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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations the topic heading, Actual Knowledge Violations Based on Issuance of Citation for DUI in a CMV. FMCSA notes that, after the employer reports the actual knowledge violation to the Clearinghouse, the SDLA will receive notice only of the drivers prohibited status, and will not be aware of the drivers specific drug or alcohol violation i.e., positive test result, test refusal, or the employers actual knowledge of prohibited use of drugs or alcohol. The downgrade is therefore triggered by the actual knowledge violation reported to the Clearinghouse by the employer, rather than the DUI
citation itself.
FMCSA notes, however, that drivers prohibited from operating a CMV under 49 CFR 382.501a face separate, and more severe, consequences if they are ultimately convicted of DUI in a CMV.
If a driver is convicted of that offense, he/she would be disqualified from operating a CMV for a minimum of 1
year, in accordance with 49 CFR
383.51b1 or 2.
Necessity of Downgrade
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Comments: The Montana Department of Justice, Motor Vehicle Division MDOJMVD commented that the downgrade is unnecessary since a drivers prohibited operating status is accessible to roadside enforcement officers through Nlets.15 Similarly, the Iowa DOT noted that roadside detection of the drivers prohibited status through the CDLIS Central Site would preclude the need for SDLA
involvement. AAMVA commented that, instead of a downgrade, direct law enforcement access to DACH data could more appropriately accomplish the goal of enforcing against prohibited drivers.
The Oregon DOT believed that CDLIS is not an appropriate location to attempt to represent adverse Clearinghouse data, and suggested that FMCSA may instead wish to provide for enhanced capabilities for law enforcement to view an individuals status in the Clearinghouse during roadside stops.
FMCSA Response: A license downgrade and roadside access to a drivers prohibited status are not mutually exclusive; each provides a separate basis for enforcement intervention. As explained in the NPRM
85 FR 23670, 23682 and above in 15 Nlets, formerly the National Law Enforcement Telecommunications System, is now operating as the Nlets-International Justice and Public Safety Network. Its mission is to facilitate the electronic exchange of public-safety information, including motor vehicle and drivers data, among State law enforcement agencies, Federal agencies with a justice component, and other strategic partners serving the law enforcement community.

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Section II. B., MCSAP officers roadside access to the drivers prohibited status determined before the downgrade takes effect and the CLP/CDL is still valid, will enable enforcement of the driving prohibition under 49 CFR 392.15.
However, some non-MCSAP State and local traffic safety officers would be unaware of the drivers prohibited status during the period before the downgrade is completed because, unlike MCSAP
personnel, they lack reliable roadside access to FMCSAs enforcement data through cdlis.dot.gov or Query Central the drivers DACH status is not currently accessible through Nlets. The downgrade of a CMV drivers license will allow these State and local traffic safety officers to determine the driver is not legally authorized to operate a CMV
by conducting a routine license check.
If the SDLA has completed the downgrade at the time the check is conducted, the officer will know the driver does not hold a valid CLP or CDL, thereby providing a basis for enforcement action in accordance with 49 CFR 391.11b5. In the absence of a license downgrade, some of these officers would be unaware of the drivers prohibited status because, unlike MCSAP personnel, they lack reliable roadside access to FMCSAs enforcement data through cdlis.dot.gov.
Non-MCSAP officers will, however, be able to detect prohibited drivers by conducting a routine license check, if the SDLA has completed the downgrade at the time the check is conducted. The downgrade will therefore strengthen roadside enforcement of the CMV
driving prohibition by allowing all traffic safety personnel to be aware that the prohibited driver is not licensed to operate a CMV. Further, the downgrade, by increasing the consequences of noncompliance for CMV drivers, provides an incentive for drivers to complete RTD to restore their commercial driving privileges. The Agency believes it may also deter the prohibited use of drugs and alcohol.
FMCSAs Legal Authority/Congressional Intent Comments: The MDOJMVD
questioned whether federal law authorizes FMCSA to regulate SDLAs to downgrade CLP/CDL outside of issuance transactions. AAMVA
maintained that congressional intent underlying the State-specific Clearinghouse statutory requirements is less clear than FMCSA concludes.
AAMVA further asserted that, contrary to FMCSAs proposal in this NPRM, there is no legal basis for a state to downgrade, not issue, or otherwise take a state licensing action for a driver
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refusal or failure of a drug or alcohol test.
FMCSA Response: The Agencys legal authority to issue the final rule is explained above in Section IV., Legal Basis for the Rulemaking and was set forth in the Legal Basis section of the NPRM. As noted therein, in addition to MAP21, FMCSA relies on the concurrent statutory authority of 49
U.S.C. chapter 313, which establishes the Agencys jurisdiction to set minimum standards for the issuance of CLPs and CDLs and the fitness of CMV
operators. As discussed in Section V.A., FMCSA relies on the authority of 49
U.S.C. 31308 and 31305a to adopt the downgrade requirement in this final rule. The Agency notes that the downgrade requirement is also consistent with the MAP21
requirements in 49 U.S.C. 31311a24
and 49 U.S.C. 31306ah2.
Suggested Alternatives to Proposed Mandatory Downgrade Comments: In lieu of a downgrade, an individual commenter suggested that SDLAs issue a temporary CDL, valid for 3060 days, which would provide time for drivers to resolve the issue while still driving legally; the fact that it is a temporary CDL and the reason why would be shown on their MVR. The Iowa DOT said that a better way to ensure effective enforcement of the driving prohibition would be the adoption of uniform standards for disqualification when a CLP or CDL
holder has a certain number or severity of violations under the drug and alcohol program, for example, a certain number of positive test results within an established time frame results in a 30day disqualification. AAMVA stated that FMCSA must make a determination on whether the driver is disqualified and notify the licensing authority accordingly.
FMCSA Response: As noted above, the CMV driving prohibition in 49 CFR
382.501a takes effect at the time the driver engages in conduct violating FMCSAs drug and alcohol program.
The issuance of a temporary CDL
allowing the driver to operate after a violation occurs would be contrary to the prohibition and poses an obvious risk to public safety. As explained in the NPRM, CLP and CDL holders subject to the downgrade are not disqualified under 49 CFR part 383.16 Each of the driver disqualifications required under part 383 is specifically set forth in statute 49 U.S.C. 31310. Driver disqualifications under 49 CFR 383.51
require that the individual be convicted 16 85

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FR 23670, 23678.

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