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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations pull that the individual is prohibited from operating a CMV. Upon receiving notification, SDLAs would initiate State downgrade procedures, and must complete and record the downgrade on the CDLIS driver record within 30 days of receiving such notice.
Comments Supporting Alternative 1:
Eight of the nine entities commenting on the NPRM supported the downgrade or some other form of mandatory State action on the drivers license, as did several States and individuals. The New York State Department of Motor Vehicles NYSDMV said that, under this alternative, a uniform nationwide system will improve safety and consistency. Greyhound also noted the benefit of a uniform approach, stating that as a nationwide carrier, Greyhound needs this uniformity. The Virginia DMV, though concerned about FMCSAs ability to efficiently implement the electronic notification process, nevertheless supported this alternative, stating that downgrading a credential allows for more avenues of enforcement that will ultimately take unsafe drivers off the road. The State of Nebraska Department of Motor Vehicles Nebraska DMV supported the downgrade at the time of issuance i.e., renewal, upgrade, adding/removing restrictions or transferring from another state, but not otherwise, due to complexities associated with downgrading the license outside of the issuance process. The State of Texas Department of Public Safety DPS, citing safety concerns posed by prohibited drivers, said that it favored State action on the drivers license, but would prefer an enforcement action, such as revoking, suspending, or disqualifying the CDL, over a license downgrade. The NSTA expressed a similar preference. Note: State-based enforcement actions on the drivers license are discussed separately below, under the topic, Meaning of the Term CDL Downgrade. Driver iQ said that, under Alternative 1, the carrier is far more likely to become aware of this downgrade either through established employer notification systems, the required annual motor vehicle record review required under 49 CFR 391.25a, or via a roadside inspection, and remove the driver from the safety sensitive function. The NMFTA noted that, in addition to the safety benefits of Alternative 1, it would also reduce motor carriers exposure to liability. An individual said the downgrade will give CMV drivers more incentive to not do drugs or drink and drive. The ATA observed that failing to require the downgrade would allow some states to
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ignore readily available safety information, while requiring the downgrade would provide a level of assurance to motor carriers and the motoring public that individuals who maintain a valid CLP/CDL are both safe and qualified. OOIDA recognized that Alternative 1 would ensure that drivers with legitimate drug and alcohol violations are not able to operate CMVs until they have satisfied return-to-duty protocols.
FMCSA Response: The Agency agrees with comments recognizing the safety benefits of the proposed mandatory downgrade. As explained in the NPRM, FMCSA prefers this alternative because it uses driver-specific Clearinghouse information to increase compliance with the CMV driving prohibition, consistent with the purpose of MAP21, as set forth in 49 U.S.C. 31306aa2A and B. The downgrade requirement, retained in the final rule, will accomplish this objective in a uniform and effective way by ensuring that CMV
drivers subject to the prohibition in 49
CFR 382.501a do not hold a valid CLP
or CDL.
Comments Opposing Alternative 1:
The States of CA, IA, IL, MT, and OR
opposed the mandatory downgrade, as did AAMVA and several individual commenters. As noted above, Nebraska DMV believed that the downgrade should be required only during the CLP/
CDL issuance process. Commenters based their opposition on various implementation and policy concerns, which are addressed separately by topic, below.
Proposed 30-Day Time Window for Completing the Downgrade In the NPRM, FMCSA asked whether the proposed 30-day timeline for completing the downgrade allowed SDLAs sufficient time to comply with State-based procedural due process requirements. FMCSA noted its intention, when notifying drivers that a violation has been reported to the Clearinghouse, to also inform them that their State of licensure has been notified and must downgrade the drivers license within 30 days. FMCSA asked whether its notification of drivers would satisfy existing State-based notice requirements, thereby relieving States of this administrative burden.
Comments: Most SDLAs confirmed that, even if FMCSA notified the driver of an impending downgrade, they would still be required to notify the driver directly, as required by State law.
Two State commenters noted the proposed 30-day time frame would not allow sufficient time for the SDLA to comply with these requirements, which
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include notifying the driver of the pending license action e.g., downgrade and, in some cases, providing opportunity for an administrative hearing prior to completing the action.
One State said the time period should be consistent with the medical certification downgrade process, which allows the State 60 days to downgrade the license and update the CDLIS driver record. ATA and NMFTA commented that 30 days is sufficient and expressed concern that extending the time frame beyond 30 days would adversely impact highway safety.
Other commenters were concerned that drivers would complete RTD well within the 30-day window, rendering the downgrade procedures meaningless.
The Office of the Illinois Secretary of State Illinois said that we do not feel downgrading the driver is the best action because they may be cleared to return to service by the time the downgrade is completed. AAMVA and several State commenters suggested that FMCSA withhold the push notification to the SDLA for 30 days, which would give drivers an opportunity to avert a licensing action by quickly completing RTD, and would allow SDLAs to avoid the administrative burden of providing procedural due process for such drivers.
In support of this approach, commenters pointed to FMCSAs estimate, discussed in the NPRM, that 82 percent of drivers choosing to complete the RTD process would do so before the SDLA records the downgrade.13 The Iowa DOT noted that, based on FMCSAs estimate, some individuals could conceivably complete RTD before receiving the initial downgrade notice from the SDLA, resulting in confusion for drivers, and the SDLAs need to hire additional staff to address drivers questions. The Oregon DOT commented that a waiting period of 15 to 30 days before FMCSA
notifies the SDLA of a drivers status would remove the burden on States to notify individuals who go on to resolve their 382.501a CMV driving prohibition within the waiting period.
FMCSA response: FMCSA accepts the SDLAs explanation that they must abide by the driver notification requirements in their respective States, even if FMCSA notifies the driver that 13 See 85 FR 23670, 23688. As discussed in the NPRM, this estimate is based on: 1 The assumption, as stated in the Regulatory Impact Analysis for the Clearinghouse final rule, that 75
percent of drivers violating FMCSAs drug and alcohol program would be referred to a 16-hour education program that can be completed well within 30 days; and 2 a 2018 report, issued by HHS Substance Abuse and Mental Health Services Administration, indicating that 82 percent of individuals receiving substance abuse treatment participated in outpatient education programs.

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