[Federal Register Volume 70, Number 145 (Friday, July 29, 2005)]
[Rules and Regulations]
[Pages 43750-43757]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14971]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1327

[Docket No. NHTSA-04-17326]
RIN 2127-AI45


Procedures for Participating in and Receiving Data From the 
National Driver Register Problem Driver Pointer System

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the agency's National Driver Register 
(NDR) regulations to implement new reporting requirements mandated by 
the Motor Carrier Safety Improvement Act of 1999 (MCSIA). MCSIA amended 
the NDR Act to require that a State, before issuing or renewing a motor 
vehicle operator's license, must verify an individual's eligibility to 
receive a license through informational checks of both the NDR and the 
Commercial Driver's License Information System (CDLIS). The final rule 
amends the NDR regulations to reflect this statutory change.
    The final rule also provides an updated listing of the NDR 
reporting codes in the Appendix to reflect the codes that should be 
implemented by participating States by September 30, 2005. The final 
rule clarifies that pointer records reported to the NDR must only 
regard individuals who have been convicted or whose license has been 
denied, canceled, revoked, or suspended for one of the offenses 
identified in the Appendix. Finally, the final rule adds a definition 
for the term ``employers or prospective employers of motor vehicle 
operators.''

DATES: The final rule becomes effective on September 27, 2005.

FOR FURTHER INFORMATION CONTACT: For program issues: Mr. Sean McLaurin, 
Chief, National Driver Register, NPO-124, National Highway Traffic 
Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. 
Telephone: (202) 366-4800. For legal issues: Mr. Roland (R.T.) Baumann 
III, Attorney-Advisor, Office of the Chief Counsel, NCC-113, National 
Highway Traffic Safety Administration, 400 Seventh Street, SW., 
Washington, DC 20590. Telephone: (202) 366-1834.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 9, 1999, the Motor Carrier Safety Improvement Act 
(MCSIA) was signed into law (Pub. L. 106-159, Section 204), creating, 
in part, a new requirement for States participating in the National 
Driver Register (NDR). The requirement directed States to request from 
the Secretary of Transportation information from the NDR and the 
Commercial Driver License Information System (CDLIS) before issuing a 
motor vehicle operator's license to an individual or renewing such a 
license (49 U.S.C. 30304(e)).
    In establishing this new requirement, Congress adopted the 
recommendation of a 1999 study directed by the Office of Motor Carriers 
of the Federal Highway Administration that reviewed the effectiveness 
of the Commercial Driver License (CDL) program and its general benefit 
to highway safety. The study indicated that the CDL program had been 
very successful in limiting commercial motor vehicle operators to a 
single license. However, the study also indicated that vulnerabilities 
continued to exist in enforcing the single license requirement. States 
that did not check the CDLIS when a CDL holder applied for a non-
commercial driver's license (non-CDL) allowed a CDL holder to

[[Page 43751]]

apply for a second license without detection. In contravening the 
single license requirement under the Commercial Motor Vehicle Safety 
Act of 1986, a commercial motor vehicle operator had the opportunity to 
spread traffic-related violations among various driver licenses. In 
response to these concerns, the study recommended that all States 
modify their licensing procedures to require that all CDL and non-CDL 
applicants verify records against both the NDR and the CDLIS. (See 
Commercial Driver License Effectiveness Study, Volume Two, Technical 
Report, at 24 (Feb. 1999)).

II. Notice of Proposed Rulemaking--Primary Changes

    On March 31, 2004, the agency published a notice of proposed 
rulemaking (NPRM) in the Federal Register (69 FR 16853, Mar. 31, 2004), 
proposing to amend the NDR regulations to reflect the new requirement 
of MCSIA.
    Under Section 30303(a) of Title 49, States are required to notify 
the Secretary of Transportation (by delegation, the NHTSA Administrator 
(49 CFR 1.51(e))) of their ``intention to be bound by section 30304'' 
of Title 49, with notification to be ``in the form and way the 
Secretary prescribes by regulation.'' (49 U.S.C. 30303(c)). In 
accordance with this statutory directive, the agency promulgated a 
regulation setting forth the conditions a State must satisfy to become 
a participant in the NDR. If the State is judged by the agency to be in 
compliance with the requirements of the NDR Act of 1982 and 23 CFR 
1327.5, it is certified as a participating State. (23 CFR 1327.3(m) and 
1327.4(a)). Under the existing system, all 50 States and the District 
of Columbia provided the required notification, and are currently 
considered active participants in the NDR.
    The NPRM explained that these existing notifications did not 
account for the statutory changes to Section 30304 (see ``Background'' 
section above). With the MCSIA-mandated changes, the agency recognized 
that the earlier notifications no longer reflected an intention by the 
States to be bound by all provisions of the statutory reporting 
requirements. From statistical information that identified the type of 
inquiry submitted to the NDR system, the agency confirmed that as many 
as fifty percent of the currently participating States were not, in 
fact, following the amended provisions of Section 30304 that require a 
check of both the NDR and the CDLIS.
    To address this situation, the NPRM proposed to amend 23 CFR 1327.4 
to provide that, with each change to 49 U.S.C. 30304, a participating 
State may be required to submit a new notification to the agency, 
expressing its intent to be bound by all current requirements of 
Section 30304. New notifications would only be required when statutory 
changes affected the participating State's reporting or inquiry 
requirements under Section 30304 of Title 49. The agency determined 
that MCSIA's statutory changes were the first changes that necessitated 
a new notification since the creation of the PDPS. The NPRM also noted 
that statutory changes involving minor language adjustments or 
otherwise resulting in no substantive addition to the list of actions 
that must be carried out by a State to remain an active participant in 
the NDR would not necessitate a new notification. Under the agency's 
proposal, a State that failed to provide the required notification 
would be subject to termination of its participating State status 90 
days after receiving a request for a new notification from the agency.
    The NPRM also proposed conforming amendments to 23 CFR 1327.5, to 
set forth the new statutory requirements for convenient reference. The 
proposed amendments followed the statutory changes made by MCSIA 
requiring the chief driver licensing official of a State to submit an 
inquiry to the NDR and the CDLIS before issuing any type of license. 
The NPRM clarified that issuance of a license includes, but is not 
limited to, any original, renewal, temporary, or duplicate license. In 
addition, the NPRM proposed to revise the definition of ``participating 
State'' under Section 1327.3(m) to conform to the new requirement that 
participating State status is contingent on the State's compliance with 
Section 30304 of Title 49 of the United States Code and the agency's 
implementing regulations.

III. Notice of Proposed Rulemaking--Changes To Clarify or Update 
Information

A. Proposed Amendment to Section 1327.3

    The NPRM recognized that the current regulations use, but do not 
specifically define, the term ``employers or prospective employers of 
motor vehicle operators.'' The term is used to describe persons who 
employ individuals that may be subject to NDR checks. (See 23 CFR 
1327.6(c)).
    The NPRM proposed a definition for the term ``employers or 
prospective employers of motor vehicle operators'' that would include 
only those persons who hire individuals to operate motor vehicles on a 
regular basis during the normal course of their employment. The 
proposed definition was intended to reduce burdens to employers by 
narrowing the class of employees subject to an NDR check. An employer 
that hired an individual to make regular business deliveries would be 
covered under this definition, whereas an employer that allowed an 
employee to use a company-owned vehicle or to rent a vehicle (and 
receive reimbursement) to attend a business conference or take an 
occasional business trip would not be covered. Employers meeting the 
definition of ``employers or prospective employers of motor vehicle 
operators'' would be allowed to receive NDR information regarding the 
types of employees covered by the definition, pursuant to the 
procedures outlined in the regulation.

B. Proposed Amendment to 23 CFR Part 1327.5(a)

    The NPRM proposed to add a paragraph in section 1327.5(a), 
clarifying that pointer records transmitted to the NDR must be based on 
the violation codes appearing in the Appendix. With this addition, 
these codes would serve as a comprehensive list of offenses the agency 
would deem to be proper grounds for establishing a pointer record 
regarding an individual. If an individual has not been convicted or the 
individual's driver's license has not been denied, canceled, revoked or 
suspended for an offense identified in these codes, a pointer record 
should not be transmitted to the NDR regarding that individual. The 
NPRM made clear that the agency would contact a participating State 
responsible for inclusion of a pointer record that is not based on the 
Appendix codes and request its removal from the NDR system.

C. Proposed Amendment to Appendix A to 23 CFR Part 1327 and Conforming 
Amendment to 23 CFR 1327.3(g)

    The NPRM proposed to amend Appendix A to Part 1327 to update the 
code list to be consistent with the current AAMVA Code Dictionary (ACD) 
reporting codes.\1\ The NPRM also proposed to divide the Appendix into 
two parts to make it easy for a participating State to identify what 
codes correspond to ``for cause'' licensing actions and traffic offense

[[Page 43752]]

convictions. In conjunction with these changes, the agency proposed to 
revise the definition of ``for cause'' under Section 1327.3(g) to 
conform to the revised Appendix.
---------------------------------------------------------------------------

    \1\ The NPRM acknowledged that AAMVA is currently revising the 
ACD. As of the date of publication of this rule, the AAMVA's 
revision process continues. When it is finalized, the agency will 
determine whether changes should be made to the Appendix as a 
result. Any proposed changes will be published in the Federal 
Register.
---------------------------------------------------------------------------

IV. Comments

    The agency received 10 comments in response to the NPRM--six from 
State agencies and four from business/professional organizations. The 
State comments were submitted by the Driver License Division of the 
Texas Department of Public Safety (TXDPS); the Safety Administration of 
the Pennsylvania Department of Transportation (PennDOT); the New York 
State Department of Motor Vehicles (NYSDMV); the State of Washington 
Department of Licensing (WADOL); the Michigan Department of State 
(MDS); and the Driver Services Department of the Illinois Office of the 
Secretary of State (ILSS). The business/professional organization 
comments were submitted by the American Trucking Associations, Inc. 
(ATA); Advocates for Highway and Auto Safety (Advocates); the American 
Association of Motor Vehicle Administrators (AAMVA); and U.S. 
Investigations Services (USIS).

A. Proposed Amendments to Notification Requirement and Conforming 
Amendments

    PennDOT asserted that Federal law does not allow the agency to 
require more than just an initial notification of a State's intention 
to be bound by the reporting requirements of the NDR statute. According 
to PennDOT, nothing contained in the Federal statute gives the agency 
the authority to require multiple notifications.
    The agency explained in the NPRM that the notifications provided by 
the States evidencing an intention to be bound by the reporting 
requirements predate the changes made by MCSIA. At this time, no State 
has certified its intention to be bound by the requirement to check the 
NDR and the CDLIS for all license issuances and renewals. The agency 
further explained in the NPRM that at least 50 percent of the States 
are not completing the checks required under the Act. Under these 
circumstances, the agency finds it necessary to create a mechanism for 
requesting new notifications from participating States. The NDR Act 
provides the Secretary of Transportation with specific authority to set 
the ``form and way'' of proper State notification by regulation (49 
U.S.C. 30303(c)). This provision invests the Secretary with abundant 
discretion and we do not agree with the commenter that the agency is 
prohibited from seeking new notifications when reporting requirements 
change. To avoid confusion and ensure that the terms ``notification'' 
and ``certifying'' are used in a consistent manner throughout, we have 
made slight revisions to the language of 23 CFR 1327.4(c)(1) and (d)(1) 
from those in the notice of proposed rulemaking and a conforming 
amendment to 23 CFR 1327.4(c)(2).
    Additional comments centered on the MCSIA requirement to check the 
NDR and the CDLIS before issuing or renewing a motor vehicle operator's 
license. PennDOT asserted that the requirement to submit an NDR check 
for a noncommercial license renewal would not further the interests of 
commercial motor vehicle safety. WADOL claimed that performing these 
additional checks would require extensive and costly programming 
changes. ILSS stated that it only accesses the NDR for applicants 
requesting a CDL or individuals being issued a first-time license. 
According to ILSS, to implement the MCSIA requirement, Illinois would 
have to amend current rules, policies, and procedures. Each of these 
commenters requested that the agency either delay implementation of the 
rule or withdraw the rule.
    These comments represent a fundamental misunderstanding about the 
MCSIA requirements and the agency's proposed regulation. The 
requirement to check the NDR and the CDLIS before the issuance or 
renewal of a motor vehicle operator's license is a statutory 
requirement that took effect when MCSIA was enacted in 1999. With that 
enactment, Congress directed that NDR participating States complete 
these additional checks. The agency has no discretion to alter or 
extend the time for compliance with a statutory requirement. The reach 
of this part of the proposed rule is limited to implementing the 
statutory mandate.\2\ Accordingly, we do not adopt the recommendation 
of these commenters. These statutory requirements should not come as a 
surprise to participating States. The agency is aware that the 
organization most closely aligned with the licensing department of 
individual States, the AAMVA, has been instructing its member States to 
comply with these requirements since 1999.
---------------------------------------------------------------------------

    \2\ This portion of the final rule implements a Federal 
statutory provision that is considered self-executing and would be a 
requirement of any participating State without the need for a 
corresponding regulation. Although the agency is revising its 
regulation to note this change, we expect participating States to 
achieve full compliance with these types of statutory requirements 
on their own and without the need for regulatory changes in the 
future.
---------------------------------------------------------------------------

    The agency received comments and questions from States about its 
proposed clarification that checks of the NDR and the CDLIS should be 
made for any original, renewal, temporary, or duplicate license. NYSDMV 
objected to the clarification and asserted that ``states should have 
the ability to identify for themselves the issuance and renewal 
transactions that should require checks of the NDR and the CDLIS.'' MDS 
asked whether the requirement covers all driver's license applications 
and whether States can implement these record checks before the 
effective date of the final rule.
    MCSIA intended to close loopholes that existed in licensing 
programs as a result of not checking both databases before issuing and 
before renewing a non-CDL license. The requirement to make these 
inquiries has been a statutory requirement of participating States 
since the enactment of MCSIA. From that point forward, States 
participating in the NDR should have been meeting all inquiry 
requirements. However, in response to the comments, the agency has 
decided to amend the regulation to make clearer the types of licensing 
transactions that must result in a check of the NDR and CDLIS 
databases. An inquiry of both databases must occur when there is either 
the issuance of an original driver's license, a renewal of driving 
privileges, or any other licensing transaction that results in the 
granting or extension of driving privileges. Although this represents 
the minimum inquiry requirement to qualify as a participating State, 
the agency continues to encourage States to make a check of the NDR and 
CDLIS databases a routine part of every licensing transaction.

B. Proposed Revisions to Appendix

    The agency received several comments related to the proposed 
revision to the Appendix. TXDPS and AAMVA pointed out that M09, a code 
for failure to obey railroad crossing restrictions, appeared only on 
the withdrawal list and, in error, was not included on the conviction 
list. The agency agrees with the commenters and has revised the 
Appendix to include the M09 code on the conviction list. The agency 
also has reviewed the entire Appendix and made additional changes as a 
result of ongoing efforts by AAMVA to revise the ACD. We anticipate 
that additional changes will be necessary as AAMVA works toward 
finalizing and implementing a revised set of ACD codes by September 30, 
2005. Our expectation is that all participating

[[Page 43753]]

States will use the revised Appendix by this date as well. We will 
afford some flexibility for States to continue using the older codes up 
to the implementation deadline.

C. Proposed Definition of Employer

    The agency received one comment about its proposed definition of 
``employers or prospective employers of motor vehicle operators.'' 
Advocates claimed that the proposed definition was too vague to be 
helpful to States attempting to determine proper access for businesses 
and that the agency should adopt bright-line definitions for 
demarcating the class of employers who have both the right and the 
responsibility to check employee driving records. According to 
Advocates, the proposed definition would result in abuses by employers 
who improperly access current or prospective employees' driving records 
and employers who exploit the vagueness inherent in the definition to 
avoid the responsibility to check NDR records.
    The proposed definition relates to a provision of statute granting 
permissive access to the NDR (49 U.S.C. 30305(b)(2)). The statutory 
provision does not create a duty for an employer of a motor vehicle 
operator to complete an NDR check. The term ``employers or prospective 
employers of motor vehicle operators'' has not been defined since the 
statute was created in 1982. Since that time, the agency has received 
informal requests for guidance concerning the types of employers that 
should be given access to the NDR. The proposed definition is an effort 
to provide that guidance. It is not intended to provide an exhaustive 
articulation of the types of work requirements that would permit an 
employer access.
    The potential for abuse cited by the commenter is not apparent to 
the agency. The provision at issue concerns permissible access to the 
NDR--it does not create a responsibility to submit an NDR inquiry. In 
addition, regulatory procedures already in place require that any 
employer or prospective employer receive the consent of the employee 
before conducting an NDR check. Under these conditions, there appears 
little chance for employers to access improperly their employees' NDR 
records. The agency has determined that no changes to the proposed 
definition are necessary.

D. General Implementation Issues

    The agency received several questions from AAMVA regarding 
implementation of the MCSIA-mandated changes and the rulemaking changes 
in general.
    AAMVA asked whether the PDPS will adopt messages added to CDLIS 
history transaction requests. The agency is planning to adapt the 
current structure of the PDPS reporting format to account for and 
accept information added to CDLIS history request transactions.
    AAMVA also asked whether States would be required to complete a 
full-structured test and, in addition, complete a clean file of their 
existing submitted pointer records as a result of the rulemaking. (A 
full-structured test refers to the process of checking a State's 
ability to submit inquiries to and receive information from the NDR 
system without problems. A clean file refers a State's complete removal 
of all submitted pointer records from the NDR system.) The agency 
believes that there would be only a small benefit if participating 
States complete a full-structured test or prepare a clean file at this 
time. Although the frequency and amount of inquiries will increase as 
State compliance with the statutory requirements rises, the basic 
inquiry and response function of the system is not changed by the 
rulemaking. The agency will continue to monitor State usage, and if 
service degradation is detected in a State, a full-structured test may 
be required. Also, if pointer records not based on the Appendix are 
routinely submitted to the agency by a participating State, the agency 
may require that State to complete a clean file as an assurance that 
statutory requirements are being met.
    AAMVA inquired as to how the agency intends to ensure that 
jurisdictions use proper codes and add pointer records for only the 
required legal reasons. Although the agency has not formally stated in 
regulation its policy of removing pointer records not based on the NDR 
reporting codes until this rulemaking, the agency has enforced this 
policy in practice. Our expectation is that participating States will 
take care to use only appropriate codes. If a jurisdiction is contacted 
on multiple occasions due to the use of codes not appearing in the 
Appendix, the agency may require the jurisdiction to prepare a complete 
clean file of its submitted records.

E. Federalism Concerns

    The agency received one comment citing Federalism concerns. 
Specifically, PennDOT stated that the requirement to check the NDR for 
non-commercial license renewals usurps the traditional licensing 
authority of the State. Additionally, PennDOT asserted that the 
limitation on the types of suspensions reported to the NDR interferes 
with Pennsylvania's duties under its own law to deny licensure to 
drivers with any type of suspension in another State.
    Under Executive Order 13132, the agency may not issue a regulation 
with Federalism implications that imposes substantial direct compliance 
costs and that is not required by statute unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by State and local governments, the agency consults with State 
and local governments, or the agency consults with State and local 
officials early in the process of developing the proposed regulation. 
The agency also may not issue a regulation with Federalism implications 
that preempts State law unless the agency consults with State and local 
officials early in the process of developing the proposed regulation.
    The requirement to check the NDR for non-commercial license 
renewals is a statutory requirement. The rulemaking does not alter this 
requirement or require that a participating State take actions 
different than those already required by the statute. Although the 
regulation requires that States submit new notifications acknowledging 
the requirements of participation in the NDR, the notification 
requirement does not preempt State law or set conditions on a State's 
licensing decision. The Federalism implications in Executive Order 
13132 are not present in this situation.
    Similarly, the content of the NDR database is governed by the 
statute. The NDR was never intended to address more than 
transportation-related issues. The statute provides access to States 
for the purpose of driver licensing, driver improvement, and 
transportation safety and limits reportable information to convictions 
for motor vehicle-related offenses and for cause license suspensions. 
Within this statutory framework, the agency's rule provides an updated 
Appendix that constitutes all violation information submitted to the 
NDR. Although participating States may not use the NDR system to share 
non-NDR information, the rule does not prevent States from using other 
mechanisms to submit and receive non-NDR information of their choosing. 
Nothing in this rule prevents Pennsylvania from maintaining any 
information necessary to comply with State law. Under these 
circumstances, the Federalism concerns referred to in Executive Order 
13132 are not implicated.

V. Statutory Basis for Final Rule

    This final rule implements reporting requirements mandated by the 
Motor

[[Page 43754]]

Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 
Section 204).

VI. Regulatory Analyses and Notices

Executive Order 12988 (Civil Justice Reform)

    This final rule will not have any preemptive or retroactive effect. 
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 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993) provides for making determinations on whether a 
regulatory action is ``significant'' and therefore subject to Office of 
Management and Budget (OMB) review and the requirements of the 
Executive Order. The agency has considered the impact of the rulemaking 
action under Executive Order 12866 and determined that it is not 
significant. The rulemaking action is also treated as not significant 
under the Department of Transportation's regulatory policies and 
procedures. OMB has not reviewed this notice under Executive Order 
12866.
    In this document, the agency revises the NDR implementing 
regulations to conform to specific statutory requirements. Checks are 
required of both the NDR and CDLIS databases before issuance or renewal 
of a motor vehicle operator's license. Although the statutory 
requirements increase the number of inquiries that States are required 
to make and the number of responses they receive as a result, the 
agency believes that the additional checks and the revisions identified 
in this regulation will not have a significant economic effect on the 
States. The statutorily required checks of the CDLIS (in addition to 
the NDR) for renewals of CDLs and non-CDLs simply add another 
verification in a process that States already perform when first 
issuing a CDL. Additional maintenance fees associated with access to 
the CDLIS should not occur as States already pay a fee based on the 
number of CDL records on the CDLIS. The final rule also requires that 
States submit a new notification of an intention to be bound by the 
reporting requirements of the statute in the event of a significant 
statutory change. The process of signing and submitting a new 
notification will be a rare occurrence and will not result in 
significant costs to the States.
    The agency believes that the impacts of this rulemaking will be 
minimal. Consequently, a full regulatory evaluation has not been 
prepared.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Public Law 96-354, 5 U.S.C. 
601-612) requires an agency to review regulations to assess their 
impact on small entities unless the agency determines that a rule is 
not expected to have a significant impact on a substantial number of 
small entities. The agency has considered the effects of this 
rulemaking action under the Regulatory Flexibility Act. Employers who 
hire motor vehicle operators may qualify as small businesses. This 
document, however, does not change the procedure that employers must 
use to request a driver license check of an employee or prospective 
employee. Employers would still be required to contact the respective 
State chief driver licensing official. Therefore, I hereby certify that 
the rulemaking action would not have a significant impact on a 
substantial number of small entities.

Paperwork Reduction Act

    There are reporting requirements contained in the regulation that 
the final rule amends that are considered to be information collection 
requirements, as that term is defined by the Office of Management and 
Budget (OMB) in 5 CFR Part 1320. These requirements have been submitted 
previously to and approved by OMB, pursuant to the Paperwork Reduction 
Act (44 U.S.C. 3500, et seq.), through July 30, 2006 under OMB No. 
2127-0001.
    For the following reasons, nothing in this final rule adds to the 
collection of information burden that is approved by OMB under 
Clearance No. 2127-0001. Section 1327.5(a)(2) may reduce collection of 
information burdens on States because it includes new language 
clarifying the scope of the collection--that State are not to transmit 
reports on individuals unless that individual has had his or her motor 
vehicle operator's license denied, canceled, revoked, or suspended for 
cause as represented by codes in Appendix A, Part I, or been convicted 
of a motor vehicle-related offense as represented by codes in Appendix, 
Part II. After Section 1327.5(a)(2) takes effect, States will be less 
likely to transmit reports that will ultimately not be included in the 
National Driver Register.

National Environmental Policy Act

    The agency has reviewed this rulemaking action for the purposes of 
the National Environmental Policy Act (42 U.S.C. 4321, et. seq.) and 
has determined that it would not have a significant impact on the 
quality of the human environment.

The Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) requires 
Federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed rules that include a Federal 
mandate likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. In 
response to the proposed rule, a few States supplied cost estimates for 
compliance with the MCSIA requirement. Assuming the accuracy of these 
estimates and extrapolating the results to all participating States 
based on State population, the total cost to make checks of the CDLIS 
and the NDR before issuing or renewing a license would not result in 
expenditures that exceed $100 million on an annual basis. This rule 
does not require an assessment under this law.

Executive Order 13132 (Federalism)

    Executive Order 13132 requires the agency to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
Federalism implications.'' The Executive Order defines ``policies that 
have Federalism implications'' to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among various levels of government.''
    The agency has analyzed this rulemaking action in accordance with 
the principles and criteria set forth in Executive Order 13132 and has 
determined that the final rule does not have sufficient Federalism 
implications to warrant consultation with State and local officials or 
the preparation of a Federalism summary impact statement. Moreover, the 
final rule does not preempt any State law or regulation or affect the 
ability of States to discharge traditional State government functions. 
Section F (above), entitled ``Federalism,'' responds directly to a 
comment the agency received citing Federalism concerns.

[[Page 43755]]

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    The agency has analyzed this rulemaking action under Executive 
Order 13175, and believes that this final rule would not have a 
substantial direct effect on one or more Indian tribes, would not 
impose substantial direct compliance costs on Indian tribal 
governments, and would not preempt tribal law. Therefore, a tribal 
summary impact statement is not required.

Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. Application of the principles of plain language 
includes consideration of the following questions:

--Have we organized the material to suit the public's needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that is not clear?
--Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make this rulemaking easier to understand?

    If you have any comments about the Plain Language implications of 
this final rule, please address them to the person listed in the For 
Further Information Contact heading.

Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
section listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this section with the 
Unified Agenda.

List of Subjects in 23 CFR Part 1327

    Highway safety, Intergovernmental relations, and Reporting and 
recordkeeping requirements


0
In consideration of the foregoing, the agency amends title 23 of CFR 
Part 1327 as follows:

PART 1327--PROCEDURES FOR PARTICIPATING IN AND RECEIVING 
INFORMATION FROM THE NATIONAL DRIVER REGISTER PROBLEM DRIVER 
POINTER SYSTEM

0
1. The authority citation for part 1327 continues to read as follows:

    Authority: Pub. L. 97-364, 96 Stat. 1740, as amended (49 U.S.C. 
30301 et seq.); delegation of authority at 49 CFR 1.50.


0
2. Amend Sec.  1327.3 by redesignating paragraphs (g) through (x) as 
paragraphs (h) through (y) and by adding new paragraph (g) and revising 
newly redesignated paragraphs (h) and (n) to read as follows:


Sec.  1327.3  Definitions.

* * * * *
    (g) Employers or Prospective Employers of Motor Vehicle Operators 
means persons that hire one or more individuals to operate motor 
vehicles on a regular basis during their normal course of employment.
    (h) For Cause as used in Sec.  1327.5(a) means that an adverse 
action taken by a State against an individual was based on a violation 
listed in Appendix A, Part I, an Abridged Listing of the American 
Association of Motor Vehicle Administrators (AAMVA) Violations Exchange 
Code, which is used by the NDR for recording license denials and 
withdrawals.
* * * * *
    (n) Participating State means a State that has notified the agency 
of its intention to participate in the PDPS and has been certified by 
the agency as being in compliance with the requirements of Section 
30304 of Title 49, United States Code and Sec.  1327.5 of this part.
* * * * *

0
3. Amend Sec.  1327.4 by revising paragraphs (c)(1) and (c)(2) and 
adding new paragraph (d) to read as follows:


Sec.  1327.4  Certifications, termination and reinstatement procedures.

* * * * *
    (c) Reinstatement. (1) The chief driver licensing official of a 
State that wishes to be reinstated as a participating State in the NDR 
under the PDPS shall send a letter notifying NHTSA that the State 
wishes to be reinstated as a participating State and certifying that 
the State intends to be bound by the requirements of Section 30304 of 
Title 49, United States Code and Sec.  1327.5. The letter shall also 
describe the changes necessary to meet the statutory and regulatory 
requirements of PDPS.
    (2) NHTSA will acknowledge receipt of the State's notification 
within 20 days after receipt.
* * * * *
    (d) New Notification. (1) NHTSA may, in its discretion, require in 
writing that a participating State submit a new notification, 
certifying that it intends to be bound by the requirements of Section 
30304 of Title 49, United States Code and Sec.  1327.5. The agency will 
exercise its discretion to require this notification when statutory 
changes have altered a participating State's reporting or inquiry 
requirements under Section 30304 of Title 49, United States Code.
    (2) After receiving a written request from NHTSA under paragraph 
(d)(1) of this section, a participating State will have 90 days to 
submit the requested notification. If a participating State does not 
submit the requested notification within the 90-day time period, NHTSA 
will send a letter to the chief driver licensing official of a State 
canceling its status as a participating State.

0
4. Amend Sec.  1327.5 by redesignating paragraphs (a)(2) through (a)(4) 
as paragraphs (a)(3) through (a)(5) and adding new paragraph (a)(2) and 
by revising paragraph (b)(1) to read as follows:


Sec.  1327.5  Conditions for becoming a participating State.

    (a) * * *
    (2) A report shall not be transmitted by the chief driver licensing 
official of a participating State, regarding an individual, unless that 
individual has had his or her motor vehicle operator's license denied, 
canceled, revoked, or suspended for cause as represented by the codes 
in appendix A, part I, of this part, or been convicted of a motor 
vehicle-related offense as represented by the codes in appendix A, part 
II, of this part. Unless the report transmitted to the NDR is based on 
these codes, NHTSA will contact the participating State responsible for 
the record and request its removal from the NDR.
* * * * *
    (b) * * *
    (1) The chief driver licensing official of a participating State 
shall submit an inquiry to both the NDR and the Commercial Driver's 
License Information System for each driver license applicant before 
issuing a license to that applicant. The issuance of a license includes 
but is not limited to any original, renewal, temporary, or duplicate 
license that results in a grant or extension of driving privileges in a 
participating State.
* * * * *

[[Page 43756]]


0
5. Revise Appendix A to part 1327 to read as follows:

Appendix A to Part 1327--Abridged Listing of the American Association 
of Motor Vehicle Administrators Violations Exchange Code, Used by the 
NDR for Recording Driver License Denials, Withdrawals, and Convictions 
of Motor Vehicle-Related Offenses

Code

Part I--For Cause Withdrawals

A04 Driving under the influence of alcohol with BAC at or over .04
A08 Driving under the influence of alcohol with BAC at or over .08
A10 Driving under the influence of alcohol with BAC at or over .10
A11 Driving under the influence of alcohol with BAC at or over ---- 
(detail field required)
A12 Refused to submit to test for alcohol--Implied Consent Law
A20 Driving under the influence of alcohol or drugs
A21 Driving under the influence of alcohol
A22 Driving under the influence of drugs
A23 Driving under the influence of alcohol and drugs
A24 Driving under the influence of medication not intended to 
intoxicate
A25 Driving while impaired
A26 Drinking alcohol while operating a vehicle
A31 Illegal possession of alcohol
A33 Illegal possession of drugs (controlled substances)
A35 Possession of open alcohol container
A41 Driver violation of ignition interlock or immobilization device
A50 Motor vehicle used in the commission of a felony involving the 
manufacturing, distributing, or dispensing of a controlled substance
A60 Underage Convicted of Drinking and Driving at .02 or higher BAC
A61 Underage Administrative Per Se--Drinking and Driving at .02 or 
higher BAC
A90 Administrative Per Se for .10 BAC
A94 Administrative Per Se for .04 BAC
A98 Administrative Per Se for .08 BAC
B01 Hit and run--failure to stop and render aid after accident
B02 Hit and run--failure to stop and render aid after accident--
Fatal accident
B03 Hit and run--failure to stop and render aid after accident--
Personal injury accident
B04 Hit and run--failure to stop and render aid after accident--
Property damage accident
B05 Leaving accident scene before police arrive
B06 Leaving accident scene before police arrive--Fatal accident
B07 Leaving accident scene before police arrive--Personal injury 
accident
B08 Leaving accident scene before police arrive--Property damage 
accident
B14 Failure to reveal identity after fatal or personal injury 
accident
B19 Driving while out of service order is in effect and transporting 
16 or more passengers including the driver and/or transporting 
hazardous materials that require a placard
B20 Driving while license withdrawn
B21 Driving while license barred
B22 Driving while license canceled
B23 Driving while license denied
B24 Driving while license disqualified
B25 Driving while license revoked
B26 Driving while license suspended
B27 General, driving while an out of service order is in effect (for 
violations not covered by B19)
B41 Possess or provide counterfeit or altered driver license 
(includes DL, CDL, and Instruction Permit) or ID
B51 Expired or no driver license (includes DL, CDL, and Instruction 
Permit)
B56 Driving a CMV without obtaining a CDL
B63 Failed to file future proof of financial responsibility
B91 Improper classification or endorsement on driver license 
(includes DL, CDL, and Instruction Permit)
D02 Misrepresentation of identity or other facts on application for 
driver license (includes DL, CDL, and Instruction Permit)
D06 Misrepresentation of identity or other facts to obtain alcohol
D07 Possess multiple driver licenses (includes DL, CDL, and 
Instruction Permit)
D16 Show or use improperly--Driver license (includes DL, CDL, and 
Instruction Permit)
D27 Violate limited license conditions
D29 Violate restrictions of driver license (includes DL, CDL, and 
Instruction Permit)
D35 Failure to comply with financial responsibility law
D38 Failure to post security or obtain release from liability
D39 Unsatisfied judgment
D45 Failure to appear for trial or court appearance
D53 Failure to make required payment of fine and costs
D56 Failure to answer a citation, pay fines, penalties and/or costs 
related to the original violation
D72 Inability to control vehicle
D74 Operating a motor vehicle improperly because of drowsiness
D75 Operating a motor vehicle improperly due to physical or mental 
disability
D78 Perjury about the operation of a motor vehicle
E03 Operating without HAZMAT safety equipment as required by law
F02 Child or youth restraint not used properly as required
F03 Motorcycle safety equipment not used properly as required
F04 Seat belt not used properly as required
F05 Carrying unsecured passengers in open area of vehicle
F06 Improper operation of or riding on a motorcycle
M09 Failure to obey railroad crossing restrictions
M10 For all drivers, failure to obey a traffic control device or the 
directions of an enforcement official at a railroad-highway grade 
crossing
M20 For drivers who are not required to always stop, failure to slow 
down at a railroad-highway grade crossing and check that tracks are 
clear of approaching train
M21 For drivers who are not required to always stop, failure to stop 
before reaching tracks at a railroad-highway grade crossing when the 
tracks are not clear
M22 For drivers who are always required to stop, failure to stop as 
required before driving onto railroad-highway grade crossing
M23 For all drivers, failing to have sufficient space to drive 
completely through the railroad-highway grade crossing without 
stopping
M24 For all drivers, failing to negotiate a railroad-highway grade 
crossing because of insufficient undercarriage clearance
M80 Reckless, careless, or negligent driving
M81 Careless driving
M82 Inattentive driving
M83 Negligent driving
M84 Reckless driving
S01 01-05 > Speed limit (detail optional)
S06 06-10 > Speed limit (detail optional)
S15 Speeding 15 mph or more above speed limit (detail optional)
S16 16-20 > Speed limit (detail optional)
S21 21-25 > Speed limit (detail optional)
S26 26-30 > Speed limit (detail optional)
S31 31-35 > Speed limit (detail optional)
S36 36-40 > Speed limit (detail optional)
S41 41+ > Speed limit (detail optional)
S51 01-10 > Speed limit (detail optional)
S71 21-30 > Speed limit (detail optional)
S81 31-40 > Speed limit (detail optional)
S91 41+ > Speed limit (detail optional)
S92 Speeding--Speed limit and actual speed (detail required)
S93 Speeding
S94 Prima Facie speed violation or driving too fast for conditions
S95 Speed contest (racing) on road open to traffic
S97 Operating at erratic or suddenly changing speeds
U01 Fleeing or evading police or roadblock
U02 Resisting arrest
U03 Using a motor vehicle in connection with a felony (not traffic 
offense)
U05 Using a motor vehicle to aid and abet a felon
U06 Vehicular assault
U07 Vehicular homicide
U08 Vehicular manslaughter
U09 Negligent homicide while operating a CMV
U10 Causing a fatality through the negligent operation of a CMV
U31 Violation resulting in fatal accident
W01 Accumulation of convictions (including point systems and/or 
being judged a habitual offender or violator)
W14 Physical or mental disability
W20 Unable to pass DL test(s) or meet qualifications
W30 Two serious violations within three years
W31 Three serious violations within three years
W40 The accumulation of two or more major offenses
W41 An additional major offense after reinstatement
W50 The accumulation of two out-of-service order general violations 
(violations not covered by W51) within ten years
W51 The accumulation of two out-of-service order violations within 
ten years

[[Page 43757]]

while transporting 16 or more passengers, including the driver and/
or transporting hazardous materials that require a placard
W52 The accumulation of three or more out-of-service order 
violations within ten years
W60 The accumulation of two RRGC violations within three years.
W61 The accumulation of three or more RRGC violations within three 
years.
W70 Imminent hazard

Part II--Convictions

A04 Driving under the influence of alcohol with BAC at or over .04
A08 Driving under the influence of alcohol with BAC at or over .08
A10 Driving under the influence of alcohol with BAC at or over .10
A11 Driving under the influence of alcohol with BAC at or over ---- 
(detail field required)
A12 Refused to submit to test for alcohol--Implied Consent Law
A20 Driving under the influence of alcohol or drugs
A21 Driving under the influence of alcohol
A22 Driving under the influence of drugs
A23 Driving under the influence of alcohol and drugs
A24 Driving under the influence of medication not intended to 
intoxicate
A25 Driving while impaired
A26 Drinking alcohol while operating a vehicle
A31 Illegal possession of alcohol
A33 Illegal possession of drugs (controlled substances)
A35 Possession of open alcohol container
A41 Driver violation of ignition interlock or immobilization device
A50 Motor vehicle used in the commission of a felony involving the 
manufacturing, distributing, or dispensing of a controlled substance
A60 Underage Convicted of Drinking and Driving at .02 or higher BAC
A61 Underage Administrative Per Se--Drinking and Driving at .02 or 
higher BAC
A90 Administrative Per Se for .10 BAC
A94 Administrative Per Se for .04 BAC
A98 Administrative Per Se for .08 BAC
B01 Hit and run--failure to stop and render aid after accident
B02 Hit and run--failure to stop and render aid after accident--
Fatal accident
B03 Hit and run--failure to stop and render aid after accident--
Personal injury accident
B04 Hit and run--failure to stop and render aid after accident--
Property damage accident
B05 Leaving accident scene before police arrive
B06 Leaving accident scene before police arrive--Fatal accident
B07 Leaving accident scene before police arrive--Personal injury 
accident
B08 Leaving accident scene before police arrive--Property damage 
accident
B14 Failure to reveal identity after fatal or personal injury 
accident
B19 Driving while out of service order is in effect and transporting 
16 or more passengers including the driver and/or transporting 
hazardous materials that require a placard
B20 Driving while license withdrawn
B21 Driving while license barred
B22 Driving while license canceled
B23 Driving while license denied
B24 Driving while license disqualified
B25 Driving while license revoked
B26 Driving while license suspended
B27 General, driving while an out of service order is in effect (for 
violations not covered by B19)
B41 Possess or provide counterfeit or altered driver license 
(includes DL, CDL, and Instruction Permit) or ID
B51 Expired or no driver license (includes DL, CDL, and Instruction 
Permit)
B56 Driving a CMV without obtaining a CDL
B91 Improper classification or endorsement on driver license 
(includes DL, CDL, and Instruction Permit)
D02 Misrepresentation of identity or other facts on application for 
driver license (includes DL, CDL, and Instruction Permit)
D06 Misrepresentation of identity or other facts to obtain alcohol
D07 Possess multiple driver licenses (includes DL, CDL, and 
Instruction Permit)
D16 Show or use improperly--Driver license (includes DL, CDL, and 
Instruction Permit)
D27 Violate limited license conditions
D29 Violate restrictions of driver license (includes DL, CDL, and 
Instruction Permit)
D72 Inability to control vehicle
D78 Perjury about the operation of a motor vehicle
E03 Operating without HAZMAT safety equipment as required by law
M09 Failure to obey railroad crossing restrictions
M10 For all drivers, failure to obey a traffic control device or the 
directions of an enforcement official at a railroad-highway grade 
crossing
M20 For drivers who are not required to always stop, failure to slow 
down at a railroad-highway grade crossing and check that tracks are 
clear of approaching train.
M21 For drivers who are not required to always stop, failure to stop 
before reaching tracks at a railroad-highway grade crossing when the 
tracks are not clear
M22 For drivers who are always required to stop, failure to stop as 
required before driving onto railroad-highway grade crossing
M23 For all drivers, failing to have sufficient space to drive 
completely through the railroad-highway grade crossing without 
stopping
M24 For all drivers, failing to negotiate a railroad-highway grade 
crossing because of insufficient undercarriage clearance
M80 Reckless, careless, or negligent driving
M81 Careless driving
M82 Inattentive driving
M83 Negligent driving
M84 Reckless driving
S95 Speed contest (racing) on road open to traffic
U07 Vehicular homicide
U08 Vehicular manslaughter
U09 Negligent homicide while operating a CMV
U10 Causing a fatality through the negligent operation of a CMV
U31 Violation resulting in fatal accident

    Issued on: July 25, 2005.
Jeffrey W. Runge,
Administrator.
[FR Doc. 05-14971 Filed 7-28-05; 8:45 am]
BILLING CODE 4910-59-P