[Federal Register Volume 68, Number 19 (Wednesday, January 29, 2003)]
[Rules and Regulations]
[Pages 4394-4397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2053]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 383

[Docket Nos. FMCSA-2001-9709 and FMCSA-00-7382]
RINs 2126-AA60 and 2126-AA55


Commercial Driver's License Standards, Requirements, and 
Penalties; Commercial Driver's License Program Improvements and 
Noncommercial Motor Vehicle Violations

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: The FMCSA amends its Commercial Driver's License (CDL) rules 
concerning disqualification of drivers to make a technical correction 
in response to a petition for reconsideration filed by the 
International Brotherhood of Teamsters, the Transport Workers Union of 
America, the Transportation Trades Department of the AFL-CIO, and the 
Amalgamated Transit Union (collectively, ``the Petitioners''). The 
technical correction provides that disqualifications for offenses 
committed by a CDL holder while operating a non-commercial motor 
vehicle (non-CMV) would be applicable only if the conviction for such 
offenses results in the revocation, cancellation, or suspension of the 
CDL holder's license or non-CMV driving privileges. The agency denies 
the Petitioners' request to: shorten the disqualification periods 
driving a non-CMV while under the influence of controlled substances or 
alcohol; and establish a means to disqualify foreign drivers for 
offenses committed in a non-CMV in the country of domicile. The FMCSA 
believes these issues were adequately explained in the July 31, 2002, 
final rule concerning the CDL program, and that the petitioners have 
not presented any new information that would warrant reconsideration of 
the agency's decisions.

DATES: The effective date of this final rule is January 29, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Redmond, Office of Safety 
Programs, (202) 366-9579, Federal Motor Carrier Safety Administration, 
U.S. Department of Transportation, 400 Seventh Street, SW., Washington, 
DC 20590. Office hours are from 8:30 a.m. to 5 p.m., e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Background

    Section 201(b) of the Motor Carrier Safety Improvement Act of 1999 
(MCSIA) (Pub. L. 106-159, 113 Stat. 1759) requires that the FMCSA issue 
regulations providing for the disqualification of CDL holders who are 
convicted of a serious offense involving a non-CMV that results in the 
revocation, cancellation, or suspension of the person's driver's 
license, or a drug or alcohol related offense involving a non-CMV. The 
MCSIA also requires FMCSA to establish minimum disqualification periods 
for non-CMV offenses based on the seriousness of the offense. However, 
the disqualification periods for non-CMV offenses must not exceed the 
disqualification periods for offenses involving a CMV.
    On July 31, 2002, the FMCSA published a final rule (67 FR 49742) 
implementing several MCSIA provisions concerning the CDL program, 
including the requirements of section 201(b).

Petition for Reconsideration

    On August 30, 2002, the Petitioners requested that the agency 
reconsider three issues covered in the final rule. A copy of the 
petition is in both of the dockets identified at the beginning of this 
notice. The following is a summary of the three issues raised by the 
petitioners, followed by the FMCSA's response.

Issue 1: Disqualification Periods for Driving Under the Influence 
(DUI).

    The Petitioners believe the disqualification periods for driving 
under the influence of controlled substances or alcohol are excessive 
and can result in unfair sanctions against CDL holders by potentially 
disqualifying them from working in the motor carrier industry for life. 
The Petitioners argue that the disqualification periods are 
significantly longer than State penalties and that the States generally 
do not impose lifetime disqualification for second offenses.
    FMCSA Response: The FMCSA denies the Petitioners' request to 
shorten the disqualification periods established by the July 31, 2002, 
final rule. Section 201(b) of the MCSIA clearly provides FMCSA with the 
statutory authority to establish disqualification periods for DUI 
offenses committed by CDL holders while operating non-CMVs, that are 
identical to the disqualification periods for DUI offenses committed 
while operating a CMV. Although the FMCSA could have proposed and 
adopted less stringent penalties, the agency chose to impose the 
maximum penalties provided by the statute to ensure the highest level 
of safety. To achieve our safety objectives, we must disqualify CDL 
holders who represent an unacceptable safety risk to the motoring 
public by failing to refrain from the use of controlled substances, and 
consuming alcoholic beverages prior to driving a motor vehicle. There 
is no readily apparent reason why the agency should consider DUI 
committed by a professional CMV driver to be less severe when committed 
in a non-CMV during off-duty hours, than in a CMV while on duty. The 
conviction for such a serious offense in the non-CMV suggests that the 
CDL holder is more likely to commit the same offense in a CMV, than a 
CDL holder who has never committed such an offense. The FMCSA

[[Page 4395]]

must take action to reduce to the greatest extent practicable, the 
likelihood of unsafe drivers being allowed to operate CMVs on public 
roads.
    With the publication of the July 31, 2002, final rule, all CDL 
holders should now be aware that a conviction for DUI while operating a 
non-CMV could have a significant adverse impact on their driving 
careers. These drivers have a choice between sharing the road 
responsibly with other motorists at all times, regardless of the type 
of vehicle being operated, or engaging in unsafe driving practices with 
the potential of being subjected to enforcement actions and ultimately 
disqualification. The agency's decision represents an appropriate use 
of its statutory authority, and will help to ensure national uniformity 
and consistency in the administration of the CDL program.

Issue 2: Less Stringent Penalties for Foreign-Domiciled Drivers

    The Petitioners argued that the penalties discriminate against U.S. 
drivers because foreign drivers' CDLs are not subject to suspension, 
cancellation or revocation for the same offenses in non-CMVs. They 
believe that convictions for non-CMV offenses must be enforced in a 
non-discriminatory manner against all drivers operating on U.S. 
highways.
    FMCSA Response: The FMCSA denies the Petitioners' request because 
all CDL holders, including foreign domiciled drivers, operating in the 
U.S. are held to the same standard for offenses committed in the U.S. 
The agency recognizes that the July 31, 2002, final rule leaves 
unresolved differences between the consequences for a U.S. driver 
convicted of a disqualifying offense in a non-CMV, and a foreign 
domiciled driver who commits similar offenses in his/her country of 
domicile. However, this is an issue that cannot be resolved through the 
rulemaking process because it involves offenses in countries that have 
not adopted laws to disqualify commercial drivers for offenses 
committed in private vehicles. As indicated in the preamble of the July 
31, 2002, final rule, the FMCSA will initiate discussions with Mexico 
and Canada to modify existing CDL reciprocity agreements to include 
non-CMV convictions for offenses committed in the drivers' country of 
domicile.
    The FMCSA urges all States to implement the disqualification 
standards adopted on July 31, 2002, and corrected by today's final 
rule, because doing so is necessary to safeguard the motoring public. 
Implementation of the disqualification standards should not be delayed 
because of concerns about the status of reciprocity negotiations 
between the U.S., Canada and Mexico. The governments of Canada and 
Mexico share our commitment to ensuring the safety of cross-border 
motor carrier operations, and we expect to complete appropriate 
reciprocity agreements.

Issue 3: Inconsistency Between the Regulatory Language and MCSIA

    The Petitioners stated that MCSIA provides for disqualification 
based on a serious offense involving a motor vehicle (other than a 
commercial motor vehicle) that has resulted in the revocation, 
cancellation, or suspension of the individual's license. However, the 
rule adopted by the FMCSA does not include the limiting language 
concerning the revocation, cancellation, or suspension of the license 
by the State. The Petitioners argue that rule must be amended to make 
it consistent with MCSIA.
    FMCSA Response: The FMCSA agrees with the Petitioners that a CDL 
driver may only be disqualified for offenses committed while operating 
a non-CMV if the conviction for the offense results in the revocation, 
cancellation, or suspension of the driver's license. The preamble to 
the 2002 final rule includes a discussion that explicitly acknowledges 
that offenses are not disqualifying unless the State also finds that 
the circumstances of the offense warrant revocation, cancellation, or 
suspension. However, Table 2 to Sec.  383.51 does not include the 
required reference to revocation, cancellation, or suspension. 
Therefore, the agency is revising Table 2 to include the required 
reference to revocation, cancellation, or suspension.

Rulemaking Analyses and Notices

    Under the Administrative Procedure Act (APA)(5 U.S.C. 553(b)) an 
agency may waive the normal notice and comment requirements if it 
finds, for good cause, that they are impracticable, unnecessary, or 
contrary to the public interest. In this case, additional notice and 
comment are unnecessary. This final rule makes a technical correction 
to the FMCSA's July 31, 2002, final rule concerning disqualifying 
offenses committed by CDL holders while operating non-CMVs. This 
correction is necessary to make the regulatory language in Table 2 of 
Sec.  383.51 consistent with section 201(b) of MCSIA. The agency 
requested public comment in response to its May 4, 2001, notice of 
proposed rulemaking, and intended to adopt the necessary regulatory 
language on July 31, 2002. However, certain regulatory text was 
omitted, and the agency must now correct that error. Therefore, the 
FMCSA finds good cause to adopt this final rule without prior notice or 
opportunity for public comment [5 U.S.C. 553(b)].
    For the same reasons, the FMCSA finds, pursuant to 5 U.S.C. 
553(d)(3) that there is good cause for making the rule effective upon 
publication. The final rule is a technical correction to Table 2 of 
Sec.  383.51 to make the regulations consistent with MCSIA. Therefore, 
good cause exists under 5 U.S.C. 553(d) to dispense with the 30-day 
delay in the effective date requirement and the FMCSA is making the 
rule effective upon publication in the Federal Register. The final rule 
does not change the susbstance of the requirements.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FMCSA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of Department of Transportation 
regulatory policies and procedures. Since this rulemaking action makes 
only technical corrections to the current regulations, it is 
anticipated that the economic impact of this rulemaking will be 
minimal; therefore, a full regulatory evaluation is not required. 
Although the July 2002 final rule establishing the current requirements 
was a significant regulatory action under section 3(f) of Executive 
Order 12866, the Office of Management and Budget does not consider this 
amendment of the final rule to be a significant action.

Regulatory Flexibility Act

    This action will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The original rule did not have a 
significant effect on a substantial number of small entities, and this 
rule simply amends Table 2 to Sec.  383.51 to reflect the statutory 
language in the MCSIA.

Unfunded Mandates Reform Act of 1995

    This rule does not impose an unfunded Federal mandate, as defined 
by the Unfunded Mandates Reform Actof 1995 (2 U.S.C. 1532 et seq.) that 
will result in the expenditure by State, local and tribal governments, 
in the aggregate, or by the private sector, of $100 million or more in 
any one year. This rule does not impose a Federal mandate resulting in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of

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$100 million or more in any one year. (2 U.S.C. 1531 et seq.).

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this action under Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks.'' This rule is not economically significant and does involve an 
environmental risk to health or safety that would disproportionately 
affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999, and 
it has been determined this action does not have substantial direct 
Federalism implications that would limit the policymaking discretion of 
the States. This action will not have a significant effect on the 
States' ability to execute traditional State governmental functions, 
and any additional administrative cost borne by the States should be 
negligible. Nothing in this document directly preempts any State law or 
regulation.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this program.

Paperwork Reduction Act

    This action does not contain information collection requirements 
for purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520. Although the July 31, 2002, final rule affected the information 
collection burden associated with OMB Control No. 2126-0011, titled 
``Commercial Driver Licensing and Test Standards,'' this rulemaking 
does not result in any additional changes to the approved information 
collection.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that this action would not have any effect on the quality of 
the environment.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use. This action is not a significant energy action 
within the meaning of section 4(b) of the Executive Order because it is 
not economically significant and not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Additionally, the Administrator of the Office of Information and 
Regulatory Affairs has not designated this rule as a significant energy 
action. For these reasons, a Statement of Energy Effects under 
Executive Order 13211 is not required

List of Subjects in 49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Commercial 
driver's license, Commercial motor vehicles, Drug abuse, Highway 
safety, Motor carriers, Motor vehicle safety.

    In consideration of the foregoing, the FMCSA amends title 49, Code 
of Federal Regulations, Chapter III, part 383 as set forth below:
    1. The authority citation for part 383 continues to read as 
follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., 31502; sec. 214 
of Pub.L. 106-159, 113 Stat. 1766; and 49 CFR 1.73.


Sec.  383.51  [Amended]

    2. Revise Table 2 to Sec.  383.51 to read as follows:
* * * * *

                                            Table 2 to Sec.   383.51
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                                                                                                For a third or
                                                         For a second                             subsequent
                                                       conviction of any                       conviction of any
                                                        combination of                          combination of
                                                       offenses in this     For a third or     offenses in this
                                     For a second         Table in a          subsequent          Table in a
                                   conviction of any   separate incident   conviction of any   separate incident
                                    combination of      within a 3-year     combination of      within a 3-year
                                   offenses in this      period while      offenses in this      period while
                                      Table in a       operating a non-       Table in a       operating a non-
                                   separate incident   CMV, a CDL holder   separate incident   CMV, a CDL holder
 If the driver operates a motor     within a 3-year         must be         within a 3-year         must be
  vehicle and is convicted of:       period while      disqualified from     period while      disqualified from
                                  operating a CMV, a   operating a CMV,   operating a CMV, a   operating a CMV,
                                  person required to   if the conviction  person required to   if the conviction
                                   have a CDL and a     results in the     have a CDL and a     results in the
                                  CDL holder must be      revocation,     CDL holder must be      revocation,
                                   disqualified from   cancellation, or    disqualified from   cancellation, or
                                    operating a CMV    suspension of the    operating a CMV    suspension of the
                                       for . . .         CDL holder's          for . . .         CDL holder's
                                                      license or non-CMV                      license or non-CMV
                                                            driving                                 driving
                                                       privileges, for .                       privileges, for .
                                                              . .                                     . .
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(1) Speeding excessively,         60 days...........  60 days...........  120 days..........  120 days.
 involving any speed of 24.1
 kmph (15 mph) or more above the
 posted speed limit.

[[Page 4397]]

 
(2) driving recklessly, as        60 days...........  60 days...........  120 days..........  120 days.
 defined by State or local law
 or regulation, including but,
 not limited to, offenses of
 driving a motor vehicle in
 willful or wanton disregard for
 the safety of persons or
 property.
(3) making improper or erratic    60 days...........  60 days...........  120 days..........  120 days.
 traffic lane changes.
(4) following the vehicle ahead   60 days...........  60 days...........  120 days..........  120 days.
 too closely.
(5) Violating State or local law  60 days...........  60 days...........  120 days..........  120 days.
 relating to motor vehicle
 traffic control (other than a
 parking violation) arising in
 connection with a fatal
 accident.
(6) driving a CMV without         60 days...........  Not applicable....  120 days..........  Not applicable.
 obtaining a CDL.
(7) driving a CMV without a CDL   60 days...........  Not applicable....  120 days..........  Not applicable.
 in the driver's possession\1\.
(8) driving a CMV without the     60 days...........  Not applicable....  120 days..........  Not applicable.
 proper class of CDL and/or
 endorsements for the specific
 vehicle group being operated or
 for the passengers or type of
 cargo being transported.
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\1\Any individual who provides proof to the enforcement authority that issued the citation, by the date the
  individual must appear in court or pay any fine for such a violation, that the individual held a valid CDL on
  the date the citation was issued, shall not be guilty of this offense.

* * * * *

    Issued on: January 22, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03-2053 Filed 1-28-03; 8:45 am]
BILLING CODE 4910-EX-P