16370 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Chapter III

Regulatory Guidance for the Federal

Motor Carrier Safety Regulations

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Regulatory guidance.

SUMMARY: This document presents

interpretive guidance material for the

Federal Motor Carrier Safety

Regulations (FMCSRs) now contained in

the FHWA’s Motor Carrier Regulation

Information System (MCREGIS). The

FHWA has consolidated previously

issued interpretations and regulatory

guidance materials and developed

concise interpretive guidance in

question and answer form for each part

of the FMCSRs. These questions and

answers are generally applicable to

drivers, commercial motor vehicles, and

motor carrier operations on a national

basis. All prior interpretations and

regulatory guidance of the FMCSRs

issued previously in the Federal

Register, as well as FHWA memoranda

and letters, may no longer be relied

upon as authoritative insofar as they are

inconsistent with the guidance

published today. Many of the

interpretations of the FMCSRs

published on November 23, 1977, and

the interpretations of the Inspection,

Repair, and Maintenance regulations

published on July 10, 1980, have been

revised. These revisions are reflected in

the new questions and answers. This

document also includes regulatory

guidance issued since November 17,

1993, when the agency last published a

collection of such guidance. Future

regulatory guidance will be issued

within the MCREGIS which will be kept

current in the FHWA’s Office of Motor

Carrier Standards. The MCREGIS will be

updated periodically and published in

the Federal Register so that interested

parties may have ready reference to

official interpretations and guidance

regarding the FMCSRs. This guidance

will provide the motor carrier industry

with a clearer understanding of the

applicability of many of the

requirements contained in the FMCSRs

in particular situations.

EFFECTIVE DATE: May 4, 1997.

FOR FURTHER INFORMATION CONTACT: Mr.

Neill L. Thomas or Mr. Nathan C. Root,

Office of Motor Carrier Standards, (202)

366–1790, or Mr. Charles E. Medalen,

Office of the Chief Counsel, (202) 366–

1354, Federal Highway Administration,

Department of Transportation, 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 Federal legal holidays.

SUPPLEMENTARY INFORMATION: This

document is an update of the notice of

regulatory guidance for the FMCSRs

issued by the FHWA November 17, 1993

(58 FR 60734). This notice contains

previously issued, revised, and new

regulatory guidance pertaining to Title

49, Code of Federal Regulations (CFR),

Parts 40, 325, 382, 383, 384, 386, 387,

390 to 393, 395 to 397, and 399 of the

FMCSRs. In some instances, old

regulatory guidance has been removed.

The information published in this

document supersedes all previously

issued interpretations and regulatory

guidance, to the extent they are

inconsistent with the guidance

published today, including that

published on November 23, 1977, at 42

FR 60078, and on July 10, 1980, at 45

FR 46425. To the maximum extent

possible, all valid prior opinions have

been incorporated into this document.

This notice is consistent with the Small

Business Regulatory Enforcement

Fairness Act of 1996 (Pub. L. 104–121,

March 29, 1996).

The FHWA issued a final rule on

March 8, 1996, which codified most of

the regulatory guidance for CDL waivers

under § 383.3 (61 FR 9546). Guidance

concerning CDL waivers had been

issued under § 383.7. From the 1993

Regulatory Guidance notice for § 383.7,

only questions 7(a), 8, 9, 10, 16, 17, 21,

and 22 still remain. These questions and

guidance are now listed as guidance for

§ 383.3, where the CDL waivers have

been codified.

Guidance for question 3 under § 383.5

has been changed to reflect a more

expansive version of the same guidance

in existence prior to the November 1993

Notice. Guidance for question 2 under

§ 383.93, as it appeared in the 1993

notice, has been revised to clarify the

existing guidance. Guidance for

question 1 under § 390.31 has been

expanded to include guidance derived

from a Final Order issued by the

Department (58 FR 62467). Guidance for

question 1 of § 391.1 has been changed

to remove a reference to part 391

subpart H. Guidance for question 6

under § 391.11 has been moved to

§ 392.9. Guidance for question 2 under

§ 391.27 has been removed: violations of

size and weight laws are not considered

violations of motor vehicle traffic laws.

Question 1 for § 391.41 has been

changed for clarity. Guidance for

question 1 under § 391.43 has been

expanded for greater clarity. Guidance

for § 392.62 has been moved to § 391.41.

Guidance for question 1 of § 393.51,

question 1 of § 393.65, question 1 of

§ 393.75, question 5 of § 393.100, and

question 1 of § 393.106 have been

amended for clarity. Guidance for

question 1 under § 393.95 has been

incorporated into the regulations (58 FR

34708) and is therefore removed from

this document. Guidance for § 395.1 has

been reordered to consecutively follow

the paragraphs within the section.

Question 15 under § 395.2 was

expanded by guidance issued June 11,

1995. Question 20 under § 395.2 has

been revised to reflect an interpretation

previously issued August 15, 1991,

treating the same issue in a more

explicit manner. Question 1 under

§ 397.1 has been changed to more

accurately explain who must comply

with part 397. The 1994 Regulatory

Guidance booklet, which reprinted the

interpretations issued in the Federal

Register in 1993, is available in the

public docket on this rulemaking for

reference

The FHWA issued an advance notice

of proposed rulemaking on November 5,

1996 (61 FR 57252) concerning the

hours of service regulations (49 CFR

part 395). On page 57258 of the notice,

the FHWA erroneously indicated that an

interpretation which allowed CMVs to

be driven from motels to restaurants in

the vicinity as ‘‘off-duty time’’ had

recently been rescinded. The FHWA

intended to rescind recent

interpretations that describe conditions

under which a CMV may be used as a

‘‘personal conveyance’’ (issued August

10, 1995), and address the entire issue

of personal conveyance through notice

and comment rulemaking. Question 8

under § 395.2 has been expanded by

guidance issued November 18, 1996,

and placed more appropriately under

§ 395.8 (see § 395.8, question 27). All

prior interpretations of personal

conveyance are invalid.

Since 1993, new interpretive guidance

has been issued for, or existing guidance

has been removed from, the following

sections:

49 CFR Part 40 §§ 40.3, 40.21, 40.23,

40.25, 40.29, 40.31, 40.33, 40.35,

40.39, 40.69, 40.81, 40.93, Special

Topics—Requirements for Random

Testing, Special Topics—

Procedures for Handling and

Processing a Split Specimen

49 CFR Part 382 §§ 382.103, 382.105,

382.107, 382.109, 382.113, 382.115,

382.204, 382.205, 382.213, 382.301,

382.303, 382.305, 382.307, 382.401,

382.403, 382.405, 382.413, 382.501,

382.507, 382.601, 382.603, 382.605,

Subpart B—Prohibitions, Special

Topics—Responsibility for Payment

for Testing, Special Topics—
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16371

Multiple Service Providers, Special

Topics—Medical Examiners Acting

as MRO, Special Topics—Biennial

(Periodic) Testing Requirements

49 CFR Part 383 §§ 383.3, 383.5, 383.7,

383.31, 383.71, 383.73, 383.91,

383.93, Special Topics—

International

49 CFR Part 384 §§ 384.209, 384.211

49 CFR Part 387 §§ 387.9, 387.15, 387.39

49 CFR Part 390 §§ 390.3, 390.5, 390.15,

Special Topics—Serious Pattern of

Violations

49 CFR Part 391 §§ 391.1, 391.11,

391.27, 391.41, 391.43, 391.49,

391.51, 391.63

49 CFR Part 392 §§ 392.5, 392.9, 392.62

49 CFR Part 393 §§ 393.11, 393.42,

393.48, 393.51, 393.65, 393.75,

393.89, 393.95, 393.100, 393.106,

393.201

49 CFR Part 395 §§ 395.1, 395.2, 395.8,

395.13, 395.15

49 CFR Part 396 §§ 396.11, 396.17,

396.23

Additional guidance will continue to

be published in future issues of the

Federal Register. The FHWA will be

modifying or removing numerous

regulations as part of President Clinton’s

Regulatory Reform Initiative. Many of

these changes will have an impact on

the regulatory guidance in this

document. These changes will be

reflected in future issues of the Federal

Register. Members of the motor carrier

industry and other interested parties

may access the guidance in this

document through the FHWA’s

Electronic Bulletin Board System

(FEBBS) using a microcomputer and

modem. The FEBBS is a read-only

facility. Access numbers for FEBBS are

(202) 366–3764 for the Washington, DC

area, or toll-free at (800) 337–3492. The

system supports a variety of modem

speeds up to 14,400 baud line speeds,

and a variety of terminal types and

protocols. Modems should be set to 8

data bits, full duplex, and no parity for

optimal performance. Once a

connection has been established, new

users will have to go through a

registration process. Instructions are

given on the screen. FEBBS is mostly

menu-drive and hot keys are indicated

with ‘‘< >’’ enclosing the hot key. After

logging on to FEBBS and arriving at the

MAIN MENU, select <C> for

Conference; then <M> for Motor Carrier;

then either <M> again for MCREGIS

Questions and Answers, or <I> for

Information (more detailed help).

For Technical Assistance to gain

access to FEBBS, contact: FHWA

Computer Help Desk, HMS–40, room

4401, 400 Seventh Street, SW,

Washington, DC 20590 (202) 366–1120.

Specific questions addressing any of the

interpretive material published in this

document may be directed to the

contact persons listed above, the FHWA

Regional Offices, or the FHWA Division

Office in each State.

For ease of reference, the following

listing of acronyms used throughout this

document is provided:

Appendix G—The Minimum Periodic

Inspection Standards published as an

appendix to the Federal Motor Carrier

Safety Regulations

BAT—Breath Alcohol Technician

CDL—Commercial Driver’s License

CDLIS—Commercial Driver’s License

Information System

CFR—Code of Federal Regulations

CMV—Commercial Motor Vehicle

CMVSA—Commercial Motor Vehicle Safety

Act of 1986

COE—Cab-over-engine truck tractor

C/TPA—Consortium or Third-Party

Administrator

CVSA—Commercial Vehicle Safety Alliance

DHHS–SAMHSA—Department of Health and

Human Services, Substance Abuse

Mental Health Services Administration

DOT—U.S. Department of Transportation

DVIR—Driver Vehicle Inspection Report

DWI—Driving While Intoxicated

EAP—Employee Assistance Program

EPA—U.S. Environmental Protection Agency

FHWA—Federal Highway Administration

FMCSRs—Federal Motor Carrier Safety

Regulations

FMVSS—Federal Motor Vehicle Safety

Standards (developed and issued by the

National Highway Traffic Safety

Administration)

FR—Federal Register

FRSI—Farm-Related Service Industries

GCWR—Gross Combination Weight Rating

GVW—Gross Vehicle Weight

GVWR—Gross Vehicle Weight Rating

HM—Hazardous Materials

HMRs—Hazardous Materials Regulations

HMTUSA—Hazardous Materials

Transportation Uniform Safety Act of

1990

ICC—Interstate Commerce Commission

Forms MCS–90 and MCS–90B—

Endorsements for Motor Carrier Policies

of Insurance for Public Liability Under

Sections 29 and 30 of the Motor Carrier

Act of 1980 issued by an insurer

MCSA—Motor Carrier Safety Act of 1984

MPH—Miles Per Hour

MRO—Medical Review Officer

NDR—National Driver Register

NHTSA—National Highway Traffic Safety

Administration within DOT

RDMC—Regional Director of Motor Carriers

SAP—Substance Abuse Professional

SSN—Social Security Number

STAA—Surface Transportation Assistance

Act of 1982

STT—Screening Test Technician

U.S.C.—United States Code

Table of Contents

Part 40—Procedures for Transportation

Workplace Drug and Alcohol Testing

Programs

Part 325—Compliance With Interstate Motor

Carrier Noise Emission Standards

Part 382—Controlled Substances and Alcohol

Use and Testing

Part 383—Commercial Driver’s License

Standards; Requirements and Penalties

Part 384—State Compliance With

Commercial Driver’s License Program

Part 386—Rules of Practice for Motor Carrier

Safety and Hazardous Materials

Proceedings

Part 387—Minimum Levels of Financial

Responsibility for Motor Carriers

Part 390—Federal Motor Carrier Safety

Regulations; General

Part 391—Qualifications of Drivers

Part 392—Driving of Motor Vehicles

Part 393—Parts and Accessories Necessary

for Safe Operation

Part 395—Hours of Service of Drivers

Part 396—Inspection, Repair and

Maintenance

Part 397—Transportation of Hazardous

Materials; Driving and Parking Rules

Part 399—Employee Safety and Health

Standards

Regulatory Guidance

Part 40—Procedures for Transportation

Workplace Drug and Alcohol Testing

Programs

Sections Interpreted

40.3 Definitions

40.21 The Drugs

40.23 Preparation for testing

40.25 Specimen collection procedures

40.29 Laboratory analysis procedures

40.31 Quality assurance and quality control

40.33 Reporting and review of results

40.35 Protection of employee records

40.39 Use Of DHHS-certified laboratories

40.69 Inability to provide an adequate

amount of breath

40.81 Availability and disclosure of alcohol

testing information about individual

employees

40.93 The screening test technician

Special Topics—Requirements for random

testing

Special Topics—Procedures for Handling and

Processing a Split Specimen

Section 40.3 Definitions

Question 1: May a Doctor of

Chiropractic, holding a Certified

Addiction Professional degree, serve as

an MRO?

Guidance: A Doctor of Chiropractic,

holding a Certified Addiction

Professional degree, is not considered to

be a licensed medical doctor or doctor

of osteopathy and, therefore, cannot

serve as an MRO.

Question 2: What are the

qualifications and responsibilities of the

MRO? Are MROs required to be

certified?

Guidance: Section 40.3 defines the

qualifications for an MRO and § 40.33

specifies the MRO’s responsibilities. An

MRO is defined as a licensed physician

(medical doctor or doctor of osteopathy)

responsible for receiving laboratory
16372 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

results generated by an employer’s drug

testing program who has knowledge of

substance abuse disorders and has

appropriate medical training to interpret

and evaluate an individual’s confirmed

positive test result together with his or

her medical history and any other

relevant biomedical information. An

MRO is responsible for reviewing and

interpreting confirmed positive test

results obtained through the employer’s

testing program. The DOT does not

require any certification of MROs at the

present time. However, there are several

national professional organizations

which provide MRO certification.

Section 40.21 The Drugs

Question 1: Is testing for additional

drugs authorized? Must a separate

specimen be obtained?

Guidance: Under part 40, an employer

must test for the following drugs:

marijuana, cocaine, amphetamines,

opiates, and phencyclidine. An

employer may not test for any other

substances under DOT authority. Part 40

does not, however, prohibit an employer

from testing for other controlled

substances as long as that testing is

done under the authority of the

employer.

Employers in the transportation

industry who establish a drug testing

program that tests beyond the five drugs

currently required by part 40 must also

make clear to their employees what

testing is required by DOT authority and

what testing is required by the

company. Additionally, employers must

ensure that DOT urine specimens are

collected in accordance with the

provisions outlined in part 40 and that

a separate specimen collection process

including a separate act of urination is

used to obtain specimens for company

testing programs.

Question 2: Should labs conduct tests

for five (5) drugs even if the drug testing

custody and control form fails to

indicate what tests are to be performed?

Guidance: Part 40 indicates that DOT

agency drug testing programs require

that employers test for marijuana,

cocaine, opiates, amphetamines, and

phencyclidine (§ 40.21). All DOT

specimens, therefore, must be tested for

the above five categories of drugs even

if the accompanying drug testing

custody and control form fails to

indicate this.

While the DOT does not view this

type of collection site error as a fatal

flaw, it nevertheless jeopardizes the

integrity of the entire collection process

and could lead to a challenge and

subsequent third party review. These

errors should be addressed with the site

supervisor in the hope of preventing

future mistakes.

Section 40.23 Preparation for Testing

Question 1: On the testing of a split

specimen, is it necessary to maintain

anonymity of a person, at the laboratory

level, when both the primary laboratory

and the laboratory testing the split may

have fees and could directly bill the

employee?

Guidance: Section 40.23(a) addresses

mandatory use of the Federal Drug

Testing Custody and Control Form in

DOT urine collection and testing. This

paragraph states, in part, that ‘‘* * *

personal identifying information on the

donor (other than the social security

number or other employee ID number)

may not be provided to the laboratory.’’

If circumstances arise in which the

MRO orders a test of the split specimen,

at the request of the employee, no

additional identifying information on

the employee may be provided to the

laboratory that will be testing the split

specimen. As directed by § 40.33(f),

‘‘* * * The MRO shall direct, in

writing, the laboratory to provide the

split specimen to another DHHScertified laboratory for analysis.’’ This

request would reference only items

contained on the face of the Drug

Testing Custody and Control Form (e.g.,

Specimen Identification No., SSN or

Employee ID No., Collection Date, etc.);

the MRO would not specify the

employee’s name. Should a personal

check (bearing the employee’s name)

accompany the request (e.g., a letter

from the MRO), the MRO should not

make any particular reference linking

the split request with the person signing

the check. In actuality, the primary

laboratory will most likely bill the

employer for the cost of sending the

split specimen to the split laboratory;

the split laboratory will normally

require a cashier’s check, money order,

or an account to be set up (generally by

the employer) prior to initiating

processing.

Question 2: In a case where an

employee is providing a urine specimen

and a breath test is conducted at the

same time, may a laboratory receive

both the Federal Drug Testing Custody

and Control Form (with the specimens

for testing) and the employer’s copy of

the Breath Alcohol Testing Form (with

the test results) from the collection site?

Guidance: The DOT provided

clarification in its Guidance on the Role

of Consortia and Third-Party

Administrators in DOT Drug and

Alcohol Testing Programs published on

July 25, 1995 in the Federal Register

which stated in part ‘‘* * * MROs and

BATs must send final individual test

results directly to the actual employer as

soon as the results are available * * *

results may be maintained afterwards by

the C/TPA * * * while there is no

objection to the MRO or BAT

transmitting results simultaneously both

to the employer and to the C/TPA, it is

not appropriate for the MRO or BAT to

send the results only to the C/TPA,

which subsequently retransmits them to

the employer.’’

A laboratory, regardless of what type

of arrangement it has with the employer,

is prohibited from receiving the

employer’s copy of the Breath Alcohol

Testing Form together with the Federal

Drug Testing Custody and Control

Form(s) which accompany the urine

specimen. The breath testing form

contains individual identifying

information. The DOT rule specifically

states that this information may not be

provided to a laboratory.

However, a laboratory functioning as

a C/TPA may receive the employer’s

copies of the Federal Drug Testing

Custody and Control Form and the

employer’s copy of the Breath Alcohol

Testing Form from the collection site

under the following conditions:

a. The employer’s copy of the Federal

Drug Testing Custody and Control Form

(Copy 7) must not be included with the

laboratory copies (Copies 1 and 2)

which accompany the urine specimen.

b. The employer’s copies of the

Federal Drug Testing Custody and

Control Form and the Breath Alcohol

Testing Forms must not be received by

the accession/receiving (testing) section

of the laboratory.

These procedures should prevent that

portion of the laboratory which

conducts the drug analysis from having

access to the identity (from the alcohol

testing form) of the donor.

The DOT rule requires the BAT

immediately to transmit the results to

the employer, regardless of what

procedures have been established for

providing to the employer or the C/TPA,

the employer’s copy of the breath testing

form.

In all instances, it is the employer (not

the C/TPA) who designates in writing to

the BAT or the BAT’s company, who the

employer’s agent is and the procedures

that the employer wants the BAT to use

for transmission of data and forms.

Question 3: Is a specific MRO name

required in Step 1 on the Federal Drug

Testing Custody and Control Form, or

may a clinic, hospital, health care

organization, or MRO company name

appear in the MRO Name and Address

area?

Guidance: The DOT has determined

that a specific physician’s name and

address is required in Step 1 of the
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16373

Federal Drug Testing Custody and

Control Form as opposed to only a

generic clinic, health care organization,

or company name. The name should be

that of a responsible physician rather

than an administrative staff member or

other company official. However, a

company name may appear as part of

the address, provided it is followed by

or includes the MRO’s name. Collection

sites send copies of the MRO’s custody

and control form to this address, and

drug testing laboratories use it to submit

laboratory results to the MRO. The use

of the MRO name will preclude

potential compromises of

confidentiality. In many cases, where

only the name of a clinic, hospital or

company appears on the mailing

address, the laboratory results are sent

to the clinic or hospital and are either

circulated through numerous

departments or, in some cases, never

reach the MRO.

The physician named in Step 1 may

be the MRO who will actually perform

the verification review or the name of a

physician within the practice

(company), but not necessarily the one

who will actually perform the

verification (in those cases where there

is more than one MRO working in that

office or company).

Question 4: Is the collector’s signature

required on the chain of custody section

of drug testing custody and control

form?

Guidance: The collector’s signature is

required in both the ‘‘received by’’ and

the ‘‘released by’’ spaces in Step 6 of the

drug testing custody and control form.

Part 40 Appendix A specifies that the

form shall provide both ‘‘received by’’

and ‘‘released by’’ entries of the

collector’s signature and printed names

(see the instructions on the back of

Appendix A, copy 7, Step 6. Combining

these entries is not authorized by the

rule.

Question 5: May the drug testing

custody and control form be used for

non-DOT tests?

Guidance: Employee drug testing

conducted under local, State, or private

authority must not be represented to the

employee as being Federally mandated

or required. The use of the custody and

control form required under 49 CFR part

40 conveys that the testing is being

conducted in accordance with

applicable Federal regulations. A ‘‘lookalike’’ form that deletes references to

DOT, Part 40, and Federal requirements

may be used for non-DOT testing.

Question 6: Is collection of blood

authorized? May blood specimens be

supported by the drug testing custody

and control form? May blood test results

be used to take DOT-required

administrative actions?

Guidance: The collection of blood for

alcohol or drug testing under DOT

authority is not authorized. Therefore,

while a company, under its own

authority, may require a blood specimen

to be collected and tested for drugs and/

or alcohol under certain circumstances,

it is not acceptable for the companyrequired blood specimen to be

supported by the same custody and

control form that accompanies a DOTrequired urine specimen.

If a urine specimen for a DOT

reasonable suspicion test is rejected for

testing at the laboratory, results from a

blood specimen collected in accordance

with a company policy could be used to

take action against an employee

depending upon the drug testing policy

established by that company. Under no

circumstances, however, may the results

of the blood test be used to take

administrative or disciplinary action

against an employee using DOT

authority, for the reasons cited above.

Question 7: Is the collector required to

sign or initial the shipping container

label?

Guidance: Sections 40.23(c) and

40.25(h) describe the requirements for

packaging the specimen and custody

and control form in preparation for

shipment to the laboratory. Section

40.23(c) states that the shipping

container must be sealed and initialed

to prevent undetected tampering.

Section 40.25(h) states that the

collection site person shall sign and

enter the date specimens were sealed in

the shipping containers for shipment.

The DOT has determined that initialing

and dating the seal by the collection site

person is sufficient to meet the intent of

the regulation.

Question 8: How and to whom are

copies of drug testing custody and

control forms distributed?

Guidance: The historically acceptable

procedures for handling the custody and

control form have been as follows: Parts

1, 2, and 3 must accompany the urine

specimen in a sealed shipping container

to the laboratory; Part 3 (Split

Specimen) must be retained by the

laboratory in case the split specimen

must be sent to a second laboratory; Part

4 must be sent from the collection site

directly to the physician (MRO); Part 5

is given to the donor at the collection

site; Part 6 is retained by the collection

site personnel; and Part 7 is provided to

the employer representative. It is

unacceptable for the MRO copy of the

form to accompany the urine specimen

to the laboratory. Clearly the intent of

the regulation is for the urine specimen

and Parts 1, 2, and 3 of the Federal

custody and control form to be sent

directly from the collection site to the

laboratory, and the MRO (Part 4) copy

of the custody and control form to be

sent directly to the physician. There is

no need to maintain a chain of custody

tracking the handling of the sealed

shipping container. In fact, the August

19, 1994 Federal Register (59 FR 42996)

expressly notes this fact in changes to

§ 40.25 to clarify this point.

Question 9: Should a specimen be

rejected by a lab if the donor-identifying

information is erroneously provided?

Guidance: The intent of the DOT

procedures is to limit the amount of

personal identifying information that is

recorded on the specimen bottle and

those copies of the drug testing custody

and control form that accompany the

specimen bottle to the laboratory. The

rule only requires that a donor initial

the specimen bottle label/seal and

provide an SSN or employee

identification number to be recorded on

the laboratory copies of the drug testing

custody and control form. The rule does

not allow for additional personal

information to be provided to the

laboratory. In fact, the intent was to

prevent the donor’s identity from being

routinely disclosed to the laboratory.

It was never intended, however, that

the inadvertent or erroneous disclosure

of the donor’s identity (i.e., name or

signature) on the specimen bottle or

laboratory copies of the drug testing

custody and control form be a

justification, in and of itself, for a

laboratory to reject the specimen for

testing or for an MRO to invalidate the

test results. Furthermore, all

accessioning procedures at laboratories

certified by the DHHS–SAMHSA

requires that specimens be identified by

specimen identification number, donor

identification number, and laboratory

accession number only. Even though

laboratory accessioning personnel may

have access to a donor’s name in these

cases, the analytical personnel will not.

Therefore, the donor’s identity is still

protected during the actual testing

process.

Question 10: Must the collector

provide a real name on the collector

certification section of drug testing

custody and control form?

Guidance: The intent of the DOT drug

testing custody and control form is to

provide complete documentation of the

specimen collection process including

the name of the collector and the

location of the collection site. The

collection site person who receives the

urine specimen from the donor should

be identified by name on the block

specifying ‘‘collector’s name.’’ Use of a

‘‘code name,’’ collector I.D. number, or
16374 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

other substitution for the collector’s

name is not acceptable. The collector’s

name should be the same as that

appearing on the identification each

collector is required to make available to

the donor, if so requested.

Section 40.25 Specimen Collection

Procedures

Question 1: Under what

circumstances must an employee be

observed while submitting a urine

sample? Under what circumstances is

observation an optional choice of the

employer?

Guidance: A direct-observation

collection is mandatory only when the

collection site person observes behavior

clearly indicating an attempt to tamper

or when the specimen temperature is

outside the normal range and an oral

body temperature reading is refused or

is inconsistent with the specimen

temperature.

The collection site person would

contact a higher-level supervisor, or a

designated employer representative, to

relay the circumstances which require

the observed collection. The supervisor

or representative would review the

circumstances for compliance with Part

40 requirements, and finding such,

would approve in advance the decision

to do the observed collection. The

collection site person—of the same

gender as the employee—would

immediately conduct the observed

collection.

The employer has the discretion to

require the employee to provide a

specimen under direct-observation

collection procedures for the return-toduty test and any subsequent follow-up

tests. The employer also has the

authority to require an employee to

provide a specimen under directobservation procedures when the

specific gravity and creatinine content

of the employee’s previous sample are

below the regulatory standards. In the

latter case, the MRO would receive the

test results from the laboratory (i.e.,

positive, negative, or in the case where

no immunoassay result is reported)

along with information that the

specimen had a specific gravity of less

than 1.003 and creatinine concentration

less than 0.2g/L. The MRO would

inform the employer of the laboratory

findings. The employer would make the

decision to do a direct-observation

collection on the employee on the next

DOT test that the employee is required

to take.

It would be the employer’s

responsibility to notify the employee of

the decision to exercise the option to do

the collection(s) under the directobservation procedure. The employer

would authorize the collection site

person to do the observed collection(s),

as applicable. Directly observed

collections are always performed by a

collector of the same gender as the

employee.

Question 2: In a ‘‘shy bladder’’

situation, if the physician conducting

the medical examination is not the

MRO, may that physician report his/her

conclusions directly to the employer?

Also, if a company has a corporate or

contract physician, may that physician

perform the examination?

Guidance: The rule does not preclude

the MRO from performing this medical

evaluation if the MRO has the expertise

and is willing to conduct this

evaluation. The DOT’s requirement that

the MRO review the results of the

medical evaluation is related to the fact

that the MRO may have additional

information on the circumstances

surrounding the attempt to provide the

urine specimen, other pertinent

information regarding the collection

process, problems or lack of problems

during previous collections, etc.

All reporting to the employer

regarding the final determination on the

results of a urine specimen is

accomplished by the MRO. This

includes the findings and conclusions of

the medical examination.

If a company has a physician on the

staff or has a contract physician, this

individual may perform the medical

examination if he/she has the required

expertise. The company should ensure

that the MRO is informed of this

arrangement and makes the referral to

that particular physician. However, the

requirement still exists to submit the

findings of the evaluation to the MRO,

who then reports his/her conclusions to

the employer. A company may also

designate its staff physician or contract

physician as the MRO if that individual

meets the regulatory criteria.

Question 3: In a ‘‘shy bladder’’

scenario, may an employer require an

individual to provide a specimen within

three hours, and if the individual

doesn’t provide a specimen, is the

inability considered to be a refusal?

Guidance: The individual must

provide the specimen within three

hours. The inability to provide does not

automatically mean that the individual

being tested will be deemed to have

refused testing. The required medical

evaluation would produce the

information which the MRO will use to

draw final conclusions. If the finding by

the MRO is that there was no legitimate

medical reason for the individual’s

inability to provide the sufficient

quantity of urine, then this finding

constitutes a refusal. A refusal to

provide a specimen has the same

sanctions under the DOT rule as a

positive test.

Once it has been determined that the

employee has violated a DOT rule (e.g.,

verified positive test, refusal), the

employee must be immediately removed

from performing any safety-sensitive

duties. The employee may not again

perform safety-sensitive duties until he

or she has met the conditions of the

applicable operating administration

(e.g., Federal Highway Administration)

rule for return to duty. The DOT rule

does not address employer policies on

subsequent personnel actions.

Question 4: In a ‘‘shy bladder’’

scenario, does DOT consider a

company’s ordering the donor back to

work prior to completion of the time

and fluid intake period an obstruction of

the collection process? Or, is the donor’s

failure to complete the collection, after

having been compelled by the employer

to leave the collection site, considered

a refusal to test if no medical reason is

provided for donor’s failure to provide

the required amount of urine?

Guidance: A company’s ordering the

employee to return to work prior to the

expiration of the time period, with no

provisions for personal observation or

for ensuring the employee’s return to

the collection site, appears to be in clear

violation of DOT rules. The employer is

not authorized to discontinue a test or

to conduct a subsequent collection at a

later time in lieu of a current collection.

The employer could order the employee

back to work while waiting for the

three-hour period to elapse, but the

employer must ensure that the

employee drinks the prescribed amount

of liquids, is under observation during

the entire period of time, and returns to

the collection site prior to the expiration

of the three hours.

It should be noted that because the

donor was not afforded the full time

period during which to provide a

specimen, the donor’s inability to

provide the required amount of urine

does not constitute a refusal to test but

is the result of employer hindrance with

the collection process. The MRO should

advise the employer of its violation of

49 CFR part 40 and propose corrective

action accordingly (i.e., establish correct

policy). In addition, the MRO may

report the violation to the appropriate

DOT operating administration or may

request that the DOT Drug Enforcement

and Program Compliance office report

the matter. The company is required to

maintain, in accordance with the

appropriate governing regulation, a

record of this ‘‘test’’ for review by a DOT

operating administration in the event of

an audit.
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Question 5: Is a current and valid

picture/photo identification required

before a urine collection takes place or

may a physical description verification

by telephone by an employer

representative suffice?

Guidance: The rule does not address

if the photo identification is current nor

does it prohibit telephonic verification

of identity. The intent of the rule was

that if the employee did not have proper

identification, an employer’s

representative would be on site to

identify that employee. There is no

requirement that the representative sign

any type of form, although procedures

should be established to ensure the true

identity of the representative.

If telephonic identification is used,

specific procedures should be in place

to ensure that the employer

representative is fully identified to the

collection site person and that

reasonable procedures exist to ensure

that the employer’s representative can

truly identify the employee. If the

employee’s identification cannot be

established to the satisfaction of the

collection site person (or based on the

collection site protocol for

identification), the collection should not

be completed. Additionally, any

identification procedure allowed under

specific DOT operating administration’s

rules is also permissible.

Exception: If the donor is selfemployed and has no photo

identification, the collector should

notify the collection site supervisor and

record in the remarks section that

positive identification is not available.

The donor must be asked to provide two

items of identification bearing his/her

signature. Proceed with the collection.

When the donor signs the certification

statement, compare the donor’s

signature with signatures on the

identification presented. If the

signatures appear consistent, continue

the collection process. If the signature

does not match signatures on the

identification presented, make an

additional note in remarks section

stating that ‘‘signature identification is

unconfirmed’’ and continue the

collection process.

When this (self-employed) donor does

not have appropriate identification this

should not be considered a refusal. The

collector should remember that his/her

primary function is to obtain a specimen

that can be tested for drugs under DOT

rules. The collector should provide

sufficient information in the remarks

section to help the MRO make a

determination regarding the merit of the

collection process or for the employer to

determine if there are systemic

problems or other shortfalls in its

policy/program.

Question 6: May a urine specimen

collection site be constructed to have

two or more collectors or must each

collection ‘‘station’’ be physically

separated by a barrier or wall to ensure

modesty and privacy of the donor?

Guidance: In specifying privacy and

security of the collection site, the DOT

was concerned that the act of urination

by a donor would have maximum

privacy under most circumstances and

that the specimen sample would be

under sufficient security to prevent any

allegation of tampering. Additionally,

the regulatory requirement exists that

the collection site person have only one

donor under his/her supervision at any

one time. In other words, one collection

site person may not process the

paperwork or collect a specimen from

more than one donor at a time. There

are collection sites, particularly at

health clinics, that may have ‘‘stations’’

or booths which are partially partitioned

from each other or from the rest of the

clinic. The collection site person

usually gathers relevant information

from the donor at the booth, completes

the necessary paperwork, and escorts

the donor to a toilet area where the

donor can provide a specimen in

privacy.

The rule does not permit

unauthorized personnel in any part of

the designated collection site where

urine specimens are collected or stored.

In the multiple booth situation, another

collection site person would not be

considered an unauthorized person.

However, when other donors are present

in a waiting area or another donor is

being processed by another collection

site person, the integrity of the

specimen must be ensured. During the

collection process, the collection site

person must ensure that the specimen is

under his or her direct control from the

time the specimen is provided by the

donor to the time it is sealed in the

mailer. Additionally, regardless of the

physical configuration of the collection

site, there is the expectation that the

donor will have some semblance of

aural and visual privacy. For example,

a donor may tell the collector that he/

she is suffering from a particular illness,

is on medication, or that he/she has an

indwelling catheter, and wonder if this

will impact on the test results. The

donor should be able to make these

statements without embarrassment or

concern that another individual (i.e.,

another collector or donor) may

overhear or see what the donor is

providing to the collector.

Question 7: May donors be required to

remove all clothing, wear a hospital

gown, or empty pockets?

Guidance: The DOT’s procedures for

transportation workplace drug testing

programs contained in § 40.25(f)(4)

states: ‘‘The collection site person shall

ask the individual to remove any

unnecessary outer garments such as a

coat or jacket that might conceal items

or substances that could be used to

tamper with or adulterate the

individual’s urine specimen. The

collection site person shall ensure that

all personal belongings such as a purse

or briefcase remain with the outer

garments. The individual may retain his

or her wallet.’’ (Emphasis added.)

While it is clear that the rule does

allow for collectors to request that

donors remove unnecessary outer

garments in order to ensure the integrity

of the collection, the rule does not

authorize collectors to require or request

that donors remove other garments as

well, e.g. shirts, blouses, pants, or skirts,

thereby ensuring a modicum of privacy

and reducing potential embarrassment.

Additionally, donors may not be

required or requested to wear hospital

or examination gowns when providing a

specimen.

There is an exception to the above.

The DOT has determined that if a urine

specimen is being collected as part of a

DOT-required physical examination

(i.e., § 391.43 Medical examination;

certificate of physical examination) in

which an individual is required to

disrobe and wear a hospital or

examination gown, the collection may

be completed with the donor so attired.

It should also be noted that if a

collection site person, during the course

of a collection procedure, notices an

unusual indicator that an individual

may attempt to tamper with or

adulterate a specimen as evidenced by

a bulging or overstuffed pocket for

example, the collector may request that

the donor empty his or her pockets,

display the items, and explain the need

for them during the collection. This

procedure may be done only when there

is a suspicion that an individual may be

about to tamper with or adulterate a

specimen. Otherwise, requiring donors

to empty their pockets as a common

practice is also prohibited under the

current rules.

Question 8: Please clarify donor

identifying information requirements on

the drug testing custody and control

form.

Guidance: In accordance with

§ 40.25(f)(20), the donor/employee is

required to initial the specimen bottle

seal/label. The employee/donor’s

identification number or SSN is to be
16376 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

provided on the custody and control

form and shall not be included on the

specimen bottle seal/label. Other donor

identification (i.e., name, signature)

should not be provided on the copies of

the custody and control form that

accompany the specimen to the

laboratory. However, disclosure of the

donor’s name/signature does not, in and

of itself, require that the specimen be

rejected for testing by the laboratory.

Question 9: Is a consent form

authorized?

Guidance: Section 40.25(f)(22)(ii)

states, ‘‘When specified by DOT agency

regulation or required by the collection

site (other than an employer site) or by

the laboratory, the employee may be

required to sign a consent or release

form authorizing the collection of the

specimen, analysis of the specimen for

designated controlled substances, and

release of the results to the employer.’’

The purpose of this statement is to

allow collection sites or laboratories, of

their own accord, or when required by

a DOT agency regulation, to utilize

consent or release of information forms

for the collection, analysis, and release

of specimen results to the employer.

§ 40.25(f)(22)(ii) continues, ‘‘The

employee may not be required to waive

liability with respect to negligence on

the part of any person participating in

the collection, handling, or analysis of

the specimen or to indemnify any

person for the negligence of others.’’

The intent of this statement is to prevent

anyone who participates in either the

collection, handling, or analysis of the

specimen from trying to require the

employee to exempt them from liability

arising from their actions. This pertains

not only to collection site and laboratory

personnel, but also to MROs, their staff,

if applicable, and to the employer.

Failure of an employee to sign the

consent form does not equal a refusal to

test and the test must proceed in all

circumstances. The DOT also intends

that this interpretation shall be followed

for alcohol testing requirements.

Question 10: Is the donor’s presence

required when the collector prepares a

specimen for shipment?

Guidance: The tamper-proof seal

placed on the specimen bottle must be

affixed in the presence of the donor, but

the regulation is clear that the donor

does not have to be present when the

specimens are prepared for shipment to

the laboratory. The collection site

person is the only person required to

sign or initial the seal on the shipment

container. In fact, the rule allows the

use of shipment containers that

accommodate multiple specimen

bottles. It would be impossible to have

more than one donor witness the sealing

of their specimen bottles in one

shipment container when collectors are

required by rule to deal with only one

donor at a time.

Question 11: In a post-accident

situation requiring both a company test

and a DOT test, which should be

conducted first?

Guidance: In a post-accident situation

in which drug/alcohol testing is

required under company authority or

policy, and DOT-mandated tests are

required, the DOT tests must be

conducted first.

Question 12: Please address the issue

of low specific gravity/creatinine.

Guidance: Laboratory reports. The

laboratory may report in the laboratory

remarks section of the custody and

control form that specific gravity is less

than 1.003 and creatinine is less than

0.2 grams per liter. Actual values of

specific gravity and creatinine should

not be reported.

Medical Review Officer

Interpretations MROs shall report the

laboratory findings (positive, negative or

not tested (canceled)) to the employer

and that specific gravity and creatinine

are below 1.003 and 0.2 g/l,

respectively.

Employer Actions The employer shall

not require the driver to submit to

another specimen collection under

FHWA authority. A dilute specimen

does not constitute reasonable suspicion

of controlled substance use. The

employer may require the next

specimen, required by DOT regulations,

submitted by the driver to be collected

under direct observation.

Question 13: What should donors do

if specimen collection procedures are

not being followed?

Guidance: Under DOT agency

regulations, the employer is responsible

for ensuring that specimens are

collected in accordance with part 40. If

the employees subject to DOT-mandated

drug testing regulations believe that part

40 collection procedures are not being

followed, they should so inform the

employer. If the employer does not

respond to the complaints and take

appropriate corrective actions, the

employees may seek resolution of their

complaints through a DOT agency that

has regulatory authority over the

employer.

Question 14: Is failure to check the

temperature box on the drug testing

custody and control form considered a

fatal flaw?

Guidance: In accordance with § 40.29,

the collector is to check the temperature

of the specimen to ensure the integrity

of the specimen. The fact that it was

checked should be marked

appropriately on the custody and

control form. Inadvertently not marking

the temperature-taken box, in and of

itself, does not constitute a ‘‘fatal flaw’’

in the DOT chain of custody process.

Question 15: What are the collection

site requirements?

Guidance: Section 40.25(a)–(b)

outlines employer requirements for

designating and maintaining the

security of collection sites. To

summarize the contents of this section,

a collection site must at a minimum

provide: (1) An enclosure where privacy

for urination is possible; (2) A toilet for

urination (unless a single use,

disposable container is used with

sufficient capacity to contain the entire

void); (3) A source of water for washing

hands; (4) A suitable writing surface for

completing the required paperwork

(custody and control form); and (5)

Restricted access so that the site is

secure during collection.

Any facility, including a physician’s

office, that meets the minimum

requirements may be used as a

collection site for DOT-required drug

tests. It is the employer’s responsibility

to not only designate and ensure that

collection sites meet these minimum

requirements, but also to ensure that

collection site personnel at these

locations are properly trained and/or

qualified to collect urine specimens in

accordance with the provisions outlined

in 49 CFR part 40.

Question 16: Are middle names

required on the drug testing custody and

control form?

Guidance: Section 40.25(a) specifies

that the custody and control form used

to document DOT mandated drug

testing shall provide space for collector,

donor, and laboratory certifying

scientist names and signatures. The

regulation does not specify that a

middle name or initial must be used.

The intent of the regulation is to provide

for the identification of the person(s)

signing the certification statements. The

use of supplemental instructions on the

custody and control form (e.g. further

defining name to include first, middle,

last), does not impact on the security,

identification, or integrity of the urine

specimen and should not be used as a

basis for invalidating the specimen

results.

Section 40.29 Laboratory Analysis

Procedures

Question 1: May a laboratory provide

‘‘one-stop shopping’’ to an employer by

including the services of a MRO or a list

of MROs (which the laboratory does not

employ) from which the employer or

client could select a specific MRO?

Guidance: Under current DOT

interpretation of the rule, a laboratory
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would be prohibited from supplying a

limited list of MROs from which the

employer would select individuals that

would provide MRO services. In this

circumstance, there is a clear financial

advantage to the MROs who appear on

the laboratory list, since this makes

them among the candidates for use by

that laboratory’s clients. This advantage

could readily be viewed as providing

these MROs an incentive to maintain a

good relationship with the laboratory, so

as to ensure that they remain on the list,

which is in their financial interest. The

existence of this incentive could, in

turn, call into question the objectivity

and independence of the MROs in the

review of the test results and the

reporting to relevant officials of any

potential errors in test results or

procedures. The regulatory prohibition

is not limited to actual, demonstrated

conflict of interest. It includes matters

that ‘‘may be construed as a potential

conflict of interest’’. The DOT position

is that the above described laboratory

arrangement presents the appearance of

a conflict of interest.

Question 2: May a laboratory continue

to submit monthly summary reports to

the employer/consortia or is the

laboratory limited to quarterly reports

only?

Guidance: The DOT changed the

requirement for a monthly statistical

report to a quarterly report to provide

cost savings to the industry without

substantially decreasing the

effectiveness of the report. Although the

original regulatory language appears to

require reporting only on a quarterly

basis, the intent of this change was to

require, as a minimum, a quarterly

report, but not to limit those employers

or laboratories who desired monthly

reports. Monthly reports may be

generated provided the reports do not

contain personal identifying

information or other data from which it

is reasonably likely that information

about individuals’ tests can be readily

inferred. If a laboratory provides

monthly reports, there is no requirement

to additionally provide a quarterly

aggregate report. Likewise, the

regulatory requirement to prevent

individual identifying information

remains for both monthly and quarterly

reports. If a report is withheld for this

reason, the laboratory will notify the

employer.

Question 3: Explain the requirements

for quarterly lab summaries.

Guidance: Section 40.29(g)(6) requires

each laboratory to ‘‘provide the

employer an aggregate quarterly

statistical summary of urinalysis testing

of the employer’s employees.

Laboratories may provide the report to

a consortium provided the laboratory

provides employer-specific data and the

consortium forwards the employerspecific data to the respective employers

within 14 days of receipt of the

laboratory report.’’

The above reference also contains the

following information: ‘‘Quarterly

reports shall not contain personal

identifying information or other data

from which it is reasonably likely that

information about individuals’ tests can

be readily inferred. If necessary, in order

to prevent disclosure of such data, the

laboratory shall not send a report until

data are sufficiently aggregated to make

such an inference unlikely. In any

quarter in which a report is withheld for

this reason, or because no testing was

conducted, the laboratory shall so

inform the consortium/employer in

writing.’’

As referred to above, the DOT has

held that during a quarter in which

there was ‘‘no activity’’ the laboratory is

still required to inform the employer, in

writing, of the negative activity. This

provision is necessary to assist Federal

auditors during inspections of

employers that are required by an

Operating Administration to conduct a

drug testing program. Unless the auditor

has a complete quarter-by-quarter

history and record of drug testing results

from a laboratory, there is nothing to

preclude an employer, for example,

from destroying a quarterly summary

that does contain a confirmed positive

result and claim that there simply was

no activity during the month. This, of

course, would allow the company to

continue to use that individual in a

safety-sensitive function with no

evidence that there was a confirmed

positive drug test result. In effect, the

negative lab report serves as an

important check and balance used by

auditors in their compliance and

enforcement efforts.

Question 4: May labs transmit results

to an MRO by faxing Part 2 of drug

testing custody and control form?

Guidance: Laboratory test results may

be provided to the MRO via facsimile

transmission of the custody and control

form. However, the ‘‘true copy’’ of the

custody and control form must also be

sent to the MRO. The purpose of

permitting facsimile transmission of the

custody and control form is to facilitate

a quicker administrative review of test

results by the MRO. The MRO may

complete verification of a negative

result based on the facsimile of the

custody and control form; however, the

verification of a positive result cannot

be completed until the ‘‘true copy’’ of

the custody and control form bearing

the original signature of the laboratory’s

certifying scientist is received by the

MRO.

Question 5: May a lab certifying

scientist use a ‘‘signature stamp’’?

Guidance: In accordance with

§ 40.29(g)(5), ‘‘in the case of a positive

report for drug use [the drug testing

custody and control form (part 2)], shall

be signed (after the required

certification block) by the individual

responsible for day-to-day management

of the drug testing laboratory or the

individual responsible for attesting to

the validity of the test reports.* * *’’

In accordance with § 40.29(g)(1),

‘‘Before any test result is reported (the

results of initial tests, confirmatory

tests, or quality control data), it shall be

reviewed and the test certified as an

accurate report by the responsible

individual.’’ The DOT’s opinion is that

negative reports must be reviewed and

the test certified as an accurate report by

the laboratory’s responsible individual.

This certification must be accomplished

by a signature for positive test results

while a signature stamp with initials for

negative test results on the custody and

control form may be used.

Question 6: Does the regulation

require lab ‘‘batch reporting’’ of drug

test results?

Guidance: The laboratory may report

results to the MRO as soon as the results

have been reviewed by the appropriate

laboratory personnel. There is no

requirement for ‘‘batch reporting,’’ or

reporting simultaneously all results for

specimens received in a given shipment.

Nor does part 40 require ‘‘batch

reporting’’ of results by the MRO to the

employer. Batch reporting, which

causes the transmission of negative

results before positive results have been

verified, may create a problem by

leading an employer to make premature

assumptions about a particular test

result. However, the rule provides no

authority for an employer to take any

adverse action against an employee

whose test result is pending. The

differences in reporting time of test

results may be due to a variety of

circumstances including laboratory

processing time, MRO administrative

review processes for negatives, or the

verification process for positives.

Question 7: Is a lab required to send

results directly to the MRO?

Guidance: Yes. Section 40.29(g)

requires confidentiality and limited

access to laboratory test results, and the

laboratory must send only to the MRO

the original or a certified true copy of

the drug testing custody and control

form (Part 2). Furthermore, § 40.33(b)(3)

states: ‘‘The role of the MRO is to review

and interpret confirmed positive test

results obtained through the employer’s
16378 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

testing program.’’ Section 40.33(c)(2)

states: ‘‘The MRO shall contact the

individual directly, on a confidential

basis, to determine whether the

employee wishes to discuss the test

result. A staff person under the MRO’s

supervision may make the initial

contact, and a medically licensed or

certified staff person may gather

information from the employee.’’

Given the above, it should be clear

that the intent of the current regulations

is that all laboratory test results be sent

directly to the MRO. When the test

result is positive, the MRO must make

the verification determination; when the

test result is negative, the MRO may

delegate to a person under his/her direct

supervision the administrative review of

the negative results.

Question 8: Does the regulation allow

the MRO to disclose to the employer the

drug(s) involved in a positive test?

Guidance: Section 40.29(g)(3) requires

MROs to report to employers whether

the drug test was positive or negative. It

also allows the MRO to report the

drug(s) for which there was a positive

test.

Section 40.31 Quality Assurance and

Quality Control

Question 1: Please explain the timing

of blind performance test specimens.

Guidance: Section 40.31(d) delineates

employer and consortia blind

performance test requirements. The

intent of these requirements is to test

the laboratory’s ability to correctly

identify positive and negative samples.

These samples are to be unidentifiable

as blind samples by the laboratory.

The regulation does not specify the

distribution or the timing of the

submissions except to stipulate in

§ 40.31(d)(2) that each ‘‘employer shall

submit three blind performance test

specimens for each 100 employee

specimens it submits, up to a maximum

of 100 blind performance test specimens

submitted per quarter.’’ This is the basic

requirement. The optimum program

would be to evenly space the

submission of blind samples throughout

the period.

Section 40.33 Reporting and Review of

Results

Question 1: Does the MRO have to

personally conduct the verification of a

positive drug test result?

Guidance: The DOT requirement that

the MRO be a licensed physician with

knowledge of substance abuse disorders

(§ 40.33(b)(1)) indicates the importance

that the DOT placed on this function.

The regulatory requirement is that prior

to making a final decision to verify a

positive test result, the individual is

given an opportunity to discuss the test

result directly with the MRO. An

appropriately medically trained staff

person (e.g., a nurse with substance

abuse training) may gather information

from an employee about the employee’s

explanation for a positive result. In

every case, however, the MRO must talk

to the employee before making the

decision to confirm a laboratory positive

as a verified positive drug test result. No

staff person may make this decision for

the MRO.

Question 2: Does the DOT drug testing

rule permit the use of a second and

different MRO to whom the results of

the split specimen can be sent by the

second laboratory?

Guidance: There is no appropriate

role for a second and different MRO to

whom the results of the split specimen

would be submitted. The DOT’s

interpretation is that this procedure is

not permissible under the DOT rule.

The laboratory results of the split

specimen are for the presence of the

drug or drug metabolite and the rule text

does not authorize a ‘‘second’’

verification process of the split results.

Therefore, the use of a second MRO

does not add to the overall verification

process required by the rule.

Additionally, if the split specimen fails

to reconfirm or is not available for

testing, it is the responsibility of the

(original) MRO to cancel the test and

provide notification of this cancellation

to the appropriate parties. It would be

inappropriate for the second MRO to

cancel the test nor would the second

MRO have the appropriate information

to accomplish the cancellation

notification.

Question 3: If the MRO determines

that a donor has a legitimate

prescription for Marinol, would this be

reported as a negative result? What if in

the MRO’s opinion, the use of the

prescribed medication may compromise

safety?

Guidance: Section 40.33(a)(1) states in

part, that ‘‘ * * * A positive test result

does not automatically identify an

employee/applicant as having used

drugs in violation of a DOT agency

regulation. An individual with a

detailed knowledge of possible alternate

medical explanations is essential to the

review of the results.’’ The DOT’s

interpretation has been that if the MRO

can determine that the donor has a

legitimate prescription, the positive

result would be ‘‘down graded’’ to a

negative. This would apply to any

legitimately prescribed drug, including

Marinol. If the MRO determines that the

use of that particular prescription/

substance may compromise safety in the

performance of a transportation related

safety sensitive function (whether or not

the substance is prescribed for the

appropriate condition), the MRO should

discuss this with the donor’s

(prescribing) physician. The donor’s

physician may decide to prescribe an

alternate substance that may not have

adverse effects on the donor’s

performance of his/her duties.

Section 40.33(i) states in part, that

‘‘(1) The MRO may disclose such

[medical] information to the employer,

a DOT agency * * * or a physician

responsible for determining the medical

qualification of the employee * * * if

* * * (iii) * * * the information

indicates that continued performance by

the employee * * * could pose a

significant safety risk. (2) Before

obtaining medical information from the

employee as part of the verification

process, the MRO shall inform the

employee that information may be

disclosed to third parties as provided in

this paragraph * * * ’’. If after talking to

the prescribing physician, the MRO still

determines that a safety risk exists, he/

she may inform the employer, DOT, or

the employer’s physician of the

existence of a medical condition that

could preclude the donor from

performing a safety sensitive function.

However, the MRO must ensure that he/

she informed the employee prior to the

verification process that this (medical)

information may be provided to a third

party.

Question 4: Is there such a thing as an

MRO management company or does the

law specify that a single certified MRO

review each lab result from tested

employees and personally transmit the

test results to the specific employer?

Does the law require that the owner of

an MRO management company be a

physician? Do negative test results have

to be handled by a physician MRO, or

may the results be handled by the MRO

management company administrators?

Guidance: While part 40 makes no

mention of an ‘‘MRO management

company’’ the regulations do address

the role of the C/TPA. The rules do not

permit the C/TPA to receive drug testing

results directly from either the

laboratory or from the MRO. The

laboratory results are reported directly

to the MRO, and the MRO results are

reported directly to the employer.

Through interpretation of § 40.33(a),

the DOT has permitted the

administrative review to be conducted

by staff persons working under the

direct supervision of the MRO. While

allowing this delegation of MRO

responsibility, the DOT never intended

nor can it condone a practice which

allows for MROs to appoint outside

‘‘agents’’ to perform this review. The
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16379

MRO should have a direct supervisory

relationship with the reviewer and not

simply have access to the ‘‘process’’ of

the administrative review. Conversely, a

C/TPA cannot contract for the MRO to

review only positive drug test results,

leaving the review or processing of

negatives to the C/TPA.

Question 5: May a C/TPA act as an

agent of the MRO for the purpose of

conducting administrative reviews of all

negative urine drug test results and

receive drug testing results directly from

the laboratory?

Guidance: No. The DOT never

intended nor can it condone a practice

which allows MROs to appoint outside

agents to conduct such reviews.

Additionally, § 40.29(g) requires that all

drug test results be transmitted by the

laboratory directly to the MRO.

Transmission to the MRO means to the

MRO’s place of business and not to a

subsidiary or contractor for the MRO.

There is also the requirement that,

regardless of what forms/records a

consortium or third party administrator

maintains for an employer, notification

of all positive results will be performed

by the MRO and not through or by

anyone else.

Question 6: What are the MRO’s

review requirements during the

verification process when the MRO

copy of the custody and control form is

not available?

Guidance: The MRO may complete

the verification process if the MRO’s

copy of the custody and control form is

not available for review. The MRO

needs to review a copy of the chain of

custody which contains the employee’s

signature. A copy may be obtained from

the employee, the collector, or the

employer. These copies have the

employee’s signature.

The preamble to part 40 (Medical

Officer Issues) published on December

1, 1989 requires the MRO not to declare

a verified positive result until he or she

receives the hard copy of the original

chain of custody form from the

laboratory. This is because, prior to

determining that the test is a verified

positive, the MRO verifies the

identifying information and the facial

completeness of the chain of custody

(i.e., determines that, on the face of the

document, all the sign-offs are in the

right places).

Question 7: Does the MRO have to

verify each drug when the laboratory

reports a multiple positive drug test

results for the same individual under

the DOT drug and alcohol rule?

Guidance: Section 40.33(a) states

‘‘Medical review officer shall review

confirmed positive results.’’ The DOT

drug rule requires analysis of urine for

five drugs. Multiple drug positive

results for the same specimen (donor)

require the MRO to verify each reported

drug to determine if there is a medical

explanation for each positive result.

Additionally, the DOT drug and alcohol

management information system

requests information on multiple drug

results (for each individual). The intent

is to capture this information.

However, in the preemployment

process, it would appear that with the

employer’s consent, the MRO may

report a verified positive result for one

drug out of several laboratory positive

results (for one individual) without

continuing to seek verification for the

other drugs reported by the laboratory.

The MRO may need to use his/her

professional judgement to determine if

verification of the other drugs may be

accomplished expeditiously. Regardless

of the number of drugs that are reported

as verified for one individual, that

individual cannot perform safetysensitive work until he/she provides a

urine specimen that is negative.

In the case where the MRO verifies

and reports only one drug, the other

drugs should not be reported to the

employer if they have not been verified.

The MRO may document these

unverified positive results in his/her

records as unverified and unreported

results.

Question 8: Is a company obligated to

pay for the processing of a split urine

specimen when the primary specimen is

positive? Does a company have to pay

for testing the split specimen if it was

a pre-employment test?

Guidance: The split sample procedure

is a statutory requirement of the

Omnibus Transportation Employee

Testing Act of 1991 for employers in the

aviation, highway, rail, and transit

industries, as well as the DOT rules.

Section 40.3 states, in part: ‘‘Employee.

An individual designated in a DOT

agency regulation as subject to drug

testing and/or alcohol testing. As used

in this part ‘‘employee’’ includes an

applicant for employment.’’ And

§ 40.33(f) states, in part: ‘‘If the

employee requests an analysis of the

split specimen within 72 hours of

having been informed of a verified

positive test, the MRO shall direct, in

writing, the laboratory to provided the

split specimen to another DHHScertified laboratory for analysis.’’ In

other words, if the applicant or

employee makes the request within this

time period, the split specimen must be

tested. This is true of all types of tests,

including pre-employment.

The employer is responsible for

ensuring that the test occurs, including

taking responsibility for paying for it.

The employer may arrange with the

applicant or employee for

reimbursement, but in no case does the

refusal by the applicant or employee to

contribute to the cost of the test excuse

the employer from ensuring that the test

takes place. A previous agreement

negotiated between the employee and

employer or a labor-management

agreement that specifies payment

arrangements, could dictate the ultimate

payment source.

The split specimen testing process,

initiated by the MRO’s written request,

should not be delayed while awaiting

payment to come from the applicant or

employee. If there is a dispute, the fallback position would be for the employer

to be billed (by either the primary

laboratory for sending the split

specimen, or the receiving laboratory for

testing the split specimen) and then for

the employer to settle the matter afterthe-fact with the applicant or employee.

Question 9: When may the MRO

notify an employer of a positive drug

test result?

Guidance: The MRO may not notify

the employer of a positive test until he/

she has verified the test as positive.

Verification requires that the MRO

review the chain of custody

documentation, contact the employee,

review any documentation of a

legitimate medical explanation for a

positive test, and determine that the

positive resulted from unauthorized use

of a controlled substance. The MRO is

not required to delay verification

pending the outcome of the reanalysis

or the split specimen. Only upon

verification shall the MRO notify the

employer of the positive result, and the

employer shall then remove the

employee from the safety-sensitive

duties/position. Once having received

notice of a verified positive result from

the MRO, the employer shall not delay

removal of the employee from safetysensitive duties pending the outcome of

the reanalysis or the split specimen.

Question 10: Must the MRO report to

employers be in writing

Guidance: Part 40 does not require the

MRO to provide written notification to

employers of verified drug test results.

The FHWA, however, does require

MROs to forward a signed, written

notification to the employer within

three business days of the completion of

the MRO’s review for both positive and

negative results. A legible photocopy of

the fourth copy of the Federal Drug

Testing Custody and Control Form

required by part 40 appendix A may be

used to make the signed, written

notification to the employer for all test

results (positive, negative, canceled,

etc.), provided that the controlled
16380 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

substance(s) verified as positive, and the

MRO’s signature, shall be legibly noted

in the remarks section of step 8 of the

form completed by the MRO.

Question 11: May an MRO use part 2

of drug testing custody and control form

to report negative results?

Guidance: No. The MRO should not

provide the employer with a copy of the

custody and control form bearing the

results from the laboratory. Often,

positive results reported by the

laboratory are determined by the MRO

to be explained by authorized medical

use of a substance, and thus are verified

and reported negative. Employers are

not permitted to have the laboratory

information, only the MRO’s

determination.

Question 12: Please explain an MRO’s

review of negative results.

Guidance: The duties of the MRO

with respect to reviewing negative urine

drug test results are strictly

administrative, but must include a

review of the drug testing custody and

control form prior to releasing the

results to the employer. This is

necessary to substantiate that the

reported negative result is correctly

identified with the donor and to ensure

that the form is complete and sufficient

on its face (§ 40.33(a) (1–2)). While the

DOT, through interpretation, has

permitted the administrative review to

be conducted by a staff person working

under the direct supervision of the

MRO, the requirement to conduct the

review in accordance with current

regulations remains in effect.

Question 13: Please explain MRO

verification of opiate positives.

Guidance: The MRO verification

process of any positive laboratory report

requires several specific actions. These

include a review of the drug testing

custody and control form for

completeness and accuracy, notifying

and providing the donor an opportunity

to discuss the results, reviewing the

donor’s medical history and medical

records, and investigating other

biomedical factors that may account for

the positive result.

The above actions are especially

important when the MRO is confronted

with an opiate positive, as the result

may be caused by the use of a legally

prescribed medication or an ingested

substance, such as poppy seeds. Using

the above steps as a guide, the MRO first

ensures that the drug testing custody

and control form is complete and

accurate on its face. Next, the MRO

notifies the donor of the positive test

result and offers the individual an

opportunity to discuss the results. If the

donor expressly declines the

opportunity to discuss the test results,

or fails to contact the MRO within five

days after being notified by a designated

employer representative to do so, the

MRO may verify the laboratory test

result as a positive. This includes

results that are positive for opiates.

If the donor accepts the opportunity

to discuss the results with the MRO, the

MRO must review any medical records

provided by the donor to determine if

the opiate positive resulted from a

legally prescribed medication. If the

donor is unable to produce medical

evidence and admits to unauthorized

use of an opiate, the MRO should verify

the result as a positive. However, if the

donor is unable to produce medical

evidence, denies unauthorized use of an

opiate, or denies using another

individual’s medication, the MRO must

determine that there is clinical

evidence—in addition to the urine test—

of unauthorized use of any opium,

opiate, or opium derivative before

verifying the test result as positive.

Examples of clinical evidence include

recent needle tracks or behavioral or

psychological signs of acute opiate

intoxication or withdrawal. If a

laboratory confirms the presence of 6-

acetylmorphine (6–AM) through a GC/

MS test, no clinical evidence is

necessary, since 6–AM is a direct

deacetylated metabolite of heroin,

detectable within minutes, and its

presence proves the recent use of

heroin. If 6–AM is not found, clinical

evidence will be required to verify a

positive opiate result whether or not the

donor claims poppy seed ingestion as a

defense for the positive result.

The verification process for an opiate

positive result can be a very complex

and very difficult task for the MRO and

should be undertaken with a great deal

of caution.

Question 14: Please clarify the MRO/

lab relationship.

Guidance: Section 40.29(n)(6) states:

‘‘The laboratory shall not enter into any

relationship with an employer’s MRO

that may be construed as a potential

conflict of interest or derive any

financial benefit by having an employer

use a specific MRO.’’ Section 40.33(b)(2)

further states: ‘‘The MRO shall not be an

employee of the laboratory conducting

the drug test unless the laboratory

establishes a clear separation of

functions to prevent any appearance of

a conflict of interest, including assuring

that the MRO has no responsibility for,

and is not supervised by or the

supervisor of, any persons who have

responsibility for the drug testing or

quality control operations of the

laboratory.’’ Therefore, the rule

prohibits an employer-employee or

contract relationship between the

laboratory and the MRO, and it is

obvious that there must be a clear

separation of functions between the

MRO and the laboratory.

Question 15: In what situations may

an MRO reopen a verification of a drug

test?

Guidance: Section 40.33 specifically

allows the reopening of an MRO’s

verification of a confirmed positive drug

test in only two situations. When a

donor provides documentation that

serious illness, injury, or other

circumstances unavoidably prevented

the employee from timely contacting the

MRO, the MRO may conclude from the

documentation that there is a legitimate

explanation for the employee’s failure to

contact the MRO (see § 40.33(c)(6)). The

second situation is if neither the

employer nor the MRO is able to contact

the employee and the MRO declares the

test result to be positive, and the

employee subsequently provides

documentation that serious illness,

injury, or other circumstances

unavoidably prevented the employee

from contacting the MRO in a timely

manner, the MRO may conclude from

the documentation that there is a

legitimate explanation for the

employee’s failure to contact the MRO

(see § 40.33(g)).

Section 40.35 Protection of Employee

Records

Question 1: Please clarify release of

alcohol and drug test results with or

without written authorization.

Guidance: The rules governing release

of employee test results (§§ 40.35 and

40.81) permit disclosure to persons

other than the employee, employer, or

decision-maker in a lawsuit or grievance

action, only with the written

authorization of the employee. The

authorization must be an informed

consent, in that the employee fully

understands the intended use and

disclosure of the test results. Each

entity’s request for test results would

require a separate authorization and

must be specific. Specific items

including the purpose of the release,

specific test(s) to be released, the

party(ies) to whom these specific results

will be released must be included.

Question 2: May employees be

required to sign release forms for thirdparty disclosures?

Guidance: The intent of

(§§ 40.29(g)(3), 40.35 and 40.37) is to

ensure confidentiality of employee drug

test results. Employees cannot be

required to sign release or consent

statements for third-party disclosure as

part of the drug testing process.

Information concerning the drug test

may be released by the employer in
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16381

unemployment or workmen’s

compensation proceedings, or other

situations in which the employee is

seeking a benefit or challenges an action

taken by the employer as a result of a

drug test.

It should be noted, however, that

employers are required to request

written authorization from CMV drivers

to obtain past verified positive drug test

results, refusals to test, and alcohol

concentrations of 0.04 or greater over

the past 2 years of driving a CMV

(§§ 382.405(f) and 382.413(a)).

Section 40.39 Use of DHHS-Certified

Laboratories

Question 1: May additional testing be

conducted on a DOT specimen reported

by the laboratory as negative?

Guidance: Section 2.4(e)(3) of the

Department of Health and Human

Service’s Mandatory Guidelines for

Federal Workplace Drug Testing

Programs states, ‘‘Specimens that test

negative on all initial immunoassay

tests shall be reported as negative. No

further testing of those negative

specimens for drugs is permitted and

the specimens shall be either discarded

or pooled for use in the laboratory’s

internal quality control program.’’

The DOT requires use of DHHScertified laboratories to do all DOTrequired testing. Therefore, the above

DHHS requirement is a DOT

requirement as well. When a DOT

specimen is reported as negative by the

laboratory, no additional testing of the

specimen is permissible.

Question 2: Why use DHHS-certified

laboratories?

Guidance: The DOT requires that all

drug testing mandated under the

provisions of its drug testing rules must

be conducted in DHHS-certified

laboratories. The DOT decision to use

DHHS-certified laboratories for drug

testing is mandated by statute (Omnibus

Transportation Employee Testing Act of

1991). The DHHS standards for

certification and the proficiency testing

requirements comprise the most

stringent laboratory accreditation

program available in analytical forensic

toxicology for urine drug testing.

Additionally, the DHHS certification

program provides for standardization of

laboratory methodology and procedures,

ensuring equal treatment of all

specimens analyzed. Finally, the use of

DHHS-certified laboratories provides a

standard that has withstood the test of

legal challenges in Federal drug testing.

Section 40.69 Inability To Provide an

Adequate Amount of Breath

Question 1: If an employee is unable

to provide an amount of breath

sufficient to permit a valid breath test,

but does not allege that such inability is

due to a medical condition, what

actions must follow?

Guidance: The rules prohibit a

covered employee from refusing to

submit to required alcohol tests. Postaccident, random, reasonable suspicion,

or follow-up tests must be taken when

those tests are required. Section 40.69

sets forth the procedures to be followed

when an employee is unable to provide

an adequate amount of breath for any

reason. These procedures apply to the

employee who claims a particular

medical condition is creating the

inability to provide breath; they also

apply to the employee who claims to

have no idea as to the cause of the

inability, or to the employee who says

nothing at all.

It is imperative that the employee

understands that during the required

follow-on medical evaluation, the

physician will concentrate solely on

finding a medical condition to explain

the inability. Paragraphs (d)(2)(i) and

(d)(2)(ii) of § 40.69 dictate that the only

acceptable reason for an employee to be

unable to provide an adequate amount

of breath for testing is a medical

condition. If a medical condition is not

found, the employee will be deemed to

have refused testing.

Section 40.81 Availability and

Disclosure of Alcohol Testing

Information About Individual

Employees

Question 1: If there is one or more

BAT working for a company, does the

BAT supervisor have the right to review

(have access to) the Breath Alcohol

Testing Forms for purposes of

supervisory control? Likewise, may this

form be passed along by the BAT or the

employer to billing personnel?

Guidance: The rule holds employers

responsible for implementation of the

total program. This includes

confidentiality of information and

maintenance of records (including BAT

and MRO records). Individuals such as

supervisors of BATs and billing

personnel with a ‘‘need to know’’ are

considered authorized company

personnel and are permitted to have

access to breath alcohol testing

documentation. Access to information

would be for a specific purpose and

necessary for the employer’s successful

implementation of the program. This

would include review of the forms for

completion, obtaining specific billing

data from the forms, filing the forms,

etc. Individuals with access to these

forms are under the same regulatory

requirements for maintaining

confidentiality of these records as are

employers and BATs. Breath Alcohol

Testing Forms should not be duplicated

for purposes of supervision or billing as

this would create additional ‘‘data

bases’’ or files with potential problems

of disclosure of confidential

information. Access to these records by

unauthorized personnel would be

difficult to control. This does not

preclude use of input forms filled out by

the BAT or other personnel that would

contain appropriate billing data and

which could be maintained as backup

documentation.

When the employer uses a C/TPA to

act as the agent of the employer, then

that C/TPA could have access to the

Breath Alcohol Testing Form or the

authority to obtain a copy of the form.

Likewise, the employer’s copy of the

form may be submitted to the C/TPA by

the employer or by the BAT when the

employer has directed the BAT in

writing to do so. In all cases of positive

results at or above the .02 BAC level, the

employer must be notified immediately,

and prior to notification of the C/TPA.

Positive results may not be sent from the

BAT to the C/TPA and then submitted

to the employer.

Section 40.93 The Screening Test

Technician

Question 1: May an STT become

trained to proficiency on an evidential

breath tester (EBT) for the purposes of

conducting screening tests on that

device?

Guidance: No. Section 40.93 only

authorizes the STT to operate an alcohol

screening device (ASD); it does not

authorize the STT to operate an EBT.

This was by design. Likewise, the STT

training manual does not address the

use of an EBT by the STT. This is in

contrast with the training manual for the

BAT which concentrates solely on the

EBT; in fact, an entire unit in the BAT

training manual is devoted to ‘‘EBT

Methodology.’’ Additionally, the

proficiency requirements for the ASD,

as contained in the STT manual, are

different from the proficiency

requirements for the EBT, as contained

in the BAT manual.

When an EBT is used to conduct a

DOT alcohol test, the operator must be

a BAT. An STT is limited to conducting

only the alcohol screening test, and the

only instrument the STT may use is an

ASD.

Special Topics—Requirements for

Random Testing

Question 1: Please explain the

random testing rates for alcohol and

drugs.

Guidance: The DOT drug testing rules

require employers initially to conduct
16382 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

random drug testing at a rate equal to 50

percent of their covered employees.

Thus, if an employer has 100 covered

employees, the employer must

administer 50 random drug tests. The

number of random tests is determined

by the covered employee population,

while the number of employees

randomly tested varies depending on

the random selection process. It is

possible that 50 random tests may be

conducted on less than 50 employees,

some employees being tested two or

more times due to the random selection

of donors. The highway industry may be

allowed to reduce the annual rate to 25

percent in calendar year 1998 based on

the highway industry’s performance in

calendar years 1995 and 1996. The rate

may be lowered to 25 percent based on

two years of data reported to FHWA

indicating a positive rate of less than 1.0

percent use of drugs by CMV drivers.

The rate may increase again, however,

to 50 percent based on one year of data

reported to FHWA indicating a positive

rate equal to or greater than 1.0 percent

use of drugs by CMV drivers.

The alcohol testing rules require

employers initially conduct random

testing at a rate equal to 25 percent of

their covered employees. Thus, if an

employer has 100 covered employees,

the employer must administer 25

random drug tests. The number of

random tests is determined by the

covered employee population, while the

number of employees randomly tested

varies depending on the random

selection process. It is possible that 25

random tests may be conducted on less

than 25 employees, some employees

being tested two or more times due to

the random selection of donors. The

highway industry may be allowed to

reduce the annual rate to 10 percent in

calendar year 1999 based on the

highway industry’s performance in

calendar years 1996 and 1997. The rate

may be lowered to 10 percent based on

two years of data reported to FHWA

indicating a violation rate of less than

0.5 percent use of alcohol by CMV

drivers. The highway industry would be

required to raise the annual rate to 50

percent in calendar year 1998 or later

years based on the highway industry’s

performance in calendar year 1996 or

later years. The rate may increase to 50

percent based on one year of data

reported to FHWA indicating a violation

rate of is equal to or greater than 1.0

percent use of alcohol by CMV drivers.

Question 2: Is use of a consortium to

conduct random testing allowed?

Guidance: The FHWA requires

individual owner-operators to be in a

random testing pool of two or more

persons. This, in effect, requires an

individual owner-operator to be in a

consortium for random testing purposes.

The DOT allows and even advocates the

use of a consortium to assist smaller

companies in complying with the

alcohol and drug testing regulations.

While it is true that in a combined

employer pool, some employers will

have a higher percentage of their

employees selected for testing than

others in a given 12-month period, over

time this will even out. Additionally,

the DOT believes that the deterrent

effect of random drug testing remains as

powerful in a combined employers pool

as it would be in a stand-alone single

company pool. With this in mind, the

DOT has determined that combining

employer pools within a consortium

meets the spirit and intent of the alcohol

and drug testing regulations and is,

therefore, permissible.

Question 3: May an employer

combine DOT and non-DOT random

pools?

Guidance: No. While it would seem to

be advantageous for an employer to

combine all employees into one random

testing pool, this move could dilute the

number of DOT-covered employees who

would actually be tested. For example,

in a pool that is comprised of 50 DOTcovered employees and 50 non-DOTcovered employees, and assuming a

testing rate of 50 percent, it is possible

that no DOT-covered employees would

be tested (100 employees, 50 tests, all 50

tests conducted on non-DOT

employees). The likelihood of this

happening, albeit remote, is possible

under a truly random scheme. On the

other hand, keeping the above two

classes of employees in separate pools

assures that at least 25 of the tests

conducted by the company will be

conducted on DOT-covered employees.

It is this assurance that ultimately

mandates that DOT-covered employees

remain in separate random pools.

Question 4: May an employer

combine employees covered by different

operating administration rules into a

single pool for random testing?

Guidance: The DOT has determined

that it is, indeed, permissible for an

employer to combine covered

employees from different operating

administrations (e.g. Research and

Special Programs Administration, Coast

Guard, and FHWA), into a single

selection pool for the purpose of

conducting random drug testing under

DOT authority. When exercising this

option, however, the employer must

ensure that the random testing rate is at

least equal to the highest rate required

by each of the operating

administrations.

Question 5: Is it permissible to

separate union and non-union

employees, both covered by DOT, into

stand-alone pools?

Guidance: The DOT has determined

that it is permissible for an employer to

separate union and non-union

employees into separate pools for the

purpose of random drug testing. If using

this approach, the employer must

ensure that employees from each pool

are tested at equal rates. For example, if

pool ‘‘A’’ consists of 50 non-union

employees and pool ‘‘B’’ consists of 300

union employees, the employer must

ensure, if testing is done at a 50 percent

rate, that 25 tests are conducted

annually on employees from pool ‘‘A’’

and that 150 tests are conducted

annually on employees from pool ‘‘B.’’

Special Topics—Procedures for

Handling and Processing a Split

Specimen

Question: Describe the proper

handling and processing of a split

specimen.

Guidance: ‘‘Where the employer has

used the split sample method, and the

laboratory observes that the split sample

is untestable, inadequate, or unavailable

for testing, the laboratory shall

nevertheless test the primary specimen.

The laboratory does not inform the MRO

or the employer of the untestability,

inadequacy, or unavailability of the split

specimen until and unless the primary

specimen is a verified positive test and

the MRO has informed the laboratory

that the employee has requested a test

of the split specimen.’’ (§ 40.29(b)(1)(ii))

‘‘In situations where the employer

uses the split sample collection method,

the laboratory shall log in the split

specimen, with the split specimen bottle

seal remaining intact.’’ (§ 40.29(b)(2))

‘‘When directed in writing by the

MRO to forward the split specimen to

another DHHS-certified laboratory for

analysis, the second laboratory shall

analyze the split specimen by GC/MS to

reconfirm the presence of the drug(s) or

drug metabolite(s) found in the primary

specimen.’’ (§ 40.29(b)(3))

‘‘If the employee requests an analysis

of the split specimen within 72 hours of

having been informed of a verified

positive test, the MRO shall direct, in

writing, the laboratory to provide the

split specimen to another DHHScertified laboratory for analysis. If the

analysis of the split specimen fails to

reconfirm the presence of the drug(s) or

drug metabolite(s) found in the

specimen, or if the split specimen is

unavailable, inadequate for testing or

untestable, the MRO shall cancel the

test and report cancellation and the
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16383

reasons for it to the DOT, the employer,

and the employee.’’ (§ 40.33(f))

If the primary laboratory does not

receive a split specimen with the

primary, or the split specimen is

leaking, or the split specimen’s seal is

broken, or has any other problem that

would make it unavailable for testing,

the primary laboratory must still process

the primary specimen as if there were

no problems with the split specimen.

The laboratory should not bring any

split specimen deficiency to the

attention of the MRO at this time.

(§ 40.29(b)(1)(ii))

The seal on the split specimen must

remain intact—just as the split

specimen was sealed at the collection

site. (§ 40.29(b)(2))

The MRO will direct the primary

laboratory to forward the split specimen

to a second DHHS-certified laboratory.

At the second DHHS-certified

laboratory, the split specimen shall only

be used to reconfirm the presence of the

drug(s) or drug metabolite(s) found in

the primary specimen. (§ 40.29(b)(3))

Only a request from the employee can

authorize the MRO to initiate the

forwarding of the split specimen to the

second DHHS-certified laboratory for

analysis. (§ 40.33(f))

PART 325—COMPLIANCE WITH

INTERSTATE MOTOR CARRIER NOISE

EMISSION STANDARDS

Sections Interpreted

325.1

Section 325.1 Scope Of The Rules In

This Part

Question 1: What noise emission

requirements are applicable to auxiliary

generators?

Guidance: Auxiliary generators which

normally operate only when a CMV is

stopped or moving at 5 mph or less are

‘‘auxiliary equipment’’ of the kind

contemplated by EPA and are, therefore,

exempt from the noise limits in Part

325. However, noise from generators

that run while the CMV is moving at

higher speeds would be measured as

part of total vehicle noise.

Question 2: Do refrigeration units on

tractor-trailer combinations fall within

the exemption listed in part 325,

subpart A of the FMCSRs?

Guidance: No.

PART 382—CONTROLLED SUBSTANCES

AND ALCOHOL USE AND TESTING

Sections Interpreted

382.103 Applicability

382.105 Testing Procedures

382.107 Definitions

382.109 Preemption of State and Local

Laws

382.113 Requirement for Notice

382.115 Starting Date for Testing Programs

382.205 On-Duty Use

382.213 Controlled Substances Use

382.301 Pre-employment Testing

382.303 Post-accident Testing

382.305 Random Testing

382.307 Reasonable Suspicion Testing

382.401 Retention of Records

382.403 Reporting of Results in a

Management Information System

382.405 Access to Facilities and Records

382.413 Release of Alcohol and Controlled

Substances Test Information by Previous

Employers

382.501 Removal From Safety-Sensitive

Functions

382.507 Penalties

382.601 Motor Carrier Obligation to

Promulgate a Policy on the Misuse of

Alcohol and Use of Controlled

Substances

382.603 Training for Supervisors

382.605 Referral, Evaluation, and Treatment

Subpart B—Prohibitions

Special Topics—Responsibility for Payment

for Testing

Special Topics—Multiple Service Providers

Special Topics—Medical Examiners Acting

as MRO

Special Topics—Biennial (Periodic) Testing

Requirements

Section 382.103 Applicability

Question 1: Are intrastate drivers of

CMVs, who are required to obtain CDLs,

required to be alcohol and drug tested

by their employer?

Guidance: Yes. The definition of

commerce in 382.107 is taken from 49

U.S.C. § 31301 which encompasses

interstate, intrastate and foreign

commerce.

Question 2: Are students who will be

trained to be motor vehicle operators

subject to alcohol and drug testing? Are

they required to obtain a CDL in order

to operate training vehicles provided by

the school?

Guidance: Yes. Section 382.107

includes the following definitions:

Employer means any person

(including the United States, a State,

District of Columbia or a political

subdivision of a State) who owns or

leases a CMV or assigns persons to

operate such a vehicle. The term

employer includes an employer’s

agents, officers and representatives.

Driver means any person who

operates a CMV.

Truck and bus driver training schools

meet the definition of an employer

because they own or lease CMVs and

assign students to operate them at

appropriate points in their training.

Similarly, students who actually operate

CMVs to complete their course work

qualify as drivers.

The CDL regulations provide that ‘‘no

person shall operate’’ a CMV before

passing the written and driving tests

required for that vehicle (49 CFR

383.23(a)(1)). Virtually all of the

vehicles used for training purposes meet

the definition of a CMV, and student

drivers must therefore obtain a CDL.

Question 3: Are part 382 alcohol and

drug testing requirements applicable to

firefighters in a State which gives them

the option of obtaining a CDL or a noncommercial class A or B license

restricted to operating fire equipment

only?

Guidance: No. The applicability of

part 382 is coextensive with part 383—

the general CDL requirements. Only

those persons required to obtain a CDL

under Federal law and who actually

perform safety-sensitive duties, are

required to be tested for drugs and

alcohol.

The FHWA, exercising its waiver

authority, granted the States the option

of waiving firefighters from CDL

requirements. A State which gives

firefighters the choice of obtaining

either a CDL or a non-commercial

license has exercised the option not to

require CDLs. Therefore, because a CDL

is not required, by extension part 382 is

not applicable.

A firefighter in the State would not be

required under Federal law to be tested

for drugs and alcohol regardless of the

type of license which the employer

required as a condition of employment

or the driver actually obtained. It is the

Federal requirement to obtain a CDL,

nonexistent in the State, that entails

drug and alcohol testing, not the fact of

actually holding a CDL.

Question 4: An employer or State

government agency requires CDLs for

drivers of motor vehicles: (1) with a

GVWR of 26,000 pounds or less; (2)

with a GCWR of 26,000 pounds or less

inclusive of a towed unit with a GVWR

of 10,000 pounds or less; (3) designed to

transport 15 or less passengers,

including the driver; or (4) which

transport HM, but are not required to be

placarded under 49 CFR part 172,

subpart F. Are such drivers required by

part 382 to be tested for the use of

alcohol or controlled substances?

Guidance: No. Part 382 requires or

authorizes drug and alcohol testing only

of those drivers required by part 383 to

obtain a CDL. Since the vehicles

described above do not meet the

definition of a CMV in part 383, their

drivers are not required by Federal

regulations to have a CDL.

Question 5: Are Alaskan drivers with

a CDL who operate CMVs and have been

waived from certain CDL requirements

subject to controlled substances and

alcohol testing?

Guidance: Yes. Alaskan drivers with

a CDL who operate CMVs are subject to

controlled substances and alcohol
16384 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

testing because they have licenses

marked either ‘‘commercial driver’s

license’’ or ‘‘CDL’’. The waived drivers

are only exempted from the knowledge

and skills tests, and the photograph on

license requirements.

Question 6: Do the FHWA’s alcohol

and controlled substances testing

regulations apply to employers and

drivers in U.S. territories or possessions

such as Puerto Rico and Guam?

Guidance: No. The rule by definition

applies only to employers and drivers

domiciled in the 50 states and the

District of Columbia.

Question 7: Which drivers are to be

included in a alcohol and controlled

substances testing program under the

FHWA’s rule?

Guidance: Any person who operates a

CMV, as defined in § 382.107, in

intrastate or interstate commerce and is

subject to the CDL requirement of 49

CFR part 383.

Question 8: Is a foreign resident driver

operating between the U.S. and a foreign

country from a U.S. terminal for a U.S.-

based employer subject to the FHWA

alcohol and controlled substances

testing regulations?

Guidance: Yes. A driver operating for

a U.S.-based employer is subject to part

382.

Question 9: What alcohol and drug

testing provisions apply to foreign

drivers employed by foreign motor

carriers?

Guidance: Foreign employers are

subject to the alcohol and drug testing

requirements in part 382 (see § 382.103).

All provisions of the rules will be

applicable while drivers are operating in

the U.S. Foreign drivers may also be

subject to State laws, such as probable

cause testing by law enforcement

officers.

Section 382.105 Testing Procedures

Question 1: What does a BAT do

when a test involves an independent,

self-employed owner-operator with a

confirmed alcohol concentration of 0.02

or greater, to notify a company

representative as required by § 40.65(i)?

Guidance: The independent, selfemployed owner-operator will be

notified by the BAT immediately and

the owner-operator’s certification in

Step 4 notes that the self-employed

owner-operator has been notified. No

further notification is necessary. The

BAT will provide copies 1 and 2 to the

self-employed owner-operator directly.

Question 2: A driver does not have a

photo identification card. Must an

employer representative identify the

driver in the presence of the BAT/urine

specimen collector or may the employer

representative identify the driver via a

telephone conversation?

Guidance: Those subject to part 382

are subject first, generally, to part 383.

Part 383 requires all States, with an

exception in Alaska for a very small

group of individuals, to provide a CDL

document to the individual that

includes, among other things: the full

name, signature, and mailing address of

the person to whom such license is

issued; physical and other information

to identify and describe the person

including date of birth (month, day, and

year), sex, and height; and, a color

photograph of the person. Except in

these rare Alaskan instances, the FHWA

fully expects most employer’s to require

the driver to present the CDL document

to the BAT or urine collector.

A driver subject to alcohol and drug

testing should be able to provide the

CDL document. In those rare instances

that the CDL or other form of photo

identification is not produced for

verification, an employer representative

must be contacted and must provide

identification. The FHWA will allow

employer representatives to identify

drivers in any way that the employer

believes will positively identify the

driver.

Question 3: Will foreign drug testing

laboratories need to be certified by the

National Institute on Drug Abuse

(NIDA)? Will they need to be certified

by the Department of Health and Human

Services (DHHS)?

Guidance: The NIDA, an agency of the

DHHS, no longer administers the

workplace drug testing laboratory

certification program. This program is

now administered by the DHHS’

Substance Abuse and Mental Health

Services Administration. All motor

carriers are required to use DHHScertified laboratories for analysis of

alcohol and controlled substances tests

as neither Mexico nor Canada has an

equivalent laboratory certification

program.

Question 4: Particularly in light of the

coverage of Canadian and Mexican

employees, how should MROs deal, in

the verification process, with claims of

the use of foreign prescriptions or overthe-counter medication?

Guidance: Possession or use of

controlled substances are prohibited

when operating a CMV under the

FHWA regulations regardless of the

source of the substance. A limited

exception exists for a substance’s use in

accordance with instructions provided

by a licensed medical practitioner who

knows that the individual is a CMV

driver who operates CMVs in a safetysensitive job and has provided

instructions to the CMV driver that the

use of the substance will not affect the

CMV driver’s ability to safely operate a

CMV (see §§ 382.213, 391.41(b)(12), and

392.4(c)). Individuals entering the

United States must properly declare

controlled substances with the U.S.

Customs Service. 21 CFR 1311.27.

The FHWA expects MROs to properly

investigate the facts concerning a CMV

driver’s claim that a positive controlled

substance test result was caused by a

prescription written by a

knowledgeable, licensed medical

practitioner or the use of an over-thecounter substance that was obtained in

a foreign country without a prescription.

This investigation should be

documented in the MRO’s files.

If the CMV driver lawfully obtained a

substance in a foreign country without

a prescription which is a controlled

substance in the United States, the MRO

must also investigate whether a

knowledgeable, licensed medical

practitioner provided instructions to the

CMV driver that the use of the ‘‘overthe-counter’’ substance would not affect

the driver’s ability to safely operate a

CMV.

Potential violations of § 392.4 must be

investigated by the law enforcement

officer at the time possession or use is

discovered to determine whether the

exception applies.

Sections 382.107 Definitions

Question 1: What is an owneroperator?

Guidance: The FHWA neither defines

the term ‘‘owner-operator’’ nor uses it in

regulation. The FHWA regulates

‘‘employers’’ and ‘‘drivers.’’ An owneroperator may act as both an employer

and a driver at certain times, or as a

driver for another employer at other

times depending on contractual

arrangements and operational structure.

Section 382.109 Preemption Of State

And Local Laws

Question 1: An employer is required

by State or local law, regulation, or

order to bargain with unionized

employees over discretionary elements

of the DOT alcohol and drug testing

regulations (e.g., selection of DHHSapproved laboratories or MROs). May

the employer defer the 1995 or 1996

implementation dates for testing

employees until the collective

bargaining process has produced

agreement on these discretionary

elements, or must the employer

implement testing as required by part

382?

Guidance: The FHWA provided large

employers 45 weeks and small

employers 97 weeks collectively to

bargain the discretionary elements of
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16385

the part 382 testing program. An

employer must implement alcohol and

controlled substances testing in

accordance with the schedule in

§ 382.115. If observance of the collective

bargaining process would make it

impossible for the employer to comply

with these deadlines, § 382.109(a)(1)

preempts the State or local bargaining

requirement to the extent needed to

meet the implementation date.

Section 382.113 Requirement For

Notice

Question 1: Must a notice be given

before each test or will a general notice

given to drivers suffice?

Guidance: A driver must be notified

before submitting to each test that it is

required by part 382. This notification

can be provided to the driver either

verbally or in writing. In addition, the

FHWA believes that the use of the DOT

Breath Alcohol Testing Form, OMB No.

2105–0529, and the Drug Testing

Custody and Control Form, 49 CFR part

40, appendix A, will support the verbal

or written notice that the test is being

conducted in accordance with Part 382.

Section 382.115 Starting Date For

Testing Programs

Question 1: In a governmental entity

structured into various subunits such as

departments, divisions, and offices, how

is the number of an employer’s drivers

determined for purposes of the

implementation date of controlled

substances and alcohol testing?

Guidance: Part 382 testing applies to

governmental entities, including those

of the Federal government, the States,

and political subdivisions of the States.

An employer is defined as any person

that owns or leases CMVs, or assigns

drivers to operate them. Therefore, any

governmental entity, or a subunit of it

that controls CMVs and the day-to-day

operations of its drivers, may be

considered the employer for purposes of

part 382. For example, a city

government divided into various

departments, such as parks and public

works, could consider the departments

as separate employers if the CMV

operations are separately controlled.

The city also has the option of deeming

the city as the employer of all of the

drivers of the various departments.

Section 382.205 On-duty Use

Question 1: What is meant by the

terms ‘‘use alcohol’’ or ‘‘alcohol use?’’ Is

observation of use sufficient or is an

alcohol test result required?

Guidance: The term ‘‘alcohol use’’ is

defined in § 382.107. The employer is

prohibited in § 382.205 from permitting

a driver to drive when the employer has

actual knowledge of the driver’s use of

alcohol, regardless of the level of

alcohol in the driver’s body. The form

of knowledge is not specified. It may be

obtained through observation or other

method.

Section 382.213 Controlled Substances

Use

Question 1: Must a physician

specifically advise that substances in a

prescription will not adversely affect the

driver’s ability to safely operate a CMV

or may a pharmacist’s advice or

precautions printed on a container

suffice for the advice?

Guidance: A physician must

specifically advise the driver that the

substances in a prescription will not

adversely affect the driver’s ability to

safely operate a CMV.

Section 382.301 Pre-Employment

Testing

Question 1: What is meant by the

phrase, ‘‘an employer who uses, but

does not employ, a driver * * * ?’’

Describe a situation to which the phrase

would apply.

Guidance: This exception was

contained in the original drug testing

rules and was generally applied to ‘‘triplease’’ drivers involved in interstate

commerce. A trip-lease driver is

generally a driver employed by one

motor carrier, but who is temporarily

leased to another motor carrier for one

or more trips generally for a time period

less than 30 days. The phrase would

also apply to volunteer organizations

that use loaned drivers.

Question 2: Must school bus drivers

be pre-employment tested after they

return to work after summer vacation in

each year in which they do not drive for

30 consecutive days?

Guidance: A school bus driver whom

the employer expects to return to duty

the next school year does not have to be

pre-employment tested so long as the

driver has remained in the random

selection pool over the summer. There

is deemed to be no break in employment

if the driver is expected to return in the

fall.

On the other hand, if the driver is

taken out of all DOT random pools for

more than 30 days, the exception to preemployment drug testing in § 382.301

would be unavailable and a drug test

would have to be administered after the

summer vacation.

Question 3: Is a pre-employment

controlled substances test required if a

driver returns to a previous employer

after his/her employment had been

terminated?

Guidance: Yes. A controlled

substances test must be administered

any time employment has been

terminated for more than 30 days and

the exceptions under § 382.301(c) were

not met.

Question 4: Must all drivers who do

not work for an extended period of time

(such as layoffs over the winter or

summer months) be pre-employment

drug tested each season when they

return to work?

Guidance: If the driver is considered

to be an employee of the company

during the extended (layoff) period, a

pre-employment test would not be

required so long as the driver has been

included in the company’s random

testing program during the layoff period.

However, if the driver was not

considered to be an employee of the

company at any point during the layoff

period, or was not covered by a

program, or was not covered for more

than 30 days, then a pre-employment

test would be required.

Question 5: What must an employer

do to avail itself of the exceptions to

pre-employment testing listed under

§ 382.301(c)?

Guidance: An employer must meet all

requirements in § 382.301(c) and (d),

including maintaining all required

documents. An employer must produce

the required documents at the time of

the Compliance Review for the

exception to apply.

Question 6: May a CDL driving skills

test examiner conduct a driving skills

test administered in accordance with 49

CFR part 383 before a person subject to

part 382 is tested for alcohol and

controlled substances?

Guidance: Yes. A CDL driving skills

test examiner, including a third party

CDL driving skills test examiner, may

administer a driving skills test to a

person subject to part 382 without first

testing him/her for alcohol and

controlled substances. The intent of the

CDL driving skills test is to assess a

person’s ability to operate a commercial

motor vehicle during an official

government test of their driving skills.

However, this guidance does not allow

an employer (including a truck or bus

driver training school) to use a person

as a current company, lease, or student

driver prior to obtaining a verified

negative test result. An employer must

obtain a verified negative controlled

substance test result prior to dispatching

a driver on his/her first trip.

Section382.303 Post-Accident Testing

Question 1: Why does the FHWA

allow post-accident tests done by

Federal, State or local law enforcement

agencies to substitute for a § 382.303 test

even though the FHWA does not allow

a Federal, State or local law
16386 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

enforcement agency test to substitute for

a pre-employment, random, reasonable

suspicion, return-to-duty, or follow-up

test? Will such substitutions be allowed

in the future?

Guidance: A highway accident is

generally investigated by a Federal,

State, or local law enforcement agency

that may determine that probable cause

exists to conduct alcohol or controlled

substances testing of a surviving driver.

The FHWA believes that testing done by

such agencies will be done to document

an investigation for a charge of driving

under the influence of a substance and

should be allowed to substitute for a

FHWA-required test. The FHWA

expects this provision to be used rarely.

The FHWA is required by statute to

provide certain protection for drivers

who are tested for alcohol and

controlled substances. The FHWA

believes that law enforcement agencies

investigating accidents will provide

similar protection based on the local

court’s prior action in such types of

testing.

The FHWA will not allow a similar

approach for law enforcement agencies

to conduct testing for the other types of

testing. A law enforcement agency,

however, may act as a consortium to

provide any testing in accordance with

parts 40 and 382.

Question 2: May an employer allow a

driver, subject to post-accident

controlled substances testing, to

continue to drive pending receipt of the

results of the controlled substances test?

Guidance: Yes. A driver may continue

to drive, so long as no other restrictions

are imposed by § 382.307 or by law

enforcement officials.

Question 3: A commercial motor

vehicle operator is involved in an

accident in which an individual is

injured but does not die from the

injuries until a later date. The

commercial motor vehicle driver does

not receive a citation under State or

local law for a moving traffic violation

arising from the accident. How long

after the accident is the employer

required to attempt to have the driver

subjected to post-accident testing?

Guidance: Each employer is required

to test each surviving driver for alcohol

and controlled substances as soon as

practicable following an accident as

required by § 382.303. However, if an

alcohol test is not administered within

8 hours following the accident, or if a

controlled substance test is not

administered within 32 hours following

the accident, the employer must cease

attempts to administer that test. In both

cases the employer must prepare and

maintain a record stating the reason(s)

the test(s) were not promptly

administered.

If the fatality occurs following the

accident and within the time limits for

the required tests, the employer shall

attempt to conduct the tests until the

respective time limits are reached. The

employer is not required to conduct any

tests for cases in which the fatality

occurs outside of the 8 and 32 hour time

limits.

Question 4: What post-accident

alcohol and drug testing requirements

are there for U.S. employer’s drivers

involved in an accident occurring

outside the U.S.?

Guidance: U.S. employers are

responsible for ensuring that drivers

who have an accident (as defined in

§ 390.5) in a foreign country are postaccident alcohol and drug tested in

conformance with the requirements of

49 CFR parts 40 and 382. If the test(s)

cannot be administered within the

required 8 or 32 hours, the employer

shall prepare and maintain a record

stating the reasons the test(s) was not

administered (see §§ 382.303 (b)(1) and

(b)(4)).

Question 5: What post-accident

alcohol and drug testing requirements

are there for foreign drivers involved in

accidents occurring outside the United

States?

Guidance: Post-accident alcohol and

drug testing is required for CMV

accidents occurring within the U.S. and

on segments of interstate movements

into Canada between the U.S.-Canadian

border and the first physical delivery

location of a Canadian consignee. The

FHWA further believes its regulations

require testing for segments of interstate

movements out of Canada between the

last physical pick-up location of a

Canadian consignor and the U.S.-

Canadian border. The same would be

true for movements between the U.S.-

Mexican border and a point in Mexico.

For example, a motor carrier has two

shipments on a CMV from a shipper in

Chicago, Illinois. The first shipment will

be delivered to Winnipeg, Manitoba and

the second to Lloydminster,

Saskatchewan. A driver is required to be

post-accident tested for any CMV

accident that meets the requirements to

conduct 49 CFR 382.303 Post-accident

testing, that occurs between Chicago,

Illinois and Winnipeg, Manitoba (the

first delivery point). The FHWA would

not require a foreign motor carrier to

conduct testing of foreign drivers for

any accidents between Winnipeg and

Lloydminster.

The FHWA does not believe it has

authority over Canadian and Mexican

motor carriers that operate within their

own countries where the movement

does not involve movements into or out

of the United States. For example, the

FHWA does not believe it has authority

to require testing for transportation of

freight from Prince George, British

Colombia to Red Deer, Alberta that does

not traverse the United States.

If the driver is not tested for alcohol

and drugs as required by § 382.303 and

the motor carrier operates in the U.S.

during a four-month period of time after

the event that triggered the requirement

for such a test, the motor carrier will be

in violation of part 382 and may be

subject to penalties under § 382.507.

Section 382.305 Random Testing

Question 1: Is a driver who is on-duty,

but has not been assigned a driving task,

considered to be ready to perform a

safety-sensitive function as defined in

§ 382.107 subjecting the driver to

random alcohol testing?

Guidance: A driver must be about to

perform, or immediately available to

perform, a safety-sensitive function to

be considered subject to random alcohol

testing. A supervisor, mechanic, or

clerk, etc., who is on call to perform

safety-sensitive functions may be tested

at any time they are on call, ready to be

dispatched while on-duty.

Question 2: What are the employer’s

obligations, in terms of random testing,

with regard to an employee who does

not drive as part of the employee’s usual

job functions, but who holds a CDL and

may be called upon at any time, on an

occasional or emergency basis, to drive?

Guidance: Such an employee must be

in a random testing pool at all times,

like a full-time driver. A drug test must

be administered each time the

employee’s name is selected from the

pool.

Alcohol testing, however, may only be

conducted just before, during, or just

after the performance of safety-sensitive

functions. A safety-sensitive function as

defined in § 382.107 means any of those

on-duty functions set forth in § 395.2

On-Duty time, paragraphs (1) through

(7), (generally, driving and related

activities). If the employee’s name is

selected, the employer must wait until

the next time the employee is

performing safety-sensitive functions,

just before the employee is to perform

a safety-sensitive function, or just after

the employee has ceased performing

such functions to administer the alcohol

test. If a random selection period

expires before the employee performs a

safety-sensitive function, no alcohol test

should be given, the employee’s name

should be returned to the pool, and the

number of employees subsequently

selected should be adjusted accordingly

to achieve the required rate.
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16387

Question 3: How should a random

testing program be structured to account

for the schedules of school bus or other

drivers employed on a seasonal basis?

Guidance: If no school bus drivers

from an employer’s random testing pool

are used to perform safety sensitive

functions during the summer, the

employer could choose to make random

selections only during the school year.

If the employer nevertheless chooses to

make selections in the summer, tests

may only be administered when the

drivers return to duty.

If some drivers continue to perform

safety-sensitive functions during the

summer, such as driving buses for

summer school, an employer could not

choose to forego all random selections

each summer. Such a practice would

compromise the random, unannounced

nature of the random testing program.

The employer would test all selected

drivers actually driving in the summer.

With regard to testing drivers not

driving during the summer, the

employer has two options. One, names

of drivers selected who are on summer

vacation may be returned to the pool

and another selection made. Two, the

selected names could be held by the

employer and, if the drivers return to

perform safety-sensitive functions

before the next random selection, the

test administered upon the drivers’

return.

Finally, it should be noted that

reductions in the number of drivers

during summer vacations reduces the

average number of driving positions

over the course of the year, and thus the

number of tests which must be

administered to meet the minimum

random testing rate.

Question 4: Are driver positions that

are vacant for a testing cycle to be

included in the determination of how

many random tests must be conducted?

Guidance: No. The FHWA random

testing program tests employed or

utilized drivers, not positions that are

vacant.

Question 5: May an employer use the

results of another program in which a

driver participates to satisfy random

testing requirements if the driver is used

by the employer only occasionally?

Guidance: The rules establish an

employer-based testing program.

Employers remain responsible at all

times for ensuring compliance with all

of the rules, including random testing,

for all drivers which they use, regardless

of any utilization of third parties to

administer parts of the program.

Therefore, to use another’s program, an

employer must make the other program,

by contract, consortium agreement, or

other arrangement, the employer’s own

program. This would entail, among

other things, being held responsible for

the other program’s compliance, having

records forwarded to the employer’s

principal place of business on 2 days

notice, and being notified of and acting

upon positive test results.

Question 6: Once an employee is

randomly tested during a calendar year,

is his/her name removed from the pool

of names for the calendar year?

Guidance: No, the names of those

tested earlier in the year must be

returned to the pool for each new

selection. Each driver must be subject to

an equal chance of being tested during

each selection process.

Question 7: Is it permissible to make

random selections by terminals?

Guidance: Yes. If random selection is

done based on locations or terminals, a

two-stage selection process must be

utilized. The first selection would be

made by the locations and the second

selection would be of those employees

at the location(s) selected. The

selections must ensure that each

employee in the pool has an equal

chance of being selected and tested, no

matter where the employee is located.

Question 8: When a driver works for

two or more employers, in whose

random pool must the driver be

included?

Guidance: The driver must be in the

pool of each employer for which the

driver works.

Question 9: After what period of time

may an employer remove a casual driver

from a random pool?

Guidance: An employer may remove

a casual driver, who is not used by the

employer, from its random pool when it

no longer expects the driver to be used.

Question 10: If an employee is off

work due to temporary lay-off, illness,

injury or vacation, should that

individual’s name be removed from the

random pool?

Guidance: No. The individual’s name

should not be removed from the random

pool so long as there is a reasonable

expectation of the employee’s return.

Question 11: Is it necessary for an

owner-operator, who is not leased to a

motor carrier, to belong to a consortium

for random testing purposes?

Guidance: Yes.

Question 12: If an employer joins a

consortium, and the consortium is

randomly testing at the appropriate

rates, will these rates meet the

requirements of the alcohol and

controlled substances testing for the

employer even though the required

percent of the employer’s drivers were

not randomly tested?

Guidance: Yes.

Question 13: Is it permissible to

combine the drivers from the

subsidiaries of a parent employer into

one pool, with the parent employer

acting as a consortium?

Guidance: Yes.

Question 14: How should an

employer compute the number of

random tests to be given to ensure that

the appropriate testing rate is achieved

given the fluctuations in driver

populations and the high turnover rate

of drivers?

Guidance: An employer should take

into account fluctuations by estimating

the number of random tests needed to

be performed over the course of the

year. If the carrier’s driver workforce is

expected to be relatively constant (i.e.,

the total number of driver positions is

approximately the same) then the

number of tests to be performed in any

given year could be determined by

multiplying the average number of

driver positions by the testing rate.

If there are large fluctuations in the

number of driver positions throughout

the year without any clear indication of

the average number of driver positions,

the employer should make a reasonable

estimate of the number of positions.

After making the estimate, the employer

should then be able to determine the

number of tests necessary.

Question 15: May an employer or

consortium include non-DOT-covered

employees in a random pool with DOTcovered employees?

Guidance: No.

Question 16: Canadians believe that

their laws require employer actions be

tied to the nature of the job and the

associated safety risk. Canadian

employers believe they will have to

issue alcohol and drug testing policies

that deal with all drivers in an identical

manner, not just drivers that cross the

border into the United States. If a motor

carrier wanted to add cross border work

to an intra-Canadian driver’s duties, and

the driver was otherwise qualified

under the FHWA rules, may the preemployment test be waived?

Guidance: The FHWA has long

required, since the beginning of the drug

testing program in 1988, that

transferring from intrastate work into

interstate work requires a ‘‘preemployment’’ test regardless of what

type of testing a State might have

required under intrastate laws. This

policy also applied to motor carriers

that had a pre-employment testing

program similar to the FHWA

requirement. The FHWA believes it is

reasonable to apply this same

interpretation to the first time a

Canadian or Mexican driver enters the

United States.
16388 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

This policy was delineated in the

Federal Register of February 15, 1994

(59 FR 7302, at 7322). The FHWA

believes motor carriers should separate

drivers into intra-Canadian and interState groups for their policies and the

random selection pools. If a driver in

the intra-Canadian group (including the

random selection pool) were to take on

driving duties into the United States,

the driver would be subject to a preemployment test to take on this driving

task. Although the circumstance is not

actually a first employment with the

motor carrier, such a test would be

required because it would be the first

time the driver would be subject to part

382.

Section 382.307 Reasonable Suspicion

Testing

Question 1: May a reasonable

suspicion alcohol test be based upon

any information or observations of

alcohol use or possession, other than a

supervisor’s actual knowledge?

Guidance: No. Information conveyed

by third parties of a driver’s alcohol use

may not be the only determining factor

used to conduct a reasonable suspicion

test. A reasonable suspicion test may

only be conducted when a trained

supervisor has observed specific,

contemporaneous, articulable

appearance, speech, body odor, or

behavior indicators of alcohol use.

Question 2: Why does § 382.307(b)

allow an employer to use indicators of

chronic and withdrawal effects of

controlled substances in the

observations to conduct a controlled

substances reasonable suspicion test,

but does not allow similar effects of

alcohol use to be used for an alcohol

reasonable suspicion test?

Guidance: The use of controlled

substances by drivers is strictly

prohibited. Because controlled

substances remain present in the body

for a relatively long period, withdrawal

effects may indicate that the driver has

used drugs in violation of the

regulations, and therefore must be given

a reasonable suspicion drug test.

Alcohol is generally a legal substance.

Only its use or presence in sufficient

concentrations while operating a CMV

is a violation of FHWA regulation.

Alcohol withdrawal effects, standing

alone, do not, therefore, indicate that a

driver has used alcohol in violation of

the regulations, and would not

constitute reasonable suspicion to

believe so.

Question 3: A consignee, consignor,

or other party is a motor carrier

employer for purposes of 49 CFR parts

382 through 399. They have trained

their supervisors in accordance with 49

CFR 382.603 to conduct reasonable

suspicion training on their own drivers.

A driver for another motor carrier

employer delivers, picks up, or has

some contact with the consignee’s,

consignor’s, or other party’s trained

supervisor. This supervisor believes

there is reasonable suspicion, based on

their training, that the driver may have

used a controlled substance or alcohol

in violation of the regulations. May this

trained consignee, consignor, or other

party’s supervisor order a reasonable

suspicion test of a driver the supervisor

does not supervise for the employing/

using motor carrier employer?

Guidance: No, the trained supervisor

may not order a reasonable suspicion

test of a driver the supervisor does not

supervise for the employing/using

motor carrier employer. Motor carrier

employers may not conduct reasonable

suspicion testing based ‘‘on reports of a

third person who has made the

observations, because of that person’s

possible credibility problems or lack of

appropriate training.’’

The trained supervisor for the

consignee, consignor, or other party

may, however, choose to do things not

required by regulation, but encouraged

by the FHWA. They may inform the

driver that they believe the driver may

have violated Federal, State, or local

regulations and advise them not to

perform additional safety-sensitive

work. They may contact the employing/

using motor carrier employer to alert

them of their reasonable suspicion and

request the employing/using motor

carrier employer take appropriate

action. In addition, they may contact the

police to request appropriate action.

Question 4: Are the reasonable

suspicion testing and training

requirements of §§ 382.307 and 382.603

applicable to an owner-operator who is

both an employer and the only

employee?

Guidance: No. The requirements of

§§ 382.307 and 382.603 are not

applicable to owner-operators in nonsupervisory positions. Section 382.307

requires employers to have a driver

submit to an alcohol and/or controlled

substances test when the employer has

reasonable suspicion to believe that the

driver has violated the prohibitions of

subpart B of part 382. Applying

§ 382.307, Reasonable Suspicion

Testing, to an owner-operator who is an

employer and the only employee

contradicts both ‘‘reason’’ and

‘‘suspicion’’ implicit in the title and the

purpose of § 382.307. A driver who has

self-knowledge that he/she has violated

the prohibitions of subpart B of part 382

is beyond mere suspicion. Furthermore,

§ 382.603 requires ‘‘all persons

designated to supervise drivers’’ to

receive training that will enable him/her

to determine whether reasonable

suspicion exists to require a driver to

undergo testing under § 382.307. An

owner-operator who does not hire or

supervise other drivers is not in a

supervisory position, nor are they

subject to the testing requirements of

§ 382.307. Therefore, such an owneroperator would not be subject to the

training requirements of § 382.603.

Section 382.401 Retention of Records

Question 1: Many small school

districts are affiliated through service

units which are, in essence, a coalition

of individual districts. Can these school

districts have one common confidant for

purposes of receiving results and

keeping records?

Guidance: Yes. Employers may use

agents to maintain the records, as long

as they are in a secure location with

controlled access. The employer must

also make all records available for

inspection at the employer’s principal

place of business within two business

days after a request has been made by

an FHWA representative.

Section 382.403 Reporting of Results

in a Management Information System

Question 1: The FHWA regulations

are written on an annual calendar year

basis. Will foreign motor carriers, using

this system, work from July 1 to June 30,

or is everything to be managed on a sixmonth basis for the first year and then

fall into annual calendar years

subsequently?

Guidance: All motor carriers must

manage their programs and report

results under § 382.403, if requested by

FHWA, on a January 1 to December 31

basis. This means that foreign motor

carriers will report July 1 to December

31 results the first applicable year.

Section 382.405 Access to Facilities

and Records

Question 1: May employers who are

subject to other Federal agencies’

regulations, such as the Nuclear

Regulatory Commission, Department of

Energy, Department of Defense, etc.,

allow those agencies to view or have

access to test records required to be

prepared and maintained by parts 40

and/or 382?

Guidance: Federal agencies, other

than those specifically provided for in

§ 382.405, may have access to an

employer’s driver test records

maintained in accordance with parts 40

or 382 only when a specific,

contemporaneous authorization for

release of the test records is allowed by

the driver.
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16389

Question 2: Must a motor carrier

respond to a third-party administrator’s

request (as directed by the specific,

written consent of the driver authorizing

release of the information on behalf of

an entity such as a motor carrier) to

release driver information that is

contained in records required to be

maintained under § 382.401?

Guidance: Yes. However, the thirdparty administrator must comply with

the conditions established concerning

confidentiality, test results, and record

keeping as stipulated in the ‘‘Notice:

Guidance on the Role of Consortia and

Third-Party Administrators (C/TPA) in

DOT Drug and Alcohol Testing

Programs’’ published on July 25, 1995,

in Volume 60, No. 142, in the Federal

Register. Motor carriers must comply

completely with 49 CFR 382.413 and

382.405 as well as any applicable

regulatory guidance. Please note that

written consent must be obtained from

the employee each time part 382

information is provided to a C/TPA, the

consent must be specific to the

individual or entity to whom

information is being provided, and that

blanket or non-specific consents to

release information are not allowed.

Question 3: May employers allow

unions or the National Labor Relations

Board to view or have access to test

records required to be prepared and

maintained by parts 40 and/or 382, such

as the list(s) of all employees actually

tested?

Guidance: Unions and the National

Labor Relations Board may have access

to the list(s) of all employees in the

random pool or the list(s) of all

employees actually tested. The dates of

births and SSNs must be removed from

these lists prior to release. However,

access to the employee’s negative or

positive test records maintained in

accordance with parts 40 or 382 can be

granted only when a specific,

contemporaneous authorization for

release of the test records is allowed by

the driver.

Question 4: May an employer (motor

carrier) disclose information required to

be maintained under 49 CFR part 382

(pertaining to a driver) to the driver or

the decision maker in a lawsuit,

grievance, or other proceeding

(including, but not limited to, worker’s

compensation, unemployment

compensation) initiated by or on behalf

of the driver, without the driver’s

written consent?

Guidance: Yes, a motor carrier has

discretion without the driver’s consent

as provided by § 382.405(g), to disclose

information to the driver or the decision

maker in a lawsuit, grievance, or other

proceeding (including, but not limited

to, worker’s compensation,

unemployment compensation) initiated

by or on behalf of the driver concerning

prohibited conduct under 49 CFR part

382.

Also, an employer (motor carrier) may

be required to provide the test result

information pursuant to other Federal

statutes or an order of a competent

Federal jurisdiction, such as an

administrative subpoena, as allowed by

§ 382.405(a) without the driver’s written

consent.

Question 5: What is meant by the term

‘‘as required by law’’ in relation to State

or local laws for disclosure of public

records relating to a driver’s testing

information and test results?

Guidance: The term ‘‘as required by

law’’ in § 382.405(a) means Federal

statutes or an order of a competent

Federal jurisdiction, such as an

administrative subpoena. The Omnibus

Transportation Employee Testing Act of

1991, and the implementing regulations

in part 382, require that test results and

medical information be confidential to

the maximum extent possible. (Pub. L.

102–143, Title V, sec. 5(a)(1), 105 Stat.

959, codified at 49 U.S.C. 31306). In

addition, the Act preempts inconsistent

State or local government laws, rules,

regulations, ordinances, standards, or

orders that are inconsistent with the

regulations issued under the Act.

The FHWA believes the only State

and local officials that may have access

to the driver’s records under

§ 382.405(d) and 49 U.S.C. 31306,

without the driver’s written consent, are

State or local government officials that

have regulatory authority over an

employer’s (motor carrier’s) alcohol and

drug testing programs for purposes of

enforcement of part 382. Such State and

local agencies conduct employer (motor

carrier) compliance reviews under the

FHWA’s Motor Carrier Safety Assistance

Program (MCSAP) on the FHWA’s

behalf in accordance with 49 CFR part

350.

Section 382.413 Release of Alcohol

and Controlled Substances Test

Information by Previous Employers

Question 1: What is to be done if a

previous employer does not make the

records available in spite of the

employer’s request along with the

driver’s written consent?

Guidance: Employers must make a

reasonable, good faith effort to obtain

the information. If a previous employer

refuses, in violation of § 382.405, to

release the information pursuant to the

new employer’s and driver’s request, the

new employer should note the attempt

to obtain the information and place the

note with the driver’s other testing

information (59 FR 7501, February 14,

1994).

Question 2: Within 14 days of first

using a driver to perform safetysensitive functions, an employer

discovers that a driver had a positive

controlled substances and/or 0.04

alcohol concentration test result within

the previous two years. No records are

discovered that the driver was evaluated

by an SAP and has been released by an

SAP for return to work. The employer

removes the driver immediately from

the performance of safety-sensitive

duties. Is there a violation of the

regulations?

Guidance: Based on the scenario as

presented, only the driver is in violation

of the rules.

Question 3: Must an employer

investigate a driver’s alcohol and drug

testing background prior to January 1,

1995?

Guidance: No. The first

implementation date of the part 382

testing programs was January 1, 1995.

Section 382.413 requires subsequent

employers to obtain information

retained by previous employers that the

previous employers generated under a

part 382 testing program. Since no

employer was allowed to conduct any

type of alcohol or drug test under the

authority of part 382 prior to January 1,

1995, no tests conducted prior to 1995

are required to be obtained under

§ 382.413. An employer may, however,

under its own authority, request that a

driver who was subject to part 391 drug

testing provide prior testing

information.

Question 4: Must a motor carrier

respond to a third-party administrator’s

request (as directed by the specific,

written consent of the driver authorizing

release of the information on behalf of

an entity such as a motor carrier) to

release driver information that is

contained in records required to be

maintained under § 382.401?

Guidance: Yes. However, the thirdparty administrator must comply with

the conditions established concerning

confidentiality, test results, and record

keeping as stipulated in the ‘‘Notice:

Guidance on the Role of Consortia and

Third-Party Administrators (C/TPA) in

DOT Drug and Alcohol Testing

Programs’’ published on July 25, 1995,

in Volume 60, No. 142, in the Federal

Register. Motor carriers must comply

completely with §§ 382.413 and 382.405

as well as any applicable regulatory

guidance. Please note that written

consent must be obtained from the

employee each time part 382

information is provided to a C/TPA, that

the consent must be specific to the

individual or entity to whom
16390 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

information is being provided, and that

blanket or non-specific consents to

release information are not allowed.

Section 382.501 Removal From SafetySensitive Functions

Question 1: What work may the driver

perform for an employer, if a driver

violates the prohibitions in subpart B?

Guidance: A driver who has violated

the prohibitions of subpart B may

perform any duties for an employer that

are not considered ‘‘safety-sensitive

functions.’’ This may include handling

of materials exclusively in a warehouse,

regardless of whether the materials are

considered hazardous as long as safetysensitive functions are not performed.

Safety-sensitive functions may not be

performed until the individual has been

evaluated by an SAP, complied with

any recommended treatment, has been

re-evaluated by an SAP, has been

allowed by the SAP to return to work

and has passed a return to duty test.

Section 382.507 Penalties

Question 1: What is the fine or

penalty for employers who refuse or fail

to provide Part 382 testing information

to a subsequent employer?

Guidance: Title 49 U.S.C. 521(b)(2)(A)

provides for civil penalties not to

exceed $500 for each instance of

refusing or failing to provide the

information required by § 382.405.

Criminal penalties may also be imposed

under 49 U.S.C. 521(b)(6).

Section 382.601 Motor Carrier

Obligation To Promulgate a Policy on

the Misuse of Alcohol and Use of

Controlled Substances

Question 1: If a driver refuses to sign

a statement certifying that he or she has

received a copy of the educational

materials required in § 382.601 from

their employer, will the employee be in

violation of § 382.601? May the driver’s

supervisor sign the certificate of receipt

indicating that the employee refused to

sign?

Guidance: The employer is

responsible for ensuring that each driver

signs a statement certifying that he or

she has received a copy of the materials

required in § 382.601. The employer is

required to maintain the original of the

signed certificate and may provide a

copy to the driver. The employer would

be in violation if it uses a driver, who

refuses to comply with § 382.601, to

perform any safety sensitive function,

because § 382.601 is a requirement

placed on the employer. The employee

would not be in violation if he or she

drove without signing for the receipt of

the policy. It is not permissible for the

driver’s supervisor to sign the certificate

of receipt; however, it is advisable for

the employer to note the attempt, the

refusal, and the consequences of such

action. Also, please note that the signing

of the policy by the employee is in no

way an acknowledgment that the policy

itself complies with the regulations.

Question 2: Does § 382.601 require

employers to provide educational

materials and policies and procedures to

drivers after the initial distribution of

required educational materials?

Guidance: No.

Section 382.603 Training for

Supervisors

Question 1: Does § 382.603 require

employers to provide recurrent training

to supervisory personnel?

Guidance: No.

Question 2: May an employer accept

proof of supervisory training for a

supervisor from another employer?

Guidance: Yes.

Section 382.605 Referral, Evaluation,

and Treatment

Question 1: Must an SAP evaluation

be conducted in person or may it be

conducted telephonically?

Guidance: Both the initial and followup SAP evaluations are clinical

processes that must be conducted faceto-face. Body language and appearance

offer important physical cues vital to the

evaluation process. Tremors, needle

marks, dilated pupils, exaggerated

movements, yellow eyes, glazed or

bloodshot eyes, lack of eye contact, a

physical slowdown or hyperactivity,

appearance, posture, carriage, and

ability to communicate in person are

vital components that cannot be

determined telephonically. In-person

sessions carry with them the added

advantage of the SAP’s being able to

provide immediate attention to

individuals who may be a danger to

themselves or others.

Question 2: Are employers required to

provide intervention and treatment for

drivers who have a substance abuse

problem or only refer drivers to be

evaluated by an SAP?

Guidance: An employer who wants to

continue to use or hire a driver who has

violated the prohibitions in subpart B in

the past must ensure that a driver has

complied with any SAP’s recommended

treatment prior to the driver returning to

safety-sensitive functions. However,

employers must only refer to an SAP

drivers who have tested positive for

controlled substances, tested 0.04 or

greater alcohol concentration, or have

violated other prohibitions in subpart B.

Question 3: Under the DOT rules,

must an SAP be certified by the DOT in

order to perform SAP functions?

Guidelines: The DOT does not certify,

license, or approve individual SAPs.

The SAP must be able to demonstrate to

the employer qualifications necessary to

meet the DOT rule requirements. The

DOT rules define the SAP to be a

licensed physician (medical doctor or

doctor of osteopathy), a licensed or

certified psychologist, a licensed or

certified social worker, or a licensed or

certified employee assistance

professional. All must have knowledge

of and clinical experience in the

diagnosis and treatment of substance

abuse-related disorders (the degrees and

certificates alone do not confer this

knowledge). In addition, alcohol and

drug abuse counselors certified by the

National Association of Alcoholism and

Drug Abuse Counselors Certification

Commission, a national organization

that imposes qualification standards for

treatment of alcohol-related disorders,

are included in the SAP definition.

Question 4: Are employers required to

refer a discharged employee to an SAP?

Guidance: The rules require an

employer to advise the employee, who

engages in conduct prohibited under the

DOT rules, of the available resources for

evaluation and treatment including the

names, addresses, and telephone

numbers of SAPs and counseling and

treatment programs. In the scenario

where the employer discharges the

employee, that employer would be

considered to be in compliance with the

rules if it provided the list to the

employee and ensured that SAPs on the

list were qualified. This employer has

no further obligation (e.g., to facilitate

referral to the SAP; ensure that the

employee receives an SAP evaluation;

pay for the evaluation; or seek to obtain,

or maintain the SAP evaluation

synopsis).

Question 5: How will the SAP

evaluation process differ if the

employee is discharged by the employer

rather than retained following a rule

violation?

Guidance: After engaging in

prohibited conduct and prior to

performing safety-sensitive duties in

any DOT regulated industry, the

employee must receive a SAP

evaluation. And, when assistance with a

problem is clinically indicated, the

employee must receive that assistance

and demonstrate successful compliance

with the recommendation as evaluated

through an SAP follow-up evaluation.

The SAP process has the potential to

be more complicated when the

employee is not retained by the

employer. In such circumstances, the

SAP will likely not have a connection

with the employer for whom the

employee worked nor have immediate
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16391

access to the exact nature of the rule

violation. In addition, the SAP may

have to hold the synopsis of evaluation

and recommendation for assistance

report until asked by the employee to

forward that information to a new

employer who wishes to return the

individual to safety-sensitive duties. In

some cases, the SAP may provide the

evaluation, referral to a treatment

professional, and the follow-up

evaluation before the employee has

received an offer of employment. This

circumstance may require the SAP to

hold all reports until asked by the

individual to forward them to the new

employer. If the new employer has a

designated SAP, that SAP may conduct

the follow-up evaluation despite the fact

that the employee’s SAP has already

done so. In other words, a new

employer may determine to its own

satisfaction (e.g., by having the

prospective employee receive a followup SAP evaluation utilizing the

employer’s designated SAP) that the

prospective employee has demonstrated

successful compliance with

recommended treatment.

Question 6: Do community lectures

and self-help groups qualify as

education and/or treatment?

Guidance: Self-help groups and

community lectures qualify as

education but do not qualify as

treatment. While self-help groups such

as Alcoholics Anonymous (AA) and

Narcotics Anonymous (NA) are crucial

to many employees’ recovery process,

these efforts are not considered to be

treatment programs in and of

themselves. However, they can serve as

vital adjuncts in support of treatment

program efforts. AA and NA programs

require a level of anonymity which

makes reporting client progress and

prognosis for recovery impossible. If the

client provides permission, AA and NA

sponsors can provide attendance status

reports to the SAP. Therefore, if a client

is referred to one of these groups or to

community lectures as a result of the

SAP evaluation, the employee’s

attendance, when it can be

independently validated, can satisfy a

SAP recommendation for education as

well as a gauge for determining

successful compliance with a treatment

program when both education and

treatment are recommended by the

SAP’s evaluation.

Question 7: Can an employee who has

violated the rules return to safetysensitive functions prior to receiving an

SAP evaluation?

Guidance: The employee is prohibited

from performing any DOT regulated

safety-sensitive function until being

evaluated by the SAP. An employer is

prohibited from permitting the

employee to engage in safety-sensitive

duties until evaluated. If the evaluation

reveals that assistance is needed, the

employee must receive the assistance,

be re-evaluated by the SAP (and

determined to have demonstrated

successful compliance with the

recommendation), and pass a return-toduty alcohol and/or drug test prior to

performing safety-sensitive duties.

Question 8: Can an employer overrule

an SAP treatment recommendation?

Guidance: No. If found to need

assistance, the employee cannot return

to safety-sensitive functions until an

SAP’s follow-up evaluation determines

that the employee has demonstrated

successful compliance with the

recommended treatment. An employer

who returns a worker to safety-sensitive

duties when the employee has not

complied with the SAP’s

recommendation is in violation of the

DOT rule and is, therefore, subject to a

penalty.

Question 9: Is an employer obligated

to return an employee to safety-sensitive

duty following the SAP’s finding during

the follow-up evaluation that the

employee has demonstrated successful

compliance with the treatment

recommendation?

Guidance: Demonstrating successful

compliance with prescribed treatment

and testing negative on the return-toduty alcohol test and/or drug test, are

not guarantees of employment or of

return to work in a safety-sensitive

position; they are preconditions the

employee must meet in order to be

considered for hiring or reinstatement to

safety-sensitive duties by an employer.

Question 10: Can an employee receive

the follow-up from an SAP who did not

conduct the initial SAP evaluation?

Guidance: Although it is preferable

for the same SAP to conduct both

evaluations, this will not be realistic in

some situations. For instance, the initial

SAP may no longer be in the area, still

under contract to the employer, or still

hired by the employer to conduct the

service. Additionally, the employee may

have moved from the area to a new

location. In all cases, the employer

responsibility is to ensure that both the

initial SAP and the follow-up SAP are

qualified according to the DOT rules.

Question 11: Who is responsible for

reimbursing the SAP for services

rendered? Who is responsible for paying

for follow-up testing recommended by

the SAP?

Guidance: The DOT rules do not affix

responsibility for payment for SAP

services upon any single party. The

DOT has left discussions regarding

payment to employer policies and to

labor-management agreements.

Therefore, in some instances, this issue

has become part of labor-management

negotiations.

Some employers have hired or

contracted staff for the purpose of

providing SAP services. For some

employees, especially those who have

been released following a violation,

payment for SAP services will become

their responsibility. In any case, the

SAP should be suitable to the employer

who chooses to return the employee to

safety-sensitive functions. Employer

policies should address this payment

issue.

Regarding follow-up testing

recommended by the SAP, when an

employer decides to return the

employee to safety-sensitive duty, the

employer is essentially determining that

the costs associated with hiring and

training a new employee exceeds the

costs associated with conducting followup testing of the returning employee. In

any case, whether the employer pays or

the employee pays, if the employee

returns to performance of safetysensitive functions, the employer must

ensure that follow-up testing occurs as

required. The employer will be held

accountable if the follow-up testing plan

is not followed.

Question 12: Can the SAP direct that

an employee be tested for both alcohol

and drugs for the return-to-duty test and

during the follow-up testing program?

Guidance: If the SAP determines that

an employee referred for alcohol misuse

also uses drugs, or that an employee

referred for drugs use also misuses

alcohol, the SAP can require that the

individual be tested for both substances.

The SAP’s decision to test for both can

be based upon information gathered

during the initial evaluation, the SAP’s

consultation contacts with the treatment

program, and/or the information

presented during the follow-up

evaluation.

Question 13: Can random testing be

substituted for required follow-up

testing?

Guidance: Follow-up testing is

directly related to a rule violation and

subsequent return to safety-sensitive

duty. Random tests are independent of

rule violations. Therefore, the two test

types are to be separated—one cannot be

substituted for the other or be

conducted in lieu of the other. Followup testing should be unpredictable,

unannounced, and conducted not less

than six times throughout the first 12

months after the employee returns to

safety-sensitive functions. Follow-up

testing can last up to 60 months. An

employee subject to follow-up testing
16392 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

will continue to be subject to an

employer’s random testing program.

Question 14: If a company has several

employees in follow-up testing, can

those employees be placed into a

follow-up random testing pool and

selected for follow-up testing on a

random basis?

Guidance: Follow-up testing is not to

be conducted in a random way. An

employee’s follow-up testing program is

to be individualized and designed to

ensure that the employee is tested the

appropriate number of times as directed

by the SAP. Random testing is neither

individualized nor can it ensure that the

employee receives the requisite number

of tests.

Question 15: What actions are to

occur if an employee tests positive

while in the follow-up testing program?

Guidance: Employees testing positive

while in follow-up testing are subject to

the same specific DOT operating

administration rules as if they tested

positive on the initial test. In addition,

the employees are subject to employer

policies related to second violations of

DOT rules.

Question 16: Can an SAP recommend

that six follow-up tests be conducted in

less than six months and then be

suspended after all six are conducted?

Guidance: Follow-up testing must be

conducted a minimum of six times

during the first twelve months following

the employee’s return to safety-sensitive

functions. The intent of this

requirement is that testing be spread

throughout the 12 month period and not

be grouped into a shorter interval. When

the SAP believes that the employee

needs to be tested more frequently

during the first months after returning to

duty, the SAP may recommend more

than the minimum six tests or can direct

the employer to conduct more of the six

tests during the first months rather than

toward the latter months of the year.

Question 17: Can you clarify the

DOT’s intent with respect to a SAP’s

determination that an individual needs

education?

Guidance: A SAP’s decision that an

individual needs an education program

constitutes a clinically based

determination that the individual

requires assistance in resolving

problems with alcohol misuse and

controlled substances use. Therefore,

the SAP is prohibited from referring the

individual to her or his own practice for

this recommended education unless

exempted by DOT rules.

Question 18: In rare circumstances, it

is necessary to refer an individual

immediately for inpatient substance

abuse services. May the SAP provide

direct treatment services or refer the

individual to services provided by a

treatment facility with which he or she

is affiliated, or must the inpatient

provider refer the individual to another

provider?

Guidance: SAPs are prohibited from

referring an employee to themselves or

to any program with which they are

financially connected. SAP referrals to

treatment programs must not give the

impression of a conflict of interest.

However, a SAP is not prohibited from

referring an employee for assistance

through a public agency; the employer

or person under contract to provide

treatment on behalf of the employer; the

sole source of therapeutically

appropriate treatment under the

employee’s health insurance program;

or the sole source of therapeutically

appropriate reasonably accessible to the

employee.

Question 19: What arrangement for

SAP services would be acceptable in

geographical areas where no qualified

SAP is readily available?

Guidance: The driver must be given

the names, addresses, and phone

numbers of the nearest SAPs. Because

evaluation by a qualified SAP rarely

takes more than one diagnostic session,

the requirement for an in-person

evaluation is not unreasonable, even if

it must be conducted some distance

from the employee’s home.

Question 20: May an employee who

tests positive be retained in a nondriving capacity?

Guidance: Yes. Before an employee

returns to performing safety-sensitive

functions, the requirements of § 382.605

must be met.

Question 21: Are foreign motor

carriers required to have an employee

assistance program?

Guidance: No. The employee

assistance program was an element of

the original FHWA drug testing program

under 49 CFR part 391, which has been

superseded by 49 CFR part 382. All

motor carriers under part 382 alcohol

and drug testing regulations must refer

drivers, who operate in the U.S. and

violate the FHWA’s alcohol and drug

testing regulations, to a substance abuse

professional.

Subpart B—Prohibitions

Question 1: Does the term, ‘‘actual

knowledge,’’ used in the various

prohibitions in subpart B of part 382,

require direct observation by a

supervisor or is it more general?

Guidance: The form of actual

knowledge is not specified, but may

result from the employer’s direct

observation of the employee, the

driver’s previous employer(s), the

employee’s admission of alcohol use, or

other occurrence. (59 FR 7320, February

15, 1994)

Special Topics—Responsibility for

Payment for Testing

Question 1: Who is responsible for

paying for any testing under the alcohol

and drug testing program, the employer

or the driver?

Guidance: Part 382 is silent as to the

responsibility for paying for testing

required under the rule. The employer

remains responsible at all times for

ensuring compliance with the rule,

regardless of who pays for testing.

Special Topics—Multiple Service

Providers

Question 1: May an employer use

more than one MRO, BAT, or SAP?

Guidance: Yes.

Special Topics—Medical Examiners

Acting as MRO

Question 1: A medical examiner

conducts a physical examination of a

driver (§ 391.43) and also acts as the

MRO for the driver’s pre-employment

controlled substances test. Though the

driver is otherwise physically qualified,

the medical examiner declines to issue

a medical examiner’s certificate because

the driver tested positive for controlled

substances. What should the medical

examiner do when the same driver,

under the aegis of a different employer,

returns a short period later, is otherwise

physically qualified, and tests negative

for controlled substances? What, if

anything, may the medical examiner

reveal to the second employer if he/she

declines to issue a certificate to the

driver?

Guidance: The driver may be

physically unqualified under

§ 391.41(b)(12) if the medical examiner

determines, based on other evidence

besides the drug test, including, but not

limited to knowledge of the prior

positive test result, that the driver

continues to use prohibited drugs

(§ 391.43 Medical examination;

certificate of physical examination). If

the medical examiner so determines, a

medical examiner’s certificate may not

be issued. If the medical examiner

determines that the driver does not use

prohibited drugs, a medical examiner’s

certificate may be issued.

The FHWA does not regulate

communications between a medical

examiner and employer, other than

requiring notification by the MRO to the

employer of controlled substances test

results under Part 382 [see § 382.407(a)].

Though medical examiners must retain

the physical examination form,

employers are not required to do so.

Many employers choose, however, to
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16393

contract with medical examiners to

provide copies of the ‘‘long form’’ to the

employers. The FMCSRs leave it solely

a matter between the medical examiner

and the employer whether the medical

examiner merely declines to issue a

medical examiner’s certificate or also

makes available to the employer the

long form, which may include notes on

alcohol and controlled substances use.

Special Topics—Biennial (Periodic)

Testing Requirements

Question 1: May an employer perform

testing beyond that required by the

DOT?

Guidance: An employer may perform

any testing provided it is consistent

with applicable law and agreements,

and is not represented as a DOT test.

Question 2: Does part 382 require a

CMV driver to carry proof of compliance

with part 382 and part 40?

Guidance: No. The drug and alcohol

testing is employer-based and proof of

compliance must be maintained by the

employer. The only certificate that is

required to be in the driver’s possession

while operating a CMV is the medical

examiner’s certificate required in

§ 391.41(a) and, if applicable, a waiver

of certain physical defects issued under

§ 391.49.

Part 383—Commercial Driver’s License

Standards; Requirements and Penalties

Sections Interpreted

383.3 Applicability

383.5 Definitions

383.21 Number of Drivers’ Licenses

383.23 Commercial Driver’s License

383.31 Notification of Convictions for

Driver Violations

383.33 Notification of Driver’s License

Suspensions

383.37 Employer Responsibilities

383.51 Driver Disqualifications

—General Questions—

383.51 Driver Disqualifications

—Alcohol Questions—

383.71 Driver Application Procedures

383.73 State Procedures

383.75 Third Party Testing

383.77 Substitute for Driving Skills Test

383.91 Vehicle Groups

383.93 Endorsements

383.95 Air Brake Restrictions

383.131 Test Procedures

383.133 Testing Methods

383.153 Information on the Document and

Application

Special Topics—Motor Coaches and CDL

Special Topics—State Reciprocity

Section 383.3 Applicability

Question 1: Are school and church

bus drivers required to obtain a CDL?

Guidance: Yes, if they drive vehicles

designed to transport 16 or more people.

Question 2: Do mechanics, shop help,

and other occasional drivers need a CDL

if they are operating a CMV or if they

only test drive a vehicle?

Guidance: Yes, if the vehicle is

operated or test-driven on a public

highway.

Question 3: Does part 383 apply to

drivers of recreational vehicles?

Guidance: No, if the vehicle is used

strictly for non-business purposes.

Question 4: Does part 383 apply to

drivers of vehicles used in ‘‘van pools’’?

Guidance: Yes, if the vehicle is

designed to transport 16 or more people.

Question 5: May a person operate a

CMV wholly on private property, not

open to public travel, without a CDL?

Guidance: Yes.

Question 6: Does off-road motorized

construction equipment meet the

definitions of ‘‘motor vehicle’’ and

‘‘commercial motor vehicle’’ as used in

§§ 383.5 and 390.5?

Guidance: No. Off-road motorized

construction equipment is outside the

scope of these definitions: (1) When

operated at construction sites; and (2)

when operated on a public road open to

unrestricted public travel, provided the

equipment is not used in furtherance of

a transportation purpose. Occasionally

driving such equipment on a public

road to reach or leave a construction site

does not amount to furtherance of a

transportation purpose. Since

construction equipment is not designed

to operate in traffic, it should be

accompanied by escort vehicles or in

some other way separated from the

public traffic. This equipment may also

be subject to State or local permit

requirements with regard to escort

vehicles, special markings, time of day,

day of the week, and/or the specific

route.

Question 7: What types of equipment

are included in the category of off-road

motorized construction equipment?

Guidance: The definition of off-road

motorized construction equipment is to

be narrowly construed and limited to

equipment which, by its design and

function is obviously not intended for

use, nor is it used on a public road in

furtherance of a transportation purpose.

Examples of such equipment include

motor scrapers, backhoes, motor

graders, compactors, tractors, trenchers,

bulldozers and railroad track

maintenance cranes.

Question 8: Do operators of motorized

cranes and vehicles used to pump

cement at construction sites have to

meet the testing and licensing

requirements of the CDL program?

Guidance: Yes, because such vehicles

are designed to be operated on the

public highways and therefore do not

qualify as off-road construction

equipment. The fact that these vehicles

are only driven for limited distances, at

less than normal highway speeds and/

or incidental to their primary function,

does not exempt the operators from the

CDL requirements.

Question 9: May a State require

persons operating recreational vehicles

or other CMVs used by family members

for non-business purposes to have a

CDL?

Guidance: Yes. States may extend the

CDL requirements to recreational

vehicles.

Question 10: Do drivers of either a

tractor trailer or straight truck that is

converted into a mobile office need a

CDL?

Guidance: Yes, if the vehicle meets

the definition of a CMV.

Question 11: Do State motor vehicle

inspectors who drive trucks and

motorcoaches on an infrequent basis

and for short distances as part of their

job have to obtain a CDL?

Guidance: Yes.

Question 12: Are State, county and

municipal workers operating CMVs

required to obtain CDLs?

Guidance: Yes, unless they are

waived by the State under the

firefighting and emergency equipment

exemption in § 383.3(d).

Question 13: Do the regulations

require that a person driving an empty

school bus from the manufacturer to the

local distributor obtain a CDL?

Guidance: Yes. Any driver of a bus

that is designed to transport 16 or more

persons, or that has a GVWR of 26,001

pounds or more, is required to obtain a

CDL in the applicable class with a

passenger endorsement.

Question 14: Are employees of any

governmental agency who drive

emergency response vehicles that

transport HM in quantities requiring

placarding subject to the CDL

regulations?

Guidance: No, as long as the vehicle

does not meet the weight/configuration

thresholds for Groups A or B (in

§ 383.91). However, under the HMTUSA

of 1990, when a Federal, State or local

government agency ‘‘offers HM for

transportation in commerce or

transports HM in furtherance of a

commercial enterprise,’’ its vehicles are

subject to the placarding requirements

of part 172, subpart F. Vehicles that are

controlled and operated by government

agencies in the conduct of governmental

functions normally are not subject to

placarding, since governmental

activities usually are not commercial

enterprises. Based on the above, local

police emergency responders driving a

vehicle having a gross vehicle or

combination weight rating under 26,001

pounds do not need a CDL, according to
16394 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

the Federal minimum standards, when

transporting HM as a function of their

agency. The drivers should check with

their State licensing agency to

determine what class of license the State

may require to operate the vehicles.

Question 15: Are public transit

employees known as ‘‘hostlers,’’ who

maintain and park transit buses on

transit system property, subject to CDL

requirements?

Guidance: No, unless operating on

public roads.

Question 16: Are non-military

amphibious landing craft that are

usually used in water but occasionally

used on a public highway CMVs?

Guidance: Yes, if they are designed to

transport 16 or more people.

Question 17: Are students who will be

trained to be motor vehicle operators

subject to alcohol and drug testing? Are

they required to obtain a CDL in order

to operate training vehicles provided by

the school?

Guidance: Yes. Section 382.107

includes the following definitions:

Employer means any person

(including the United States, a State,

District of Columbia or a political

subdivision of a State) who owns or

leases a CMV or assigns persons to

operate such a vehicle. The term

employer includes an employer’s

agents, officers and representatives.

Driver means any person who

operates a CMV. * * *

Truck and bus driver training schools

meet the definition of an employer

because they own or lease CMVs and

assign students to operate them at

appropriate points in their training.

Similarly, students who actually operate

CMVs to complete their course work

qualify as drivers.

The CDL regulations provide that ‘‘no

person shall operate’’ a CMV before

passing the written and driving tests

required for that vehicle (§ 383.23(a)(1)).

Virtually all of the vehicles used for

training purposes meet the definition of

a CMV, and student drivers must

therefore obtain a CDL.

Question 18: May States exempt

motor carriers which operate wholly in

intrastate commerce from the Federal

HMRs, thus exempting from the CDL

requirement the driver of an

unplacarded vehicle with a GVWR of

less than 26,001 pounds?

Guidance: The HMRs apply to motor

carriers in intrastate commerce only if

they transport hazardous wastes,

hazardous substances, flammable

cryogenic liquids in portable tanks and

cargo tanks, and marine pollutants (as

those terms are defined in the HMRs)

(see 49 CFR 171.1(a)(3)). Such carriers

transporting any other cargo are not

required to use HM placards, even if the

cargo qualifies as hazardous under the

Federal HMRs. Unless the vehicles used

by these carriers had GVWRs of 26,001

pounds or more, they would not meet

either the placarding or the GVWR test

in the jurisdictional definition of a CMV

(§ 383.5), and the driver would be

exempt from the CDL requirements.

However, if the State has adopted the

HMRs, or the placarding requirements

of 49 CFR part 172, as regulations

applicable to intrastate commerce, then

the drivers of all vehicles required to

use placards must also have CDLs.

If the State promulgates its own rules

for the regulation of HM in intrastate

commerce, instead of adopting the

HMRs, and those rules are approved by

the FHWA under 49 CFR 355.21(c)(3)

and paragraph 3(d) of the Tolerance

Guidelines (49 CFR part 350, appendix

C), the drivers of vehicles with GVWRs

of less than 26,001 pounds transporting

such materials in intrastate commerce

are required to obtain CDLs only if State

law requires the use of placards.

Question 19: Must a civilian operator

of a CMV, as defined in § 383.5, who

operates wholly within a military

facility open to public travel, have a

CDL?

Guidance: Yes. The CDL requirement

applies to every person who operates a

CMV in interstate, foreign or intrastate

commerce. Driving a CMV on a road,

street or way which is open to public

travel, even though privately-owned or

subject to military control, is prima

facie evidence of operation in

commerce.

Question 20: Does the FHWA include

the Space Cargo Transportation System

(SCTS) off-road motorized military

equipment under the definitions of

‘‘motor vehicle’’ and ‘‘commercial motor

vehicle’’ as used in § 383.5?

Guidance: No. Although the SCTS has

vehicular aspects (it is mechanically

propelled on wheels), the SCTS is

obviously incompatible with highway

traffic and is found only at locations

adjacent to military bases in California

and Florida, and is operated by skilled

technicians. The SCTS is moved to and

from its point of manufacture to its

launch site by ‘‘driving’’ the ‘‘vehicles’’

short distances on public roads at

speeds of five MPH or less. This is only

incidental to their primary functions;

the SCTS is not designed to operate in

traffic; and its mechanical manipulation

often requires a different set of

knowledge and skills. In most instances,

the SCTS has to be specially marked,

escorted, and attended by numerous

observers.

Question 21: Are police officers who

operate buses and vans which are

designed to carry 16 or more persons

and are used to transport police officers

during demonstrations and other crowd

control activities required to obtain a

CDL?

Guidance: Yes. The CMVSA applies

to anyone who operates a CMV,

including employees of Federal, State

and local governments. Crowd control

activities do not meet the conditions for

a waiver of operators of firefighting and

other emergency vehicles in § 383.3(d).

Question 22: May fuel be considered

‘‘farm supplies’’ as used in

§ 383.3(d)(1)?

Guidance: Yes. The decision to grant

the waiver is left to each individual

State.

Question 23: Is the transportation of

seed-cotton modules from the cotton

field to the gin by a module transport

vehicle considered a form of custom

harvesting activity that may be included

under the FRSI waiver (§ 383.3(f))?

Guidance: Yes. The transportation of

seed-cotton modules from field to gin

may, at the State’s discretion, be

considered as custom harvesting and

therefore eligible for the FRSI waiver.

However, cotton ginning operations as

an industry and, specifically the

transport of cotton from the gin, are not

eligible activities under the FRSI waiver

because these activities are not

considered appropriate elements of

custom harvesting.

Question 24: Does the amendment of

the CMVSA by the Motor Carrier Act of

1991 exempt all custom harvesting

operations from the CDL requirements

or only the operation of combines?

Guidance: Section 4010 of the Motor

Carrier Act of 1991 (Title IV of Pub. L.

102–240, 105 Stat 1914, 2156, December

18, 1991) modifies the definition of a

‘‘motor vehicle’’ in 49 U.S.C. 31301(11)

by excluding ‘‘custom harvesting farm

machinery’’ from the definition. The

conference report clarifies the intent of

the exclusion by stating: ‘‘The substitute

[provision] removes custom harvesting

farm machinery from the Act. Operators

of such machinery are not covered by

the Commercial Motor Vehicle Safety

Act of 1986. A State, however, may still

impose a requirement for a commercial

driver’s license if it so desires. The

change does not apply to vehicles used

to transport this type of machinery.’’

(H.R. Conf. Rep. No. 404, 102d Cong.,

1st Sess. 449 (1991)).

Therefore, the intent of Congress was

only to exempt operators of combines

and other equipment used to cut the

grain and not the operators of trucks,

tractors, trailers, semitrailers or any

other CMV.

Question 25: May a State (1) require

an applicant for a CDL farmer waiver
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16395

(§ 383.3(d)) to take HM training as a

condition for being granted a waiver and

(2) reduce the 150-mile provision in the

waiver to 50 miles if the driver is

transporting HM?

Guidance: Yes. The Federal farm

waiver is permissive, not mandatory.

Question 26: Do active duty military

personnel, not wearing military

uniforms, qualify for a waiver from the

CDL requirements if the CMVs are rental

trucks or leased buses from the General

Services Administration?

Guidance: Yes. The drivers in

question do not need to be in military

uniforms to qualify for the waivers as

long as they are on active duty. In regard

to the vehicles, they may be owned or

operated by the Department of Defense.

Question 27: Are custom harvesters

who harvest trees for tree farmers

eligible to be considered ‘‘custom

harvesters’’ for purposes of the FRSI

waiver from selected CDL requirements?

Guidance: If the State considers a firm

that harvests trees for tree farmers to be

a custom harvesting operation, then its

employees could qualify for the FRSIrestricted CDLs, subject to the stringent

conditions and limitations of the waiver

provisions in § 383.3(f).

Question 28: May a farmer who meets

all of the conditions for a farm waiver

be waived from the CDL requirements

when transporting another farmer’s

products absent any written contract?

Guidance: If a farmer is transporting

another farmer’s products and being

paid for doing so, he or she is acting as

a contract carrier and does not meet the

conditions for a farm waiver. The

existence of a contract, written or

verbal, is not relevant to the CDL waiver

provisions.

Question 29: May a State exempt

commercial motor vehicle drivers

employed by a partnership, corporation

or an association engaged in farming

from the CDL requirements under the

farmer waiver (49 CFR 383.3(d)) or is

the waiver only available to drivers

employed by a family-owned farm?

Guidance: The purpose of the farmer

exemption was to give relief to family

farms (53 FR 37313, September 26,

1988). The conditions for the waiver

were established to ensure that the

waiver focused on this type of farm

operation. However, ‘‘farmer’’ is defined

in § 390.5 as ‘‘any person who operates

a farm or is directly involved in the

cultivation of land, crops, or livestock

which (a) [a]re owned by that person; or

(b) [a]re under the direct control of that

person.’’ Since farming partnerships,

corporations and associations are legal

‘‘persons,’’ States may exempt drivers

working for these organizations from the

CDL requirements, provided they can

meet the strict limits imposed by the

waiver conditions.

Question 30: May a State exempt

commercial motor vehicle drivers

employed by farm cooperatives from the

commercial driver’s license (CDL)

requirements under the farmer waiver

(§ 383(d))?

Guidance: No. The waiver covers only

operators of farm vehicles which are

controlled and operated by ‘‘farmers’’ as

defined in § 390.5. The waiver does not

extend to ancillary businesses, like

cooperatives, that provide farm-related

services to members. As stated in the

waiver notice (53 FR 37313, September

26, 1988), ‘‘[t]he waiver would not be

available to operators of farm vehicles

who operate over long distances,

operate to further a commercial

enterprise, or operate under contract or

for-hire for farm cooperatives or other

farm groups. Such operators drive for a

living and do not drive only

incidentally to farming.’’

Question 31: Is a person who grows

sod as a business considered a farmer

and eligible for the farmer waiver?

Guidance: Yes, a sod farmer is eligible

for the farmer waiver provided the State

of licensure recognizes the growing of

sod to be a farming activity.

Section 383.5 Definitions

Question 1: a. Does ‘‘designed to

transport’’ as used in the definition of a

CMV in § 383.5 mean original design or

current design when a number of seats

are removed?

b. If all of the seats except the driver’s

seat are removed from a vehicle

originally designed to transport only

passengers to convert it to a cargocarrying vehicle, does this vehicle meet

the definition of a CMV in § 383.5?

Guidance: a. ‘‘Designed to transport’’

means the original design. Removal of

seats does not change the design

capacity of the CMV.

b. No, unless this modified vehicle

has a GVWR over 26,000 pounds or is

used to transport placarded HM.

Question 2: Are rubberized

collapsible containers or ‘‘bladder bags’’

attached to a trailer considered a tank

vehicle, thus requiring operators to

obtain a CDL with a tank vehicle

endorsement?

Guidance: Yes.

Question 3: If a vehicle’s GVWR plate

and/or VIN number are missing but its

actual gross weight is 26,001 pounds or

more, may an enforcement officer use

the latter instead of GVWR to determine

the applicability of the Part 383?

Guidance: Yes. The only apparent

reason to remove the manufacturer’s

GVWR plate or VIN number is to make

it impossible for roadside enforcement

officers to determine the applicability of

part 383, which has a GVWR threshold

of 26,001 pounds. In order to frustrate

willful evasion of safety regulations, an

officer may therefore presume that a

vehicle which does not have a

manufacturer’s GVWR plate and/or does

not have a VIN number has a GVWR of

26,001 pounds or more if: (1) It has a

size and configuration normally

associated with vehicles that have a

GVWR of 26,001 pounds or more; and

(2) It has an actual gross weight of

26,001 pounds or more.

A motor carrier or driver may rebut

the presumption by providing the

enforcement officer the GVWR plate, the

VIN number or other information of

comparable reliability which

demonstrates, or allows the officer to

determine, that the GVWR of the vehicle

is below the jurisdictional weight

threshold.

Question 4: If a vehicle with a

manufacturer’s GVWR of less than

26,001 pounds has been structurally

modified to carry a heavier load, may an

enforcement officer use the higher

actual gross weight of the vehicle,

instead of the GVWR, to determine the

applicability of part 383?

Guidance: Yes. The motor carrier’s

intent to increase the weight rating is

shown by the structural modifications.

When the vehicle is used to perform

functions normally performed by a

vehicle with a higher GVWR, § 390.33

allows an enforcement officer to treat

the actual gross weight as the GVWR of

the modified vehicle.

Question 5: When a State agency

contracts with private parties for

services involving the operation of

CMVs, is the State agency or contractor

considered the employer?

Guidance: If the contractor employs

individuals and assigns and monitors

their driving tasks, the contractor is

considered the employer. If the State

agency assigns and monitors driving

tasks, then the State agency is the

employer for purposes of part 383.

Question 6: A driver operates a tractor

of exactly 26,000 pounds GVWR, towing

a trailer of exactly 10,000 pounds

GVWR, for a GCWR of 36,000 pounds.

HM and passengers are not involved. Is

it a CMV and does the driver need a

CDL?

Guidance: No to both questions.

Although the vehicle has a GCWR of

36,000 pounds, it is not a CMV under

any part of the definition of that term in

§ 383.5, and a CDL is not federally

required.

Question 7: Does the definition of a

‘‘commercial motor vehicle’’ in § 383.5

of the CDL requirements include
16396 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

parking lot and/or street sweeping

vehicles?

Guidance: If the GVWR of a parking

lot or street sweeping vehicle is 26,001

or more pounds, it is a CMV under the

CDL regulations.

Question 8: Is an employee of a

Federal, State, or local government who

operates a CMV, as defined in § 383.5,

including an emergency medical

vehicle, required to obtain a CDL? If so,

why are such drivers considered as

operating ‘‘in commerce?’’

Guidance: Government employees

who drive CMVs are generally required

to obtain a CDL. However, operators of

firefighting and related emergency

equipment may be exempt from the CDL

requirement [53 FR 37313, September

26, 1988], at a State’s discretion. Drivers

of large advanced life support vehicles

operated by municipalities would

therefore, at a State’s discretion, qualify

for the exemption.

Government employees who drive

CMVs are operating in ‘‘commerce,’’ as

defined in § 383.5, because they perform

functions that affect interstate trade,

traffic, or transportation. Nearly all

government CMVs are used, directly or

indirectly, to facilitate or promote such

trade, traffic, and transportation.

Question 9: The definition of a

passenger CMV is a vehicle ‘‘designed to

transport’’ more than 15 passengers,

including the driver. Does that include

standing passengers if the vehicle was

specifically designed to accommodate

standees?

Guidance: No. ‘‘Designed to

transport’’ refers only to the number of

designated seats; it does not include

areas suitable, or even designed, for

standing passengers.

Question 10: What is considered a

‘‘public road’’?

Guidance: A public road is any road

under the jurisdiction of a public agency

and open to public travel or any road on

private property that is open to public

travel.

Section 383.21 Number of Drivers’

Licenses

Question 1: Are there any

circumstances under which the driver of

a CMV as defined in § 383.5 is allowed

to hold more than one driver’s license?

Guidance: Yes. A recipient of a new

driver’s license may hold more than one

license during the 10 days beginning on

the date the person is issued a driver’s

license.

Question 2: Is a person from Puerto

Rico required to surrender his or her

driver’s license in order to obtain a

nonresident CDL?

Guidance: Since Puerto Rico and the

U.S. Territories are not included in the

definition of a State in section 12016 of

the CMVSA (49 U.S.C. § 31301(13)),

they must be considered foreign

countries for purposes of the CDL

requirements. Under part 383, a person

domiciled in a foreign country is not

required to surrender his or her foreign

license in order to obtain a nonresident

CDL. There are two reasons for

permitting this dual licensing to a

person domiciled in Puerto Rico: (a)

There is no reciprocal agreement with

Puerto Rico recognizing its CMV testing

and licensing standards as equivalent to

the standards in part 383 and, (b) the

nonresident CDL may not be recognized

as a valid license to drive in Puerto

Rico.

Section 383.23 Commercial Driver’s

License

Question 1: May a holder of a CMV

learner’s permit continue to hold his/

her basic driver’s license from any State

without violating the single-license

rule?

Guidance: Yes, since the learner’s

permit is not a license.

Question 2: The requirements for

States regarding CMV learners’ permits

in § 383.23 appear to be ambiguous. For

example, if the CMV learner’s permit is

‘‘considered a valid CDL’’ for

instructional purposes, is the State to

enter the learner’s permit issuance as a

CDLIS transaction?

Guidance: No such requirement

currently exists.

Question 3: Is a CDL required for CMV

operations that occur exclusively in

places where the general public is never

allowed to operate, such as airport

taxiways or other areas restricted from

the public?

Guidance: No. FHWA regulations

would not require a CMV driver to

obtain a CDL under those

circumstances. The Federal rules are

minimum standards, however, and State

law may require a CDL for operations

not covered by part 383.

Section 383.31 Notification of

Convictions for Driver Violations

Question 1: Must an operator of a

CMV (as defined in § 383.5), who holds

a CDL, notify his/her current employer

of a conviction for violating a State or

local (non-parking) traffic law in any

type of vehicle, as required by

§ 383.31(b), even though the conviction

is under appeal?

Guidance: Yes. The taking of an

appeal does not vacate or annul the

conviction, nor does it stay the

notification requirements of § 383.31.

The driver must notify his/her employer

within 30 days of the date of conviction.

Section 383.33 Notification of Driver’s

License Suspensions

Question 1: When a driver (a) receives

an Administrative Order of Suspension

due to a blood alcohol reading in excess

of the legal limit with notice that the

suspension is not to be effective until 45

days after the notice or after an

administrative hearing, and (b) a hearing

is subsequently held, in effect

suspending the license, what is the

effective date of suspension for

purposes of notifying the employer

under § 383.33?

Guidance: The effective date of the

suspension for notification purposes is

the day the employee received notice of

the suspension.

Section 383.37 Employer

Responsibilities

Question 1: Section 383.37(a) does not

allow employers to knowingly use a

driver whose license has been

suspended, revoked or canceled. Do

motor carriers have latitude in their

resulting actions: firing, suspension,

layoff, authorized use of unused

vacation time during suspension

duration, transfer to nondriving position

for duration of the suspension?

Guidance: Yes. The employer’s

minimum responsibility is to prohibit

operation of a CMV by such an

employee.

Question 2: a. A motor carrier recently

found a driver who had a detectable

presence of alcohol, placed him off-duty

in accordance with § 392.5, and ordered

a blood test which disclosed a blood

alcohol concentration of 0.05 percent. Is

the carrier obligated to place the driver

out of service for 24 hours as prescribed

by § 392.5(c)?

b. Is the carrier obligated to disqualify

the driver for a period of one year as

prescribed by §§ 383.51(b) and

391.15(c)(3)(i) of the FMCSRs?

Guidance: a. Only a State or Federal

official can place a driver out of service.

Instead, the carrier is obligated to place

the driver off-duty and prevent him/her

from operating or being in control of a

CMV until he/she is no longer in

violation of § 392.5.

b. No. A motor carrier has no

authority to disqualify a driver.

Disqualification for such an offense only

occurs upon a conviction.

Question 3: If an individual driver

had two convictions for serious traffic

violations while driving a CMV, and

neither FHWA nor his/her State

licensing agency took any

disqualification action, does the motor

carrier have any obligation under

FHWA regulations to refrain from using

this driver for 60 days? If so, when does

that time period begin?
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16397

Guidance: No. Only the State or the

FHWA has the authority to take a

disqualification action against a driver.

The motor carrier’s responsibility under

§ 383.37(a) to refrain from using the

driver begins when it learns of the

disqualification action and continues

until the disqualification period set by

the State or the FHWA is completed.

Question 4: Is a driver who has a CDL,

and has been convicted of a felony,

disqualified from operating a CMV

under the FMCSRs?

Guidance: Not necessarily. The

FMCSRs do not prohibit a driver who

has been convicted of a felony, such as

drug dealing, from operating a CMV

unless the offense involved the use of a

CMV. If the offense involved a nonCMV, or was unrelated to motor

vehicles, there is no FMCSR prohibition

to employment of the person as a driver.

Section 383.51 Driver Disqualifications

—General Questions—

Question 1: a. If a driver received one

‘‘excessive speeding’’ violation in a

CMV and the same violation in his/her

personal passenger vehicle, would the

driver be disqualified? or,

b. If a driver received two ‘‘excessive

speeding’’ violations in his/her personal

passenger vehicle, would the driver be

disqualified?

Guidance: No, in both cases.

Convictions for serious traffic

violations, such as excessive speeding,

only result in disqualification if the

offenses were committed in a CMV—

unless the State has stricter regulations.

Question 2: Section 383.51 of the

FMCSRs disqualifies drivers if certain

offenses were committed while

operating a CMV. Will the States be

required to identify on the motor

vehicle driver’s record the class of

vehicle being operated when a violation

occurs?

Guidance: No, only whether or not

the violation occurred in a CMV. The

only other indication that may be

required is if the vehicle was carrying

placardable amounts of HM.

Question 3: If a CDL holder commits

an offense that would normally be

disqualifying, but the CDL holder is

driving under the farm waiver, must

conviction result in disqualification and

action against the CDL holder?

Guidance: Yes. Possession of the CDL

means the driver is not operating under

the waiver. In addition, the waiver does

not absolve the driver from

disqualification under part 391.

Question 4: What is meant by leaving

the scene of an accident involving a

CMV?

Guidance: As used in part 383, the

disqualifying offense of ‘‘leaving the

scene of an accident involving a CMV’’

is all-inclusive and covers the entire

range of situations where the driver of

the CMV is required by State law to stop

after an accident and either give

information to the other party, render

aid, or attempt to locate and notify the

operator or owner of other vehicles

involved in the accident.

Question 5: If a State disqualifies a

driver for two serious traffic violations

under § 383.51(c)(2)(i), and that driver,

after being reinstated, commits a third

serious violation, what additional

period of disqualification must be

imposed on that driver?

Guidance: If three years have not

elapsed since the original violation,

then the driver is now subject to a full

120-day disqualification period.

Question 6: May a State issue a

‘‘conditional,’’ ‘‘occupational’’ or

‘‘hardship’’ license that includes CDL

driving privileges when a CDL holder

loses driving privileges to operate a

private passenger vehicle (non-CMV)?

Guidance: Yes, provided the CDL

holder loses his/her driving privileges

for operating a non-CMV as the result of

a conviction for a disqualifying offense

that occurred in a non-CMV. A State is

prohibited, however, from issuing any

type of license which would give the

driver even limited privileges to operate

a CMV when the conviction is for a

disqualifying offense that occurred in a

CMV.

Question 7: What information needs

to be contained on a ‘‘conditional,’’

‘‘occupational’’ or ‘‘hardship’’ license

document that includes CDL driving

privileges?

Guidance: The same information that

is required under § 383.153, including

an explanation of restrictions of driving

privileges.

Question 8: Is a State obligated to

grant reciprocity to another State’s

‘‘conditional,’’ ‘‘occupational’’ or

‘‘hardship’’ license that includes CDL

driving privileges?

Guidance: Yes, in regard to operating

a CMV as stated in § 383.73(h).

Section 383.51 Driver Disqualifications

—Alcohol Questions—

Question 1: Are States expected to

make major changes to their

enforcement procedures in order to

apply the alcohol disqualifications in

the Federal regulations?

Guidance: No. Sections 383.51 and

392.5 do not require any change in a

State’s existing procedures for initially

stopping vehicles and drivers.

Roadblocks, random testing programs,

or other enforcement procedures which

have been held unconstitutional in the

State or which the State does not wish

to implement are not required.

Question 2: Is a driver disqualified for

driving a CMV while off-duty with a

blood alcohol concentration over 0.04

percent?

Guidance: Yes. Section 383.51 applies

to any person who is driving a CMV, as

defined in § 383.5, regardless of the

person’s duty status under other

regulations. Therefore, the driver, if

convicted, would be disqualified under

§ 383.51.

Question 3: Does a temporary license

issued pursuant to the administrative

license revocation (ALR) procedure

authorize the continued operation of

CMVs when the license surrendered is

a CDL? Does the acceptance of a

temporary driver’s license place the

CDL holder in violation of the one

driver’s license requirement?

Guidance: The ALR procedure of

taking possession of the driver’s CDL

and issuing a ‘‘temporary license’’ for

individuals who either fail a chemical

alcohol test or refuse to take the test is

valid under the requirements of part

383. Since the CDL that is being held by

the State is still valid until the

administrative revocation action is

taken, the FHWA would interpret the

document given to the driver as a

‘‘receipt’’ for the CDL, not a new

‘‘temporary’’ license. The driver violates

no CDL requirements for accepting the

receipt which may be used to the extent

authorized.

Question 4: Is a driver disqualified

under § 383.51 if convicted of driving

under the influence of alcohol while

operating a personal vehicle?

Guidance: The convictions triggering

mandatory disqualification under

§ 383.51 all pertain to offenses that

occur while the person is driving a

CMV. However, a driver could be

disqualified under § 383.51(b)(2)(i) if the

State has stricter standards which apply

to offenses committed in a personal

vehicle. (The same principle applies to

all other disqualifying offenses listed in

§ 383.51.)

Question 5: Would a driver convicted

under a State’s ‘‘open container’’ law be

disqualified under the CDL regulations

if the violation occurred while he/she

was operating a CMV?

Guidance: If a conviction under a

particular State’s ‘‘open container law’’

is a conviction for ‘‘driving under the

influence’’ or ‘‘driving while

intoxicated,’’ and if the person

committed the violation while driving a

CMV, then the driver is disqualified for

one year under § 383.51, assuming it is

a first offense.
16398 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

Section 383.71 Driver Application

Procedures

Question 1: What must a driver certify

if he/she is in interstate commerce but

is excepted or exempted from part 391

under the provisions of parts 390 or

391?

Guidance: The State should instruct

the driver to certify that he/she is not

subject to part 391.

Question 2: Since an applicant is

required to turn in his/her current

license when issued an FRSI-restricted

CDL, should the applicant return to the

State exam office and be re-issued the

old license when the seasonal validation

period expires?

Guidance: No. This approach violates

the requirements of part 383 and the

FRSI waiver regarding the single-license

concept. It violates the waiver

requirement that the FRSI-restricted

CDL is to have the same renewal cycle

as an unrestricted CDL and shall serve

as an operator’s license for vehicles

other than CMVs. The license issued

under the waiver is a CDL and must be

treated the same as an unrestricted CDL

in regard to the driver record being

maintained through the CDLIS and

subject to all disqualifying conditions

for the full renewal cycle. The

restriction determining when the driver

may use the CDL to operate a CMV

should be clearly printed on the license.

Question 3: Do the regulations require

that a driver be recertified for the

hazardous materials ‘‘H’’ endorsement

every two years?

Guidance: No. If the driver wishes to

retain an HM endorsement, he/she is

required at the time of license renewal

to pass the test for such endorsement.

The only times a driver may be required

to pass the test for such endorsement in

a condensed time frame is within the 2

years preceding a license transfer if he/

she is transferring a CDL from one State

of domicile to a new State of domicile

(see § 383.73(b)(4)), or if the State has

exercised its prerogative to establish

more stringent requirements.

Question 4: May a CDL driving skills

test examiner conduct a driving skills

test administered in accordance with 49

CFR part 383 before a person subject to

Part 382 is tested for alcohol and

controlled substances?

Guidance: Yes. A CDL driving skills

test examiner, including a third party

examiner, may administer a driving

skills test to a person subject to Part 382

without first testing him/her for alcohol

and controlled substances. The intent of

the CDL driving skills test is to assess

a person’s ability to operate a

commercial motor vehicle during an

official government test of their driving

skills. However, this guidance does not

allow an employer (including a truck or

bus driver training school) to use a

person as a current company, lease, or

student driver prior to obtaining a

verified negative test result. An

employer must obtain a verified

negative controlled substance test result

prior to dispatching a driver on his/her

first trip.

Section 383.73 State Procedures

Question 1: Does the State have any

role in certifying compliance with

§ 391.11(b)(2) of the FMCSRs, which

requires driver competence in the

English language?

Guidance: No. The driver must certify

that he or she meets the qualifications

of part 391. The State is under no duty

to verify the certification by giving

exams or tests.

Question 2: Are States required to

change their current medical standards

for drivers who need CDLs?

Guidance: No, but interstate drivers

must continue to meet the Federal

standards, while intrastate drivers are

subject to the requirements adopted by

the State.

Question 3: To what does the phrase

‘‘. . . as contained in § 383.51’’ refer to

in § 383.73(a)(3)?

Guidance: The phrase refers only to

the word ‘‘disqualification.’’ Thus the

State must check the applicant’s record

to ensure that he/she is not subject to

any suspensions, revocations, or

cancellations for any reason, and is not

subject to any disqualifications under

§ 383.51.

Question 4: Is a State required to

refuse a CDL to an applicant if the NDR

check shows that he/she had a license

suspended, revoked, or canceled within

3 years of the date of the application?

Guidance: Yes, if the person’s driving

license is currently suspended, revoked,

or canceled.

Question 5: Must a new State of

record accept the out-of-State driving

record on CDL transfer applications and

include this record as a permanent part

of the new State’s file?

Guidance: Yes.

Question 6: What does the term

‘‘initial licensure’’ mean as used in

§ 383.73?

Guidance: The term ‘‘initial

licensure’’ as used in the context of

§ 383.73 is meant to refer to the

procedures a State must follow when a

person applies for his/her first CDL.

Question 7: May a State allow an

applicant to keep his/her current valid

State license when issued an FRSIrestricted CDL?

Guidance: No. That would violate the

single-license concept.

Question 8: Does the word ‘‘issuing’’

as used in § 383.73(a) include temporary

60-day CDLs as well as permanent

CDLs?

Guidance: Yes, the word ‘‘issuing’’

applies to all CDLs whether they are

temporary or permanent.

Question 9: When a State chooses to

meet the certification requirements of

§ 383.73 (a)(1), (b)(1), (c)(1) and (d)(1) by

demanding, as part of its licensing

process, that a commercial driver

maintain with the Department of Motor

Vehicles (DMV) currently valid

evidence of compliance with the

physical qualification standards of part

391, subpart E, may the State suspend,

cancel or revoke the driver’s CDL if he/

she does not maintain such evidence

with the DMV?

Guidance: Yes. Section 383.73

requires a State to obtain from a driver

applicant a certification that he/she

meets the qualification standards of part

391, including subpart E (Physical

Qualifications and Examinations). A

requirement that a driver maintain

currently valid evidence of compliance

with subpart E does not conflict with

part 383, since the CMVSA made it clear

that the DOT was to issue ‘‘regulations

to establish minimum Federal standards

* * *’’ (49 U.S.C. 31305(a)). A State

may therefore demand more information

or tests than the Federal CDL

regulations require. If a driver fails to

comply with State requirements which

are not inconsistent with part 383, the

State may suspend, cancel or revoke the

driver’s CDL. This action is not a

disqualification for purposes of

§ 383.51, but a withdrawal of the

commercial driving privilege.

Question 10: What action should

enforcement officers take when a

commercial driver’s CDL has been

declared invalid by the issuing State

because of a lapse in the driver’s

medical certificate?

Guidance: Whatever the reason for the

State’s decision, a driver with an invalid

CDL may not lawfully drive a CMV.

Question 11: May licensing

jurisdictions meet their stewardship

requirements for surrendered licenses

by physically marking the license in

some way as not valid and returning it

to a driver as part of the driver’s

application for a new or renewal of an

existing CDL?

Guidance: Yes. Provided the licensing

jurisdiction meets the test of

guaranteeing that the returned license

document cannot possibly be mistaken

for a valid document by a casual

observer. A document perforated with

the word ‘‘VOID’’ conspicuously and

unmistakably displayed with holes large

enough to be easily distinguished by a
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16399

casual observer in limited light, which

cannot be obscured by the holder of the

document, would meet the test of being

invalidated.

Section 383.75 Third Party Testing

Question 1: May the CDL knowledge

test be administered by a third party?

Guidance: No. The third party testing

provision found in § 383.75 applies only

to the skills portion of the testing

procedure. However, if an employee of

the State who is authorized to supervise

knowledge testing is present during the

testing, then the FHWA regards it as

being administered by the State and not

by the third party.

Question 2: Do third party skills test

examiners have to meet all the

requirements of State-employed

examiners—i.e. all the State’s

qualification and training standards?

Guidance: No. Section

383.75(a)(2)(iii) requires third party

examiners to meet the same standards as

State examiners only ‘‘to the extent

necessary to conduct skills tests.’’

Question 3: Do third-party skills test

examiners have to be qualified to

administer skills tests in all types of

CMVs?

Guidance: No.

Section 383.77 Substitute for Driving

Skills Test

Question 1: May a State grandfather

drivers from skills testing under

§ 383.77?

Guidance: Yes, provided the

applicant meets all the eligibility

conditions under § 383.77, including

current operation of a CMV

(§ 383.77(b)(1)). Therefore, the pool of

applicants eligible for grandfathering is

limited to drivers with current CMV

operating experience under a CDL

waiver (e.g., farm, FRSI, firefighting,

emergency and military vehicles).

Question 2: May a driver applicant be

‘‘grandfathered’’ from any CDL

knowledge test?

Guidance: No. ‘‘Grandfathering’’ of

CDL basic or endorsement knowledge

testing is not permitted by part 383.

Section 383.91 Vehicle Groups

Question 1: May a State expand a

vehicle group to include vehicles that

do not meet the Federal definition of the

group?

Guidance: Yes, if: a. A person who

tests in a vehicle that does not meet the

Federal standard for the Group(s) for

which the issued CDL would otherwise

be valid, is restricted to vehicles not

meeting the Federal definition of such

Group(s); and

b. The restriction is fully explained on

the license.

Question 2: Is a driver of a

combination vehicle with a GCWR of

less than 26,001 pounds required to

obtain a CDL even if the trailer GVWR

is more than 10,000 pounds?

Guidance: No, because the GCWR is

less than 26,001 pounds. The driver

would need a CDL if the vehicle is

transporting HM requiring the vehicle to

be placarded or if it is designed to

transport 16 or more persons.

Question 3: Can a State which

expands the vehicle group descriptions

in § 383.91 enforce those expansions on

out-of-State CMV drivers by requiring

them to have a CDL?

Guidance: No. They must recognize

out-of-State licenses that have been

validly issued in accordance with the

Federal standards and operative

licensing compacts.

Question 4: What CMV group are

drivers of articulated motorcoaches

(buses) required to possess?

Guidance: Drivers of articulated

motorcoaches are required to possess a

Class B CDL.

Question 5: Do tow truck operators

need CDLs? If so, in what vehicle

group(s)?

Guidance: For CDL purposes, the tow

truck and its towed vehicle are treated

the same as any other powered unit

towing a nonpowered unit:

—If the GCWR of the tow truck and its

towed vehicle is 26,001 pounds or

more, and the towed vehicle alone

exceeds 10,000 pounds GVWR, then

the driver needs a Group A CDL.

—If the GVWR of the tow truck alone is

26,001 pounds or more, and the driver

either (a) drives the tow truck without

a vehicle in tow, or (b) drives the tow

truck with a towed vehicle of 10,000

pounds or less GVWR, then the driver

needs a Group B CDL.

—A driver of a tow truck or towing

configuration that does not fit either

configuration description above,

requires a Group C CDL only if he or

she tows a vehicle required to be

placarded for hazardous materials on

a ‘‘subsequent move,’’ i.e. after the

initial movement of the disabled

vehicle to the nearest storage or repair

facility.

Section 383.93 Endorsements

Question 1: Is the HM endorsement

needed for operation of State and local

government vehicles carrying HM?

Guidance: No.

Question 2: Are drivers of double and

triple saddle mount combinations

required to have the double/triple

trailers endorsement on their CDLs?

Guidance: Yes, if the following

conditions apply:

—There is more than one point of

articulation in the combination;

—The GCWR is 26,001 or more pounds;

and

—The combined GVWR of the vehicle(s)

being towed is in excess of 10,000

pounds.

Question 3: Are drivers delivering

empty buses in driveaway-towaway

operations required to have the

passenger endorsement on their CDLs?

Guidance: No.

Question 4: Would the driver in the

following scenarios be required to have

a CDL with a HM endorsement?

a. A driver transports 1,000 or more

pounds of Division 1.4 (Class C

explosive) materials in a vehicle with a

GVWR of less than 26,001 pounds?

b. A driver transports less than 1,000

pounds of Division 1.4 (Class C

explosive) materials in a vehicle with a

GVWR of less than 26,001 pounds?

c. The driver transports any quantity

of Division 1.1, 1.2 or 1.3 (Class A or B

explosive) materials in any vehicle.

Guidance: a. Yes.

b. No.

c. Yes.

Question 5: Do drivers of ready-mix

concrete mixers need a tank vehicle

endorsement (‘‘N’’) on their CDL?

Guidance: No.

Question 6: Does an unattached tote

or portable tank with a cargo capacity of

1,000 gallons or more meet the

definition of ‘‘portable tank’’ requiring a

tank vehicle endorsement on the

driver’s CDL?

Guidance: Yes.

Question 7: Must all drivers of

vehicles required to be placarded have

CDLs containing the HM endorsement?

Guidance: Yes, unless waived.

Question 8: Is a driver who operates

a truck tractor pulling a heavy-haul

trailer with a ‘‘jeep’’ attached to the

front of the trailer that meets the

definition of a CMV under part 383

required to have a CDL with a double/

triple trailer endorsement?

Guidance: Yes. The ‘‘jeep,’’ also

referred to as a dolly or load divider, is

a short frame-type trailer complete with

upper coupler, fifth wheel and

undercarriage assembly and designed in

such a manner that when coupled to a

semitrailer and tractor it carries a

portion of the trailer kingpin load while

transferring the remainder to the

tractor’s fifth wheel.

Question 9: Do persons transporting

battery-powered forklifts need to obtain

an HM endorsement?

Guidance: No.

Question 10: Do tow truck operators

who hold a CDL require endorsements

to tow ‘‘endorsable’’ vehicles?
16400 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

Guidance: For CDL endorsement

purposes, the nature of the tow truck

operations determines the need for

endorsements:

—If the driver’s towing operations are

restricted to emergency ‘‘first moves’’

from the site of a breakdown or

accident to the nearest appropriate

repair facility, then no CDL

endorsement of any kind is required.

—If the driver’s towing operations

include any ‘‘subsequent moves’’ from

one repair or disposal facility to

another, then endorsements requisite

to the vehicles being towed are

required. Exception: Tow truck

operators need not obtain a passenger

endorsement.

Section 383.95 Air Brake Restrictions

Question 1: A driver has a Group B or

C CDL valid for airbrake-equipped

vehicles. He or she later upgrades to a

Group A license by testing in a vehicle

that is not equipped with airbrakes.

Must the State restrict the upgraded

license to nonairbrake-equipped

vehicles?

Guidance: No, because the airbrake

systems on combination versus single

vehicles do not differ significantly.

Question 2: May a driver who has an

air brake restriction as defined in

§ 383.95 operate a CMV equipped with

an air-over-hydraulic brake system?

Guidance: No. Under § 383.95(b), the

term ‘‘air brakes’’ includes any braking

system operating fully or partially on

the air brake principle. Air-overhydraulic brake systems operate

partially on the air brake principle and

are therefore air brakes for purposes of

the CDL regulations. The NHTSA also

considers ‘‘air over hydraulic’’ brakes to

be air brakes under FMVSS 121.

Question 3: May a State issue a

restriction to a driver who passes the air

brake knowledge test and the skills test

in a vehicle equipped with an air-overhydraulic brake system that limits the

driver to operate only vehicles equipped

with an air-over-hydraulic air brake

system?

Guidance: Yes. A State may issue the

additional restriction, provided it is

fully explained on the CDL. This would

give a State the option to allow a driver

who tests in a vehicle equipped with an

air-over-hydraulic brake system (rather

than a full air brake system) to operate

a vehicle equipped with either a

hydraulic or air-over-hydraulic brake

system, while restricting them from

operating vehicles equipped with a full

air brake system.

Question 4: May a driver with an air

brake restriction on his or her CDL

operate a CMV equipped with a

hydraulic braking system that has an

air-assisted parking brake release?

Guidance: Yes. The air brake

restriction applies only to the principal

braking system used to stop the vehicle.

Section 383.95(b) is not applicable to an

air-assisted mechanism to release the

parking brake.

Section 383.131 Test Procedures

Question 1: Are there any Federal

regulations which require the States to

retain for a specified period of time the

CDL knowledge tests (or the test results)

used to test CMV drivers?

Guidance: No, there are no Federal

regulations regarding such record

retention.

Section 383.133 Testing Methods

Question 1: May States administer the

CDL knowledge and endorsement test in

foreign languages or in other than a

written format?

Guidance: Yes.

Question 2: Do the Federal standards

limit the number of times a driver may

take a test if he or she fails?

Guidance: The rule does not limit the

number of times a driver may take a test.

Question 3: Is a State allowed to

provide for an alternative test (e.g., oral)

or administer an alternate exam format

providing the test meets FHWA

requirements?

Guidance: Yes. The knowledge

portion of the test may be administered

in written form, verbally, in automated

formats, or otherwise at the discretion of

the State.

Section 383.153 Information on the

Document and Application

Question 1: May a State use the

residence address as opposed to the

mailing address on the CDL?

Guidance: Yes.

Question 2: May a State issue

temporary nonphoto CDLs?

Guidance: Yes, as long as:

a. the State does not liberalize any

existing procedures for issuing

nonphoto licenses; and

b. the State does not allow drivers to

operate CMVs indefinitely without a

CDL which meets all the standards of

§ 383.153.

Question 3: May a State choose to

implement a driver license system

involving multiple part license

documents?

Guidance: Yes. A two or more part

document, as currently used in some

States, is acceptable, provided:

a. All of the documents must be

present to constitute a ‘‘license;’’

b. Each document is explicitly ‘‘tied’’

to the other document(s), and to a single

driver’s record. Each document must

indicate that the driver is licensed as a

CMV driver, if that is the case; and

c. The multipart license document

includes all of the data elements

specified in part 383, subpart J.

Question 4: If the State restricts the

CDL driving privilege, must that

restriction be shown on the license?

Guidance: Yes.

Question 5: Is a State required to show

the driver’s SSN on the CDL?

Guidance: No. Section 383.153 does

not specify the SSN as a required

element of the CDL document although

the regulation does require a driver

applicant who is domiciled in the U.S.

to provide his or her SSN on the CDL

application.

Question 6: Is a State prohibited from

issuing a CDL to an applicant who, for

religious reasons, does not possess an

SSN?

Guidance: No. The determination of

whether a person needs an SSN is left

up to the Social Security

Administration.

Question 7: Is a color-digitized image

of a driver acceptable for purposes of a

CDL?

Guidance: Yes. The FHWA will

accept a color-digitized image of a

driver on a CDL in lieu of a color

photograph.

Special Topics—Motor Coaches and

CDL

Question 1: May a State develop a

knowledge test exclusively for

motorcoach operators which excludes

cargo handling and hazardous

materials?

Guidance: Yes. A State could develop

a basic knowledge test for bus drivers

only, by deleting the cargo handling and

HM questions from its normal basic

knowledge test. In that case, the driver

applicant would still need to pass the

specialized knowledge and skills tests

for the passenger endorsement, and the

State would need to restrict the CDL to

passenger operations only.

Question 2: What skills test is

required for a CDL holder seeking to add

a passenger endorsement?

Guidance: If a person already holds a

CDL without a passenger endorsement,

and subsequently applies for such

endorsement, three situations may arise:

a. The passenger test vehicle is in the

same vehicle group as that shown on the

CDL. This situation poses no problem

since there is no discrepancy.

b. The passenger test vehicle is in a

greater vehicle group than that shown

on the preexisting CDL. This is an

upgrade situation. The driver and the

State must meet the requirements of

§§ 383.71(d) and 383.73(d), and the

upgraded CDL must show the vehicle

group of the passenger test vehicle.
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16401

c. The passenger test vehicle is in a

lesser vehicle group than that shown on

the preexisting CDL. In this situation,

the CDL retains the vehicle group of the

preexisting CDL, but also restricts the

driver, when engaged in CMV passenger

operations, to vehicles in the group in

which the passenger skills test was

taken, or to a lesser group.

Special Topics—State Reciprocity

Question 1: May a State place an

‘‘intrastate only’’ or similar restriction

on the CDL of a driver who certifies that

he or she is not subject to part 391?

Guidance: Yes; however, this

restriction would not apply to drivers in

interstate commerce who are excepted

or exempted from part 391 under the

provisions of parts 390 or 391.

Question 2: May a State allow a driver

possessing an out-of-State CDL

containing an intrastate restriction to

operate a CMV in their jurisdiction?

Guidance: Yes, provided the driver

operates exclusively intrastate.

Question 3: May States choose to

interpret ‘‘intrastate’’ in ways that differ

from established transportation

practice?

Guidance: No. States do not have the

discretion to change the Federal

definition of either ‘‘interstate’’ or

‘‘intrastate’’ commerce.

Special Topics—International

Question 1: The driver’s medical

exam is part of the Mexican Licencia

Federal. If a roadside inspection reveals

that a Mexico-based driver has not had

the medical portion of the Licencia

Federal re-validated, is the driver

considered to be without a valid

medical certificate or without a valid

license?

Guidance: The Mexican Licencia

Federal is issued for a period of 10 years

but must be re-validated every 2 years.

A condition of re-validation is that the

driver must pass a new physical

examination. The dates for each revalidation are on the Licencia Federal

and must be stamped at the completion

of each physical. This constitutes

documentation that the driver is

medically qualified. Therefore, if the

Licencia Federal is not re-validated

every 2 years as specified by Mexican

law, the driver’s license is considered

invalid.

PART 384—STATE COMPLIANCE WITH

COMMERCIAL DRIVER’S LICENSE

PROGRAM

Sections Interpreted

384.209 Notification of traffic violations

384.211 Return of Old Licenses

Section 384.209 Notification of Traffic

Violations

Question 1: Must a CDL holder’s outof-State conviction for a traffic violation

be included in the driving record of the

State of licensure (and thus CDLIS), if

there are no traffic violation points

assigned to the conviction?

Guidance: All out-of-State convictions

of a CDL holder for traffic violations

committed in any vehicle must be sent

to the State of licensure, but only the

convictions for offenses specified in 49

CFR 383.51 must be included in that

State’s driving record (and thus CDLIS).

Assigning points to a conviction is

strictly a State decision and has no

bearing on the inclusion of the

conviction.

The FHWA recommends the

inclusion by the State of licensure of all

convictions of a CDL holder for traffic

violations committed in any vehicle, so

that the State will have the full driver

record available as an aid in making

licensing decisions.

Question 2: Must the licensing agency

establish a commercial driver record,

including a CDLIS pointer record, for a

person holding a non-commercial

license issued by that jurisdiction upon

receiving notification of a conviction of

any offense committed while (illegally)

operating a CMV?

Guidance: Yes.

Section 384.211 Return of Old

Licenses

Question 1: May licensing

jurisdictions meet their stewardship

requirements for surrendered licenses

by physically marking the license in

some way as not valid and returning it

to a driver as part of the driver’s

application for a new or renewal of an

existing CDL?

Guidance: Yes. Provided the licensing

jurisdiction meets the test of

guaranteeing that the returned license

document cannot possibly be mistaken

for a valid document by a casual

observer. A document perforated with

the word ‘‘VOID’’ conspicuously and

unmistakably displayed with holes large

enough to be easily distinguished by a

casual observer in limited light, which

cannot be obscured by the holder of the

document would meet the test of being

invalidated.

PART 386—RULES OF PRACTICE FOR

MOTOR CARRIER SAFETY AND

HAZARDOUS MATERIALS PROCEEDINGS

Sections Interpreted

386.1 Scope of Rules in this Part

Section 386.1 Scope of Rules in This

Part

Question 1: What is the authority of

the RDMC to issue provisions as a part

of the terms in a Notice of Abatement,

Notice of Assessment, Compliance

Order and Consent Order?

Guidance: The MCSA of 1984

provided the authority to penalize

violators of Notices and Orders issued

by the FHWA. Regulations were issued

under part 386 which specify these

penalties. Notices to Abate and Notices

of Assessment/Claim generally deal

with specific regulatory requirements.

Consent Orders and Compliance Orders

often require remedial measures not

specifically mentioned in the FMCSRs

since the motor carrier’s compliance

record often indicates that additional

measures are needed to improve safety

and compliance with the regulations.

PART 387—MINIMUM LEVELS OF

FINANCIAL RESPONSIBILITY FOR MOTOR

CARRIERS

Sections Interpreted

Subpart A—Motor Carriers of Property

387.1 Purpose and Scope

387.3 Applicability

387.5 Definitions

387.7 Financial Responsibility Required

387.9 Financial Responsibility, Minimum

Levels

387.11 State Authority and Designation of

Agent

387.15 Forms

Subpart B—Motor Carriers of Passengers

387.25 Purpose and Scope

387.27 Applicability

387.31 Financial Responsibility Required

387.39 Forms

Subpart A—Motor Carriers of Property

Section 387.1 Purpose and Scope

Question 1: May a State require a

higher level of financial responsibility

coverage than is required by part 387?

Guidance: Yes.

Section 387.3 Applicability

Question 1: At what GVWR, as

assigned by a manufacturer, does the

requirement to comply with the

financial responsibility regulations

begin?

Guidance: Generally, part 387,

subpart A applies if the vehicle has a

GVWR of 10,000 pounds or more. Part

387, subpart A, does not apply to the

intrastate transportation of nonbulk oil,

nonbulk HM, substances or wastes.

Motor vehicles used to transport any

quantity of Divisions 1.1, 1.2 or 1.3

(explosive) materials, poison gas, or

highway route controlled quantity of

radioactive materials in interstate or

foreign commerce are subject to Federal

regulation regardless of the GVWR.
16402 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

Question 2: Does the GVWR apply to

the power unit only?

Guidance: No.

Question 3: When are tow trucks

subject to financial responsibility

coverage?

Guidance: For-hire tow trucks with a

GVWR or GCWR of 10,000 pounds or

more performing emergency moves in

interstate or foreign commerce are

required to maintain minimum levels of

financial responsibility in the amount of

$750,000. For-hire tow trucks

performing secondary moves are

required to maintain levels of coverage

applicable to the commodity being

transported by the vehicle being towed.

Question 4: Are Federal, State or local

political subdivisions subject to the

financial responsibility regulations?

Guidance: No.

Question 5: Is a motor vehicle owned

by an owner-operator, and being deadheaded (returning empty), or a tractor

that is being bobtailed (operating

without a trailer), subject to the

financial responsibility regulations?

Guidance: A motor vehicle

deadheading or bobtailing while in the

service of a motor carrier would be

subject to the financial responsibility

regulations.

Question 6: Is a motor carrier

transporting mail under contract for the

U.S. Postal Service wholly within the

boundaries of a single State subject to

the minimum levels of financial

responsibility requirements of part 387?

Guidance: Yes. The transportation of

U.S. mail is considered to be interstate

commerce because of the intermingling

of inter- and intrastate mail on every

vehicle.

Question 7: Are motor carriers

transporting HM that are excepted from

the HMRs subject to financial

responsibility regulations?

Guidance: Yes. Packaging or

transportation exceptions in the HMRs

do not change the need for financial

responsibility at the appropriate level

commensurate with the commodity

being transported.

Question 8: Are motor vehicles being

transported considered to be HM for

purposes of the financial responsibility

requirements, thus requiring the higher

limits set forth in the regulations?

Guidance: No, while motor vehicles

are identified as HM in the Hazardous

Materials Table at § 172.101, motor

vehicles, by themselves, are not to be

treated as HM and should be considered

nonhazardous property.

Question 9: Is a travel trailer or motor

home that has propane cylinders

attached subject to part 387 of the

FMCSRs?

Guidance: No. The FHWA considers

such propane cylinders to be an integral

part of the recreational vehicle and not

subject to the financial responsibility

regulations.

Section 387.5 Definitions

Question 1: Does the definition of the

term ‘‘in bulk’’ include solids as well as

liquids even though the definition refers

to containment systems with capacities

in excess of 3,500 water gallons?

Guidance: Yes, the term ‘‘3,500 water

gallons’’ is used as a volumetric value

and includes solids as well as liquids.

Section 387.7 Financial Responsibility

Required

Question 1: May a large corporation

which has many wholly owned

subsidiaries have one policy for the

parent corporation and maintain the

policy and the Form MCS–90 at the

corporate headquarters?

Guidance: Generally, the required

financial responsibility must be in the

exact name of the motor carrier and the

proof of that coverage must be

maintained at the motor carrier’s

principal place of business. A parent

corporation may, however, have a single

policy of insurance or surety bond

covering the parent and its subsidiaries,

provided the name of the parent and the

name of each subsidiary are listed on

the policy or bond. Further, the required

proof must have listed thereon the name

of the parent and its subsidiaries. A

copy of that proof of financial

responsibility coverage must be

maintained at each motor carrier

subsidiary’s principal place of business.

Question 2: What is the definition of

‘‘Certificate of Registration’’ in

§ 387.7(b)(3)?

Guidance: ‘‘Certificate of

Registration’’ means a document issued

by the FHWA to all Mexican motor

carriers, for-hire as well as private, that

allows them to enter the U.S., but

restricts them to the commercial zone

for a particular border municipality, as

previously adopted by the ICC. The

border municipality is the Port of Entry

wherever the motor carrier’s vehicle

enters the U.S.

Question 3: How does a Mexican

motor carrier prove that it is complying

with § 387.7?

Guidance: Mexican motor carriers are

permitted to obtain trip insurance and

are required to carry, on the vehicle, a

Form MCS–90 along with an insurance

verification document listing the date

and time the insurance coverage began

and expires.

Question 4: Is the financial

responsibility requirement met when an

owner-operator (lessor) provides the

motor carrier (lessee) a copy of the

policy and Form MCS–90 where the

carrier is named as an additional

insured to the policy (Form MCS–90)?

Guidance: No. The motor carrier has

the responsibility to obtain the proper

financial responsibility levels.

Section 387.9 Financial Responsibility,

Minimum Levels

Question 1: Is gasoline listed as a

hazardous material, and, if so, what is

the minimum level of financial

responsibility currently required?

Guidance: Gasoline is a listed

hazardous material in the table found at

49 CFR 172.101. Section 387.9 requires

for-hire and private motor carriers

transporting any quantity of oil in

interstate or foreign commerce to have

a minimum $1,000,000 of financial

responsibility coverage. The Clean

Water Act of 1973, as amended, declares

that gasoline is an ‘‘oil,’’ not a

‘‘hazardous substance.’’ The $1,000,000

coverage also applies to for-hire and

private motor carriers transporting

gasoline ‘‘in-bulk’’ in intrastate

commerce.

Question 2: Is a motor carrier

transporting liquefied petroleum gas

(LPG) in any quantity required to have

$1,000,000 or $5,000,000 of financial

responsibility coverage?

Guidance: Liquefied petroleum gas

(LPG) is a flammable compressed gas.

All transportation of LPG in

containment systems with capacities in

excess of 3,500 water gallons requires $5

million financial responsibility

coverage. Interstate and foreign

commerce movements of LPG in

containment systems not in excess of

3,500 water gallons requires $1 million

coverage. Intrastate movements of LPG

in those smaller containment systems

are subject only to state financial

responsibility requirements.

Question 3: What is the definition of

a ‘‘hopper type’’ vehicle as indicated in

§ 387.9?

Guidance: A ‘‘hopper type’’ vehicle is

one which is capable of discharging its

load through a bottom opening without

tilting. This vehicle type would also

include belly dump trailers. Rear dump

trailers and roll-off containers do not

meet the definition of a bottom

discharging vehicle.

Section 387.11 State Authority and

Designation of Agent

Question 1: How does a Mexican

motor carrier demonstrate that its

insurance company complies with

§ 387.11?

Guidance: With a properly executed

Form MCS–90 from an insurance

company licensed in the U.S.
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16403

Section 387.15 Forms

Question 1: May the motor carrier

meet the financial responsibility

requirements by aggregating insurance

in layers?

Guidance: Yes. A motor carrier may

aggregate coverage, by purchasing

insurance in layers with each layer

consisting of a separate policy and

endorsement. The first layer of coverage

is referred to as primary insurance and

each additional layer is referred to as

excess insurance. Example: ABC Motor

Carrier transports Division 1.1 explosive

material and is required to maintain $5

million coverage. ABC Motor Carrier

decides to meet this requirement by

purchasing a primary insurance policy

of $1 million from insurance company

A, an excess policy of $1 million from

insurance company B, and a $3 million

excess policy from insurance company

C. Each policy would have a separate

endorsement (Form MCS–90). The

endorsement provided by insurer A

would state ‘‘This insurance is primary

and the company shall not be liable for

amounts in excess of $1,000,000 for

each accident.’’ The endorsement

provided by insurer B would state ‘‘This

insurance is excess and the company

shall not be liable for amounts in excess

of $1 million for each accident in excess

of the underlying limit of $1 million for

each accident.’’ The endorsement

provided by insurer C would state ‘‘This

insurance is excess and the company

shall not be liable for amounts in excess

of $3 million for each accident in excess

of the underlying limit of $2 million for

each accident.’’

Question 2: May the Form MCS–90

required by part 387 for proof of

minimum financial responsibility be

modified?

Guidance: The prescribed text of the

document may not be changed.

However, the format (i.e., number of

pages, layout of the text, etc.) may be

altered.

Question 3: Is the use of a printed or

stamped signature on the Form MCS–90

endorsement acceptable?

Guidance: Yes.

Question 4: Must a motor carrier

obtain a new Form MCS–90 each year

if it retains the same insurance

company?

Guidance: If the insurance policy, as

identified by the policy number on the

Form MCS–90, is still valid upon the

renewal of insurance, no new Form

MCS–90 is required. If the policy

number has changed or the insurance

policy has been canceled in accordance

with the terms shown on Form MCS–90,

then a new Form MCS–90 must be

completed and attached to the valid

insurance policy.

Subpart B—Motor Carriers of Passengers

Section 387.25 Purpose and Scope

Question 1: May a State require a

higher level of financial responsibility

coverage than is required by part 387?

Guidance: Yes.

Section 387.27 Applicability

Question 1: Is a nonprofit corporation,

providing for-hire interstate

transportation of passengers, subject to

the minimum levels of financial

responsibility for motor carriers of

passengers?

Guidance: Yes.

Question 2: What determines the level

of coverage required for a passenger

carrier: the number of passengers or the

number of seats in the vehicle?

Guidance: The level of financial

responsibility required is predicated

upon the manufacturer’s designed

seating capacity, not on the number of

passengers riding in the vehicle at a

particular time. The minimum levels of

financial responsibility required for

various seating capacities are found in

§ 387.33.

Question 3: Are luxury limousines

with a seating capacity of fewer than

seven passengers and not operated on a

regular route or between specified

points exempted under § 387.27(b)(2)?

Guidance: No. Taxi cab service is

highly regulated by local governments,

usually conducted in marked vehicles,

which makes them readily identifiable

to enforcement officials. Limousines are

not taxi cabs and are therefore not

exempted from the financial

responsibility requirements.

Question 4: When must a contract

school bus operator comply with part

387?

Guidance: When the contractor is not

engaged in transportation to or from

school and the transportation is not

organized, sponsored, and paid for by

the school district.

Question 5: Does the exemption for

the transportation of school children

end at the high school level or does it

extend to educational institutions

beyond high school, for example junior

college or college?

Guidance: The exemption does not

extend beyond the high school level.

Section 387.31 Financial

Responsibility Required

Question 1: May a large corporation

which has many wholly-owned

subsidiaries have one policy of

insurance for the parent corporation and

maintain the policy and Form MCS–90B

at the corporate headquarters?

Guidance: Generally, the required

financial responsibility must be in the

exact name of the motor carrier and the

proof of that coverage must be

maintained at the motor carrier’s

principal place of business. A parent

corporation may, however, have a single

policy of insurance or surety bond

covering the parent and its subsidiaries,

provided the name of the parent and the

name of each subsidiary are listed on

the policy or bond. Further, the required

proof must have listed thereon the name

of the parent and its subsidiaries. A

copy of that proof of financial

responsibility coverage must be

maintained at each motor carrier

subsidiary’s principal place of business.

Section 387.39 Forms

Question 1: May a motor carrier of

passengers meet the financial

responsibility requirements by

aggregating insurance in layers?

Guidance: Yes. A motor carrier of

passengers may aggregate coverage, by

purchasing insurance in layers with

each layer consisting of a separate

policy and endorsement. The first layer

of coverage is referred to as primary

insurance and each additional layer is

referred to as excess insurance. Each

policy would have a separate

endorsement (Form MCS–90B). The

endorsement provided by insurer A

would state ‘‘This insurance is primary

and the company shall not be liable for

amounts in excess of $1,500,000 or

$5,000,000 for each accident.’’ The

endorsement provided by insurer B

would state ‘‘This insurance is excess

and the company shall not be liable for

amounts in excess of $1 million for each

accident in excess of the underlying

limit of $1,500,000 or $5,000,000

million for each accident.’’ The

endorsement provided by insurer C

would state ‘‘This insurance is excess

and the company shall not be liable for

amounts in excess of $3 million for each

accident in excess of the underlying

limit of $2 million for each accident.’’

Question 2: May the Form MCS–90B

required by part 387 for proof of

minimum financial responsibility be

modified?

Guidance: The prescribed text of the

document may not be changed.

However, the format (i.e., number of

pages, layout of the text, etc.) may be

altered.

Question 3: Is the use of a facsimile

signature (e.g., printed, stamped,

autopenned, etc.) on the Form MCS–90B

endorsement acceptable?

Guidance: Yes.
16404 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

PART 390—FEDERAL MOTOR CARRIER

SAFETY REGULATIONS; GENERAL

Sections Interpreted

390.3 General Applicability

390.5 Definitions

390.9 State and Local Laws, Effect on

390.15 Assistance in Investigations and

Special Studies

390.21 Marking of Commercial Motor

Vehicles

390.23 Relief From Hours-of-Service

Regulations—Disasters

390.31 Copies of Records or Documents

Special Topics—Serious Pattern of

Violations

Section 390.3 General Applicability

Question 1: Does the government

exception in § 390.3(f)(2) apply to motor

carriers doing business with the

government?

Guidance: No. The exception applies

only when the government is the motor

carrier.

Question 2: Are the FMCSRs

applicable to drivers and CMVs which

transport tools, equipment, and supplies

across State lines in a CMV?

Guidance: Yes, the FMCSRs are

applicable to drivers and CMVs in

interstate commerce which transport

property. The property in this situation

is the tools, equipment and supplies.

Question 3: Are the operations of a

church which provides bus tours to the

general public for compensation subject

to the FMCSRs as a for-hire motor

carrier?

Guidance: Yes, the church is a for-hire

motor carrier of passengers subject to

the FMCSRs.

Question 4: Are the FMCSRs

applicable to the rail movement of

trailers and intermodal container

chassis that previously or subsequently

were moved by highway by a motor

carrier in interstate commerce?

Guidance: No. They are only subject

when being moved as a motor vehicle

by highway by a motor carrier.

Question 5: Are personnel involved in

road testing CMVs across a State line

subject to the FMCSRs?

Guidance: Yes, any driver (including

mechanics, technicians, driver trainees

and other personnel) operating a CMV

in interstate commerce must be in

compliance with the FMCSRs.

Question 6: How does one distinguish

between intra- and interstate commerce

for the purposes of applicability of the

FMCSRs?

Guidance: Interstate commerce is

determined by the essential character of

the movement, manifested by the

shipper’s fixed and persistent intent at

the time of shipment, and is ascertained

from all of the facts and circumstances

surrounding the transportation. When

the intent of the transportation being

performed is interstate in nature, even

when the route is within the boundaries

of a single State, the driver and CMV are

subject to the FMCSRs.

Question 7: Are Red Cross vehicles/

drivers subject to the FMCSRs?

Guidance: Red Cross vehicles/drivers

used to provide emergency relief under

the provisions of § 390.23 are not

subject to the FMCSRs while providing

the relief. However, these vehicles/

drivers would be subject when

operating at other times, provided they

are used in interstate commerce and the

vehicles meet the definition of a CMV.

Question 8: May a motor carrier

require fingerprinting as a preemployment condition?

Guidance: The FMCSRs do not

require or prohibit fingerprinting as a

condition of employment. Section

390.3(d) allows employers to enforce

more stringent requirements.

Question 9: Are the FMCSRs

applicable to drivers/vehicles operated

by a State or local educational

institution which is a political

subdivision of the State?

Guidance: Section 390.3(f)(2)

specifically exempts transportation

performed by a State or a political

subdivision including any agency of a

State or locality from the FMCSRs. The

drivers, however, may be subject to the

CDL requirements and/or State laws that

are similar to the FMCSRs.

Question 10: Are the FMCSRs

applicable to drivers/vehicles operated

by a transit authority owned and

operated by a State or a political

subdivision of the State?

Guidance: Section 390.3(f)(2)

specifically exempts transportation

performed by the Federal Government,

a State, or any political subdivision of

a State from the FMCSRs. However, this

exemption does not apply to the CDL

requirements in part 383. Also, if

governmental entities engage in

interstate charter transportation of

passengers, they must comply with

accident report retention requirements

of part 390.

Question 11: Is the interstate

transportation of students, teachers and

parents to school events such as athletic

contests and field trips performed by

municipalities subject to the FMCSRs? If

a fee is charged to defer the

municipality’s expenses, does this affect

the applicability of the regulations?

Guidance: Section 390.3(f)(2)

specifically exempts transportation

performed by the Federal Government,

a State, or any political subdivision of

a State from the FMCSRs. Charging a fee

to defer governmental costs does not

affect this exemption.

However, this exemption does not

apply to the CDL requirements in part

383. Also, if governmental entities

engage in interstate charter

transportation of passengers, they must

comply with accident report retention

requirements of part 390.

Question 12: What is the applicability

of the FMCSRs to school bus operations

performed by Indian Tribal

Governments?

Guidance: Transportation performed

by the Federal Government, States, or

political subdivisions of a State is

generally excepted from the FMCSRs.

This general exception includes Indian

Tribal Governments, which for purposes

of § 390.3(f) are equivalent to a State

governmental entity. When a driver is

employed and a bus is operated by the

governmental entity, the operation

would not be subject to the FMCSRs,

with the following exceptions: The

requirements of part 383 as they pertain

to commercial driver licensing

standards are applicable to every driver

operating a CMV, and the accident

report retention requirements of part

390 are applicable when the

governmental entity is performing

interstate charter transportation of

passengers.

Question 13: A motor carrier

dispatches an empty CMV from State A

into adjoining State B in order to

transport cargo or passengers between

two points in State B, and then to return

empty to State A. Does the

transportation of cargo or passengers

within State B constitute interstate

commerce?

Guidance: Yes. The courts and the

ICC developed a test that clarifies the

legal status of intrastate portions of

interstate trips. The character of the

intrastate leg depends on the shipper’s

fixed and persistent intent when the

transportation began. The fixed and

persistent intent in this case was to

move property—the vehicle itself—

across State lines and between two

points in State B where it was used to

haul cargo or passengers. The

transportation within State B, therefore,

constitutes interstate commerce. In

some cases the motor carrier may be the

shipper.

Question 14: What is the applicability

of the FMCSRs to motor carriers owning

and operating school buses that contract

with a municipality to provide pupil

transportation services?

Guidance: For the purposes of the

FMCSRs, parts 390–399, ‘‘school bus

operation’’ means the use of a school

bus to transport school children and/or

school personnel from home to school

and from school to home. A ‘‘school

bus’’ is a passenger motor vehicle
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16405

designed to carry more than 10

passengers in addition to the driver, and

used primarily for school bus operations

(see § 390.5). School bus operations and

transportation performed by government

entities are specifically exempted from

the FMCSRs under § 390.3(f).

However, anyone operating school

buses under contract with a school is a

for-hire motor carrier. When a

nongovernment, for-hire motor carrier

transports children to school-related

functions other than ‘‘school bus

operation’’ such as sporting events, class

trips, etc., and operates across State

lines, its operation must be conducted

in accordance with the FMCSRs. This

applies to motor carriers that operate

CMVs as defined under part 390 which

includes vehicles which have a GVWR

of 10,001 pounds or more or are

designed or used to carry passengers for

compensation, except 6-passenger

taxicabs not operating on fixed routes.

In certain instances, carriers

providing school bus transportation are

not subject to the Bus Regulatory

Reform Act of 1982 and the minimum

financial responsibility requirements

(part 387) issued under this Act.

Transportation of school children and

teachers that is organized, sponsored,

and paid for by the school district is not

subject to part 387. Therefore, school

bus contractors must comply with the

FMCSRs for interstate trips such as

sporting events and class trips but are

not required by Federal regulations to

carry a specific level of insurance

coverage.

For those operations provided by

school bus contractors that are subject to

the FMCSRs, the motor carriers must

keep driver and vehicle records as

required by the regulations. This would

include driver qualifications records

(part 391), driver records of duty status

(part 395), accident report retention

(part 390), and inspection, repair, and

maintenance records (part 396) for the

drivers and vehicles that are used on the

trips that are subject to the FMCSRs.

These records are not required under

the FMCSRs for the other vehicles in the

motor carrier’s fleet that are not subject

to the regulations.

Question 15: May drivers be coerced

into employing loading or unloading

assistance (lumpers)?

Guidance: No. The Motor Carrier Act

of 1980 made it illegal to coerce

someone into unwanted loading or

unloading and require payment for it

(49 U.S.C. 14103, previously 49 U.S.C.

11109). The FHWA is responsible for

the enforcement of regulations

forbidding coercion in the use of

lumpers.

Question 16: a. Are vehicles which, in

the course of interstate transportation

over the highway, are off the highway,

loading, unloading or waiting, subject to

the FMCSRs during these times?

b. Are vehicles and drivers used

wholly within terminals and on

premises or plant sites subject to the

FMCSRs?

Guidance:

a. Yes.

b. No.

Question 17: What protection is

afforded a driver for refusing to violate

the FMCSRs?

Guidance: Section 405 of the STAA

(49 U.S.C. 31105) states, in part, that no

person shall discharge, discipline, or in

any manner discriminate against an

employee with respect to the

employee’s compensation, terms,

conditions, or privileges of employment

for refusing to operate a vehicle when

such operation constitutes a violation of

any Federal rule, regulation, standard,

or order applicable to CMV safety. In

such a case, a driver may submit a

signed complaint to the Occupational

Safety and Health Administration.

Question 18: Are persons who operate

CMVs for the personal conveyance of

their friends or family members ‘‘private

motor carriers of passengers

(nonbusiness)’’ as defined in § 390.5?

Guidance: No. Nonbusiness private

motor carriers of passengers (PMCPs) do

not include individuals providing

personal conveyance of passengers for

recreational purposes. A nonbusiness

PMCP must be engaged in some group

activity. For example, organizations that

are exempt under the Internal Revenue

Code (26 U.S.C. 501) and provide

transportation for their members would

generally be considered nonbusiness

PMCPs: Religious, charitable, scientific,

and educational organizations, scouting

groups, sports clubs, fraternal societies

or lodges, etc.

Question 19: ‘‘Unless otherwise

specifically provided,’’ § 390.3(f)(2)

exempts certain government entities and

their drivers from compliance with 49

CFR Chapter III, Subchapter B, i.e., parts

350–399. Which parts are covered by

this exemption and which are

‘‘otherwise specifically’’ excluded?

Guidance: Government employers

and drivers are exempt from compliance

with parts 325, 385, 387, and 390–399.

However, they must comply with the

drug and alcohol testing requirements in

part 382 and the CDL requirements in

part 383. Parts 350, 355, 384, 386, 388,

and 389 do not directly regulate CMV

operators, public or private, and the

question of an exemption therefore does

not arise.

Question 20: Do the FMCSRs apply to

Indian Tribal Governments?

Guidance: Under § 390.3(f)(2),

transportation performed by the Federal

Government, States, or political

subdivisions of a State is generally

exempt from the FMCSRs. Indian Tribal

Governments are considered equivalent

to a State governmental entity for

purposes of this exemption. Thus, when

a driver is employed by and is operating

a CMV owned by a governmental entity,

neither the driver, the vehicle, nor the

entity is subject to the FMCSRs, with

the following exceptions:

(1) The requirements of part 383

relating to CMV driver licensing

standards;

(2) The drug testing requirements in

part 382;

(3) Alcohol testing when an employee

is performing, about to perform, or just

performed safety-sensitive functions.

For the purposes of alcohol testing,

safety-sensitive functions are defined in

§ 382.107 as any of those on-duty

functions set forth in § 395.2 On-Duty

time, paragraphs (1) through (6),

(generally, driving and related activities)

and;

(4) The accident report retention

requirements of § 390.15 are applicable

when the governmental entity is

performing interstate charter

transportation of passengers.

Question 21: Does the exemption in

§ 390.3(f)(3) for the ‘‘occasional

transportation of personal property by

individuals not for compensation nor in

the furtherance of a commercial

enterprise’’ apply to persons who

occasionally use CMVs to transport cars,

boats, horses, etc., to races,

tournaments, shows or similar events,

even if prize money is offered at these

events?

Guidance: The exemption would

apply to this kind of transportation,

provided: (1) The underlying activities

are not undertaken for profit, i.e., (a)

prize money is declared as ordinary

income for tax purposes, and (b) the cost

of the underlying activities is not

deducted as a business expense for tax

purposes; and, where relevant; (2)

corporate sponsorship is not involved.

Drivers must confer with their State of

licensure to determine the licensing

provisions to which they are subject.

Question 22: If, after December 18,

1995, a Mexico-based driver is found

operating beyond the boundaries of the

four border States allowed by the North

American Free Trade Agreement

(NAFTA), is that driver in violation of

the FMCSRs? If so, which one?

Guidance: No. Driving beyond the

four border States is not, in and of itself,

a violation of the FMCSRs.
16406 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

Question 23: Is transportation within

the boundaries of a State between a

place in an Indian Reservation and a

place outside such reservation interstate

commerce?

Guidance: No, such transportation is

considered to be intrastate commerce.

An Indian reservation is geographically

located within the area of a State.

Enforcement on Indian reservations is

inherently Federal, unless such

authority has been granted to the States

by Congressional enactment, accepted

by the States where appropriate, and

consented to by the Indian tribes.

Question 24: To what extent does the

FHWA have jurisdiction to regulate the

qualifications and hours of service of

CMV drivers engaged in interstate or

foreign commerce if the drivers only

occasionally operate in interstate or

foreign commerce?

Guidance: The FHWA published an

interpretation in the Federal Register on

July 23, 1981 (46 FR 37902) on this

subject. The FHWA must show that the

driver or motor carrier has engaged in

interstate or foreign commerce within a

reasonable period of time prior to its

assertion of jurisdiction under 49 U.S.C.

31136 and 31502.

The FHWA must show that the driver

or motor carrier has actually operated in

interstate commerce within a reasonable

period of time prior to its assertion of

jurisdiction. Mere solicitation of

business that would involve operations

in interstate commerce is not sufficient

to establish jurisdiction. If jurisdiction

is claimed over a driver who has not

driven in interstate commerce, evidence

must be presented that the carrier has

operated in interstate commerce and

that the driver could reasonably be

expected to make one of the carrier’s

interstate runs. Satisfactory evidence

would include, but not be limited to,

statements from drivers and carriers and

any employment agreements.

Evidence of driving or being available

for use in interstate commerce makes

the driver subject to the FMCSRs for a

4-month period from the date of the

proof. For that period, the motor carrier

is also required to comply with those

portions of the FMCSRs that deal with

drivers, driving, and records related to

or generated by drivers, primarily those

in 49 CFR parts 387, 391, 392, 395 and

396. The FHWA believes that the 4-

month period is reasonable because it

avoids both a week-by-week

determination of jurisdiction, which is

excessively narrow, and the assertion

that a driver who is used or available for

use once remains subject to the FMCSRs

for an unlimited time, which is overly

inclusive.

Section 390.5 Definitions

Question 1: Do the definitions of

‘‘farm,’’ ‘‘farmer’’ and ‘‘agricultural

crops’’ apply to greenhouse operations?

Guidance: Yes.

Question 2: Is a vehicle used to

transport or tow anhydrous ammonia

nurse tanks considered a CMV and

subject to FMCSRs?

Guidance: Yes, provided the vehicle’s

GVWR or GCWR meets or exceeds that

of a CMV as defined in § 390.5 and/or

the vehicle transports HM in a quantity

that requires placarding.

Question 3: If a vehicle’s GVWR plate

and/or VIN number are missing but its

actual gross weight is 10,001 pounds or

more, may an enforcement officer use

the latter instead of GVWR to determine

the applicability of the FMCSRs?

Guidance: Yes. The only apparent

reason to remove the manufacturer’s

GVWR plate or VIN number is to make

it impossible for roadside enforcement

officers to determine the applicability of

the FMCSRs, which have a GVWR

threshold of 10,001 pounds. In order to

frustrate willful evasion of safety

regulations, an officer may therefore

presume that a vehicle which does not

have a manufacturer’s GVWR plate and/

or does not have a VIN number has a

GVWR of 10,001 pounds or more if: (1)

It has a size and configuration normally

associated with vehicles that have a

GVWR of 10,001 pounds or more; and

(2) It has an actual gross weight of

10,001 pounds or more.

A motor carrier or driver may rebut

the presumption by providing the

enforcement officer the GVWR plate, the

VIN number or other information of

comparable reliability which

demonstrates, or allows the officer to

determine, that the GVWR of the vehicle

is below the jurisdictional weight

threshold.

Question 4: If a vehicle with a

manufacturer’s GVWR of less than

10,001 pounds has been structurally

modified to carry a heavier load, may an

enforcement officer use the higher

actual gross weight of the vehicle,

instead of the GVWR, to determine the

applicability of the FMCSRs?

Guidance: Yes. The motor carrier’s

intent to increase the weight rating is

shown by the structural modifications.

When the vehicle is used to perform

functions normally performed by a

vehicle with a higher GVWR, § 390.33

allows an enforcement officer to treat

the actual gross weight as the GVWR of

the modified vehicle.

Question 5: A driver used by a motor

carrier operates a CMV to and from his/

her residence out of State. Is this

considered interstate commerce?

Guidance: If the driver is operating a

CMV at the direction of the motor

carrier, it is considered interstate

commerce and is subject to the FMCSRs.

If the motor carrier is allowing the

driver to use the vehicle for private

personal transportation, such

transportation is not subject to the

FMCSRs.

Question 6: Is transporting an empty

CMV across State lines for purposes of

repair and maintenance considered

interstate commerce?

Guidance: Yes. The FMCSRs are

applicable to drivers and CMVs in

interstate commerce which transport

property. The property in this situation

is the empty CMV.

Question 7: Does off-road motorized

construction equipment meet the

definitions of ‘‘motor vehicle’’ and

‘‘commercial motor vehicle’’ as used in

§§ 383.5 and 390.5?

Guidance: No. Off-road motorized

construction equipment is outside the

scope of these definitions: (1) When

operated at construction sites: and (2)

when operated on a public road open to

unrestricted public travel, provided the

equipment is not used in furtherance of

a transportation purpose. Occasionally

driving such equipment on a public

road to reach or leave a construction site

does not amount to furtherance of a

transportation purpose. Since

construction equipment is not designed

to operate in traffic, it should be

accompanied by escort vehicles or in

some other way separated from the

public traffic. This equipment may also

be subject to State or local permit

requirements with regard to escort

vehicles, special markings, time of day,

day of the week, and/or the specific

route.

Question 8: What types of equipment

are included in the category of off-road

motorized construction equipment?

Guidance: The definition of off-road

motorized construction equipment is to

be narrowly construed and limited to

equipment which, by its design and

function is obviously not intended for

use, nor is it used on a public road in

furtherance of a transportation purpose.

Examples of such equipment include

motor scrapers, backhoes, motor

graders, compactors, tractors, trenchers,

bulldozers and railroad track

maintenance cranes.

Question 9: Are mobile cranes

operating in interstate commerce subject

to the FMCSRs?

Guidance: Yes, the definition of CMV

encompasses mobile cranes.

Question 10: Does the FHWA define

for-hire transportation of passengers the

same as the former ICC did?
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16407

Guidance: To the extent FHWA’s

authority stems from 49 U.S.C. 31502 or

other sections of Title 49 which are

rooted in the Interstate Commerce Act,

the FHWA is bound by judicial

precedent and legislative history in

interpreting that Act, much of which

relates to the operations of the former

ICC. However, since the MCSA of 1984

re-established the FHWA’s

jurisdictional authority and resulted in

a re-promulgation of the FMCSRs, the

FHWA has been establishing its own

precedents based on ‘‘safety’’ rather

than ‘‘economics’’ as the overriding

consideration. This has resulted in some

deviation in the definition of terms by

the two agencies, e.g., commercial

zones, for-hire transportation, etc.

The term ‘‘for-hire motor carrier’’ as

defined in part 390 means a person

engaged in the transportation of goods

or passengers for compensation. The

FHWA has determined that any

business entity that assesses a fee,

monetary or otherwise, directly or

indirectly for the transportation of

passengers is operating as a for-hire

carrier. Thus, the transportation for

compensation in interstate commerce of

passengers by motor vehicles (except in

six-passenger taxicabs operating on

fixed routes) in the following operations

would typically be subject to all parts of

the FMCSRs, including part 387:

whitewater river rafters, hotel/motel

shuttle transporters, rental car shuttle

services, etc. These are examples of forhire carriage because some fee is

charged, usually indirectly in a total

package charge or other assessment for

transportation performed.

Question 11: A company has a truck

with a GVWR under 10,001 pounds

towing a trailer with a GVWR under

10,001 pounds. However, the GVWR of

the truck added to the GVWR of the

trailer is greater than 10,001 pounds.

Would the company operating this

vehicle in interstate commerce have to

comply with the FMCSRs?

Guidance: Section 390.5 of the

FMCSRs includes in the definition of

CMV a vehicle with a GVWR or GCWR

of 10,001 or more pounds. The section

further defines GCWR as the value

specified by the manufacturer as the

loaded weight of a combination

(articulated) vehicle. Therefore, if the

GVWR of the truck added to the GVWR

of the trailer exceeds 10,001 pounds, the

driver and vehicle are subject to the

FMCSRs.

Question 12: A CMV becomes stuck in

a median or on a shoulder, and has had

no contact with another vehicle, a

pedestrian, or a fixed object prior to

becoming stuck. If a tow truck is used

to pull the CMV back onto the traveled

portion of the road, would this be

considered an accident?

Guidance: No.

Question 13: To what extent would

the windshield and/or mirrors of a

vehicle have to be damaged in order for

it to be considered ‘‘disabling damage’’

as used in the definition of an accident

in § 390.5?

Guidance: The decision as to whether

damage to a windshield and/or mirrors

is disabling is left to the discretion of

the investigating officer.

Question 14: Is the tillerman who

controls the steerable rear axle of a

vehicle so equipped a driver subject to

the FMCSRs while operating in

interstate commerce?

Guidance: Yes. Although the

tillerman does not control the vehicle’s

speed or braking, the rear-axle steering

he/she performs is essential to prevent

the trailer from offtracking into other

lanes or vehicles or off the highway

entirely. Because this function is critical

to the safe operation of vehicles with

steerable rear axles, the tillerman is a

driver.

Question 15: Does the definition of a

‘‘commercial motor vehicle’’ in § 390.5

of the FMCSRs include parking lot and/

or street sweeping vehicles?

Guidance: If the GVWR of a parking

lot or street sweeping vehicle is 10,001

or more pounds, and it operates in

interstate commerce, it is a CMV.

Question 16: Does a driver leasing

company that hires, assigns, trains, and/

or supervises drivers for a private or forhire motor carrier become a motor

carrier as defined by 49 CFR 390.5?

Guidance: No.

Question 17: May a motor carrier that

employs owner-operators who have

their own operating authority issued by

the ICC or the Surface Transportation

Board transfer the responsibility for

compliance with the FMCSRs to the

owner-operators?

Guidance: No. The term ‘‘employee,’’

as defined in § 390.5, specifically

includes an independent contractor

employed by a motor carrier. The

existence of operating authority has no

bearing upon the issue. The motor

carrier is, therefore, responsible for

compliance with the FMCSRs by its

driver employees, including those who

are owner-operators.

Question 18: Must a person who is

injured in an accident and immediately

receives treatment away from the scene

of the accident be transported in an

ambulance?

Guidance: No. Any type of vehicle

may be used to transport an injured

person from the accident scene to the

treatment site.

Question 19: What is the meaning of

‘‘immediate’’ as used in the definition of

‘‘accident?’’

Guidance: The term ‘‘immediate’’

means without an unreasonable delay.

A person immediately receives medical

treatment if he or she is transported

directly from the scene of an accident to

a hospital or other medical facility as

soon as it is considered safe and feasible

to move the injured person away from

the scene of the accident.

Question 20: A person involved in an

incident discovers that he or she is

injured after leaving the scene of the

incident and receives medical attention

at that time. Does the incident meet the

definition of accident in 49 CFR 390.5?

Guidance: No. The incident does not

meet the definition of accident in 49

CFR 390.5 because the person did not

receive treatment immediately after the

incident.

Question 21: Do electronic devices

which are advertised as radar jammers

meet the definition of a radar detector

in 49 CFR 390.5?

Guidance: Devices that are said to

reflect incoming energy passively or to

transmit steadily on the same frequency

as police radar units are not radar

detectors because they do not detect

radio microwaves. Devices that are said

to detect and isolate the incoming signal

and then to transmit on the same

frequency to interfere with the police

unit would qualify as radar detectors.

Question 22: Is a motor vehicle

drawing a non-self-propelled mobile

home that has one or more set of wheels

on the roadway, a driveaway-towaway

operation?

Guidance: Yes, if the mobile home is

a commodity. For example, the mobile

home is transported from the

manufacturer to the dealer or from the

dealer or other seller to the buyer.

Question 23: Can a truck tractor

drawing a trailer be a driveawaytowaway operation?

Guidance: Yes, if the trailer is a

commodity. For example, the trailer is

transported from the manufacturer to

the dealer or from the dealer or other

seller to the buyer.

Question 24: Are trailers which are

stacked upon each other and drawn by

a motor vehicle by attachment to the

bottom trailer, a driveaway-towaway

operation.

Guidance: No. Only the bottom trailer

has one or more sets of wheels on the

roadway. The other trailers are cargo.

Question 25: The definition of a

passenger CMV is a vehicle ‘‘designed to

transport’’ more than 15 passengers,

including the driver. Does that include

standing passengers if the vehicle was
16408 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

specifically designed to accommodate

standees?

Guidance: No. ‘‘Designed to

transport’’ refers only to the number of

designated seats; it does not include

areas suitable, or even designed, for

standing passengers.

Question 26: What is considered a

‘‘public road’’?

Guidance: A public road is any road

under the jurisdiction of a public agency

and open to public travel or any road on

private property that is open to public

travel.

Section 390.9 State and Local Laws,

Effect on

Question 1: If an interstate driver gets

stopped by a State enforcement officer

for an inspection, would the inspecting

officer be enforcing the Federal

regulations or State regulations?

Guidance: A State enforcement officer

can only enforce State laws. However,

under the Motor Carrier Safety

Assistance Program, quite often State

laws are the same as or similar to the

FMCSRs.

Section 390.15 Assistance in

Investigations and Special Studies

Question 1: May a motor carrier create

an accident register of its own, or is

there a specified form that must be

used?

Guidance: There is no specified form.

A motor carrier may create or use any

accident register as long as it includes

the elements required by § 390.15.

Question 2: Would the accident report

retention requirement in § 390.15(b)(2)

include an ‘‘Adjuster’s Report’’ that is

normally considered to be an internal

document of an insurance company?

Guidance: No. The intent of

§ 390.15(b)(2) is that motor carriers

maintain copies of all documents which

the motor carrier is required by the

insurance company to complete and/or

maintain. Section 390.15(b)(2) does not

require motor carriers to maintain

documents, such as ‘‘Adjuster’s

Reports,’’ that are typically internal

documents of the insurance company.

Question 3: What types of documents

must a motor carrier retain to support its

accident register and be in compliance

with § 390.15(b)?

Guidance: The documents required by

§ 390.15(b)(2) include all information

about a particular accident generated by

a motor carrier or driver to fulfill its

accident reporting obligations to State or

other governmental entities or that

motor carrier’s insurer. The language of

paragraph (b)(2) does not require a

motor carrier to seek out, obtain, and

retain copies of accident reports

prepared by State investigators or

insurers.

Section 390.21 Marking of Commercial

Motor Vehicles

Question 1: What markings must be

displayed on a CMV when used by two

or more motor carriers?

Guidance: The markings of the motor

carrier responsible for the operation of

the CMV must be displayed at the time

of transportation. If 2 or more names are

on the vehicle, the name of the

operating motor carrier must be

preceded by the words ‘‘operated by.’’

Section 390.23 Relief From Hours-ofservice Regulations—Disasters

Question 1: Does § 390.23 create an

exemption from the FMCSRs each and

every time the delivery of electricity is

interrupted, no matter how isolated or

minor the occurrence?

Guidance: The rule creates an

exemption from the FMCSRs when

interruptions of electricity are severe

enough to trigger a declaration of an

emergency by a public official

authorized to do so.

An interruption of electricity that

does not produce a declaration by a

public official is not an emergency for

purposes of the regulation and does not

exempt a motor carrier or driver from

the FMCSRs. A call reporting a downed

power line, whether directed to the

State police or a public utility company,

does not create a declared emergency.

The authority to declare emergencies

has been delegated to different officials

in the various States. The FHWA has

not attempted to list these officials. In

order to utilize the exemption provided

by § 390.23, drivers and motor carriers

must therefore ascertain that a

declaration of an emergency was made

by a State or local official authorized to

do so.

Question 2: Section 390.23(a)

provides that parts 390 through 399 do

not apply to any motor carrier or driver

operating a CMV to provide direct

assistance in an emergency. Is a motor

carrier or driver required to keep a

record of the driver’s on-duty or driving

time while providing relief?

Guidance: No.

Question 3: After providing

emergency relief under § 390.23, what

on-duty hours must a driver use to

determine how much off-duty time he/

she must have before returning to the

service of the employing motor carrier?

Guidance: The driver must total the

number of hours worked while the

driver actually provided direct

assistance to the emergency relief effort.

Section 390.31 Copies of Records or

Documents

Question 1: May records required by

the FMCSRs be maintained in an

electronic format?

Guidance: Yes, provided the motor

carrier can produce the information

required by the regulations. Documents

requiring a signature must be capable of

replication (i.e., photocopy, facsimile,

etc.) in such form that will provide an

opportunity for signature verification

upon demand. If computer records are

used, all of the relevant data on the

original documents must be included in

order for the record to be valid.

Question 2: How long does a motor

carrier have to produce records if a

motor carrier maintains all records in an

electronic format?

Guidance: A motor carrier must

produce all records maintained in an

electronic format within 2 working days

after the request. Documents requiring a

signature must be capable of replication

(e.g., photocopy, facsimile, etc.) in such

form that will provide an opportunity

for signature verification upon demand.

Special Topics—Serious Pattern of

Violations

Question 1: What constitutes a

‘‘serious pattern’’ of violations?

Guidance: A serious pattern

constitutes violations that are both

widespread and continuing over a

period of time. A serious pattern is more

than isolated violations. A serious

pattern does not require a specific

number of violations.

PART 391—QUALIFICATION OF DRIVERS

Sections Interpreted

391.2 General Exemptions

391.11 Qualifications of Drivers

391.15 Disqualification of Drivers

391.21 Application for Employment

391.23 Investigation and Inquiries

391.25 Annual Review of Driving Record

391.27 Record of Violations

391.31 Road Test

391.41 Physical Qualifications for Drivers

391.43 Medical Examination; Certivicate of

Physical Examination

391.45 Persons who Must be Medically

Examined and Certified

391.47 Resolution of Conflicts of Medical

Evaluation

391.49 Waiver of Certain Physical Defects

391.51 Driver Qualification Files

391.63 Intermittent, Casual, or Occasional

Drivers

391.65 Drivers Furnished by Other Motor

Carriers

Section 391.2 General Exemptions

Question 1: Must exempt intracity

zone (see § 390.5) drivers comply with

the medical requirements of this

subpart?
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16409

Guidance: No, provided: a. the driver

was otherwise qualified and operating

in a municipality or exempt intracity

zone thereof throughout the 1-year

period ending November 18, 1988; and,

b. the driver’s medical condition has

not substantially worsened since August

23, 1988.

Question 2: What driver qualification

requirements must a farm vehicle driver

(as defined in § 390.5) comply with in

part 391?

Guidance: Drivers meeting the

definition of ‘‘farm vehicle driver’’ who

operate straight trucks are exempted

from all driver qualification

requirements of part 391. All drivers of

articulated motor vehicles with a GCWR

of 10,001 pounds or more are required

to possess a current medical certificate

as required in §§ 391.41 and 391.45.

Section 391.11 Qualifications of

Drivers

Question 1: Is there a maximum age

limit for driving in interstate commerce?

Guidance: The FMCSRs do not

specify any maximum age limit for

drivers.

Question 2: Does the age requirement

in § 391.11(b)(1) apply to CMV drivers

involved entirely in intrastate

commerce?

Guidance: No. Neither the CDL

requirements in part 383 nor the

FMCSRs in parts 390–399 require

drivers engaged purely in intrastate

commerce to be 21 years old. The States

may set lower age thresholds for

intrastate drivers.

Question 3: What effect does the Age

Discrimination in Employment Act have

on the minimum age requirement for an

interstate driver?

Guidance: None. The Age

Discrimination in Employment Act, 29

U.S.C. 621–634, recognizes an exception

when age is a bona fide occupational

qualification. 29 U.S.C. 623(f)(1).

Question 4: May a motor carrier be

exempt from driver qualification

requirements by hiring a driver leasing

company or temporary help service?

Guidance: No. The FMCSRs apply to,

and impose responsibilities on, motor

carriers and their drivers. The FHWA

does not regulate driver leasing

companies or temporary help service

companies.

Question 5: May a motor carrier

lawfully permit a person not yet

qualified as a driver in accordance with

§ 391.11 to operate a vehicle in

interstate commerce for the purpose of

attending a training and indoctrination

course in the operation of that specific

vehicle?

Guidance: No. If the trip is in

interstate commerce, the driver must be

fully qualified to operate a CMV.

Question 6: Does the Military

Selective Service Act of 1967 require a

motor carrier to place a returning

veteran in his/her previous position

(driving interstate) even though he/she

fails to meet minimum physical

standards?

Guidance: No. The Act does not

require a motor carrier to place a

returning veteran who does not meet the

minimum physical standards into his/

her previous driving position. The

returning veteran must meet the

physical requirements and obtain a

medical examiner’s certificate before

driving in interstate operations.

Section 391.15 Disqualification of

Drivers

Question 1: May a driver convicted of

a disqualifying offense be ‘‘disqualified’’

by a motor carrier? Guidance: No. Motor carriers have no

authority to disqualify drivers.

However, a conviction for a

disqualifying offense automatically

disqualifies a driver from driving for the

period specified in the regulations.

Thus, so long as a motor carrier knows,

or should have known, of a driver’s

conviction for a disqualifying offense, it

is prohibited from using the driver

during the disqualification period.

Question 2: Is a decision of probation

before judgment sufficient for

disqualification? Guidance: Yes, provided the State

process includes a finding of guilt.

Question 3: Is a driver holding a valid

driver’s license from his or her home

State but whose privilege to drive in

another State has been suspended or

revoked, disqualified from driving by

§ 391.15(b)?

Guidance: Yes, the driver would be

disqualified from interstate operations

until his privileges are restored by the

authority that suspended or revoked

them, provided the suspension resulted

from a driving violation. It is immaterial

that he holds a valid license from

another State. All licensing actions

should be accomplished through the

CDLIS or the controlling interstate

compact.

Question 4: What are the differences

between the disqualification provisions

listed in §§ 383.51 and 383.5 and those

listed in § 391.15?

Guidance: Part 383 disqualifications

are applicable generally to drivers who

drive CMVs above 26,000 pounds

GVWR, regardless of where the CMV is

driven in the U.S. Part 391

disqualifications are applicable

generally to drivers who drive CMVs

above 10,000 pounds GVWR, only when

the vehicle is used in interstate

commerce in a State, including the

District of Columbia.

Question 5: Do the disqualification

provisions of § 391.15 apply to offenses

committed by a driver who is using a

company vehicle for personal reasons

while off-duty?

Guidance: No. For example, an

owner-operator using his own vehicle in

an off-duty status, or a driver using a

company truck, or tractor for

transportation to a motel, restaurant or

home, would be outside the scope of

this section if he returns to the same

terminal from which he went off-duty

(see § 383.51 for additional

information).

Question 6: If a driver has his/her

privileges to drive a pleasure vehicle

revoked or suspended by State

authorities, but his/her privileges to

operate a CMV are left intact, would the

driver be disqualified under the terms

set forth in § 391.15?

Guidance: No. The driver would not

be disqualified from operating a CMV.

Question 7: If a driver is convicted of

one of the specified offenses in

§ 391.15(c), but is allowed to retain his

driver’s license, is he/she still

disqualified?

Guidance: Yes. A driver who is

convicted of one of the specified

offenses in § 391.15(c), or has forfeited

bond in collateral on account of one of

these offenses, and who is allowed to

retain his/her driver’s license, is still

disqualified. The loss of a driver’s

license and convictions of certain

offenses in § 391.15(c) are entirely

separate grounds for disqualification.

Question 8: If a driver has his/her

license suspended for driving while

under the influence of alcohol, and 2

months later, as a result of this same

incident, the driver is convicted of a

DWI, must the periods of

disqualification be combined since

these are both disqualifying offenses?

Guidance: No. Disqualification during

the suspension of an operating license

continues until the license is restored by

the jurisdiction that suspended it.

Disqualification for conviction of DWI is

for a fixed term. The fact that the driver

was already disqualified for driving

under the influence of alcohol because

of the suspension action may mean that

the total time under disqualification for

the DWI conviction may exceed the

stated term.

Question 9: If a driver commits a

felony while operating a CMV but not in

the employ of a motor carrier, is the

offense disqualifying?

Guidance: No. There are 2 conditions

required to be present for a felony

conviction to be a disqualifying offense
16410 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

under § 391.15: (1) The offense was

committed during on-duty time; and (2)

the driver was employed by a motor

carrier or was engaged in activities that

were in furtherance of a commercial

enterprise. However, neither of these

conditions is a prerequisite for a

disqualifying offense under § 383.51.

Section 391.21 Application for

Employment

Question 1: If a driver submits an

application for employment and has

someone else type, write, or print the

answers to the questions for him and he

signs the application, does this

constitute a valid application?

Guidance: Yes. The applicant, by

signing the application, certifies that all

entries on it and information therein are

true and complete to the best of the

applicant’s knowledge.

Question 2: Is there a prescribed or

specified form that must be used when

a driver applies for employment, or can

a carrier develop its own application?

Guidance: There is no specified form

to be used in an application for

employment. Carriers may develop their

own forms, which may be tailored to

their specific needs. The application

form must, at the minimum, contain the

information specified in § 391.21(b).

Question 3: Section 391.21(b)(11)

requires that an application for

employment contain 10 years of prior

employment information on the driver.

If a foreign motor carrier’s home country

requires that an application for

employment contain only five years of

data, will a foreign carrier need to

change its application to collect 10 years

of data? Will the foreign carrier be

required to go back and collect 10 years

of data on its current drivers? What will

a U.S. motor carrier who employs

foreign drivers be required to do in this

regard?

Guidance: A foreign motor carrier

would not be required to collect 10

years of prior employment information

as long as a foreign driver has an

appropriate foreign commercial driver’s

license, i.e., (1) the Licencia Federal de

Conductor (Mexico), or (2) the Canadian

National Safety Code commercial

driver’s license. A U.S. motor carrier, on

the other hand, would be required to

collect 10 years of prior employment

information when hiring foreign drivers.

The carrier should also remember to

contact the U.S. Immigration and

Naturalization Service for their

regulations and policies with respect to

hiring foreign drivers.

Section 391.23 Investigation and

Inquiries

Question 1: When a motor carrier

receives a request for driver information

from another motor carrier about a

former or current driver, is it required

to supply the requested information?

Guidance: Generally no. See

§ 382.405, however, for requests

pertaining to drug and alcohol records.

Section 391.25 Annual Review of

Driving Record

Question 1: To what extent must a

motor carrier review a driver’s overall

driving record to comply with the

requirements of § 391.25?

Guidance: The motor carrier must

consider as much information about the

driver’s experience as is reasonably

available. This would include all known

violations, whether or not they are part

of an official record maintained by a

State, as well as any other information

that would indicate the driver has

shown a lack of due regard for the safety

of the public. Violations of traffic and

criminal laws, as well as the driver’s

involvement in motor vehicle accidents,

are such indications and must be

considered. A violation of size and

weight laws should also be considered.

Question 2: Is a driver service or

leasing company that is not a motor

carrier permitted to perform annual

reviews of driving records (§ 391.25) on

the drivers it furnishes to motor

carriers?

Guidance: The driver service or

leasing company may perform annual

reviews if designated by a motor carrier

to do so.

Section 391.27 Record of Violations

Question 1: Are notifications to a

motor carrier by a driver convicted of a

driver violation as required by § 383.31

to be maintained in the driver’s

qualification file as part of the

supporting documentation or

certifications noted in the requirements

listed in § 391.27(d)?

Guidance: Section 391.27(d) does not

require documentation in the

qualification file. However, § 391.51

does require that such notifications be

maintained in the qualification file.

Section 391.31 Road Test

Question 1: Are employers still

required to administer road tests since

all States have implemented CDL skills

testing?

Guidance: The employer may accept

a CDL in lieu of a road test if the driver

is required to successfully complete a

road test to obtain a CDL in the State of

issuance. However, if the employer

intends to assign to the driver a vehicle

necessitating the doubles/triples or tank

vehicle endorsement, the employer

must administer the road test under

§ 391.31 in a representative vehicle.

Question 2: How does a student

enrolled in a driver training school

comply with the requirement to pass a

road test?

Guidance: The road test is

administered only after the student has

demonstrated a sufficient degree of

proficiency on a range or off-road

course. A student who passes the road

test and is qualified to operate in

interstate commerce could cross a State

line in the process of receiving training.

Question 3: May a carrier use a

blanket certification of road test for

specific vehicles (driver’s names, etc.,

left out)?

Guidance: No.

Question 4: May a motor carrier

designate another person or

organization to administer the road test?

Guidance: Yes. A motor carrier may

designate another person or

organization to administer the road test

as long as the person who administers

the road test is competent to evaluate

and determine the results of the tests.

Section 391.41 Physical Qualifications

for Drivers

Question 1: Who is responsible for

ensuring that medical certifications

meet the requirements?

Guidance: Medical certification

determinations are the responsibility of

the medical examiner. The motor carrier

has the responsibility to ensure that the

medical examiner is informed of the

minimum medical requirements and the

characteristics of the work to be

performed. The motor carrier is also

responsible for ensuring that only

medically qualified drivers are

operating CMVs in interstate commerce.

Question 2: Do the physical

qualification requirements of the

FMCSRs infringe upon a person’s

religious beliefs if such beliefs prohibit

being examined by a licensed doctor of

medicine or osteopathy?

Guidance: No. To determine whether

a governmental regulation infringes on a

person’s right to freely practice his

religion, the interest served by the

regulation must be balanced against the

degree to which a person’s rights are

adversely affected. Biklen v. Board of

Education, 333 F. Supp. 902 (N.D.N.Y.

1971) aff’d 406 U.S. 951 (1972).

If there is an important objective

being promoted by the requirement and

the restriction on religious freedom is

reasonably adapted to achieving that

objective, the requirement should be

upheld. Burgin v. Henderson, 536 F.2d

501 (2d. Cir. 1976).
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16411

Based on the tests developed by the

courts and the important objective

served, the regulation meets

Constitutional standards. It does not

deny a driver his First Amendment

rights.

Question 3: What are the physical

qualification requirements for operating

a CMV in interstate commerce?

Guidance: The physical qualification

regulations for drivers in interstate

commerce are found at § 391.41.

Instructions to medical examiners

performing physical examinations of

these drivers are found at § 391.43.

Interpretive guidelines are distributed

upon request.

The qualification standards cover 13

areas which directly relate to the driving

function. All but four of the standards

require a judgement by the medical

examiner. A person’s qualification to

drive is determined by a medical

examiner who is knowledgeable about

the driver’s functions and whether a

particular condition would interfere

with the driver’s ability to operate a

CMV safely. In the case of vision,

hearing, insulin-using diabetes, and

epilepsy, the current standards are

absolute, providing no discretion to the

medical examiner.

Question 4: Is a driver who is taking

prescription methadone qualified to

drive a CMV in interstate commerce?

Guidance: Methadone is a habitforming narcotic which can produce

drug dependence and is not an

allowable drug for operators of CMVs.

Question 5: May the medical

examiner restrict a driver’s duties?

Guidance: No. The only conditions a

medical examiner may impose upon a

driver otherwise qualified involve the

use of corrective lenses or hearing aids,

securement of a waiver or limitation of

driving to exempt intracity zones (see

§ 391.43(g)). A medical examiner who

believes a driver has a condition not

specified in § 391.41 that would affect

his ability to operate a CMV safely

should refuse to sign the examiner’s

certificate.

Question 6: If an interstate driver tests

positive for alcohol or controlled

substances under part 382, must the

driver be medically re-examined and

obtain a new medical examiner’s

certificate to drive again?

Guidance: The driver is not required

to be medically re-examined or to obtain

a new medical examiner’s certificate

provided the driver is seen by an SAP

who evaluates the driver, does not make

a clinical diagnosis of alcoholism, and

provides the driver with documentation

allowing the driver to return to work.

However, if the SAP determines that

alcoholism exists, the driver is not

qualified to drive a CMV in interstate

commerce. The ultimate responsibility

rests with the motor carrier to ensure

the driver is medically qualified and to

determine whether a new medical

examination should be completed.

Question 7: Are drivers prohibited

from using CB radios and earphones?

Guidance: No. CB radios and

earphones are not prohibited under the

regulations, as long as they do not

distract the driver and the driver is

capable of complying with

§ 391.41(b)(11).

Question 8: Is the use of coumadin, an

anticoagulant, an automatic

disqualification for drivers operating

CMVs in interstate commerce?

Guidance: No. Although the FHWA

1987 ‘‘Conference on Cardiac Disorders

and Commercial Drivers’’ recommended

that drivers who are taking

anticoagulants not be allowed to drive,

the agency has not adopted a rule to that

effect. The medical examiner and

treating specialist may, but are not

required to, accept the Conference

recommendations. Therefore, the use of

coumadin is not an automatic

disqualification, but a factor to be

considered in determining the driver’s

physical qualification status.

Section 391.43 Medical Examination;

Certificate of Physical Examination

Question 1: May a motor carrier, for

the purposes of § 391.41, or a State

driver licensing agency, for the purposes

of § 383.71, accept the results of a

medical examination performed by a

foreign medical examiner?

Guidance: Yes. Foreign drivers

operating in the U.S. with a driver’s

license recognized as equivalent to the

CDL may be medically certified in

accordance with the requirements of

part 391, subpart E, by a medical

examiner in the driver’s home country

who is licensed, certified, and/or

registered to perform physical

examinations in that country. However,

U.S. drivers operating in interstate

commerce within the U.S. must be

medically certified in accordance with

part 391, subpart E, by a medical

examiner licensed, certified, and/or

registered to perform physical

examinations in the U.S.

Question 2: May a urine sample

collected for purposes of performing a

subpart H test be used to test for

diabetes as part of a driver’s FHWArequired physical examination?

Guidance: In general, no. However,

the DOT has recognized an exception to

this general policy whereby, after 60

milliliters of urine have been set aside

for subpart H testing, any remaining

portion of the sample may be used for

other nondrug testing, but only if such

other nondrug testing is required by the

FHWA (under part 391, subpart E) such

as testing for glucose and protein levels.

Question 3: Is a chest x-ray required

under the minimum medical

requirements of the FMCSRs?

Guidance: No, but a medical examiner

may take an x-ray if appropriate.

Question 4: Does § 391.43 of the

FMCSRs require that physical

examinations of applicants for

employment be conducted by medical

examiners employed by or designated

by the carrier?

Guidance: No.

Question 5: Does a medical certificate

displaying a facsimile of a medical

examiner’s signature meet the

‘‘signature of examining health care

professional’’ requirement?

Guidance: Yes.

Question 6: The driver’s medical

exam is part of the Mexican Licencia

Federal. If a roadside inspection reveals

that a Mexico-based driver has not had

the medical portion of the Licencia

Federal re-validated, is the driver

considered to be without a valid

medical certificate or without a valid

license?

Guidance: The Mexican Licencia

Federal is issued for a period of 10 years

but must be re-validated every 2 years.

A condition of re-validation is that the

driver must pass a new physical

examination. The dates for each revalidation are on the Licencia Federal

and must be stamped at the completion

of each physical. This constitutes

documentation that the driver is

medically qualified. Therefore, if the

Licencia Federal is not re-validated

every 2 years as specified by Mexican

law, the driver’s license is considered

invalid.

Section 391.45 Persons Who Must Be

Medically Examined and Certified

Question 1: Is it intended that the

words ‘‘person’’ and ‘‘driver’’ be used

interchangeably in § 391.45?

Guidance: Yes.

Question 2: Do the FMCSRs require

applicants, possessing a current medical

certificate, to undergo a new physical

examination as a condition of

employment?

Guidance: No. However, if a motor

carrier accepts such a currently valid

certificate from a driver subject to part

382, the driver is subject to additional

controlled substance testing

requirements unless otherwise excepted

in subpart H.

Question 3: Must a driver who is

returning from an illness or injury

undergo a medical examination even if
16412 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

his current medical certificate has not

expired?

Guidance: The FMCSRs do not

require an examination in this case

unless the injury or illness has impaired

the driver’s ability to perform his/her

normal duties. However, the motor

carrier may require a driver returning

from any illness or injury to take a

physical examination. But, in either

case, the motor carrier has the obligation

to determine if an injury or illness

renders the driver medically

unqualified.

Section 391.47 Resolution of Conflicts

of Medical Evaluation

Question 1: Does the FHWA issue

formal medical decisions as to the

physical qualifications of drivers on an

individual basis?

Guidance: No, except upon request

for resolution of a conflict of medical

evaluations.

Section 391.49 Waiver of Certain

Physical Defects

Question 1: Since 49 CFR 391.49 does

not mandate a Skill Performance

Evaluation, does the term ‘‘performance

standard’’ mean that the State must give

a driving test or other Skill Performance

Evaluation to the driver for every waiver

issued or does this term mean that,

depending upon the medical condition,

the State may give some other type of

performance test? For example, in the

case of a vision waiver, would a vision

examination suffice as a performance

standard?

Guidance: Under the Tolerance

Guidelines, Appendix C, Paragraph 3(j),

each State that creates a waiver program

for intrastate drivers is responsible for

determining what constitutes ‘‘sound

medical judgment,’’ as well as

determining the performance standard.

In the example used above, a vision

examination would suffice as a

performance standard. It is the

responsibility of each State establishing

a waiver program to determine what

constitutes an appropriate performance

standard.

Section 391.51 Driver Qualification

Files

Question 1: When a motor carrier

purchases another motor carrier, must

the drivers of the acquired motor carrier

be requalified by the purchasing motor

carrier?

Guidance: No.

Question 2: Is a driver training school

required to keep a driver qualification

file on each student?

Guidance: Yes, if operating in

interstate commerce.

Question 3: Before December 23,

1994, motor carriers were required to

maintain documentary evidence that

their drivers had completed the written

examination specified by 49 CFR 391.35

(1994). The rule removing § 391.35

became effective on that date (59 FR

60319, November 23, 1994). Are motor

carriers required to maintain such

documentary evidence for drivers

employed prior to December 23, 1994?

Guidance: No.

Question 4: If a motor carrier

maintains complete driver qualification

files but cannot produce them at the

time of the review or within two

business days, is it in violation of

§ 391.51?

Guidance: Yes. Driver qualification

files must be produced on demand.

Producing driver qualification files after

the completion of the review does not

cure a record-keeping violation of

§ 391.51.

Question 5: Must a driver/employee

who was employed prior to the deletion

of the section of the FMCSRs requiring

certain documentary proof of written

examination, and who does not have

such proof in his driver qualification

file, complete the exam?

Guidance: No. The requirement of

former 49 CFR 391.35(h) that a driver

qualification file contains certain

documents substantiating the driver

examination may not be the basis of a

citation after November 23, 1994, the

date on which all requirements

pertinent to a driver’s written test were

rescinded (59 FR 60319).

Section 391.63 Intermittent, Casual, or

Occasional Drivers

Question 1: Is a person employed by

a nonmotor carrier in his normal duties

considered an intermittent, casual, or

occasional driver when employed by a

motor carrier as a driver on a part-time

basis?

Guidance: No. A person who drives

for one motor carrier (even if it is only

one day per month) would not meet the

definition of an intermittent, casual or

occasional driver in § 390.5 since he/she

is employed by only one motor carrier.

The motor carrier must fully qualify the

driver and maintain a qualification file

on the employee as a regularly

employed driver.

Question 2: How does § 391.63 apply

when motor carriers obtain, from a

driver leasing service, intermittent,

casual, or occasional drivers who are on

temporary assignments to multiple

motor carriers?

Guidance: If an intermittent, casual,

or occasional driver has only been fully

qualified by a driver leasing service or

similar non-motor carrier entity, and has

never been fully qualified by a motor

carrier, the first motor carrier employing

such a driver must ensure that the

driver is fully qualified, and must keep

a complete driver qualification file for

that driver. It was the intention of

§§ 391.63 and 391.65 to require that a

driver, before entering the status of an

‘‘intermittent, casual, or occasional’’

driver, be fully qualified by a motor

carrier. In a contractual relationship

between a motor carrier and a driver

leasing service, this may be

accomplished by a motor carrier

designating a driver leasing service as

its agent to perform the qualification

procedures in accordance with parts 383

and 391. However, in such a case, the

motor carrier will be held liable for any

violations of the FMCSRs committed by

its agent.

Question 3: Must a motor carrier that

employs an intermittent, casual, or

occasional driver to operate a CMV, as

defined in § 383.5, (1) require the driver

to prepare and submit an employment

application in accordance with § 391.21

and (2) conduct the background

investigation of the driver’s previous

employers required by § 391.23?

Guidance: Section 391.63(a) (1)–(2)

exempts from compliance with

§§ 391.21 and 391.23 motor carriers that

use intermittent, casual or occasional

drivers to operate CMVs with a gross

vehicle (or combination) weight rating

(GVWR/GCWR) of 10,001 pounds or

more. These exemptions also apply to

carriers operating the heavier CMVs

subject to parts 382 and 383.

However, the more limited driver

information and motor carrier

investigation required by parts 382 and

383 are not covered by § 391.63.

Therefore, a carrier using intermittent,

casual or occasional drivers to operate

CMVs with a GVWR/GCWR of 26,001

pounds or more need not require an

employment application in accordance

with § 391.21, but the driver must

furnish the information required by

§ 383.35(c). The carrier may conduct a

background investigation of the driver’s

previous employers (§ 383.35(f)), and it

must investigate his/her previous

alcohol and controlled substance test

results (§ 382.413).

Section 391.65 Drivers Furnished by

Other Motor Carriers

Question 1: May a nonmotor carrier

which owns a CMV prepare the

qualification certificate provided for in

§ 391.65?

Guidance: No, only a motor carrier

which regularly employs a driver may

issue the required certification.

Question 2: May the certificate of

qualification as prescribed by § 391.65
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16413

be incorporated into another carrier’s

forms such as a lease and/or interchange

agreement?

Guidance: Yes. However, the

certificate of qualification must be

signed and dated by an officer or

authorized employee of the regularly

employing carrier.

Question 3: Is a motor carrier required

to accept a certificate from the driver’s

regularly employing motor carrier

certifying that the driver is qualified per

§ 391.65?

Guidance: No. If the motor carrier

chooses not to accept the certificate

issued by the regularly employing motor

carrier furnishing the driver, the motor

carrier must then assume responsibility

for assuring itself that the driver is fully

qualified in accordance with part 391.

Question 4: If a driver furnished by

another motor carrier is in the second

carrier’s service for a period of 7

consecutive days or more, may the

driver still fall under the exemption in

§ 391.65?

Guidance: No. The driver becomes a

regularly employed driver of the second

motor carrier and the exemption in

§ 391.65 is inapplicable.

PART 392—DRIVING OF MOTOR VEHICLES

Sections Interpreted

392.3 Ill or Fatigued Operator

392.5 Intoxicating Beverage

392.6 Schedules To Conform With Speed

Limits

392.7 Equipment, Inspection, and Use

392.9 Safe Loading

392.14 Hazardous Conditions; Extreme

Caution

392.16 Use of Seat Belts

392.42 Notification of License Revocation

392.60 Unauthorized Persons Not To Be

Transported

Section 392.3 Ill or Fatigued Operator

Question 1: What protection is

afforded a driver for refusing to violate

the FMCSRs?

Guidance: Section 405 of the STAA

(49 U.S.C. 31105) states, in part, that no

person shall discharge, discipline, or in

any manner discriminate against an

employee with respect to the

employee’s compensation, terms,

conditions, or privileges of employment

for refusing to operate a vehicle when

such operation constitutes a violation of

any Federal rule, regulation, standard,

or order applicable to CMV safety. In

such a case, a driver may submit a

signed complaint to the Occupational

Safety and Health Administration.

Section 392.5 Intoxicating Beverage

Question 1: Do possession and use of

alcoholic beverages in the passenger

area of a motorcoach constitute

‘‘possession’’ of such beverages under

§ 392.5(a)(3)?

Guidance: No.

Question 2: Can a motor carrier,

which finds a driver with a detectable

presence of alcohol, place him/her out

of service in accordance with § 392.5?

Guidance: No. The term ‘‘out of

service’’ in the context of § 392.5 refers

to an act by a State or Federal official.

However, the motor carrier must

prevent the driver from being on-duty or

from operating or being in physical

control of a CMV for at least as long as

is necessary to prevent a violation of

§ 392.5.

Question 3: Does the prohibition

against carrying alcoholic beverages in

§ 392.5 apply to a driver who uses a

company vehicle, for personal reasons,

while off-duty?

Guidance: No. For example, an

owner-operator using his/her own

vehicle in an off-duty status, or a driver

using a company truck or tractor for

transportation to a motel, restaurant, or

home, would normally be outside the

scope of this section.

Question 4: Would an alcohol test,

performed by an employer pursuant to

49 CFR part 382, with a result greater

than 0.00 BAC, but less than 0.02 BAC,

establish that a driver was in violation

of 49 CFR 392.5(a)(2), having any

measured alcohol concentration while

on duty?

Guidance: No. The FHWA believes

that a 0.02 BAC is the lowest level at

which a scientifically accurate breath/

blood alcohol concentration can be

measured in an employer-based test

under part 382. The FHWA further

believes that this use of a 0.02 BAC

standard is consistent with FHWA’s

long established zero tolerance standard

for alcohol. This guidance in no way

impedes or precludes any action taken

by a law enforcement official because of

a finding that a BAC level was less than

0.02 BAC.

Section 392.6 Shedules to Conform

With Speed Limits.

Question 1: How many miles may a

driver record on his/her daily record of

duty status and still be presumed to be

in compliance with the speed limits?

Guidance: Drivers are required to

conform to the posted speed limits

prescribed by the jurisdictions in or

through which the vehicle is being

operated. Where the total trip is on

highways with a speed limit of 65 mph,

trips of 550–600 miles completed in 10

hours are considered questionable and

the motor carrier may be asked to

document that such trips can be made.

Trips of 600 miles or more will be

assumed to be incapable of being

completed without violations of the

speed limits and may be required to be

documented. In areas where a 55 mph

speed limit is in effect, trips of 450–500

miles are open to question, and runs of

500 miles or more are considered

incapable of being made in compliance

with the speed limit and hours of

service limitation.

Section 392.7 Equipment, Inspection,

and Use

Question 1: Must a driver prepare a

written report of a pretrip inspection

performed under § 392.7?

Guidance: No.

Question 2: Must both drivers of a

team operation comply with the

provisions of § 392.7 before driving?

Guidance: Section 392.7 states that a

driver must be satisfied that the vehicle

is in good working order before

operating the vehicle. If a driver is

satisfied with a co-driver’s inspection,

or a safety lane inspection, then the

requirement of this section will have

been met.

Section 392.9 Safe Loading

Question 1: Is a vehicle’s cargo

compartment considered sealed

according to the terms of § 392.9(b)(4)

when it is secured with a padlock, to

which the driver holds a key?

Guidance: No. The driver has ready

access to the cargo compartment by

using the padlock key and would be

required to perform the examinations of

the cargo and load-securing devices

described in § 392.9(b).

Question 2: Does the FHWA have

authority to enforce the safe loading

requirements against a shipper that is

not the motor carrier?

Guidance: No, unless HM as defined

in § 172.101 are involved. It is the

responsibility of the motor carrier and

the driver to ensure that any cargo

aboard a vehicle is properly loaded and

secured.

Question 3: How may the motor

carrier determine safe loading when a

shipper has loaded and sealed the

trailer?

Guidance: Under these circumstances,

a motor carrier may fulfill its

responsibilities for proper loading a

number of ways. Examples are: a.

Arrange for supervision of loading to

determine compliance; or

b. Obtain notation on the connecting

line freight bill that the lading was

properly loaded; or

c. Obtain approval to break the seal to

permit inspection.

Question 4: Is there a requirement that

a driver must personally load, block,

brace, and tie down the cargo on the

property carrying CMV he/she drives?

Guidance: No. But the driver is

required to be familiar with methods

and procedures for securing cargo, and
16414 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

may have to adjust the cargo or load

securing devices pursuant to § 392.9(b).

Section 392.14 Hazardous Conditions;

Extreme Caution

Question 1: Who makes the

determination, the driver or carrier, that

conditions are sufficiently dangerous to

warrant discontinuing the operation of a

CMV?

Guidance: Under this section, the

driver is clearly responsible for the safe

operation of the vehicle and the

decision to cease operation because of

hazardous conditions.

Section 392.16 Use of Seat Belts

Question 1: May a driver be exempted

from wearing seat belts because of a

medical condition such as

claustrophobia?

Guidance: No.

Question 2: Are motorcoach

passengers required to wear seat belts?

Guidance: No.

Section 392.42 Notification of License

Revocation

Question 1: If a driver’s driving

privilege is suspended as a result of a

violation committed off-duty, in a

personal vehicle, is the driver required

to notify the employing motor carrier

under the provisions of § 392.42?

Guidance: Yes.

Section 392.60 Unauthorized Persons

Not To Be Transported

Question 1: Does § 392.60 require a

driver to carry a copy of the written

authorization (required to transport

passengers) on board a CMV?

Guidance: No, the authorization must

be maintained at the carrier’s principal

place of business. At the discretion of

the motor carrier, a driver may also

carry a copy of the authorization.

PART 393—PARTS AND ACCESSORIES

NECESSARY FOR SAFE OPERATION

Sections Interpreted

393.11 Lighting Devices and Reflectors

393.17 Lamps and Reflectors—

Combinations in Driveaway-Towaway

Operation

393.24 Requirements for Head Lamps and

Auxiliary Road Lighting Lamps

393.25 Requirements for Lamps Other Than

Head Lamps

393.28 Wiring To Be Protected

393.31 Overload Protective Devices

393.40 Required Brake Systems

393.41 Parking Brake Systems

393.42 Brakes Required on All Wheels

393.43 Breakaway and Emergency Braking

System

393.44 Front Brake Lines, Protection

393.48 Brakes To Be Operative

393.49 Single Valve To Operate All Brakes

393.51 Warning Devices and Gauges

393.52 Brake Performance

393.60 Glazing in Specified Openings

393.61 Window Construction

393.62 Window Obstructions

393.65 All Fuel Systems

393.67 Liquid Fuel Tanks

393.70 Coupling Devices and Towing

Methods, Except for DriveawayTowaway Operations

393.71 Coupling Devices and Towing

Methods, Driveaway-Towaway

Operations

393.75 Tires

393.76 Sleeper Berths

393.78 Windshield Wipers

393.81 Horn

393.82 Speedometer

393.83 Exhaust System

393.87 Flags on Projecting Loads

393.88 Television Receivers

393.89 Buses, Driveshaft Protection

393.92 Buses, Marking Emergency Doors

393.93 Seats, Seat Belt Assemblies and Seat

Belt Assembly Anchorages

393.95 Emergency Equipment on All Power

Units

393.100 General Rules for Protection

Against Shifting or Falling Cargo

393.102 Securement Systems

393.106 Front-end Structure

393.201 Frames

Special Topics—CMV Parts and

Accessories

Section 393.11 Lighting Devices and

Reflectors

Question 1: What is the definition of

‘‘body’’ with respect to trucks and

trailers?

Guidance: The FMCSRs do not

include a definition of ‘‘body.’’

However, a truck or trailer body

generally means the structure or fixture

designed to contain, or support, the

material or property to be transported

on the vehicle.

Question 2: May retroreflective tape

be used in place of side reflex reflectors?

Guidance: Section 393.26(b) cross

references FMVSS 108 (49 CFR 571.108,

S5.1.1.4) which allows reflective

material to be used for side reflex

reflectors under the conditions

described below. Retroreflective tape

conforming to Federal specification L–

S–300, ‘‘Sheeting and Tape, Reflective;

Non-exposed Lens, Adhesive Backing,’’

September 7, 1965, may be used in

place of side reflex reflectors if this

material as used on the vehicle, meets

the performance standards in either

Table I or Table IA of Society of

Automotive Engineers J594f, Reflex

Reflectors, January 1977.

Question 3: Section 393.11, Footnote

5, requires that each converter dolly be

equipped with turn signals at the rear if

the converter dolly obscures the turn

signals at the rear of the towing vehicle

when towed singly by another vehicle.

Are turn signals required on the rear of

the converter dolly when the towing of

the unladen dolly prevents other

motorists from seeing only a portion of

the lenses of the turn signals on the

towing vehicle?

Guidance: Yes. Although a portion of

the rear turn signal lenses on the towing

vehicle may be visible to other drivers,

the turn signal generally would not

satisfy the visibility requirements of

FMVSS No. 108 (49 CFR 571.108) if the

converter dolly prevents other motorists

from seeing the entire lens. The

visibility requirements of FMVSS No.

108 help to ensure that other drivers can

see the turn signal from a range of

positions to the rear of the vehicle.

Therefore, turn signals on the towing

vehicle are considered to be obscured by

the converter dolly if other motorists’

view of the lens is even partially

blocked.

Question 4: Does a CMV equipped

with amber tail lamps in addition to the

red tail lamps required to designate the

rear of a CMV meet the lighting

requirements of § 393.11?

Guidance: No. Section 393.11 requires

that lighting devices on CMVs placed in

operation after March 7, 1989, meet the

requirements of FMVSS No. 108 in

effect at the time of manufacture. The

NHTSA has issued interpretations

which indicate that the use of amber tail

lamps impairs the effectiveness of the

required lighting equipment and as such

is prohibited by FMVSS No. 108

(S5.1.3). Since NHTSA does not allow

vehicle manufacturers to install amber

tail lamps, the FHWA has concluded

that the use of amber tail lamps on

vehicles placed in operation after March

7, 1989, is prohibited by § 393.11.

In the case of vehicles placed in

operation on or before March 7, 1989,

§ 393.11 requires that vehicles meet

either the lighting requirements of part

393 or FMVSS No. 108 in effect at the

time of manufacture. Prior to the

December 7, 1988, final rule on part 393

(53 FR 49397), amber tail lamps were

prohibited by § 393.25. Section

393.25(e)(3) (in the October 1, 1988

edition of the Code of Federal

Regulations) required all rear lamps,

with certain exceptions, to be red. Since

tail lamps were not included in the

exceptions, the use of amber tail lamps

was implicitly prohibited. Therefore, a

vehicle placed in operation on or before

March 7, 1989, must not be equipped

with amber tail lamps because the use

of such lamps meets neither the lighting

requirements of part 393 nor FMVSS

No. 108 in effect at the time of

manufacture.
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16415

Section 393.17 Lamps and ReflectorsCombinations in Driveaway-Towaway

Operation

Question 1: What are the lighting

requirements when a tow truck is

pulling a wrecked or disabled vehicle? Guidance: A wrecker pulling a

vehicle would be considered a

driveaway-towaway operation and

would have to be equipped with the

lighting devices specified in § 393.17

when operating in interstate commerce.

Section 393.24 Requirements for Head

Lamps and Auxiliary Road Lighting

Lamps

Question 1: Must additional lamps

that are not required be operative if all

required lamps are operative? Guidance: No.

Section 393.25 Requirements for

Lamps Other Than Head Lamps

Question 1: Are lighting devices on

mobile homes/house trailers required to

be permanently mounted? Guidance: No. The movement of

mobile homes/house trailers is

considered to be a driveaway-towaway

operation. Question 2: Are there any special

lighting requirements for large

containers?

Guidance: No.

Question 3: What are the lighting

requirements when a container assumes

the structural requirements of a trailer? Guidance: All relevant requirements

of the regulations must be met by this

container/trailer.

Section 393.28 Wiring to be Protected

Question 1: Does a frame channel of

a CMV constitute a protective ‘‘sheath or

tube’’ as specified in § 393.28?

Guidance: No. To be acceptable, a

sheath or tube must enclose the wires

throughout their circumference. In the

absence of a sheath or tube, the group

of wires must be protected by

nonconductive tape, braid, or other

covering capable of withstanding severe

abrasion.

Section 393.31 Overload Protective

Devices

Question 1: Must all trailers be

equipped with overload protective

devices?

Guidance: No. Trailers do not need

overload protective devices when

protection of trailer circuits is provided

on the towing vehicle. A circuit breaker

is required only when the head lamp

circuit is protected in common with one

or more other circuits. A circuit breaker,

if required, must be an automatic reset

type.

Section 393.40 Required Brake

Systems

Question 1: May a system such as

‘‘driveline brakes’’ be used as an

emergency brake provided it complies

with the requirements of § 393.52?

Guidance: Yes. CMVs which were not

subject to the emergency brake

requirements of FMVSS Nos. 105 or 121

may use ‘‘driveline brakes’’ provided

those vehicles meet the requirements of

§ 393.52.

Section 393.41 Parking Brake Systems

Question 1: May the ‘‘park’’ position

of a CMV’s transmission be used as a

parking brake to comply with the

§ 393.41?

Guidance: No. The ‘‘park’’ position of

the transmission is only a locking

device used to lock the transmission.

Question 2: Does § 393.41 prohibit air

brake systems from being equipped with

a means to release the spring brakes for

purposes of towing disabled vehicles in

emergency situations?

Guidance: No, provided the brakes are

designed and maintained so they cannot

be released unless adequate energy is

available to make immediate

reapplication of the brakes when the

brake system is operable.

Question 3: Are parking brakes

required on every CMV manufactured

before March 7, 1990?

Guidance: No.

Section 393.42 Brakes Required on All

Wheels

Question 1: Do retractable or lift axles

have to be equipped with brakes?

Guidance: Yes, when the wheels are

in contact with the roadway.

Question 2: Are unladen converter

dollies covered by the exemption in

§ 393.42(b)(3)?

Guidance: Yes. However, if the

converter dolly is laden, the brakes must

be operable.

Question 3: Section 393.42(b)(3) of the

FMCSRs states that any full trailer, any

semitrailer, or any pole trailer having a

GVWR of 3,000 pounds or less must be

equipped with brakes if the weight of

the towed vehicle resting on the towing

vehicle exceeds 40 percent of the GVWR

of the towing vehicle. Is the

manufacturer of the trailer responsible

for ensuring that the trailer is equipped

with brakes when required?

Guidance: No. The motor carrier

pulling the trailer is responsible for

ensuring that the trailer is in

compliance with all applicable

FMCSRs.

Section 393.43 Breakaway and

Emergency Braking System

Question 1: Are tractor protection

valves required by § 393.43(b), or may

similar devices be used?

Guidance: No. Similar devices may be

used provided the devices meet the

performance requirements of

§ 393.43(b).

Question 2: Are all brakes on a trailer

required to be applied automatically

upon breakaway?

Guidance: Yes.

Section 393.44 Front Brake Lines,

Protection

Question 1: Does the term ‘‘rear

wheels’’ include the tag axle on a bus/

motorcoach?

Guidance: Yes. The braking system on

a bus/motorcoach must be constructed

so that if any brake line to either front

wheel is broken, the driver can apply

the brakes to all of the wheels on each

rear axle.

Section 393.48 Brakes To Be Operative

Question 1: Do surge brakes comply

with § 393.48?

Guidance: No. Section 393.48 requires

that brakes be operable at all times.

Generally, surge brakes are only

operative when the vehicle is moving in

the forward direction and as such do not

comply with § 393.48 (see question

number 1 in § 393.49).

Question 2: If a CMV manufactured

on or after July 25, 1980 (see § 393.42)

has brake components on the front axle,

and the brakes are not operable, does

the vehicle comply with § 393.48?

Guidance: No.

Question 3: If a truck or truck tractor

manufactured prior to July 25, 1980, and

having 3 or more axles, has inoperable

brakes on the front axle or some of the

brake components are missing, would

the vehicle be in violation of § 393.48?

Guidance: Yes. Section 393.48(a)

requires that all brakes with which the

vehicle is equipped must be operable at

all times. Although § 393.42(b)(1)

provides an exception to the

requirement for brakes on all wheels for

trucks and truck tractors with 3 or more

axles and manufactured prior to July 25,

1980, the exception does not affect the

applicability of § 393.48 for those cases

in which the vehicle is equipped with

inoperable front wheel brakes or only

has certain portions of the front wheel

brake system (e.g., shoes, linings,

chambers, hoses) in place.

Question 4: Are the brakes on a

vehicle towed in a driveaway-towaway

operation or towed disabled vehicle

required to be operable at all times?

Guidance: Section 393.48(c) provides

an exception to the requirement that

brakes be operable at all times. This

exception covers disabled vehicles

being towed and vehicles towed in a

driveaway-towaway operation.

The driveaway-towaway exception in

§ 393.48(c) is contingent upon the

conditions outlined in § 393.42(b)(2).

Towed vehicles must have brakes as

may be necessary to ensure compliance
16416 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

with the performance requirements of

§ 393.52. A motor vehicle towed by

means of a tow-bar when any other

vehicle is full-mounted on the towed

vehicle, or any combination of motor

vehicles utilizing 3 or more saddlemounts, would not be covered under the

exception found at § 393.48(c).

With regard to the disabled-vehicle

provision of § 393.48(c)(1), the

combination vehicle would have to

meet the applicable performance

requirements of § 393.52.

Section 393.49 Single Valve To

Operate All Brakes

Question 1: Does a combination of

vehicles using a surge brake to activate

the towed vehicle’s brakes comply with

§ 393.49?

Guidance: No. The surge brake cannot

keep the trailer brakes in an applied

position. Therefore, the brakes on the

combination of vehicles are not under

the control of a single valve as required

by § 393.49 (see question number 1 in

§ 393.48)

Section 393.51 Warning Devices and

Gauges

Question 1: Is the low pressure

warning device required to activate

before the tractor protection valve?

Guidance: No. Section 393.51 does

not explicitly require the warning

device to operate before the protection

valve. It is implied that if the operating

pressure of the warning device is at least

1⁄2 of the governor cut-out pressure, and

that pressure is not less than the

pressure at which the protection valve

(or similar device) activates, the

requirements of § 393.51 are satisfied.

Question 2: Is the vacuum portion of

vacuum-assisted hydraulic brake

systems required to have a warning

device?

Guidance: No. Only the hydraulic

portion of vacuum-assisted hydraulic

brake systems is required to have a

warning device. FMVSS No. 105 does

not require a warning device for the

vacuum portion of the vacuum-assisted

hydraulic brake systems. It is the

intention of the FHWA that § 393.51 be

consistent with FMVSS No. 105.

Question 3: Are vacuum gauges

required on the vacuum portion of

vacuum-assisted hydraulic brakes?

Guidance: No. Section 393.51(d)(2)

requires only that CMVs with vacuum

brakes (not hydraulic brakes applied or

assisted by vacuum) be equipped with

a vacuum gauge.

Question 4: Is a warning device

required in a CMV with a single

hydraulic brake system which uses the

driveline parking brake as the

emergency brake system?

Guidance: No. Warning devices are

not required on such CMVs because the

driver will be given ample warning of

system failure by the movement and feel

of the brake pedal.

Question 5: What difference, if any, is

there between a warning device and a

warning signal?

Guidance: For purposes of § 393.51,

the terms may be used interchangeably.

Section 393.52 Brake Performance

Question 1: May the information in

the stopping distance table be used to

determine the stopping distances at

speeds greater than 20 mph?

Guidance: No, the table is not

intended to be used to predict or

determine stopping distances at speeds

greater than 20 mph.

Section 393.60 Glazing in Specified

Openings

Question 1: May windshields and side

windows be tinted?

Guidance: Yes, as long as the light

transmission is not restricted to less

than 70 percent of normal (refer to the

American Standards Association

publication Z26.1–1966 and Z26.1a1969).

Question 2: May a decal designed to

comply with the periodic inspection

documentation requirements of § 396.17

be displayed on the windshields or side

windows of a CMV?

Guidance: Yes, provided the decal is

being used in lieu of an inspection

report and is in compliance with

§ 393.60(c).

Question 3: If a crack extended into

the thickness of the glass at such an

angle as to measure 1⁄4’’ or more,

measuring from the top edge of the

crack on the outside surface of the

windshield to vertical line drawn

through the windshield to the far edge

of this angled crack on the inside of the

windshield, would this constitute a

crack of 1⁄4’’ or more in width as defined

in § 393.60(b)(2)?

Guidance: No. The crack, in order to

fall outside the exception, would have

to be a gap of 1⁄4’’ or more on the same

surface of the windshield.

Section 393.61 Window Construction

Question 1: Do school buses used for

purposes other than school bus

operations (as defined in § 390.5), have

to meet additional emergency exits

requirements under § 393.61?

Guidance: Yes. Section 393.61(b)(2)

says that ‘‘a bus, including a school bus,

manufactured on and after September 1,

1973,’’ must conform with NHTSA’s

§ 571.217 (FMVSS 217). At the time this

provision was adopted, FMVSS 217

applied only to other buses and it was

optional for school buses. The FHWA

inserted the language, ‘‘including school

buses,’’ in § 393.61(b)(2) to make clear

that school buses used in interstate

commerce and, therefore, subject to the

FMCSRs, were required to comply with

the bus exit standards in Standard

FMVSS 217.

Section 393.61(b)(3) regarding pushout windows provides that older buses

must conform with the requirements of

§§ 393.61(b) or 571.217. Buses which

are subject to § 571.217 would follow

NHTSA’s interpretation on push-out

windows. Buses which are subject to

§ 393.61(b)(1) of the FMCSRs are

required to have emergency windows

that are either push-out windows or that

have laminated safety glass that can be

pushed out in a manner similar to a

push-out window.

Question 2: For emergency exits

which consist of laminated safety glass,

is the window frame or sash required to

move outward from the bus as is the

case with push-out windows?

Guidance: No. Laminated safety glass

is an alternative to the use of push-out

windows for buses manufactured before

September 1, 1973. Section 393.61(c)

requires that every glazed opening used

to satisfy the emergency exit space

requirements, ‘‘if not glazed with

laminated safety glass, shall have a

frame or sash so designed, constructed,

and maintained that it will yield

outwardly to provide the required free

opening. * * *’’ Laminated safety glass

meeting Test No. 25, Egress, American

National Standard ‘‘Safety Code for

Safety Glazing Materials for Glazing

Motor Vehicles Operating on Land

Highways,’’ Z26.1–1966 as

supplemented by Z26.1a–1969

(referenced in §§ 393.61(c) and

393.60(a)) is intended to provide an

adequate means of emergency exit on

older buses without resorting to pushout windows.

However, buses with a seating

capacity of more than 10 people

manufactured after September 1, 1973,

must have push-out windows that

conform to 49 CFR 571.217.

Question 3: When calculating the

minimum emergency exit space

required on school buses used in nonschool bus operations, should two or

three passengers per bench seat be used

in determining the adult seating

capacity?

Guidance: The NHTSA has indicated

that ‘‘School buses can transport 3 to a

seat if the passengers are in grades 1

through 5, and 2 per seat in grades 9

through 12.’’ (May 9, 1995, 60 FR 24562,

24567) Therefore, for vehicles originally

manufactured as school buses, the total

pupil seating capacity provided by the
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16417

bus manufacturer should be multiplied

by 2⁄3 to determine the adult seating

capacity for the purposes of § 393.61.

This generally yields the same result as

using two adults per bench seat.

Question 4: Do school buses which

meet the school bus emergency exit

requirements established by the

NHTSA’s November 2, 1992, final rule

on FMVSS No. 217 have to be retrofitted

with additional emergency exits when

used in interstate commerce for nonschool bus operations?

Guidance: No. On May 9, 1995, the

NHTSA amended FMVSS No. 217 to

permit non-school buses to meet either

the current non-school bus emergency

exit requirements or the upgraded

school bus exit requirements established

by the November 2, 1992 (57 FR 49413),

final rule which became effective on

September 1, 1994. Therefore, school

buses which meet the upgraded

emergency exit standards meet the

requirements of § 393.61 without the

retrofitting of additional exits.

Question 5: Which edition of FMVSS

No. 217 is required to be used in

determining the emergency exit space

requirements when retrofitting buses?

Guidance: The cross reference to

FMVSS No. 217 applies to the

requirements in effect at the time of

manufacture of the bus. Motor carriers

are not, however, prohibited from

retrofitting their buses to the most upto-date requirements in FMVSS No. 217.

Therefore, at a minimum, motor carriers

must meet the non-school bus

emergency exit requirements in effect at

the time of manufacture, and have the

option of retrofitting their buses to meet

the emergency exit requirements

established by the November 2, 1992 (57

FR 49413), final rule which became

effective on September 1, 1994.

Section 393.62 Window Obstructions

Question 1: May a bus being operated

by a for-hire motor carrier of passengers,

under contract with a governmental

agency to provide transportation of

prisoners in interstate commerce, be

allowed to operate with security bars

covering the emergency push-out

windows and with locked emergency

door exits?

Guidance: Yes. Even when the

transportation is performed by a

contract carrier, the welfare, safety, and

security of the prisoners is under the

authority of the governmental

corrections agency and, thus, the agency

may require additional security

measures. For these types of operations,

a carrier may meet the special security

requirements of the governmental

corrections agency regarding emergency

exits. However, CMVs that have been

modified to meet the security

requirements of the corrections agency

may not be used for other purposes that

are subject to the FMCSRs unless they

meet the emergency exit requirements.

Section 393.65 All Fuel Systems

Question 1: May a fuel fill pipe

opening be placed above the passenger

floor level if it is not physically within

the passenger compartment?

Guidance: Yes. In addition, the fill

pipe may intrude into the passenger

compartment as long as the fill pipe

opening complies with § 393.65(b)(4),

and the fill pipe is protected by a

housing or covering to prevent leakage

of fuel or fumes into the passenger

compartment.

Question 2: Must a motor vehicle that

meets the definition of a ‘‘commercial

motor vehicle’’ in § 390.5 because it

transports hazardous materials in a

quantity requiring placarding under the

Hazardous Materials Regulations (49

CFR parts 171–180) comply with the

fuel system requirements of Subpart E of

Part 393, even though it has a gross

vehicle weight rating (GVWR) of 10,000

pounds or less?

Guidance: No. FMVSS No. 301

contains fuel system integrity

requirements for passenger cars and

multipurpose passenger vehicles,

trucks, and buses that have a GVWR of

10,000 pounds or less and use fuel with

a boiling point above 0° Celsius (32°

Fahrenheit). Subpart E of part 393 was

issued to provide fuel system

requirements to cover motor vehicles

with a GVWR of 10,001 or more pounds.

The fuel systems of placarded motor

vehicles with a GVWR of less than

10,001 pounds are adequately addressed

by FMVSS No. 301 and compliance

with subpart E of part 393 would be

redundant. However, commercial motor

vehicles that are not covered by FMVSS

No. 301 must continue to comply with

subpart E of part 393.

Section 393.67 Liquid Fuel Tanks

Question 1: May a properly vented

fuel cap be used on a fuel tank equipped

with another fuel venting system?

Guidance: Yes (see § 393.3).

Question 2: Do the FMCSRs specify a

particular pressure relief system?

Guidance: No, but the performance

standards of § 393.67(d) must be met.

Question 3: What standards under the

FMCSRs must be met when a liquid fuel

tank is repaired or replaced?

Guidance: A replacement/repaired

tank must meet the applicable standards

in § 393.67.

Section 393.70 Coupling Devices and

Towing Methods, Except for DriveawayTowaway Operations

Question 1: Is there a minimum

number of fasteners required to fasten

the upper fifth wheel plate to the frame

of a trailer?

Guidance: The FMCSRs do not

specify a minimum number of fasteners.

However, the industry recommends that

a minimum of ten 5⁄8 inch bolts be used.

If 1⁄2 inch bolts are used, the industry

recommends at least 14 bolts. The CVSA

has adopted these industry standards as

a part of its vehicle out-of-service

criteria.

Question 2: When two safety chains

are used, must the ultimate combined

breaking strength of each chain be equal

to the gross weight of the towed

vehicle(s) or would the requirements be

met if the combined breaking strength of

the two chains is equal to the gross

weight of the towed vehicle(s)?

Guidance: If the ultimate combined

breaking strength of the two chains is

equal to the gross weight of the towed

vehicle(s), the requirements of

§ 393.70(d) are satisfied. It should be

noted that some States may have more

stringent requirements for safety chains.

Question 3: Section 393.70(d) requires

that every full trailer must be coupled

to the frame, or an extension of the

frame, of the motor vehicle which tows

it with one or more safety devices to

prevent the towed vehicle from breaking

loose in the event the tow-bar fails or

becomes disconnected. The safety

device must be connected to the towed

and towing vehicles and to the tow-bar

in a manner which prevents the tow-bar

from dropping to the ground in the

event it fails or becomes disconnected.

Would the use of a pair of safety chains/

cables between the towing vehicle and

the front of a fixed-length draw bar, or

an extendible draw bar, with a separate

pair of safety chains/cables between the

end of the draw bar and the front of the

towed vehicle meet the requirements of

§ 393.70(d)?

Guidance: Generally, separate safety

devices at the front and rear of the draw

bar could be used to satisfy the

requirements of § 393.70(d) provided

the safety devices are attached to the

drawbar and the vehicles in a manner

that prevents the drawbar from

dropping to the ground in the event that

it fails or becomes disconnected. Also,

the arrangement of the safety device(s)

must be such that the vehicles will not

separate if the draw bar fails or becomes

disconnected.

If the drawbar design is such that

bolts, connecting pins, etc., are used to

connect structural members of the
16418 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

drawbar, and are located at or near the

midpoint of the drawbar (beyond the

attachment points for the safety chain at

the ends of the draw bar) the safety

devices would have to extend from

either the frame of the towed or towing

vehicle to a point beyond the bolts,

connecting pins or similar devices.

In the case of an extendible draw bar

or reach, if a separate safety device(s) is

used for the front and rear of the

drawbar, a means must be provided to

ensure that the drawbar will not

separate at the movable portion of the

drawbar. The use of welded tube stops

would satisfy the intent of § 393.70(d) if

the ultimate strength of the welds

exceeds the impact forces associated

with the drawbar extending suddenly

with a fully loaded trailer attached.

Section 393.71 Coupling Devices and

Towing Methods, Driveaway-Towaway

Operations

Question 1: May a fifth wheel be

considered as a coupling device when

towing a semi-trailer in a driveawaytowaway operation?

Guidance: Yes. Section 393.71(g)

requires the use of a tow-bar or a saddlemount. Since a saddle-mount performs

the function of a conventional fifth

wheel, the use of a fifth wheel is

consistent with the requirements of this

section.

Section 393.75 Tires

Question 1: If a CMV has a defective

tire, may the driver remove the defective

tire from the axle and drive with three

tires on an axle instead of four?

Guidance: Yes, provided the weight

on all of the remaining tires does not

exceed the maximum allowed under

§ 393.75(f).

Question 2: May a CMV be operated

with tires that carry a greater weight

than the weight marked on the sidewall

of the tires?

Guidance: Yes, but only if the CMV is

being operated under the terms of a

State-issued special permit, and at a

reduced speed that is appropriate to

compensate for tire loading in excess of

the rated capacity.

Question 3: May a vehicle transport

HM when equipped with retreaded

tires?

Guidance: Yes. The only CMV that

may not utilize retreaded tires is a bus,

and then only on its front wheels.

Question 4: May tires be filled with

materials other than air (e.g., silicone,

polyurethane)?

Guidance: Section 393.75 does not

prohibit the use of tires filled with

material other than air. However,

§ 393.3 may prohibit the use of such

tires under certain circumstances. Some

substances used in place of air in tires

may not maintain a constant physical

state at different temperatures. While

these substances are solid at lower

temperatures, the increase in

temperature from highway use may

result in the substance changing from a

solid to a liquid. The use of a substance

which could undergo such a change in

its physical characteristics is not safe,

and is not in compliance with § 393.3.

Section 393.76 Sleeper Berths

Question 1: If a compartment in a

CMV is no longer used as a sleeper

berth, must it be maintained and

equipped as a sleeper berth as required

in § 393.76?

Guidance: No.

Section 393.78 Windshield Wipers

Question 1: Are windshield washer

systems required?

Guidance: No, only windshield

wipers are required.

Section 393.81 Horn

Question 1: Do the FMCSRs specify

what type of horn is to be used on a

CMV?

Guidance: No.

Question 2: Are there established

criteria in the FMCSRs to determine the

minimum sound level of horns on

CMVs?

Guidance: No.

Section 393.82 Speedometer

Question 1: What does the phrase

‘‘reasonable accuracy’’ mean?

Guidance: ‘‘Reasonable accuracy’’ is

interpreted to mean accuracy to within

plus or minus 5 mph at a speed of 50

mph.

Section 393.83 Exhaust System

Question 1: Is a heat shield mandatory

on a vertical exhaust stack?

Guidance: No. However, § 393.83

requires the placement of the exhaust

system in such a manner as to prevent

the burning, charring, or damaging of

the electrical wiring, the fuel supply, or

any combustible part of the CMV.

Question 2: Does § 393.83 specify the

type of exhaust system, vertical or

horizontal, to be used on trucks or truck

tractors?

Guidance: No.

Section 393.87 Flags on Projecting

Loads

Question 1: May a triangular-shaped

flag or device be used by itself to mark

an oversized load?

Guidance: No. However, nothing

prohibits using a triangular-shaped flag

in conjunction with the prescribed flag.

Section 393.88 Television Receivers

Question 1: Does § 393.88 restrict the

use of closed circuit monitor devices

being used as a safety viewing system

that would eliminate blind-side motor

carrier accidents?

Guidance: No. The restriction of this

section would not apply because the

device cannot receive television

broadcasts or be used for the viewing of

video tapes.

Section 393.89 Buses, Drive Shaft

Protection

Question 1: For the purposes of

§ 393.89, would a spline and yoke that

is secured by a nut be considered a

sliding connection?

Guidance: No. To be considered a

sliding connection, the spline must be

able to move within the sleeve. When

the end of the spline is secured by a nut,

it no longer has that freedom.

Question 2: On multiple drive shaft

buses, does § 393.89 require that all

segments of the drive shaft be protected

no matter the segments’ length?

Guidance: Yes. Each drive shaft must

have one guard or bracket for each end

of a shaft which is provided with a

sliding connection (spline or other such

device).

Question 3: How does an existing

pillow bearing (shaft support) on a

multiple driveshaft system affect the

requirement?

Guidance: It does not affect the

requirement. It is part of the

requirement.

Section 393.92 Buses, Marking

Emergency Doors

Question 1: Is a contractor-operated

school bus operating in interstate

commerce required to have emergency

lights over the exit door?

Guidance: Yes. Any bus used in

interstate commerce for other than

school bus operations, as defined in

§ 390.5, is subject to the FMCSRs.

Section 393.93 Seats, Seat Belt

Assemblies, and Seat Belt Assembly

Anchorages

Question 1: If a CMV, other than a

motorcoach, is equipped with a

passenger seat, is a seat belt required for

the passenger seat?

Guidance: Yes.

Section 393.95 Emergency Equipment

on all Power Units

Question 1: Are pressure gauges the

only acceptable means for a visual

determination that a fire extinguisher is

fully charged?

Guidance: No, as long as there is some

means to permit a visual determination

that a fire extinguisher is fully charged.
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16419

Section 393.100 General Rules for

Protection Against Shifting or Falling

Cargo

Question 1: When securing cargo, is

the use of a tiedown every 10 linear feet,

or fraction thereof, adequate?

Guidance: Yes, as long as the

aggregate strength of the tiedowns is

equal to the requirements of § 393.102,

and each article is secured.

Question 2: Are CMVs transporting

metal objects required to use option C?

Guidance: Only those CMVs which

cannot comply with options A, B, or D,

are required to conform to option C (see

§ 393.100(c)).

Question 3: Are the requirements of

§ 393.100 the only cargo securement

requirements motor carriers must

comply with?

Guidance: No. A motor carrier, when

transporting cargo, must comply with

all the applicable cargo securement

requirements of subpart I and § 392.9.

Question 4: Do the rules for protection

against shifting or falling cargo apply to

CMVs with enclosed cargo areas?

Guidance: Yes. All CMVs transporting

cargo must comply with the applicable

provisions of §§ 393.100–393.106

(subpart I) to prevent the shifting or

falling of cargo aboard the vehicle.

Question 5: How many tiedowns are

required for the transportation of logs on

pole trailers with trip-bolsters or other

stanchions?

Guidance: The regulations do not

specify a minimum number of tiedowns.

Section 393.100(b) provides motor

carriers with several options for

complying with § 393.100. Although

option B specifically addresses the use

of tiedowns for each 10 linear feet of

lading or fraction thereof (with certain

exceptions), option D indicates the

motor carrier may use ‘‘other means

* * * which are similar to, and at least

as effective * * *’’ as options A, B, and

C. Therefore, the trip-bolsters or other

stanchions in conjunction with

securement devices meeting the

requirements of § 393.102 may

(depending on the amount by which the

logs exceed the length of the trailer) be

used to satisfy option D.

Question 6: Are logs which are

bundled together with tiedowns and

transported on pole trailers with tripbolsters or stanchions required to be

fastened to the vehicle?

Guidance: Yes. Generally, cargo is not

considered to be secured in accordance

with subpart I of part 393 unless

tiedowns or other securement devices

prevent the cargo from moving relative

to the vehicle. Two rules in § 393.100

are directly applicable to the

transportation of logs on a pole trailer.

Section 393.100(b)(2), Option B,

requires one tiedown assembly for each

10 linear feet of lading or fraction

thereof. However, ‘‘a pole trailer * * *

is required only to have two * * * of

those tiedown assemblies at each end of

the trailer,’’ i.e., at the stanchions,

because the cargo cannot effectively be

secured at mid-trailer where its

structure is limited to the pole or boom.

Section 393.100(b)(4), Option D,

allows the motor carrier to use a

securement system that is similar to,

and at least as effective as Option B.

Section 393.100(d) states that the

rules in § 393.100 do not apply to the

transportation of ‘‘one or more articles

which, because of their size, shape, or

weight, must be carried on special

purpose vehicles or must be fastened by

special methods.’’ However, since pole

trailers are explicitly included in

§ 393.100(b)(2), they are not special

purpose vehicles and logs must be

secured in accordance with

§ 393.100(b).

Section 393.102 Securement Systems

Question 1: Does § 393.102(b) prohibit

the use of securement devices for which

manufacturing standards have not been

incorporated by reference?

Guidance: Section 393.102(b) requires

that chain, wire rope, synthetic

webbing, cordage, and steel strapping

meet minimum manufacturing

standards. It does not, however, prohibit

the use of other types of securement

devices or establish manufacturing

standards for those devices. Therefore, if

the securement device(s) has an

aggregate working load limit of at least

1/2 the weight of the article, and the

load is secured to prevent it from

shifting or falling from the vehicle,

§§ 393.100 and 393.102(b) would be

satisfied.

If the cargo is not firmly braced

against a front-end structure that

conforms to the requirements of

§ 393.106, the securement system would

have to provide protection against

longitudinal movement [§ 393.104(a)]. If

the load may shift sideways in transit

then § 393.104(b) would also be

applicable.

Question 2: Does § 393.102(b) require

that securement devices be marked or

labeled with their working load limit or

any other information?

Guidance: No. Although § 393.102(b)

requires chain, wire rope, synthetic

webbing, cordage, and steel strapping

tiedowns to meet applicable

manufacturing standards, it explicitly

excludes marking identification

provisions of those manufacturing

standards. Since § 393.102(b) does not

establish manufacturing standards or

marking requirements for other types of

securement devices, such devices are

not required to be marked with their

working load limit.

Section 393.106 Front-end Structure

Question 1: When describing a

headerboard or cab protection device,

the regulations state that similar devices

may be used. What is meant by the term

‘‘similar devices’’?

Guidance: The term ‘‘similar devices’’

has reference to devices equivalent in

strength and function, though not

necessarily in appearance and

construction, to headerboards.

Section 393.201 Frames

Question 1: Are crossmembers of

CMVs considered part of the frame?

Guidance: Yes.

Question 2: Does § 393.201 of the

FMCSRs apply to trailers?

Guidance: No. Section 393. 201 is

specific to buses, trucks, and truck

tractors.

Question 3: Are welded repairs or

modifications to the frame of a CMV

violations of the FMCSRs?

Guidance: Welding would not be a

violation of the FMCSRs unless the

process used for the metals being

welded or the location of the weld

reduced the safety of operation of the

vehicle. The safety of a repaired and/or

modified vehicle would depend on the

structural design of the frame, as well as

the modifications performed. The

manufacturer of the vehicle should be

contacted for assistance.

Special Topics—CMV Parts and

Accessories

Question 1: Do tires marked ‘‘NHS’’

(not for highway service) mean that

highway use is prohibited by § 393.75?

Guidance: No, provided the use of

such tires does not decrease the safety

of operations (see Periodic Inspection

Requirements, Appendix G to subpart

B).

PART 395—HOURS OF SERVICE OF

DRIVERS

Sections Interpreted

395.1 Scope of the Rules in This Part

395.2 Definitions

395.3 Maximum Driving and On-Duty Time

395.8 Driver’s Record of Duty Status

395.13 Drivers Declared Out of Service

395.15 Automatic On-Board Recording

Devices

Section 395.1 Scope of the Rules in

This Part

Question 1: What hours-of-service

regulations apply to drivers operating

between the United States and Mexico

or between the United States and

Canada?
16420 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

Guidance: When operating CMVs, as

defined in § 390.5, in the United States,

all hours-of-service provisions apply to

all drivers of CMVs, regardless of

nationality, point of origin, or where the

driving time or on-duty time was

accrued.

Question 2: If a driver invokes the

exception for adverse driving

conditions, does a supervisor need to

sign the driver’s record of duty status

when he/she arrives at the destination?

Guidance: No.

Question 3: May a driver use the

adverse driving conditions exception if

he/she has accumulated driving time

and on-duty (not driving) time, that

would put the driver over 15 hours or

over 70 hours in 8 consecutive days?

Guidance: No. The adverse driving

conditions exception applies only to the

10-hour rule.

Question 4: Are there allowances

made in the FMCSRs for delays caused

by loading and unloading?

Guidance: No. Although the

regulations do make some allowances

for unforeseen contingencies such as in

§ 395.1(b), adverse driving conditions,

and § 395.1(b)(2), emergency conditions,

loading and unloading delays are not

covered by these sections.

Question 5: How may a driver utilize

the adverse driving conditions

exception or the emergency conditions

exception as found in § 395.1(b), to

preclude an hours of service violation?

Guidance: An absolute prerequisite

for any such claim must be that the trip

involved is one which could normally

and reasonably have been completed

without a violation and that the

unforeseen event occurred after the

driver began the trip.

Drivers who are dispatched after the

motor carrier has been notified or

should have known of adverse driving

conditions are not eligible for the two

hours additional driving time provided

for under § 395.1(b), adverse driving

conditions. The term ‘‘in any

emergency’’ shall not be construed as

encompassing such situations as a

driver’s desire to get home, shippers’

demands, market declines, shortage of

drivers, or mechanical failures.

Question 6: What does ‘‘servicing’’ of

the field operations of the natural gas

and oil industry cover?

Guidance: Servicing of field

operations, as described by the ICC

report issued with this exemption,

covers those services generally

performed by specialized companies

supporting the petroleum drilling and

producing industry, ‘‘including testing,

mudfilling, cementing, hydraulic

fracturing, voltage, logging, and

resistivity measurements, and cleaning

of industrial equipment, as the

particular requirement might arise in

the normal course of well digging or

maintenance operations * * *’’ (89

M.C.C. 19, at 28, March 29, 1962). Water

servicing companies, whose operations

are exclusive to servicing the natural gas

and oil industry, are also covered by the

provisions of § 395.1(d).

Section 395.1(d) applies only to

situations involving drilling or the

operation of wells. It does not apply to

exploration activities.

Question 7: What is considered

‘‘oilfield equipment’’ for the purposes of

395.1(d)(1)?

Guidance: Oilfield equipment is not

specifically defined in this section.

However, its meaning is broader than

the ‘‘specially constructed’’ commercial

motor vehicles referred to in

§ 395.1(d)(2), and may encompass a

spectrum of equipment ranging from an

entire vehicle to hand-held devices.

Question 8: What kinds of oilfield

equipment may drivers operate while

taking advantage of the special rule in

§ 395.1(d)(2)?

Guidance: The special rule in

§ 395.1(d)(2) applies only to drivers

transporting the equipment identified

by the former Interstate Commerce

Commission (now part of the Federal

Highway Administration) in a 1962

report to accompany the oilfield rule.

The report indicated the specialized

equipment normally consists of heavy

machinery permanently mounted on

commercial motor vehicles, designed to

fill a specific need.

Question 9: Are drivers required to be

dedicated permanently to the oilfield

industry, or must they exclusively

transport oilfield equipment or service

the field operations of the industry only

for each eight-day (or shorter) period

ended by an off-duty period of 24 or

more consecutive hours?

Guidance: A driver must exclusively

transport oilfield equipment or service

the field operations of the industry for

each eight-day (or shorter) period before

his/her off-duty period of 24 or more

consecutive hours. However, he/she

must be in full compliance with the

requirements of 395.3(b) before driving

other commercial motor vehicles not

used to service the field operations of

the natural gas or oil industry.

Question 10: A driver is used

exclusively to transport materials (such

as sand or water) which are used

exclusively to service the field

operations of the natural gas or oil

industry. Occasionally, the driver has

leftover materials that must be

transported back to a motor carrier

facility or service depot. Would such a

return trip be covered by § 395.1(d)(1)?

Guidance: Yes. Transporting excess

materials back to a facility from the well

site is part of the servicing operations.

However, such servicing operations are

limited to transportation back and forth

between the service depot or motor

carrier facility and the field site.

Transportation of materials from one

depot to another, from a railhead to a

depot, or from a motor carrier terminal

to a depot, is not considered to be in

direct support of field operations.

Question 11: May specially trained

drivers of specially constructed oil well

servicing vehicles cumulate the 8

consecutive hours off duty required by

§ 395.3 by combining off-duty time or

sleeper-berth time at a natural gas or oil

well site with off-duty time or sleeperberth time while en route to or from the

well?

Guidance: These drivers may

cumulate the required 8 consecutive

hours off duty by combining two

separate periods, each at least 2 hours

long, of off-duty time or sleeper-berth

time at a natural gas or oil well location

with sleeper-berth time in a CMV while

en route to or from such a location.

They may also cumulate the required 8

consecutive hours off duty by

combining an off-duty period of at least

2 hours at a well site with: (1) Another

off-duty period at the well site that,

when added to the first such period,

equals at least 8 hours, or (2) a period

in a sleeper-berth, either at or away from

the well site, or in other sleeping

accommodations at the well site, that,

when added to the first off-duty period,

equals at least 8 hours.

However, such drivers may not

combine a period of less than 8 hours

off duty away from a natural gas or oil

well site with another period of less

than 8 hours off duty at such well sites.

The special provisions for drivers at

well sites are strictly limited to those

locations.

The following table indicates what

types of off-site and on-site time periods

may be combined.
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16421

On Site Off Duty Time On Site Sleeper Berth On Site Other Sleeping Accommodation

Away from Site Off Duty Time

Away from Site Sleeper Berth

Time.

X Combination must be 8 or more

hours.

X Combination must be 8 or more

hours.

X Combination must be 8 or more

hours.

Away from Site Other Sleeping

Accommodation

Question 12: What constitutes the

100-air-mile radius exemption?

Guidance: The term ‘‘air mile’’ is

internationally defined as a ‘‘nautical

mile’’ which is equivalent to 6,076 feet

or 1,852 meters. Thus, the 100 air miles

are equivalent to 115.08 statute miles or

185.2 kilometers.

Question 13: What documentation

must a driver claiming the 100-air-mile

radius exemption [§ 395.1(e)] have in

his/her possession?

Guidance: None.

Question 14: Must a motor carrier

retain 100-air-mile driver time records

at its principal place of business?

Guidance: No. However, upon request

by an authorized representative of the

FHWA or State official, the records must

be produced within a reasonable period

of time (2 working days) at the location

where the review takes place.

Question 15: May an operation that

changes its normal work-reporting

location on an intermittent basis utilize

the 100-air-mile radius exemption?

Guidance: Yes. However, when the

motor carrier changes the normal

reporting location to a new reporting

location, that trip (from the old location

to the new location) must be recorded

on the record of duty status because the

driver has not returned to his/her

normal work reporting location.

Question 16: May a driver use a

record of duty status form as a time

record to meet the requirement

contained in the 100-air-mile radius

exemption?

Guidance: Yes, provided the form

contains the mandatory information.

Question 17: Is the ‘‘mandatory

information’’ referred to in the previous

guidance that required of a normal

RODS under § 395.8(d) or that of the

100-air-mile radius exemption under

§ 395.1(e)(5)?

Guidance: The ‘‘mandatory

information’’ referred to is the time

records specified by § 395.1(e)(5) which

must show: (1) The time the driver

reports for duty each day; (2) the total

number of hours the driver is on duty

each day; (3) the time the driver is

released from duty each day; and (4) the

total time for the preceding 7 days in

accordance with § 395.8(j)(2) for drivers

used for the first time or intermittently.

Using the RODS to comply with

§ 395.1(e)(5) is not prohibited as long as

the RODS contains driver identification,

the date, the time the driver began work,

the time the driver ended work, and the

total hours on duty.

Question 18: Must the driver’s name

and each date worked appear on the

time record prepared to comply with

§ 395.1(e), 100-air-mile radius driver?

Guidance: Yes. The driver’s name or

other identification and date worked

must be shown on the time record.

Question 19: May drivers who work

split shifts take advantage of the 100-airmile radius exemption found at

§ 395.1(e)?

Guidance: Yes. Drivers who work

split shifts may take advantage of the

100-air-mile radius exemption if: 1. The

drivers operate within a 100-air-mile

radius of their normal work-reporting

locations; 2. The drivers return to their

work-reporting locations and are

released from work at the end of each

shift and each shift is less than 12

consecutive hours; 3. The drivers are

off-duty for more than 8 consecutive

hours before reporting for their first shift

of the day and spend less than 12 hours,

in the aggregate, on-duty each day; 4.

The drivers do not exceed a total of 10

hours driving time and are afforded 8 or

more consecutive hours off-duty prior to

their first shift of the day; and 5. The

employing motor carriers maintain and

retain the time records required by

395.1(e)(5).

Question 20: A company prepares and

maintains time records for drivers

classified as 100-air-mile radius drivers.

The drivers usually do not work every

day of the week. Does the motor carrier

have to maintain time records for the

days the drivers do not work?

Guidance: The motor carrier must

maintain time records stating that the

drivers were off-duty during the days

the drivers did not work. However, if

the drivers are off consecutive days, the

employer may prepare a single time

record stating the days each driver was

off-duty.

Question 21: May a driver who is

taking advantage of the 100-air-mile

radius exemption in § 395.1(e) be

intermittently off-duty during the period

away from the work-reporting location?

Guidance: Yes, a driver may be

intermittently off-duty during the period

away from the work-reporting location

provided the driver meets all

requirements for being off-duty. If the

driver’s period away from the workreporting location includes periods of

off-duty time, the time record must

show both total on-duty time and total

off-duty time during his/her tour of

duty. In any event, the driver must

return to the work-reporting location

and be released from work within 12

consecutive hours.

Question 22: When a driver fails to

meet the provisions of the 100-air-mile

radius exemption (§ 395.1(e)), is the

driver required to have copies of his/her

records of duty status for the previous

seven days? Must the driver prepare

daily records of duty status for the next

seven days?

Guidance: The driver must only have

in his/her possession a record of duty

status for the day he/she does not

qualify for the exemption. A driver must

begin to prepare the record of duty

status for the day immediately after he/

she becomes aware that the terms of the

exemption cannot be met. The record of

duty status must cover the entire day,

even if the driver has to record

retroactively changes in status that

occurred between the time that the

driver reported for duty and the time in

which he/she no longer qualified for the

100 air-mile radius exemption. This is

the only way to ensure that a driver

does not claim the right to drive 10

hours after leaving his/her exempt

status, in addition to the hours already

driven under the 100-air-mile

exemption.

Question 23: A driver returns to his/

her normal work reporting location from

a location beyond the 100-air-mile

radius and goes off duty for 7 hours.

May the driver return to duty after being

off-duty for 7 hours and utilize the 100-

air-mile radius exemption?

Guidance: No. The 7-hour off-duty

period has not met the requirement of

8 consecutive hours separating each 12-

hour on-duty period. The driver must

first accumulate 8 consecutive hours offduty before operating under the 100-airmile radius exemption.

Question 24: Is the exemption

contained in § 395.1(f) concerning

department store deliveries during the

period from December 10 to December
16422 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

25 limited to only drivers employed by

department stores?

Guidance: No. The exemption applies

to all drivers engaged solely in making

local deliveries from retail stores and/or

retail catalog businesses to the ultimate

consumer, when driving solely within a

100-air-mile radius of the driver’s workreporting location, during the dates

specified.

Question 25: May time spent in

sleeping facilities being transported as

cargo (e.g., boats, campers, travel

trailers) be recorded as sleeper berth

time?

Guidance: No, it cannot be recorded

as sleeper berth time.

Question 26: May sleeper berth time

and off-duty periods be combined to

meet the 8-hour off-duty requirement?

Guidance: Yes, as long as the 8-hour

period is consecutive and not broken by

on-duty or driving activities. This does

not apply to drivers at natural gas or oil

well locations who may separate the

periods.

Question 27: May a driver record

sleeper berth time as off-duty time on

line one of the record of duty status?

Guidance: No. The driver’s record of

duty status must accurately reflect the

driver’s activities.

Question 28: After accumulating 8

consecutive hours of off-duty time, a

driver spends 2 hours in the sleeper

berth. The driver then drives a CMV for

10 hours, then spends 6 hours in the

sleeper berth. May the driver combine

the two sleeper berth periods to meet

the required 8 consecutive hours of offduty time per § 395.1(h), then drive for

up to 10 more hours?

Guidance: No. The 10 hours of

driving time between the first and

second sleeper berth periods must be

considered in determining the amount

of time that the driver may drive after

the second sleeper berth period. Sleeper

berths are intended to be used between

periods of on-duty time. When a driver

has already been off duty for more than

8 consecutive hours, and has therefore

had adequate opportunity to rest, he/she

may not ‘‘save’’ additional hours before

going on duty and add them to the next

sleeper berth period. In short, a driver

must be on duty before he/she begins to

accumulate sleeper berth time. The

driver in your scenario is operating in

violation of the hours of service

regulations for the entire second 10-

hour driving period until that driver is

able to secure at least 8 consecutive

hours of off-duty time.

Section 395.2 Definitions

Question 1: A company told all of its

drivers that it would no longer pay for

driving from the last stop to home and

that this time should not be shown on

the time cards. Is it a violation of the

FMCSRs to operate a CMV from the last

stop to home and not show that time on

the time cards?

Guidance: The FMCSRs do not

address questions of pay. All the time

spent operating a CMV for, or at the

direction of, a motor carrier must be

recorded as driving time.

Question 2: What conditions must be

met for a CMV driver to record meal and

other routine stops made during a tour

of duty as off-duty time?

Guidance: 1. The driver must have

been relieved of all duty and

responsibility for the care and custody

of the vehicle, its accessories, and any

cargo or passengers it may be carrying.

2. The duration of the driver’s relief

from duty must be a finite period of

time which is of sufficient duration to

ensure that the accumulated fatigue

resulting from operating a CMV will be

significantly reduced.

3. If the driver has been relieved from

duty, as noted in (1) above, the duration

of the relief from duty must have been

made known to the driver prior to the

driver’s departure in written

instructions from the employer. There

are no record retention requirements for

these instructions on board a vehicle or

at a motor carrier’s principal place of

business.

4. During the stop, and for the

duration of the stop, the driver must be

at liberty to pursue activities of his/her

own choosing and to leave the premises

where the vehicle is situated.

Question 3: A driver has been given

written permission by his/her employer

to record meal and other routine stops

made during a tour of duty as off-duty

time. Is the driver required to record

such time as off-duty, or is it the driver’s

decision whether such time is recorded

as off-duty?

Guidance: It is the employer’s choice

whether the driver shall record stops

made during a tour of duty as off-duty

time. However, employers may permit

drivers to make the decision as to how

the time will be recorded.

Question 4: A driver has been given

written permission by his/her employer

to record meal and other routine stops

made during a tour of duty as off-duty

time. Is the driver allowed to record his

stops during a tour of duty as off-duty

time when the CMV is laden with HM

and the CMV is parked in a truck stop

parking lot?

Guidance: Drivers may record meal

and other routine stops made during a

tour of duty as off-duty time, except

when a CMV is laden with explosive

HM classified as hazard divisions 1.1,

1.2, or 1.3 (formerly Class A or B

explosives). In addition, when HM

classified under hazard divisions 1.1,

1.2, or 1.3 are on a CMV, the employer

and the driver must comply with § 397.5

of the FMCSRs.

Question 5: Do telephone calls to or

from the motor carrier that momentarily

interrupt a driver’s rest period

constitute a change of the driver’s duty

status?

Guidance: Telephone calls of this

type do not prevent the driver from

obtaining adequate rest. Therefore, the

FHWA does not consider these brief

telephone calls to be a break in the

driver’s off-duty status.

Question 6: If a driver is required by

a motor carrier to carry a pager/beeper

to receive notification to contact the

motor carrier for a duty assignment,

how should this time be recorded?

Guidance: The time is to be recorded

as off-duty.

Question 7: May a sleeper berth be

used for a period of less than 2 hours’

duration?

Guidance: Yes. The sleeper berth may

be used for such periods of inactivity.

Periods of time of less than 2 hours

spent in a sleeper berth may not be used

to accumulate the 8 hours of off-duty

time required by § 395.3 of the FMCSRs.

Question 8: If a ‘‘driver trainer’’

occasionally drives a CMV, thereby

becoming a ‘‘driver’’ (regardless of

whether he/she is paid for driving),

must the driver record all nondriving

(training) time as on-duty (not driving)?

Guidance: Yes.

Question 9: A driver drives on streets

and highways during the week and

jockeys CMVs in the yard (private

property) on weekends. How is the yard

time to be recorded?

Guidance: On-duty (driving).

Question 10: How does compensation

relate to on-duty time?

Guidance: The fact that a driver is

paid for a period of time does not

always establish that the driver was onduty for the purposes of part 395 during

that period of time. A driver may be

relieved of duty under certain

conditions and still be paid.

Question 11: Must nontransportationrelated work for a motor carrier be

recorded as on-duty time?

Guidance: Yes. All work for a motor

carrier, whether compensated or not,

must be recorded as on-duty time. The

term ‘‘work’’ as used in the definition of

‘‘on-duty time’’ in § 395.2 of the

FMCSRs is not limited to driving or

other nontransportation-related

employment.

Question 12: How should time spent

in transit on a ferry boat be recorded?

Guidance: Time spent on a ferry by

drivers may be recorded as off-duty time
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16423

if they are completely relieved from

work and all responsibility and

obligation to the motor carriers for

which they drive. This relief must be

consistent with existing regulations of

the ferry company and the U.S. Coast

Guard.

Question 13: What is the duty status

of a co-driver (truck) who is riding

seated next to the driver?

Guidance: On-duty (not driving).

Question 14: How much a CMV driver

driving a non-CMV at the direction of a

motor carrier record this time?

Guidance: If CMV drivers operate

motor vehicles with GVWRs of 10,000

pounds or less at the direction of a

motor carrier, the FHWA requires those

drivers to maintain records of duty

status and record such time operating as

on-duty (not driving).

Question 15: How much the time

spent operating a motor vehicle on the

rails (roadrailers) be recorded?

Guidance: On-duty (not driving).

Question 16: Must a driver engaged in

union activities affecting the employing

motor carrier record such time as onduty (not driving) time?

Guidance: The union activities of a

driver employed by a unionized motor

carrier must be recorded as on-duty (not

driving) time if the collective bargaining

agreement requires the motor carrier to

pay the driver for time engaged in such

activities. Otherwise these activities

may be recorded as off duty time unless

they are combined with normal duties

performed for the carrier.

Efforts by a driver to organize coworkers employed by a non-unionized

motor carrier, either on the carrier’s

premises or elsewhere, may be recorded

as off duty time unless the organizing

activities are combined with normal

duties performed for the carrier.

Question 17: How is the 50 percent

driving time in the definition of ‘‘driversalesperson’’ in § 395.2 determined?

Guidance: The driving time is

determined on a weekly basis. The

driver must be employed solely as a

driver-salesperson. The driversalesperson may not participate in any

other type of work activity.

Question 18: May a driver change to

and from a driver-salesman status at any

time?

Guidance: Yes, if the change is made

on a weekly basis.

Question 19: May the time a driver

spends attending safety meetings,

ceremonies, celebrations, or other

company-sponsored safety events be

recorded as off-duty time?

Guidance: Yes, if attendance is

voluntary.

Question 20: How must a driver

record time spent on-call awaiting

dispatch?

Guidance: The time that a driver is

free from obligations to the employer

and is able to use that time to secure

appropriate rest may be recorded as offduty time. The fact that a driver must

also be available to receive a call in the

event the driver is needed at work, even

under the threat of discipline for nonavailability, does not by itself impair the

ability of the driver to use this time for

rest.

If the employer generally requires its

drivers to be available for call after a

mandatory rest period which complies

with the regulatory requirement, the

time spent standing by for a workrelated call, following the required offduty period, may be properly recorded

as off-duty time.

Question 21: How does a driver

record the hours spent driving in a

school bus operation when he/she also

drives a CMV for a company subject to

the FMCSRs?

Guidance: If the school bus meets the

definition of a CMV, it must be recorded

as driving time.

Question 22: A motor carrier relieves

a driver from duty. What is a suitable

facility for resting?

Guidance: The only resting facility

which the FHWA regulates is the

sleeper berth. The sleeper berth

requirements can be found in § 393.76.

Question 23: How many times may a

motor carrier relieve a driver from duty

within a tour of duty?

Guidance: There is no limitation on

the number of times a driver can be

relieved from duty during a tour of duty.

Question 24: If a driver is transported

by automobile from the point of a

breakdown to a terminal, and then

dispatched on another run, how is the

time spent in the automobile entered on

the record of duty status? How is the

time entered if the driver goes off-duty

once he reaches the terminal?

Guidance: The time spent in the

automobile would be on-duty (not

driving) if dispatched on another run

once he/she reaches the terminal, and

off-duty if he/she is given 8 consecutive

hours off-duty upon reaching the

terminal.

Question 25: When a driver

experiences a delay on an impassable

highway, should the time he/she is

delayed be entered on the record of duty

status as driving time or on-duty (not

driving)?

Guidance: Delays on impassable

highways must be recorded as driving

time because § 395.2 defines ‘‘driving

time’’ as all time spent at the driving

controls of a CMV in operation.

Question 26: Is time spent operating

controls in a CMV to perform an

auxiliary, non-driving function (e.g.,

lifting a loaded container, compacting

waste, etc.) considered driving time?

Does the location of the controls have a

bearing on the answer?

Guidance: The location of the controls

does have a bearing on the answer.

Section 395.2 defines ‘‘driving time’’ as

all time spent at the driving controls of

a CMV in operation. If a driver, seated

at the driving controls of the vehicle, is

able to simultaneously perform the

driving and auxiliary function (for

example, one hand on the steering

wheel and one hand on a control

mechanism), the time spent performing

the auxiliary function must be recorded

as ‘‘driving time.’’ If a driver, seated at

the driving controls of the vehicle, is

unable to simultaneously perform the

driving and auxiliary function, the time

spent performing the auxiliary function

may be recorded as ‘‘on-duty not driving

time.’’

Question 27: A motor carrier has fulltime drivers who are also volunteer fire

fighters. Some of the drivers carry

pagers and leave their normal activities

only when notified of a fire. Others

consistently work 3 to 4 nonconsecutive 24-hour shifts at a fire

station each month, resting between

calls. The drivers receive no monetary

compensation for their work. How

should the time spent on these activities

be logged on the record of duty status

when the drivers return to work?

Guidance: When drivers are free from

obligations to their employers, that time

may be recorded as off-duty time.

Drivers who are allowed by the motor

carrier to leave their normal activities to

fight fires and those who spend full

days in a fire station are clearly off duty.

Their time should be recorded as such.

Question 28: How should time spent

at National Guard meetings and training

sessions be recorded for the hours of

service requirements?

Guidance: A member of a military

reserve component, serving on either an

inactive duty status, such as on a

weekend drill, or in an active duty

status, such as annual training, need

only log as ‘‘on duty’’ time that time

during which he or she is required to

perform work, and not that time during

which he or she is required or permitted

to rest.

Section 395.3 Maximum Driving and

On-duty Time

Question 1: May a motor carrier

switch from a 60-hour/7-day limit to a

70-hour/8-day limit or vice versa?

Guidance: Yes. The only restriction

regarding the use of the 70-hour/8-day

rule is that the motor carrier must have

CMVs operating every day of the week.

The 70-hour/8-day rule is a permissive
16424 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

provision in that a motor carrier with

vehicles operating every day of the week

is not required to use the 70-hour/8-day

rules for calculating its drivers’ hours of

service. The motor carrier may,

however, assign some or all of its

drivers to operate under the 70-hour/8-

day rule if it so chooses. The assignment

of individual drivers to the 60-hour/7-

day or the 70-hour/8-day time rule is

left to the discretion of the motor

carrier.

Question 2: Does a driver, employed

full time by one motor carrier using the

60-hours in 7-days rule, and part-time

by another motor carrier using the 70-

hours in 8-days rule, have the option of

using either rule in computing his hours

of service?

Guidance: No. The motor carrier that

employs the driver on a full-time basis

determines which rule it will use to

comply with § 395.3(b). The driver does

not have the option to select the rule he/

she wishes to use.

Question 3: May a carrier which

provides occasional, but not regular

service on every day of the week, have

the option of the 60 hours in 7 days or

70 hours in 8 days with respect to all

drivers, during the period in which it

operates one or more vehicles on each

day of the week?

Guidance: Yes.

Question 4: A Canadian driver is

subjected to a log book inspection in the

U.S. The driver has logged one or more

13-hour driving periods while in

Canada during the previous 7 days, but

has complied with all the FMCSRs

while operating in the U.S. Has the

driver violated the 10-hour driving

requirement in the U.S.?

Guidance: No. Canadian drivers are

required to comply with the FMCSRs

only when operating in the U.S.

Question 5: May a driver domiciled in

the United States comply with the

Canadian hours of service regulations

while driving in Canada? If so, would

the driving and on-duty time

accumulated in Canada be counted

toward compliance with one or more of

the limits imposed by part 395 when the

driver re-enters the United States?

Guidance: A driver domiciled in the

United States may comply with the

Canadian hours of service regulations

while driving in Canada. Upon reentering the United States, however, the

driver is subject to all of the

requirements of part 395, including the

10- and 15-hour rules, and the 60- or 70-

hour rules applicable to the previous 7

or 8 consecutive days.

In other words, a driver who takes full

advantage of Canadian law may have to

stop driving for a time immediately after

returning to the U.S. in order to restore

compliance with part 395. Despite its

possible effect on decisions a U.S. driver

must make while in Canada, this

interpretation does not involve an

exercise of extraterritorial jurisdiction.

Question 6: If a motor carrier operates

under the 70-hour/8-day rule, does any

aspect of the 60-hour rule apply to its

operations? If a motor carrier operates

under the 60-hour/7-day rule, does any

part of the 70-hour rule apply to its

operations?

Guidance: If a motor carrier operates

7 days per week and chooses to require

all of its drivers to comply with the 70-

hour/8-day rule, the 60-hour/7-day rule

would not be applicable to these

drivers. If this carrier chooses to assign

some or all of its drivers to the 60-hour/

7-day rule, the 70-hour rule would not

be applicable to these drivers.

Conversely, if a motor carrier does not

operate 7 days per week, it must operate

under the 60-hour/7-day rule and the

70-hour rule would not apply to its

operations.

Question 7: What is the liability of a

motor carrier for hours of service

violations?

Guidance: The carrier is liable for

violations of the hours of service

regulations if it had or should have had

the means by which to detect the

violations. Liability under the FMCSRs

does not depend upon actual knowledge

of the violations.

Question 8: Are carriers liable for the

actions of their employees even though

the carrier contends that it did not

require or permit the violations to

occur?

Guidance: Yes. Carriers are liable for

the actions of their employees. Neither

intent to commit, nor actual knowledge

of, a violation is a necessary element of

that liability. Carriers ‘‘permit’’

violations of the hours of service

regulations by their employees if they

fail to have in place management

systems that effectively prevent such

violations.

Section 395.8 Driver’s Record of Duty

Status

Question 1: How should a change of

duty status for a short period of time be

shown on the driver’s record of duty

status?

Guidance: Short periods of time (less

than 15 minutes) may be identified by

drawing a line from the appropriate onduty (not driving) or driving line to the

remarks section and entering the

amount of time, such as ‘‘6 minutes,’’

and the geographic location of the duty

status change.

Question 2: May a rubber stamp

signature be used on a driver’s record of

duty status?

Guidance: No, a driver’s record of

duty status must bear the signature of

the driver whose time is recorded

thereon.

Question 3: If a driver’s record of duty

status is not signed, may enforcement

action be taken on the current day’s

record if it contains false information?

Guidance: Enforcement action can be

taken against the driver even though

that record may not be signed. The

regulations require the driver to keep

the record of duty status current to the

time of last change of duty status

(whether or not the record has been

signed). Also, § 395.8(e) states that

making false reports shall make the

driver and/or the carrier liable to

prosecution.

Question 4: Must drivers, alternating

between interstate and intrastate

commerce, record their intrastate

driving time on their record of duty

status?

Guidance: Yes, to account for all onduty time for the prior 7 or 8 days

preceding an interstate movement.

Question 5: May a driver, being used

for the first time, submit records of duty

status for the preceding 7 days in lieu

of a signed statement?

Guidance: The carrier may accept true

and accurate copies of the driver’s

record of duty status for the preceding

7 days in lieu of the signed statement

required by § 395.8(j)(2).

Question 6: How should multiple

short stops in a town or city be recorded

on a record of duty status?

Guidance: All stops made in any one

city, town, village or municipality may

be computed as one. In such cases the

sum of all stops should be shown on a

continuous line as on-duty (not driving).

The aggregate driving time between

such stops should be entered on the

record of duty status immediately

following the on-duty (not driving)

entry. The name of the city, town,

village, or municipality, followed by the

State abbreviation where all the stops

took place, must appear in the

‘‘remarks’’ section of the record of duty

status.

Question 7: Is the Canadian bilingual

or any other record of duty status form

acceptable in the U.S.?

Guidance: Yes, provided the grid

format and specific information

required are included.

Question 8: May a motor carrier

return a driver’s completed record of

duty status to the driver for correction

of inaccurate or incomplete entries?

Guidance: Yes, although the

regulations do not require a driver to

submit ‘‘corrected’’ records of duty

status. A driver may submit corrected

records of duty status to the motor
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16425

carrier at any time. It is suggested the

carrier mark the second submission

‘‘CORRECTED COPY’’ and staple it to

the original submission for the required

retention period.

Question 9: May a duplicate copy of

a record of duty status be submitted if

an original was seized by an

enforcement official?

Guidance: A driver must prepare a

second original record of duty status to

replace any page taken by an

enforcement official. The driver should

note that the first original had been

taken by an enforcement official and the

circumstances under which it was

taken.

Question 10: What regulation,

interpretation, and/or administrative

ruling requires a motor carrier to retain

supporting documents and what are

those documents?

Guidance: Section 395.8(k)(1) requires

motor carriers to retain all supporting

documents at their principal places of

business for a period of 6 months from

date of receipt.

Supporting documents are the records

of the motor carrier which are

maintained in the ordinary course of

business and used by the motor carrier

to verify the information recorded on

the driver’s record of duty status.

Examples are: Bills of lading, carrier

pros, freight bills, dispatch records,

driver call-in records, gate record

receipts, weight/scale tickets, fuel

receipts, fuel billing statements, toll

receipts, international registration plan

receipts, international fuel tax

agreement receipts, trip permits, port of

entry receipts, cash advance receipts,

delivery receipts, lumper receipts,

interchange and inspection reports,

lessor settlement sheets, over/short and

damage reports, agricultural inspection

reports, CVSA reports, accident reports,

telephone billing statements, credit card

receipts, driver fax reports, on-board

computer reports, border crossing

reports, custom declarations, traffic

citations, overweight/oversize reports

and citations, and/or other documents

directly related to the motor carrier’s

operation, which are retained by the

motor carrier in connection with the

operation of its transportation business.

Supporting documents may include

other documents which the motor

carrier maintains and can be used to

verify information on the driver’s

records of duty status. If these records

are maintained at locations other than

the principal place of business but are

not used by the motor carrier for

verification purposes, they must be

forwarded to the principal place of

business upon a request by an

authorized representative of the FHWA

or State official within 2 business days.

Question 11: Is a driver who works for

a motor carrier on an occasional basis

and who is regularly employed by a

non-motor carrier entity required to

submit either records of duty status or

a signed statement regarding the hours

of service for all on-duty time as ‘‘onduty time’’ as defined by § 395.2?

Guidance: Yes.

Question 12: May a driver use ‘‘whiteout’’ liquid paper to correct a record of

duty status entry?

Guidance: Any method of correction

would be acceptable so long as it does

not negate the obligation of the driver to

certify by his or her signature that all

entries were made by the driver and are

true and correct.

Question 13: Are drivers required to

draw continuous lines between the offduty, sleeper berth, driving, and on-duty

(not driving) lines on a record of duty

status when changing their duty status?

Guidance: No. Under § 395.8(h) the

FMCSRs require that continuous lines

be drawn between the appropriate time

markers within each duty status line,

but they do not require that continuous

lines be drawn between the appropriate

duty status lines when drivers change

their duty status.

Question 14: What documents satisfy

the requirement to show a shipping

document number on a record of duty

status as found in § 395.8(d)(11)?

Guidance: The following are some of

the documents acceptable to satisfy the

requirement: shipping manifests,

invoices/freight bills, trip reports,

charter orders, special order numbers,

bus bills or any other document that

identifies a particular movement of

passengers or cargo.

In the event of multiple shipments, a

single document will satisfy the

requirement. If a driver is dispatched on

a trip, which is subsequently completed,

and then is dispatched on another trip

on that calendar day, two shipping

document numbers or two shippers and

commodities must be shown in the

remarks section of the record of duty

status.

Question 15: If a driver from a foreign

country only operates in the U.S. one

day a week, is he required to keep a

record of duty status for every day?

Guidance: A foreign driver, when in

the U.S., must produce a current record

of duty status, and sufficient

documentation to account for his duty

time for the previous 6 days.

Question 16: Are drivers required to

include their total on-duty time for the

previous 7 to 8 days (as applicable) on

the driver’s record of duty status?

Guidance: No.

Question 17: Can military time be

used on the grid portion of the driver’s

record of duty status?

Guidance: Yes. The references to 9

a.m., 3 p.m., etc. in § 395.8(d)(6) are

examples only. Military time is also

acceptable.

Question 18: Section 395.8(d)(4)

requires that the name of the motor

carrier be shown on the driver’s record

of duty status. If a company owns more

than one motor carrier subject to the

FMCSRs, may the company use logs

listing the names of all such motor

carrier employers and require the driver

to identify the carrier for which he or

she drives?

Guidance: Yes, provided three

conditions are met. First, the driver

must identify his or her motor carrier

employer by a method that would be

visible on a photocopy of the log. A dark

check mark by the carrier’s name would

be acceptable. However, a colored

highlight of the name would not be

acceptable, since these colors are often

transparent to photocopiers.

Second, the driver may check off the

name of the motor carrier employer only

if he or she works for a single carrier

during the 24 hour period covered by

the log.

Third, if the parent company uses

Multiday Logs (Form 139 or 139A), the

log for each day must list all motor

carrier employers and the driver must

identify his or her carrier each day.

Question 19: Regulatory guidance

issued by the Office of Motor Carriers

states that a driver’s record-of-dutystatus (RODS) may be used as the 100

air-mile radius time record ‘‘. . .

provided the form contains the

mandatory information.’’ Is this

‘‘mandatory information’’ that required

of a normal RODS under § 395.8(d) or

that of the 100 air-mile radius

exemption under § 395.1(e)(5)?

Guidance: The ‘‘mandatory

information’’ referred to is the time

records specified by § 395.1(e)(5) which

must show: (1) The time the driver

reports for duty each day; (2) the total

number of hours the driver is on duty

each day; (3) the time the driver is

released from duty each day; and (4) the

total time for the preceding 7 days in

accordance with § 395.8(j)(2) for drivers

used for the first time or intermittently.

Using the RODS to comply with

§ 395.1(e)(5) is not prohibited as long as

the RODS contains driver identification,

the date, the time the driver began work,

the time the driver ended work, and the

total hours on duty.

Question 20: When a driver fails to

meet the provisions of the 100 air-mile

radius exemption (§ 395.1(e)), is the

driver required to have copies of his/her
16426 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

records of duty status for the previous

seven days? Must the driver prepare

daily records of duty status for the next

seven days?

Guidance: The driver must only have

in his/her possession a record of duty

status for the day he/she does not

qualify for the exemption. The record of

duty status must cover the entire day,

even if the driver has to record

retroactively changes in status that

occurred between the time that the

driver reported for duty and the time in

which he/she no longer qualified for the

100 air-mile radius exemption. This is

the only way to ensure that a driver

does not claim the right to drive 10

hours after leaving his/her exempt

status, in addition to the hours already

driven under the 100 air-mile

exemption.

Question 21: What is the carrier’s

liability when its drivers falsify records

of duty status?

Guidance: A carrier is liable both for

the actions of its drivers in submitting

false documents and for its own actions

in accepting false documents. Motor

carriers have a duty to require drivers to

observe the FMCSRs.

Question 22: If a driver logs his/her

duty status as ‘‘driving’’ but makes

multiple short stops (each less than 15

minutes) for on-duty or off-duty

activities, marks a vertical line on the

grid for each stop, and records the

elapsed time for each in the remarks

section of the grid, would the aggregate

time spent on those non-driving

activities be counted against the 10-hour

driving limit?

Guidance: No. On-duty not driving

time or off-duty time is not counted

against the 10-hour driving limit.

Question 23: When the driver’s duty

status changes, do §§ 395.8(c) or

395.8(h)(5) require a description of onduty not driving activities (‘‘fueling,’’

‘‘pre-trip,’’ ‘‘loading,’’ ‘‘unloading,’’,

etc.) in the remarks section in addition

to the name of the nearest city, town or

village followed by the State

abbreviation?

Guidance: No. Many motor carriers

require drivers to identify work

performed during a change of duty

status. Part 395 neither requires nor

prohibits this practice.

Question 24: When must a driver

complete the signature/certification of

the driver’s record of duty status?

Guidance: In general, the driver must

sign the record of duty status

immediately after all required entries

have been made for the 24-hour period.

However, if the driver is driving at the

end of the 24-hour period, he/she must

sign during the next stop. A driver may

also sign the record of duty status upon

going off duty if he/she expects to

remain off duty until the end of the 24-

hour period.

Question 25: Is a driver (United States

or foreign) required to maintain a record

of duty status (log book) in a foreign

country before entering the U.S.?

Guidance: No. The FHWA does not

require drivers to prepare records of

duty status while operating outside the

jurisdiction of the United States.

However, it may be advantageous for

any driver (U.S. or foreign) to prepare

records of duty status for short-term

foreign trips. Upon entering the U.S.,

each driver must either: (a) Have in his/

her possession a record of duty status

current on the day of the examination

showing the total hours worked for the

prior seven consecutive days, including

time spent outside the U.S.; or, (b)

Demonstrate that he/she is operating as

a ‘‘100 air-mile (161 air-kilometer)

radius driver’’ under § 395.1(e).

Question 26: If a driver is permitted

to use a CMV for personal reasons, how

must the driving time be recorded?

Guidance: When a driver is relieved

from work and all responsibility for

performing work, time spent traveling

from a driver’s home to his/her terminal

(normal work reporting location), or

from a driver’s terminal to his/her

home, may be considered off-duty time.

Similarly, time spent traveling short

distances from a driver’s en route

lodgings (such as en route terminals or

motels) to restaurants in the vicinity of

such lodgings may be considered offduty time. The type of conveyance used

from the terminal to the driver’s home,

from the driver’s home to the terminal,

or to restaurants in the vicinity of en

route lodgings would not alter the

situation unless the vehicle is laden. A

driver may not operate a laden CMV as

a personal conveyance. The driver who

uses a motor carrier’s CMV for

transportation home, and is

subsequently called by the employing

carrier and is then dispatched from

home, would be on-duty from the time

the driver leaves home.

A driver placed out of service for

exceeding the requirements of the hours

of service regulations may not drive a

CMV to any location to obtain rest.

Section 395.13 Drivers Declared Out of

Service

Question 1: May a driver operate any

motor vehicle, at the direction of the

motor carrier, after being placed out of

service for an hours of service violation?

Guidance: An out of service order

issued under § 395.13 extends only to

the operation of CMVs. State procedures

may differ.

Question 2: May a driver operating a

CMV under a lease arrangement with a

motor carrier, after being placed out of

service for an hours of service violation,

cancel the lease and continue to operate

the vehicle as a private personal

conveyance?

Guidance: No. Cancellation of a lease

does not relieve the driver of the

responsibility of complying with the out

of service order which prohibits the

driver from operating a CMV.

Section 395.15 Automatic On-Board

Recording Devices

Question 1: Must a motor carrier

maintain a second (back-up copy) of the

electronic hours-of-service files, by

month, in a different physical location

than where the original data is stored if

the motor carrier retains the original

hours-of-service printout signed by the

driver and provides the driver with a

copy?

Guidance: No. By creating and

maintaining the signed original recordof-duty status printed from the

electronic hours-of-service file, the

motor carrier has converted the

electronic document into a paper

document subject to § 395.8(k). That

section requires the motor carrier to

retain at its principal place of business

the records of duty status and

supporting documents for a period of 6

months from date of receipt. If the motor

carrier did not generate a paper copy of

the electronic document and retain a

signed original, it would be required to

maintain the electronic file and a

second (back-up) copy.

Question 2: May a driver who uses an

automatic on-board recording device

amend his/her record of duty status

during a trip?

Guidance: No. Section 395.15(i)(3)

requires automatic on-board recording

devices, to the maximum extent

possible, be tamperproof and preclude

the alteration of information collected

concerning a driver’s hours of service. If

drivers, who use automatic on-board

recording devices, were allowed to

amend their record of duty status while

in transit, legitimate amendments could

not be distinguished from falsifications.

Records of duty status maintained and

generated by an automatic on-board

recording device may only be amended

by a supervisory motor carrier official to

accurately reflect the driver’s activity.

Such supervisory motor carrier official

must include an explanation of the

mistake in the remarks section of either

the original or amended record of duty

status. Both the original and amended

record of duty status must be retained

by the motor carrier.
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16427

PART 396—INSPECTION, REPAIR, AND

MAINTENANCE

Sections Interpreted

396.3 Inspection, Repair, and Maintenance

396.9 Inspection of Motor Vehicles in

Operation

396.11 Driver Vehicle Inspection Report(s)

396.13 Driver Inspection

396.17 Periodic Inspection

396.19 Inspector Qualifications

396.21 Periodic Inspection Recordkeeping

Requirements

396.23 Equivalent to a Periodic Inspection

396.25 Qualifications of Brake Inspectors

Section 396.3 Inspection, Repair, and

Maintenance

Question 1: What is meant by

‘‘systematic inspection, repair, and

maintenance’’?

Guidance: Generally, systematic

means a regular or scheduled program

to keep vehicles in a safe operating

condition. Section 396.3 does not

specify inspection, maintenance, or

repair intervals because such intervals

are fleet specific and, in some instances,

vehicle specific. The inspection, repair,

and maintenance intervals are to be

determined by the motor carrier. The

requirements of §§ 396.11, 396.13, and

396.17 are in addition to the systematic

inspection, repair, and maintenance

required by § 396.3.

Question 2: Section 396.3(b)(4) refers

to a record of tests. What tests are

required of push-out windows and

emergency door lamps on buses?

Guidance: Generally, inspection of a

push-out window would require

pushing out the window. However, if

the window may be destroyed by

pushing out to test its proper

functioning, a visual inspection may

qualify as a test if the inspector can

ascertain the proper functioning of the

window without opening it. Checking to

ensure that the rubber push-out molding

is properly in place and has not

deteriorated and that any handles or

marking instructions have not been

tampered with would meet the test

requirement. Inspection of emergency

door marking lights would require

opening the door to test the lights.

Question 3: Who has the

responsibility of inspecting and

maintaining leased vehicles and their

maintenance records?

Guidance: The motor carrier must

either inspect, repair, maintain, and

keep suitable records for all vehicles

subject to its control for 30 consecutive

days or more, or cause another party to

perform such activities. The motor

carrier is solely responsible for ensuring

that the vehicles under its control are in

safe operating condition and that defects

have been corrected.

Question 4: Is computerized

recordkeeping of CMV inspection and

maintenance information permissible

under § 396.3 of the FMCSRs?

Guidance: Yes, if the minimum

inspection, repair, and maintenance

records required are included in the

computer information system and can

be reproduced on demand.

Question 5: Where must vehicle

inspection and maintenance records be

retained if a vehicle is not housed or

maintained at a single location?

Guidance: The motor carrier may

retain the records at a location of its

choice. If the vehicle maintenance

records are retained at a location apart

from the vehicle, the motor carrier is not

relieved of its responsibility for

ensuring that the records are current

and factual. In all cases, however, upon

request of the FHWA the maintenance

records must be made available within

a reasonable period of time (2 working

days).

Section 396.9 Inspection of Motor

Vehicles in Operation

Question 1: Under what conditions

may a vehicle that has been placed ‘‘out

of service’’ under § 396.3 be moved?

Guidance: The vehicle may be moved

by being placed entirely upon another

vehicle, towed by a vehicle equipped

with a crane or hoist, or driven if the

‘‘out of service’’ condition no longer

exists.

Question 2: Is it the intent of § 396.9

to allow ‘‘out of service’’ vehicles to be

towed?

Guidance: Yes; however, not all out of

service vehicles may be towed away

from the inspection location. The

regulation sets up a flexible situation

that will permit the inspecting officer to

use his/her best judgment on a case-bycase basis.

Section 396.11 Driver Vehicle

Inspection Report(s)

Question 1: Does § 396.11 require the

DVIR to be turned in each day by a

driver dispatched on a trip of more than

one day’s duration?

Guidance: A driver must prepare a

DVIR at the completion of each day’s

work and shall submit those reports to

the motor carrier upon his/her return to

the home terminal. This does not relieve

the motor carrier from the responsibility

of effecting repairs and certification of

any items listed on the DVIR, prepared

at the end of each day’s work, that

would be likely to affect the safety of the

operation of the motor vehicle.

Question 2: Does § 396.11 require that

the power unit and the trailer be

inspected?

Guidance: Yes. A driver must be

satisfied that both the power unit and

the trailer are in safe operating

condition before operating the

combination.

Question 3: May more than one power

unit be included on the DVIR if two or

more power units were used by a driver

during one day’s work?

Guidance: No. A separate DVIR must

be prepared for each power unit

operated during the day’s work.

Question 4: Does § 396.11 require a

motor carrier to use a specific type of

DVIR?

Guidance: A motor carrier may use

any type of DVIR as long as the report

contains the information and signatures

required.

Question 5: Does § 396.11 require a

separate DVIR for each vehicle and a

combination of vehicles or is one report

adequate to cover the entire

combination?

Guidance: One vehicle inspection

report may be used for any combination,

provided the defects or deficiencies, if

any, are identified for each vehicle and

the driver signs the report.

Question 6: Does § 396.11(c) require a

motor carrier to effect repairs of all

items listed on a DVIR prepared by a

driver before the vehicle is subsequently

driven?

Guidance: The motor carrier must

effect repairs of defective or missing

parts and accessories listed in Appendix

G to the FMCSRs before allowing the

vehicle to be driven.

Question 7: What constitutes a

‘‘certification’’ as required by

§ 396.11(c)(1) and (2)?

Guidance: A motor carrier or its agent

must state, in writing, that certain

defects or deficiencies have been

corrected or that correction was

unnecessary. The declaration must be

immediately followed by the signature

of the person making it.

Question 8: Who must certify under

§ 396.11(c) that repairs have been made

when a motor vehicle is repaired en

route by the driver or a commercial

repair facility?

Guidance: Either the driver or the

commercial repair facility.

Question 9: Must certification for

trailer repairs be made?

Guidance: Yes. Certification must be

made that all reported defects or

deficiencies have been corrected or that

correction was unnecessary. The

certification need only appear on the

carrier’s copy of the report if the trailer

is separated from the tractor.

Question 10: What responsibility does

a vehicle leasing company, engaged in

the daily rental of CMVs, have regarding
16428 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

the placement of the DVIR in the power

unit?

Guidance: A leasing company has no

responsibility to comply with § 396.11

unless it is the carrier. It is the

responsibility of a motor carrier to

comply with part 396 regardless of

whether the vehicles are owned or

leased.

Question 11: Which carrier is to be

provided the original of the DVIR in a

trip lease arrangement?

Guidance: The motor carrier

controlling the vehicle during the term

of the lease (i.e. the lessee) must be

given the original of the DVIR. The

controlling motor carrier is also

responsible for obtaining and retaining

records relating to repairs.

Question 12: Must the motor carrier’s

certification be shown on all copies of

the DVIR?

Guidance: Yes.

Question 13: Must a DVIR carried on

a power unit during operation cover

both the power unit and trailer being

operated at the time?

Guidance: No. The DVIR must cover

the power unit being operated at the

time. The trailer identified on the report

may represent one pulled on the

preceding trip.

Question 14: In instances where the

DVIR has not been prepared or cannot

be located, is it permissible under

§ 396.11 for a driver to prepare a DVIR

based on a pre-trip inspection and a

short drive of a motor vehicle?

Guidance: Yes. Section 396.11 of the

FMCSRs places the responsibility on the

motor carrier to require its drivers to

prepare and submit the DVIR. If, in

unusual circumstances, the DVIR has

not been prepared or cannot be located

the motor carrier may cause a road test

and inspection to be performed for

safety of operation and the DVIR to be

prepared.

Question 15: Is it permissible to use

the back of a record of duty status (daily

log) as a DVIR?

Guidance: Yes, but the retention

requirements of § 396.11 and § 395.8

must be met.

Question 16: Does § 396.11 require

that specific parts and accessories that

are inspected be identified on the DVIR?

Guidance: No.

Question 17: Is the Ontario pretrip/

posttrip inspection report acceptable as

a DVIR under § 396.11?

Guidance: Yes, provided the report

from the preceding trip is carried on

board the motor vehicle while in

operation and all entries required by

§§ 396.11 and 396.13 are contained on

the reports.

Question 18: Where must DVIRs be

maintained?

Guidance: Since § 396.11 is not

specific, the DVIRs may be kept at either

the motor carrier’s principal place of

business or the location where the

vehicle is housed or maintained.

Question 19: Who is responsible for

retaining DVIRs for leased vehicles

including those of owner-operators?

Guidance: The motor carrier is

responsible for retaining the original

copy of each DVIR and the certification

of repairs for at least 3 months from the

date the report was prepared.

Question 20: Is a multi-day DVIR

acceptable under §§ 396.11 and 396.13?

Guidance: Yes, provided all

information and certifications required

by §§ 396.11 and 396.13 are contained

on the report.

Question 21: Is a DVIR required by a

motor carrier operating only one tractor

trailer combination?

Guidance: No. One tractor semitrailer/

full trailer combination is considered

one motor vehicle. However, a carrier

operating a single truck tractor and

multiple semitrailers, which are not

capable of being operated as one

combination unit, would be required to

prepare DVIRs.

Question 22: Are motor carriers

required to retain the ‘‘legible copy’’ of

the last vehicle inspection report

(referenced in § 396.11(c)(3)) which is

carried on the power unit?

Guidance: No. The record retention

requirement refers only to the original

copy retained by the motor carrier.

Question 23: Does the record

retention requirement of § 396.11(c)(2)

apply to all DVIRs, or only those reports

on which defects or deficiencies have

been noted?

Guidance: The record retention

requirement applies to all DVIRs.

Question 24: How would the DVIR

requirements apply to a driver who

works two or more shifts in a single

calendar day?

Guidance: Section 396.11(a) requires

every driver to prepare a DVIR at the

completion of each day’s work on each

vehicle operated. A driver who operates

two or more vehicles in a 24-hourperiod must prepare a DVIR at the

completion of the tour of duty in each

vehicle.

Question 25: Section 396.11 requires

the driver, at the completion of each

day’s work, to prepare a written report

on each vehicle operated that day. Does

this section require a ‘‘post trip

inspection’’ of the kind described in

§ 396.15?

Guidance: No. However, the written

report must include all defects in the

parts and accessories listed in

§ 396.11(a) that were discovered by or

reported to the driver during that day.

Question 26: Is the motor carrier

official or agent who certifies that

defects or deficiencies have been

corrected or that correction was

unnecessary required to be a mechanic

or have training concerning commercial

motor vehicle maintenance?

Guidance: No. Section 396.11 does

not establish minimum qualifications

for motor carrier officials or agents who

certify that defects or deficiencies on

DVIRs are corrected. With the exception

of individuals performing the periodic

or annual inspection (§ 396.19), and

motor carrier employees responsible for

ensuring that brake-related inspection,

repair, or maintenance tasks are

performed correctly (§ 396.25), Part 396

of the FMCSRs does not establish

minimum qualifications for

maintenance personnel. Motor carriers,

therefore, are not prohibited from

having DVIRs certified by company

officials or agents who do not have

experience repairing or maintaining

commercial motor vehicles.

Section 396.13 Driver Inspection

Question 1: If a DVIR does not

indicate that certain defects have been

repaired, and the motor carrier has not

certified in writing that such repairs

were considered unnecessary, may the

driver refuse to operate the motor

vehicle?

Guidance: The driver is prohibited

from operating the motor vehicle if the

motor carrier fails to make that

certification. Operation of the vehicle by

the driver would cause the driver and

the motor carrier to be in violation of

§ 396.11(c) and both would be subject to

appropriate penalties. However, a driver

may sign the certification of repairs as

an agent of the motor carrier if he/she

is satisfied that the repairs have been

performed.

Question 2: At the end of the day’s

work and upon completion of the

required DVIR, what does the driver do

with the copy of the previous DVIR

carried on the power unit?

Guidance: There is no requirement

that the driver submit the copy of that

previous DVIR to the motor carrier nor

is there a retention requirement for the

motor carrier.

Section 396.17 Periodic Inspection

Question 1: Some of a motor carrier’s

vehicles are registered in a State with a

mandated inspection program which

has been determined to be as effective

as the Federal periodic inspection

program, but these vehicles are not used

in that State. Is the motor carrier

required to make sure the vehicles are

inspected under that State’s program in
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16429

order to meet the Federal periodic

inspection requirements?

Guidance: If the State requires all

vehicles registered in the State to be

inspected through its mandatory

program then the motor carrier must go

through the State program to satisfy the

Federal requirements. If, however, the

State inspection program includes an

exception or exemption for vehicles

which are registered in the State but

domiciled outside of the State, then the

motor carrier may meet the Federal

requirements through a self-inspection,

a third party inspection, a CVSA

inspection, or a periodic inspection

performed in any State with a program

that the FHWA determines is

comparable to, or as effective as, the

part 396 requirements.

Question 2: May the due date for the

next inspection satisfy the requirements

for the inspection date on the sticker or

decal?

Guidance: No. The rule requires that

the date of the inspection be included

on the report and sticker or decal. This

date may consist of a month and a year.

Question 3: Must each vehicle in a

combination carry separate periodic

inspection documentation?

Guidance: Yes, unless a single

document clearly identifies all of the

vehicles in the CMV combination.

Question 4: Does the sticker have to

be located in a specific location on the

vehicle?

Guidance: No. The rule does not

specify where the sticker, decal or other

form of documentation must be located.

It is the responsibility of the driver to

produce the documentation when

requested. Therefore, the driver must

know the location of the sticker and

ensure that all information on it is

legible and current. The driver must

also be able to produce the inspection

report if that form of documentation is

used.

Question 5: Is new equipment

required to pass a periodic inspection

under § 396.17?

Guidance: Yes, but a dealer who

meets the inspection requirements may

provide the documentation for the

initial periodic inspection.

Question 6: Are the Federal periodic

inspection requirements applicable to

U.S. Government trailers operated by

motor carriers engaged in interstate

commerce?

Guidance: Yes. The transportation is

not performed by a governmental entity

but by a for-hire carrier in interstate

commerce.

Question 7: Does a CMV equipped

with tires marked ‘‘Not for Highway

Use’’ meet the periodic inspection

requirements?

Guidance: No. Appendix G to

subchapter B—Minimum Periodic

Inspection Standards, lists tires so

labeled as a defect or deficiency which

would prevent a vehicle from passing an

inspection.

Question 8: Is a CMV subject to a

roadside inspection by State or Federal

inspectors if it displays a periodic

inspection decal or other evidence of a

periodic inspection being conducted in

the past 12 months?

Guidance: Yes. Evidence of a valid

periodic inspection only precludes a

citation for a violation of § 396.17.

Question 9: Is a State required to

accept the periodic inspection program

of another State having a periodic

inspection program meeting minimum

FHWA standards as contained in

appendix G to the FMCSRs?

Guidance: Yes. Section 210 of the

MCSA (49 U.S.C. 31142) establishes the

principle that State inspections meeting

federally approved criteria must be

recognized by every other State.

Question 10: Do vehicles inspected

under a periodic Canadian inspection

program comply with the FHWA

periodic inspection standards?

Guidance: Yes. The FHWA has

determined that the inspection

programs of all of the Canadian

Provinces meet or exceed the Federal

requirements for a periodic inspection

program.

Question 11: Must a specific form be

used to record the periodic inspection

mandated by § 396.17?

Guidance: No. Section 396.21 does

not designate any particular form, decal,

or sticker, but does specify the

information which must be shown on

these documents.

Question 12: May an inspector certify

a CMV as meeting the periodic

inspection standards of § 396.17 if he/

she cannot see all components required

to be inspected under appendix G?

Guidance: No. The affixing of a decal

or sticker or preparation of a report as

proof of inspection indicates

compliance with all requirements of

appendix G to part 396.

Question 13: If an intermodal

container is attached to a chassis at the

time of a periodic inspection, must the

container also be inspected to comply

with § 396.17 inspection requirements?

Guidance: Yes. Safe loading is one of

the inspection areas covered under

appendix G. If the chassis is loaded at

the time of inspection, the method of

securement of the container to the

chassis must be included in the

inspection. Although integral

securement devices such as twist locks

are not listed in appendix G, the

operation of these devices must be

included in the inspection without

removal of the container.

Question 14: Is it acceptable for the

proof of periodic inspection to be

written in Spanish?

Guidance: Yes. There is no

requirement under § 396.17, or

appendix G to subchapter B that the

proof of periodic inspection be written

in English.

Section 396.19 Inspector

Qualifications

Question 1: May an entity other than

a motor carrier maintain the evidence of

inspector qualifications required by

§ 396.19(b)?

Guidance: Yes. In those cases in

which the inspection is performed by a

commercial garage or similar facility or

a leasing company, the motor carrier

may allow the commercial garage or

leasing company to maintain a copy of

the inspector’s qualifications on behalf

of the motor carrier. The motor carrier,

however, is responsible for obtaining

copies of evidence of the inspector’s

qualifications upon the request of

Federal, State, or local officials. If, for

whatever reason, the motor carrier is

unable to obtain this information from

the third party, the motor carrier may be

cited for noncompliance with § 396.19.

Question 2: Is there a specific form or

format to be used in ensuring that

inspectors are qualified in accordance

with § 396.19?

Guidance: No. Section 396.19(b)

requires the motor carrier to retain

evidence satisfying the standards

without specifying any particular form.

Section 396.21 Periodic Inspection

Recordkeeping Requirements

Question 1: What recordkeeping

requirements under § 396.21 is a carrier

subject to when it utilizes an FHWAapproved State inspection program?

Guidance: The motor carrier must

comply with the recordkeeping

requirements of the State. The

requirements specified in § 396.21 (a)

and (b) are applicable only in those

instances where the motor carrier selfinspects its CMVs or has an agent

perform the periodic inspection.

Section 396.23 Equivalent to a

Periodic Inspection

Question 1: Is a CVSA Level I or Level

V inspection a ‘‘State * * * roadside

inspection program’’ through which a

motor carrier may meet the periodic

inspection requirements of § 396.17? If

so, what evidence of inspection is

required?

Guidance: A CVSA Level I or Level V

inspection is equivalent to the Federal

periodic inspection requirements. A
16430 Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations

CMV that passes such an inspection has

therefore met § 396.17, unless the

vehicle is subject to a mandatory State

inspection program that the FHWA has

determined is comparable to, or as

effective as, the Federal requirements

[see § 396.23(b)(1)]. A CVSA decal

displayed on the CMV, or a copy of the

Level I or Level V inspection report

maintained in the vehicle, constitutes

sufficient evidence of inspection.

Section 396.25 Qualifications of Brake

Inspectors

Question 1: Does a CDL with an

airbrake endorsement qualify a person

as a brake inspector under § 396.25?

Guidance: No.

Question 2: May a driver who does

not have the necessary experience

perform the adjustment under directions

issued by telephone by a qualified

inspector?

Guidance: Yes. A driver is permitted

to perform brake adjustments at a

roadside inspection providing they are

done under the supervision of a

qualified brake adjuster and the carrier

is willing to assume responsibility for

the proper adjustment.

Question 3: May a driver or other

motor carrier employee be qualified as

a brake inspector under § 396.25 by way

of experience or training to perform

brake adjustments without being

qualified to perform other brake-related

tasks such as the repair or replacement

of brake components?

Guidance: Yes. A driver may be

qualified by the motor carrier to perform

a limited number of tasks in connection

with the brake system, e.g., inspect and/

or adjust the vehicle’s brakes, but not

repair them.

Question 4: Would a mechanic who is

employed by a leasing company and

only works on CMVs that the leasing

company leases to other motor carriers

be required to meet the brake inspector

certification requirements?

Guidance: No. The mechanic is not

required to meet the certification

requirements of § 396.25(d) since he/she

is not employed by a motor carrier.

PART 397—TRANSPORTATION OF

HAZARDOUS MATERIALS; DRIVING AND

PARKING RULES

Sections Interpreted

397.1 Application of the Rules in This Part

397.5 Attendance and Surveillance of

Motor Vehicles

397.7 Parking

397.9 Routes

397.13 Smoking

Section 397.1 Application of the Rules

in This Part

Question 1: Who is subject to part

397?

Guidance: Part 397 applies to motor

carriers that transport HM in interstate

commerce in types and quantities

requiring marking or placarding under

49 CFR 177.823. The routing

requirements of part 397 establish

guidelines State and Indian tribal

routing agencies must employ in

designating and/or restricting routes for

the transportation of HM. Interstate

motor carriers transporting HM, in

interstate or intrastate commerce, must

comply with the designations and

restrictions established by the routing

agencies.

Question 2: Is the interstate

transportation of anhydrous ammonia,

in nurse tanks, subject to part 397?

Guidance: The requirements of part

397 do not apply to the direct

application of ammonia to fields from

nurse tanks. However, part 397 does

apply to the transportation of nurse

tanks on public highways, when

performed by interstate motor carriers.

Section 397.5 Attendance and

Surveillance of Motor Vehicles

Question 1: What defines a ‘‘public

highway’’ or ‘‘shoulder’’ of a public

highway for the purpose of determining

violations under § 397.5(c)?

Guidance: The applicable

engineering/highway design plans.

Question 2: Must a driver of a motor

vehicle transporting HM, other than

Division 1.1, 1.2, or 1.3 (Class A or B)

explosives, always maintain an

unobstructed view and be within 100

feet of that vehicle?

Guidance: No. If the vehicle is not

located on a public street or highway or

on the shoulder of a public highway,

then the vehicle need not be within 100

feet of the driver’s unobstructed view,

unless it contains Division 1.1, 1.2, or

1.3 (Class A or B) materials.

Question 3: May a motor carrier

consider fuel stop operators as

‘‘qualified representative(s)’’ for

purposes of the attendance and

surveillance requirements of § 397.5?

Guidance: Yes. However, the fuel stop

operator must be able to perform the

required functions.

Question 4: Who determines what is

a ‘‘safe haven’’?

Guidance: The selection of safe

havens is a decision of the ‘‘competent

government authorities’’ having

jurisdiction over the area. The definition

found in § 397.5(d)(3) is purposely void

of any specific guidelines or criteria. A

truck stop may be considered a safe

haven if it is so designated by local or

State governmental authorities.

Question 5: Section 397.5(d)(3)

describes a safe haven as ‘‘* * * an area

specifically approved in writing by

local, State, or Federal governmental

authorities for the parking of unattended

vehicles containing Division 1.1, 1.2, or

1.3 materials.’’ Do guidelines exist for

establishing approval criteria for safe

havens? Is there a national list of

approved safe havens available to the

public?

Guidance: The FHWA believes the

safe haven concept is becoming

increasingly obsolete due to readily

available alternatives for providing

‘‘attendance at all times’’ for vehicles

laden with explosives. The FHWA is

aware of two documents that may be

used as resources for establishing

approval criteria for safe havens. The

first document, Construction and

Maintenance Procedure

Recommendations for Proposed Federal

Guidelines of Safe Havens for Vehicles

Carrying Class A or Class B Explosives

(1985), contains design, construction,

and maintenance guidelines. The

second document, Recommended

National Criteria for the Establishment

and Operation of Safe Havens (1990),

contains recommended national

uniform criteria for approval of safe

havens and an inventory of all Stateapproved safe havens in existence at the

time of the report. These two documents

may be used both as resources for

establishing guidelines for safe haven

design and construction, and as source

documents for finding other materials

that may be used toward the same

purpose. These two documents are

available to the public through the U.S.

Department of Commerce, National

Technical Information Service (NTIS),

Springfield, Virginia 22161 (phone:

(703) 487–4650). The NTIS publications

database is also accessible on the

internet’s world wide web at

http://www.fedworld.gov/ntis.

Question 6: May video monitors be

used to satisfy the attendance

requirements in § 397.5?

Guidance: The purpose of the

attendance requirement is to ensure that

motor vehicles containing hazardous

materials are attended at all times and

that, in the event of an emergency

involving the motor vehicle, the

attendant is able to respond

immediately. The use of video monitors

could satisfy the attendance

requirements in § 397.5, provided the

monitors are operable and continuously

manned, the attendant is within 30.48

meters (100 feet) of the parked vehicle

with an unobstructed view, and the

attendant is able to go to the vehicle

immediately from the monitoring

location.
Federal Register / Vol. 62, No. 65 / Friday, April 4, 1997 / Rules and Regulations 16431

Section 397.7 Parking

Question 1: When is a vehicle

considered ‘‘parked’’?

Guidance: For the purposes of part

397, ‘‘parked’’ means the vehicle is

stopped for a purpose unrelated to the

driving function, (e.g., fueling, eating,

loading, unloading).

Question 2: What constitutes

‘‘knowledge and consent of the person

in charge,’’ as used in § 397.7(a)(2)?

Guidance: In order to satisfy the

requirement for ‘‘knowledge and

consent,’’ actual notice of ‘‘the nature of

the hazardous materials the vehicle

contains’’ must be given to the person

in charge, and that person must

affirmatively agree to allow the vehicle

to be parked on the property under his/

her control.

Question 3: Is the motor carrier or

driver relieved from the requirements of

§ 397.7(a)(3) if the person in charge of

the private property is notified of the

explosive HM contained in the vehicle?

Guidance: No. A vehicle transporting

Division 1.1, 1.2, or 1.3 (Class A or B)

explosives must meet the 300-foot

separation requirement, regardless of

any notification made to any person.

Question 4: What is meant by the term

‘‘brief periods when necessities of

operation require * * *’’ in

§ 397.7(a)(3)?

Guidance: Brief periods of time

depend upon the ‘‘necessities of

operation’’ in question. Parking a

vehicle containing Division 1.1, 1.2, or

1.3 (Class A or B) materials closer than

300 feet to buildings, dwellings, etc. for

periods up to 1 hour for a driver to eat

would not be permitted under the

provisions of § 397.7(a)(3). Parking at

fueling facilities to obtain fuel, oil, etc.,

or at a carrier’s terminal would be

considered necessities of operation.

Question 5: May a safe haven be

designated within 300 feet of an area

where buildings and other structures are

likely to be occupied by large numbers

of people?

Guidance: The selection and

designation of safe havens are a decision

of the ‘‘competent government

authorities’’ having jurisdiction over the

area.

Question 6: If a motor vehicle is

transporting Division 1.1, 1.2, or 1.3

(Class A or B) explosives and is parked

in a safe haven, must it be in

compliance with the parking

requirements of § 397.7?

Guidance: Yes. Safe havens, as

outlined in § 397.5, relate to attendance

and surveillance requirements. The

parking restrictions of § 397.7 still

apply.

Question 7: May a driver transporting

Division 1.1, 1.2, or 1.3 (Class A or B)

materials park within 100 feet of an

eating establishment in order to meet

the attendance and surveillance

requirements?

Guidance: No, because it will result in

a violation of § 397.7(a)(3).

Section 397.9 Routes

Question 1: May a motor vehicle

which contains HM use expressways or

major thoroughfares to make deliveries

within a populated area?

Guidance: Yes, unless otherwise

specifically prohibited by State or local

authorities. In many instances a more

circuitous route may present greater

hazards due to increased exposure.

However, in those situations where a

vehicle is passing through a populated

or congested area, use of a beltway or

other bypass would be considered the

appropriate route, regardless of the

additional economic burden.

Section 397.13 Smoking

Question 1: May a driver of a CMV

transporting HM, listed in § 397.13,

smoke while at the controls or in the

sleeper berth of the vehicle?

Guidance: No. All persons are

prohibited from smoking or carrying

lighted smoking materials at any time

while on or within 25 feet of such a

vehicle. The word ‘‘on’’ includes any

time while in the cab, sleeper berth, etc.

PART 399—EMPLOYEE SAFETY AND

HEALTH STANDARDS

Sections Interpreted

399.207 Truck and Truck-Tractor Access

Requirements

Section 399.207 Truck and TruckTractor Access Requirements

Question 1: If a high-profile COE

truck or truck-tractor is equipped with

a seat on the passenger’s side, must

steps and handholds be provided for

any person entering or exiting on that

side of the vehicle?

Guidance: Yes, all high-profile COE

trucks and truck tractors shall be

equipped on each side of the vehicle

where a seat is located, with a sufficient

number of steps and handholds to

comply with the requirements of

§ 399.207(a).

Question 2: What does the foot

accommodation rule mean when it

states: ‘‘The step need not retain the

disc at rest’’?

Guidance: The note under

§ 399.207(b)(4) states that the disc

referred to is a measuring device. The

step or rung does not have to be

configured in such a manner as to keep

the measuring disc from falling off the

step or rung.

Question 3: In § 399.207(b)(4),

Illustration III, what does the unshaded

area within the disc suggest?

Guidance: The unshaded area

illustrates the height of the open area

required for a driver to insert his or her

foot.

Question 4: May the step be a rung?

If so, what minimum diameter must the

rung be?

Guidance: Yes, the step may be a

rung. There is no minimum requirement

for the diameter of a step rung.

However, it must meet the performance

requirements in § 399.207(b)(5).

(5 U.S.C. 553(b); 49 CFR 1.48)

Issued on: March 27, 1997.

Jane F. Garvey,

Acting Administrator, Federal Highway

Administration.

[FR Doc. 97–8406 Filed 4–3–97; 8:45 am]

BILLING CODE 4910–22–P