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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
Downgrade, the downgrade requirement, based on the authority of 49 U.S.C. 31305a and 31308, is the minimum action States must take, to avoid having Federal highway funds withheld under 49 U.S.C. 31314, to remove the CLP or CDL privilege from the license of drivers prohibited from operating a CMV due to a drug and alcohol program violation. Consistent with the MAP21 preemption exception in 49 U.S.C. 31306al3, the final rule does not prohibit States from taking an alternative licensing action e.g., suspension, revocation, disqualification to accomplish the removal of the commercial privilege.
The final rule also affords States maximum flexibility to maintain the driving records of individuals who are prohibited from operating a CMV due to a drug and alcohol program violation.
The final rule does not require any State action related to the driving record, other than the requirement that States record the downgrade on the CDLIS
driver record within 60 days of receiving notification of a CLP or CDL
holders prohibited status. States will determine whether the reason for the downgrade or other discretionary licensing action, or the individuals prohibited CMV driving status, is posted on a CMV operators driving record, and for how long the information would remain.

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VI. Discussion of Proposed Rulemaking and Comments A. Proposed Rulemaking On April 28, 2020, FMCSA published in the Federal Register Docket No.
FMCSA20170330, 85 FR 23670 an NPRM titled Controlled Substances and Alcohol Testing: State Drivers Licensing Agency Non-Issuance/
Downgrade of Commercial Drivers License. The NPRM proposed to prohibit SDLAs from issuing, renewing, transferring, or upgrading a CDL or CLP
for any driver banned from operating a CMV under 49 CFR 382.501a nonissuance. Further, the Agency proposed two alternatives addressing how SDLAs would receive and use Clearinghouse information pertaining to CDL or CLP holders licensed in their State who are prohibited from operating a CMV: 1 FMCSAs preferred alternative, a push notification of the drivers prohibited status and the SDLAs mandatory downgrade of the drivers license; or 2 permitting SDLAs the option to receive notification of a drivers prohibited status, with the State determining whether, and how, the information would be used to enforce the driving prohibition. FMCSA also
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proposed several clarifying and conforming changes to current regulations.
B. Comments and Responses FMCSA solicited comments on the NPRM for 60 days, through June 29, 2020. By that date, 32 comments were received from commenters representing 9 individual States CA, IA, IL, MT, NE, NY, OR, TX, and VA, 9 entities, and 14
private citizens. The following entities submitted comments: AAMVA, American Trucking Associations ATA, Driver iQ, Greyhound Lines, Inc.
Greyhound, National Motor Freight Traffic Association NMFTA, National Student Transportation Association NSTA, Owner-Operator Independent Drivers Association OOIDA, Truckload Carriers Association TCA, and the Alliance for Driver Safety & Security Trucking Alliance.
Comments on the NPRM were mixed.
Most commenters, including all States, supported the proposed non-issuance requirement. Most entities, several States, and some individuals supported the proposed mandatory downgrade or other State enforcement action on the drivers license, while other States and AAMVA opposed it. Two commenters suggested alternative approaches to the mandatory downgrade. The majority of commenters addressing FMCSAs second proposed alternative, optional notice to States of a drivers prohibited status, opposed it. Several comments addressed drug and alcohol testing issues outside the scope of the rulemaking. The comments and the Agencys responses, organized by topic, are summarized below.
Non-Issuance The NPRM proposed that States be prohibited from completing specified CDL/CLP transactions if the mandatory SDLA query to the Clearinghouse indicates the applicant is currently subject to the CMV driving prohibition in 49 CFR 382.501a.
Comments: All commenters specifically addressing this proposal, including the nine State commenters, supported it, citing the benefit to public safety. The Commonwealth of Virginia, Department of Motor Vehicles Virginia DMV observed that . . . SDLAs are the only entities that can enforce the driving prohibition through the licensing process. Similarly, the Iowa Department of Transportation Iowa DOT noted that non-issuance would effectively close the DACH regulatory loopholes allowing drivers testing positive to avoid detection, continue holding a valid CDL, and evade the CMV driving prohibition. The Oregon
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Department of Transportation, Driver and Motor Vehicle Services Oregon DOT said that it said that it agrees with FMCSAs interpretation that the intent of MAP21 was to deny issuance when an individual has adverse information in the Clearinghouse . . . . Driver iQ
expressed a similar opinion regarding congressional intent. The ATA
commented that non-issuance is a necessary step to close the loophole in FMCSAs regulations that continues to allow prohibited drivers to operate, while TCA described the proposal as commonsense.
FMCSA Response: The Agency acknowledges the commenters broad support for this provision. We agree that non-issuance is an important next step in achieving MAP21s goal of using Clearinghouse information to improve highway safety. As noted above in Section II. B., FMCSA retains the nonissuance requirements in the final rule, with one clarifying change, addressed below.
Renewal of the H Endorsement Subject to Non-Issuance Comment: The Oregon DOT asked FMCSA to clarify whether a driver renewing a hazardous material endorsement under 49 CFR 383.141 is subject to non-issuance when adverse information is present in the Clearinghouse.
FMCSA Response: Yes. Drivers transporting hazardous materials, as defined in 49 CFR 383.5, are subject to the CDL requirements of part 383 and, therefore, subject to FMCSAs drug and alcohol testing regulations. The hazardous material H endorsement is unique, however, in that it is the only endorsement subject to renewal, as required by 49 CFR 383.141d. The initial issuance of the H endorsement would, therefore, be an upgrade, and the SDLA would query the Clearinghouse in accordance with 49 CFR 383.73e8
prior to issuance. The renewal of the H
endorsement falls within the SDLAs query requirement in 49 CFR
383.73d9. If the driver is prohibited from operating a CMV, the SDLA must not renew the H endorsement, and must comply with the downgrade requirements in 49 CFR 383.73q, as applicable. FMCSA clarifies the regulatory text of 49 CFR 383.73d9
accordingly.
Mandatory Downgrade Alternative 1
Under the Agencys preferred proposed alternative Alternative 1, SDLAs would be required to remove the CLP or CDL privilege from the drivers license after receiving electronic notification from FMCSA by push or
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