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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations Downgrades Based on Incorrect Clearinghouse Information As noted in the NPRM, if violation information reported to the Clearinghouse is subsequently determined to be incorrect, or fails to meet reporting requirements, it may be removed from the Clearinghouse in accordance with 49 CFR 382.717, or DOTs Privacy Act regulations in 49
CFR part 10. FMCSA proposed that, if a drivers license is downgraded as the result of incorrect Clearinghouse information, the SDLA should reinstate the commercial privilege, and update the driving record, as fairly and efficiently as possible following notification from the Agency that the driver is not prohibited from operating a CMV. We requested comment from SDLAs and drivers on whether FMCSA
should include corrective action procedures in the final rule, or whether States should rely on their own processes to address this issue.
Comments: The seven State commenters addressing this question all preferred that the SDLAs rely on existing State procedures to correct errors on an individuals license or driving record, once notified by FMCSA. AAMVA commented that FMCSA should not mandate how the reinstatement should occur since SDLAs have existing correction procedures, but that FMCSA should be the sole party responsible for correcting erroneous information contained in the DACH. . . . The Agency received no driver comments in response to this question.
FMCSA Response: The final rule does not establish specific procedures for States reinstatement of the CDL or CLP
to the drivers license, or correction of the driving record, following FMCSAs notification that a Clearinghouse error occurred. It does, however, require the SDLA to reinstate the commercial privilege, and expunge the driving record, following error correction. As explained in the NPRM, FMCSA is responsible for ensuring the accuracy of information in a drivers Clearinghouse record, and for informing the SDLA
when an error affecting a drivers licensing status is discovered.
Accordingly, the Agency will promptly notify the SDLA that the drivers prohibited status, previously reported to the SDLA, was based on erroneous Clearinghouse information, and the driver is not prohibited from operating a CMV. If the State has completed the downgrade or other discretionary licensing action at that point, it must expeditiously reinstate the commercial privilege to the drivers license, and
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correct the driving record,21 in accordance with established State procedures. FMCSA believes these requirements will mitigate, to the extent possible, the impact of State licensing actions on drivers based on erroneous Clearinghouse information.
The Agency notes that reinstatement following error correction is distinct from the regular reinstatement process proposed in the NPRM. In that scenario, the drivers drug and alcohol program violation is reported to the Clearinghouse; the SDLA initiates a downgrade of the drivers license following notification from FMCSA of the drivers prohibited status; and, following the drivers completion of RTD requirements, the SDLA receives notification that the driver is no longer prohibited from operating a CMV. At that point, the driver would be eligible for reinstatement of the CLP or CDL, as permitted by State law. The final rule retains this reinstatement provision, essentially as proposed 49 CFR
383.73q2.
Optional Notice of Prohibited Status Alternative 2
This proposed alternative would permit, but not require, SDLAs to receive push notifications of a drivers prohibited status. States would determine whether, and how, to use the information to improve compliance with the CMV driving prohibition.
Comments: AAMVA and the MDOJ
MVD preferred this alternative over the mandatory downgrade, citing the flexibility it affords to States. Other commenters expressed concern about the lack of uniformity inherent in this approach. The Iowa DOT opposed the adoption of Alternative 2, stating that it will create inconsistent consequences for a drivers drug and alcohol program violation, and therefore, create confusion and complaints among drivers and carriers.
Driver iQ said that this approach would allow States to abdicate their responsibility for highway safety by ignoring risk and/or failing to act. The NMFTA noted that Alternative 2
would result in a complicated and confused regulatory framework in which drivers and carriers operating in states with less stringent CDL and CLP
checks would have a competitive advantage over others operating under stricter rulesets.
FMCSA Response: The Agency agrees with commenters noting the drawbacks 21 In this context, the term driving record includes the CDLIS driver record, as defined in 49 CFR
383.5, and the Motor vehicle record, as defined in 49 CFR 390.5, if applicable.

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of the State-by-State approach envisioned under Alternative 2. As discussed above, the final rule does not adopt this alternative.
Inclusion of CLP Holders in State Query The proposed inclusion of CLP
holders in the States mandatory query was intended to correct an oversight in the Clearinghouse final rule, as the query requirement is currently limited to CDL holders.
Comments: AAMVA noted that until an applicant is issued a CLP, they would not have a corresponding record in the DACH, making this process irrelevant in some cases.
FMCSA Response: The Agency acknowledges that CLP applicants who have no prior commercial license history will not have a Clearinghouse record. However, the query is necessary because some CLP applicants may have previously held a CLP or CDL issued by another State. The final rule requires, as proposed, that States query the Clearinghouse prior to issuing, renewing, or upgrading a CLP.
Addition of CMV Driving Prohibition to 49 CFR Part 392
FMCSA proposed to add the prohibition, set forth in 49 CFR
382.501a, to part 392, to further assist the States enforcement of the prohibition in connection with CMV
traffic stops, inspections, and other roadside interventions.
Comments: Driver iQ supported this proposal, noting that all state law enforcement should be authorized to hold drivers accountable at roadside.
AAMVA asked for confirmation that the FMCSA views the new prohibition incorporated into 392.15 as a disqualification for purposes of performing a CDLIS record check as required by 384.205.
FMCSA Response: As explained in the NPRM, the purpose of adding the prohibition to part 392 is to assist in the States roadside enforcement during the period in which a driver, who is prohibited, nevertheless holds a valid CLP or CDL because the commercial privilege has not yet been removed from the drivers license. The provision is therefore adopted as proposed. This provision does not render the prohibited driver disqualified for purposes of the CDLIS check required in 49 CFR
384.205. In the NPRM, FMCSA noted that, if the SDLA pulled driverspecific information from the Clearinghouse using the existing CDLIS
platform, the drivers status would be provided as part of the CDLIS check already required under 49 CFR 384.205.
The point was merely that using the
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