Violations of Out-of-Service Orders by Commercial Motor Vehicle Operators; State Compliance With Commercial Driver's License Program; Rules |
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Rodney E. Slater
Federal Highway Administration
May 18, 1994
[Federal Register Volume 59, Number 95 (Wednesday, May 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-11844]
[[Page Unknown]]
[Federal Register: May 18, 1994]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
_______________________________________________________________________
49 CFR Parts 383, et al.
Violations of Out-of-Service Orders by Commercial Motor Vehicle
Operators; State Compliance With Commercial Driver's License Program;
Rules
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 383, 390, and 391
[FHWA Docket No. MC-92-13]
RIN 2125-AC93
Violations of Out-of-Service Orders by Commercial Motor Vehicle
Operators; Disqualifications and Penalties
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: The FHWA is amending the Federal Motor Carrier Safety
Regulations (FMCSRs) by making a conviction of any violation of an out-
of-service order by a driver of a commercial motor vehicle (CMV) a
disqualifying offense. Such a conviction will result in suspension,
revocation, or cancellation of the driver's commercial driver's license
(CDL), or disqualification by the FHWA, for a period of time from 90
days to five years. Civil monetary penalties are provided for both
drivers and their employers. This rule implements section 4009 of the
Motor Carrier Safety Act of 1991 and responds to a petition filed by
the Commercial Vehicle Safety Alliance (CVSA) on June 22, 1990. A
State's failure to adopt the requirements of this rule will result in a
withholding of Federal-aid highway funds. This action will deter the
illegal operation of CMVs in violation of an out-of-service order.
EFFECTIVE DATE: June 17, 1994.
FOR FURTHER INFORMATION CONTACT: Ms. W. Teresa Doggett, Driver
Standards Division, Office of Motor Carrier Standards (202) 366-4009,
or Mr. David Sett, Office of the Chief Counsel, (202) 366-0834, Federal
Highway Administration, 400 Seventh Street SW., Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except legal Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
On January 15, 1993, the FHWA published a notice of proposed
rulemaking (NPRM) (58 FR 4640) that would amend 49 CFR parts 383, 390,
and 391 to make a conviction of any violation of an out-of-service
order by a driver of a commercial motor vehicle (CMV) a disqualifying
offense. Such a conviction will result in suspension, revocation, or
cancellation of the driver's commercial driver's license (CDL), or
disqualification by the FHWA, for a period of time from 90 days to five
years. Civil monetary penalties were also proposed for both drivers and
their employers. The NPRM responded to section 4009 of the Motor
Carrier Act of 1991 (49 U.S.C. app. 2718), which directed the Secretary
of Transportation to establish sanctions, penalties, and
disqualifications relating to violations of out-of-service orders by
persons operating commercial motor vehicles.
The statute specifies that any operator of a CMV who is convicted
of a first violation of an out-of-service order is to be disqualified
for no less than 90 days. Subsequent violations would lead to
disqualification periods of from one to five years. The statute also
sets forth civil penalties of not less than $1,000 for drivers who are
convicted of a violation of an out-of-service order, and of not more
than $10,000 for employers who are convicted of knowingly allowing a
driver to violate an out-of-service order. Finally, the statute added
State adoption and enforcement of the penalties for out-of-service
violations to the list of conditions necessary to achieve ``substantial
compliance'' with section 12009(a) of the Commercial Motor Vehicle
Safety Act of 1986, and thereby avoid a withholding of apportioned
Federal-aid highway funds. 49 U.S.C. app. 2708, 2710.
The NPRM also responded to a June 22, 1990, petition filed by the
Commercial Vehicle Safety Alliance (CVSA), to include violations of
out-of-service orders as disqualifying offenses under the provisions of
the CDL program. The CVSA is an alliance of CMV safety enforcement
officials from the United States, the Canadian provinces and
territories, and the Federal government of Mexico.
Applicability
This rulemaking adds, to 49 CFR part 383 of the FMCSRs,
disqualification periods and civil penalties for drivers, and civil
penalties for employers, who violate out-of-service orders. Part 383
generally encompasses every driver of a motor vehicle that--
(1) Has a gross combination weight rating (GCWR) of 26,001 or more
pounds, inclusive of a towed vehicle with a gross vehicle weight rating
(GVWR) over 10,000 pounds;
(2) Has a GVWR of 26,001 pounds or more;
(3) Is designed to transport 16 or more passengers, including the
driver; or
(4) Is of any size and is used in the transportation of materials
found to be hazardous for the purposes of the Hazardous Materials
Transportation Act and which is required to be placarded under the
Hazardous Materials Regulations (49 CFR part 172, subpart F).
No exceptions to the applicability of CDL requirements are provided
in the regulations. Pursuant to the waiver authority granted in section
12013 of the Commercial Motor Vehicle Safety Act of 1986, however, the
FHWA, on September 26, 1988, issued specific waiver provisions covering
active-duty military personnel and, at each States discretion, certain
farmers, firefighters, and operators of emergency equipment (53 FR
37313). Similarly, on April 17, 1992, the FHWA issued a notice of final
disposition authorizing States to exempt certain employees of farm-
related service industries from CDL knowledge and skills testing,
allowing them to obtain a restricted CDL (57 FR 13650). Employees of
farm-related service industries are still subject to all other CDL
requirements. For these groups, the FHWA found that the waivers were
not contrary to the public interest and would not diminish the safe
operation of commercial motor vehicles.
To preserve consistency between 49 CFR part 383 (the CDL rules) and
49 CFR part 391 (qualifications of drivers), this action will also
extend the purview of these regulations requiring disqualifications for
violations of out-of-service orders to drivers of CMVs as defined in 49
CFR 390.5. This extension will affect all vehicles with a GVWR or GCWR
greater than 10,000 pounds. This extension, based upon the FHWA's
authority to establish minimum safety standards for CMVs, 49 U.S.C.
3102, 49 U.S.C. app. 2505, reflects the FHWA's belief that a smaller
vehicle operating while designated as an ``imminent hazard'' presents
the same kind of safety risk as a larger vehicle. Drivers of CMVs with
a GVWR or GCWR greater than 10,000 pounds are already subject to civil
penalties for violating out-of-service orders, as described in appendix
A (IV) to part 386. The driver disqualifications set forth in this
rulemaking will serve as an additional inducement to refrain from
illegally operating a CMV in violation of an out-of-service order.
Definition
Out-of-service orders are issued in various forms. Operations out-
of-service orders result from a Safety or Compliance Review conducted
by the FHWA or an authorized enforcement officer of a State or local
jurisdiction. Upon a finding of repeated failure to come into
compliance with the Federal Motor Carrier Safety Regulations (FMCSRs)
despite multiple enforcement actions, operations out-of-service orders
direct a motor carrier to cease all or that part of the motor carrier's
operations constituting an imminent hazard to safety. Additionally,
hazardous materials and passenger carriers assigned unsatisfactory
safety ratings are given 45 days to improve their ratings or have such
operations ordered out of service. 49 CFR 385.13.
Out-of-service orders may also be issued with respect to particular
drivers or vehicles, rather than for the overall operations of a motor
carrier. The CVSA, in cooperation with the FHWA, has established the
North American Uniform Out-of-Service Criteria governing driver,
vehicle, and hazardous materials out-of-service conditions. See 49 CFR,
chapter III, subchapter B, appendix G for a comparison of the out-of-
service criteria and the FHWA's periodic inspection standards. Driver
out-of-service criteria identify driver violations that render the CMV
operator unqualified to drive or required the operator to be ordered
out-of-service. Vehicle out-of-service criteria identify critical
vehicle inspection items and provide procedures for safety inspectors
to place vehicles in an out-of-service category. The hazardous
materials out-of-service criteria delineate similar items of
noncompliance, but are specifically designed to abate unsafe conditions
which may be particular to carriage of hazardous materials. The States
and jurisdictions which are members of the CVSA apply these out-of-
service criteria through the use of common inspection standards. The
great majority of these inspections are conducted at roadside
facilities.
Discussion of Comments
The NPRM generated 47 comments from interested parties, including:
26 States, 4 State associations, 2 motor carrier companies, 2 trade
associations, 6 agricultural associations, 2 local representatives of
the California United Transportation Union, a truckdriver, a member of
a custom harvester organization, the National School Transportation
Association, the Chemical Waste Transportation Institute, and the
American Trucking Associations (ATA). The comments were generally
supportive of the FHWA's efforts to make any violation of an out-of-
service order by a driver of a CMV a disqualifying offense resulting in
the loss of a CDL, or disqualification by the FHWA. Also, the
commenters were supportive of the need for appropriate monetary
sanctions for both drivers and motor carriers who violate out-of-
service orders.
The commenters raised issues in five general categories: (1)
Penalty structure; (2) types of offenses; (3) substantial State
compliance; (4) CMV weight threshold; and (5) notification system for
enforcement.
Penalty Structure
Twenty-two comments were received regarding the penalties proposed
in the NPRM for violations of out-of-service orders. A number of the
commenters stated that the FHWA should utilize the existing penalty
structure for serious traffic violations in 49 CFR 383.51(c) (60-day
disqualification for a second offense, 120 days for a third). The
Secretary of State of Illinois correctly noted that the proposal
elevates violations of out-of-service orders above serious traffic
violations in terms of penalties, opining that an unintended effect
might be to dilute the importance of other serious traffic violations.
Most of the commenters favored the proposed 90-day disqualification
for the first conviction of an out-of-service order. Six commenters
stated, however, that the five-year disqualification for a second or
subsequent violation of an out-of-service order is excessive. For
example, the North Carolina Department of Motor Vehicles (DMV) stated
that the proposal would result in an excessive adverse economic impact
on the driver. Several commenters suggested that unduly harsh penalties
might actually discourage convictions for second violations. North
Carolina DMV suggests the five-year disqualification for second or
subsequent violations be reduced to one year, with a third violation
carrying a more severe penalty, such as a five-year disqualification.
The ATA agreed with this more graduated scale, including a period of
not less than two years nor more than five years for a third or
subsequent offense.
Several States also suggested giving the States a range of
disqualification periods to apply. The Wisconsin Department of
Transportation stated that its legislature may resist the absolute
five-year disqualification period for second or subsequent convictions.
Wisconsin suggests allowing the courts to exercise discretion to order
a shorter period where the situation warrants.
The Wyoming Department of Transportation (DOT) expressed concern
that there is no timeframe provided for the enhanced penalty for a
second or subsequent conviction for violating an out-of-service order;
under the proposal, the more severe penalty for a subsequent violation
applies regardless of the time lapse between the first and subsequent
violations. The Wyoming DOT believes that although convictions may
remain on a driver's record for a lifetime, a hearing officer may very
well refuse to order a five-year disqualification for offenses that
occurred 20 to 50 years apart. The Wyoming DOT suggests that a
reasonable timeframe for enhanced penalties for subsequent violations
be included.
Several commenters suggested more severe sanctions based on the
nature of the violation. Two States commented that the penalties should
be more severe when violation of an out-of-service order results in an
injury or fatality. The CVSA suggests a longer disqualification period,
at least 180 days, for a first violation involving vehicles
transporting placardable loads of hazardous materials or transporting
passengers.
With respect to the civil penalties for violating out-of-service
orders, most commenters agreed that civil penalties should be assessed
for both employees and employers who violate out-of-service orders. All
commenters noted the disparity between the penalties imposed on the
driver and the employer. The proposal included a $1,000 minimum penalty
for drivers, with no maximum, and a $10,000 maximum penalty on
employers, with no minimum. This creates the potential for a motor
carrier to be assessed a lesser penalty than a driver for violating an
out-of-service order. Furthermore, by making violation of any out-of-
service order by the driver a per se offense, the NPRM would hold
drivers to a higher standard than motor carriers, for which knowledge
is a necessary element. Several commenters suggested providing a
minimum employer penalty at least equal to the $1,000 penalty imposed
on drivers and adding an intent requirement to the driver violation.
The Owner-Operator Independent Drivers Association (OOIDA) stated
that the disqualification of a driver from operating a commercial motor
vehicle is a sufficient penalty to deter drivers from operating an out-
of-service vehicle, obviating the need for civil penalties. The ATA,
while supporting the concept of driver penalties, suggested waiving the
statutory minimum penalty of $1,000 for drivers in favor of a process
which considers all relevant factors and affords the flexibility to
assess a lower penalty where warranted. The ATA noted that $1,000 is
the maximum penalty for violation of an out-of-service order in the
CVSA schedule of recommended penalties.
FHWA Response: Under 49 U.S.C. app. 2718, the FHWA must establish a
new category of disqualifications and penalties for violations of out-
of-service orders. Because the disqualification periods mandated by the
Congress for violations of out-of-service orders are different from the
periods for serious traffic offenses and other violations already
appearing in Sec. 383.51(b) and (c), they will be placed in a new
paragraph (d) in the revised structure of Sec. 383.51. The FHWA has no
discretion to include violations of out-of-service orders as serious
traffic offenses subject to lesser disqualification periods than those
required by 49 U.S.C. app. 2718. The statute requires that
disqualification for a first violation of an out-of-service order be
for a period of at least 90 days, and that subsequent violations carry
disqualification for periods of from one to five years.
Within these parameters, however, 49 U.S.C. app. 2718 grants the
FHWA flexibility. The proposal incorporated this flexibility by setting
the periods for second or subsequent violations of out-of-service
orders at the statutory maximum of five years. The FHWA acknowledges
the severity of the penalties proposed, and especially the potential
impact upon a driver's livelihood, but believes that a violation of an
out-of-service order presents an imminent hazard to highway safety and
must be treated accordingly. The FHWA further acknowledges the
importance to the States of ensuring fairness and judicial cooperation
in the process by allowing judges a measure of discretion in setting
sanctions.
In balancing these concerns, the FHWA finds that a more graduated
penalty structure, allowing judicial discretion, meets the needs of all
sides, is consistent with the current structure of CDL requirements,
and is within the scope of the congressional mandate. The
disqualification periods provided in the final rule are accordingly
changed to the following: (1) First violation--a driver who is
convicted of a first violation of an out-of-service order is
disqualified for a period of not less than 90 days and not more than
one year, (2) Second violation--a driver who is convicted of two
violations of out-of-service orders in separate incidents is
disqualified for a period of at least one year and not more than five
years, and (3) Third or subsequent violations--a driver who is
convicted of three or more violations of out-of-service orders in
separate incidents is disqualified for a period of at least three years
and not more than five years. Consistent with the structure of CDL
requirements, these disqualification periods are minimum standards and
the States are free to impose more stringent sanctions.
The statute is silent regarding the time between first and
subsequent violations. The proposal would attach the more severe
disqualification periods regardless of the time. The FHWA agrees with
the commenters that, consistent with the sanctions for serious traffic
violations, a reasonable timeframe should be added to the rule.
Therefore, the FHWA is setting a 10-year limit for the enhanced penalty
for second or subsequent violations.
In evaluating the suggestions to tailor sanctions to the nature of
the violation, the FHWA agrees that the sanctions should be more severe
when transporting hazardous materials or when operating motor vehicles
designed to transport more than 15 passengers, including the driver.
Section 383.51(b) currently provides for increased sanctions for
controlled substance and alcohol violations when transporting hazardous
materials. The special potential for catastrophic occurrences inherent
in both passenger and hazardous materials transportation, and the
consequent need for greater deterrence from violations, justify
extending the increased sanctions to both situations. The final rule
provides for a disqualification period of at least 180 days for a first
violation of an out-of-service order, and from three to five years for
any subsequent violations, involving the transportation of hazardous
materials or the operation of motor vehicles designed to transport more
than 15 passengers, including the driver. The FHWA believes that the
operation of motor vehicles ``designed to transport'' more than 15
passengers, including the driver, is consistent with current
regulations for definitions of ``commercial motor vehicle'' in part 383
and part 390.
The rule provides sanctions for operating any commercial motor
vehicle placed out-of-service. The statute does not address any
accidents that may occur from violating out-of-service orders.
Therefore, the FHWA does not believe that the length of the periods of
disqualification should be proportional to the accident or bodily
injury caused by the violation. Presumably, State criminal laws would
apply to intentional violations which result in injury.
Finally, the final rule incorporates the commenters' suggestions
regarding maximum and minimum civil penalties and driver intent, by
exercising the Secretary's discretion under the statute. The rule sets
a range of penalties of not less than $1,000 nor more than $2,500 for
drivers who violate out-of-service orders, and a range of not less than
$2,500 nor more than $10,000 for employers. The $2,500 maximum penalty
for drivers is consistent with 49 U.S.C. 521(b)(2)(B), which sets a
maximum of $2,500 for various CDL violations, including violations of
out-of-service orders issued under 49 CFR 392.5 (Section 12008(d)(2) of
the Commercial Motor Vehicle Safety Act of 1986). The $2,500 minimum
penalty for employers ensures that employers will not be assessed
lesser penalties than drivers, and is consistent with the penalties set
forth in 49 U.S.C. 521(b)(2)(A), which subjects employers to higher
civil penalties than employees.
Types of Offenses
The Michigan Department of State (DOS) made several comments
regarding the offenses defined in the rule. Michigan stated that the
rule does not appear to require State and local jurisdictions to add
any underlying, substantive safety standards, the violation of which
would lead to an out-of-service order, to its motor carrier
regulations. The rule merely requires that violations of out-of-service
orders under existing law lead to driver disqualifications and CDL
suspensions. This implies that a State must also add sections to its
regulations which prohibit violations of out-of-service orders.
Michigan DOS suggests that a section containing such a prohibition be
added to the rule.
Michigan DOS also commented that it understood the proposed
definition of ``out-of-service order'' in Sec. 383.5 as referring only
to out-of-service orders issued under Federal law, and not to such
orders issued under State or local law.
Michigan DOS further commented on the ``major shift in
responsibility'' occasioned by the rule's requirement that States
regulate and sanction employers for the first time, questioning whether
the expansion will be justified by the results. Many other commenters
supported assessing civil penalties against employers that knowingly
violate out-of-service orders.
FHWA Response: Michigan DOS is correct that the rule does not
require any changes or additions to substantive, underlying safety
regulations or the manner in which they are enforced. The FHWA strives
to achieve compatibility between Federal and State standards through
the Motor Carrier Safety Assistance Program (MCSAP) and 49 CFR part 355
(Compatibility of State Laws and Regulations Affecting Interstate Motor
Carrier Operations). States should continue to enforce their motor
carrier safety laws and regulations and issue out-of-service orders as
they are doing now. The rule also does not require changes in the
manner in which States detect out-of-service violations.
What the rule does require is that whenever any out-of- service
order is violated, sanctions must be placed on the offending party. The
final rule is being changed to clarify that the underlying out-of-
service order includes those issued by Federal, State, Canadian,
Mexican, and local officials under Federal, State, Canadian, Mexican,
and local law. The proposed rule referred only to out-of-service orders
issued under Federal law. The statute, however, includes no such
limitation. In practice, under the Federal/State partnership, States
apply State law which should be compatible with the FMCSRs. Federal,
State, Canadian, Mexican, and local jurisdictions that enforce the
FMCSRs through out-of-service conditions, such as those contained in
the current CVSA/FHWA North American Uniform Out-of-Service Criteria,
should consider violation of these criteria to be the same as violating
the FMCSRs. If a driver is convicted of a violation of any out-of-
service order under such compatible State law, the sanctions in this
rule must be imposed.
Currently, the FMCSRs contain provisions that prohibit the
operation of a CMV if the driver or the vehicle is not in compliance
with its requirements. Therefore, the States should already have in
their laws, through the Federal/State partnership and MCSAP, similar
prohibitions. In any event, States must ensure that they also prohibit
operation of vehicles and drivers that have been placed out-of-service,
or make any other amendments to their laws that are necessary to apply
the required sanctions.
Finally, the FHWA recognizes that currently many States generally
do not become involved in enforcement of safety regulations directly
against the motor carrier, choosing instead to focus efforts on
roadside enforcement against vehicles and drivers. By statute, the rule
adds penalties directed at motor carriers that knowingly allow, permit,
authorize, or require an employee to violate an out-of-service order.
This rule does not mandate any change in a State's existing
enforcement procedures toward motor carriers whose drivers violate out-
of-service orders. However, the FHWA does view the institution of
additional enforcement procedures as consonant with highway safety
goals, and encourages the implementation of such procedures as are
legally permissible within each State.
The FHWA acknowledges the jurisdictional hurdle facing a State
seeking to sanction a motor carrier whose principal place of business
is located in another State. Nothing in the rule, however, requires a
State to change its method of enforcement or of acquiring jurisdiction
over a motor carrier whose principal place of business is located in
another State. Though each State must enforce violations against each
motor carrier whose principal place of business is located within the
State, there may be instances where it is not within a State's
capability to enforce violations against a motor carrier whose
principal place of business is located outside of the State. In these
instances, States are encouraged to report evidence of out-of-service
violations, committed by motor carriers whose principal place of
business is located in another State, to the FHWA for enforcement
action.
Substantial Compliance
Several commenters were concerned with State responsibility for
implementing the rule. Under 49 U.S.C. app. 2708(a)(21), such
implementation is the 22d requirement for State participation in the
CDL program. Failure to achieve ``substantial compliance'' with the
requirements by October 1, 1993, would result in a State having
apportioned Federal-aid highway funds withheld under 49 U.S.C. app.
2710. All eight States commenting on the issue stated that it would be
virtually impossible to meet the deadline. Most recommended at least a
two-year extension for compliance.
For example, the Maryland Department of Transportation (DOT) stated
that the October 1, 1993, deadline gives States insufficient lead time
to pass appropriate legislation to incorporate the new requirement.
Maryland DOT recommends that the FHWA extend the compliance date to
September 30, 1996. The Utah Department of Public Safety is concerned
about the administrative processes required to implement the rule.
Implementation would necessitate substantial changes not only to Utah's
law, but also to its data processing system, its driver notification
letters, and agreements with the courts to forward conviction
information to the State licensing agencies, among other procedures.
A few States suggested that violations of out-of-service orders
should simply not be an item for substantial compliance. They stated
that because States and the CVSA are willing to adopt penalties on
their own, it should never become necessary to withhold apportioned
Federal-aid highway funds.
FHWA Response: The statute added State adoption and enforcement of
the penalties for out-of-service violations to the list of conditions
necessary to achieve substantial compliance with 49 U.S.C. app. 2708,
and thereby avoid having apportioned Federal-aid highway funds
withheld. The condition was placed in Sec. 2708(a)(21), along with
enforcement of drinking and driving regulations. The two conditions
differ enough that the FHWA regards this as the 22d requirement for
substantial compliance. The FHWA believes it would be contrary to the
public interest to waive all out-of-service violations requirements as
a condition for State participation.
The FHWA shares, however, State agencies' concerns with regard to
the October 1, 1993, deadline, which was established in 1986 for items
in the original legislation and has already passed. The FHWA
understands the complexity of revising State legislation and
establishing procedures to incorporate the new requirements into
existing systems. The FHWA is, therefore, extending the deadline for
achieving substantial compliance with the 22d requirement for State
participation, added as an item for substantial compliance in 1991,
until October 1, 1996. States are encouraged, of course, to implement
changes in their laws and regulations and begin State enforcement prior
to that date. States that discover out-of-service violations before
adding the disqualification and CDL suspension provisions to their laws
are encouraged to forward evidence of the violations to the FHWA for
possible institution of disqualification proceedings under Federal law.
This matter is fully addressed in a final rule on substantial
compliance with CDL requirements published elsewhere in today's Federal
Register.
The substantial compliance NPRM suggested a two-year extension of
the deadline (to October 1, 1995) for substantial State compliance with
the 22d requirement for State participation. However, we are changing
the date to allow three years for State compliance, thus making it
consistent with the time period required by Part 350, Motor Carrier
Safety Assistance Program, for States to adopt new requirements.
Weight Threshold
Several commenters, including OOIDA, agreed with the concept of the
FHWA using its general authority, to regulate motor carrier safety, to
extend the purview of the regulations requiring disqualifications for
violations of out-of-service orders to drivers of vehicles, in
interstate commerce, with a GVWR of greater than 10,000 pounds. The
OOIDA further stated that, as professional drivers who share the road
with these vehicles, its members believe that this category of vehicles
should be subject to the same careful regulation as their larger
counterparts.
The New York State Police stated that since the Federal (non-CDL)
definition of a CMV (Sec. 390.5) includes vehicles having a GVWR of
less than 26,000 pounds, and allows for the inspection and placing out-
of-service of unsafe vehicles, operators of such vehicles should also
be subject to the same sanctions for violations as those required to
obtain CDLs. The New York State Police support the proposal because it
goes beyond the State's present requirements and establishes nationwide
uniformity within the law enforcement community.
A few State agencies, including Maryland DOT, Delaware Department
of Public Safety (DPS), and Wyoming DOT stated that because of the
differences in the weight thresholds at which CDL requirements and 49
CFR parts 390-399 apply, the rule should apply to either CDL drivers or
drivers covered by those parts, but not both. The Delaware DPS
recommended that the out-of-service rule apply only to vehicles over
26,000 pounds GVWR in order to avoid conflict within the regulations
and confusion in the industry.
The Michigan DOS commented on the crossover effect of driver
disqualifications at the different weight thresholds. The Michigan DOS
stated that the scope of the proposed rule may be much broader than the
present CDL suspension provisions, since it appears a driver may be
disqualified for violating an out-of-service order issued while
operating a nonCDL-defined CMV. While the present CDL disqualification
provisions require that the offense be committed in a CDL-defined CMV,
Michigan DOS believes the proposed rule would require States to enact a
law which would impose a CDL suspension upon a driver who is convicted
of violating an out-of-service order while operating any CMV, CDL-type
or otherwise.
The Ohio Department of Highway Safety (DHS) commented that the
inclusion of mandatory disqualification sanctions related to the
operation of vehicles having a GVWR greater than 10,000 pounds is
inconsistent with the minimum testing requirements of the CDL program
which do not apply to CMVs under 26,001 pounds. The Ohio DHS stated
that including CMVs with a GVWR greater than 10,000 pounds results in a
two-tiered license sanctioning system at the State level, with CDL
license disqualifications affecting drivers of one class of CMVs and
current out-of-service orders affecting another class of CMVs. The Ohio
DHS further commented that in order to achieve consistency in the CDL
program, the current rules need to be revised to include a new
definition of commercial motor vehicle.
FHWA Response: The FHWA believes that operation of a smaller
vehicle having a GVWR between 10,001 and 26,000 pounds, which has been
designated as an imminent hazard to safety and placed out of service,
presents the same kind of safety risk as a larger vehicle. The presence
or absence of a CDL requirement does not alter this fact. The extension
of driver disqualification periods to transportation covered only by
parts 390 and 391 of the FMCSRs should serve as an additional deterrent
to operating an imminently hazardous vehicle or otherwise violating an
out-of-service order. Civil penalties for non-CDL violations of out-of-
service orders are already provided in appendix A to part 386 of the
FMCSRs and are not included in the final rule. This bifurcated
structure, with CDL and non-CDL standards, mirrors the structure of
disqualifications for driving under the influence of alcohol.
The FHWA agrees, however, with the comment by the Michigan DOS that
the proposed rule did not specify whether the violation need be
committed in a CDL-defined commercial motor vehicle for a CDL license
suspension to apply. Section 383.51(d) is, therefore, being amended to
reflect that the violation of an out-of-service order must occur in a
CDL-defined vehicle, as provided in the statute. This does not mean,
however, that the underlying violation leading to the out-of-service
order must have been committed in a CDL-defined vehicle. The underlying
violation may have occurred in a CDL-defined vehicle or a CMV as
defined in Sec. 390.5. The definition of ``out-of-service order'' in
Sec. 383.5 expressly refers to orders issued under the FMCSRs and
corresponding State law, which generally cover vehicles of 10,001
pounds or greater.
Of course, non-CDL underlying violations leading to CDL penalties
(suspension or revocation) can only arise with regard to driver and
operations out-of-service orders, and not with those placed on
vehicles. If a nonCDL-defined CMV is placed out-of-service, violation
of the order by operating the vehicle before it is repaired would not
occur in a CMV as defined in the rule. Therefore, CDL penalties would
not apply. A part 391 violation may have occurred, however, in the
unlikely event that a CDL holder in a 15,000 pound vehicle is placed
out of service under Sec. 395.13 for driving in excess of the maximum
allowable hours, and then operates a CDL-defined CMV. In this
situation, the driver's CDL will be suspended or revoked.
The States would be responsible for disqualification of CDL drivers
who are convicted of violating out-of-service orders while operating
CDL-defined CMVs. Disqualifications for violations of out-of-service
orders would be effected using the same procedures currently used to
disqualify drivers for being convicted of driving while under the
influence of alcohol or any of the other disqualifying offenses found
in 49 CFR 383.51.
The FHWA will conduct disqualification proceedings against nonCDL
drivers covered by the FMCSRs under 49 CFR part 386. The FHWA
encourages States, when promulgating the rule for violating out-of-
service orders for purposes of substantial compliance with CDL
requirements, to also extend the applicability of disqualifications to
violations of out-of-service orders occurring in CMVs as defined in
Sec. 390.5. States with regulations which are compatible with 49 CFR
391.15 may also issue disqualifications to nonCDL drivers. The FHWA
urges the States to disqualify the driver by whatever means it deems
necessary, including license withdrawal or suspension.
Notification System
There were 18 comments on this subject. All commenters, including
the CVSA, agreed that no law can be an effective deterrent unless it is
enforceable. The CVSA further stated that it is important that
commercial motor vehicle inspectors have immediate access to
information concerning drivers and vehicles that have been placed out
of service. This, they state, might require the development of a unique
information management system similar to the Commercial Driver's
License Information System (CDLIS).
Several States commented on the enforcement of violations of out-
of-service orders and notification to law enforcement officials. The
California Department of Motor Vehicles supported the concept of
increasing penalties for out-of-service violations, however, it stated
that the NPRM did not address how law enforcement agencies throughout
each State would know when a company or driver is issued an out-of-
service order, or if a company or driver had corrected the problem that
caused the violation. The Michigan DOS stated that new offenses may not
be effectively enforced unless an out-of-service notification system is
established.
The Ohio DHS commented that for those States which have separate
licensing and FMCSRs enforcement functions relative to CDL requirements
and which do not currently receive information on out-of-service
violations, the ability to determine administratively whether out-of-
service violations are received is the initial problem. Ohio DHS
further commented that the States must have a method of advising
enforcement officials that an out-of-service order violation exists.
The Maryland DOT commented that since the FHWA does not communicate
its disqualification penalties to the States, a new paragraph should be
added to part 391, requiring the FHWA to notify the driver's home State
of any driver disqualifications for violations of out-of-service orders
under the FMCSRs.
FHWA Response: The FHWA agrees that effective notification systems
must be developed to enable States to quickly learn of violations of
out-of-service orders. The FHWA also agrees that some form of
verification system would give law enforcement officials immediate
access to information about each CMV driver that has been issued an
out-of-service order, or notify them that the repairs have been made
and the out-of-service order is no longer valid.
The FHWA and the States are exploring various approaches to enhance
the out-of-service enforcement efforts of Federal, State, and local law
enforcement officials. Although national databases currently exist
which include commercial vehicle and driver violations, these systems
are not designed to address the ``real time'' data needs of enforcement
officials at the roadside.
Additionally, States that participate in the MCSAP program are
already required to include in their respective State Enforcement Plans
a description of their roadside inspection activities that ensure that
motor carriers make timely corrections of the out-of-service defects
and other safety violations cited on the roadside inspection reports
and that out-of-service drivers come into compliance with the
regulations. The reinspection activities shall include covert
operations to determine the extent of compliance with the States' out-
of-service orders. The MCSAP States also have tracking systems to
ensure that the motor carrier has certified that the safety violations
have been corrected and that the inspection report has been returned to
the issuing agency. 49 CFR 350.13.
In regard to tracing violations of out-of-service orders, when a
driver's CDL is suspended for convictions of violations of out-of-
service orders, that information will be placed on the driver's driving
history through CDLIS or other available information systems and,
therefore, will be accessible to the courts and the State departments
of motor vehicles.
The FHWA also acknowledges the need for notification to States
about Federal disqualifications of drivers. Through its internal
administrative procedures, the FHWA will ensure that disqualification
information is forwarded to the drivers' home State licensing agency.
Upon notification, the States should consider these violations.
Rulemaking Analyses and Notices
Regulatory Impact
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA 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. It is anticipated that the economic
impact of this rulemaking will be minimal because States already have
procedures in place to enforce disqualifying offenses under part 383.
This rule merely makes violating an out-of- service order a
disqualifying offense which could result in license suspension. This
action will enhance States' enforcement activities without requiring
them to make any changes or additions to their substantive, underlying
safety regulations or the manner in which their laws are enforced.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Based on the evaluation, the FHWA hereby certifies that this
action will not have a significant economic impact on a substantial
number of small entities. We believe that the overwhelming majority of
motor carriers, including small carriers and owner-operators, comply
with out-of-service orders that may be issued to their drivers.
Moreover, the FHWA believes that the adoption of this rule and the
attendant civil penalties and disqualification periods will serve as a
deterrent for drivers who may otherwise have violated out-of-service
orders. Accordingly, the FHWA believes that actual imposition of these
fines and penalties will be required infrequently.
Executive Order 12612 (Federalism Assessment)
The FHWA subjected the underlying rules in 49 CFR part 383, which
form the substantive basis for most of the requirements in this
rulemaking, to a full Federalism Assessment under Executive Order
12612. See 53 FR 27648. As a result of that analysis, the FHWA found
that the CDL program, embodied in 49 CFR part 383, accorded fully with
the letter and spirit of the federalism Executive Order.
Section 4009 of the Motor Carrier Act of 1991 requires the agency
to establish sanctions and penalties for drivers and motor carriers who
violate out-of-service orders, and further requires that States adopt
similar sanctions and penalties in order to participate in the CDL
program. Moreover, it is expected that, as a result of the MCSAP
program, these sanctions and penalties will also be adopted by the
States for violations by non-CDL truck and bus drivers who violate out-
of-service orders.
As mandated by section 4009, the rule limits the policymaking
discretion of the States, but does so only in narrow ways to achieve
the national purposes of the Act. Accordingly, it is certified that the
policies contained in this document have been assessed in light of, and
fully in accord with, the principles, criteria, and requirements of the
federalism Executive Order. Additionally, the requirements of this
action that were not addressed in the Federalism Assessment for 49 CFR
part 383 do not have sufficient federalism implications to warrant the
preparation of a separate Federalism Assessment.
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 apply to this program.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. 3501-3520.
National Environmental Policy Act
The agency has analyzed this section 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 have no effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action 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 action with the
Unified Agenda.
List of Subjects in 49 CFR Parts 383, 390, and 391
Commercial driver's license documents, Commercial motor vehicles,
Driver qualification, Highways and roads, Licensing and testing
procedures, Motor carriers, and Motor vehicle safety.
Issued on: May 9, 1994.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA hereby amends title 49,
Code of Federal Regulations, chapter III, subchapter B, as set forth
below.
PART 383--[AMENDED]
1. The authority citation for part 383 is revised to read as
follows:
Authority: 49 U.S.C. 3102; 49 U.S.C. app. 2505, 2701 et seq.;
and 49 CFR 1.48.
2. Section 383.5 is amended by adding, in alphabetical order, the
definition for out-of-service order as follows:
Sec. 383.5 Definitions.
* * * * *
Out-of-service order means a declaration by an authorized
enforcement officer of a Federal, State, Canadian, Mexican, or local
jurisdiction that a driver, a commercial motor vehicle, or a motor
carrier operation, is out-of-service pursuant to Secs. 386.72, 392.5,
395.13, 396.9, or compatible laws, or the North American Uniform Out-
of- Service Criteria.
* * * * *
3. In Sec. 383.37, paragraph (a) is amended by removing the last
word, ``or''; paragraph (b) is amended by removing the period at the
end and replacing it with ``; or'', and paragraph (c) is added to read
as follows:
Sec. 383.37 Employer responsibilities.
* * * * *
(c) In which the employee, or the motor vehicle he/she is driving,
or the motor carrier operation, is subject to an out-of-service order.
4. In Sec. 383.51, paragraph (d) is redesignated as paragraph (e),
and a new paragraph (d) is added to read as follows:
Sec. 383.51 Disqualification of drivers.
* * * * *
(d) Disqualification for violation of out-of-service orders.
(1) General rule. A driver who is convicted of violating an out-of-
service order while driving a commercial motor vehicle is disqualified
for the period of time specified in paragraph (d)(2) of this section.
In addition, such driver is subject to special penalties as contained
in Sec. 383.53(b).
(2) Duration of disqualification for violation of out-of-service
orders.
(i) First violation. A driver is disqualified for not less than 90
days nor more than one year if the driver is convicted of a first
violation of an out-of-service order.
(ii) Second violation. A driver is disqualified for not less than
one year nor more than five years if, during any 10-year period, the
driver is convicted of two violations of out-of-service orders in
separate incidents.
(iii) Third or subsequent violation. A driver is disqualified for
not less than three years nor more than five years if, during any 10-
year period, the driver is convicted of three or more violations of
out-of-service orders in separate incidents.
(iv) Special rule for hazardous materials and passenger offenses. A
driver is disqualified for a period of not less than 180 days nor more
than two years if the driver is convicted of a first violation of an
out-of-service order while transporting hazardous materials required to
be placarded under the Hazardous Materials Transportation Act (49
U.S.C. app. 1801-1813), or while operating motor vehicles designed to
transport more than 15 passengers, including the driver. A driver is
disqualified for a period of not less than three years nor more than
five years if, during any 10-year period, the driver is convicted of
any subsequent violations of out-of-service orders, in separate
incidents, while transporting hazardous materials required to be
placarded under the Hazardous Materials Transportation Act, or while
operating motor vehicles designed to transport more than 15 passengers,
including the driver.
(e) * * *
5. Section 383.53 is revised to read as follows:
Sec. 383.53 Penalties.
(a) General rule. Any person who violates the rules set forth in
subparts B and C of this part may be subject to civil or criminal
penalties as provided for in 49 U.S.C. 521(b).
(b) Special penalties pertaining to violation of out-of-service
orders.
(1) Driver violations. A driver who is convicted of violating an
out-of-service order shall be subject to a civil penalty of not less
than $1,000 nor more than $2,500, in addition to disqualification under
Sec. 383.51(d).
(2) Employer violations. An employer who is convicted of a
violation of Sec. 383.37(c) shall be subject to a civil penalty of not
less than $2,500 nor more than $10,000.
PART 390--[AMENDED]
6. The authority citation for part 390 continues to read as
follows:
Authority: 49 U.S.C. app. 2503 and 2505; 49 U.S.C. 3102 and
3104; and 49 CFR 1.48.
7. Section 390.5 is amended by adding, in alphabetical order, the
definition for out-of-service order as follows:
Sec. 390.5 Definitions.
* * * * *
Out-of-service order means a declaration by an authorized
enforcement officer of a Federal, State, Canadian, Mexican, or local
jurisdiction that a driver, a commercial motor vehicle, or a motor
carrier operation, is out-of-service pursuant to Secs. 386.72, 392.5,
395.13, 396.9, or compatible laws, or the North American Uniform Out-
of-Service Criteria.
* * * * *
PART 391--[AMENDED]
8. The authority citation for part 391 continues to read as
follows:
Authority: 49 U.S.C. app. 2505; 49 U.S.C. 504 and 3102; and 49
CFR 1.48.
9. Section 391.15 is amended by adding a new paragraph (d) to read
as follows:
Sec. 391.15 Disqualification of drivers.
* * * * *
(d) Disqualification for violation of out-of-service orders.
(1) General rule. A driver who is convicted of violating an out-of-
service order is disqualified for the period of time specified in
paragraph (d)(2) of this section.
(2) Duration of disqualification for violation of out-of-service
orders.
(i) First violation. A driver is disqualified for not less than 90
days nor more than one year if the driver is convicted of a first
violation of an out-of-service order.
(ii) Second violation. A driver is disqualified for not less than
one year nor more than five years if, during any 10-year period, the
driver is convicted of two violations of out-of-service orders in
separate incidents.
(iii) Third or subsequent violation. A driver is disqualified for
not less than three years nor more than five years if, during any 10-
year period, the driver is convicted of three or more violations of
out-of-service orders in separate incidents.
(iv) Special rule for hazardous materials and passenger offenses. A
driver is disqualified for a period of not less than 180 days nor more
than two years if the driver is convicted of a first violation of an
out-of-service order while transporting hazardous materials required to
be placarded under the Hazardous Materials Transportation Act (49
U.S.C. app. 1801-1813), or while operating motor vehicles designed to
transport more than 15 passengers, including the driver. A driver is
disqualified for a period of not less than three years nor more than
five years if, during any 10-year period, the driver is convicted of
any subsequent violations of out-of-service orders, in separate
incidents, while transporting hazardous materials required to be
placarded under the Hazardous Materials Transportation Act, or while
operating motor vehicles designed to transport more than 15 passengers,
including the driver.
[FR Doc. 94-11844 Filed 5-17-94; 8:45 am]
BILLING CODE 4910-22-P