intended meaning. The agency

believes that after users become familiarwith the new format, they will find iteasier to locate the appropriatedisqualification period for all of thedisqualifying offenses.

The FMCSA received a total of 96comments on the May 4, 2001 NPRMconcerning Noncommercial MotorVehicle Violations. While mostcomments expressed general support forthe concept of CDL holders being heldaccountable for offenses committed in

both CMVs and non-CMVs, manycomments offered suggestions forrevisions to the final rule. Somecomments specifically mentioned thatthe tables listing the offenses and theperiod for which a driver is disqualifiedwere a great improvement over narrativeexplanations of these disqualifyingoffenses. Other comments suggested thatchanges to other areas of the rule mayneed to be made. The followingdiscussion addresses these comments.

Ten comments indicated that no otherprofession prevents a person frommaking a living based on drivingconvictions that occurred while

operating a private automobile or othernoncommercial vehicle. CDL holdersare, unlike most licensed passenger cardrivers, professional drivers. They earntheir living by operating large, heavyvehicles and/or transporting passengers.Given their status as professionals, CDLholders are held to a higher standard.CDL holders should not engage in risky,unsafe behavior while pursuing theirprofessiondriving. The Congress haschosen, in the interest of safety, not todistinguish between risk-taking

behavior in a passenger car or a CMV.Section 201(b) of the MCSIA specifically

directed the Secretary of Transportationto issue regulations requiring thedisqualification of CDL holdersconvicted of serious offense whileoperating a non-CMV.

Twenty commenters fully support theconcept of CDL drivers being held to ahigher standard by being accountablefor both CMV and non-CMVconvictions, while seven othercommenters supported this concept inregard to alcohol and drug relatedoffenses, but do not believe thatconvictions for serious traffic violations

in a non-CMV for excessive speed andfollowing too closely should beincluded. Seven comments opposeholding CDL drivers accountable fornon-CMV convictions and describe it asan unnecessary burden and a doublestandard. The FMCSA believes that allserious traffic violations by a CDLholder should be counted when

operating a non-CMV because thesetypes of violations have consistentlycontributed to crashes and fatalities.

Ten comments suggest that if CDLholders are going to be held to higherstandards and penalties when operatinga non-CMV than drivers with anautomobile license, then everyone whodrives a vehicle should be liable forthese higher penalties when operatingtheir private automobiles. Thissuggestion falls outside the scope of thisrulemaking and the authority of theagency. The FMCSA does not haveauthority to set standards and penalties

for drivers licensed to operate only non-CMVs.Fourteen comments recommended

that penalties for a conviction in a non-CMV should be less than in a CMV, ata higher threshold as far as the numberof convictions that would cause thedriver to be disqualified or that theFMCSA should let each State decide thelength of the penalties. These commentsargue that if Congress wanted the samepenalties for both types of offenses, itwould have been specifically addressedin Federal law. The FMCSA has theauthority to set the same penalties for

both types of offenses; Congress simply

said that penalties in a non-CMV maynot be greater than the penalties for thesame offense in a CMV. The FMCSA

believes that by setting the minimumpenalties for all offenses rather thanleaving non-CMV penalties to the States,there will be greater national uniformityand consistency in the administration ofthe CDL program.

Ten comments object to railroad-highway grade crossing offenses beingincluded in non-CMV offenses, either ascurrently worded because these types ofoffenses do not apply to non-CMVs, or

because the inclusion of these offenses

goes beyond the intent of Congress. TheFMCSA agrees that the wording of thesetypes of offenses specifically addressesactions that only apply to CDL holderswhile operating a CMV. Therefore thenon-CMV railroad-highway gradecrossing offenses have been eliminatedfrom the final rule.

Five comments request a clarificationof the relationship between alcoholrelated convictions,administrativeper se suspensions and refusal to betested in Table 1 to 383.51. Theyexpress confusion over what action is to


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be taken against a drivers CDL underthese three actions, particularly for non-CMV offenses. The FMCSA hasmodified Table 1 to 383.51 to clarifywhat actions must be taken for alcoholrelated convictions and refusal to betested. The relationship betweenconvictions and administrative perse suspensions is discussed in current

regulatory text under 383.51(f) and isbeing moved to 384.203 to make itmore visible.

Concerning the relationship betweenconvictions and administrative perse suspensions, the FMCSA offers thefollowing background information. TheCMVSA required that CDL driversconvicted of operating a CMV with analcohol concentration of 0.04 or greater

be subject to being disqualified fromoperating a CMV for a period of one tothree years for a first conviction,depending on the cargo beingtransported. This sanction does not

apply to CDL drivers operating a non-CMV at this alcohol concentration.Table 1 to 383.51 has been revised toclarify this fact. The 383.5 definitionofconviction includes guilty findings

by an authorized administrativetribunal. This definition was intendedto encompass any type of administrativedetermination of guilt including Stateadministrative per se DWI laws.Accordingly, a CDL driver found guiltyof operating a CMV with an alcoholconcentration of 0.04 or greater or ofviolating a States DWI laws as a resultof an administrative hearing, whileoperating a CMV or non-CMV, would be

subject to being disqualified under therequirements of 383.51.

One comment asks whether thedefinition ofnon-CMV includesrecreational vehicles used in an off roadenvironment (e.g. snowmobiles,watercraft, all terrain vehicles, etc.). Theregulations define the term motorvehicle in 383.5 as a vehicle * * *used on highway * * * It does notinclude recreational vehicles designedfor off road use.

Four comments ask whetherconviction in a non-CMV prior toapplying for a CDL will prevent the

issuance of the CDL. The Act clearlystates that penalties for offensescommitted by a CDL holder in a non-CMV shall be counted. Therefore, onlynon-CMV convictions for offensescommitted after a person obtains a CDLcan be counted against his or herdriving record.

Seven comments ask if a State mustinclude non-CMV convictions thatoccurred prior to enactment of MCSIA.The FMCSA can only take action onoffenses that occur after the effectivedate of the final rule and a State only

has to take action upon the effectivedate of its State law or regulation.

Three comments state that the newdisqualification requirements arecomplex and difficult to understand inthe tables. While the FMCSA developedthese tables in keeping with guidelinesfor using plain language and if/thentables for Federal regulations, we have

made some revisions to help clarify theintent of the new requirements. Therewere also several comments thatindicate that the tables make it easier tounderstand the requirements.

Eight comments indicate that 49U.S.C. 31310(g) refers to operators ofCMVs who are convicted of drug oralcohol related offenses in a non-CMV,and that only convictions for seriousoffenses in a non-CMV which result inState revocation, suspension orcancellation of a drivers non-CMVprivileges shall result in thedisqualification from operating a CMV.The comments argue that by namingspecific offenses and penalty periodsthe FMCSA has exceeded its authority.The language of Section 31310(g),enacted by Sec. 201 of MCSIA gives theFMCSA ample authority to specify whatconstitutes a serious offense, althoughthe violation will not be disqualifyingunless the State also finds that thecircumstances of the offense warrantrevocation, cancellation, or suspensionof the individuals license. Section31310(g)(2) specifically authorizes theFMCSA to establish the minimumperiods for which the disqualificationshall be in effect * * * That is exactly

what the agency has done in 383.51 inorder to promote safety and uniformityamong the States. The FMCSA further

believes that Congress, in using the termserious offense in Section31310(g)(1)(A), was referring to theserious traffic violations alreadyspecified in 383.5 and 383.51(c).Violations are not listed as disqualifyingin 383.51 unless they aredemonstrably significant, i.e., contributeto crashes and fatalities.

Three comments state that theFMCSA should not give the States theoption of using .04-alcohol

concentration as a disqualifying offensefor a non-CMV conviction. The FMCSAonly has the authority to establish aminimum alcohol concentrationdisqualification standard for CDLdrivers. As with other minimumstandards, however, individual Statesare free to impose more stringentstandards, including establishing alower alcohol concentration, for bothCDL and non-CDL drivers licensed bytheir State.

One comment proposed revisions topermit a driver to operate while a CMV

conviction is under judicial appeal. TheFMCSA defers to State law andprocedure to determine this issue. If, asis the case in many jurisdictions, a trialcourt judgment does not become a finalconviction for a certain period of timeto allow a defendant to appeal theverdict, the driver may continue tooperate until that time or if an appeal is

filed, until the appellate court rendersjudgment. However, if a conviction isentered as final, the penalty provisionsof this regulation apply.

One comment recommends that therule require States to record the numberof miles per hour by which the driverof a non-CMV exceeds the posted speedlimits. The only disqualifying offensefor speeding in a CMV or non-CMV isexcessive speeding, i.e., 15 miles perhour or more over the posted speedlimit. A code already exists in theCDLIS for this offense when it iscommitted in a CMV. The code will be

revised to include CMV and non-CMV.Three comments suggest that both theMay 4 and July 27 NPRMs be given thesame effective date because manyprovisions are tied together. TheFMCSA agrees. We decided to merge

both MCSIA proposals into one finalrule with a single effective date for allprovisions.

Three comments ask if the State oflicensure can disqualify CMV drivers forfailure to pay child support. Each Statehas the authority to set additionaldisqualification requirements for driverslicensed in their State, including failureto pay child support. This rule only sets

the minimum disqualificationrequirements for a State to remain insubstantial compliance with the Federalrequirements.

One comment questions whether thecosts of the rule on non-CMV violationsconstitute an unfunded mandate underthe Federal regulations whenconsidered with other CDL-relatedMCSIA requirements. Based on theagencys economic analysis of this issuediscussed in the Rulemaking Analysesand Notices section of this rulemaking,the FMCSA does not believe that thisrequirement imposes an unfunded

mandate on the States.One comment requested clarificationof the use of a non-CMV in thecommission of a felony involving acontrolled substance. The FMCSA

believes that this is self-explanatory. Ifthe vehicle is used in themanufacturing, distributing, ordispensing of a controlled substanceas defined in 49 CFR 383.5, it is a CDLfelony offense.

One comment suggests that theFMCSA also provide a narrative textdescribing the offenses and


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disqualification penalty in Tables 1through 4 to 383.51. Such a narrativewould defeat the purpose of the tables:to provide a more easily understandabledescription of the offenses andpenalties. Each State is, however, free touse a narrative form of the tables in itsown legislation or regulations. Anarrative form can be easily developed

from the tables.One comment asks why hazardous

materials drivers are being penalizeddifferently from other CDL drivers forviolations that occur in a non-CMV thatis not carrying hazardous materials. Thecommenter appears to have misread the 383.51 table, which only requires thatenhanced penalties be imposed againstdrivers who are actually carryinghazardous materials in a CMV at thetime of the offense.

One comment states that proposed 383.51, 384.218 and 384.219 aredrafted in a style completely different

from 384.224. The commenter suggestseither that all sections cross-reference 383.51 or that each section requiredisqualification for particular offenses.All the sections mentioned by thecomment relate to compliance with 383.51. The styles in which they arewritten are different because there areseparate State substantial compliancerequirements for second and thirdserious traffic violations while there isonly one specific requirement for non-CMV violations.

Two comments request the FMCSA todevelop a definition of the term

authorized agents. The FMCSAbelieves that this term is sufficientlydefined under individual State statute,regulation or case law, and need not beincluded in this rulemaking.

One comment asks why the NPRMdoes not address how the newregulations on non-CMV violations of aCDL holder will apply to Mexican,Canadian and other foreign drivers.Mexican and Canadian CDL drivers mayoperate in the U.S. on a license issued

by their home jurisdiction in accordancewith reciprocity agreements between theU. S. and Canada and Mexico as noted

in the footnote to 49 CFR 383.23(b).These drivers are subject to all of theU.S. CDL requirements while operatingin the U.S., including disqualificationfor convictions while operating a non-CMV in the U.S. The Department willinitiate discussions with Mexico andCanada on the issue of non-CMVoffenses by these drivers whileoperating in their home country. Allother foreign CDL drivers must obtain anonresident CDL to legally operate inthe U.S. The issuance of the nonresidentCDL subjects these drivers to the same

requirements as other CDL holderswhile operating in the U.S.

Thirteen comments challenge theaccuracy of our cost data analysis. Thisissue is being addressed in theeconomic analysis area of thisrulemaking.

One commenter requests that the ruleexplicitly state that the disqualification

action must be based on a conviction ofthe listed offenses. FMCSA hasamended Table 1, 2, 3 and 4 to 383.51to clarify this issue.

One commenter asks if the two newdisqualifying offenses being added toTable 1 to 383.51 are subject to the 10-year reinstatement provision of 383.51(a)(5). The answer is yes, andthe text of this section has beenamended to reflect this fact.

A few additional comments point outtypographical errors in the Tables.These errors have been corrected in thefinal rule.

Four commenters noted that theFMCSA omitted certain qualifyinglanguage enacted by Sec. 201(a) of theMCSIA. Specifically, 49 U.S.C.31310(b)(1)(D) and (c)(1)(D) require a 1-year disqualification the first time adriver is convicted of driving a CMVwhen his/her CDL is revoked,suspended, or canceled, or when he/sheis disqualified from driving a CMV,

providingthe revocation, suspension,cancellation or disqualification wasbased on the individuals operation ofa commercial motor vehicle. In otherwords, the 1-year disqualification is notrequired if the drivers CDL was

revoked, suspended, or canceled, or he/she was disqualified, for violations thatoccurred in a non-CMV. Thecommenters are correct. Also, in thesituation where more than oneconviction is required to be disqualified,all convictions must have occurredwhile operating a CMV. The FMCSA hasadded this qualifying language to thefinal rule.

One commenter proposed that theFMCSA establish standards for notifyingdrivers that their CDL had beensuspended or revoked or that they had

been disqualified from operating a CMV.

The FMCSA believes that each State haslaws or procedures addressing thisissue. Establishing such standards forStates to provide notice of the loss of adriving privilege is beyond the scope ofthis rulemaking.

Thirteen comments raise issuesrelated to the language in the NPRMused to describe the new disqualifyingoffense of causing a fatality through thenegligent or criminal operation of aCMV. To address concerns raised inthese comments, the FMCSA has addedlanguage to the final rule to clarify the

type of offense of which a driver mustbe convicted to be subject to thisdisqualification.

One of the proposed serious trafficviolation disqualifications that receivedseveral comments was driving a CMVwithout a CDL in the driverspossession. Ten commenters expressedconcern that a driver could be

disqualified for not having a CDL withthem on a particular day because theymay have lost it or had their walletstolen. The MCSIA addresses thissituation in 49 U.S.C. 31301(12)(E):Any individual who provides proof tothe enforcement authority that issuedthe citation, by the date the individualmust appear in court or pay any fine forsuch a violation, that the individualheld a valid CDL on the date the citationwas issued, shall not be guilty of thisoffense. Although this language wasincluded in the 49 CFR 383.5 definitionof this new serious traffic violation, it

was inadvertently omitted from Table 2to 383.51. To clarify this issue, theFMCSA has added this language in afootnote to Table 2 to 383.51.

Section 383.52Disqualification ofDrivers Determined To Constitute anImminent Hazard.

Section 383.52 establishes FMCSAauthority for imposing an emergencydisqualification of CDL drivers posingan imminent hazard required by Section201(b) of the MCSIA (49 U.S.C.31310(f)).

Seven commenters raised questionsconcerning proposed procedures for

imposing an emergency disqualification,many requesting the agency to providegreater detail on how thedisqualification determination would bemade and asking that variousprocedural safeguards be included inthe rule. The FMCSA believes that thestatutory mandate, as reflected in thisregulation, together with existing agencyadministrative procedures, providesufficient guidance for the agency tomake this determination in accordancewith accepted due process standards.

Eight comments questioned theproposed criteria to be used by the

FMCSA in making a determination ofwhether or not an emergencydisqualification should be imposed on adriver. Based on a review of thecomments, the FMCSA has decided notto include in the final rule the sixfactors proposed in the NPRM to beconsidered by the agency in making itsdetermination of whether a driverconstitutes an imminent hazard. Theagency believes that the definition ofimminent hazard which the MCSIArequires the Department to use inmaking this determination provides


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after receiving this training andobtaining their passenger endorsement.While this may be a practical economicissue, the FMCSA believes that Congressestablished the school bus endorsementto promote the safe operation of school

buses, not to restrict a drivers futureemployment opportunities. Issuesrelated to restricting the futureemployment of such drivers should beaddressed through agreements betweenthe parties. Based upon this analysis,the FMCSA declines to incorporate thepassenger endorsement requirementsinto the school bus endorsement.

In the July 22 NPRM, the FMCSAproposed including a provision in 383.123 giving States the option of notrequiring applicants for the school busendorsement to take the skills testwhere the applicant had past experiencedriving a school bus and met the safetycriteria established in that section. The

agency believes that such a grandfatherclause, which proved successfulduring the implementation of theCMVSA, incorporates appropriateexperience and safety requirements toaccomplish the objective of the MCSIAwithout imposing an undue burden onthe States.

Thirteen comments receivedexpressed strong support forgrandfathering experienced drivers,although there were a few suggestionsfor changes to these proposedrequirements. Based on the comments,the FMCSA has amended the text to

clarify these criteria in the final rule.

Section 383.153Information on theDocument and Application.

Section 383.153 adds a license codefor the proposed school busendorsement. One State and theAmerican Association of Motor VehicleAdministrators express concern thatsome States already use an Sendorsement and asked the FMCSA toselect another designation for the newschool bus endorsement. Based on thefact that only two commenters raisedthis issue, the FMCSA does not believe

adopting an S endorsement willimpose an undue burden on those fewStates that may already use it for someother purpose. Since States use a widevariety of letters for various other non-Federal endorsements or purposes, thereis also a likelihood that any alternativeletter designation proposed by theFMCSA for the school bus endorsementwould already be used by one or moreStates. For these reasons, the FMCSAwill include the S endorsement forschool bus drivers in the final rule.

Section 384.107Matter Incorporatedby Reference.

The FMCSA is incorporating byreference the AAMVAnet publicationCDLIS State Procedures Manualcited in49 CFR 384.231(d) Recordkeepingrequirements. A discussion of theanalysis for this action, a completedescription of the document, and thereasons for its incorporation can befound in the commentary to 384.231.

One comment seeks clarification onwhether the reference to CDLIS in theMay 4 NPRM preamble discussion ofthe Number of CDL citations meansthe central site or the overall system.The reference to CDLIS in the NPRM isto the overall system.

Another comment asks whether theFMCSA would consider comments onthe AAMVAnet State ProceduresManual, which is being incorporated byreference into the Code of FederalRegulations. The FMCSA received no

comments on the Manual, but wouldnot have considered comments on thisdocument because no changes to it were

being proposed.

Section 384.203Driving While Underthe Influence.

The FMCSA has removed a provisiontitled Substantial Compliance byStates, from 49 CFR 383.51(f) andadded it to this section, where it moreappropriately belongs. It is designated49 CFR 384.203(b) and (c).

Section 384.206State Record Checks.

As previously discussed in the

commentary to 49 CFR 383.73, Section202(a) of the MCSIA requires States torequest the applicants driving recordfrom each State that issued him or herany kind of drivers license [49 U.S.C.31311(a)(6)] before issuing or renewinga CDL. The FMCSA is amending 383.71, 383.73 and 384.206 toincorporate these new requirements.

Five commenters asked how far backthis record check should extend. Afterreviewing the issue and noting thatNational Driver Register (NDR)guidelines require numerous offenses toremain on a drivers record for a period

of 10 years, the FMCSA has amended 384.206 to limit this expanded recordcheck to the 10 years preceding the dateof the drivers license application.

Section 384.208Notification ofDisqualification.

Section 384.208 has been amended tocomply with Section 202(b) of theMCSIA, which amended 49 U.S.C.31311(a)(8) to require that Statesinclude and record the violation thatresulted in the drivers disqualification,or the revocation, suspension or

cancellation of his or her CDL, as partof the notification they were previouslyrequired to make under this statutoryprovision. This notification must bemade no later than 10 days after thedriver is disqualified.

Because the only comment addressingthis issue was favorable, the FMCSA isincorporating it into the final rule as

proposed.Section 384.209Notification of TrafficViolations.

Section 202(c) of the MCSIA clarifiesa States responsibility for notifying theState where an out-of-state CDL driver islicensed whenever such a driver isconvicted of violating any State or locallaw relating to motor vehicle trafficcontrol (other than a parking violation),even if the driver was operating a non-CMV when the offense was committed[49 U.S.C. 31311(a)(9)]. The MCSIA alsorequires the State where the offense wascommitted to notify the State where thedriver is licensed if the offense wascommitted in a CMV, even if the driverdid not have a CDL at the time. TheMCSIA further requires that thisnotification be made no later than tendays after the drivers conviction. Thissection implements these requirements.

Eighteen commenters expressed theirviews on this provision, with industryand safety groups generally supportingthe proposed 10-day convictionreporting period and States raisingnumerous concerns associated withimplementing this requirement. Muchof the States concerns focused on the

fact that driver licensing and lawenforcement agencies are heldaccountable for actions of the Statecourts to meet the 10-day conviction-reporting requirement.

The FMCSA first notes that this 10-day reporting requirement is not new.Its origins are rooted in the CMVSAitself. In the final rule establishing thestandards States must meet to be incompliance with that Act, published inthe Federal Register on May 18, 1994 at59 FR 26029, the FHWA recognized thatit would be difficult for many States tomeet this 10-day reporting standard, and

accordingly delayed implementation ofthe requirement. The agency cautionedin that rulemaking, however, that thisimportant issue would be the subject offuture rulemaking.

Three other commenters object to theproposed extended implementationperiod for States to comply with theconviction reporting requirements ofthis section. As the agency stated in the

July 27 NPRM, based on its currentknowledge of State capabilities to obtainand transmit driver convictioninformation, the FMCSA believes that to


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immediately impose a ten-day timeperiod would place an unreasonable

burden on the States. Accordingly, theNPRM proposed that this 10-day timelimitation be phased in over six yearsaccording to the following timeschedule. Within three years of theeffective date of the final rule,notification would be required within

30 days of the conviction. Within sixyears, notification would be requiredwithin ten days. States are encouragedto move as quickly as possible to meetthe 10-day requirement and should seekto do so wherever possible. Afterconsidering the comments, the FMCSAhas decided to adopt the phase-inproposal.

In light of the importance of Statesobtaining timely conviction informationon CDL drivers who are convicted ofoffenses while driving in other States, itis critical that States make every effortto meet the compliance schedule

established in this rulemaking. TheFMCSA urges all State agencies to worktogether to accomplish this objective.

One commenter also asked whetherthe 10-day notification period beganwhen the verdict was rendered or at thetime the conviction became final. TheFMCSA defers to State law andprocedure to determine this issue. If, asis the case in many jurisdictions, a trialcourt verdict does not become a finalconviction for a stated period after theverdict to allow a defendant time toappeal, the conviction information must

be transmitted 10 days after the appealwindow closes, or if an appeal is filed,

after the conviction is upheld.Section 384.210Limitation onLicensing-Prohibition on State IssuingHardship Licenses.

Section 384.210 is being amended inaccordance with provisions of Section202(d) of the MCSIA (49 U.S.C.31311(a)(10)(B)) to prohibit a State fromissuing a special commercial driverslicense or permit (including aprovisional or temporary license) to anyCDL driver who is disqualified or whohas his or her non-commercial driverslicense or driving privilege revoked,

suspended or canceled.Of the ten comments addressing thisissue, a few State licensing and lawenforcement agencies point out thedifficulty of getting any legislationpassed and the fact that they do notcontrol court actions in issuing suchlicenses. While cognizant of the need forcoordination between judicial,executive, and legislative branches thatimplementing and complying with thisprovision may impose on the States, theFMCSA notes that this action isrequired by the MCSIA and urges all

States to take appropriate action to bringtheir laws, regulations and ajudicatoryprocedures into compliance with thisnew requirement for identifying andremoving drivers whose violationswarrant such action. The statuteanticipates and FMCSA believes that the

branches of government can workcooperatively to address this public

safety issue.Section 384.225Record of Violations.

Section 202(f) of the MCSIA requiresthe States to maintain a driver historyrecord for CDL drivers of all convictionsof State or local motor vehicle trafficcontrol laws while operating any type ofmotor vehicle [49 U.S.C. 31311(a)(18)].It also specifies that this informationmust be made available to authorizedCDLIS users including the Secretary ofTransportation, States, drivers,employing motor carrier andprospective employing motor carriers,as part of normal operating practices.While the MCSIA does not specify aretention period for information onthese convictions and other licensingactions, a minimum retention period ofthree years is included in this rule topromote uniformity among the States.Although Section 31311(a)(18) requiresa driver history record only for CDLdrivers, Section 31311(a)(9) goes beyondthat. When an out-of-State drivercommits a violation, paragraph (a)(9)requires the State where the violationoccurred to notify the State that issuedhis/her drivers license. This ruleapplies both to CDL holders and to

drivers operating a CMV (illegally)without a CDL. Because a State couldnot provide notification of a violation bya CMV driver who did not have a CDLwithout first entering the conviction inthe driver information system, theFMCSA has concluded that thisrequirement is implicit in paragraph(a)(9) despite the fact that no suchrequirement 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) (Non-CDL holders) is based on 49 U.S.C.31311(a)(9).

Seven comments support therequirement for States to enter all trafficconvictions on driver records; however,three States questioned which drivingrecords should be maintained andproposed alternative retention periods.Paragraph (d) of 384.231 requiresStates to maintain driver records forCDL drivers on the CDLIS for the timeperiods the FMCSA finds necessary toenforce the disqualifications called forin 384.215 through 384.219 and 384.221 through 384.224. These timeperiods range from a minimum of 3

years for serious traffic violations andrailroad-highway grade crossingviolations to life for major alcohol, drugand felony offenses. Since the minimumretention period for a disqualifyingoffense is currently set at 3 years, theFMCSA believes that a minimum recordretention period of 3 years for all otheroffenses in a CMV and non-CMV is

reasonable. It is a good balance betweenallowing authorized users to see thecurrent driving record of a CDL driverwithout placing an undue burden on theStates to carry convictions on a drivingrecord that will not affect any futuredriver disqualification action. The moreserious the offense, the longer theconviction will remain on the drivingrecord for review by authorized users ofCDLIS. Based upon the fact that theCDLIS driver record retention standardsare well known and adhered to by allStates, the FMCSA does not believe anyadditional record retention period needs

to be included in this rulemaking.Another issue raised in four of thecomments was that the authorizedagents of people and entities designatedin the MCSIA as having access to driverrecord information should also beallowed to obtain this information. TheFMCSA agrees that the MCSIA permitsaccess to these records by agents, andhas amended the final rule to reflect thisfact.

One State asked whether they will beallowed to charge motor carriers forproviding driver history information.The FMCSA believes this is a decisionfor each State to make consistent with

the object of this rulemaking.Accordingly, it has not been addressedin this rulemaking.

Section 384.226Prohibition onMasking Convictions.

Section 202(g) of the MCSIA prohibitsthe practice of masking convictionsrequired to be maintained by ortransmitted to the State where the driveris licensed [49 U.S.C. 31311(a)(19)]. A

Joint Explanatory Statement issued byCongress in conjunction with theMCSIA (145 Cong. Rec. H1287012874(daily ed. Nov. 18, 1999; 145 Cong. Rec.

S1520715211 (daily ed. Nov. 19, 1999))makes clear that this new provision isintended to prohibit States not onlyfrom masking convictions, but also fromusing diversion programs or any otherdisposition that would defer the listingof a guilty verdict on a CDL driversrecord. This provision also requires thatrecords of such conviction information

be made available to all authorizedparties and government entities. TheFMCSA urges State Executive Branchagencies to work with the State JudicialBranch to eliminate the practice of


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masking. This practice allows unsafedrivers to continue to pose a risk toother motorists by allowing theircontinued operation on the nationshighways.

Section 384.231Satisfaction of StateDisqualification Requirements.

All paragraphs are amended to

replace the word shall with the wordmust.

The FMCSA is amending paragraph(a) to include cross references to thedisqualifications resulting from railroad-highway grade crossing violationsadded as 49 CFR 384.223 by a final rulepublished on September 2, 1999 (64 FR48104), and new 384.222 and 384.224promulgated by this final rule.

Paragraph (b)(2) is being amended toremove the May 18, 1997, compliancedate from the heading of the paragraph

because that date has passed and therule now applies to all non-CDL

holders. The FMCSA is also replacingthe undefined term non-CDL holderwith a person required to have a CDLwithin the heading and body ofparagraph (b)(2) because the term non-CDL holder could include a personwho is not even required to have a CDL.The intent of this paragraph is to requireeach State to disqualify any personrequired to have a CDL who wasconvicted of a disqualifying offense in aCMV under 383.51.

Paragraph (d) is being amended toincorporate by reference the currentversion of the AAMVAnet StateProcedures Manual. Each State-

licensing agency has a copy of the mostrecent version of the CDLIS StateProcedures Manual. A copy of thisCDLIS State Procedures Manual is alsoin the public docket.

Section 384.401Withholding of FundsBased on Noncompliance.

In order to avoid the withholding ofcertain Federal aid highway funds,States must be in substantialcompliance, as defined in 49 CFR384.301, with the standards set forth inSubpart B of part 384. Section 103(e) ofthe MCSIA also requires the FMCSA to

withhold Motor Carrier SafetyAssistance Program (MCSAP) fundsfrom States that fail to be in substantialcompliance with these standards. Thissection incorporates this newsanctioning requirement. A discussionof the comments on this requirementcan be found in the commentary to 350.217.

Section 384.405Decertification ofState CDL Program.

Section 203 of the MCSIA requires theFMCSA to prohibit a State from issuing,

renewing, transferring, or upgradingCDLs if the agency has determined thatthe State is in substantialnoncompliance with the requirementsof Section 31311 of title 49 U.S.C. (49CFR part 384, subpart B). Because of theseverity of this new sanction and thepotential effect on drivers and motorcarriers located in States found to be in

noncompliance, it is envisioned thatthis penalty will be used only after otherattempts to bring the State intosubstantial compliance with CDLrequirements have failed. As noted inthe commentary to 383.23, the FMCSAenvisions this sanction being invokedonly in rare situations.

To mitigate the impact on drivers andmotor carriers in States that have beendecertified, the MCSIA is adding aprovision to 49 CFR 383.7 and384.405(h) allowing drivers licensed

before a State was decertified tocontinue to operate CMVs, as long as

their licenses remain valid. The FMCSAhas also included language in 49 CFR383.23(b)(2) authorizing States that arein substantial compliance to issuenonresident CDLs to drivers living inStates that have been decertified.

In response to one comment raisedconcerning how other States will knowthat a State has been decertified, theFMCSA will notify all States whenevera State has been decertified orrecertified.

Section 384.407Emergency CDLGrants.

Section 384.407 implements Section103(d) of the MCSIA (49 U.S.C.31107(c)) by authorizing the FMCSA toprovide emergency CDL grants to assistStates whose CDL programs may fail tomeet the compliance requirements of 49U.S.C. 31311(a) [49 CFR part 384,subpart B]. These grants of up to$1,000,000 per State are subject to theannual appropriation of funds byCongress for information system grants.

Two comments to the NPRMaddressed this issue. One proposed thatonly States making a good faith effort to

comply with the CDL requirements beeligible to receive these grant funds andthe other proposed that the traditional20% State grant-matching requirement

be waived. The FMCSA agrees with thefirst of these suggestions and has addedlanguage to the final rule clarifying thatonly States making a good faith effort tocomply with the CDL requirements areeligible to receive these grants. As forthe second comment, thesediscretionary grants do not require aState matching contribution and 384.407 includes no such implication.

Rulemaking Analyses and Notices

Executive Order 12866 (RegulatoryPlanning and Review) and DOTRegulatory Policies and Procedures

The FMCSA has determined that thisaction is not a significant regulatoryaction within the meaning of ExecutiveOrder 12866, and is not significant

within the meaning of Department ofTransportation regulatory policies andprocedures (44 FR 11034, February 26,1979). It has not been reviewed by theOffice of Management and Budget.Nonetheless, the FMCSA prepared aregulatory evaluation of this rule. Thissection summarizes the regulatoryevaluation. A copy of the completeregulatory evaluation is available in thedocket described above underADDRESSES.

The regulatory evaluation addressesseven of the provisions contained in thisrule, primarily those provisions that

FMCSA expected would have economiccosts to State government agencies andthe motor carrier industry. Theseprovisions include:

Section 201(a) of MCSIADisqualification for Driving WhileSuspended, Disqualified and Causing aFatality. This provision creates two newFederal disqualifying offenses: (1)Driving a CMV while revoked,suspended, or cancelled, or while thedriver is disqualified based upon thedrivers operation of a CMV; and (2)causing a fatality through the negligentor criminal operation of a CMV. *

Section 201(b) of MCSIA

Emergency Disqualification of DriversPosing an Imminent Hazard.

Sections 201(b) and 202(h) ofMCSIADisqualification for ViolationsCommitted while Driving a Non-CMV.

Section 201(c) of MCSIAExpanded Definition of Serious TrafficViolations.

Section 202(a) of MCSIAExpanded State Driver Record Check.

Section 202(c) of MCSIANewNotification Requirements. This sectionrequires States to notify CDLIS and theState that issued the CDL no later than10 days after disqualifying a CDL holder

from operating a CMV (or revoking,suspending, or canceling a CDL) for atleast 60 days and the reason for theaction.

Section 202(g) of MCSIAMaskingProhibition. This section of MCSIAprohibits the practice of maskingconvictions and thereby requires therecord to be maintained or transmittedto the State where the driver is licensed.

As stated, the regulatory evaluationaddresses seven major provisions ofthe rule. Although the remaining nineprovisions were initially examined,


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FMCSA determined through apreliminary evaluation that these ninewould not impose significant economiccosts on State government agencies orthe motor carrier industry.

FMCSA derived benefits estimates forthis rule by examining the number oftruck-related crashes, using averagecosts for various types (e.g. fatal, injury,and property-damage-only) that must beavoided during the analysis period

(20032011) for this rule to be costeffective. Note that no crash reduction isassumed to occur during the first yearof implementation (2002). Results ofthis analysis are contained in Table 1

below.

TABLE 1.SUMMARY OF FINAL RULE COSTS AND OTHER RELEVANT FACTORS

Net Present Value of Costs, 20022011 ..................................................................................................... $373 millionNet Present Value of Benefits if 700 Truck-Related Crashes are Avoided Annually between 20032011 $404 million

Type of truck-related crash Average cost percrash1

Annual ReductionRequired 2

Fatal Crashes involving 7 Large Trucks .. ... ... .. ... .. ... .. ... ... .. ... .. ... .. ... ... .. ... .. ... .. ... ... .. ... .. ... .. ... ... .. ... .. ... .. ... ... $3,419,202 7Injury-Related Large Truck Crashes ........................................................................................................ 217,000 147Property-Damage-Only Large Truck Crashes .......................................................................................... 11,300 546

1From Cost of Large-Truck and Bus-Involved Crashes, Final Report for the Federal Motor Carrier Safety Administration, Zaloshnja, Miller, &Spicer, 2000.

2For discounted benefits of the rule to exceed discounted costs, a total of 700 truck-related crashes (e.g., fatal, injury, & PDO combined) mustbe avoided annually during the last nine years of the analysis period (20032011). This reduction represents about 0.15 percent of the total num-ber 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 provisions implementation are included in Table 2 below.

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

MCSIA section Final rule section title

Total discountedcosts (millions ofdiscounted dol-

lars)

201(a) ....................................................... * * * Driving While Suspended * * * ................................................................... $89.1201(b) ....................................................... * * * Imminent Hazard ........................................................................................ 8.3201(b) & 202(h) ........................................ Disqualifications for non-CMV Offenses ............................................................. 169.7201(c) ....................................................... Expanded Definition of Serious Traffic Violations ............................................... 43.3202(a) ....................................................... Expanded Driver Record Check .......................................................................... 42.5202(c) ....................................................... New Notification Requirements ........................................................................... 3.8202(g) ....................................................... Masking Prohibition ............................................................................................. 16.3

Total .................................................. All Seven Provisions ............................................................................................... 373

While the costs associated with each provision are somewhat unique, the types of costs generally fall into oneof 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


Total first-yearcosts (millions ofdiscounted dol-

lars)

201(a) ....................................................... * * *Driving While Suspended* * * .................................................................... $1.61201(b) ....................................................... * * *Imminent Hazard ......................................................................................... 2.15201(b) & 202(h) ........................................ Disqualifications for non-CMV Offenses ............................................................. 1.73201(c) ....................................................... Expanded Definition of Serious Traffic Violations ............................................... 1.41202(a) ....................................................... Expanded Driver Record Check .......................................................................... 1.461202(c) ....................................................... New Notification Requirements ........................................................................... 0.581

202(g) ....................................................... Masking Prohibition ............................................................................................. 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-yearcosts (millions ofdiscounted dol-

lars)

201(a) ....................................................... * * *Driving While Suspended * * * .................................................................. $87.5201(b) ....................................................... * * *Imminent Hazard ......................................................................................... 6.2


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TABLE 4.TOTAL LATER-YEAR COSTS OF FINAL RULE, BY MCSIA SECTIONContinued


Total later-yearcosts (millions ofdiscounted dol-

lars)

201(b) & 202(h) ........................................ Disqualifications for non-CMV Offenses ............................................................. 168.0201(c) ....................................................... Expanded Definition of Serious Traffic Violations ............................................... 41.9202(a) ....................................................... Expanded Driver Record Check . .. ... .. ... ... .. ... .. ... .. ... ... .. ... .. ... .. ... ... .. ... .. ... .. ... ... .. ... . 41.0

202(c) ....................................................... New Notification Requirements ........................................................................... 3.2202(g) ....................................................... Masking Prohibition ............................................................................................. 13.9

Total .................................................. ................................................................................................................................. 361.7

Each of the seven major provisionsexamined is analyzed separately here,since many of the annual or ongoingcosts of the provisions are somewhatunique (e.g., effects on driversuspensions and disqualifications).

Section 201(a) of MCSIADisqualification for Driving WhileSuspended, Disqualified and Causing aFatalitycreates two new disqualifyingoffenses under the FMCSRs. They are:(1) Driving a CMV while revoked,suspended, or cancelled, or while thedriver is disqualified based upon thedrivers operation of a CMV; and (2)causing a fatality through the negligentor criminal operation of a CMV. First-year information system developmentand implementation costs average$36,234 per State. Extrapolating to allfifty States and the District of Columbiaresults in total system development andimplementation costs of $1.61 millionwhen discounted to the year 2002.Annual costs thereafter include

additional data entry by Stategovernment staff and new driverdisqualifications resulting from newFMCSR offenses. The FMCSA assumes10 percent of CDL drivers withsuspended licenses (or 3,864) willviolate the new provision and willsubsequently receive disqualificationsof one year on average (or 2,080 workinghours) and that these drivers will securealternative employment at a 10 percentwage reduction.

We expect 4,296 new CDL drivers tobe disqualified annually either for beingconvicted of driving while suspended or

for causing a fatality through negligentor criminal operation of a CMV, for anaverage of one year each, and that eachaccepts alternative employment at a 10percent wage reduction. Additionally,the FMCSA included the costs for dataentry and for each CDL drivers recordto be checked by a patrolman, costingabout $450,000 (undiscounted,combined) annually for the period 2005through 2011. The present value of totalcosts for this section is $89.1 million.

Section 201(b) of MCSIAEmergencyDisqualification of Drivers Posing an

Imminent Hazardauthorizes theSecretary to impose an emergencydisqualification on drivers whosecontinued operation of a CMV theSecretary determines would constitutean imminent hazard. In cases where theSecretary proposes emergencydisqualification beyond 30 days, thedriver must be notified of the proposed

action and provided the opportunity fora hearing. We assume that all suchdrivers would request a hearing andinclude: (a) Costs to review CDL driversrecords for IH designation; (b) costs tohold hearings for each driver when anIH designation is assigned to a CDLdriver; (c) costs to CDL drivers who aregiven the IH designation; and (d) dataentry costs for State employees wherethe IH designation is applied. Thesediscounted later year costs (usingOMB-prescribed seven percent discountrate) total $6.2 million, for the period2004 through 2011. Therefore, with the$2.15 million set-up costs, the presentvalue of costs of Section 201(b) ofMCSIA total $8.3 million.

Sections 201(b) and 202(h) ofMCSIADisqualification for non-CMVViolationsprohibits the holder of a CDLfrom operating a CMV if the CDL holdercommits certain offenses whileoperating a non-CMV. First-year costsfor this rule should total approximately$1.73 million (present value); most ofthese are for information systemdevelopments and modifications byState agencies. Annual costs areestimated at $168.7 million (present

value) and include wages lost by anaverage of 9,661 CDL holders whowould be suspended or disqualified

because of this rule. FMCSA estimatesthat those CDL holders who would bedisqualified because of this rule wouldfind alternative work at a 10 percentreduction in hourly wages, for anaverage of 317 days, over the 10-yearanalysis period. The total cost of thisprovision is approximately $170.4million (present value) over the ten-yearanalysis period for 2004 through 2013,using a discount rate of 7 percent.

Section 201(c) of MCSIAExpandedDefinition of Serious TrafficViolationsadds three new offenses tothe FMCSR definition of serious trafficviolations. These new violationsinclude: (1) Driving a CMV when thedriver has not obtained a CDL; (2)driving a CMV without a CDL in thedrivers possession; and (3) driving a

CMV without the driver having met theminimum testing standards for thespecific class of CMV being operated, orfor the type of cargo being transportedin the vehicle. This increases the totalnumber of serious traffic violations, asdefined in Part 383 of the FMCSRs, fromfive to eight. System development andimplementation costs include hardware,software, and personnel costs toimplement this provision and average$29,643 per State. Extrapolating theseresults to all fifty States and the Districtof Columbia results in a discounted costof $1.41 million. Annual, or ongoing,costs for this provision include: (a)

Costs to patrolmen to write theconvictions for 3 new serious trafficviolation offenses; (b) costs to input thenew conviction data into CDL driversrecords and report disqualifyinginformation to CDLIS; and (c) costs toCDL drivers who will be disqualified asa result of the 3 new serious trafficviolations. The present value of theseannual costs is $41.9 million. That

brings the total cost for this section to$43.3 million.

Section 202(a) of MCSIAExpandedDriver Record Checkfirst-year costsequal approximately $1.46 million

(present value) for all fifty States andWashington, DC. Discounted lateryear costs total $41.0 million for theperiod 2004 through 2011. Therefore,present values costs of Section 202(a) ofMCSIA total $42.5 million.

Section 202(c) of MCSIANewNotification RequirementsrequiresStates to notify CDLIS and the State thatissued the CDL no later than 10 daysafter disqualifying a CDL holder fromoperating a CMV (or revoking,suspending, or canceling a CDL) for atleast 60 days. Information system


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development and implementation costsinclude hardware, software, andpersonnel costs and average $34,339 perState. Extrapolating these results to allfifty States and the District of Columbiaresults in total system development andimplementation costs of Section 202(c)of MCSIA of $1.75 million. Thisregulation allows these costs to bespread over three years, so the first-yearcosts are just less than $0.6 million.Annual, or ongoing, costs begin in 2005and include the on-going costs to Stategovernment agencies to ensure that CDLconvictions are consistently transferredwithin the 10-day window and forStates to transmit specific convictioninformation with each driverdisqualification record. FMCSAassumes that this provision would notresult in any new disqualifications,since it primarily addresses the amountof CDL holder information transmitted.Discounted later year costs total $3.2million for the remaining two years ofthe implementation and the period 2005through 2011 combined. Therefore,present value costs for Section 202(b) ofMCSIA total $3.8 million.

Section 202(g) of MCSIAMaskingProhibitionprohibits the practice ofmasking convictions and therebyrequires the CDL record to bemaintained or transmitted to the Statewhere the driver is licensed and bemade available to all authorized partiesand government entities. Informationsystem development and

implementation costs include hardware,software, and personnel costs andaverage $47,393 per State. Extrapolatingthese results to all fifty States and theDistrict of Columbia results in totalsystem development andimplementation costs of $2.42 million.Annual, or ongoing, costs begin in 2002and are primarily comprised of wagereduction costs to those CDL holderswho will be disqualified becauseconviction information is beingtransmitted to their home Statelicensing agency. Assuming that Statesthat mask convictions are similar toStates that do not mask, and that Statesmask all convictions if they mask at all,the maximum number of FMCSR-required withdrawal convictions thatcould be unmasked would be 5,173 asa result of this provisionsimplementation. That would result inwage reductions of approximately $4.3million annually. Since it is unrealisticto assume that all convictions aremasked or that no convictions aremasked, we assume that half aremasked. The present value of costs fromthe Masking Prohibition total $16.3.

Benefits: Crashes Avoided for the FinalRule To Be Cost Effective

The primary societal benefitsexpected from this rule are the truck-related crashes that one would expect to

be avoided due to the additional CMVoperators (mainly CDL holders) whowill be suspended or disqualified for

violations of the new disqualifyingoffenses and serious traffic violations. Itwas not possible to estimate the specificnumber of truck-related crashes thatwould be avoided from implementingeach provision of this rule, given thatFMCSA has no data directly linkingthese specific FMCSR-defined offensesand truck-related crashes. However,FMCSA did use cost data on truck-related crashes from Zaloshnja, Miller,and Spicer (The Costs of Large Truck-and Bus-Involved Crashes, 2000) toderive an estimate of the total numberof truck-related crashes that would haveto be avoided per year (during the

analysis period) for this rule to be costeffective (i.e. for discounted benefits toequal/exceed discounted costs). Those

benefits are found in Tables 1 through4 above.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA),as amended by the Small BusinessRegulatory Enforcement and FairnessAct (SBREFA), requires Federal agenciesto analyze the impact of rulemakings onsmall entities, unless the agencycertifies that the rule will not have asignificant economic impact on a

substantial number of small entities. Wedo not believe that these proposals meetthe threshold values for requiring anRFA analysis, since the anticipatedimpact is fairly small. Nonetheless,

because of the public interest in theseproposals, the FMCSA has prepared thisRFA analysis.

(1) A description of the reasons whyaction by the agency is beingconsidered. The CDL program has beenin operation since 1986. Since that time,potential process improvements toenhance car safety have been identified.This rule implements some of those

changes.(2) A succinct statement of theobjectives of, and the legal basis for, the

proposed rule. In 1999, Congress passedthe Motor Carrier Safety ImprovementAct (MCSIA). Sections of that Act directchanges in the CDL program. Thechanges in procedures are a directresponse to this legislation. FMCSAhopes that these changes will make theCDL program more effective inpreventing dangerous drivers fromcontinuing to drive and will result inimproved safety by improving the

performance of drivers and removingunsafe drivers from the road.

(3) A description and, where feasible,an estimate of the number of smallentities to which the rule will apply. Inthe trucking industry, there are a fewlarge firms with many employees andmany very small firms with only ahandful of employees. To the extent

which the rule imposes costs on firms,these small firms will endure the largestportion of that burden. The incidence ofdriver disqualification is not likely to bedifferent among firms, however largefirms are better able to spread the riskof having a driver disqualified.

(4) A description of the proposedreporting, recordkeeping and othercompliance requirements of the

proposed rule, including an estimate ofthe classes of small entities which willbe subject to the requirement and thetype of professional skills necessary for

preparation of the report or record.

Although these small entities will haveto keep records on all of theiremployees status regarding the CDL,there is no additional administrativecost borne by them because they alreadyhave to maintain those records underthe current system. The avenue throughwhich these small businesses might beadversely affected is a reduction in thenumber of available drivers who canqualify under the stricter rules. If thatnumber is significantly reduced,employers may find that they have topay drivers a premium wage in order tocontinue to provide their level of

service.(5) Identification, to the extentpracticable, of all relevant Federal ruleswhich may duplicate, overlap or conflictwith the proposed rule. The FMCSA isnot aware of any other rules orprocedures that duplicate or conflictwith this rule.

(6) Significant Alternatives Available.Allowing differences in compliance orreporting for small entities would becontrary to the intent of Congress inissuing this mandate. The purpose ofMCSIA is to strengthen and standardizethe CDL program. Another key

component of the CDL program isnational uniformity and consistency inits administration. This promoteseffective enforcement.

We certify that the rule will not havea significant impact on a substantialnumber of small entities.

Executive Order 12988 (Civil JusticeReform)

This action meets applicablestandards in sections 3(a) and 3(b)(2) ofExecutive Order 12988, Civil JusticeReform, to minimize litigation,


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eliminate ambiguity, and reduceburden.

Executive Order 13045 (Protection ofChildren)

We have analyzed this rule under E.O.13045, Protection of Children fromEnvironmental Health Risks and SafetyRisks. This rule is not economically

significant and does not involve anenvironmental risk to health or safetythat would disproportionately affectchildren.

Executive Order 12630 (Taking ofPrivate Property)

This rule will not effect a taking ofprivate property or otherwise havetaking implications under ExecutiveOrder 12630, Governmental Actions andInterference with ConstitutionallyProtected Property Rights.

Executive Order 13132 (Federalism)

This action has been analyzed inaccordance with the principles andcriteria contained in Executive Order13132 dated August 4, 1999, and it has

been determined that this action doesnot have substantial direct Federalismimplications that would limit thepolicymaking discretion of the States.This action will not have a significanteffect on the States ability to executetraditional State governmentalfunctions, and any additionaladministrative cost borne by the Statesshould be negligible.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal DomesticAssistance Program Number 20.217,Motor Carrier Safety. The regulationsimplementing Executive Order 12372regarding intergovernmentalconsultation on Federal programs andactivities do not apply to this program.

Paperwork Reduction Act

Under the Paperwork Reduction Actof 1995 (PRA) (44 U.S.C. 35013520), aFederal agency must obtain approvalfrom the Office of Management and

Budget (OMB) for each collection ofinformation it conducts, sponsors, orrequires through regulations. Ananalysis of this rule has been made bythe FMCSA, and it has been determinedthat it will affect the informationcollection burden associated with thecurrently-approved informationcollection covered by OMB Control No.21260011, titled Commercial DriverLicensing and Test Standards. TheOMB approved the most recent updateof this information collection onOctober 3, 2001, at 620,802 burden

hours. The approval period runsthrough October 31, 2004.

The implementation of this final rulewill require the State DMVs to enteradditional information into CDLISwhether the CDL holder committed theviolation in a CMV or a non-CMV. Weestimate the time required to completethis additional information in CDLIS to

be approximately 2 seconds perapplicant. The currently-approvedestimate for completing a CDLIS entry is2 minutes. We believe the 2 additionalseconds can be folded into the 2minutes and that the 2-minute estimateis still accurate. Therefore, there is noincrease in burden hours from thisprovision.

The currently-approved estimate ofthe number of violations is 1 violationevery 3 years for the 10,000,000 CDLholders. We estimate that with theadditional violations, approximatelyone-quarter of the 10,000,000 CDL

holders (2,500,000) will receive anadditional violation over the 3-yearperiod. This would be 833,333additional violations. The currently-approved estimate of staff time to inputthe new violations into State systemsand 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 informationsystem, or computer, costs incurred byState government agencies to implementthe new CDL program provisions underMCSIA. Specific examples include costs

required to establish or modifycomputer systems within each State tolog, review, and transfer the new serioustraffic violations identified underMCSIA. Additionally, these costsinclude information systems costs toimplement the new notificationrequirements for States under MCSIA.Such costs include hardware, software,and personnel costs to establish ormodify computer systems within eachState. Estimates of the combined start-up, or first-year, costs for the 50 Statesand the District of Columbia are shown

below.

Final rule section titleTotal first-year costs(in millions)

* * * Driving While Sus-pended * * * ....................... $1.61

* * * Imminent Hazard .......... $2.15Disqualifications for non-CMV

Offenses .............................. 1.73Expanded Definition of Seri-

ous Traffic Violations ........... 1.41Expanded Driver Record

Check .................................. 1.46New Notification Require-

ments ................................... 0.58

Final rule section titleTotal first-year costs(in millions)

Masking Prohibition ............... 2.42

Total ................................... 11.4

At NPRM stage, we requestedcomments on the information collectionaspects of this rule. No commentsregarding the information collection

burden hours were received. You maysubmit any additional comments on theinformation collection burdenaddressed by this final rule to the Officeof Management and Budget (OMB). TheOMB must receive your comments byAugust 30, 2002. You must mail or handdeliver your comments to: Attention:Desk Officer for the Department ofTransportation, Docket Library, Office ofInformation 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 SafetyAdministration is a new administrationwithin the Department ofTransportation. We are striving to meetall of the statutory and executive branchrequirements on rulemaking. TheFMCSA is currently developing anagency order that will comply with allstatutory and regulatory policies underthe National Environmental Policy Actof 1969 (42 U.S.C. 4321 et seq.). Weexpect the draft FMCSA Order to appear

in the Federal Register for publiccomment in the near future. Theframework of the FMCSA Order isconsistent with and reflects theprocedures for consideringenvironmental impacts under DOTOrder 5610.1C. The FMCSA analyzedthis rule under the NEPA and DOTOrder 5610.1C. We believe it would beamong the type of regulations thatwould be categorically excluded fromany environmental assessment.

Executive Order 13211 (Energy Supply,Distribution, or Use)

We have analyzed this rule underExecutive Order 13211, ActionsConcerning Regulations thatSignificantly Affect Energy Supply,Distribution, or Use. This action is nota significant energy action within themeaning of section 4(b) of the ExecutiveOrder because it is not economicallysignificant and not likely to have asignificant adverse effect on the supply,distribution, or use of energy.Additionally, the Administrator of theOffice of Information and RegulatoryAffairs has not designated this rule as a


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significant energy action. For thesereasons, a Statement of Energy Effectsunder Executive Order 13211 is notrequired.

Unfunded Mandates Reform Act of 1995

This rule does not impose a Federalmandate resulting in the expenditure byState, 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 programstransportation,Highway safety, Motor carriers, Motorvehicle safety, Reporting andrecordkeeping requirements.

49 CFR Part 383

Administrative practice andprocedure, Alcohol abuse, Commercialdrivers license, Commercial motor

vehicles, Drug abuse, Highway safety,Motor

Documents

CDL rules 2002