Violations of Out-of-Service Orders by Commercial Motor Vehicle Operators; State Compliance With Commercial Driver's License Program; Rules DEPARTMENT OF TRANSPORTATION

Federal RegisterMay 18, 1994

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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

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.

* * * * *

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.