Federal Register, Volume 67 Issue 147 (Wednesday, July 31, 2002)

[Federal Register Volume 67, Number 147 (Wednesday, July 31, 2002)]
[Rules and Regulations]
[Pages 49742-49764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18457]

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Part II

Department of Transportation

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Federal Motor Carrier Safety Administration

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49 CFR Parts 350, et al.

Commercial Driver's License Standards, Requirements and Penalties;
Commercial Driver's License Program Improvements and Noncommercial
Motor Vehicle Violations; Final Rule

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

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350, 383, 384 and 390

[Docket Nos. FMCSA-2001-9709 and FMCSA-00-7382]
RIN 2126-AA60 and RIN 2126-AA55

Commercial Driver's License Standards, Requirements and
Penalties; Commercial Driver's License Program Improvements and
Noncommercial Motor Vehicle Violations

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

ACTION: Final rule.

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SUMMARY: The FMCSA revises its Commercial Driver's License (CDL)
Program. The Motor Carrier Safety Improvement Act of 1999 (MCSIA)
mandates these revisions. They are designed to enhance the safety of
commercial motor vehicle (CMV) operations on our nation's highways by
ensuring that only safe drivers operate CMVs.

EFFECTIVE DATE: September 30, 2002. The incorporation by reference of
certain publications in this rule is approved by the Director of the
Federal Register as of September 30, 2002.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Redmond, Office of Safety
Programs, (202) 366-5014, Federal Motor Carrier Safety Administration,
400 Seventh Street, SW., Washington, DC 20590. Office hours are from
7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal
holidays.

SUPPLEMENTARY INFORMATION

Regulatory Information

The FMCSA published two Notices of Proposed Rulemaking (NPRMs) [66
FR 22499 on May 4, 2001 and 66 FR 39248 on July 27, 2001] to amend
various provisions of parts 350, 383, 384 and 390 of Title 49 Code of
Federal Regulations (CFR) to implement congressionally mandated
changes. Nearly 200 comments were received in response to these two
NPRMs. Both NPRMs are being finalized in this action.
This rule uses plain language so that individuals unfamiliar with
FMCSA regulations will find it easier to follow. We are making the text
clearer, standardizing terms, changing to the active voice,
reorganizing material for added clarity, inserting or revising headings
to reflect content accurately, and correcting typographical,
punctuation, and grammatical errors. The FMCSA is also revising the
disqualification sanctions found inSec. 383.51 by organizing them into
an if-then table format that we believe is easier to understand than
the current regulatory text.

Background

The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) [Public Law
99-570, Title XII, 100 Stat. 3207-170, 49 U.S.C. chapter 313]
established the Commercial Driver's License (CDL) Program and the
Commercial Driver's License Information System (CDLIS) to serve as a
clearinghouse and repository of commercial driver licensing and
conviction data. The CMVSA also requires States to ensure that drivers
convicted of certain serious traffic violations be prohibited from
operating a CMV. The Secretary of Transportation was directed to
monitor the States' compliance with the standards established under the
CMVSA. The goal of the CMVSA is to improve highway safety by ensuring
that drivers of large trucks and buses are qualified to operate those
vehicles and to remove unsafe and unqualified drivers from the
highways.
In 1994, the agency initiated a study to evaluate the effectiveness
of the CDL program. The final report, submitted to Congress in 1999,
documented vulnerabilities within the CDL program and provided
recommendations to correct them.
Responding in part to the findings of this report, Congress passed
the Motor Carrier Safety Improvement Act of 1999 (MCSIA) [Public Law
106-159,113 Stat. 1748]. The MCSIA amended numerous provisions of title
49 of the United States Code relating to the licensing and sanctioning
of CMV drivers required to hold a CDL, and directed the Department of
Transportation (DOT) to amend its regulations to correct specific
weaknesses in the CDL program.
This rule also clarifies the FMCSA relationship to the Commercial
Driver's License Information System (CDLIS). Section 12007 of the
CMVSA, codified as 49 U.S.C. 31309, requires the Secretary of
Transportation to establish or designate an information system to serve
as the clearinghouse and depository of information about any person who
operates CMVs, including his/her identification, licensing history, and
disqualification history. This system, known as CDLIS, also includes
information about a person required to have a CDL who has been
convicted of any of the disqualifying offenses listed in 49 CFR 383.51.
In 1988, the Federal Highway Administration (FHWA) entered into an
agreement pursuant to 49 U.S.C. 31309 with the American Association of
Motor Vehicle Administrators and its former affiliate AAMVAnet, Inc.\1\
(AAMVAnet), to establish a communications network to implement the
CDLIS. The agreement designated AAMVAnet the CDLIS operator. Section
106(b) of MCSIA, transferred the agreement from the FHWA to the FMCSA
where it remains in effect until the FMCSA modifies or terminates it. A
copy of the 1988 agreement is in the public docket.
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\1\ On May 31, 2002, AAMVAnet, Inc. was merged into AAMVA.
AAMVAnet, Inc. no longer exists as a separate corporation.
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Because States regularly utilize AAMVAnet to access the CDLIS to
obtain and transmit information on CDL drivers, the AAMVAnet agreement
and CDLIS operational procedures are being incorporated by reference
into this rulemaking.
The following commentary will analyze the content of the
regulations and address significant issues raised in comments received
in response to the NPRMs.

Section-by-Section Discussion of Comments with FMCSA Response

Section 350.217--What Are the Consequences for a State With a CDL
Program Not in Substantial Compliance With 49 CFR Part 384, Subpart B?

Section 103(e) of the MCSIA requires the FMCSA to withhold all
Motor Carrier Safety Assistance Program (MCSAP) grant funds authorized
under Section 103(b)(1) of MCSIA from States not in substantial
compliance with 49 CFR part 384, subpart B. This new sanction is added
to the one currently contained in 49 CFR part 384, subpart D requiring
the agency to withhold five percent of some of a State's Federal-aid
highway funds following the first year of noncompliance and 10 percent
of such funds following the second and subsequent years of
noncompliance.
Fifteen States and State affiliated associations commenting on this
provision oppose the withholding of MCSAP funds from States not in
substantial compliance with the Federal Motor Carrier Safety
Regulations (FMCSRs). Of particular concern was the fact that the
agencies facing the potential loss of MCSAP funds, primarily law
enforcement agencies, have no direct control over compliance by other
State agencies, particularly the courts. Compliance with the proposed
10-day conviction reporting requirement of 49 CFR 384.209 is the issue
which raises the greatest concerns. One agency also proposes that the
withholding of MCSAP funding requirement be

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amended to adopt the same formula used to withhold highway funding from
States in substantial noncompliance.
The FMCSA understands these concerns, but is bound by statutory
language of the MCSIA requiring the withholding of MCSAP funds from
those States found to be in substantial noncompliance with 49 CFR part
384, subpart B. The FMCSA urges each State's chief executive to
coordinate the efforts of all State agencies--including the judiciary--
to ensure their compliance with these requirements.

Section 383.5--Definitions.

Section 383.5 will add four new definitions and change four
existing definitions of terms used in 49 CFR parts 383 and 384 to
implement provisions of the MCSIA. The new definitions include
``fatality,'' ``imminent hazard,'' ``non-CMV,'' and ``school bus.'' The
revised definitions include ``disqualification,'' ``driving a
commercial motor vehicle while under the influence of alcohol,''
``nonresident CDL,'' and ``serious traffic violation.'' The term
``serious traffic violation'' is being amended to add three new
offenses to the existing list of offenses warranting disqualification
of a CDL holder.
The FMCSA has added a new definition for the term ``non-CMV'' to
identify the vehicles types in which--if a driver is convicted of
committing a serious traffic offense other than those specifically
limited to commercial vehicles--he/she is subject to disqualification.
One commenter suggested that the definition of ``fatality'' be
revised to be consistent with current Federal definitions, without
providing an example of the preferred definition(s). FMCSA notes that
the 49 CFR 390.5 fatality definition-- `` * * * any injury which
results in the death of a person at the time of the motor vehicle
accident or within 30 days of the accident'' (emphasis added)--is
primarily used within the context of fatality reporting. Because the
new 49 CFR part 383 definition is to be used within the context of
driver sanctions, FMCSA has deleted the reference to a 30-day time
period. Otherwise a driver involved in an accident which results in a
death more than 30 days after the accident could possibly avoid
sanctions. Such an effect is both inconsistent with the objective of
CDL sanctioning requirements and contrary to general principles of
common law under which any death occurring within one year of the event
may be charged criminally. FMCSA recognizes, of course that a death
which occurs long after an accident may have a proximate cause or
causes other than the injuries sustained in the accident. Therefore,
the deletion of the ``30-day'' reference is in no way intended to
weaken the causal link necessary to qualify as a fatality.
Seven commenters proposed revisions to the definition of ``school
bus.'' Three proposed that the FMCSA use the National Highway Traffic
Safety Administration (NHTSA) definition or that the term only include
vehicles that transport 16 or more passengers including the driver;
while two proposed that the passenger capacity be lowered to 10 or more
passengers. Two other commenters objected to the proposed definition,
but offered less specific comments. The FMCSA has reviewed the NHTSA
definition and believes that the proposed definition is consistent with
it, except for using the term CMV. The term CMV was included in the
``school bus'' definition because only vehicles meeting the CMV
definition are subject to the CDL licensing requirements of 49 CFR part
383, including the new school bus endorsement. As with other CDL
requirements in 49 CFR part 383, the school bus definition is intended
to establish a minimum standard. A State is free to establish more
stringent standards for CDL drivers. Allowable variations to the school
bus definition include lowering the vehicle passenger capacity
threshold for which a school bus endorsement is required. For these
reasons, the FMCSA has included the ``school bus'' definition proposed
in the NPRM to this final rule.
The commentary to Sec. 383.23 discusses comments concerning the
definition of ``nonresident CDL.''
One commenter questioned the different terminology proposed in the
NPRM for one of the serious traffic violations described in Sec. 201(c)
of MCSIA. New 49 U.S.C. 31301(12)(F) reads:

``(F) Driving a commercial motor vehicle when the individual has
not met the minimum testing standards--
(i) Under section 31305(a)(3) for the specific class of vehicle
the individual is operating; or
(ii) Under section 31305(a)(5) for the type of cargo the vehicle
is carrying; and.''

Paragraph (h) under the Sec. 383.5 definition for ``serious traffic
violation'' reads ``Driving a CMV without the proper class of CDL and/
or endorsements for the specific vehicle group being operated or for
the passengers or type of cargo being transported.'' The FMCSA believes
that the revised language more clearly conveys congressional intent
that only those drivers who are fully qualified to operate a specific
vehicle be allowed to operate it. The evidence that a driver has met
the minimum CDL testing standards is that he/she has been issued a CDL
and all required endorsements for the class and specific type of CMV
he/she intends to operate.

Section 383.7--Validity of CDL Issued by Decertified State.

Sec. 383.7 is a new provision to clarify that a CDL issued by a
State subsequently prohibited from issuing CDLs under 49 CFR 384.405
remains valid until expiration. Based upon the fact that FMCSA received
no opposing comments and a single supporting comment on this provision,
it is included in the final rule as proposed.

Section 383.23--Commercial Driver's License.

Section 383.23 has been amended to allow a driver who is domiciled
in a State that has been prohibited (under the decertification
provisions found in Sec. 384.405) from issuing CDLs, to apply for a
nonresident CDL from any other State that is both in compliance with
such decertification provisions and elects to issue nonresident CDLs.
References to the date ``April 1, 1992'' have also been deleted from
this section because the date referred to a compliance deadline which
is no longer relevant.
Six States expressed concern that the proposed new language in this
section would require them to issue nonresident CDLs to drivers living
in States that had been decertified. The intent of this new language
was to authorize, but not require States to issue nonresident CDLs to
such drivers. The FMCSA has added language to the final rule to clarify
this issue.
A State objected that allowing States to issue nonresident CDLs to
drivers domiciled in other States would result in confusion over State-
specific endorsements. Because the agency anticipates that the sanction
under Sec. 384.405 will rarely be invoked, the FMCSA believes that
State-specific endorsements will not pose a significant problem to
States issuing nonresident CDLs or States taking enforcement action
against drivers possessing nonresident CDLs.

Section 383.51--Disqualification of Drivers.

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

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canceled, revoked or suspended; or of committing drug or alcohol
related offenses while driving a non-CMV; and adding two new
disqualifying offenses: driving a CMV after the driver's CDL was
revoked, suspended or canceled for violations while operating a CMV and
causing a fatality through the negligent or criminal operation of a
CMV. As discussed in the commentary to Sec. 383.5, three new offenses
are being added to the serious traffic violations for which a driver
can be disqualified if convicted two or more times within a three-year
period. These three new offenses are: (1) Driving a CMV when the driver
has not obtained a CDL, (2) driving a CMV without a CDL in the driver's
possession, and (3) driving a CMV without having met the minimum
testing standards for the specific class of CMV being operated or for
the type of cargo being transported on the vehicle. This section is
also being amended to specify the disqualification period for first-
time and subsequent offenders.
The CMVSA originally required the disqualification of drivers only
for offenses committed while operating a CMV (49 U.S.C. 31310). The
MCSIA made additional offenses disqualifying, even if they were
committed while operating a non-CMV. For these offenses, the Secretary
of Transportation is required to specify the disqualification periods
to be imposed by the States.
In addition, the FMCSA is clarifying that any person who operates a
CMV must first obtain a CDL and that these drivers are subject to the
same disqualification period as a CDL holder. While the MCSIA addresses
the type of offenses that must result in a disqualification if
committed in a non-CMV, it is silent regarding the length of the CMV
disqualification, requiring only that the disqualification period be no
longer than the disqualification period for the same or similar
offenses committed while operating a CMV. Based on this language, the
FMCSA has added language to this section clarifying that CDL holders
convicted of serious traffic violations and other offenses in either a
non-CMV or a CMV serve the same period of disqualification.
The revised Sec. 383.51 lists both the CMV convictions of CDL
holders for the original offenses under the CMVSA and the non-CMV
convictions for other offenses added in subsequent statutory
amendments. A clarification is also provided in Sec. 383.51(a)(4) that
both CMV and non'CMV convictions for disqualifying offenses will be
used in determining first and subsequent violations. The entire section
is being revised to incorporate an easy to understand ``if-then'' table
format.
Five commenters expressed their view that the if-then table format
was confusing or did not clearly indicate the circumstances that
triggered the stated disqualification period for offenses listed in the
various headings and columns. Based on these comments, the FMCSA has
reviewed the tables and has made a few minor changes to clarify their
intended meaning. The agency believes that after users become familiar
with the new format, they will find it easier to locate the appropriate
disqualification period for all of the disqualifying offenses.
The FMCSA received a total of 96 comments on the May 4, 2001 NPRM
concerning ``Noncommercial Motor Vehicle Violations.'' While most
comments expressed general support for the concept of CDL holders being
held accountable for offenses committed in both CMVs and non-CMVs, many
comments offered suggestions for revisions to the final rule. Some
comments specifically mentioned that the tables listing the offenses
and the period for which a driver is disqualified were a great
improvement over narrative explanations of these disqualifying
offenses. Other comments suggested that changes to other areas of the
rule may need to be made. The following discussion addresses these
comments.
Ten comments indicated that no other profession prevents a person
from making a living based on driving convictions that occurred while
operating a private automobile or other noncommercial vehicle. CDL
holders are, unlike most licensed passenger car drivers, professional
drivers. They earn their living by operating large, heavy vehicles and/
or transporting passengers. Given their status as professionals, CDL
holders are held to a higher standard. CDL holders should not engage in
risky, unsafe behavior while pursuing their profession--driving. The
Congress has chosen, in the interest of safety, not to distinguish
between risk-taking behavior in a passenger car or a CMV. Section
201(b) of the MCSIA specifically directed the Secretary of
Transportation to issue regulations requiring the disqualification of
CDL holders convicted of serious offense while operating a non-CMV.
Twenty commenters fully support the concept of CDL drivers being
held to a higher standard by being accountable for both CMV and non-CMV
convictions, while seven other commenters supported this concept in
regard to alcohol and drug related offenses, but do not believe that
convictions for serious traffic violations in a non-CMV for excessive
speed and following too closely should be included. Seven comments
oppose holding CDL drivers accountable for non-CMV convictions and
describe it as an unnecessary burden and a double standard. The FMCSA
believes that all serious traffic violations by a CDL holder should be
counted when operating a non-CMV because these types of violations have
consistently contributed to crashes and fatalities.
Ten comments suggest that if CDL holders are going to be held to
higher standards and penalties when operating a non-CMV than drivers
with an automobile license, then everyone who drives a vehicle should
be liable for these higher penalties when operating their private
automobiles. This suggestion falls outside the scope of this rulemaking
and the authority of the agency. The FMCSA does not have authority to
set standards and penalties for drivers licensed to operate only non-
CMVs.
Fourteen comments recommended that penalties for a conviction in a
non-CMV should be less than in a CMV, at a higher threshold as far as
the number of convictions that would cause the driver to be
disqualified or that the FMCSA should let each State decide the length
of the penalties. These comments argue that if Congress wanted the same
penalties for both types of offenses, it would have been specifically
addressed in Federal law. The FMCSA has the authority to set the same
penalties for both types of offenses; Congress simply said that
penalties in a non-CMV may not be greater than the penalties for the
same offense in a CMV. The FMCSA believes that by setting the minimum
penalties for all offenses rather than leaving non-CMV penalties to the
States, there will be greater national uniformity and consistency in
the administration of the CDL program.
Ten comments object to railroad-highway grade crossing offenses
being included in non-CMV offenses, either as currently worded because
these types of offenses do not apply to non-CMVs, or because the
inclusion of these offenses goes beyond the intent of Congress. The
FMCSA agrees that the wording of these types of offenses specifically
addresses actions that only apply to CDL holders while operating a CMV.
Therefore the non-CMV railroad-highway grade crossing offenses have
been eliminated from the final rule.
Five comments request a clarification of the relationship between
alcohol related ``convictions,'' ``administrative per se suspensions''
and ``refusal to be tested'' in Table 1 to Sec. 383.51. They express
confusion over what action is to

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be taken against a driver's CDL under these three actions, particularly
for non-CMV offenses. The FMCSA has modified Table 1 to Sec. 383.51 to
clarify what actions must be taken for alcohol related ``convictions''
and ``refusal to be tested.'' The relationship between ``convictions''
and ``administrative per se suspensions'' is discussed in current
regulatory text under Sec. 383.51(f) and is being moved to Sec. 384.203
to make it more visible.
Concerning the relationship between ``convictions'' and
``administrative per se suspensions,'' the FMCSA offers the following
background information. The CMVSA required that CDL drivers convicted
of operating a CMV with an alcohol concentration of 0.04 or greater be
subject to being disqualified from operating a CMV for a period of one
to three years for a first conviction, depending on the cargo being
transported. This sanction does not apply to CDL drivers operating a
non-CMV at this alcohol concentration. Table 1 to Sec. 383.51 has been
revised to clarify this fact. The Sec. 383.5 definition of
``conviction'' includes guilty findings by ``an authorized
administrative tribunal.'' This definition was intended to encompass
any type of administrative determination of guilt including State
administrative per se DWI laws. Accordingly, a CDL driver found guilty
of operating a CMV with an alcohol concentration of 0.04 or greater or
of violating a State's DWI laws as a result of an administrative
hearing, while operating a CMV or non-CMV, would be subject to being
disqualified under the requirements of Sec. 383.51.
One comment asks whether the definition of ``non-CMV'' includes
recreational vehicles used in an off road environment (e.g.
snowmobiles, watercraft, all terrain vehicles, etc.). The regulations
define the term ``motor vehicle'' in Sec. 383.5 as a vehicle `` * * *
used on highway * * *'' It does not include recreational vehicles
designed for off road use.
Four comments ask whether conviction in a non-CMV prior to applying
for a CDL will prevent the issuance of the CDL. The Act clearly states
that penalties for offenses committed by a CDL holder in a non-CMV
shall be counted. Therefore, only non-CMV convictions for offenses
committed after a person obtains a CDL can be counted against his or
her driving record.
Seven comments ask if a State must include non-CMV convictions that
occurred prior to enactment of MCSIA. The FMCSA can only take action on
offenses that occur after the effective date of the final rule and a
State only has to take action upon the effective date of its State law
or regulation.
Three comments state that the new disqualification requirements are
complex and difficult to understand in the tables. While the FMCSA
developed these tables in keeping with guidelines for using plain
language and if/then tables for Federal regulations, we have made some
revisions to help clarify the intent of the new requirements. There
were also several comments that indicate that the tables make it easier
to understand the requirements.
Eight comments indicate that 49 U.S.C. 31310(g) refers to operators
of CMVs who are convicted of drug or alcohol related offenses in a non-
CMV, and that only convictions for serious offenses in a non-CMV which
result in State revocation, suspension or cancellation of a driver's
non-CMV privileges shall result in the disqualification from operating
a CMV. The comments argue that by naming specific offenses and penalty
periods the FMCSA has exceeded its authority. The language of Section
31310(g), enacted by Sec. 201 of MCSIA gives the FMCSA ample authority
to specify what constitutes a ``serious offense,'' although the
violation will not be disqualifying unless the State also finds that
the circumstances of the offense warrant ``revocation, cancellation, or
suspension of the individual's license.'' Section 31310(g)(2)
specifically authorizes the FMCSA to ``establish the minimum periods
for which the disqualification shall be in effect * * *'' That is
exactly what the agency has done in Sec. 383.51 in order to promote
safety and uniformity among the States. The FMCSA further believes that
Congress, in using the term ``serious offense'' in Section
31310(g)(1)(A), was referring to the ``serious traffic violations''
already specified in Secs. 383.5 and 383.51(c). Violations are not
listed as disqualifying in Sec. 383.51 unless they are demonstrably
significant, i.e., contribute to crashes and fatalities.
Three comments state that the FMCSA should not give the States the
option of using .04-alcohol concentration as a disqualifying offense
for a non-CMV conviction. The FMCSA only has the authority to establish
a minimum alcohol concentration disqualification standard for CDL
drivers. As with other minimum standards, however, individual States
are free to impose more stringent standards, including establishing a
lower alcohol concentration, for both CDL and non-CDL drivers licensed
by their State.
One comment proposed revisions to permit a driver to operate while
a CMV conviction is under judicial appeal. The FMCSA defers to State
law and procedure to determine this issue. If, as is the case in many
jurisdictions, a trial court judgment does not become a final
conviction for a certain period of time to allow a defendant to appeal
the verdict, the driver may continue to operate until that time or if
an appeal is filed, until the appellate court renders judgment.
However, if a conviction is entered as final, the penalty provisions of
this regulation apply.
One comment recommends that the rule require States to record the
number of miles per hour by which the driver of a non-CMV exceeds the
posted speed limits. The only disqualifying offense for speeding in a
CMV or non-CMV is excessive speeding, i.e., 15 miles per hour or more
over the posted speed limit. A code already exists in the CDLIS for
this offense when it is committed in a CMV. The code will be revised to
include CMV and non-CMV.
Three comments suggest that both the May 4 and July 27 NPRMs be
given the same effective date because many provisions are tied
together. The FMCSA agrees. We decided to merge both MCSIA proposals
into one final rule with a single effective date for all provisions.
Three comments ask if the State of licensure can disqualify CMV
drivers for failure to pay child support. Each State has the authority
to set additional disqualification requirements for drivers licensed in
their State, including failure to pay child support. This rule only
sets the minimum disqualification requirements for a State to remain in
substantial compliance with the Federal requirements.
One comment questions whether the costs of the rule on non-CMV
violations constitute an unfunded mandate under the Federal regulations
when considered with other CDL-related MCSIA requirements. Based on the
agency's economic analysis of this issue discussed in the Rulemaking
Analyses and Notices section of this rulemaking, the FMCSA does not
believe that this requirement imposes an unfunded mandate on the
States.
One comment requested clarification of the use of a non-CMV in the
commission of a felony involving a controlled substance. The FMCSA
believes that this is self-explanatory. If the vehicle is used in the
manufacturing, distributing, or dispensing of a ``controlled
substance'' as defined in 49 CFR 383.5, it is a CDL felony offense.
One comment suggests that the FMCSA also provide a narrative text
describing the offenses and

[[Page 49746]]

disqualification penalty in Tables 1 through 4 to Sec. 383.51. Such a
narrative would defeat the purpose of the tables: to provide a more
easily understandable description of the offenses and penalties. Each
State is, however, free to use a narrative form of the tables in its
own legislation or regulations. A narrative form can be easily
developed from the tables.
One comment asks why hazardous materials drivers are being
penalized differently from other CDL drivers for violations that occur
in a non-CMV that is not carrying hazardous materials. The commenter
appears to have misread the Sec. 383.51 table, which only requires that
enhanced penalties be imposed against drivers who are actually carrying
hazardous materials in a CMV at the time of the offense.
One comment states that proposed Secs. 383.51, 384.218 and 384.219
are drafted in a style completely different from Sec. 384.224. The
commenter suggests either that all sections cross-reference Sec. 383.51
or that each section require disqualification for particular offenses.
All the sections mentioned by the comment relate to compliance with
Sec. 383.51. The styles in which they are written are different because
there are separate State substantial compliance requirements for second
and third serious traffic violations while there is only one specific
requirement for non-CMV violations.
Two comments request the FMCSA to develop a definition of the term
``authorized agents.'' The FMCSA believes that this term is
sufficiently defined under individual State statute, regulation or case
law, and need not be included in this rulemaking.
One comment asks why the NPRM does not address how the new
regulations on non-CMV violations of a CDL holder will apply to
Mexican, Canadian and other foreign drivers. Mexican and Canadian CDL
drivers may operate in the U.S. on a license issued by their home
jurisdiction in accordance with reciprocity agreements between the U.
S. and Canada and Mexico as noted in the footnote to 49 CFR 383.23(b).
These drivers are subject to all of the U.S. CDL requirements while
operating in the U.S., including disqualification for convictions while
operating a non-CMV in the U.S. The Department will initiate
discussions with Mexico and Canada on the issue of non-CMV offenses by
these drivers while operating in their home country. All other foreign
CDL drivers must obtain a nonresident CDL to legally operate in the
U.S. The issuance of the nonresident CDL subjects these drivers to the
same requirements as other CDL holders while operating in the U.S.
Thirteen comments challenge the accuracy of our cost data analysis.
This issue is being addressed in the economic analysis area of this
rulemaking.
One commenter requests that the rule explicitly state that the
disqualification action must be based on a conviction of the listed
offenses. FMCSA has amended Table 1, 2, 3 and 4 to Sec. 383.51 to
clarify this issue.
One commenter asks if the two new disqualifying offenses being
added to Table 1 to Sec. 383.51 are subject to the 10-year
reinstatement provision of Sec. 383.51(a)(5). The answer is yes, and
the text of this section has been amended to reflect this fact.
A few additional comments point out typographical errors in the
Tables. These errors have been corrected in the final rule.
Four commenters noted that the FMCSA omitted certain qualifying
language enacted by Sec. 201(a) of the MCSIA. Specifically, 49 U.S.C.
31310(b)(1)(D) and (c)(1)(D) require a 1-year disqualification the
first time a driver is convicted of driving a CMV when his/her CDL is
revoked, suspended, or canceled, or when he/she is disqualified from
driving a CMV, providing the revocation, suspension, cancellation or
disqualification was ``based on the individual's operation of a
commercial motor vehicle''. In other words, the 1-year disqualification
is not required if the driver's CDL was revoked, suspended, or
canceled, or he/she was disqualified, for violations that occurred in a
non-CMV. The commenters are correct. Also, in the situation where more
than one conviction is required to be disqualified, all convictions
must have occurred while operating a CMV. The FMCSA has added this
qualifying language to the final rule.
One commenter proposed that the FMCSA establish standards for
notifying drivers that their CDL had been suspended or revoked or that
they had been disqualified from operating a CMV. The FMCSA believes
that each State has laws or procedures addressing this issue.
Establishing such standards for States to provide notice of the loss of
a driving privilege is beyond the scope of this rulemaking.
Thirteen comments raise issues related to the language in the NPRM
used to describe the new disqualifying offense of causing a fatality
through the negligent or criminal operation of a CMV. To address
concerns raised in these comments, the FMCSA has added language to the
final rule to clarify the type of offense of which a driver must be
convicted to be subject to this disqualification.
One of the proposed serious traffic violation disqualifications
that received several comments was ``driving a CMV without a CDL in the
driver's possession.'' Ten commenters expressed concern that a driver
could be disqualified for not having a CDL with them on a particular
day because they may have lost it or had their wallet stolen. The MCSIA
addresses this situation in 49 U.S.C. 31301(12)(E): ``Any individual
who provides proof to the enforcement authority that issued the
citation, by the date the individual must appear in court or pay any
fine for such a violation, that the individual held a valid CDL on the
date the citation was issued, shall not be guilty of this offense.''
Although this language was included in the 49 CFR 383.5 definition of
this new serious traffic violation, it was inadvertently omitted from
Table 2 to Sec. 383.51. To clarify this issue, the FMCSA has added this
language in a footnote to Table 2 to Sec. 383.51.

Section 383.52--Disqualification of Drivers Determined To Constitute an
Imminent Hazard.

Section 383.52 establishes FMCSA authority for imposing an
emergency disqualification of CDL drivers posing an imminent hazard
required by Section 201(b) of the MCSIA (49 U.S.C. 31310(f)).
Seven commenters raised questions concerning proposed procedures
for imposing an emergency disqualification, many requesting the agency
to provide greater detail on how the disqualification determination
would be made and asking that various procedural safeguards be included
in the rule. The FMCSA believes that the statutory mandate, as
reflected in this regulation, together with existing agency
administrative procedures, provide sufficient guidance for the agency
to make this determination in accordance with accepted due process
standards.
Eight comments questioned the proposed criteria to be used by the
FMCSA in making a determination of whether or not an emergency
disqualification should be imposed on a driver. Based on a review of
the comments, the FMCSA has decided not to include in the final rule
the six factors proposed in the NPRM to be considered by the agency in
making its determination of whether a driver constitutes an imminent
hazard. The agency believes that the definition of ``imminent hazard''
which the MCSIA requires the Department to use in making this
determination provides

[[Page 49747]]

sufficient guidance for making this decision.
Although no comments were received on the issue, the agency has
decided to delegate the authority for making the imminent hazard
determination to the Assistant Administrator, who is also the Chief
Safety Officer, rather than the Associate Administrator for
Enforcement. This delegation is consistent with current practice, since
the authority to impose civil penalties, hear ratings appeals, and make
other similar decisions is already delegated to that officer.
One commenter noted that the MCSIA requires the disqualification of
a driver determined to constitute an imminent hazard. The FMCSA agrees
with this statement, and has accordingly amended the final rule to
state that a driver must be disqualified where the Assistant
Administrator finds the driver's continued operation of a CMV poses an
imminent hazard.
Nine comments focus on the question of who should be notified that
a driver has received an emergency disqualification. The statute does
not require the FMCSA to notify a driver's State of licensure of an
emergency disqualification, and one State objects to being required to
maintain this information on a driver's record. Nonetheless, the FMCSA
believes requiring a notification to the State of licensure of a
driver's emergency disqualification and requiring such information to
become a part of the driver's permanent record is a logical extension
of imposing the emergency disqualification.
Three commenters requested the FMCSA to specifically describe how
this information will be transmitted to the driver's home State. The
FMCSA does not believe such details should be included in this
rulemaking. The agency is working closely with AAMVAnet to develop a
new code to identify a Federal CDL disqualification. Once such a code
has been developed, it should facilitate the electronic transmission of
this information to the State where the disqualified driver is
licensed, and make this information readily available to State law
enforcement and licensing agencies checking the CDLIS on a CDL driver's
status.

Section 383.71--Driver Application Procedures.

Section 383.71 is being amended to require applicants for an
initial CDL, and those transferring or renewing a CDL to provide the
State with the name of all States where they have previously been
licensed to drive any type of motor vehicle so that the State may
obtain the applicant's complete driving record in accordance with
Section 202(a) of the MCSIA (49 U.S.C. 31311(a)(6)). Section
383.71(a)(6) is also being amended to clarify that the term
``disqualification'' applies only to sanctions under Sec. 383.51 and
that the other licensing sanctions are based on actions taken under
State law. The comments received addressing this new requirement, which
falls mainly on the States, will be discussed in the commentary to the
next section and Sec. 384.206.

Section 383.73--State Procedures.

Section 383.73 is being amended to require the State to request the
complete driving record of applicants for an initial license, renewal
or transfer of a CDL from all States where the applicant has previously
been licensed to drive any type of motor vehicle. Eight comments
strongly support the expanded driver records check, while an additional
11 point out potential problems and propose a few changes. Comments on
the time period that driver records must be retained by a State are
discussed in the commentary for Sec. 384.206.
One commenter asked why the new driver license check of all States
in which a driver held any type of driver's license had to be performed
on drivers who had already received a CDL. The FMCSA believes that
Congress expanded the record check to all CDL drivers, both those
already licensed as well as new CDL applicants, to be sure that the
issuing State obtains a complete driving record for every CDL driver it
licenses. In analyzing the comments received in response to this
provision, the FMCSA agrees that once this record check of all States
where a driver held any type of driver's license has been conducted for
every CDL driver, and in light of the fact that the Federal regulations
require all future convictions to be forwarded to and recorded on the
driver record of the State where a CDL driver is licensed, requiring
the States to conduct this expanded State record check after the
initial CDL renewal would serve no useful purpose. Accordingly, the
FMCSA is amending Sec. 383.73(a)(3)(iv) of the final rule to limit this
record check to CDL drivers renewing their license for the first time
after the effective date of this rulemaking, provided that a notation
is made on the driver's record that this expanded driver record check
has been made and the date it was done.

Section 383.93--Endorsements.

Section 383.93 is being amended to add a new paragraph for the
school bus endorsement mandated by Section 214 of the MCSIA and
specifying that applicants must pass both a knowledge and a skills test
to obtain this endorsement. Comments related to the proposed school bus
endorsement are discussed in the next section.

Section 383.123--Requirements for a School Bus Endorsement.

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

[[Page 49748]]

after receiving this training and obtaining their passenger
endorsement. While this may be a practical economic issue, the FMCSA
believes that Congress established the school bus endorsement to
promote the safe operation of school buses, not to restrict a driver's
future employment opportunities. Issues related to restricting the
future employment of such drivers should be addressed through
agreements between the parties. Based upon this analysis, the FMCSA
declines to incorporate the passenger endorsement requirements into the
school bus endorsement.
In the July 22 NPRM, the FMCSA proposed including a provision in
Sec. 383.123 giving States the option of not requiring applicants for
the school bus endorsement to take the skills test where the applicant
had past experience driving a school bus and met the safety criteria
established in that section. The agency believes that such a
``grandfather clause,'' which proved successful during the
implementation of the CMVSA, incorporates appropriate experience and
safety requirements to accomplish the objective of the MCSIA without
imposing an undue burden on the States.
Thirteen comments received expressed strong support for
grandfathering experienced drivers, although there were a few
suggestions for changes to these proposed requirements. Based on the
comments, the FMCSA has amended the text to clarify these criteria in
the final rule.

Section 383.153--Information on the Document and Application.

Section 383.153 adds a license code for the proposed school bus
endorsement. One State and the American Association of Motor Vehicle
Administrators express concern that some States already use an ``S''
endorsement and asked the FMCSA to select another designation for the
new school bus endorsement. Based on the fact that only two commenters
raised this issue, the FMCSA does not believe adopting an ``S''
endorsement will impose an undue burden on those few States that may
already use it for some other purpose. Since States use a wide variety
of letters for various other non-Federal endorsements or purposes,
there is also a likelihood that any alternative letter designation
proposed by the FMCSA for the school bus endorsement would already be
used by one or more States. For these reasons, the FMCSA will include
the ``S'' endorsement for school bus drivers in the final rule.

Section 384.107--Matter Incorporated by Reference.

The FMCSA is incorporating by reference the AAMVAnet publication
CDLIS State Procedures Manual cited in 49 CFR 384.231(d) Recordkeeping
requirements. A discussion of the analysis for this action, a complete
description of the document, and the reasons for its incorporation can
be found in the commentary to Sec. 384.231.
One comment seeks clarification on whether the reference to CDLIS
in the May 4 NPRM preamble discussion of the ``Number of CDL
citations'' means the central site or the overall system. The reference
to CDLIS in the NPRM is to the overall system.
Another comment asks whether the FMCSA would consider comments on
the AAMVAnet State Procedures Manual, which is being incorporated by
reference into the Code of Federal Regulations. The FMCSA received no
comments on the Manual, but would not have considered comments on this
document because no changes to it were being proposed.

Section 384.203--Driving While Under the Influence.

The FMCSA has removed a provision titled ``Substantial Compliance
by States,'' from 49 CFR 383.51(f) and added it to this section, where
it more appropriately belongs. It is designated 49 CFR 384.203(b) and
(c).

Section 384.206--State Record Checks.

As previously discussed in the commentary to 49 CFR 383.73, Section
202(a) of the MCSIA requires States to request the applicant's driving
record from each State that issued him or her any kind of driver's
license [49 U.S.C. 31311(a)(6)] before issuing or renewing a CDL. The
FMCSA is amending Secs. 383.71, 383.73 and 384.206 to incorporate these
new requirements.
Five commenters asked how far back this record check should extend.
After reviewing the issue and noting that National Driver Register
(NDR) guidelines require numerous offenses to remain on a driver's
record for a period of 10 years, the FMCSA has amended Sec. 384.206 to
limit this expanded record check to the 10 years preceding the date of
the driver's license application.

Section 384.208--Notification of Disqualification.

Section 384.208 has been amended to comply with Section 202(b) of
the MCSIA, which amended 49 U.S.C. 31311(a)(8) to require that States
include and record the violation that resulted in the driver's
disqualification, or the revocation, suspension or cancellation of his
or her CDL, as part of the notification they were previously required
to make under this statutory provision. This notification must be made
no later than 10 days after the driver is disqualified.
Because the only comment addressing this issue was favorable, the
FMCSA is incorporating it into the final rule as proposed.

Section 384.209--Notification of Traffic Violations.

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

[[Page 49749]]

immediately impose a ten-day time period would place an unreasonable
burden on the States. Accordingly, the NPRM proposed that this 10-day
time limitation be phased in over six years according to the following
time schedule. Within three years of the effective date of the final
rule, notification would be required within 30 days of the conviction.
Within six years, notification would be required within ten days.
States are encouraged to move as quickly as possible to meet the 10-day
requirement and should seek to do so wherever possible. After
considering the comments, the FMCSA has decided to adopt the phase-in
proposal.
In light of the importance of States obtaining timely conviction
information on CDL drivers who are convicted of offenses while driving
in other States, it is critical that States make every effort to meet
the compliance schedule established in this rulemaking. The FMCSA urges
all State agencies to work together to accomplish this objective.
One commenter also asked whether the 10-day notification period
began when the verdict was rendered or at the time the conviction
became final. The FMCSA defers to State law and procedure to determine
this issue. If, as is the case in many jurisdictions, a trial court
verdict does not become a final conviction for a stated period after
the verdict to allow a defendant time to appeal, the conviction
information must be transmitted 10 days after the appeal window closes,
or if an appeal is filed, after the conviction is upheld.

Section 384.210--Limitation on Licensing-Prohibition on State Issuing
Hardship Licenses.

Section 384.210 is being amended in accordance with provisions of
Section 202(d) of the MCSIA (49 U.S.C. 31311(a)(10)(B)) to prohibit a
State from issuing a special commercial driver's license or permit
(including a provisional or temporary license) to any CDL driver who is
disqualified or who has his or her non-commercial driver's license or
driving privilege revoked, suspended or canceled.
Of the ten comments addressing this issue, a few State licensing
and law enforcement agencies point out the difficulty of getting any
legislation passed and the fact that they do not control court actions
in issuing such licenses. While cognizant of the need for coordination
between judicial, executive, and legislative branches that implementing
and complying with this provision may impose on the States, the FMCSA
notes that this action is required by the MCSIA and urges all States to
take appropriate action to bring their laws, regulations and
ajudicatory procedures into compliance with this new requirement for
identifying and removing drivers whose violations warrant such action.
The statute anticipates and FMCSA believes that the branches of
government can work cooperatively to address this public safety issue.

Section 384.225--Record of Violations.

Section 202(f) of the MCSIA requires the States to maintain a
driver history record for CDL drivers of all convictions of State or
local motor vehicle traffic control laws while operating any type of
motor vehicle [49 U.S.C. 31311(a)(18)]. It also specifies that this
information must be made available to authorized CDLIS users including
the Secretary of Transportation, States, drivers, employing motor
carrier and prospective employing motor carriers, as part of normal
operating practices. While the MCSIA does not specify a retention
period for information on these convictions and other licensing
actions, a minimum retention period of three years is included in this
rule to promote uniformity among the States. Although Section
31311(a)(18) requires a driver history record only for CDL drivers,
Section 31311(a)(9) goes beyond that. When an out-of-State driver
commits a violation, paragraph (a)(9) requires the State where the
violation occurred to notify the State that issued his/her driver's
license. This rule applies both to CDL holders and to drivers operating
a CMV (illegally) without a CDL. Because a State could not provide
notification of a violation by a CMV driver who did not have a CDL
without first entering the conviction in the driver information system,
the FMCSA has concluded that this requirement is implicit in paragraph
(a)(9) despite the fact that no such requirement is included in
paragraph (a)(18). Stated alternatively, Sec. 384.225(a) (``CDL
holders'') is based on 49 U.S.C. 31311(a)(18), while Sec. 384.225(b)
(``Non-CDL holders'') is based on 49 U.S.C. 31311(a)(9).
Seven comments support the requirement for States to enter all
traffic convictions on driver records; however, three States questioned
which driving records should be maintained and proposed alternative
retention periods. Paragraph (d) of Sec. 384.231 requires States to
maintain driver records for CDL drivers on the CDLIS for the time
periods the FMCSA finds necessary to enforce the disqualifications
called for in Secs. 384.215 through 384.219 and Secs. 384.221 through
384.224. These time periods range from a minimum of 3 years for serious
traffic violations and railroad-highway grade crossing violations to
life for major alcohol, drug and felony offenses. Since the minimum
retention period for a disqualifying offense is currently set at 3
years, the FMCSA believes that a minimum record retention period of 3
years for all other offenses in a CMV and non-CMV is reasonable. It is
a good balance between allowing authorized users to see the current
driving record of a CDL driver without placing an undue burden on the
States to carry convictions on a driving record that will not affect
any future driver disqualification action. The more serious the
offense, the longer the conviction will remain on the driving record
for review by authorized users of CDLIS. Based upon the fact that the
CDLIS driver record retention standards are well known and adhered to
by all States, the FMCSA does not believe any additional record
retention period needs to be included in this rulemaking.
Another issue raised in four of the comments was that the
authorized agents of people and entities designated in the MCSIA as
having access to driver record information should also be allowed to
obtain this information. The FMCSA agrees that the MCSIA permits access
to these records by agents, and has amended the final rule to reflect
this fact.
One State asked whether they will be allowed to charge motor
carriers for providing driver history information. The FMCSA believes
this is a decision for each State to make consistent with the object of
this rulemaking. Accordingly, it has not been addressed in this
rulemaking.

Section 384.226--Prohibition on Masking Convictions.

Section 202(g) of the MCSIA prohibits the practice of masking
convictions required to be maintained by or transmitted to the State
where the driver is licensed [49 U.S.C. 31311(a)(19)]. A Joint
Explanatory Statement issued by Congress in conjunction with the MCSIA
(145 Cong. Rec. H12870-12874 (daily ed. Nov. 18, 1999; 145 Cong. Rec.
S15207-15211 (daily ed. Nov. 19, 1999)) makes clear that this new
provision is intended to prohibit States not only from masking
convictions, but also from using diversion programs or any other
disposition that would defer the listing of a guilty verdict on a CDL
driver's record. This provision also requires that records of such
conviction information be made available to all authorized parties and
government entities. The FMCSA urges State Executive Branch agencies to
work with the State Judicial Branch to eliminate the practice of

[[Page 49750]]

masking. This practice allows unsafe drivers to continue to pose a risk
to other motorists by allowing their continued operation on the
nation's highways.

Section 384.231--Satisfaction of State Disqualification Requirements.

All paragraphs are amended to replace the word ``shall'' with the
word ``must.''
The FMCSA is amending paragraph (a) to include cross references to
the disqualifications resulting from railroad-highway grade crossing
violations added as 49 CFR 384.223 by a final rule published on
September 2, 1999 (64 FR 48104), and new Secs. 384.222 and 384.224
promulgated by this final rule.
Paragraph (b)(2) is being amended to remove the May 18, 1997,
compliance date from the heading of the paragraph because that date has
passed and the rule now applies to all non-CDL holders. The FMCSA is
also replacing the undefined term ``non-CDL holder'' with ``a person
required to have a CDL'' within the heading and body of paragraph
(b)(2) because the term ``non-CDL holder'' could include a person who
is not even required to have a CDL. The intent of this paragraph is to
require each State to disqualify any person required to have a CDL who
was convicted of a disqualifying offense in a CMV under Sec. 383.51.
Paragraph (d) is being amended to incorporate by reference the
current version of the AAMVAnet State Procedures Manual. Each State-
licensing agency has a copy of the most recent version of the CDLIS
State Procedures Manual. A copy of this CDLIS State Procedures Manual
is also in the public docket.

Section 384.401--Withholding of Funds Based on Noncompliance.

In order to avoid the withholding of certain Federal aid highway
funds, States must be in substantial compliance, as defined in 49 CFR
384.301, with the standards set forth in Subpart B of part 384. Section
103(e) of the MCSIA also requires the FMCSA to withhold Motor Carrier
Safety Assistance Program (MCSAP) funds from States that fail to be in
substantial compliance with these standards. This section incorporates
this new sanctioning requirement. A discussion of the comments on this
requirement can be found in the commentary to Sec. 350.217.

Section 384.405--Decertification of State CDL Program.

Section 203 of the MCSIA requires the FMCSA to prohibit a State
from issuing, renewing, transferring, or upgrading CDLs if the agency
has determined that the State is in substantial noncompliance with the
requirements of Section 31311 of title 49 U.S.C. (49 CFR part 384,
subpart B). Because of the severity of this new sanction and the
potential effect on drivers and motor carriers located in States found
to be in noncompliance, it is envisioned that this penalty will be used
only after other attempts to bring the State into substantial
compliance with CDL requirements have failed. As noted in the
commentary to Sec. 383.23, the FMCSA envisions this sanction being
invoked only in rare situations.
To mitigate the impact on drivers and motor carriers in States that
have been decertified, the MCSIA is adding a provision to 49 CFR 383.7
and 384.405(h) allowing drivers licensed before a State was decertified
to continue to operate CMVs, as long as their licenses remain valid.
The FMCSA has also included language in 49 CFR 383.23(b)(2) authorizing
States that are in substantial compliance to issue nonresident CDLs to
drivers living in States that have been decertified.
In response to one comment raised concerning how other States will
know that a State has been decertified, the FMCSA will notify all
States whenever a State has been decertified or recertified.

Section 384.407--Emergency CDL Grants.

Section 384.407 implements Section 103(d) of the MCSIA (49 U.S.C.
31107(c)) by authorizing the FMCSA to provide emergency CDL grants to
assist States whose CDL programs may fail to meet the compliance
requirements of 49 U.S.C. 31311(a) [49 CFR part 384, subpart B]. These
grants of up to $1,000,000 per State are subject to the annual
appropriation of funds by Congress for information system grants.
Two comments to the NPRM addressed this issue. One proposed that
only States making a good faith effort to comply with the CDL
requirements be eligible to receive these grant funds and the other
proposed that the traditional 20% State grant-matching requirement be
waived. The FMCSA agrees with the first of these suggestions and has
added language to the final rule clarifying that only States making a
good faith effort to comply with the CDL requirements are eligible to
receive these grants. As for the second comment, these discretionary
grants do not require a State matching contribution and Sec. 384.407
includes no such implication.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures

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

[[Page 49751]]

FMCSA determined through a preliminary evaluation that these nine would
not impose significant economic costs on State government agencies or
the motor carrier industry.
FMCSA derived benefits estimates for this rule by examining the
number of truck-related crashes, using average costs for various types
(e.g. fatal, injury, and property-damage-only) that must be avoided
during the analysis period (2003-2011) for this rule to be cost
effective. Note that no crash reduction is assumed to occur during the
first year of implementation (2002). Results of this analysis are
contained in Table 1 below.

Table 1.--Summary of Final Rule Costs and Other Relevant Factors
------------------------------------------------------------------------

------------------------------------------------------------------------
Net Present Value of Costs, 2002-
2011............................. $373 million
Net Present Value of Benefits if
700 Truck-Related Crashes are
Avoided Annually between 2003-
2011............................. $404 million
------------------------------------------------------------------------
Type of truck-related crash Average cost per Annual Reduction
crash\1\ Required \2\
Fatal Crashes involving 7 ``Large $3,419,202 7
Trucks''.........................
Injury-Related ``Large Truck'' 217,000 147
Crashes..........................
Property-Damage-Only ``Large 11,300 546
Truck'' Crashes..................
------------------------------------------------------------------------
\1\ From ``Cost of Large-Truck and Bus-Involved Crashes, Final Report
for the Federal Motor Carrier Safety Administration, Zaloshnja,
Miller, & Spicer, 2000.
\2\ For discounted benefits of the rule to exceed discounted costs, a
total of 700 truck-related crashes (e.g., fatal, injury, & PDO
combined) must be avoided annually during the last nine years of the
analysis period (2003-2011). This reduction represents about 0.15
percent of the total number of reported truck-related crashes
annually. The reductions are proportional to the frequencies found by
``Trends in Motor Vehicle Crashes'' (FMCSA, December 2000).

Costs

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

Table 2.--Total Discounted Costs, by MCSIA Section and Title
----------------------------------------------------------------------------------------------------------------
Total discounted
costs (millions
MCSIA section Final rule section title of discounted
dollars)
----------------------------------------------------------------------------------------------------------------
201(a).................................. ``* * * Driving While Suspended * * *.............. $89.1
201(b).................................. ``* * * Imminent Hazard''.......................... 8.3
201(b) & 202(h)......................... ``Disqualifications for non-CMV Offenses''......... 169.7
201(c).................................. ``Expanded Definition of Serious Traffic 43.3
Violations''.
202(a).................................. ``Expanded Driver Record Check''................... 42.5
202(c).................................. ``New Notification Requirements''.................. 3.8
202(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 one of two categories: start-up
costs (Table 3) or ongoing costs (Table 4).

Table 3.--Total ``First-Year'' Costs of Final Rule Provisions, by MCSIA Section
----------------------------------------------------------------------------------------------------------------
Total first-year
costs (millions
MCSIA section Final rule section title of discounted
dollars)
----------------------------------------------------------------------------------------------------------------
201(a).................................. ``* * *Driving While Suspended* * *''.............. $1.61
201(b).................................. ``* * *Imminent Hazard''........................... 2.15
201(b) & 202(h)......................... ``Disqualifications for non-CMV Offenses''......... 1.73
201(c).................................. ``Expanded Definition of Serious Traffic 1.41
Violations''.
202(a).................................. ``Expanded Driver Record Check''................... 1.46\1\
202(c).................................. ``New Notification Requirements''.................. 0.58\1\
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-year
costs (millions
MCSIA section Final rule section title of discounted
dollars)
----------------------------------------------------------------------------------------------------------------
201(a).................................. ``* * *Driving While Suspended * * *''............. $87.5
201(b).................................. ``* * *Imminent Hazard''........................... 6.2

[[Page 49752]]

201(b) & 202(h)......................... ``Disqualifications for non-CMV Offenses''......... 168.0
201(c).................................. ``Expanded Definition of Serious Traffic 41.9
Violations''.
202(a).................................. ``Expanded Driver Record Check''................... 41.0
202(c).................................. ``New Notification Requirements''.................. 3.2
202(g).................................. ``Masking Prohibition''............................ 13.9
-----------------------------------------------------------------------
Total............................... ................................................... 361.7
----------------------------------------------------------------------------------------------------------------

Each of the seven major provisions examined is analyzed separately
here, since many of the annual or ongoing costs of the provisions are
somewhat unique (e.g., effects on driver suspensions and
disqualifications).
Section 201(a) of MCSIA--Disqualification for Driving While
Suspended, Disqualified and Causing a Fatality--creates two new
disqualifying offenses under the FMCSRs. They are: (1) Driving a CMV
while revoked, suspended, or cancelled, or while the driver is
disqualified based upon the driver's operation of a CMV; and (2)
causing a fatality through the negligent or criminal operation of a
CMV. First-year information system development and implementation costs
average $36,234 per State. Extrapolating to all fifty States and the
District of Columbia results in total system development and
implementation costs of $1.61 million when discounted to the year 2002.
Annual costs thereafter include additional data entry by State
government staff and new driver disqualifications resulting from new
FMCSR offenses. The FMCSA assumes 10 percent of CDL drivers with
suspended licenses (or 3,864) will violate the new provision and will
subsequently receive disqualifications of one year on average (or 2,080
working hours) and that these drivers will secure alternative
employment at a 10 percent wage reduction.
We expect 4,296 new CDL drivers to be disqualified annually either
for being convicted of driving while suspended or for causing a
fatality through negligent or criminal operation of a CMV, for an
average of one year each, and that each accepts alternative employment
at a 10 percent wage reduction. Additionally, the FMCSA included the
costs for data entry and for each CDL driver's record to be checked by
a patrolman, costing about $450,000 (undiscounted, combined) annually
for the period 2005 through 2011. The present value of total costs for
this section is $89.1 million.
Section 201(b) of MCSIA--Emergency Disqualification of Drivers
Posing an Imminent Hazard--authorizes the Secretary to impose an
emergency disqualification on drivers whose continued operation of a
CMV the Secretary determines would constitute an imminent hazard. In
cases where the Secretary proposes emergency disqualification beyond 30
days, the driver must be notified of the proposed action and provided
the opportunity for a hearing. We assume that all such drivers would
request a hearing and include: (a) Costs to review CDL drivers' records
for IH designation; (b) costs to hold hearings for each driver when an
IH designation is assigned to a CDL driver; (c) costs to CDL drivers
who are given the IH designation; and (d) data entry costs for State
employees where the IH designation is applied. These discounted ``later
year'' costs (using OMB-prescribed seven percent discount rate) total
$6.2 million, for the period 2004 through 2011. Therefore, with the
$2.15 million set-up costs, the present value of costs of Section
201(b) of MCSIA total $8.3 million.
Sections 201(b) and 202(h) of MCSIA--Disqualification for non-CMV
Violations'prohibits the holder of a CDL from operating a CMV if the
CDL holder commits certain offenses while operating a non-CMV. First-
year costs for this rule should total approximately $1.73 million
(present value); most of these are for information system developments
and modifications by State agencies. Annual costs are estimated at
$168.7 million (present value) and include wages lost by an average of
9,661 CDL holders who would be suspended or disqualified because of
this rule. FMCSA estimates that those CDL holders who would be
disqualified because of this rule would find alternative work at a 10
percent reduction in hourly wages, for an average of 317 days, over the
10-year analysis period. The total cost of this provision is
approximately $170.4 million (present value) over the ten-year analysis
period for 2004 through 2013, using a discount rate of 7 percent.
Section 201(c) of MCSIA--Expanded Definition of Serious Traffic
Violations--adds three new offenses to the FMCSR definition of serious
traffic violations. These new violations include: (1) Driving a CMV
when the driver has not obtained a CDL; (2) driving a CMV without a CDL
in the driver's possession; and (3) driving a CMV without the driver
having met the minimum testing standards for the specific class of CMV
being operated, or for the type of cargo being transported in the
vehicle. This increases the total number of serious traffic violations,
as defined in Part 383 of the FMCSRs, from five to eight. System
development and implementation costs include hardware, software, and
personnel costs to implement this provision and average $29,643 per
State. Extrapolating these results to all fifty States and the District
of Columbia results in a discounted cost of $1.41 million. Annual, or
ongoing, costs for this provision include: (a) Costs to patrolmen to
write the convictions for 3 new serious traffic violation offenses; (b)
costs to input the new conviction data into CDL drivers' records and
report disqualifying information to CDLIS; and (c) costs to CDL drivers
who will be disqualified as a result of the 3 new serious traffic
violations. The present value of these annual costs is $41.9 million.
That brings the total cost for this section to $43.3 million.
Section 202(a) of MCSIA--Expanded Driver Record Check--first-year
costs equal approximately $1.46 million (present value) for all fifty
States and Washington, DC. Discounted ``later year'' costs total $41.0
million for the period 2004 through 2011. Therefore, present values
costs of Section 202(a) of MCSIA total $42.5 million.
Section 202(c) of MCSIA--New Notification Requirements--requires
States to notify CDLIS and the State that issued the CDL no later than
10 days after disqualifying a CDL holder from operating a CMV (or
revoking, suspending, or canceling a CDL) for at least 60 days.
Information system

[[Page 49753]]

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

Benefits: Crashes Avoided for the Final Rule To Be Cost Effective

The primary societal benefits expected from this rule are the
truck-related crashes that one would expect to be avoided due to the
additional CMV operators (mainly CDL holders) who will be suspended or
disqualified for violations of the new disqualifying offenses and
serious traffic violations. It was not possible to estimate the
specific number of truck-related crashes that would be avoided from
implementing each provision of this rule, given that FMCSA has no data
directly linking these specific FMCSR-defined offenses and truck-
related crashes. However, FMCSA did use cost data on truck-related
crashes from Zaloshnja, Miller, and Spicer (``The Costs of Large Truck-
and Bus-Involved Crashes,'' 2000) to derive an estimate of the total
number of truck-related crashes that would have to be avoided per year
(during the analysis period) for this rule to be cost effective (i.e.
for discounted benefits to equal/exceed discounted costs). Those
benefits are found in Tables 1 through 4 above.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement and Fairness Act (SBREFA), requires
Federal agencies to analyze the impact of rulemakings on small
entities, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
We do not believe that these proposals meet the threshold values for
requiring an RFA analysis, since the anticipated impact is fairly
small. Nonetheless, because of the public interest in these proposals,
the FMCSA has prepared this RFA analysis.
(1) A description of the reasons why action by the agency is being
considered. The CDL program has been in operation since 1986. Since
that time, potential process improvements to enhance car safety have
been identified. This rule implements some of those changes.
(2) A succinct statement of the objectives of, and the legal basis
for, the proposed rule. In 1999, Congress passed the Motor Carrier
Safety Improvement Act (MCSIA). Sections of that Act direct changes in
the CDL program. The changes in procedures are a direct response to
this legislation. FMCSA hopes that these changes will make the CDL
program more effective in preventing dangerous drivers from continuing
to drive and will result in improved safety by improving the
performance of drivers and removing unsafe drivers from the road.
(3) A description and, where feasible, an estimate of the number of
small entities to which the rule will apply. In the trucking industry,
there are a few large firms with many employees and many very small
firms with only a handful of employees. To the extent which the rule
imposes costs on firms, these small firms will endure the largest
portion of that burden. The incidence of driver disqualification is not
likely to be different among firms, however large firms are better able
to spread the risk of having a driver disqualified.
(4) A description of the proposed reporting, recordkeeping and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record. Although these small entities will
have to keep records on all of their employees' status regarding the
CDL, there is no additional administrative cost borne by them because
they already have to maintain those records under the current system.
The avenue through which these small businesses might be adversely
affected is a reduction in the number of available drivers who can
qualify under the stricter rules. If that number is significantly
reduced, employers may find that they have to pay drivers a premium
wage in order to continue to provide their level of service.
(5) Identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap or conflict with the
proposed rule. The FMCSA is not aware of any other rules or procedures
that duplicate or conflict with this rule.
(6) Significant Alternatives Available. Allowing differences in
compliance or reporting for small entities would be contrary to the
intent of Congress in issuing this mandate. The purpose of MCSIA is to
strengthen and standardize the CDL program. Another key component of
the CDL program is national uniformity and consistency in its
administration. This promotes effective enforcement.
We certify that the rule will not have a significant impact on a
substantial number of small entities.

Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,

[[Page 49754]]

eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

We have analyzed this rule under E.O. 13045, ``Protection of
Children from Environmental Health Risks and Safety Risks.'' This rule
is not economically significant and does not involve an environmental
risk to health or safety that would disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Executive Order 13132 (Federalism)

This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 dated August 4, 1999, and
it has been determined that this action does not have substantial
direct Federalism implications that would limit the policymaking
discretion of the States. This action will not have a significant
effect on the States' ability to execute traditional State governmental
functions, and any additional administrative cost borne by the States
should be negligible.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal agency must obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. An analysis of
this rule has been made by the FMCSA, and it has been determined that
it will affect the information collection burden associated with the
currently-approved information collection covered by OMB Control No.
2126-0011, titled ``Commercial Driver Licensing and Test Standards.''
The OMB approved the most recent update of this information collection
on October 3, 2001, at 620,802 burden hours. The approval period runs
through October 31, 2004.
The implementation of this final rule will require the State DMVs
to enter additional information into CDLIS--whether the CDL holder
committed the violation in a CMV or a non-CMV. We estimate the time
required to complete this additional information in CDLIS to be
approximately 2 seconds per applicant. The currently-approved estimate
for completing a CDLIS entry is 2 minutes. We believe the 2 additional
seconds can be folded into the 2 minutes and that the 2-minute estimate
is still accurate. Therefore, there is no increase in burden hours from
this provision.
The currently-approved estimate of the number of violations is 1
violation every 3 years for the 10,000,000 CDL holders. We estimate
that with the additional violations, approximately one-quarter of the
10,000,000 CDL holders (2,500,000) will receive an additional violation
over the 3-year period. This would be 833,333 additional violations.
The currently-approved estimate of staff time to input the new
violations into State systems and transfer to CDLIS is 2 minutes.
Therefore, the additional burden created by this final rule is 27,778
burden hours [833,333 x 2 minutes/60 minutes].
Start-up costs include information system, or computer, costs
incurred by State government agencies to implement the new CDL program
provisions under MCSIA. Specific examples include costs required to
establish or modify computer systems within each State to log, review,
and transfer the new serious traffic violations identified under MCSIA.
Additionally, these costs include information systems costs to
implement the new notification requirements for States under MCSIA.
Such costs include hardware, software, and personnel costs to establish
or modify computer systems within each State. Estimates of the combined
start-up, or first-year, costs for the 50 States and the District of
Columbia are shown below.

------------------------------------------------------------------------
Total first-
year costs
Final rule section title (in
millions)
------------------------------------------------------------------------
``* * * Driving While Suspended * * *''.................... $1.61
``* * * Imminent Hazard''.................................. $2.15
``Disqualifications for non-CMV Offenses''................. 1.73
``Expanded Definition of Serious Traffic Violations''...... 1.41
``Expanded Driver Record Check''........................... 1.46
``New Notification Requirements''.......................... 0.58
``Masking Prohibition''.................................... 2.42
------------
Total.................................................. 11.4
------------------------------------------------------------------------

At NPRM stage, we requested comments on the information collection
aspects of this rule. No comments regarding the information collection
burden hours were received. You may submit any additional comments on
the information collection burden addressed by this final rule to the
Office of Management and Budget (OMB). The OMB must receive your
comments by August 30, 2002. You must mail or hand deliver your
comments to: Attention: Desk Officer for the Department of
Transportation, Docket Library, Office of Information and Regulatory
Affairs, Office of Management and Budget, Room 10102, 725 17th Street,
NW., Washington, DC 20503.

National Environmental Policy Act

The Federal Motor Carrier Safety Administration is a new
administration within the Department of Transportation. We are striving
to meet all of the statutory and executive branch requirements on
rulemaking. The FMCSA is currently developing an agency order that will
comply with all statutory and regulatory policies under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). We expect
the draft FMCSA Order to appear in the Federal Register for public
comment in the near future. The framework of the FMCSA Order is
consistent with and reflects the procedures for considering
environmental impacts under DOT Order 5610.1C. The FMCSA analyzed this
rule under the NEPA and DOT Order 5610.1C. We believe it would be among
the type of regulations that would be categorically excluded from any
environmental assessment.

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

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

[[Page 49755]]

significant energy action. For these reasons, a Statement of Energy
Effects under Executive Order 13211 is not required.

Unfunded Mandates Reform Act of 1995

This rule does not impose a Federal mandate resulting in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year. (2
U.S.C. 1531 et seq.)

List of Subjects

49 CFR Part 350

Grant programs--transportation, Highway safety, Motor carriers,
Motor vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 383

Administrative practice and procedure, Alcohol abuse, Commercial
driver's license, Commercial motor vehicles, Drug abuse, Highway
safety, Motor carriers, Motor vehicle safety.

49 CFR Part 384

Administrative practice and procedure, Alcohol abuse, Commercial
driver's license, Commercial motor vehicles, Drug abuse, Highway
safety, Incorporation by reference, Intergovernmental relations, Motor
carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.

49 CFR Part 390

Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.

In consideration of the foregoing, the FMCSA amends title 49, Code
of Federal Regulations, Chapter III, parts 350, 383, 384, and 390 as
set forth below:

PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM

1. Revise the authority citation for part 350 to read as follows:

Authority: 49 U.S.C. 31100-31104, 31108, 31136, 31140-31141,
31161, 31310-31312, 31502; Sec. 103 of Pub. L. 106-159, 113 Stat.
1753; and 49 CFR 1.73.

2. Add Sec. 350.217 to subpart B to read as follows:

Sec. 350.217 What are the consequences for a State with a CDL program
not in substantial compliance with 49 CFR part 384, subpart B?

(a) A State with a CDL program not in substantial compliance with
49 CFR part 384, subpart B, as required by 49 CFR part 384, subpart C,
is subject to the loss of all Motor Carrier Safety Assistance Program
(MCSAP) grant funds authorized under sec. 103(b)(1) of the Motor
Carrier Safety Improvement Act of 1999 [Pub. L. 106-159, 113 Stat.
1748] and loss of certain Federal-aid highway funds, as specified in 49
CFR part 384, subpart D.
(b) Withheld MCSAP grant funds will be restored to the State if the
State meets the conditions of Sec. 384.403(b) of this subchapter.

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES

3. Revise the authority citation for part 383 to read as follows:

Authority: 49 U.S.C. 521, 31136, 31301 et seq., 31502; Sec. 214
of Pub. L. 106-159, 113 Stat. 1766; and 49 CFR 1.73.

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

Sec. 383.3 Applicability

* * * * *
(f) * * *
(3) * * *
(i) * * *
(C) Has not had any conviction for any type of motor vehicle for
the disqualifying offenses contained in Sec. 383.51(b);
* * * * *

5. Amend Sec. 383.5 to revise the definitions of the terms
``disqualification,'' ``driving a commercial motor vehicle while under
the influence of alcohol,'' ``non-resident CDL'' and ``serious traffic
violation'' and to add the definitions of the terms ``fatality,''
``imminent hazard,'' ``non-CMV,'' and ``school bus'' in alphabetical
order to read as follows:

Sec. 383.5 Definitions.

* * * * *
Disqualification means any of the following three actions:
(a) The suspension, revocation, or cancellation of a CDL by the
State or jurisdiction of issuance.
(b) Any withdrawal of a person's privileges to drive a CMV by a
State or other jurisdiction as the result of a violation of State or
local law relating to motor vehicle traffic control (other than
parking, vehicle weight or vehicle defect violations).
(c) A determination by the FMCSA that a person is not qualified to
operate a commercial motor vehicle under part 391 of this chapter.
* * * * *
Driving a commercial motor vehicle while under the influence of
alcohol means committing any one or more of the following acts in a
CMV--
(a) Driving a CMV while the person's alcohol concentration is 0.04
or more;
(b) Driving under the influence of alcohol, as prescribed by State
law; or
(c) Refusal to undergo such testing as is required by any State or
jurisdiction in the enforcement of Sec. 383.51(b) or Sec. 392.5(a)(2)
of this subchapter.
* * * * *
Fatality means the death of a person as a result of a motor vehicle
accident.
* * * * *
Imminent hazard means the existence of a condition that presents a
substantial likelihood that death, serious illness, severe personal
injury, or a substantial endangerment to health, property, or the
environment may occur before the reasonably foreseeable completion date
of a formal proceeding begun to lessen the risk of that death, illness,
injury or endangerment.
* * * * *
Nonresident CDL means a CDL issued by a State under either of the
following two conditions:
(a) To an individual domiciled in a foreign country meeting the
requirements of Sec. 383.23(b)(1).
(b) To an individual domiciled in another State meeting the
requirements of Sec. 383.23(b)(2).
* * * * *
Non-CMV means a motor vehicle or combination of motor vehicles not
defined by the term ``commercial motor vehicle (CMV)'' in this section.
* * * * *
School bus means a CMV used to transport pre-primary, primary, or
secondary school students from home to school, from school to home, or
to and from school-sponsored events. School bus does not include a bus
used as a common carrier.
Serious traffic violation means conviction of any of the following
offenses when operating a CMV, except weight, defect and parking
violations:
(a) Excessive speeding, involving any single offense for any speed
of 15 miles per hour or more above the posted speed limit;
(b) Reckless driving, as defined by State or local law or
regulation, including but not limited to offenses of driving a CMV in
willful or wanton disregard for the safety of persons or property;
(c) Improper or erratic traffic lane changes;
(d) Following the vehicle ahead too closely;
(e) A violation, arising in connection with a fatal accident, of
State or local law relating to motor vehicle traffic control;
(f) Driving a CMV without obtaining a CDL;

[[Page 49756]]

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

6. Add Sec. 383.7 to subpart A to read as follows:

Sec. 383.7 Validity of CDL issued by decertified State.

A CDL issued by a State prior to the date the State is notified by
the Administrator, in accordance with the provisions of Sec. 384.405 of
this subchapter, that the State is prohibited from issuing CDLs, will
remain valid until its stated expiration date.

7. Amend Sec. 383.23 to revise paragraphs (a)(2) and (b) to read as
follows:

Sec. 383.23 Commercial driver's license.

(a) * * *
(2) Except as provided in paragraph (b) of this section, no person
may legally operate a CMV unless such person possesses a CDL which
meets the standards contained in subpart J of this part, issued by his/
her State or jurisdiction of domicile.
(b) Exception. (1) If a CMV operator is not domiciled in a foreign
jurisdiction which the Administrator has determined tests drivers and
issues CDLs in accordance with, or under standards similar to, the
standards contained in subparts F, G, and H of this part, the person
may obtain a Nonresident CDL from a State which does comply with the
testing and licensing standards contained in such subparts F, G, and H
of this part.\1\
---------------------------------------------------------------------------

\1\ Effective December 29, 1988, the Administrator determined
that commercial drivers' licensees issued by Canadian Provinces and
Territories in conformity with the Canadian National Safety Code are
in accordance with the standards of this part. Effective November
21, 1991, the Administrator determined that the new Licencias
Federales de Conductor issued by the United Mexican States are in
accordance with the standards of this part. Therefore, under the
single license provision of Sec. 383.21, a driver holding a
commercial driver's license issued under the Canadian National
Safety Code or a new Licencia Federal de Conductor issued by Mexico
is prohibited from obtaining nonresident CDL, or any other type of
driver's license, from a State or other jurisdiction in the United
States.
---------------------------------------------------------------------------

(2) If an individual is domiciled in a State while that State is
prohibited from issuing CDLs in accordance with Sec. 384.405 of this
subchapter, that individual is eligible to obtain a Nonresident CDL
from any State that elects to issue a Nonresident CDL and which
complies with the testing and licensing standards contained in subparts
F, G, and H of this part.
* * * * *

8. Revise Sec. 383.51 to read as follows:

Sec. 383.51 Disqualification of drivers.

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

Table 1 to Sec. 383.51
--------------------------------------------------------------------------------------------------------------------------------------------------------
For a first conviction
or refusal to be
tested while operating For a second
a CMV transporting conviction or refusal For a second
For a first conviction hazardous materials to be tested in a conviction or refusal
or refusal to be tested For a first conviction required to be separate incident of to be tested in a
while operating a CMV, or refusal to be tested placarded under the any combination of separate incident of
If a driver operates a motor a person required to while operating a non- Hazardous Materials offenses in this Table any combination of
vehicle and is convicted of: have a CDL and a CDL CMV, a CDL holder must Regulations (49 CFR while operating a CMV, offenses in this Table
holder must be be disqualified from part 172, subpart F), a person required to while operating a non-
disqualified from operating a CMV for . . a person required to have a CDL and a CDL CMV, a CDL holder must
operating a CMV for . . . have a CDL and CDL holder must be be disqualified from
. holder must be disqualified from operating a CMV for .
disqualified from operating a CMV for . . .
operating a CMV for . . .
. .
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Being under the influence 1 year................. 1 year................. 3 years............... Life.................. Life.
of alcohol as prescribed by
State law * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(2) Being under the influence 1 year................. 1 year................. 3 years............... Life.................. Life.
of a controlled substance * *
*.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 49757]]

(3) Having an alcohol 1 year................. Not applicable......... 3 years............... Life.................. Not applicable.
concentration of 0.04 or
greater while operating a CMV
* * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(4) Refusing to take an 1 year................. 1 year................. 3 years............... Life.................. Life.
alcohol test as required by a
State or jurisdiction under
its implied consent laws or
regulations as defined in
Sec. 383.72 of this part * *
*.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(5) Leaving the scene of an 1 year................. 1 year................. 3 years............... Life.................. Life.
accident * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(6) Using the vehicle to 1 year................. 1 year................. 3 years............... Life.................. Life.
commit a felony, other than a
felony described in paragraph
(b)(9) of this table * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(7) Driving a CMV when, as a 1 year................. Not applicable......... 3 years............... Life.................. Not applicable.
result of prior violations
committed operating a CMV,
the driver's CDL is revoked,
suspended, or canceled, or
the driver is disqualified
from operating a CMV.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(8) Causing a fatality through 1 year................. Not applicable......... 3 years............... Life.................. Not applicable.
the negligent operation of a
CMV, including but not
limited to the crimes of
motor vehicle manslaughter,
homicide by motor vehicle and
negligent homicide.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(9) Using the vehicle in the Life-not eligible for Life-not eligible for Life-not eligible for Life-not eligible for Life-not eligible for
commission of a felony 10-year reinstatement. 10-year reinstatement. 10-year reinstatement. 10-year reinstatement. 10-year reinstatement
involving manufacturing,
distributing, or 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 subsequent
For a second conviction of For a second conviction of conviction of any For a third or subsequent
any combination of offenses any combination of offenses combination of offenses in conviction of any
in this Table in a separate in this Table in a separate this Table in a separate combination of offenses in
If the driver operates a motor incident within a 3-year incident within a 3-year incident within a 3-year this Table in a separate
and is convicted of: period while operating a CMV, period while operating a non- period while operating a incident within a 3-year
a person required to have a CMV, a CDL holder must be CMV, a person required to period while operating a non-
CDL and a CDL holder must be disqualified from operating have a CDL and a CDL holder CMV, a CDL holder must be
disqualified from operating a a CMV for... must be disqualified from disqualified from operating
CMV for... operating a CMV for... a CMV for...
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Speeding 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 * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 49758]]

(2) Driving 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) Making improper or erratic 60 days...................... 60 days..................... 120 days.................... 120 days.
traffic lane changes * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(4) Following the vehicle ahead 60 days...................... 60 days..................... 120 days.................... 120 days.
too closely * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(5) Violating State or local 60 days...................... 60 days..................... 120 days.................... 120 days.
law relating to motor vehicle
traffic control (other than a
parking violation) arising in
connection with a fatal
accident * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(6) Driving a CMV without 60 days...................... Not applicable.............. 120 days.................... Not applicable.
obtaining a CDL.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(7) Driving a CMV without a CDL 60 days...................... Not applicable.............. 120 days.................... Not applicable.
in the driver's possession \1\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(8) Driving a CMV without the 60 days...................... Not applicable.............. 120 days.................... Not applicable.
proper class of CDL and/or
endorsements for the specific
vehicle group being operated
or for the passengers or type
of cargo being transported.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Any individual who provides proof to the enforcement authority that issued the citation, by the date the individual must appear in court or pay any
fine for such a violation, that the individual held a valid CDL on the date the citation was issued, shall not be guilty of this offense.

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

Table 3 to Sec. 383.51
--------------------------------------------------------------------------------------------------------------------------------------------------------
For a second conviction of any For a third or subsequent conviction
combination of offenses in this Table of any combination of offenses in
If the driver is convicted of For a first conviction a person in a separate incident within a 3- this Table in a separate incident
operating a CMV in violation of a required to have a CDL and a CDL year period, a person required to within a 3-year period, a person
Federal, State or local law because holder must be disqualified from have a CDL and a CDL holder must be required to have a CDL and a CDL
. . . operating a CMV for . . . disqualified from operating a CMV for holder must be disqualified from
. . . operating a CMV for . . .
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) The driver is not required to No less than 60 days................. No less than 120 days................ No less than 1 year.
always stop, but fails to slow
down and check that tracks are
clear of an approaching train * *
*.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(2) The driver is not required to No less than 60 days................. No less than 120 days................ No less than 1 year.
always stop, but fails to stop
before reaching the crossing, if
the tracks are not clear * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(3) The driver is always required No less than 60 days................. No less than 120 days................ No less than 1 year.
to stop, but fails to stop before
driving onto the crossing * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(4) The driver fails to have No less than 60 days................. No less than 120 days................ No less than 1 year.
sufficient space to drive
completely through the crossing
without stopping * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 49759]]

(5) The driver fails to obey a No less than 60 days................. No less than 120 days................ No less than 1 year.
traffic control device or the
directions of an enforcement
official at the crossing * * *.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(6) The driver fails to negotiate a No less than 60 days................. No less than 120 days................ No less than 1 year.
crossing because of 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 second conviction in a separate For a third or subsequent conviction
For a first conviction while incident within a 10-year period in a separate incident within a 10-
If the driver operates a CMV and is operating a CMV, a person required to while operating a CMV, a person year period while operating a CMV, a
convicted of . . . have a CDL and a CDL holder must be required to have a CDL and a CDL person required to have a CDL and a
disqualified from operating a CMV for holder must be disqualified from CDL holder must be disqualified from
. . . operating a CMV for . . . operating a CMV for . . .
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Violating a driver or vehicle No less than 90 days or more than 1 No less than 1 year or more than 5 No less than 3 years or more than 5
out-of-service order while year. years. years.
transporting nonhazardous
materials . . .
--------------------------------------------------------------------------------------------------------------------------------------------------------
(2) Violating a driver or vehicle No less than 180 days or more than 2 No less than 3 years or more than 5 No less than 3 years or more than 5
out-of-service order while years. years. years.
transporting hazardous materials
required to be placarded under
part 172, subpart F of this title,
or while operating a vehicle
designed to transport 16 or more
passengers, including the driver .
. .
--------------------------------------------------------------------------------------------------------------------------------------------------------

9. Add Sec. 383.52 to read as follows:

Sec. 383.52 Disqualification of drivers determined to constitute an
imminent hazard.

(a) The Assistant Administrator or his/her designee must disqualify
from operating a CMV any driver whose driving is determined to
constitute an imminent hazard, as defined in Sec. 383.5.
(b) The period of the disqualification may not exceed 30 days
unless the FMCSA complies with the provisions of paragraph (c) of this
section.
(c) The Assistant Administrator or his/her delegate may provide the
driver an opportunity for a hearing after issuing a disqualification
for a period of 30 days or less. The Assistant Administrator or his/her
delegate must provide the driver notice of a proposed disqualification
period of more than 30 days and an opportunity for a hearing to present
a defense to the proposed disqualification. A disqualification imposed
under this paragraph may not exceed one year in duration. The driver,
or a representative on his/her behalf, may file an appeal of the
disqualification issued by the Assistant Administrator's delegate with
the Assistant Administrator, Adjudications Counsel, Federal Motor
Carrier Safety Administration (Room 8217), 400 Seventh Street, SW.,
Washington, DC 20590.
(d) Any disqualification imposed in accordance with the provisions
of this section must be transmitted by the FMCSA to the jurisdiction
where the driver is licensed and must become a part of the driver's
record maintained by that jurisdiction.
(e) A driver who is simultaneously disqualified under this section
and under other provisions of this subpart, or under State law or
regulation, shall serve those disqualification periods concurrently.
10. Revise Sec. 383.53(b)(1) to read as follows:

Sec. 383.53 Penalties.

* * * * *
(b) Special penalties pertaining to violation of out-of-service
orders--(1) Driver violations. A driver who is convicted of violating
an out-of-service order shall be subject to a civil penalty of not less
than $1,100 nor more than $2,750, in addition to disqualification under
Sec. 383.51(e).
* * * * *

11. Amend Sec. 383.71 to revise paragraphs (a)(6), (a)(7), (b)(3),
(b)(4), and (c)(3); and to add new paragraphs (a)(8), (b)(5), and
(c)(4) to read as follows:

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) Surrender the applicant's non-CDL driver's licenses to the
State; and
(8) Provide the names of all States where the applicant has
previously been licensed to drive any type of motor vehicle during the
previous 10 years.
(b) * * *
(3) If the applicant wishes to retain a hazardous materials
endorsement, comply with State requirements as specified in
Sec. 383.73(b)(4);

[[Page 49760]]

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

12. Revise Sec. 383.73(a)(3) 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 is not limited to, the following:
(i) A check of the applicant's driving record as maintained by his/
her current State of licensure, if any;
(ii) A check with the CDLIS to determine whether the driver
applicant already has been issued a CDL, whether the applicant's
license has been suspended, revoked, or canceled, or if the applicant
has been disqualified from operating a commercial motor vehicle;
(iii) A check with the National Driver Register (NDR) to determine
whether the driver applicant has:
(A) Been disqualified from operating a motor vehicle (other than a
commercial motor vehicle);
(B) Had a license (other than CDL) suspended, revoked, or canceled
for cause in the 3-year period ending on the date of application; or
(C) Been convicted of any offenses contained in section 205(a)(3)
of the National Driver Register Act of 1982 (23 U.S.C. 401 note); and
(iv) A request for the applicant's complete driving record from all
States where the applicant was previously licensed over the last 10
years to drive any type of motor vehicle. Exception: A State is only
required to make the driving record check specified in this paragraph
(a)(3) for drivers renewing a CDL for the first time after September
30, 2002, provided a notation is made on the driver's record confirming
that the driver record check required by this paragraph (a)(3) has been
made and noting the date it was done; and
* * * * *

13. Revise Sec. 383.77(a)(3) to read follows:

Sec. 383.77 Substitute for driving skills tests.

* * * * *
(a) * * *
(3) Has not had any convictions for any type of motor vehicle for
the disqualifying offenses contained in Sec. 383.51(b);
* * * * *

14. Amend Sec. 383.93 to revise paragraphs (b)(3), (b)(4), (c)(3),
and (c)(4); and to add new paragraphs (b)(5) and (c)(5) to read as
follows:

Sec. 383.93 Endorsements.

* * * * *
(b) * * *
(3) Tank vehicles;
(4) Required to be placarded for hazardous materials; or
(5) School buses.
(c) * * *
(3) Tank vehicle--a knowledge test;
(4) Hazardous Materials--a knowledge test; and
(5) School bus--a knowledge and a skills test.

15. Add Sec. 383.123 to subpart G to read as follows:

Sec. 383.123 Requirements for a school bus endorsement.

(a) An applicant for a school bus endorsement must satisfy the
following three requirements:
(1) Qualify for passenger vehicle endorsement. Pass the knowledge
and skills test for obtaining a passenger vehicle endorsement.
(2) Knowledge test. Must have knowledge covering at least the
following three topics:
(i) Loading and unloading children, including the safe operation of
stop signal devices, external mirror systems, flashing lights and other
warning and passenger safety devices required for school buses by State
or Federal law or regulation.
(ii) Emergency exits and procedures for safely evacuating
passengers in an emergency.
(iii) State and Federal laws and regulations related to safely
traversing highway rail grade crossings.
(3) Skills test. Must take a driving skills test in a school bus of
the same vehicle group (see Sec. 383.91(a)) as the school bus applicant
will drive.
(b) Substitute for driving skills test. (1) At the discretion of a
State, the driving skills test required in paragraph (a)(3) of this
section may be waived for an applicant who is currently licensed, has
experience driving a school bus, has a good driving record, and meets
the conditions set forth in paragraph (b)(2) of this section.
(2) An applicant must certify and the State must verify that,
during the two-year period immediately prior to applying for the school
bus endorsement, the applicant:
(i) Held a valid CDL with a passenger vehicle endorsement to
operate a school bus representative of the group he or she will be
driving;
(ii) Has not had his or her driver's license or CDL suspended,
revoked or canceled or been disqualified from operating a CMV;
(iii) Has not been convicted of any of the disqualifying offenses
in Sec. 383.51(b) while operating a CMV or of any offense in a non-CMV
that would be disqualifying under Sec. 383.51(b) if committed in a CMV;
(iv) Has not had more than one conviction of any of the serious
traffic violations defined in Sec. 383.5, while operating any type
motor vehicle;
(v) Has not had any conviction for a violation of State or local
law relating to motor vehicle traffic control (other than a parking
violation) arising in connection with any traffic accident;
(vi) Has not been convicted of any motor vehicle traffic violation
that resulted in an accident; and
(vii) Has been regularly employed as a school bus driver, has
operated a school bus representative of the group the applicant seeks
to drive, and provides evidence of such employment.
(3) After September 30, 2005 the provisions in paragraph (b) of
this section do not apply.

16. Amend Sec. 383.153 to revise paragraph (a)(9)(v), redesignate
paragraph (a)(9)(vi) as paragraph (a)(9)(vii) and add new paragraph
(a)(9)(vi) to read as follows:

Sec. 383.153 Information on the document and application.

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

[[Page 49761]]

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

17. Revise the authority citation for part 384 to read as follows:

Authority: 49 U.S.C. 31136, 31301 et seq., 31502; Sec. 103 of
Pub. L. 106-159, 113 Stat. 1753; and 49 CFR 1.73.

18. Add 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 Office
of the Federal Register has approved the materials incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. For
materials subject to change, only the specific version approved by the
Director of the Office of the Federal Register and specified in the
regulation are incorporated. Material is incorporated as it exists on
the date of the approval and a notice of any change in these materials
will be published in the Federal Register.
(b) Materials incorporated. The AAMVAnet, Inc.'s ``Commercial
Driver License Information System (CDLIS) State Procedures,'' Version
2.0, October 1998, IBR approved for Sec. 384.231(d).
(c) Addresses. (1) All of the materials incorporated by reference
are available for inspection at:
(i) The Department of Transportation Library, 400 Seventh Street,
SW, Washington, DC 20590 in Room 2200. These documents are also
available for inspection and copying as provided in 49 CFR part 7.
(ii) The Office of the Federal Register, 800 North Capitol Street,
NW, Suite 700, Washington, DC.
(2) Information and copies of all of the materials incorporated by
reference may be obtained by writing to: American Association of Motor
Vehicle Administrators, Inc., 4301 Wilson Blvd, Suite 400, Arlington,
VA 22203.
19. Revise 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)(3)).

20. Amend Sec. 384.206 to revise paragraph (a)(2) to read as
follows:

Sec. 384.206 State record checks.

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

21. Add Sec. 384.208 to read as follows:

Sec. 384.208 Notification of disqualification.

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

22. Revise Sec. 384.209 to read as follows:

Sec. 384.209 Notification of traffic violations.

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

23. Revise Sec. 384.210 to read as follows:

Sec. 384.210 Limitation on licensing.

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

24. Revise Sec. 384.213 to read as follows:

Sec. 384.213 State penalties for drivers of CMVs.

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

[[Page 49762]]

penalties prescribed under part 383, subpart D, of this subchapter.

25. 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 items (1) through (8) of Table 1 to Sec. 383.51 of this
subchapter, for no less than one year.
* * * * *

26. 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 Table 1 to Sec. 383.51 of this subchapter.
(b) Special rule for certain lifetime disqualifications. A driver
disqualified for life under Table 1 to Sec. 383.51 may be reinstated
after 10 years by the driver's State of residence if the requirements
of Sec. 383.51(a)(5) have been met.

27. 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 a first offense, of using a CMV in the
commission of a felony described in item (9) of Table 1 to Sec. 383.51
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 item (9) of Table 1 to Sec. 383.51 of
this subchapter.

28. 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 as specified in
Table 2 to Sec. 383.51.

29. 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 as specified in
Table 2 to Sec. 383.51. This disqualification period must be in
addition to any other previous period of disqualification.

30. 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. 383.37(c), Table 4 to 383.51, and 383.53(b) of this subchapter.

31. 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),
Table 3 to 383.51, and 383.53(c) of this subchapter.

32. 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 non-CMVs, as defined in Sec. 383.5 of this subchapter,
which meet the minimum requirements of Tables 1 and 2 to Sec. 383.51 of
this subchapter.

33. Add Sec. 384.225 to read as follows:

Sec. 384.225 Record of violations.

The State must:
(a) CDL holders. Record and maintain as part of the driver history
all convictions, disqualifications and other licensing actions for
violations of any State or local law relating to motor vehicle traffic
control (other than a parking violation) committed in any type of
vehicle.
(b) A person required to have a CDL. Record and maintain as part of
the driver history all convictions, disqualifications and other
licensing actions for violations of any State or local law relating to
motor vehicle traffic control (other than a parking violation)
committed while the driver was operating a CMV.
(c) Make driver history information required by this section
available to the users designated in paragraph (e) of this section, or
to their authorized agent, within 10 days of:
(1) Receiving the conviction or disqualification information from
another State; or
(2) The date of the conviction, if it occurred in the same State.
(d) Retain on the driver history record all convictions,
disqualifications and other licensing actions for violations for at
least 3 years or longer as required under Sec. 384.231(d).
(e) Only the following users or their authorized agents may receive
the designated information:
(1) States--All information on all driver records.
(2) Secretary of Transportation--All information on all driver
records.
(3) Driver--Only information related to that driver's record.
(4) Motor Carrier or Prospective Motor Carrier--After notification
to a driver, all information related to that driver's, or prospective
driver's, record.

34. Add Sec. 384.226 to read as follows:

Sec. 384.226 Prohibition on masking convictions.

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

35. Revise 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 of this part apply to the State of licensure of the person
affected by the provision. The provisions of Sec. 384.210 of this part
also apply to any State to which a person makes application for a
transfer CDL.
(b) Required action. (1) CDL holders. A State must satisfy the
requirement of this part that the State disqualify a person who holds a
CDL by, at a minimum, suspending, revoking, or canceling the person's
CDL for the applicable period of disqualification.
(2) A person required to have a CDL. A State must satisfy the
requirement of this subpart that the State disqualify a person required
to have a CDL who is convicted of an offense or offenses necessitating
disqualification under Sec. 383.51 of this subchapter. At a minimum,
the State must implement the

[[Page 49763]]

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 License Information System (CDLIS) State
Procedures,'' Version 2.0. (Incorporated by reference, 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 of this part.

36. Revise Sec. 384.301 to read as follows:

Sec. 384.301 Substantial compliance-general requirements

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

37. Revise Sec. 384.307 to read as follows:

Sec. 384.307 FMCSA program reviews of State compliance.

(a) FMCSA Program Reviews. Each State's CDL program will be subject
to review to determine whether or not the State meets the general
requirement for substantial compliance in Sec. 384.301. The State must
cooperate with the review and provide any information requested by the
FMCSA.
(b) Preliminary FMCSA determination and State response. If, after
review, a preliminary determination is made either that the State has
not submitted the required annual self-certification or that the State
does not meet one or more of the minimum standards for substantial
compliance under subpart B of this part, the State will be informed
accordingly.
(c) Reply. The State will have up to 30 calendar days to respond to
the preliminary determination. The State's reply must explain what
corrective action it either has implemented or intends to implement to
correct the deficiencies cited in the notice or, alternatively, why the
FMCSA preliminary determination is incorrect. The State must provide
documentation of corrective action as required by the agency.
Corrective action must be adequate to correct the deficiencies noted in
the program review and be implemented on a schedule mutually agreed
upon by the agency and the State. Upon request by the State, an
informal conference will be provided during this time.
(d) Final FMCSA determination. If, after reviewing a timely
response by the State to the preliminary determination, a final
determination is made that the State is not in compliance with the
affected standard, the State will be notified of the final
determination. In making its final determination, the FMCSA will take
into consideration the corrective action either implemented or planned
to be implemented in accordance with the mutually agreed upon schedule.
(e) State's right to judicial review. Any State aggrieved by an
adverse decision under this section may seek judicial review under 5
U.S.C. Chapter 7.

38. Revise Sec. 384.401 to read as follows:

Sec. 384.401 Withholding of funds based on noncompliance.

(a) Following the first year of noncompliance. A State is subject
to both of the following sanctions:
(1) An amount equal to five percent of the Federal-aid highway
funds required to be apportioned to any State under each of sections
104(b)(1), (b)(3), and (b)(4) of title 23, U.S.C., shall be withheld on
the first day of the fiscal year following such State's first year of
noncompliance under this part.
(2) The Motor Carrier Safety Assistance Program (MCSAP) grant funds
authorized under section 103(b)(1) of the Motor Carrier Safety
Improvement Act of 1999 (Public Law 106-159, 113 Stat. 1754) shall be
withheld from a State on the first day of the fiscal year following the
fiscal year in which the FMCSA determined that the State was not in
substantial compliance with subpart B of this part.
(b) Following second and subsequent year(s) of noncompliance. A
State is subject to both of the following sanctions:
(1) An amount equal to ten percent of the Federal-aid funds
required to be apportioned to any State under each of sections
104(b)(1), (b)(3), and (b)(4) of title 23, U.S.C., shall be withheld on
the first day of the fiscal year following such State's second or
subsequent year of noncompliance under this part.
(2) The Motor Carrier Safety Assistance Program (MCSAP) grant funds
authorized under section 103(b)(1) of the Motor Carrier Safety
Improvement Act of 1999 (Public Law 106-159, 113 Stat. 1753) shall be
withheld from a State on the first day of the fiscal year following the
fiscal year in which the FMCSA determined that the State had not
returned to substantial compliance with subpart B of this part.
39. Revise Sec. 384.403 to read as follows.

Sec. 384.403 Availability of funds withheld for noncompliance.

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

40. Add Sec. 384.405 to read as follows:

Sec. 384.405 Decertification of State CDL program.

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

[[Page 49764]]

program of a State in substantial noncompliance should be decertified:
(1) The State computer system does not check the Commercial
Driver's License Information System (CDLIS) and/or National Driver
Register (NDR) as required by Sec. 383.73 of this subchapter when
processing CDL applicants, drivers transferring a CDL issued by another
State, CDL renewals and/or upgrades.
(2) The State does not disqualify drivers convicted of
disqualifying offenses in commercial motor vehicles.
(3) The State does not transmit convictions for out of State
drivers to the State where the driver is licensed.
(4) The State does not properly administer knowledge and/or skills
tests to CDL applicants or drivers.
(5) The State fails to submit a corrective action plan for a
substantial compliance deficiency or fails to implement a corrective
action plan within the agreed upon time frame.
(c) Standard for considering deficiencies. The deficiencies
described in paragraph (b) of this section must affect a substantial
number of either CDL applicants or drivers.
(d) Decertification: preliminary determination. If the
Administrator finds that a State is in substantial noncompliance with
subpart B of this part, as indicated by the factors specified in
Sec. 384.405(b), among other things, the FMCSA will inform the State
that it has made a preliminary determination of noncompliance and that
the State's CDL program may therefore be decertified. Any response from
the State, including factual or legal arguments or a plan to correct
the noncompliance, must be submitted within 30 calendar days after
receipt of the preliminary determination.
(e) Decertification: final determination. If, after considering all
material submitted by the State in response to the FMCSA preliminary
determination, the Administrator decides that substantial noncompliance
exists which warrants decertification of the CDL program, he or she
will issue a decertification order prohibiting the State from issuing
CDLs until such time as the Administrator determines that the
condition(s) causing the decertification has (have) been corrected.
(f) Recertification of a State. The Governor of the decertified
State or his or her designated representative must submit a
certification and documentation that the condition causing the
decertification has been corrected. If the FMCSA determines that the
condition causing the decertification has been satisfactorily
corrected, the Administrator will issue a recertification order,
including any conditions that must be met in order to begin issuing
CDLs in the State.
(g) State's right to judicial review. Any State aggrieved by an
adverse decision under this section may seek judicial review under 5
U.S.C. Chapter 7.
(h) Validity of previously issued CDLs. A CDL issued by a State
prior to the date the State is prohibited from issuing CDLs in
accordance with provisions of paragraph (a) of this section, will
remain valid until its stated expiration date.

41. Add Sec. 384.407 to read as follows:

Sec. 384.407 Emergency CDL grants.

The FMCSA may provide grants of up to $1,000,000 per State from
funds made available under 49 U.S.C. 31107(a), to assist States whose
CDL programs may fail to meet the compliance requirements of subpart B
of this part, but which are determined by the FMCSA to be making a good
faith effort to comply with these requirements.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

42. The authority citation for part 390 is revised to read as
follows:

Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502,
and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C.
701 note); sec. 217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49
CFR 1.73.

43. Amend 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 Table 1 to Sec. 383.51 or
Sec. 392.5(a)(2) of this subchapter.
* * * * *

Issued on: June 30, 2002.
Joseph M. Clapp,
Administrator.
[FR Doc. 02-18457 Filed 7-30-02; 8:45 am]
BILLING CODE 4910-EX-P