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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations V. Background The NPRM addressed the MAP21
mandates underlying the 2016
Clearinghouse final rule identified above, the MAP21 provisions addressing the preemption of State laws, the Agencys interpretation of those provisions, and the AAMVA petition for reconsideration of the 2016 final rule see 85 FR 23670, 2367523677, 23679
Apr. 28, 2020. The elements of that discussion most relevant to this final rule are summarized below.

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A. Purpose and Intent of State-Related Clearinghouse Requirements Though the CDL program was established by Federal statute the 1986
Act and is governed in part by Federal regulations 49 CFR parts 383 and 384, the authority to issue and remove CDLs and CLPs resides solely in the States. As explained in the NPRM, FMCSA
considers the separate MAP21
provisions requiring that 1 States request information from the Clearinghouse before renewing or issuing a CDL to an individual 49
U.S.C. 31311a24; and 2 the Secretary establish a process enabling State licensing authorities to access the Clearinghouse to determine whether an individual applying for a CDL is qualified to operate a CMV 49 U.S.C.
31306ah2Bii, as two parts of an integrated whole.9 Both provisions implicitly recognize that only SDLAs may act on commercial licenses.10
FMCSA acknowledges that neither of these State-specific statutory provisions requires that States restrict the issuance of commercial licenses or endorsements of CMV operators subject to the driving prohibition in 49 CFR 382.501a, or that States downgrade the CDLs of drivers subject to the prohibition. However, in promulgating this final rule, FMCSA
does not view the two State-related MAP21 provisions in a vacuum. The stated goals of the Clearinghouse are to 9 This interpretation clarifies the Agencys views expressed in the 2016 Clearinghouse final rule. See 81 FR 87686, 87708 Dec. 5, 2016. In discussing the two statutory provisions, both of which contemplate that SDLAs would have access to Clearinghouse information, FMCSA characterized section 31311a24 as requiring access and 31306ah2 as permitting such access, viewing the separate requirements as inconsistent. In the Clearinghouse final rule, FMCSA ultimately required States to access the Clearinghouse prior to issuing CDLs. As noted above, in this final rule, FMCSA views the two provisions as part of a unified statutory scheme.
10 The term Chief Commercial Drivers Licensing Official is defined as the official in a State who is authorized to A maintain a record about commercial drivers licenses issued by the State;
and B take action on commercial drivers licenses issued by the State 49 U.S.C. 31306am2
emphasis supplied.

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increase compliance with existing DOTregulated drug and alcohol program requirements and to improve highway safety by reducing crashes and injuries caused by the misuse of drugs or alcohol by CMV drivers 49 U.S.C. 31306aa2.
And MAP21 authorizes SDLAs to access Clearinghouse information and requires SDLAs to request information from the Clearinghouse before renewing or issuing a CDL to an individual. With this framework in mind, and given the fact that commercial licensing authority is vested exclusively in the States, FMCSA relies on 49 U.S.C. 31306a and 31311a24, as well as FMCSAs authority under 49 U.S.C. 31305a and 31308, to require that States use their licensing authority to help ensure compliance with the CMV driving prohibition. This final rule thus achieves the broad remedial purpose of MAP21, i.e., the reduction of risk to public safety caused by CMV operators who are prohibited from driving due to drug and alcohol program violations but continue to be commercially licensed.
B. AAMVAs Petition for Reconsideration Following FMCSAs publication of the 2016 Clearinghouse final rule, AAMVA, asserting that the authority for taking action based on federal clearinghouse records should remain solely with the employer and FMCSA, 11 requested that FMCSA
remove SDLAs from the scope of the rule. In response, the Agency explained that, because MAP21 requires the States to access Clearinghouse information in order to avoid a loss of funds apportioned from the Highway Trust Fund 49 U.S.C. 31311a24, MAP21 did not vest in FMCSA the discretion to remove the States from the Clearinghouse process.12 Further, the Agency does not have authority to issue or remove CDLs, which is exclusively a State function.
In its petition, AAMVA also identified questions and concerns related to the States role in the Clearinghouse, which were not addressed in the 2016 final rule. These included: What specific information would States receive about 11 See AAMVA Petition for Reconsideration of the Commercial Drivers License Drug and Alcohol Clearinghouse Final Rule June 29, 2017, Docket No. FMCSA20110031. AAMVA petitioned for reconsideration of the Clearinghouse final rule but did not submit the petition within 30 days after publication of the rule in the Federal Register, as required by 49 CFR 389.35a. Therefore, in accordance with 49 CFR 389.35a, the Agency considers AAMVAs submission to be a petition for rulemaking submitted under 49 CFR 389.31.
12 See Letter from Raymond Martinez FMCSA to Anne Ferro AAMVA Apr. 12, 2018, p. 2, Docket No. FMCSA20110031.

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an individual CDL holder or applicant;
how would States be expected to use information they receive from the Clearinghouse; how would the privacy of driver-specific Clearinghouse information transmitted to the States be protected; how would erroneous Clearinghouse information be corrected;
to what extent would foreign-licensed drivers be included in the query and reporting process; and what would be the cost implications for the SDLAs.
FMCSA agreed that AAMVA raised legitimate issues regarding the States use of driver-specific Clearinghouse information and granted AAMVAs request for regulatory clarification. This final rule addresses the issues identified by AAMVA.
C. Impact of MAP21 on State Laws MAP21 expressly preempts State laws and regulations that are inconsistent with the Clearinghouse regulations, including State-based requirements for the reporting of violations of valid positive results from alcohol screening tests and drug tests, as well as alcohol and drug test refusals and other violations of part 382, subpart B 49 U.S.C. 31306al1 and 2. The Agency interprets 49 U.S.C. 31306al1
and 2 to mean that State-based reporting requirements inconsistent with the reporting requirements in 49
CFR 382.705 are preempted. As noted in the NPRM, as of 2018, at least eight States required that, for testing conducted in accordance with 49 CFR
part 382 or part 40, CDL holders positive test results and/or test refusals be reported to the SDLA. States uncertain about whether their reporting requirements are inconsistent with preemption provisions set forth in 49
U.S.C. 31306al1 and 2 may request an advisory opinion from the Agency.
MAP21 specifically excepts from preemption State requirements relating to an action taken with respect to a commercial motor vehicle operators commercial drivers license or driving record due to violations of FMCSAs drug and alcohol program requirements 49 U.S.C. 31306al3. FMCSA is aware, for example, that at least three States currently disqualify CDL holders who test positive or refuse a drug or alcohol test regulated under 49 CFR part 382 or part 40, from operating a CMV
until completing RTD requirements.
Based on its interpretation of 49 U.S.C.
31306al3, the Agency believes that State-based requirements such as these likely fall within the scope of the statutory exception because they relate to an action taken on a CDL.
As discussed further below, in Section VI. B., Meaning of the Term CDL

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