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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
IV. Legal Basis for the Rulemaking Title 49 of the Code of Federal Regulations CFR, sections 1.87e and f, delegates authority to the FMCSA
Administrator to carry out the functions vested in the Secretary of Transportation the Secretary by 49
U.S.C. chapter 313 and 49 U.S.C.
chapter 311, subchapters I and III, relating to CMV programs and safety regulations.
MAP21 identified the remedial purposes of the Clearinghouse as twofold: To improve compliance with the drug and alcohol program applicable to CMV operators and to improve roadway safety by reducing accident and injuries involving the misuse of alcohol or use of controlled substances by CMV operators 49 U.S.C.
31306aa2. As noted above, MAP21
requires that the Secretary establish a national clearinghouse for records relating to alcohol and controlled substances testing by CMV operators who hold CDLs. The Agency implemented that requirement in the Commercial Drivers License Drug and Alcohol Clearinghouse final rule 81
FR 87686 Dec. 5, 2016. MAP21 also requires that the Secretary establish a process by which the States can request and receive an individuals Clearinghouse record, for the purpose of assessing and evaluating the qualifications of the individual to operate a commercial motor vehicle 49 U.S.C. 31306ah2. MAP21 49
U.S.C. 31311a24 requires that States request information from the Clearinghouse before renewing or issuing a CDL to an individual to avoid having Federal highway funds withheld under 49 U.S.C. 31314. This final rule establishes the processes by which SDLAs will access DACH information to determine whether the driver has the qualifications to operate a CMV.
Drivers prohibited from operating a CMV under 49 CFR 382.501a are not so qualified.
The rule is also based on FMCSAs broad authority in 49 U.S.C. chapter 313, provisions originally enacted as part of the Commercial Motor Vehicle Safety Act of 1986 1986 Act. Section 31308 requires the Secretary, through regulation, to establish minimum standards for the issuance of CLPs and CDLs by the States. The final rule requires that States must not issue a CLP
or CDL to an individual prohibited, under 49 CFR 382.501a, from operating a CMV due to a drug and alcohol program violation. Pursuant to this same authority, the rule also establishes standards for the States removal of the CLP or CDL privilege
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from the drivers license of such individuals, as well as subsequent reinstatement of the commercial privilege.
Section 31305a requires the Secretary to establish minimum standards for, among other things, ensuring the fitness of an individual operating a commercial motor vehicle.
In order to avoid having Federal highway funds withheld under 49
U.S.C. 31314, section 31311a1
requires States to adopt and carry out a program for testing and ensuring the fitness of individuals to operate CMVs consistent with the minimum standards imposed by the Secretary under 49
U.S.C. 31305a.
The final rule will help ensure the fitness of CMV operators by requiring that States must not issue, renew, transfer, or upgrade a CDL, or issue, renew, or upgrade a CLP, for any driver prohibited from operating a CMV due to a drug and alcohol program violation.
Driver fitness is further ensured by the final rules requirement that States remove the CLP or CDL privilege from the drivers licenses of individuals who violate the Agencys drug and alcohol program requirements, until those drivers complete the RTD requirements established by 49 CFR part 40, subpart O.
The Departments drug and alcohol use and testing regulations are authorized by 49 U.S.C. 31306
originally enacted as part of the Omnibus Transportation Employee Testing Act of 1991. Among other things, 49 U.S.C. 31306f authorizes the Secretary to determine appropriate sanctions for a commercial motor vehicle operator who is found, based on tests conducted and confirmed under this section, to have used alcohol or a controlled substance in violation of applicable use testing requirements i.e., 49 CFR parts 40 and 382. As explained elsewhere in this preamble, FMCSA
believes that non-issuance, as well as the mandatory downgrade, are appropriate sanctions that will improve compliance with existing drug and alcohol program requirements.
This final rule also relies on the authority of 49 U.S.C. chapter 311, subchapter III provisions originally enacted as part of the Motor Carrier Safety Act of 1984, which provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment.
Section 31136a requires the Secretary to prescribe safety standards for CMVs which, at a minimum, shall ensure that:
1 CMVs are maintained, equipped, loaded, and operated safely; 2 the responsibilities imposed on CMV
operators do not impair their ability to
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operate the vehicles safely; 3 the physical condition of the CMV operators is adequate to enable them to operate vehicles safely; 4 CMV operation does not have a deleterious effect on the physical condition of the operators; and 5 CMV drivers are not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a CMV in violation of the regulations promulgated under 49 U.S.C. 31136 or 49 U.S.C. chapters 51 or 313 49 U.S.C.
31136a.
The final rule will help ensure that CMVs are operated safely, as mandated by section 31136a1, and that the physical condition of CMV
operators is adequate to enable their safe operation, as required by section 31136a3. The requirement that States enforce the CMV driving prohibition on individuals who engage in prohibited use of drugs or alcohol will promote the safe operation of CMVs. Specifically, it will improve compliance with current regulatory requirements set forth in 49
CFR 382.501a and 382.503, which prohibit a CLP or CDL holder from operating a CMV, or performing other safety-sensitive functions, after engaging in prohibited use of drugs or alcohol, until the driver has completed the RTD
requirements established by 49 CFR part 40, subpart O. The final rule does not directly address the operational responsibilities imposed on CMV
drivers section 31136a2 or possible physical effects caused by driving section 31136a4. FMCSA has no reason to believe that the final rule will result in the coercion of CMV drivers by motor carriers, shippers, receivers, or transportation intermediaries section 31136a5, as the rule primarily concerns the transmission of Clearinghouse information between FMCSA and the States, and the use of that information by the SDLAs and State-based traffic safety enforcement personnel. The Agency notes, however, that the 2016 Clearinghouse final rule prohibits employers from submitting false violation reports to the Clearinghouse, or from using Clearinghouse information for any purpose other than determining whether a driver is prohibited from operating a CMV, which could have coercive effects on drivers.8
Before prescribing regulations, FMCSA must consider their costs and benefits and State laws and regulations on commercial motor vehicle safety, to minimize their unnecessary preemption section 31136c2. Those factors are addressed elsewhere in this preamble.
8 See
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49 CFR 382.705e, 382.723.

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