2023 Nebraska Revised Statutes › Chapter 75 - Public Service Commission › 75-362 - Federal regulations; terms, defined.

75-362.
Federal regulations; terms, defined.
For purposes of sections 75-362 to 75-369.07, unless the context otherwise requires:
(1) Accident means:
(a) Except as provided in subdivision (b) of this subdivision, an occurrence involving a commercial motor vehicle operating on a highway in interstate or intrastate commerce which results in:
(i) A fatality;
(ii) Bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
(iii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicles to be transported away from the scene by a tow truck or other motor vehicle.
(b) The term accident does not include:
(i) An occurrence involving only boarding and alighting from a stationary motor vehicle; or
(ii) An occurrence involving only the loading or unloading of cargo;
(2) Bulk packaging means a packaging, other than a vessel or a barge, including a transport vehicle or freight container, in which hazardous materials are loaded with no intermediate form of containment. A large packaging in which hazardous materials are loaded with an intermediate form of containment, such as one or more articles or inner packagings, is also a bulk packaging. Additionally, a bulk packaging has:
(a) A maximum capacity greater than one hundred nineteen gallons as a receptacle for a liquid;
(b) A maximum net mass greater than eight hundred eighty-two pounds and a maximum capacity greater than one hundred nineteen gallons as a receptacle for a solid; or
(c) A water capacity greater than one thousand pounds as a receptacle for a gas as defined in 49 C.F.R. 173.115;
(3) Cargo tank means a bulk packaging that:
(a) Is a tank intended primarily for the carriage of liquids or gases and includes appurtenances, reinforcements, fittings, and closures;
(b) Is permanently attached to or forms a part of a motor vehicle or is not permanently attached to a motor vehicle but which, by reason of its size, construction, or attachment to a motor vehicle, is loaded or unloaded without being removed from the motor vehicle; and
(c) Is not fabricated under a specification for cylinders, intermediate bulk containers, multi-unit tank-car tanks, portable tanks, or tank cars;
(4) Cargo tank motor vehicle means a motor vehicle with one or more cargo tanks permanently attached to or forming an integral part of the motor vehicle;
(5) Commercial enterprise means any business activity relating to or based upon the production, distribution, or consumption of goods or services;
(6) Commercial motor vehicle means any self-propelled or towed motor vehicle used on a highway in interstate commerce or intrastate commerce to transport passengers or property when the vehicle:
(a) Has a gross vehicle weight rating or gross combination weight rating or gross vehicle weight or gross combination weight of ten thousand one pounds or more, whichever is greater;
(b) Is designed or used to transport more than eight passengers, including the driver, for compensation;
(c) Is designed or used to transport more than fifteen passengers, including the driver, and is not used to transport passengers for compensation; or
(d) Is used in transporting material found to be hazardous and such material is transported in a quantity requiring placarding pursuant to section 75-364;
(7) Compliance review means an onsite examination of motor carrier operations, such as drivers' hours of service, maintenance and inspection, driver qualification, commercial driver's license requirements, financial responsibility, accidents, hazardous materials, and other safety and transportation records to determine whether a motor carrier meets the safety fitness standard. A compliance review may be conducted in response to a request to change a safety rating, to investigate potential violations of safety regulations by motor carriers, or to investigate complaints or other evidence of safety violations. The compliance review may result in the initiation of an enforcement action with penalties;
(8)(a) Covered farm vehicle means a motor vehicle, including an articulated motor vehicle:
(i) That:
(A) Is traveling in the state in which the vehicle is registered or another state;
(B) Is operated by:
(I) A farm owner or operator;
(II) A ranch owner or operator; or
(III) An employee or family member of an individual specified in subdivision (8)(a)(i)(B)(I) or (8)(a)(i)(B)(II) of this section;
(C) Is transporting to or from a farm or ranch:
(I) Agricultural commodities;
(II) Livestock; or
(III) Machinery or supplies;
(D) Except as provided in subdivision (8)(b) of this section, is not used in the operations of a for-hire motor carrier; and
(E) Is equipped with a special license plate or other designation by the state in which the vehicle is registered to allow for identification of the vehicle as a farm vehicle by law enforcement personnel; and
(ii) That has a gross vehicle weight rating or gross vehicle weight, whichever is greater, that is:
(A) Less than twenty-six thousand one pounds; or
(B) Twenty-six thousand one pounds or more and is traveling within the state or within one hundred fifty air miles of the farm or ranch with respect to which the vehicle is being operated.
(b) Covered farm vehicle includes a motor vehicle that meets the requirements of subdivision (8)(a) of this section, except for subdivision (8)(a)(i)(D) of this section, and:
(i) Is operated pursuant to a crop share farm lease agreement;
(ii) Is owned by a tenant with respect to that agreement; and
(iii) Is transporting the landlord's portion of the crops under that agreement.
(c) Covered farm vehicle does not include:
(i) A combination of truck-tractor and semitrailer which is operated by a person under eighteen years of age; or
(ii) A combination of truck-tractor and semitrailer which is used in the transportation of materials found to be hazardous for the purposes of the federal Hazardous Materials Transportation Act and which require the combination to be placarded under 49 C.F.R. part 172, subpart F;
(9) Disabling damage means damage which precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs.
(a) Inclusions: Damage to motor vehicles that could have been driven but would have been further damaged if so driven.
(b) Exclusions:
(i) Damage which can be remedied temporarily at the scene of the accident without special tools or parts;
(ii) Tire disablement without other damage even if no spare tire is available;
(iii) Headlight or taillight damage; and
(iv) Damage to turnsignals, horn, or windshield wipers which makes them inoperative;
(10) Driver means any person who operates any commercial motor vehicle;
(11) Elevated temperature material means a material which, when offered for transportation or transported in a bulk packaging:
(a) Is in a liquid phase and at a temperature at or above two hundred twelve degrees Fahrenheit;
(b) Is in a liquid phase with a flash point at or above one hundred degrees Fahrenheit that is intentionally heated and offered for transportation or transported at or above its flash point; or
(c) Is in a solid phase and at a temperature at or above four hundred sixty-four degrees Fahrenheit;
(12) Employee means any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle, including an independent contractor while in the course of operating a commercial motor vehicle, a mechanic, and a freight handler. Such term does not include an employee of the United States, any state, any political subdivision of a state, or any agency established under a compact between states and approved by the Congress of the United States who is acting within the course of such employment;
(13) Employer means any person engaged in a business affecting commerce who owns or leases a commercial motor vehicle in connection with that business or assigns employees to operate it. Such term does not include the United States, any state, any political subdivision of a state, or an agency established under a compact between states approved by the Congress of the United States;
(14) Exempt motor carrier means a person engaged in transportation exempt from economic regulation under 49 U.S.C. 13506. An exempt motor carrier is subject to the safety regulations adopted in sections 75-362 to 75-369.07;
(15) Farm vehicle driver means a person who drives only a commercial motor vehicle that is controlled and operated by a farmer as a private motor carrier of property;
(16) Farmer means any person who operates a farm or is directly involved in the cultivation of land, crops, or livestock which:
(a) Are owned by that person; or
(b) Are under the direct control of that person;
(17) Fatality means any injury which results in the death of a person at the time of the motor vehicle accident or within thirty days after the accident;
(18) Fertilizer and agricultural chemical application and distribution equipment means:
(a) Self-propelled or towed equipment, designed and used exclusively to apply commercial fertilizer, as that term is defined in section 81-2,162.02, chemicals, or related products to agricultural soil and crops; or
(b) Towed equipment designed and used exclusively to carry commercial fertilizer, as that term is defined in section 81-2,162.02, chemicals, or related products for use on agricultural soil and crops, which are equipped with implement or floatation tires;
(19) For-hire motor carrier means a person engaged in the transportation of goods or passengers for compensation;
(20) Gross combination weight means the sum of the empty weight of a motor vehicle plus the total weight of any load carried thereon and the empty weight of the towed unit or units plus the total weight of any load carried on such towed unit or units;
(21) Gross combination weight rating means the greater of (a) a value specified by the manufacturer of the power unit, if such value is displayed on the Federal Motor Vehicle Safety Standard certification label required by the National Highway Traffic Safety Administration, or (b) the sum of the gross vehicle weight ratings or the gross vehicle weights of the power unit and the towed unit or units, or any combination thereof, that produces the highest value. Gross combination weight rating does not apply to a commercial motor vehicle if the power unit is not towing another vehicle;
(22) Gross vehicle weight means the sum of the empty weight of a motor vehicle plus the total weight of any load carried thereon;
(23) Gross vehicle weight rating means the value specified by the manufacturer as the loaded weight of a single motor vehicle. In the absence of such value specified by the manufacturer or the absence of any marking of such value on the vehicle, the gross vehicle weight rating shall be determined from the sum of the axle weight ratings of the vehicle or the sum of the tire weight ratings as marked on the sidewall of the tires, whichever is greater. In the absence of any tire sidewall marking, the tire weight ratings shall be determined for the specified tires from any of the publications of any of the organizations listed in 49 C.F.R. 571.119;
(24) Hazardous material means a substance or material that the Secretary of the United States Department of Transportation has determined is capable of posing an unreasonable risk to health, safety, and property when transported in commerce and has designated as hazardous under 49 U.S.C. 5103. The term includes hazardous substances, hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table, 49 C.F.R. 172.101, and materials that meet the defining criteria for hazard classes and divisions in 49 C.F.R. part 173;
(25) Hazardous substance means a material, including its mixtures and solutions, that is listed in 49 C.F.R. 172.101, Appendix A, List Of Hazardous Substances and Reportable Quantities, and is in a quantity, in one package, which equals or exceeds the reportable quantity listed in 49 C.F.R. 172.101, Appendix A. This definition does not apply to petroleum products that are lubricants or fuels or to mixtures or solutions of hazardous substances if in a concentration less than that shown in the table in 49 C.F.R. 171.8 under the definition of hazardous substance based on the reportable quantity specified for the materials listed in 49 C.F.R. 172.101, Appendix A;
(26) Hazardous waste means any material that is subject to the hazardous waste manifest requirements of the United States Environmental Protection Agency specified in 40 C.F.R. 262;
(27) Highway means the entire width between the boundary limits of any street, road, avenue, boulevard, or way which is publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel;
(28) Interstate commerce means trade, traffic, or transportation provided in the furtherance of a commercial enterprise in the United States:
(a) Between a place in a state and a place outside of such state, including a place outside of the United States;
(b) Between two places in a state through another state or a place outside of the United States; or
(c) Between two places in a state as part of trade, traffic, or transportation originating or terminating outside the state or the United States;
(29) Intrastate commerce means any trade, traffic, or transportation provided in the furtherance of a commercial enterprise between any place in the State of Nebraska and any other place in Nebraska and not through any other state;
(30) Large packaging means a packaging that:
(a) Consists of an outer packaging that contains articles or inner packagings;
(b) Is designated for mechanical handling;
(c) Exceeds a net mass of four hundred kilograms or four hundred fifty liters (one hundred nineteen gallons) capacity;
(d) Has a volume of not more than three cubic meters; and
(e) Conforms to the requirements for the construction, testing, and marking of large packagings as specified in subparts P and Q of 49 C.F.R. part 178.
(31) Marine pollutant means a material which is listed in the Hazardous Materials Table, 49 C.F.R. 172.101, Appendix B, as a marine pollutant (see 49 C.F.R. 171.4 for applicability to marine pollutants) and, when in a solution or mixture of one or more marine pollutants, is packaged in a concentration which equals or exceeds:
(a) Ten percent by weight of the solution or mixture for materials listed in 49 C.F.R. 172.101, Appendix B; or
(b) One percent by weight of the solution or mixture for materials that are identified as severe marine pollutants in the Hazardous Materials Table, 49 C.F.R. 172.101, Appendix B;
(32) Motor carrier means a for-hire motor carrier or a private motor carrier. The term includes a motor carrier's agents, officers, and representatives as well as employees responsible for hiring, supervising, training, assigning, or dispatching of drivers and employees concerned with the installation, inspection, and maintenance of motor vehicle equipment or accessories. This definition includes the terms employer and exempt motor carrier;
(33) Motor vehicle means any vehicle, truck, truck-tractor, trailer, or semitrailer propelled or drawn by mechanical power except (a) farm tractors, (b) vehicles which run only on rails or tracks, and (c) road and general-purpose construction and maintenance machinery which by design and function is obviously not intended for use on a public highway, including, but not limited to, motor scrapers, earthmoving equipment, backhoes, trenchers, motor graders, compactors, tractors, bulldozers, bucket loaders, ditchdigging apparatus, asphalt spreaders, leveling graders, power shovels, and crawler tractors;
(34) Nonbulk packaging means a packaging which has:
(a) A maximum capacity of four hundred fifty liters (one hundred nineteen gallons) or less as a receptacle for a liquid;
(b) A maximum net mass of four hundred kilograms (eight hundred eighty-two pounds) or less and a maximum capacity of four hundred fifty liters (one hundred nineteen gallons) or less as a receptacle for a solid;
(c) A water capacity of four hundred fifty-four kilograms (one thousand pounds) or less as a receptacle for a gas as defined in 49 C.F.R. 173.115; or
(d) Regardless of the definition of bulk packaging, a maximum net mass of four hundred kilograms (eight hundred eighty-two pounds) or less for a bag or box conforming to the applicable requirements for specification packagings, including the maximum net mass limitations provided in subpart L of 49 C.F.R. 178;
(35) Out-of-service order means a declaration by an authorized enforcement officer of a federal, state, Canadian, Mexican, or local jurisdiction that a driver, a commercial motor vehicle, or a motor carrier operation is out of service pursuant to 49 C.F.R. 386.72, 392.5, 392.9a, 395.13, or 396.9, or compatible laws or the North American Uniform Out-of-Service Criteria;
(36) Packaging means a receptacle and any other components or materials necessary for the receptacle to perform its containment function in conformance with the minimum packing requirements of Title 49 of the Code of Federal Regulations. For radioactive materials packaging, see 49 C.F.R. 173.403;
(37) Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals;
(38) Planting and harvesting season means the period beginning on January 1 up to and including December 31 of each calendar year;
(39) Principal place of business means the single location designated by the motor carrier, normally its headquarters, for purposes of identification. The motor carrier must make records required by the regulations referred to in sections 75-362 to 75-369.07 available for inspection at this location within forty-eight hours, Saturdays, Sundays, and state or federal holidays excluded, after a request has been made by an officer of the Nebraska State Patrol;
(40) Private motor carrier means a person who provides transportation of property or passengers by commercial motor vehicle and is not a for-hire motor carrier;
(41) Safety audit means an examination of a motor carrier's operations to provide educational and technical assistance on drivers' hours of service, maintenance and inspection, driver qualification, commercial driver's license requirements, financial responsibility, accidents, hazardous materials, and other safety and transportation records to determine whether a motor carrier meets the safety fitness standard. The purpose of a safety audit is to gather critical safety data needed to make an assessment of the carrier's safety performance and basic safety management controls. Safety audits do not result in safety ratings; and
(42) Tank means a container, consisting of a shell and heads, that forms a pressure-tight vessel having openings designed to accept pressure-tight fittings or closures, but excludes any appurtenances, reinforcements, fittings, or closures.
Source
Laws 2006, LB 1007, § 14;
Laws 2010, LB725, § 2;
Laws 2010, LB805, § 12;
Laws 2014, LB983, § 60;
Laws 2016, LB311, § 23;
Laws 2020, LB944, § 77.
Annotations
Pursuant to subdivision (31) of this section, when distinguishing between a motor carrier and a broker, the determinative question is whether the disputed party accepted legal responsibility to transport the shipment. Sparks v. M&D Trucking, 301 Neb. 977, 921 N.W.2d 110 (2018).
Even if the regulatory scheme governing intrastate motor carriers was applicable to common-law concepts of respondeat superior liability in a tort action, a general contractor that was a registered motor carrier, and that hired another registered motor carrier to transport construction debris, was not the statutory employer of the hired carrier or its truckdriver and, thus, could not be held vicariously liable to automobile passenger who was injured in a collision with the hired carrier's truck while the driver was under the influence of drugs; regulatory scheme contemplated a relationship between a registered motor carrier and a private truck owner or driver that was not a registered motor carrier, and did not impose an agency relationship when the independent contractor was also a registered motor carrier. Cruz v. Lopez, 301 Neb. 531, 919 N.W.2d 479 (2018).
Under the plain language of "employee" and "employer," as used in the statutes governing intrastate motor carriers and adopting certain federal motor carrier safety regulations, a registered motor carrier that is also an employer of the drivers of its commercial motor vehicles cannot at the same time be the statutory employee of another motor carrier acting as a general contractor for a particular job. Cruz v. Lopez, 301 Neb. 531, 919 N.W.2d 479 (2018).