[Federal Register Volume 59, Number 95 (Wednesday, May 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11843]
[[Page Unknown]]
[Federal Register: May 18, 1994]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 384
[FHWA Docket No. MC-93-9]
RIN 2125-AC53
State Compliance With Commercial Driver's License Program
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: The FHWA is issuing standards which States must meet to comply
with section 12009(a) of the Commercial Motor Vehicle Safety Act of
1986 to avoid the loss of Federal-aid highway funds as provided in
section 12011 of the Act. In addition, this document provides a process
to determine annually whether each State meets these standards and to
withhold highway funds in the event of noncompliance.
EFFECTIVE DATE: June 17, 1994.
FOR FURTHER INFORMATION CONTACT: Mr. Neill L. Thomas, Driver Standards
Division, Office of Motor Carrier Standards (202) 366-4001, or Mr. Paul
Brennan, Chief, Motor Carrier Law Division, 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
In 1986, Congress enacted the Commercial Motor Vehicle Safety Act
(the Act) (Pub. L. 99-570, Title XII, 100 Stat. 3207-170, as amended;
49 U.S.C. app. 2701 et seq.) to improve the safety of commercial motor
vehicle (CMV) drivers throughout the Nation. The goals of the Act were
to:
(1) Prevent CMV drivers from concealing unsafe driving records by
carrying licenses from more than one State,
(2) Ensure that all CMV drivers demonstrate the minimum levels of
knowledge and skills needed to safely operate CMVs before being
licensed, and
(3) Subject CMV drivers to new, uniform sanctions for certain
unsafe driving practices.
To accomplish these goals, Congress assigned responsibilities and
deadlines to CMV drivers, employers, States, and the Secretary of
Transportation. All responsibilities of the Secretary of Transportation
in the Act were delegated to the FHWA. The responsibilities imposed on
the States were enumerated in section 12009(a) of the Act (49 U.S.C.
app. 2708(a)). An additional requirement, bringing the number to 22,
was later added to 49 U.S.C. app. 2708(a)(21) by the Intermodal Surface
Transportation Efficiency Act of 1991 (Pub. L. 102-240, sec. 4009, 105
Stat. 1914, 2156).
A notice of proposed rulemaking (NPRM) was published in the Federal
Register (58 FR 34344) on June 24, 1993. It set forth the specific
conditions for that compliance by States. That NPRM solicited comments
to Docket MC-93-9 which proposed amending title 49, Code of Federal
Regulations, to include a new part 384 to accommodate the State
compliance rules consisting of the 22 requirements and the procedures
to determine State compliance with the Act.
The requirements set forth in this rule are primarily directed
toward motor vehicle administrators and other State officials with
responsibility to develop, administer, and enforce the CDL program.
Nothing in this rule is intended to alter the existing responsibilities
of drivers of CMVs and their employers. The final rule addresses all 22
State requirements under 49 U.S.C. app. 2708(a). It also describes the
procedure by which the FHWA will determine whether a State is in
compliance and implements the Act's provisions for withholding of funds
under section 12011 (49 U.S.C. app. 2710) when a State is not in
compliance.
Generally, adaptations have been made to clarify the rule and make
it more closely conform to accepted practices within the States.
Specific time periods for States to execute disqualifying actions and
to issue the proper notifications have been modified. However, the FHWA
continues to believe that prompt notification to the licensing States
through the commercial driver's license information system (CDLIS) is
essential to achieve effective disqualification, which is one of the
primary objectives of the Act. The deadline for the initial State
certification of compliance has been eliminated and the second
certification has been postponed. All States should be able to comply
within the required time-frame. While further specific State
requirements may be useful, the FHWA is not considering these in this
rule, but may, at a later date, begin a new rulemaking to consider
enhancements to the program.
The Concept of Substantial Compliance
Title 49, U.S.C., app. 2710 requires the Secretary to withhold five
percent of a State's Federal-aid highway funds on the first day of the
fiscal year succeeding the first fiscal year beginning after September
30, 1992, throughout which the State does not substantially comply with
any requirement of 49 U.S.C. app. 2708(a). Thus, the FHWA proposed its
interpretation of substantial compliance with each of the 22
requirements of 49 U.S.C. app. 2708(a). The FHWA regards its standards
for substantial compliance as performance standards which each State
would have to meet by means of the demonstrable combined effect of its
statutes, regulations, administrative procedures, organizational
structures, internal control mechanisms, resource assignments, and
enforcement practices (i.e., all the components of its CDL program)
within the time-frames provided in this final rule. Under this
approach, a State that incorporates these standards verbatim into its
laws, but fails to implement and enforce them, could be found to be
noncompliant with the Act. However, a State that thoroughly implements
and enforces its CDL program by administrative means alone might be
determined to be in substantial compliance.
This concept of substantial compliance is incorporated in
Sec. 384.301 and further discussed with other comments on that section
later in this preamble.
Discussion of Comments
Twenty-nine submissions to the docket were received. Twenty-five of
these were from State agencies; three from associations, namely the
American Association of Motor Vehicle Administrators (AAMVA) which
represents all State licensing entities, the American Trucking
Associations (ATA), and Advocates for Highway and Auto Safety (AHAS);
and one from an individual. Comments from the States and AAMVA
generally addressed specific provisions that are now or will be
implemented by the States. Much of the information supplied by these
parties has been used by the FHWA to fine tune the regulation in order
for it to work more closely with existing State practices. The States
and AAMVA generally opposed those proposed provisions that they
believed would not be substantially under the control of the State
licensing entities. These included primarily the proposal to require
specific time limits for agency to agency and State to State
notification of, and driver disqualification for, convictions for
violations of certain offenses. Compliance necessarily involves
substantial cooperation between the State judicial system and the
responsible enforcement agencies. While AHAS is opposed to deferring
the compliance date on certain items, the States favor more time for
implementation of some of the requirements. The docket comments on the
notice are discussed below in more detail corresponding to the specific
provisions and issues they address. Also discussed are the dispositions
made in the final rule with respect to these issues.
Deadlines for Compliance
This rule requires States to certify for the first time that they
meet all CDL requirements for which regulations have been in place
prior to the publication of this rule. The effective date of that
certification has been moved back to July 18, 1994. In most cases, the
regulations date back to 1988 or earlier, which means the States have
had ample time to achieve compliance. In addition, the rule provides
the timing for implementation of other compliance items which are new
to the States and include:
(1) Satisfaction of the State disqualification requirement for non-
CDL holders (Sec. 384.231(b)(2));
(2) Required timing of record checks for new and transfer drivers
(Sec. 384.232); and
(3) Implementation of driver disqualifications for violations of
out-of-service orders (Sec. 384.222 [reserved]--see analysis ad locum).
Because some States anticipate considerable difficulty in
implementing items (1) and/or (2), the FHWA has decided to allow
additional time, until October 1, 1995, to meet these requirements.
Based upon the FHWA's interpretation of the term substantial
compliance, we are allowing States more time to comply with any new
requirements without a consequent loss of Federal-aid highway funds.
Since item (3) is the subject of a separate rulemaking which has not
been completed, the FHWA is not requiring State compliance until at
least October 1, 1996. The deferred date allows sufficient time, even
for States with biennial legislative sessions, to take the necessary
steps to assure compliance.
The AHAS suggests that the proposed October 1995 compliance date
for items (1) and (2) be permitted only for those States that require
action by biennial legislatures that meet only in odd-numbered years.
The compliance date would then be earlier for some States, creating
inconsistent enforcement and sanctions. The FHWA believes a uniform
deferred compliance date, as proposed, is preferable and necessary to
give States sufficient time to comply with the regulations and is
consistent with the intent of the Act. The first two provisions
requiring deferred compliance are new specific implementation
requirements within the scope of the provision set forth in the Act.
(The third provision, as discussed elsewhere, was required by other
legislation.) The Act clearly provides the date by which States must
substantially comply with its provisions, and this rule is allowing for
phase-in periods for certain requirements during which partial
compliance will be deemed substantial compliance.
Structure
The FHWA proposed to add a new part 384 to codify the State
compliance rules instead of including them in part 383. The FHWA views
this addition as preferable because it allows the concerned parties to
focus on those responsibilities that rest exclusively on the States.
Six States and the ATA supported the proposal to create a new part
rather than merge these regulations into part 383; AAMVA and two other
States opposed this proposal. The States that support the proposal
believe that it will be a practical reference for the States to use.
They comment that merging these requirements into part 383 would make
the rules more complex. The ATA also proposed that the State
requirements now in part 383, including portions of Subpart E; Testing
and Licensing Procedures, and Subpart J; Commercial Driver's License
Document, be moved to the new part 384. Although this suggestion might
further clarify State responsibilities, the FHWA believes these State
requirements which are now in part 383 are very important information
for other parties, such as drivers and employers. In addition, many
other portions of part 383 pertain to States as well as other parties
and would be difficult to separate.
The two States and AAMVA that oppose the creation of the new part
cited difficulty in understanding and interpreting the regulation,
possible problems resulting from different definitions and requirements
in the various regulations concerning motor carrier safety, the
possibility that this new section will in effect levy additional
requirements on the States, and the Paperwork Reduction Act of 1980.
While it is necessary to reference portions of part 383 in this new
part, the FHWA continues to believe that adding a separate part is less
confusing to States than including State compliance sections in a
longer more complex part 383. Definitions will not vary between parts
383 and 384. Any differences between those definitions and other parts
of the Federal Motor Carrier Safety Regulations (FMCSRs) are generally
unrelated to the licensing issues and are more appropriately addressed
in the FHWA's ongoing zero-based regulatory review. The FHWA has
carefully considered the issue of paperwork requirements in this
rulemaking and has concluded that the final rule minimizes reporting
and recordkeeping requirements to the most practical extent consistent
with the objectives of the law. For these reasons the FHWA intends to
proceed, as proposed, with new part 384. An analysis of each section of
the rule together with the comments on each section follows.
This rule has four subparts:
Subpart A contains the general provisions--purpose and scope,
applicability, and definitions
Subpart B presents the minimum standards for substantial compliance
by States based on, and in the exact order of, the 22 requirements of
49 U.S.C. app. 2708(a).
Subpart C specifies State and Federal procedures to determine
whether a State is in substantial compliance with the Act, and
Subpart D provides the consequences of State noncompliance.
Subpart A--General
Section 384.105--Definitions
This part relies on and supplements the definitions in part 383.
Terms defined in this part are applicable to part 383 as well as part
384. The following three areas, which have been the subject of
questions and interpretations in the context of compliance, are now
defined in the final rule.
Issue and issuance. The Act requires a State to make specific
checks of a driver's record before issuing a CDL, and prohibits a State
from issuing the CDL to a person subject to various licensing and other
sanctions, but it does not define the term issue. No comments were
received on this definition. Issue and issuance are defined in the
final rule as any of the licensing activities specifically mentioned in
Secs. 383.71 and 383.73, i.e., initial licensure, license transfers,
license renewals, and license upgrades (and any of those procedures
applied to nonresident CDLs, which are at the State's option). Applying
this definition to the minimum standard for substantial compliance with
the Act, States must perform the checks of the CDLIS (Sec. 384.205),
applicable State records (Sec. 384.206), and the National Driver
Register (NDR) (Sec. 384.220), prior to any initial, transfer, renewal,
or upgrade CDL action. In addition, States are prohibited from granting
any of these privileges to any person to whom the limitation on
licensing in Sec. 384.210 applies.
Licensing entity. Since one entity must be responsible for
administering the CDL process meeting the minimum standards of parts
383 and 384, the FHWA is using the term licensing entity to mean the
agency in the State with that responsibility. The intent of this
definition is to ensure there is an entity responsible for licensing
sanctions and notifications required in relation to convictions for
disqualifying violations. As mentioned at the outset of this preamble,
the prompt and effective removal of problem CMV drivers from the
Nation's highways is one of the fundamental goals of the CDL program.
These goals cannot be achieved unless the States use reliable
techniques to promptly inform each other of convictions and to
disqualify drivers expeditiously whenever necessary. A rapid flow of
information between the courts and the licensing agencies is an
essential element to a properly functioning State program. Although
more than one branch of State government is involved in processing this
information, the consequences of noncompliance attach to the State as a
whole.
Two States commented on the definition of licensing entity. One
questioned the use of this term to include all branches of State
government, while the other questioned application of that definition,
to place the burden of statewide compliance on the agency authorized to
issue driver licenses, but not the definition itself. The definition
does not include all branches of State government, only the agency that
is authorized to issue driver's licenses, and is necessary to fix
responsibility.
Year of noncompliance. Title 49, U.S.C., app. 2710 requires a
portion of a State's Federal-aid highway funding to be withheld on the
first day of the fiscal year succeeding the first fiscal year beginning
on the first day of the Federal fiscal year following the fiscal year
throughout which substantial noncompliance occurs. Thus, fiscal
sanctions would begin on October 1 of the Federal fiscal year
immediately following the year of noncompliance. The term year of
noncompliance is used to denote the Federal fiscal year in which the
FHWAs final determination of noncompliance, or the States failure to
certify compliance, takes place. No comments were received on this
definition.
Other comments on definitions. One State suggested that States
should be defined in part 384 as well as 383. Because the definitions
set forth in part 383 apply to part 384, the FHWA does not believe they
need to be repeated in part 384. An individual requested that
``fitness'' be defined. No definition of the word ``fitness'' is
needed. Simply put, the regulation in this part states that a person
can achieve fitness to drive by meeting the requirements of part 383.
Subpart B--Minimum Standards for Substantial Compliance by States
The analysis of this subpart presents each section of the proposal
as it relates to the corresponding section of the Act and, if
applicable, part 383.
The numbering scheme for sections in this subpart correlates with
that of 49 U.S.C. app. 2708(a). Thus, Sec. 384.201 of this proposal
implements 49 U.S.C. app. 2708(a)(1); Sec. 384.202 relates to 49 U.S.C.
app. 2708(a)(2); and so forth until Sec. 384.221, which implements the
intoxicating beverage portion of 49 U.S.C. app. 2708(a)(21). Section
384.222 is reserved for a related rulemaking that will address the
provisions for violations of out-of-service orders added to 49 U.S.C.
app. 2708(a)(21) by the Intermodal Surface Transportation Efficiency
Act of 1991.
Section 384.201--Testing Program
Section 384.201 paraphrases 49 U.S.C. app. 2708(a)(1). This section
requires the State to adopt and administer a CDL testing and licensing
program that meets the minimum standards of part 383 (in subparts B, E,
F, G, H, and J). Historically, prior to receiving the FHWA's approval
to issue CDLs, each State's testing and licensing practices had to pass
scrutiny based on those standards. While the testing and licensing
standards, promulgated in July 1988, have long been in place, the
explicit requirement that States set up CDL programs appears in the
regulation now for the first time. No comments were received on this
section.
Section 384.202--Test Standards
This section paraphrases 49 U.S.C. app. 2708(a)(2) and refers to
the testing and licensing portions of part 383. Four comments addressed
this section; three of the comments were from States and one was from
AAMVA. Three comments expressed concern that the regulations requiring
a ``written'' test would prohibit other formats. One comment noted that
part 383 refers to a driving skills test not a driving test. Two
commenters expressed concern that the driving skills test could not be
waived under these regulations. The FHWA has substituted ``knowledge
test'' for ``written test'' and added ``skills'' to ``driving test'' in
this section to address all of these comments. One comment noted that
waivers granted under Sec. 383.7 would no longer be permitted. That
issue is clarified in Sec. 384.204.
Section 384.203--Driving While Under the Influence
This section requires the State to have in effect and enforce a
0.04 blood alcohol concentration (BAC) standard for all CMV operators.
A person convicted of driving a CMV while violating the 0.04 BAC
standard must be disqualified as a CMV operator; i.e., through license
suspension, revocation, or cancellation. Two comments, from a State and
an individual, were received on this section. The State pointed out
that the wording in this section, as it was proposed in the NPRM, could
be interpreted to change the intent of the original BAC regulation, to
require a State statute specifically for ``driving a commercial motor
vehicle while under the influence.'' Thus, this section is reworded in
the final rule to more closely parallel the concept of substantial
compliance set forth in the final rule on this topic which was
published in the Federal Register on October 4, 1988 (53 FR 39044). As
such, it simply requires the State to have in effect and enforce
licensing sanctions as prescribed in Sec. 383.51, at the 0.04 BAC.
Section 384.204--CDL Issuance and Information
This section contains a general rule that paraphrases 49 U.S.C.
app. 2708(a)(4) and refers to subpart J of part 383. The general rule
contains two concepts: First, States can authorize persons to drive
CMVs only by means of issuing CDLs (this concept does not explicitly
appear in part 383 as it relates to States), second, each CDL must
contain the information specified in part 383, subpart J. Exceptions to
these requirements are provided for behind-the-wheel training and for
the practice of holding CDLs in trust pending adjudication of charges.
Two States commented on the first portion of this provision. One
commenter expressed concern that the rule did not allow drivers to be
waived under Sec. 383.7 as active duty military personnel and, at the
State's option, as farmers and firefighters. The FHWA reworded the
section referring to these waivers to clarify that such waivers are
permitted under this provision. The other commenter requested a
provision to allow drivers who are renewing their CDLs to continue to
drive temporarily when the CDLIS, NDR or State systems is non-
operational. The FHWA does not agree that such a provision is necessary
for several reasons. First, while there have been a few instances over
the past year when NDR or CDLIS was not operative, nearly all of these
occurrences were for forty-five minutes or less. Second, a document
that does not meet the CDL standard would unnecessarily compromise the
integrity of the system and make on-the-road enforcement more
difficult. Thus, the FHWA is not changing the regulation to accommodate
this concern.
The exemption for behind-the-wheel training, contained in
Sec. 383.23(c), is also incorporated in this section so that it is
included in the minimum standards for substantial compliance. The ATA
believes that the current regulations governing the learner's permit
are too restrictive. This issue will be considered in an ongoing
separate rulemaking, Learners' Permits for CMV Operators.
Some States take CDLs from drivers to facilitate enforcement of
traffic codes (e.g., for driving under the influence of alcohol).
Consequently, these States issue dated temporary substitutes, which are
being called ``receipts'' for the sake of convenience, that allow
continued driving pending a final disposition of the enforcement
proceeding. An exemption was proposed that would allow this enforcement
practice to continue. This exemption would have allowed this dated
temporary receipt to be good for not more than 30 days or until the
driver is convicted of a disqualifying offense (or offenses) under
Sec. 383.51, whichever occurred first. Eleven comments were received on
this issue; nine were from States, one was from AAMVA and one was from
an individual. One of the nine State commenters supported the provision
as proposed. Seven parties supported the provision but noted that
receipts should be valid for a period longer than 30 days because the
current processes used by States in these cases take more than 30 days.
The commenters suggested a variety of time periods. To address these
concerns, the final rule allows States that issue the receipts to
determine the validity period of those receipts.
One State commented that this provision should be subject to a
delayed compliance date because it is new. The FHWA is accommodating
existing procedures, not imposing a new requirement. An individual
commented that a State agency should not confiscate a CDL without the
consent of the issuing State. The FHWA believes that the current
arrangements between States are adequate to deal with what is a fairly
common practice of holding driver licenses issued by other States to
assure the appearance of the accused and those arrangements may
continue to apply.
Section 384.205--CDLIS Information; Section 384.206--State Record
Checks; and Section 384.220--National Driver Register (NDR) Information
These sections are related and will be addressed together. Title
49, U.S.C., app. 2708 (a)(5), which is addressed in 49 CFR 384.205,
requires each State to notify the CDLIS before issuing a CDL. Section
383.73(a)(3)(ii) implements this provision and requires the State to
conduct a check of the CDLIS to determine whether the driver applicant
already has a CDL, whether the applicant's license has been suspended,
revoked, or canceled, or whether the applicant has been disqualified
from operating a CMV. This check fulfills the advance notification
requirement of 49 U.S.C. app. 2708(a)(5) while also triggering the
provision in Sec. 384.210 which requires States to initiate the
licensing action or sanctioning process indicated from the information
received.
Title 49, U.S.C., app. 2708(a)(6), which is addressed in 49 CFR
384.206, requires a State to check the record of any applicant in any
other State that has issued the applicant a CDL. Section
383.73(a)(3)(i) similarly requires the State to check the applicant's
driving record as maintained by his or her current State of licensure.
Section 384.206 would harmonize these two requirements by specifically
requiring, as a prerequisite to licensing, two separate checks of State
records. First, a check of the State's own record pertaining to the
applicant and second, a check of the applicant's record in any other
State that has issued him or her a CDL would be required. As a
practical matter, when the State generates an inquiry, the CDLIS check,
under Sec. 384.205, incorporates the identifier information from the
CDLIS central file with the pointer to the driver's State of record
where all information on current and previous licenses is maintained.
If the check of the State record under Sec. 384.206 yields
information on the applicant that is relevant to the applicant's
qualification, the issuing State would be required to impose all
applicable licensing prerequisites, limitations, disqualifications, and
penalties as specified in other sections of this subpart.
Deliberately omitted from this requirement is a check of the
applicant's prior non-CMV record in other States, since it is not
specifically required in the Act and since direct State-to-State
transfers of such non-CMV records are not provided for in the CDLIS.
The NDR check in Sec. 384.220 is intended to capture any driving record
information on problem drivers who have non-CMV records in other
States.
Title 49, U.S.C., app. 2708(a)(20), as implemented in 49 CFR
384.220, clarifies that the State must check the NDR prior to any CDL
``issuance'' as defined herein. This check is required by section
12009(a)(20) of the Act and was implemented as an essential CDL State
licensing procedure in Sec. 383.73(a)(3)(iii). Although the Act
requires that the State give full weight and consideration to NDR
information in deciding whether to issue a CDL to an applicant,
Sec. 383.73(a)(3)(iii) prescribes no concrete action a State must take
based on a driver's NDR record, because that section is not a State
requirement per se. This section, therefore, describes the action to be
taken by defining ``full weight and consideration'' for substantial
compliance purposes. As in the case of the checks of the CDLIS
(Sec. 384.205) or of the State record (Sec. 384.206), if the
information produced in the NDR check would affect qualification, then
the licensing entity must take the appropriate action under
Secs. 384.215 through 384.219 or the licensing limitation of
Sec. 384.210. The FHWA believes this provision will ensure that the
limitations on licensing are applied in practice so that problem
drivers are prevented from receiving CDLs.
These sections also include time constraints on the record checks.
The timing of the record checks in Secs. 384.205, 384.206, and 384.220
is discussed in the analysis of Sec. 384.232.
In practice, the check of the NDR is generated along with the CDLIS
check. If any information from the CDLIS, State record check, or the
NDR indicates, as specified in Sec. 384.210, that the driver is not
qualified for the CDL, the license may not be issued. Because these
checks are accomplished together and all produce information that will
determine the driver's eligibility for the license, the comments on
these sections tended to overlap.
Four States, AAMVA, and an individual commented on these sections.
One State requested that Sec. 384.220 be further clarified to more
precisely specify when a license denial is required. Two States
commented on problems with non-driving or very old offenses that remain
on the record. One was concerned that the NDR shows offenses that are
not related to driving or are so old that a State should not be
required to give them consideration. One suggested five years as the
time after which States should not be required to give full faith and
credit to NDR records or nondriving related offenses. The individual
noted that certain types of citations and ensuing disqualifications
have been issued in error. The FHWA believes that actions on very old
and non-driving convictions are only required to the extent those
convictions apply to CDL qualification. The AAMVA noted that a State
receives from the CDLIS the current status of the driver's license and
then determines whether the driver is eligible for licensing under
Sec. 383.73. This confusion will be significantly reduced with the
inception of a fully operational Problem Driver Pointer System in 1995.
In the interim, all States are encouraged to continue to verify the
accuracy and validity of the NDR information.
Another State was concerned about the lack of an electronic source
for inquiries to other States. States may follow up NDR information
with either electronic or other types of communication with other
States in order to obtain more specific information. The FHWA strongly
encourages States to share pertinent information. The individual
proposed a National Law Enforcement Telecommunications System (NLETS)
check be included in the process. This is not being required because,
at this time, State licensing agencies do not all have access to NLETS,
but States should avail themselves of the resource as appropriate.
CDLIS and NDR together should sufficiently supply the information that
licensing agencies need to determine eligibility of commercial drivers.
Thus, Sec. 384.220 has not been changed.
Section 384.206--State Record Information Request
See discussion of this section above under Sec. 384.205.
Section 384.207-- Notification of Licensing
Title 49, U.S.C., app. 2708(a)(7), as implemented in
Sec. 383.73(f), provides that a State shall inform the operator of the
CDLIS of all CDL issuances. Generally, the transaction, which would
enter a new driver in the CDLIS system, would occur when the State
issues the initial CDL to a driver applicant. A transfer transaction
would record a change in the State of licensure and the driver's
license record; the driver's CDLIS record points to this State record.
See also 49 CFR 384.211. By contrast, renewals or upgrades would be
reflected on the driver's existing record in the State of licensure.
Although Sec. 383.73(f) requires the operator of the CDLIS to be
notified within ten days, notification should occur, as a practical
matter, automatically upon issuance. The FHWA is adopting the
Sec. 383.73(f) standard to ensure that all checks of and notifications
to the CDLIS needed to fulfill the intent of the Act are accomplished
for each license issuance.
One State commented about the timing of the CDLIS notifications and
proposed that CDL learners' permits be entered into the CDLIS.
Specifically, the State objected to the wording that ``notification
should occur, as a practical matter, automatically upon issuance.''
This language was not in the proposed rule, but was used in the
preamble to the NPRM as an explanation of the process. The regulation
does not require immediate notification although such immediate action
is desirable and for most States is the norm. The CDL instruction
permit issue will be addressed in the ongoing separate rulemaking,
Learners' Permits for CMV Operators. Therefore, the provision in the
final rule remains unchanged.
Section 384.208--[Reserved]
Title 49, U.S.C., app. 2708(a)(8)--which has not been implemented
by regulation--requires a State that disqualifies the holder of a CDL,
or that suspends, revokes, or cancels the person's CDL, to inform the
CDLIS and the State of licensure of such action. A specific standard
for substantial compliance is not needed because, in the CDL program,
it is the State of licensure that accomplishes disqualifications
involving license suspension, revocation, and cancellation. Moreover,
the CDLIS already makes the State of licensure the location of all
driver record information except for limited ``pointer'' data. No
comments were received on this section.
Section 384.209--Notification of Traffic Violations
State-to-State notification of all convictions for violations of
State or local law relating to motor vehicle traffic control (other
than parking violations) by CDL holders is mandated by the Act.
Therefore, the State of licensure can take all requisite disqualifying
and other administrative actions. The notification system is a pillar
of the CDL program. In keeping with the CDL program strategy of
removing problem CMV drivers from the road, the FHWA believes that
State compliance with the Act's notification requirements is essential
to highway safety. Without such notification, a driver who should be
disqualified may be able to continue driving--contrary to the mandate
and purpose of the Act.
Thus, the FHWA is requiring States to perform State-to-State
notifications for all traffic convictions of CDL holders (except
parking violations), whether or not the convictions are disqualifying
under Sec. 383.51, and regardless of the type of vehicle in which the
offense was committed. Furthermore, Title 49, U.S.C., app. 2708(a)(9)
requires State-to-State notification of all traffic convictions by ``a
person who operates a CMV.'' This means that the notification
requirement extends to non-CDL holders who illegally operate CMVs, who
commit traffic offenses (other than parking violations) while doing so,
and who are subsequently convicted of such offenses. This rule requires
State-to-State reporting of all such convictions.
The proposal also included time-frames in which the State-to-State
notification for CDL holders and non-CDL holders would have to take
place. For CDL holders, the NPRM proposed that the licensing entity in
the State of conviction would have to notify the State of licensure
within three business days after the date the former learns of the
conviction, and no more than 30 calendar days after the conviction
occurs. The notification would be by electronic means as established by
AAMVAnet, Inc., the operator of the CDLIS. For non-CDL holders the NPRM
proposed that the State of licensure be notified within 10 days after
being informed of the convictions and no more than 30 calendar days
after the conviction occurs. Since the convicted persons would not
necessarily appear in the CDLIS prior to their convictions, the
licensing entities could accomplish these notifications by any means
(not just electronically). See also Sec. 384.231(b) for proposed
disqualification requirements for non-CDL holders in the situation
described in this paragraph.
Fourteen States commented on the time periods proposed in this
section. All but one of these objected to at least some portion of the
proposed time periods for reporting convictions. Twelve of these
commenters stated that they could not meet the requirements or
otherwise objected to them. Several commenters noted that the licensing
entity may not receive notice of convictions from the courts in a
timely manner. One commented that the courts do not provide notice of
convictions to the licensing agency until the time for an appeal (which
is 30 days) has expired. Another stated that even though that State's
law requires the courts to notify the licensing agency within ten days,
the convictions are not always reported to them within 30 days. Several
States also noted that they could not meet the 3 and 10 day
requirements for notifying the licensing State. One said that if
information was not transmitted within the required time-frames the
result might be legal challenges to the use of the delayed information.
Others suggested that the requirement to transmit information
electronically was new.
Because many States are not prepared to meet the proposed reporting
deadlines, and because the legal and operational framework within which
they operate is so varied, the FHWA is eliminating the specific
reporting deadlines from this rule. Instead, the final rule requires
these notifications to be made ``as expeditiously as possible,'' until
such time as the FHWA completes work with the States through AAMVA and
the judicial outreach programs to explore options for providing timely
information to the licensing entities and prompt action on their part
to effectuate the licensing sanctions required by the Act. Once this
work is completed, the FHWA intends to initiate a separate rulemaking
to address this important issue. The FHWA recognizes that timely
notification is the key to quality enforcement of the CDL requirements
and States, therefore, should focus attention on ways to achieve timely
notification of convictions in the interim. Accordingly State agencies
must examine their current procedures and resources to devise the means
and consequences of achieving the fundamental objectives of the CMVSA.
Section 384.210--Limitation on Licensing
As mandated in 49 U.S.C. app. 2708(a)(10), this section prohibits
States from issuing CDLs to persons who are disqualified from operating
CMVs or who have a suspended, revoked, or canceled driver's license. In
addition, this section incorporates the limitation (in Sec. 383.73(g))
against licensing a person who is determined to have falsified
information on his or her CDL application. For purposes of the
limitation on licensing, ``disqualification'' explicitly includes all
elements of that term as defined in Sec. 383.5. In brief, these
elements are:
(a) The suspension, revocation, cancellation, or other withdrawal
by a State of a person's privileges to drive a CMV;
(b) A determination by the FHWA that a person is no longer
qualified to operate a CMV; or
(c) The loss of qualification which automatically follows
conviction of an offense listed in Sec. 383.51.
The last element of the ``disqualification'' definition in item (c)
above means that a State is prohibited from issuing a CDL to any person
for whom the required record checks in Secs. 384.205, 384.206, and/or
384.220 yield information on convictions that--while disqualifying
under Sec. 383.51--have not yet been translated into a license
suspension, revocation, or cancellation.
In conformity with Sec. 384.231(b)(2), a State is also prohibited
from issuing CDLs to non-CDL holders who are disqualified due to
convictions for CMV-disqualifying offenses. (See discussion at
Secs. 384.209 and 384.231(b)(2).)
While only five comments, from three States, AAMVA, and an
individual, specifically addressed this section, many of the comments
already discussed regarding Secs. 384.205, 384.206, and 384.220 also
relate these issues. Two of the States and AAMVA addressed the problems
that would result from inaccurate or out of date information. The
regulation has been modified to provide for verification by the States
of the accuracy and validity of information prior to action. One State
notes that some States do not have information about convictions prior
to the time licensing actions that are based on those convictions are
taken and these States are, therefore, unable to take action on those
unknown convictions. The regulation is not intended to require States
to act on information that is not available to them; however, once that
information becomes available, the appropriate action must be taken.
An individual noted that the differences between the definitions of
CMV in Secs. 383.5 and 390.5 could cause some problems interpreting the
status of disqualified CMV drivers. Specifically, the definition of
CMVs in Sec. 383.5 applies, in part, to vehicles weighing 26,001 or
more pounds and operating in interstate and intrastate commerce,
whereas the definition of CMV in Sec. 390.5 covers, in part, vehicles
weighing 10,000 or more pounds and operating in interstate commerce
only. Therefore, a question could arise whether a driver who is
disqualified under Sec. 383.51 from driving a CMV as defined in
Sec. 383.5 is also disqualified from driving a CMV as defined in
Sec. 390.5. Conversely, another question that could be asked is whether
a driver who is disqualified under Sec. 391.15 from driving a CMV as
defined in Sec. 390.5 is also disqualified from driving a CMV as
defined in Sec. 383.5. These important issues must be addressed, but
they are beyond the scope of this rulemaking. They will be considered
in a subsequent rulemaking.
Sections 384.211 (Return of Old Licenses) and 384.212 (Domicile
Requirement)
These sections implement 49 U.S.C. app. 2708(a)(11) and (a)(12),
respectively. In addition, Sec. 384.212 requires States to enforce the
requirement of Sec. 383.71(b) that a CDL holder apply for a license
transfer within 30 days of establishing domicile in a new State.
The actual disposition of the driver's old license documents is a
matter best left to the States involved. However, the FHWA prescribes
in Sec. 384.207 that the driver's State of record be changed from the
old to the new State by means of the CDLIS. This requirement will help
ensure that each CDL holder has only one record, a tenet of the Act. It
is also already a condition of participation in the CDLIS and, as such,
is the current practice of the States.
Four States commented on these sections. Three of these States
expressed concerns about drivers who legitimately lose their licenses.
This section only reiterates provisions already required in
Sec. 383.71. Nothing in that section or in this new Sec. 384.11
prohibits a State from issuing a replacement CDL to such a driver after
taking reasonable measures to preserve the integrity of the system.
One State commented that the requirement in Sec. 384.212(b) that
holds the State responsible for requiring CDL holders to apply for a
transfer CDL in the new State within 30 days after establishing
domicile is hard to administer since the State does not ordinarily have
knowledge of the length of time a person has resided in that State.
This requirement, which, like the previous one, is already a part of
Sec. 383.71, is fundamental to the integrity of the program. Each State
is expected to implement this provision within its own administrative
and enforcement framework.
Section 384.213--Penalties for Driving Without A Proper CDL
Title 49, U.S.C., app. 2708(a)(13) requires a State to impose such
penalties as it deems appropriate and the Secretary approves, for
operating a CMV while not having a CDL; while having any type of
driver's license suspended, revoked, or canceled; or while being
disqualified from operating a CMV. Section 384.213 would implement 49
U.S.C. app. 2708(a)(13) with the proviso that the CDL-related civil and
criminal penalties must be at least as severe as those imposed by the
State on noncommercial drivers. The FHWA believes this provision will
encourage States to ensure that the CDL program is efficiently
enforced.
There were no comments on this section. The final rule retains the
language used in the NPRM.
Section 384.214--Reciprocity.
The statute specifies that each State shall allow any non-
disqualified holder of a valid CDL issued by any other State to operate
a CMV in its State. 49 U.S.C. app. 2708 (a)(14). Section 383.73(h)
makes a State's granting of this licensing reciprocity mandatory. This
rule explicitly conditions the State's substantial compliance with the
CDL program on the same licensing reciprocity intended in part 383,
with two clarifications. First, the phrase ``State or jurisdiction''
was used to make it clear that a State must accept CDLs issued by
countries named in footnote 1 to Sec. 383.23(b). Currently, Canadian
licenses issued under the National Safety Code, and Mexico's new
Licencia Federal de Conductor, must be reciprocally accepted because
the FHWA has determined that those countries test drivers and issue
CDLs in accordance with the part 383 standards or their equivalent.
Second, to be reciprocally honored, a license, including any
endorsements, must be valid for the vehicle type being driven.
Three States and an individual commented on this section. They
noted that some States require additional certifications, which may
constitute additional licensing requirements beyond the CDL, of certain
out-of-state drivers. In addition, some States take direct actions,
such as suspension of driving privileges, on drivers from other States.
The CDL program is premised on the license issued, and acted on, by
only one State. Once a driver receives a CDL, the licensing State is
responsible for taking necessary action, and other States are
responsible for notifying the licensing State of convictions of the
driver. Because this concept is fundamental to the CDL program this
provision will not be changed.
Two States that do not share a border with Mexico requested
additional time to provide reciprocity for Mexican drivers. However,
although the new Licencia Federal de Conductor has been recognized as a
valid license since November 21, 1991, Mexican carriers may not
currently operate beyond the Interstate Commerce Commission border
commercial zones of the ports of entry in the four States that share a
border with Mexico. Mexican drivers may not drive in the U.S. for
domestic carriers without a work permit, issued by the U.S. Immigration
and Naturalization Service, which is based on need and residency. When
Mexican citizens become residents of a State they must obtain CDLs.
Agreements are expected which will eventually allow these drivers
access throughout the country. At that time all States must recognize
the new Licencia Federal de Conductor to permit access by Mexican
drivers. The FHWA expects all States that have not already done so to
provide for such recognition. Therefore, the final rule has not been
changed.
Sections 384.215 (First Offenses); 384.216 (Second Offenses); 384.217
(Drug Offenses); 384.218 (Second Serious Traffic Violation); and
384.219 (Third Serious Traffic Violation)
These sections implement the corresponding provisions of 49 U.S.C.
app. 2708(a)(15) through (a)(19). Section 384.231 contains minimum
standards, grouped together for economy of expression, that are
generally applicable to all these sections. In particular,
Sec. 384.231(a) specifies that it is the person's current State of
licensure that is responsible to implement the required
disqualifications.
Three comments were received from two States on these sections. One
State requested that Sec. 384.216(b) be clarified to explain which
State retains the right to determine whether a driver who has received
a lifetime disqualification may have that disqualification reduced if
the driver, after being disqualified, changes the State of domicile.
The regulation has been modified to specify that the current State of
domicile has this authority.
Two States commented on Sec. 384.219. One requested a time
extension for implementing portions of the ``serious traffic
violation'' as defined in Sec. 383.5. This final rule does not extend
the time to implement this provision because this definition, and hence
the requirement, has been in place since 1989. The FHWA believes this
is adequate time for implementation and no State should have difficulty
complying. Another commenter asked whether the 120 day disqualification
period that results from the three serious traffic violations in a
three year period can include the 60-day period for which the driver
was already disqualified. The FHWA interprets the Act to mean that the
120-day period must be separate and additional. The final rule is
modified to reflect this distinction.
Section 384.220--National Driver Register (NDR) Information
See the discussion of this section above, under Sec. 384.205.
Section 384.221 and Future Section 384.222 (Reserved in This Final
Rule)
These sections address two distinct infractions--violations of
alcohol prohibitions, and violations of out-of-service orders placed on
drivers for any reason including alcohol--for which Congress required
the States to apply sanctions under 49 U.S.C. app. 2708(a)(21).
Section 384.221--Out-of-Service Regulations (Intoxicating Beverage)
This section requires States to place out-of-service for 24 hours
any CMV driver who is found to be in violation of Sec. 392.5 (a) and
(c).
As interpreted by the FHWA and proposed in the NPRM, this is the
only requirement of 49 U.S.C. app. 2708(a) that applies both to all
drivers of CMVs as defined in part 383 and to all drivers of CMVs as
defined in part 390. (Generally, part 383 has a 26,001 pound gross
vehicle weight rating (GVWR) minimum threshold for CMVs, while part 390
has a 10,001 pound threshold. Both parts include as CMVs, regardless of
GVWR, vehicles placarded for hazardous materials or designed to
transport 16 or more persons including the driver.)
Seven States commented on this section. Five of these believed that
the smaller vehicles, those defined in Sec. 390.5 but not Sec. 383.5,
should not be subject to these provisions. One noted that including the
smaller vehicles would require additional legislation. Another
questioned the inclusion of Secs. 392.5(a)(1) and 392.5(a)(3),
believing that the real intent of this requirement is to place out-of-
service CMV drivers with any measurable and detectable presence of
alcohol under Sec. 392.55(a)(2).
The FHWA is aware that this provision is an enforcement provision,
the only one of the requirements that contains no CDL licensing
element. Upon further examination, the FHWA has determined that while
the intent of this provision, to place out-of-service all CMV drivers
who drive after drinking alcoholic beverages, remains the same,
clarification is needed. This provision pertains to the State but not
necessarily the licensing entity within the State. As such, the State
may show compliance with this provision through compliance with the
Motor Carrier Safety Assistance Program (MCSAP) within the timetable
prescribed under that program or, if the State does not participate in
the MCSAP program, under other appropriate State laws and procedures
that meet the requirements of that program. It should also be noted
that under new alcohol and drug regulations issued by the FHWA,
employers will also be required to place out-of-service, those drivers
who have tested ``positive'' for alcohol. The FHWA continues to believe
that all of Sec. 392.5(a) should be adopted by the States.
One State requested that this provision be subject to a deferred
compliance date. The FHWA believes that because States have had ample
time to implement this requirement, deferred compliance cannot be
justified, and, with the modification of the requirement discussed
above, this will not be needed. Two States commented on the problems
related to placing an out-of-service violation on the driver history
record. This is not required at this time.
Section 384.222--[Reserved]
This section number is reserved for a related rulemaking concerning
State responsibilities for disqualifying CMV drivers convicted of
violations of out-of-service orders of any kind--not just the out-of-
service orders that Sec. 384.221 would require States to impose for
intoxicating beverage infractions under Sec. 392.5. The FHWA has
initiated a rulemaking to establish the out-of-service violation as a
disqualifying offense in Sec. 383.51, (see 58 FR 4640, January 15,
1993), as required by the Intermodal Surface Transportation Efficiency
Act of 1991, and has not yet issued a final rule. For that reason, no
regulatory language on corresponding State responsibilities is included
here. However, Sec. 384.222 has been reserved for future placement of
the appropriate regulatory text relating to State compliance, when the
rule establishing the underlying disqualifications is finalized. The
FHWA's present intention is to make States responsible to enforce the
out-of-service related disqualifications no earlier than October 1,
1996.
Two comments were received on this section. A State commented on
the problems that might be expected in implementing such a regulation
and the Advocates for Highway and Auto Safety disagreed with the
proposal to defer the compliance date. These issues will be addressed
in the related rulemaking action.
Sections 384.223 Through 384.230--[Reserved]
Sections 384.231 and 384.232
These sections contain minimum standards that pertain to more than
one of the 22 State requirements of 49 U.S.C. app. 2708. To avoid the
repetition of these standards under each of the 22 requirements to
which they apply, they are grouped together here and cross-referenced
to the applicable sections.
Section 384.231--Satisfaction of State Disqualification Requirement
This section provides minimum standards that a State will be
required to meet to comply with Secs. 384.215 through 384.219.
Section 384.231(a)
This paragraph makes clear that it is the driver's current State of
licensure that must implement the disqualifications of Secs. 384.203
and 384.215 through 384.219; the licensing limitation of Sec. 384.210
(a responsibility also of any prospective State of licensure); and the
penalties of Sec. 384.213. This is true regardless of where any
relevant convictions may have occurred, and is needed to ensure that
the CDL program successfully prevents problem drivers from being issued
CDLs and operating on the highways. This provision is necessary to
ensure the integrity of the one-license-one-record concept.
No comments were received on this section.
Section 384.231(b)
This section, based upon 49 U.S.C. app. 2708(b) (Satisfaction of
State disqualification requirement), requires the State to fulfill its
responsibility to disqualify a CDL holder by means of suspending,
revoking, or canceling the driver's CDL.
Section 384.209, Notification of traffic violations, in part,
provides notification requirements for CMV-disqualifying convictions of
drivers for offenses committed while operating CMVs, even when those
drivers do not hold currently valid CDLs. Section 384.231(b) augments
Sec. 384.209 by requiring that, effective October 1, 1995, the State of
licensure maintain all records (including CDLIS entries) necessary to
prevent such a non-CDL holder from legally obtaining a CDL from any
State during the period of disqualification. Realizing that this
requirement was not clearly stated in previously issued regulations,
the FHWA proposed a deferred compliance date to give the States time to
implement this provision.
Two States and two associations commented on this section. The
AAMVA and one State expressed concern about mechanisms for tracking
these non-CDL holding drivers in the CDLIS, particularly when a social
security number is not available. Another State believed that it is the
State's responsibility to determine how to handle non-CDL related
driving privileges. While tracking drivers who are not properly
licensed is clearly more difficult than tracking properly licensed CDL
holders, the provisions of the Act clearly apply to persons who operate
commercial motor vehicles, not just those who are properly licensed to
do so. The FHWA is not mandating specific procedures for how such
drivers must be tracked. AAMVAnet is developing procedures for tracking
non-CDL holding drivers in the CDLIS, which should improve the States'
capacity to meet this responsibility.
The AHAS opposed deferred compliance. The FHWA continues to believe
that States need time to modify their own procedures to ensure
compliance. Therefore, the final rule keeps a deferred date for
compliance as proposed.
Section 384.231(c)
In this paragraph, the FHWA proposed to fix responsibility on the
licensing entity for meeting a three-day deadline for disqualifying
drivers (or, when appropriate, notifying the State of licensure)
following receipt of notification from the court system. A thirty-day
deadline, from the operative date of conviction to the date of
disqualification by the licensing entity, was proposed to be applied to
the State as a whole.
The FHWA has also recognized the need to clarify exactly when a
person's required period of disqualification begins, and when it ends.
Thus, the proposal specified that the disqualification period would
begin on the date that the licensing entity effects the suspension,
revocation, or disqualification. This is in keeping with the FHWA's
response to the many questions asked on this subject.
Thirteen States and the AAMVA protested at least some portion of
the proposed timing for the disqualification of drivers. Comments
stated that the proposed requirement to disqualify a driver within
three days of conviction notification allows no time for notification
of the driver, may violate a driver's due process rights, is too
restrictive, and is unreasonable. As for the 30 day provision, most
States commented that the licensing entity had no control over the
courts and thus could not be assured of receiving prompt notification
of convictions. It is clear that each State faces a different situation
in terms of requirements for due process by the courts and also by the
licensing entity. In addition, the licensing entity's legal and
administrative relationship with the courts and specific legal
requirements for transmitting information about convictions from the
courts to the licensing entity can vary from State to State. Staffing
and workload also differ between the States. Given these varying
conditions and the licensing entities' lack of control over the
judiciary, the FHWA has decided to address this issue in a separate
rulemaking. Therefore, the final rule will only require the States to
disqualify drivers as expeditiously as possible.
Three States and the AAMVA also commented on the starting date to
calculate the minimum disqualification period. All requested more
flexibility for determining this date. One State suggested rewording
this section to allow the disqualification period to start either on
the date on which the licensing entity acts or on the date of
conviction if this is in keeping with State procedures. To allow the
requested flexibility, the FHWA has elected not to provide in this rule
a specific number of days from the date of conviction from which a
State must begin the disqualification period. The FHWA will, however,
explore in the interim more effective timing of disqualification,
especially focusing on the in-State and State-to-State communication of
conviction information. These efforts will be coordinated with the
States and AAMVA and will be the subject of this future rulemaking.
Section 384.231(d)--Recordkeeping Requirements
Certain CDL disqualification requirements are triggered by multiple
convictions. To meet the disqualification standards, a State must
assure that multiple convictions stay on the books long enough to
reflect the mandated disqualification time periods and remove CMV
drivers from the road for certain unsafe driving behaviors. To
accomplish this, the proposal included the requirements that each
driver's identifying data remain on the CDLIS and that the related
conviction data remain in the State of record, so that--in the event of
a second or third such conviction--the appropriate disqualification can
be implemented. In particular, the proposal requested that the CDLIS
and the State of record retain information on a driver who receives an
absolute lifetime disqualification for a drug-related CMV felony
conviction, for example, so that no other State can subsequently issue
him or her a CDL. The proposed requirements are included in procedures
established by AAMVAnet, Inc., the operator of the CDLIS on behalf of
the States.
Two States commented on this issue. One believed the proposal was
reasonable and would promote consistency among States. The other wanted
a reduction or elimination of maintenance fees from AAMVAnet. This is
an issue between AAMVAnet and the States and is not addressed by the
FHWA. Thus, the FHWA, in this final rule, is requiring that States
adopt and use these AAMVAnet, Inc., requirements to be in compliance
with the Act.
Section 384.232--Required Timing of Record Checks
To effectively exclude ineligible applicants from obtaining CDLs,
the checks of the CDLIS, the State record(s), and the NDR (in
Secs. 384.205, 384.206, and 384.220, respectively) should occur
immediately, i.e., no more than 24 hours--prior to all CDL issuances,
as defined in Sec. 384.105. However, some States do not issue CDLs
over-the-counter and are thus unable to complete these checks within 24
hours before CDL issuance. Therefore, for licenses issued before
October 1, 1995, the FHWA proposed that the record checks should occur
no more than 10 days prior to issuance. For licenses issued after
September 30, 1995, however, the FHWA proposed to require that the
checks occur no more than 24 hours prior to issuance. This staged
implementation allows time for States to implement needed improvements
to their communication systems.
Seven States, the AAMVA, and AHAS commented on this issue. Six of
the States and the AAMVA expressed concerns about the 24-hour
requirement. They noted the difficulties associated with this
requirement for States that renew by mail and States that use more than
one agency to issue the CDL. In addition, they viewed the benefits of
such a requirement as limited. The AAMVA suggested that renewals be
exempt from the 24-hour requirement and subject to a 60-day
requirement.
The 10-day requirement for record checks seems to be acceptable to
most States and is being retained. Because the major benefit of the 24-
hour requirement will accrue to actions on new and transfer drivers,
the 24-hour checks will be required after September 30, 1995, for new
and transfer drivers only. This will allow States to continue existing
workable practices for renewing drivers who are already in the State
system and being tracked by the State.
The AHAS disagreed with the deferred compliance date associated
with this provision. However, the FHWA believes that this is necessary
to provide time for the States which currently issue licenses from a
central location to implement the new requirements.
Subpart C--Procedures for Determining State Compliance
This part of the proposal included two parallel mechanisms--
mandatory State certifications and discretionary FHWA reviews of State
CDL programs--either of which could trigger a finding of noncompliance.
Section 384.301--Substantial Compliance--General Requirement
This section summarizes the FHWA's concept of substantial
compliance, discussed above.
Seven States commented on this section. Four of the States
commented that the regulation seemed unnecessarily stringent, allowing
no room for error, and that adequate guidance to determine whether they
are in substantial compliance has not been provided. Others commented
on the lateness of the regulation and the inadequate time-frame for
meeting these requirements.
To address these concerns, the FHWA carefully reviewed each of the
requirements together with the associated time-frames to assure that
the requirements are reasonable. While States are expected to comply
completely as stated in this section, the FHWA has included the
principle of demonstrable combined effect in determining whether a
State is in substantial compliance, which will allow for the
recognition and accommodation of occasional mistakes and/or omissions,
without the threat or actual loss of highway funds.
Sections 384.303 and 384.305--State Certifications
The NPRM provided that by the tenth day of September, 1993, (the
last month of Federal fiscal year 1993), and by January 1 of every
subsequent Federal fiscal year, each State would make an annual
certification of substantial compliance with 49 U.S.C. app. 2708(a). If
a State fails to make a required certification it would be determined
to be out of compliance, and subject to the statutory reduction in
Federal-aid highway funding. The first two of these dates, September
10, 1993, and January 1, 1994, clearly cannot be met; therefore the
first State certification will be required by July 18, 1994.
The FHWA interprets 49 U.S.C. app. 2710(b) to mean that, in FY 1994
(from April 1) and thereafter, a State must continuously comply with
part 384, i.e., throughout the entire year. Thus, the certification due
by January 1 of any current fiscal year would cover the entire period
from the end of the prior fiscal year's certification (retrospectively)
through the date of the beginning of the next fiscal year
(prospectively). (For example, the certification due January 1, 1995
would cover the period from October 1, 1994 through September 30,
1995.) A January 1 deadline for each fiscal year's certification was
proposed because, in addition to paralleling the analogous requirement
in 23 CFR 657.17 (for size and weight enforcement), it would provide
the FHWA with sufficient time to review certifications and compliance.
This deadline would also enable the State to conduct a thorough review
of its compliance during the previous fiscal year as well as its
capacity to continue in compliance during the current fiscal year.
Ten States commented on these parts. Nine of these believe that the
September 10, 1993, certification should be eliminated or that this
certification and the one on January 1, 1994, together, are excessive.
As noted above these dates have been eliminated. Four States believed
that yearly certification should not be required. The Act, however,
clearly requires annual verification of compliance. The FHWA believes
that self-certification is preferable to mandated annual audits which
would be an unnecessary burden both to the FHWA and the States.
Section 384.307--FHWA Program Reviews of State Compliance
The FHWA will rely in the first instance on the State's
certification. The State is in a better position to evaluate its own
compliance with the standards. The FHWA will, at its discretion,
conduct reviews of State compliance with part 384 on a random and/or
cause basis relying on information obtained from the State and other
sources. The NPRM invited comments on whether the final rule should
prescribe the documents which the State would be obliged to maintain
for the FHWA.
If, in the course of a review, the FHWA makes a preliminary
determination that a State does not meet one or more of the standards
of subpart B, an informal resolution procedure will begin. The State
will be informed of any such preliminary determination before July 1 of
the fiscal year in which it is made; this deadline will help assure
that the State has adequate time to come into compliance prior to the
beginning of the next fiscal year, to avoid a withholding of funds.
The State will have up to 30 calendar days to respond to a
preliminary determination. Such response may include a prompt and
permanent correction of items cited as possible areas of noncompliance.
If, after reviewing the State's timely response, the FHWA still finds
the State to be in noncompliance, the FHWA will notify the State of its
final determination.
The FHWA believes that such a procedure, building on existing
Federal/State cooperation in the CDL program, will satisfactorily
protect the nationwide CDL program and the States' interests.
Five comments were received on this part, from three States, the
ATA, and an individual. The States commented on the documentation that
they believed should be required, with one in favor of prescribing
specific documents and two against. Specific documents will not be
prescribed in the rule; however, the FHWA will consider the development
of a checklist that will be available to assist States in meeting the
certification requirements. The ATA requested an opportunity for the
motor carrier industry to review and comment on the States'
certifications. The certification is a matter between the State and the
FHWA; therefore, such a review will not be provided by this rule. The
FHWA will, however, record complaints of State practices from any
external source for use in conducting program reviews. These complaints
may themselves be significant enough to trigger such reviews.
The individual noted that when new legislation or regulations are
promulgated, States need sufficient time for implementation. The FHWA
agrees that sufficient time must be provided for implementation, and
will provide this time when a change in a law or regulation is
implemented.
Section 384.309--Results of Compliance Determination
Any year in which a State fails to submit the required
certification, or in which the FHWA makes a final determination that a
State does not meet one or more of the standards of subpart B of this
part, will be considered a year of noncompliance. Such noncompliance
will trigger the consequences contained in subpart D. Conversely, if
timely certification is supplied and the FHWA makes no final
determinations of noncompliance, then the State will be deemed to be in
compliance for the year. No comments were received on this section.
Subpart D--Consequences of State Noncompliance
This subpart implements the detailed consequences of State
noncompliance laid out in section 12011 of the Act (49 U.S.C. app.
2710). During the fiscal year following a State's first year of
noncompliance, five percent of the State's Federal-aid highway funds
will be withheld; during the fiscal year following any year of
noncompliance other than the first, the amount withheld will be ten
percent. The citations to the categories of funds withheld under
Sec. 384.401 differ from the citations in section 12011 of the Act to
conform to changes made in the Federal-aid highway program by the
Intermodal Surface Transportation Efficiency Act of 1991.
This rule also sets forth the particulars, provided in the Act, for
various cases in which a State comes into compliance after having had
funds withheld. No comments were received on this section and no
changes have been made.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this final rule is significant under
Executive Order 12866. This document has been reviewed by the Office of
Management and Budget under that executive order. It is significant
regulation under the regulatory policies and procedures of the DOT
because of the substantial public interest in the issue of CMV safety
and the expected benefit to transportation.
A primary purpose of this rulemaking is to formalize as State
requirements the obligations already placed upon States in 49 CFR 383,
Commercial Driver's License Standards--Requirements and Penalties. Part
383 was already the subject of an extensive regulatory evaluation, a
copy of which has been placed for informational purposes in the public
docket for this rulemaking and is available for inspection in the
Headquarters office of the FHWA, 400 Seventh Street SW., Washington, DC
20590. Because the States are already complying with the underlying
requirements of part 383, and because the FHWA expects the States to
comply with these proposed regulations which impose few new mandates on
the States, the FHWA does not anticipate that material incremental
regulatory impacts, beyond those described in the regulatory evaluation
for part 383, would result from this rule.
Regulatory Flexibility Act
As explained in the preamble to the final rule on CDL testing and
licensing (53 FR 27647, July 21, 1988), the impacts of the CDL program
on small entities have already been considered. This rule, addressing
the States rather than employees and employers, will not have
identifiable incremental impacts on small entities, beyond those
already described with regard to part 383. Therefore, under the
criteria of the Regulatory Flexibility Act (5 U.S.C. 601-612), the FHWA
has evaluated the effects of this rule on small entities, and certifies
that this rule will not have a significant economic impact on a
substantial number of small entities.
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 State 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 initiative.
Title 49, U.S.C., app. 2708(a) lists 22 CDL program requirements
which States must meet to avoid the withholding of five or ten percent
of their Federal-aid highway construction funds. Most of these 22
requirements are already fully addressed in 49 CFR part 383 and covered
by the Federalism Assessment for that part. The remaining requirements,
addressed herein, constitute minimum standards which would have to be
followed by States and which may be supplemented by the States. This
rule limits the policymaking discretion of the States only in narrow
ways, and does so only to achieve the national purposes of the Act. The
procedures in subparts C and D either directly embody the provisions of
the Act or constitute a necessary procedural framework for implementing
the funds withholding sanctions set forth in 49 U.S.C. app. 2710.
Accordingly, it is certified that the policies contained in this
document have been assessed in light of, and accord fully with, the
principles, criteria, and requirements of the Federalism Executive
Order and that the requirements of this action that were not addressed
in the Federalism Assessment for 49 CFR 383 do not have sufficient
federalism implications to warrant the preparation of a separate, full
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
By virtue of the certifications required annually of the States
under subpart C, this action provides a minimal collection of
information requirement for purposes of the Paperwork Reduction Act of
1980, 44 U.S.C. 3501-3520. Accordingly, the information collection
request for commercial driver testing and licensing standards has been
approved by the Office of Management and Budget and assigned the
control number of 2125-0542 which expires on 12/31/96.
National Environmental Policy Act
The agency has analyzed this rule for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has
determined that this action would not have any effect on the quality of
the environment.
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 Part 384
Commercial driver's license documents, Commercial motor vehicles,
Driver qualification, Highways and roads, Motor carriers licensing and
testing procedures, and Motor vehicle safety.
Issued on: May 10, 1994.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA amends title 49, Code
of Federal Regulations, chapter III, subchapter B, as set forth below.
PART 384--[ADDED]
1. Chapter III is amended by adding part 384, to read as follows:
PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM
Subpart A--General
Sec.
384.101 Purpose and scope.
384.103 Applicability.
384.105 Definitions.
Subpart B--Minimum Standards for Substantial Compliance by States
384.201 Testing program.
384.202 Test standards.
384.203 Driving while under the influence.
384.204 CDL issuance and information.
384.205 CDLIS information.
384.206 State record checks.
384.207 Notification of licensing.
384.208 [Reserved]
384.209 Notification of traffic violations.
384.210 Limitation on licensing.
384.211 Return of old licenses.
384.212 Domicile requirement.
384.213 Penalties for driving without a proper CDL.
384.214 Reciprocity.
384.215 First offenses.
384.216 Second offenses.
384.217 Drug offenses.
384.218 Second serious traffic violation.
384.219 Third serious traffic violation.
384.220 National Driver Register information.
384.221 Out-of-service regulations (intoxicating beverage).
384.222 through 384.230 [Reserved]
384.231 Satisfaction of State disqualification requirement.
384.232 Required timing of record checks.
Subpart C--Procedures for Determining State Compliance
384.301 Substantial compliance-general requirement.
384.303 State certification for Federal fiscal year (FY) 1994.
384.305 State certifications for Federal fiscal years after FY
1994.
384.307 FHWA program reviews of State compliance.
384.309 Results of compliance determination.
Subpart D--Consequences of State Noncompliance
384.401 Withholding of funds based on noncompliance.
384.403 Period of availability; effect of compliance and
noncompliance.
Authority: 49 U.S.C. 3102; 49 U.S.C. app. 2505, 2701 et seq.;
and 49 CFR 1.48.
Subpart A--General
Sec. 384.101 Purpose and scope.
(a) Purpose. The purpose of this part is to ensure that the States
comply with the provisions of section 12009(a) of the Commercial Motor
Vehicle Safety Act of 1986 (49 U.S.C. app. 2708(a)).
(b) Scope. This part:
(1) Includes the minimum standards for the actions States must take
to be in substantial compliance with each of the 22 requirements of 49
U.S.C. app. 2708(a);
(2) Establishes procedures for determinations to be made of such
compliance by States; and
(3) Specifies the consequences of State noncompliance.
Sec. 384.103 Applicability.
The rules in this part apply to all States.
Sec. 384.105 Definitions.
(a) The definitions in part 383 of this title apply to this part,
except where otherwise specifically noted.
(b) As used in this part:
Issue and issuance mean initial licensure, license transfers,
license renewals, license upgrades, and nonresident commercial driver's
licenses (CDLs), as described in Sec. 383.73 of this title.
Licensing entity means the agency of State government that is
authorized to issue drivers' licenses.
Year of noncompliance means any Federal fiscal year during which--
(1) A State fails to submit timely certification as prescribed in
subpart C of this part; or
(2) The State does not meet one or more of the standards of subpart
B of this part, based on a final determination by the FHWA under
Sec. 384.307(c) of this part.
Subpart B--Minimum Standards for Substantial Compliance by States
Sec. 384.201 Testing program.
The State shall adopt and administer a program for testing and
ensuring the fitness of persons to operate commercial motor vehicles
(CMVs) in accordance with the minimum Federal standards contained in
part 383 of this title.
Sec. 384.202 Test standards.
No State shall authorize a person to operate a CMV unless such
person passes a knowledge and driving skills test for the operation of
a CMV in accordance with part 383 of this title.
Sec. 384.203 Driving while under the influence.
The State shall have in effect and enforce through licensing
sanctions the disqualifications prescribed in Sec. 383.51(b) at the
0.04 percent blood alcohol concentration level.
Sec. 384.204 CDL issuance and information.
(a) General rule. The State shall authorize a person to operate a
CMV only by issuance of a CDL, unless a waiver under the provisions of
Sec. 383.7 applies, which contains, at a minimum, the information
specified in part 383, subpart J, of this title.
(b) Exceptions.
(1) Training. The State may authorize a person, who does not hold a
CDL valid in the type of vehicle in which training occurs, to undergo
behind-the-wheel training in a CMV only by means of a learner's permit
issued and used in accordance with Sec. 383.23(c) of this title.
(2) Confiscation of CDL pending enforcement. A State may allow a
CDL holder whose CDL is held in trust by that State or any other State
in the course of enforcement of the motor vehicle traffic code, but who
has not been convicted of a disqualifying offense under Sec. 383.51
based on such enforcement, to drive a CMV while holding a dated receipt
for such CDL.
Sec. 384.205 CDLIS information.
Before issuing a CDL to any person, the State shall, within the
period of time specified in Sec. 384.232, perform the check of the
Commercial Driver's License Information System (CDLIS) in accordance
with Sec. 383.73(a)(3)(ii) of this title, and, based on that
information, shall issue the license, or, in the case of adverse
information, promptly implement the disqualifications, licensing
limitations, denials, and/or penalties that are called for in any
applicable section(s) of this subpart.
Sec. 384.206 State record checks.
(a) Required checks.
(1) Issuing State's records. Before issuing a CDL to any person,
the State shall, within the period of time specified in Sec. 384.232,
check its own driving record for such person in accordance with
Sec. 383.73(a)(3) of this title.
(2) Other States' records. Before initial or transfer issuance of a
CDL to a person, the issuing State shall, within the period of time
specified in Sec. 384.232, obtain from any other State or jurisdiction
which has issued a CDL to such person, and such other State(s) shall
provide, all information pertaining to the driving record of such
person in accordance with Sec. 383.73(a)(3) of this title.
(b) Required action. Based on the findings of the State record
checks prescribed in this section, the State shall issue the license,
or, in the case of adverse information, promptly implement the
disqualifications, licensing limitations, denials, and/or penalties
that are called for in any applicable section(s) of this subpart.
Sec. 384.207 Notification of licensing.
Within the period defined in Sec. 383.73(f) of this title, the
State shall:
(a) Notify the operator of the CDLIS of each CDL issuance;
(b) Notify the operator of the CDLIS of any changes in driver
identification information; and
(c) In the case of transfer issuances, implement the Change State
of Record transaction, as specified by the operator of the CDLIS, in
conjunction with the previous State of record and the operator of the
CDLIS.
Sec. 384.208 [Reserved]
Sec. 384.209 Notification of traffic violations.
(a) Required notification with respect to CDL holders. Whenever a
person who holds a CDL from another State is convicted of a violation,
in any type of vehicle, of any State or local law relating to motor
vehicle traffic control (other than a parking violation), the licensing
entity of the State in which the conviction occurs shall notify the
licensing entity of the person's State of licensure of the conviction
as expeditiously as possible.
(b) Required notification with respect to non-CDL holders. Whenever
a person who does not hold a CDL, but who is licensed to drive by
another State, is convicted of a violation, in a CMV, of any State or
local law relating to motor vehicle traffic control (other than a
parking violation), the licensing entity of the State in which the
conviction occurs shall notify the licensing entity of the person's
State of licensure of such conviction.
Sec. 384.210 Limitation on licensing.
The State shall not knowingly issue a CDL to a person during a
period in which:
(a) Such person is disqualified from operating a CMV, as
disqualification is defined in Sec. 383.5 of this title, or under the
provisions of Sec. 384.231(b)(2).
(b) Any type of driver's license held by such person is suspended,
revoked, or canceled by the State or jurisdiction of licensure for
driving related offenses which in the judgment of the licensing State
are based on valid information; or
(c) Such person is subject to the penalties for false information
contained in Sec. 383.73(g) of this title.
Sec. 384.211 Return of old licenses.
The State shall not issue a CDL to a person who possesses a
driver's license issued by another State or jurisdiction unless such
person first surrenders the driver's license issued by such other State
or jurisdiction in accordance with Secs. 383.71(a)(7) and (b)(4) of
this title.
Sec. 384.212 Domicile requirement.
(a) The State shall issue CDLs only to those persons for whom such
State is the State of domicile as defined in Sec. 383.5 of this title;
except that the State may issue a nonresident CDL under the conditions
specified in Secs. 383.23(b), 383.71(e), and 383.73(e) of this title.
(b) The State shall require any person holding a CDL issued by
another State to apply for a transfer CDL from the State within 30 days
after establishing domicile in the State, as specified in
Sec. 383.71(b) of this title.
Sec. 384.213 Penalties for driving without a proper CDL.
The State shall impose civil and criminal penalties for operating a
CMV while not possessing a CDL that is valid for the type of CMV being
driven; while having a driver's license suspended, revoked, or
canceled; or while being disqualified from operating a CMV. In
determining the appropriateness of such penalties, the State shall
consider their effectiveness in deterring this type of violation. The
State shall impose penalties on CMV drivers that are at least as
stringent as those imposed on noncommercial drivers for the same or
analogous offenses.
Sec. 384.214 Reciprocity.
The State shall allow any person to operate a CMV in the State who
is not disqualified from operating a CMV and who holds a CDL which is--
(a) Issued to him or her by any other State or jurisdiction in
accordance with part 383 of this title;
(b) Not suspended, revoked, or canceled; and
(c) Valid, under the terms of part 383, subpart F, of this title,
for the type of vehicle being driven.
Sec. 384.215 First offenses.
(a) General rule. The State shall disqualify from operating a CMV
each person who is convicted, as defined in Sec. 383.5 of this title,
in any State or jurisdiction, of a disqualifying offense specified in
Sec. 383.51(b)(2) (i) through (iv) of this title, for no less than one
year.
(b) Special rule for hazardous materials offenses. If the offense
under paragraph (a) of this section occurred while the driver was
operating a vehicle transporting hazardous materials required to be
placarded under the Hazardous Materials Transportation Act
(implementing regulations at 49 CFR 177.823), the State shall
disqualify the person for no less than three years.
Sec. 384.216 Second offenses.
(a) General rule. The State shall disqualify for life from
operating a CMV each person who is convicted, as defined in Sec. 383.5
of this title, in any State or jurisdiction, of a subsequent offense as
described in Sec. 383.51(b)(3)(iv) of this title.
(b) Special rule for certain lifetime disqualifications. The State
where the disqualified driver resides after 10 years of
disqualification have elapsed may reduce the lifetime disqualification
of a person disqualified for life under Sec. 383.51(b)(3)(iv) of this
title, to a minimum of ten years in accordance with
Sec. 383.51(b)(3)(v) of this title.
Sec. 384.217 Drug offenses.
The State shall disqualify from operating a CMV for life each
person who is convicted, as defined in Sec. 383.5 of this title, in any
State or jurisdiction, of using a CMV in the commission of a felony
described in Secs. 383.51(b)(2)(v) and 383.51(b)(3)(iii) of this title.
The State shall not apply the special rule in Sec. 384.216(b) to
lifetime disqualifications imposed for controlled substance felonies as
detailed in Secs. 383.51(b)(2)(v) and 383.51(b)(3)(iii) of this title.
Sec. 384.218 Second serious traffic violation.
The State shall disqualify from operating a CMV for a period of not
less than 60 days each person who, in a three-year period, is
convicted, as defined in Sec. 383.5 of this title, in any State(s) or
jurisdiction(s), of two serious traffic violations involving a CMV
operated by such person, as specified in Secs. 383.51(c)(1) and
383.51(c)(2)(i) of this title.
Sec. 384.219 Third serious traffic violation.
The State shall disqualify from operating a CMV for a period of not
less than 120 days each person who, in a three-year period, is
convicted, as defined in Sec. 383.5 of this title, in any State(s) or
jurisdiction(s), of three serious traffic violations involving a CMV
operated by such person, as specified in Secs. 383.51 (c)(1) and
(c)(2)(ii) of this title. This disqualification period shall be in
addition to any other previous period of disqualification.
Sec. 384.220 National Driver Register information.
Before issuing a CDL to any person, the State shall, within the
period of time specified in Sec. 384.232, perform the check of the
National Driver Register in accordance with Sec. 383.73(a)(3)(iii) of
this title, and, based on that information, promptly implement the
disqualifications, licensing limitations, and/or penalties that are
called for in any applicable section(s) of this subpart.
Sec. 384.221 Out-of-service regulations (intoxicating beverage).
The State shall adopt, and enforce on operators of CMVs as defined
in Secs. 383.5 and 390.5 of this title, the provisions of Sec. 392.5
(a) and (c) of this title in accordance with the Motor Carrier Safety
Assistance Program as contained in 49 CFR part 350 and applicable
policy and guidelines.
Secs. 384.222 through 384.230 [Reserved]
Sec. 384.231 Satisfaction of State disqualification requirement.
(a) Applicability. The provisions of Secs. 384.203, 384.206(b),
384.210, 384.213, 384.215 through 384.219, 384.221, and 384.231 apply
to the State of licensure of the person affected by the provision. The
provisions of Sec. 384.210 also apply to any State to which a person
makes application for a transfer CDL.
(b) Required action.
(1) CDL holders. A State shall satisfy the requirement of this part
that the State disqualify a person who holds a CDL by, at a minimum,
suspending, revoking, or canceling the person's CDL for the applicable
period of disqualification.
(2) Non-CDL holders (applies on and after October 1, 1995). A State
shall satisfy the requirement of this subpart that the State disqualify
a non-CDL holder who is convicted of an offense or offenses
necessitating disqualification under Sec. 383.51 by, at a minimum,
implementing the limitation on licensing provisions of Sec. 384.210 and
the timing and recordkeeping requirements of paragraphs (c) and (d) of
this section so as to prevent such non-CDL holder from legally
obtaining a CDL from any State during the applicable disqualification
period(s) specified in this subpart.
(c) Required timing. The State shall disqualify a driver as
expeditiously as possible.
(d) Recordkeeping requirements. The State shall maintain such
driver records and cause such driver identification data to be retained
on the CDLIS as the operator of the CDLIS specifies are necessary to
the implementation and enforcement of the disqualifications called for
in Secs. 384.215 through 384.219.
Sec. 384.232 Required timing of record checks.
The State shall perform the record checks prescribed in
Secs. 384.205, 384.206, and 384.220, no earlier than 10 days prior to
issuance for licenses issued before October 1, 1995. For licenses
issued after September 30, 1995, the State shall perform the record
checks no earlier than 24 hours prior to issuance if the license is
issued to a driver who does not currently possess a valid CDL from the
same State and no earlier than 10 days prior to issuance for all other
drivers.
Subpart C--Procedures for Determining State Compliance
Sec. 384.301 Substantial compliance--general requirement.
To be in substantial compliance with 49 U.S.C. app. 2708(a), a
State must meet each and every standard of subpart B of this part by
means of the demonstrable combined effect of its statutes, regulations,
administrative procedures and practices, organizational structures,
internal control mechanisms, resource assignments (facilities,
equipment, and personnel), and enforcement practices.
Sec. 384.303 State certification for Federal fiscal year 1994 (FY
1994).
(a) FY 1994 Certification Requirement. Prior to July 18, 1994, each
State shall review its compliance with this part and certify to the
Federal Highway Administrator as prescribed in paragraph (b) of this
section. The certification shall be submitted as a signed original and
four copies to the State Director or Officer-in-Charge, Office of Motor
Carriers, Federal Highway Administration, located in that State.
(b) FY 1994 Certification Content. The certification shall consist
of a statement signed by the Governor of the State, or by an official
designated by the Governor, and reading as follows: ``I (name of
certifying official), (position title), of the State (Commonwealth) of
__________, do hereby certify that the State (Commonwealth) is in
substantial compliance with all requirements of 49 U.S.C. app. 2708(a),
as defined in 49 CFR 384.301, and contemplates no changes in statutes,
regulations, or administrative procedures, or in the enforcement
thereof, which would affect such substantial compliance through [the
last date of the current Federal fiscal year].''
(Approved by the Office of Management and Budget under control
number 2125-0542)
Sec. 384.305 State certifications for Federal fiscal years after FY
1994.
(a) Certification requirement. Prior to January 1 of each Federal
fiscal year after FY 1994, each State shall review its compliance with
this part and certify to the Federal Highway Administrator as
prescribed in paragraph (b) of this section. The certification shall be
submitted as a signed original and four copies to the State Director or
Officer-in-Charge, Office of Motor Carriers, Federal Highway
Administration, located in that State.
(b) Certification content. The certification shall consist of a
statement signed by the Governor of the State, or by an official
designated by the Governor, and reading as follows: ``I (name of
certifying official), (position title), of the State (Commonwealth) of
__________, do hereby certify that the State (Commonwealth) has
continuously been in substantial compliance with all requirements of 49
U.S.C. app. 2708(a), as defined in 49 CFR 384.301, since [the first day
of the current Federal fiscal year], and contemplates no changes in
statutes, regulations, or administrative procedures, or in the
enforcement thereof, which would affect such substantial compliance
through [the last date of the current Federal fiscal year].''
(Approved by the Office of Management and Budget under control
number 2125-0542)
Sec. 384.307 FHWA program reviews of State compliance.
(a) FHWA Program Reviews. Each State's CDL program shall be subject
to review to determine whether or not the State meets the general
requirement for substantial compliance in Sec. 384.301. The State shall
cooperate with and provide information in conjunction with any program
reviews under this section.
(b) Preliminary FHWA determination and State response. If, after
review, a preliminary determination is made that a State does not meet
one or more of the standards of subpart B of this part, the State will
be informed accordingly prior to July 1 of the fiscal year in which the
preliminary determination is made. The State will have up to thirty
calendar days to respond to the preliminary determination. Upon request
by the State, an informal conference will be provided during this time.
(c) Final FHWA determination. If, after reviewing any timely
response by the State to the preliminary determination, a final
determination is made that the State is not in compliance with the
affected standard, the State will be notified of the final
determination.
Sec. 384.309 Results of compliance determination.
(a) A State shall be determined not substantially in compliance
with 49 U.S.C. app. 2708(a) for any fiscal year in which it:
(1) Fails to submit the certification as prescribed in this
subpart; or
(2) Does not meet one or more of the standards of subpart B of this
part, as established in a final determination by the FHWA under
Sec. 384.307(c).
(b) A State shall be in substantial compliance with 49 U.S.C. app.
2708(a) for any fiscal year in which neither of the eventualities in
paragraph (a) of this section occurs.
Subpart D--Consequences of State Noncompliance
Sec. 384.401 Withholding of funds based on noncompliance.
(a) Following first year of noncompliance. An amount equal to five
percent of the funds required to be apportioned to any State under each
of sections 104(b)(1), 104(b)(3), and 104(b)(5) of title 23, U.S.C.,
shall be withheld on the first day of the fiscal year following such
State's first year of noncompliance under this part.
(b) Following second and subsequent year(s) of noncompliance. An
amount equal to ten percent of the funds required to be apportioned to
any State under each of sections 104(b)(1), 104(b)(3), and 104(b)(5) of
title 23, U.S.C., shall be withheld on the first day of the fiscal year
following such State's second or subsequent year of noncompliance under
this part.
Sec. 384.403 Period of availability; effect of compliance and
noncompliance.
(a) Period of availability.
(1) Funds withheld on or before September 30, 1995. Any funds
withheld under this subpart from apportionment to any State on or
before September 30, 1995, shall remain available for apportionment to
such State as follows:
(i) If such funds would have been apportioned under 23 U.S.C.
104(b)(5)(B) but for the provisions of this subpart, such funds shall
remain available until the end of the second fiscal year following the
fiscal year for which such funds are authorized to be appropriated.
(ii) If such funds would have been apportioned under 23 U.S.C.
104(b)(1) or 104(b)(3) but for the provisions of this subpart, such
funds shall remain available until the end of the third fiscal year
following the fiscal year for which such funds are authorized to be
appropriated.
(2) Funds withheld after September 30, 1995. No funds withheld
under this subpart from apportionment to any State after September 30,
1995, shall be available for apportionment to such State.
(b) Apportionment of withheld funds after compliance. If, before
September 10 of the last fiscal year for which funds withheld under
this subpart from apportionment are to remain available for
apportionment to a State under paragraph (a) of this section, the State
makes the certification called for in Sec. 384.305 and a determination
is made that the State has met the standards of subpart B of this part
for a period of 365 days and continues to meet such standards, the
withheld funds remaining available for apportionment to such State
shall be apportioned to the State on the day following the last day of
such fiscal year.
(c) Period of availability of subsequently apportioned funds. Any
funds apportioned pursuant to paragraph (b) of this section shall
remain available for expenditure until the end of the third fiscal year
succeeding the fiscal year in which such funds are apportioned. Sums
not obligated at the end of such period shall lapse or, in the case of
funds apportioned under 23 U.S.C. 104(b)(5), shall lapse and be made
available by the Secretary for projects in accordance with 23 U.S.C.
118(b).
(d) Effect of noncompliance. If, at the end of the period for which
funds withheld under this subpart from apportionment are available for
apportionment under paragraph (a) of this section, the State has not
met the standards of subpart B of this part for a 365-day period, such
funds shall lapse or, in the case of funds apportioned under 23 U.S.C.
104(b)(5), shall lapse and be made available by the Secretary for
projects in accordance with 23 U.S.C. 118(b).
[FR Doc. 94-11843 Filed 5-17-94; 8:45 am]
BILLING CODE 4910-22-P
