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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
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his or her license is subject to downgrade. The Agency also acknowledges that 30 days would not provide some SDLAs enough time to accommodate applicable due process requirements. FMCSA, therefore, extends the time frame for completing the downgrade from 30 days, as proposed, to 60 days, in this final rule.
FMCSA notes the 60-day time window aligns with current medical certification downgrade requirements in 49 CFR
383.73o4. The Agency acknowledges the concern that extending the period beyond 30 days could negatively impact safety. In response, FMCSA notes that SDLAs may complete and record the downgrade sooner than 60 days, if their State processes allow. FMCSA
encourages SDLAs to complete the downgrade as soon as possible, as permitted by State law.
FMCSA does not agree with the suggestion to withhold notification to SDLAs of the drivers prohibited status for up to 30 days, to allow States to avoid downgrade-related administrative costs for drivers who timely complete RTD. The Agency emphasizes that CMV
drivers who engage in the prohibited use of drugs or alcohol pose an immediate risk to public safety, and it would be irresponsible for FMCSA to withhold that information from SDLAs.
As noted in the NPRM, the prohibition in 49 CFR 382.501a takes effect as soon as the drug and alcohol program violation occurs. Moreover, FMCSAs estimate that 82 percent of drivers completing RTD will do so within 30
days, as set forth in the NPRM, must be viewed in context. The NPRM, citing the Regulatory Impact Analysis RIA of the 2016 Clearinghouse final rule, also estimated that 45 percent of drivers who test positive elect to consult with an SAP and begin the RTD process.14 The remaining 55 percent presumably leave the industry, voluntarily give up their CDL to drive CMVs not requiring a commercial license, or continue to operate in violation of the driving prohibition. Given that the majority of drivers who test positive do not complete RTD, FMCSAs withholding notice of prohibited status from SDLAs, for any length of time, would be contrary to public safety. The Agencys estimate of the number of drivers who will complete RTD is discussed further 14 The NPRM cited the 2016 Clearinghouse final rule RIAs estimate that 53,500 drivers would test positive and be required to complete RTD before resuming safety-sensitive functions, including operating a CMV. Of these, 24,000 drivers 45
percent would complete RTD. See 85 FR 23670, 23688.

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below, in Section XI., Regulatory Analyses.
Procedural/Due Process Concerns Comments: The Nebraska DMV
commented that downgrading the license outside the issuance process, which would be the result of FMCSAs request, raises procedural questions. Specifically, Nebraska DMV
asked: . . . who the driver is supposed contact with questions; Who sends the driver the downgrade letter? How will we know when the drivers issue is resolved with FMCSA? If FMCSA sends the letter, but the SDLA is responsible for the CDLIS record, what happens if FMCSA doesnt send the letter in a timely manner or at all? AAMVA asked whether the surrender of a CLP or CDL
would be required as part of the proposed downgrade. The Virginia DMV, though supporting the downgrade, expressed concern with conducting hearings for individuals contesting the downgrade of their credential. The Virginia DMV noted that it would have no evidence to justify the downgrade other than the notification based on the report of an employer received from the Clearinghouse.
FMCSA Response: As discussed above, State laws determine whether the SDLA must notify a driver of the impending downgrade, and, if so, how and when that would be accomplished.
Drivers with questions about their specific licensing status, including how they can reinstate the CLP or CDL if a downgrade occurs, will need to contact the SDLA that issued the license.
Drivers with questions about their Clearinghouse record, the impact of a violation on their CMV operating status, or what the Federal regulations require the SDLAs to do once notified of a drivers prohibited status, may contact FMCSA through the Clearinghouse website https clearinghouse.
fmcsa.dot.gov/. As explained in the NPRM, State downgrade processes will be initiated when FMCSA notifies the SDLA, through CDLIS or other electronic means, of a drivers prohibited status. The Agency will also notify the SDLA when the driver, having complied with RTD
requirements, is no longer prohibited from operating a CMV. FMCSAs first notification to the SDLA will occur when a drivers employer, or the employers service agent i.e., medical review officer, consortium/third party administrator, reports a violation to the Clearinghouse. The second notice will occur when a drivers negative RTD test result is reported to the Clearinghouse.

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The final rule retains these notification requirements, as proposed.
As noted in the NPRM, FMCSA, when notifying drivers of a reported violation, as required by 49 CFR 382.707a, intends to also let drivers know their SDLA has been informed of their prohibited status, and is required to initiate a downgrade of their license. If the driver is registered in the Clearinghouse, FMCSA will notify the driver via email; otherwise, drivers will receive notification by U.S. mail. The purpose of this notice is simply to further clarify the process for drivers and let them know what to expect. In response to AAMVAs question about surrender of the CLP or CDL, the Agency notes that States will rely on their established procedures to remove the CLP or CDL privilege from the drivers license. Whether a physical surrender of the credential is required as part of that process will, therefore, be determined by the State.
In response to the Virginia DMVs comment, the Agency notes that each State maintains its own due process requirements. It is, therefore, entirely within the States discretion to determine whether CMV drivers may contest a downgrade or other pending license action. The evidentiary standards and burden of proof applicable in such proceedings would be determined on a State-by-State basis.
Downgrade for Issuance of Citation for DUI
Comment: The Iowa DOT opposed Alternative 1 because it would require us to initiate a commercial downgrade after receiving an OWI and prior to receiving an OWI conviction, which would create confusion and cause delays to existing processes. In Iowa, operating while intoxicated, or OWI, is the equivalent of DUI. The Iowa DOT takes action only when the driver refuses or fails an OWI test, or is criminally convicted of OWI. In that situation, the Iowa DOT revokes a persons base driving privilege, which thereby disqualifies their commercial driving privileges.
FMCSA Response: Currently, if a motor carrier employer knows that a driver it employs has received a citation for DUI in a CMV, the employer has actual knowledge of the employees prohibited use of drugs or alcohol, as defined in 49 CFR 382.107. The employers report of actual knowledge of prohibited use actual knowledge violation, based on the issuance of a citation for DUI in a CMV, must be reported to the Clearinghouse, as required by 49 CFR 382.705b4. This issue is discussed further below under
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