State Compliance With Commercial Driver's License Program

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