[Code of Federal Regulations] [Title 49, Volume 4] [Revised as of October 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 49CFR350.211] [Page 768-777] TITLE 49--TRANSPORTATION CHAPTER III--FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM--Table of Contents Subpart B--Requirements for Participation Sec. 350.211 What is the format of the certification required by Sec. 350.209? The State's certification must be consistent with the following content: I (name), (title), on behalf of the State (or Commonwealth) of (State), as requested by the Administrator as a condition of approval of a grant under the authority of 49 U.S.C. 31102, as amended, do hereby certify as follows: 1. The State has adopted commercial motor carrier and highway hazardous materials safety rules and regulations that are compatible with the FMCSRs and the HMRs. 2. The State has designated (name of State CMV safety agency) as the lead agency to administer the CVSP for the grant sought and (names of agencies) to perform defined functions under the plan. These agencies have the legal authority, resources, and qualified personnel necessary to enforce the State's commercial motor carrier, driver, and highway hazardous materials safety laws or regulations. 3. The State will obligate the funds or resources necessary to provide a matching share to the Federal assistance provided in the grant to administer the plan submitted and to enforce the State's commercial motor carrier safety, driver, and hazardous materials laws or regulations in a manner consistent with the approved plan. 4. The laws of the State provide the State's enforcement officials right of entry and inspection sufficient to carry out the purposes of the CVSP, as approved, and provide that the State will grant maximum reciprocity for inspections conducted pursuant to the North American Standard Inspection procedure, through the use of a nationally accepted system allowing ready identification of previously inspected CMVs. 5. The State requires that all reports relating to the program be submitted to the appropriate State agency or agencies, and the State will make these reports available, in a timely manner, to the FMCSA on request. 6. The State has uniform reporting requirements and uses FMCSA designated forms for record keeping, inspection, and other enforcement activities. 7. The State has in effect a requirement that registrants of CMVs declare their knowledge of the applicable Federal or State CMV safety laws or regulations. 8. The State will maintain the level of its expenditures, exclusive of Federal assistance, at least at the level of the average of the aggregate expenditures of the State and its political subdivisions during State or Federal fiscal years 1997, 1998, and 1999. These expenditures must cover at least the following four program areas, if applicable: (a) Motor carrier safety programs in accordance with 49 CFR 350.301. (b) Size and weight enforcement programs. (c) Traffic safety. (d) Drug interdiction enforcement programs. 9. The State will ensure that CMV size and weight enforcement activities funded with MCSAP funds will not diminish the effectiveness of other CMV safety enforcement programs. 10. The State will ensure that violation fines imposed and collected by the State are consistent, effective, and equitable. 11. The State will ensure it has a program for timely and appropriate correction of all violations discovered during inspections conducted using MCSAP funds. 12. The State will ensure that the CVSP, data collection, and information systems are coordinated with the State highway safety program under title 23, U.S. Code. The name of the Governor's highway safety representative (or other authorized State official [[Page 769]] through whom coordination was accomplished) is ------------. (Name) 13. The State participates in SAFETYNET and ensures information is exchanged with other States in a timely manner. 14. The State has undertaken efforts to emphasize and improve enforcement of State and local traffic laws as they pertain to CMV safety. 15. The State will ensure that MCSAP agencies have departmental policies stipulating that roadside inspections will be conducted at locations that are adequate to protect the safety of drivers and enforcement personnel. 16. The State will ensure that requirements relating to the licensing of CMV drivers are enforced, including checking the status of CDLs. 17. The State or a local recipient of MCSAP funds will certify that it meets the minimum Federal standards set forth in 49 CFR part 385, Subpart C, for training and experience of employees performing safety audits, compliance reviews, or driver/vehicle roadside inspections. Date____________________________________________________________________ Signature_______________________________________________________________ [65 FR 15102, Mar. 21, 2000, as amended at 67 FR 12779, Mar. 19, 2002; 67 FR 61820, Oct. 2, 2002;] Sec. 350.213 What must a State CVSP include? The State's CVSP must reflect a performance-based program, and contain the following eighteen items: (a) A general overview section that must include the following two items: (1) A statement of the State agency goal or mission. (2) A program summary of the effectiveness of the prior years' activities in reducing CMV accidents, injuries and fatalities, and improving driver and motor carrier safety performance. Data periods used must be consistent from year to year. This may be calendar year or fiscal year or any 12-month period of time for which the State's data is current. The summary must show trends supported by safety and program performance data collected over several years. It must identify safety or performance problems in the State and those problems must be addressed in the new or modified CVSP. (b) A brief narrative describing how the State program addresses the national program elements listed in Sec. 350.109. The plan must address these elements even if there are no planned activities in a program area. The rationale for the resource allocation decision must be explained. The narrative section must include a description of how the State supports the activities identified in Sec. 350.201(q) and (t). (1) Activities aimed at removing impaired CMV drivers from the highways through adequate enforcement of restrictions on the use of alcohol and controlled substances and by ensuring ready roadside access to alcohol detection and measuring equipment. (2) Activities aimed at providing an appropriate level of training to MCSAP personnel to recognize drivers impaired by alcohol or controlled substances. (3) Interdiction activities affecting the transportation of controlled substances by CMV drivers and training on appropriate strategies for carrying out those interdiction activities. (4) Activities to enforce registration requirements under 49 U.S.C. 13902 and 49 CFR part 365 and financial responsibility requirements under 49 U.S.C. 13906, 31138 and 31139 and 49 CFR part 387. (c) A definitive problem statement for each objective, supported by data or other information. The CVSP must identify the source of the data, and who is responsible for its collection, maintenance, and analysis. (d) Performance objectives, stated in quantifiable terms, to be achieved through the State plan. Objectives must include a measurable reduction in highway accidents or hazardous materials incidents involving CMVs. The objective may also include documented improvements in other program areas (e.g., legislative or regulatory authority, enforcement results, or resource allocations). (e) Strategies to be employed to achieve performance objectives. Strategies may include education, enforcement, legislation, use of technology and improvements to safety infrastructure. (f) Specific activities intended to achieve the stated strategies and objectives. Planned activities must be eligible under this program as defined in Secs. 350.309 and 350.311. [[Page 770]] (g) Specific quantifiable performance measures, as appropriate. These performance measures will be used to assist the State in monitoring the progress of its program and preparing an annual evaluation. (h) A description of the State's method for ongoing monitoring of the progress of its plan. This should include who will conduct the monitoring, the frequency with which it will be carried out, and how and to whom reports will be made. (i) An objective evaluation that discusses the progress towards individual objectives listed under the ``Performance Objectives'' section of the previous year's CVSP and identifies any safety or performance problems discovered. States will identify those problems as new objectives or make modifications to the existing objectives in the next CVSP. (j) A budget which supports the CVSP, describing the expenditures for allocable costs such as personnel and related costs, equipment purchases, printing, information systems costs, and other eligible costs consistent with Secs. 350.311 and 350.309. (k) A budget summary form including planned expenditures for that fiscal year and projected number of activities in each national program element, except data collection. (l) The results of the annual review to determine the compatibility of State laws and regulations with the FMCSRs and HMRs. (m) A copy of any new law or regulation affecting CMV safety enforcement that was enacted by the State since the last CVSP was submitted. (n) Executed State Certification as outlined in Sec. 350.211. (o) Executed MCSAP-1 form. (p) List of MCSAP contacts. (q) Annual Certification of Compatibility, Sec. 350.331. (r) State Training Plan. [65 FR 15102, Mar. 21, 2000, as amended at 67 FR 61820, Oct. 2, 2002; 67 FR 63019, Oct. 9, 2002] Sec. 350.215 What are the consequences for a State that fails to perform according to an approved CVSP or otherwise fails to meet the conditions of this part? (a) If a State is not performing according to an approved plan or not adequately meeting conditions set forth in Sec. 350.201, the Administrator may issue a written notice of proposed determination of nonconformity to the Governor of the State or the official designated in the plan. The notice will set forth the reasons for the proposed determination. (b) The State will have 30 days from the date of the notice to reply. The reply must address the deficiencies or incompatibility cited in the notice and provide documentation as necessary. (c) After considering the State's reply, the Administrator will make a final decision. (d) In the event the State fails timely to reply to a notice of proposed determination of nonconformity, the notice becomes the Administrator's final determination of nonconformity. (e) Any adverse decision will result in immediate cessation of Federal funding under this part. (f) Any State aggrieved by an adverse decision under this section may seek judicial review under 5 U.S.C. chapter 7. Sec. 350.217 What are the consequences for a State with a CDL program not in substantial compliance with 49 CFR part 384, subpart B? (a) A State with a CDL program not in substantial compliance with 49 CFR part 384, subpart B, as required by 49 CFR part 384, subpart C, is subject to the loss of all Motor Carrier Safety Assistance Program (MCSAP) grant funds authorized under sec. 103(b)(1) of the Motor Carrier Safety Improvement Act of 1999 [Pub. L. 106-159, 113 Stat. 1748] and loss of certain Federal-aid highway funds, as specified in 49 CFR part 384, subpart D. (b) Withheld MCSAP grant funds will be restored to the State if the State [[Page 771]] meets the conditions of Sec. 384.403(b) of this subchapter. [67 FR 49755, July 31, 2002] Subpart C--Funding Sec. 350.301 What level of effort must a State maintain to qualify for MCSAP funding? (a) The State must maintain the average aggregate expenditure (monies spent during the base period of Federal or State fiscal years 1997, 1998, and 1999) of State funds for motor carrier and highway hazardous materials safety enforcement purposes, in the year in which the grant is sought. (b) Determination of a State's level of effort must not include the following three things: (1) Federal funds received for support of motor carrier and hazardous materials safety enforcement. (2) State matching funds. (3) State funds used for federally sponsored demonstration or pilot CMV safety programs. (c) The State must include costs associated with activities performed during the base period by State or local agencies currently receiving or projected to receive funds under this part. It must include only those activities which meet the current requirements for funding eligibility under the grant program. Sec. 350.303 What are the State and Federal shares of expenses incurred under an approved CVSP? (a) The FMCSA will reimburse up to 80 percent of the eligible costs incurred in the administration of an approved CVSP. (b) In-kind contributions are acceptable in meeting the State's matching share if they represent eligible costs as established by 49 CFR part 18 or agency policy. Sec. 350.305 Are U.S. Territories subject to the matching funds requirement? The Administrator waives the requirement for matching funds for the Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands. Sec. 350.307 How long are MCSAP funds available to a State? The funds obligated to a State will remain available for the rest of the fiscal year in which they were obligated and the next full fiscal year. The State must account for any prior year's unexpended funds in the annual CVSP. Funds must be expended in the order in which they are obligated. Sec. 350.309 What activities are eligible for reimbursement under the MCSAP? The primary activities eligible for reimbursement are: (a) The five national program elements listed in Sec. 350.109 of this part. (b) Sanitary food transportation inspections performed under 49 U.S.C. 5708. (c) The following three activities, when accompanied by an appropriate North American Standard Inspection and inspection report: (1) Enforcement of size and weight regulations conducted at locations other than fixed weight facilities, at specific geographical locations where the weight of the vehicle can significantly affect the safe operation of the vehicle, or at seaports where intermodal shipping containers enter and exit the United States. (2) Detection of the unlawful presence of controlled substances in a CMV or on the driver or any occupant of a CMV. (3) Enforcement of State traffic laws and regulations designed to promote the safe operation of CMVs. Sec. 350.311 What specific items are eligible for reimbursement under the MCSAP? All reimbursable items must be necessary, reasonable, allocable to the approved CVSP, and allowable under this part and 49 CFR part 18. The eligibility of specific items is subject to review by the FMCSA. The following six types of expenses are eligible for reimbursement: (a) Personnel expenses, including recruitment and screening, training, salaries and fringe benefits, and supervision. (b) Equipment and travel expenses, including per diem, directly related to [[Page 772]] the enforcement of safety regulations, including vehicles, uniforms, communications equipment, special inspection equipment, vehicle maintenance, fuel, and oil. (c) Indirect expenses for facilities, except fixed scales, used to conduct inspections or house enforcement personnel, support staff, and equipment to the extent they are measurable and recurring (e.g., rent and overhead). (d) Expenses related to data acquisition, storage, and analysis that are specifically identifiable as program-related to develop a data base to coordinate resources and improve efficiency. (e) Clerical and administrative expenses, to the extent necessary and directly attributable to the MCSAP. (f) Expenses related to the improvement of real property (e.g., installation of lights for the inspection of vehicles at night). Acquisition of real property, land, or buildings are not eligible costs. Sec. 350.313 How are MCSAP funds allocated? (a) After deducting administrative expenses authorized in 49 U.S.C. 31104(e), the MCSAP funds are allocated as follows: (1) Up to 5 percent of the MCSAP funds appropriated for each fiscal year may be distributed for High Priority Activities and Projects at the discretion of the Administrator. (2) Up to 5 percent of the MCSAP funds appropriated for each fiscal year may be distributed for Border CMV Safety and Enforcement Programs at the discretion of the Administrator. (3) The remaining funds will be allocated among qualifying States in two ways: (i) As Basic Program Funds in accordance with Sec. 350.323 of this part, (ii) As Incentive Funds in accordance with Sec. 350.327 of this part. (b) The funding provided in paragraphs (a)(1) and (a)(2) of this section may be awarded through contract, cooperative agreement, or grant. The FMCSA will notify States if it intends to solicit State grant proposals for any portion of this funding. (c) The funding provided under paragraphs (a)(1) and (a)(2) of this section may be made available to State MCSAP lead agencies, local governments, and other persons that use and train qualified officers and employees in coordination with State motor vehicle safety agencies. Sec. 350.315 How may Basic Program Funds be used? Basic Program Funds may be used for any eligible activity or item consistent with Secs. 350.309 and 350.311. Sec. 350.317 What are Incentive Funds and how may they be used? Incentive Funds are monies, in addition to Basic Program Funds, provided to States that achieve reduction in CMV-involved fatal accidents, CMV fatal accident rate, or that meet specified CMV safety performance criteria. Incentive Funds may be used for any eligible activity or item consistent with Secs. 350.309 and 350.311. Sec. 350.319 What are permissible uses of High Priority Activity Funds? (a) The FMCSA may generally use these funds to support, enrich, or evaluate State CMV safety programs and to accomplish the five objectives listed below: (1) Implement, promote, and maintain national programs to improve CMV safety. (2) Increase compliance with CMV safety regulations. (3) Increase public awareness about CMV safety. (4) Provide education on CMV safety and related issues. (5) Demonstrate new safety related technologies. (b) These funds will be allocated, at the discretion of the FMCSA, to States, local governments, and other organizations that use and train qualified officers and employees in coordination with State safety agencies. (c) The FMCSA will notify the States when such funds are available. (d) The Administrator may designate up to 5 percent of the annual MCSAP funding for these projects and activities. Sec. 350.321 What are permissible uses of Border Activity Funds? (a) The FMCSA may generally use such funds to develop and implement a [[Page 773]] national program addressing CMV safety and enforcement activities along the United States' borders. (b) These funds will be allocated, at the discretion of the FMCSA, to States, local governments, and other organizations that use and train qualified officials and employees in coordination with State safety agencies. The FMCSA will notify the States when such funds are available. The Administrator may designate up to 5 percent of the annual MCSAP funding for these projects and activities. Sec. 350.323 What criteria are used in the Basic Program Funds allocation? (a) The funds are distributed proportionally to the States using the following four, equally weighted (25 percent), factors. (1) 1997 Road miles (all highways) as defined by the FMCSA. (2) All vehicle miles traveled (VMT) as defined by the FMCSA. (3) Population--annual census estimates as issued by the U.S. Census Bureau. (4) Special fuel consumption (net after reciprocity adjustment) as defined by the FMCSA. (b) Distribution of Basic Program Funds is subject to a maximum and minimum allocation as illustrated in the Table to this section, as follows: Table to Sec. 350.323(b)--Basic Program Fund Allocation Limitations ------------------------------------------------------------------------ Recipient Maximum allocation Minimum allocation ------------------------------------------------------------------------ States and Puerto Rico...... 4.944% of the Basic $350,000 or 0.44% of Program Funds. Basic Program Funds, whichever is greater. ----------------------------- U.S. Territories............ $350,000 (fixed amount) ------------------------------------------------------------------------ Sec. 350.325 [Reserved] Sec. 350.327 How may States qualify for Incentive Funds? (a) A State may qualify for Incentive Funds if it can demonstrate that its CMV safety program has shown improvement in any or all of the following five categories: (1) Reduction of large truck-involved fatal accidents. (2) Reduction of large truck-involved fatal accident rate or maintenance of a large truck-involved fatal accident rate that is among the lowest 10 percent of such rates of MCSAP recipients. (3) Upload of CMV accident reports in accordance with current FMCSA policy guidelines. (4) Verification of CDLs during all roadside inspections. (5) Upload of CMV inspection data in accordance with current FMCSA policy guidelines. (b) Incentive Funds will be distributed based upon the five following safety and program performance factors: (1) Five shares will be awarded to States that reduce the number of large truck-involved fatal accidents for the most recent calendar year for which data are available when compared to the 10-year average number of large truck-involved fatal accidents ending with the preceding year. The 10-year average will be computed from the number of large truck- involved fatal crashes, as reported by the FARS, administered by the National Highway Traffic Safety Administration (NHTSA). (2) Four shares will be awarded to States that reduce the fatal- accident rate for the most recent calendar year for which data are available when compared to each State's average fatal accident rate for the preceding 10-year period. States with the lowest 10 percent of accident rates in the most recent calendar year for which data are available will be awarded three shares if the rate for the State is the same as its average accident rate for the preceding 10-year period. (3) Two shares will be awarded to States that upload CMV accident data within FMCSA policy guidelines. (4) Two shares will be awarded to States that certify their MCSAP inspection agencies have departmental policies that stipulate CDLs are [[Page 774]] verified, as part of the inspection process, through Commercial Driver's License Information System (CDLIS), National Law Enforcement Tracking System (NLETS), or the State licensing authority. (5) Two shares will be awarded to States that upload CMV inspection reports within current FMCSA policy guidelines. (c) The total of all States' shares awarded will be divided into the dollar amount of Incentive Funds available, thereby establishing the value of one share. Each State's incentive allocation will then be determined by multiplying the State's percentage participation in the formula allocation of Basic Program Funds, by the number of shares it received that year, multiplied by the dollar value of one share. (d) States may use Incentive Funds for any eligible CMV safety purpose. (e) Incentive Funds are subject to the same State matching requirements as Basic Program Funds. (f) A State must annually certify compliance with the applicable incentive criteria to receive Incentive Funds. A State must submit the required certification as part of its CVSP or as a separate document. Sec. 350.329 How may a State or a local agency qualify for High Priority or Border Activity Funds? (a) States must meet the requirements of Sec. 350.201, as applicable. (b) Local agencies must meet the following nine conditions: (1) Prepare a proposal in accordance with Sec. 350.213, as applicable. (2) Coordinate the proposal with the State lead MCSAP agency to ensure the proposal is consistent with State and national CMV safety program priorities. (3) Certify that your local jurisdiction has the legal authority, resources, and trained and qualified personnel necessary to perform the functions specified in the proposal. (4) Designate a person who will be responsible for implementation, reporting, and administering the approved proposal and will be the primary contact for the project. (5) Agree to fund up to 20 percent of the proposed request. (6) Agree to prepare and submit all reports required in connection with the proposal or other conditions of the grant. (7) Agree to use the forms and reporting criteria required by the State lead MCSAP agency and/or the FMCSA to record work activities to be performed under the proposal. (8) Certify that the local agency will impose sanctions for violations of CMV and driver laws and regulations that are consistent with those of the State. (9) Certify participation in national data bases appropriate to the project. Sec. 350.331 How does a State ensure its laws and regulations are compatible with the FMCSRs and HMRs? (a) A State must review any new law or regulation affecting CMV safety as soon as possible, but in any event immediately after enactment or issuance, for compatibility with the FMCSRs and HMRs. (b) If the review determines that the new law or regulation is incompatible with the FMCSRs and/or HMRs, the State must immediately notify the Motor Carrier State Director. (c) A State must conduct an annual review of its laws and regulations for compatibility and report the results of that review in the annual CVSP in accordance with Sec. 350.213(l) along with a certification of compliance, no later than August 1 of each year. The report must include the following two items: (1) A copy of the State law, regulation, or policy relating to CMV safety that was adopted since the State's last report. (2) A certification, executed by the State's Governor, Attorney General, or other State official specifically designated by the Governor, stating that the annual review was performed and that State CMV safety laws remain compatible with the FMCSRs and HMRs. If State CMV laws are no longer compatible, the certifying official shall explain. (d) As soon as practical after the effective date of any newly enacted regulation or amendment to the FMCSRs or HMRs, but no later than three years after that date, the State must amend its laws or regulations to make them [[Page 775]] compatible with the FMCSRs and/or HMRs, as amended. Sec. 350.333 What are the guidelines for the compatibility review? (a) The State law or regulation must apply to all segments of the motor carrier industry (i.e., for-hire and private motor carriers of property and passengers). (b) Laws and regulations reviewed for the CDL compliance report are excluded from the compatibility review. (c) Definitions of words or terms must be consistent with those in the FMCSRs and HMRs. (d) A State must identify any law or regulation that is not the same as the corresponding Federal regulation and evaluate it in accordance with the table to this section as follows: Table to Sec. 350.333--Guidelines for the State Law and Regulation Compatibility Review ---------------------------------------------------------------------------------------------------------------- Law or regulation has same effect Applies to interstate Less stringent or more as corresponding Federal regulation or intrastate commerce stringent Action authorized ---------------------------------------------------------------------------------------------------------------- (1) Yes............................ ...................... ...................... Compatible--Interstate and intrastate commerce enforcement authorized. (2) No............................. Intrastate............ ...................... Refer to Sec. 350.341 (3) No............................. Interstate............ Less stringent........ Enforcement prohibited. (4) No............................. Interstate............ More stringent........ Enforcement authorized if the State can demonstrate the law or regulation has a safety benefit or does not create an undue burden upon interstate commerce (See 49 CFR Part 355). ---------------------------------------------------------------------------------------------------------------- Sec. 350.335 What are the consequences if my State has laws or regulations incompatible with the Federal regulations? (a) A State that currently has compatible CMV safety laws and regulations pertaining to interstate commerce (i.e., rules identical to the FMCSRs and HMRs) and intrastate commerce (i.e., rules identical to or within the tolerance guidelines for the FMCSRs and identical to the HMRs) but enacts a law or regulation which results in an incompatible rule will not be eligible for Basic Program Funds nor Incentive Funds. (b) A State that fails to adopt any new regulation or amendment to the FMCSRs or HMRs within three years of its effective date will be deemed to have incompatible regulations and will not be eligible for Basic Program nor Incentive Funds. (c) Those States with incompatible laws or regulations pertaining to intrastate commerce and receiving 50 percent of their basic formula allocation on April 20, 2000 will continue at that level of funding until those incompatibilities are removed, provided no further incompatibilities are created. (d) Upon a finding by the FMCSA, based upon its own initiative or upon a petition of any person, including any State, that your State law, regulation or enforcement practice pertaining to CMV safety, in either interstate or intrastate commerce, is incompatible with the FMCSRs or HMRs, the FMCSA may initiate a proceeding under Sec. 350.215 for withdrawal of eligibility for all Basic Program and Incentive Funds. (e) Any decision regarding the compatibility of your State law or regulation with the HMRs that requires an interpretation will be referred to the Research and Special Programs Administration of the DOT for such interpretation before proceeding under Sec. 350.215. Sec. 350.337 How may State laws and regulations governing motor carriers, CMV drivers, and CMVs in interstate commerce differ from the FMCSRs and still be considered compatible? States are not required to adopt 49 CFR parts 398 and 399, subparts A through E and H of part 107, and Secs. 171.15 and 171.16, as applicable to either interstate or intrastate commerce. [[Page 776]] Sec. 350.339 What are tolerance guidelines? Tolerance guidelines set forth the limited deviations from the FMCSRs allowed in your State's laws and regulations. These variances apply only to motor carriers, CMV drivers and CMVs engaged in intrastate commerce and not subject to Federal jurisdiction. Sec. 350.341 What specific variances from the FMCSRs are allowed for State laws and regulations governing motor carriers, CMV drivers, and CMVs engaged in intrastate commerce and not subject to Federal jurisdiction? (a) A State may exempt a CMV from all or part of its laws or regulations applicable to intrastate commerce, provided that neither the GVW, GVWR, GCW, nor GCWR of the vehicle equals or exceeds 11,801 kg (26,001 lbs.). However, a State may not exempt a CMV from such laws or regulations if the vehicle: (1) Transports hazardous materials requiring a placard. (2) Is designed or used to transport 16 or more people, including the driver. (b) State laws and regulations applicable to intrastate commerce may not grant exemptions based upon the type of transportation being performed (e.g., for-hire, private, etc.). (c) A State may retain those exemptions from its motor carrier safety laws and regulations that were in effect before April, 1988, are still in effect, and apply to specific industries operating in intrastate commerce. (d) State laws and regulations applicable to intrastate commerce must not include exemptions based upon the distance a motor carrier or driver operates from the work reporting location. This prohibition does not apply to those exemptions already contained in the FMCSRs nor to the extension of the mileage radius exemption contained in 49 CFR 395.1(e) from 100 to 150 miles. (e) Hours of service--State hours-of-service limitations applied to intrastate transportation may vary to the extent of allowing the following: (1) A 12-hour driving limit, provided driving a CMV after having been on duty more than 16 hours is prohibited. (2) Driving prohibitions for drivers who have been on duty 70 hours in 7 consecutive days or 80 hours in 8 consecutive days. (f) Age of CMV driver--All CMV drivers must be at least 18 years of age. (g) Grandfather clauses--States may provide grandfather clauses in their rules and regulations if such exemptions are uniform or in substantial harmony with the FMCSRs and provide an orderly transition to full regulatory adoption at a later date. (h) Driver qualifications: (1) Intrastate drivers who do not meet the physical qualification standards in 49 CFR 391.41 may continue to be qualified to operate a CMV in intrastate commerce if the following three conditions are met: (i) The driver was qualified under existing State law or regulation at the time the State adopted physical qualification standards compatible with the Federal standards in 49 CFR 391.41. (ii) The otherwise non-qualifying medical or physical condition has not substantially worsened. (iii) No other non-qualifying medical or physical condition has developed. (2) The State may adopt or continue programs granting variances to intrastate drivers with medical or physical conditions that would otherwise be non-qualifying under the State's equivalent of 49 CFR 391.41 if the variances are based upon sound medical judgment combined with appropriate performance standards ensuring no adverse affect on safety. Sec. 350.343 How may a State obtain a new exemption for State laws and regulations for a specific industry involved in intrastate commerce? The FMCSA strongly discourages exemptions for specific industries, but will consider such requests if the State submits documentation containing information supporting evaluation of the following 10 factors: (a) Type and scope of the industry exemption requested, including percentage of industry affected, number of vehicles, mileage traveled, number of companies involved. (b) Type and scope of the requirement to which the exemption would apply. [[Page 777]] (c) Safety performance of that specific industry (e.g., accident frequency, rates and comparative figures). (d) Inspection information (e.g., number of violations per inspection, driver and vehicle out-of-service information). (e) Other CMV safety regulations enforced by other State agencies not participating in the MCSAP. (f) Commodity transported (e.g., livestock, grain). (g) Similar variations granted and the circumstances under which they were granted. (h) Justification for the exemption. (i) Identifiable effects on safety. (j) State's economic environment and its ability to compete in foreign and domestic markets. Sec. 350.345 How does a State apply for additional variances from the FMCSRs? Any State may apply to the Administrator for a variance from the FMCSRs for intrastate commerce. The variance will be granted only if the State satisfactorily demonstrates that the State law, regulation or enforcement practice: (a) Achieves substantially the same purpose as the similar Federal regulation. (b) Does not apply to interstate commerce. (c) Is not likely to have an adverse impact on safety.