[Federal Register: April 4, 1997 (Volume 62, Number 65)]
[Rules and Regulations]
[Page 16369-16431]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ap97_dat-29]
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_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
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49 CFR Chapter III
Regulatory Guidance for the Federal Motor Carrier Safety Regulations;
Rule
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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.
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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 Sec. 383.3 (61 FR
9546). Guidance concerning CDL waivers had been issued under
Sec. 383.7. From the 1993 Regulatory Guidance notice for Sec. 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 Sec. 383.3, where
the CDL waivers have been codified.
Guidance for question 3 under Sec. 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
Sec. 383.93, as it appeared in the 1993 notice, has been revised to
clarify the existing guidance. Guidance for question 1 under
Sec. 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 Sec. 391.1 has been changed to remove a reference to part 391
subpart H. Guidance for question 6 under Sec. 391.11 has been moved to
Sec. 392.9. Guidance for question 2 under Sec. 391.27 has been removed:
violations of size and weight laws are not considered violations of
motor vehicle traffic laws. Question 1 for Sec. 391.41 has been changed
for clarity. Guidance for question 1 under Sec. 391.43 has been
expanded for greater clarity. Guidance for Sec. 392.62 has been moved
to Sec. 391.41. Guidance for question 1 of Sec. 393.51, question 1 of
Sec. 393.65, question 1 of Sec. 393.75, question 5 of Sec. 393.100, and
question 1 of Sec. 393.106 have been amended for clarity. Guidance for
question 1 under Sec. 393.95 has been incorporated into the regulations
(58 FR 34708) and is therefore removed from this document. Guidance for
Sec. 395.1 has been reordered to consecutively follow the paragraphs
within the section. Question 15 under Sec. 395.2 was expanded by
guidance issued June 11, 1995. Question 20 under Sec. 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
Sec. 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 Sec. 395.2 has been expanded by guidance
issued November 18, 1996, and placed more appropriately under
Sec. 395.8 (see Sec. 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 Secs. 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 Secs. 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--
[[Page 16371]]
Multiple Service Providers, Special Topics--Medical Examiners
Acting as MRO, Special Topics--Biennial (Periodic) Testing Requirements
49 CFR Part 383 Secs. 383.3, 383.5, 383.7, 383.31, 383.71, 383.73,
383.91, 383.93, Special Topics--International
49 CFR Part 384 Secs. 384.209, 384.211
49 CFR Part 387 Secs. 387.9, 387.15, 387.39
49 CFR Part 390 Secs. 390.3, 390.5, 390.15, Special Topics--Serious
Pattern of Violations
49 CFR Part 391 Secs. 391.1, 391.11, 391.27, 391.41, 391.43, 391.49,
391.51, 391.63
49 CFR Part 392 Secs. 392.5, 392.9, 392.62
49 CFR Part 393 Secs. 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 Secs. 395.1, 395.2, 395.8, 395.13, 395.15
49 CFR Part 396 Secs. 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 for Conference; then for
Motor Carrier; then either again for MCREGIS Questions and Answers,
or 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
Sec. 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
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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 (Sec. 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
Sec. 40.33(f), ``* * * The MRO shall direct, in writing, the laboratory
to provide the split specimen to another DHHS-certified 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
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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 ``look-
alike'' 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 company-required blood specimen to be supported by
the same custody and control form that accompanies a DOT-required 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
Sec. 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
[[Page 16374]]
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-to-duty test and any subsequent follow-up tests. The employer
also has the authority to require an employee to provide a specimen
under direct-observation 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
direct-observation 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.
[[Page 16375]]
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 self-employed 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 Sec. 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., Sec. 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 Sec. 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
[[Page 16376]]
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.
Sec. 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 Sec. 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
[[Page 16377]]
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 employer-specific 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 Sec. 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 Sec. 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,
Sec. 40.33(b)(3) states: ``The role of the MRO is to review and
interpret confirmed positive test results obtained through the
employer's
[[Page 16378]]
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 Sec. 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 (Sec. 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 Sec. 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
[[Page 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, Sec. 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 safety-sensitive 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 Sec. 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
DHHS-certified 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 fall-back 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 after-the-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 safety-sensitive 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
[[Page 16380]]
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
(Sec. 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 Sec. 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 Sec. 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
(Secs. 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
third-party disclosures?
Guidance: The intent of (Secs. 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
[[Page 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 (Secs. 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 DHHS-certified laboratories to do all DOT-
required 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. Post-accident, 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 Sec. 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
[[Page 16382]]
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 DOT-
covered employees and 50 non-DOT-covered 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.'' (Sec. 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.'' (Sec. 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.'' (Sec. 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 DHHS-certified 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
[[Page 16383]]
reasons for it to the DOT, the employer, and the employee.''
(Sec. 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. (Sec. 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. (Sec. 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. (Sec. 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. (Sec. 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. Sec. 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 non-commercial 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
[[Page 16384]]
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
Sec. 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 Sec. 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
Sec. 40.65(i)?
Guidance: The independent, self-employed 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
DHHS-certified 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 over-the-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 safety-sensitive 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 Secs. 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-the-counter 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 ``over-the-counter'' substance would not affect the
driver's ability to safely operate a CMV.
Potential violations of Sec. 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 owner-operator?
Guidance: The FHWA neither defines the term ``owner-operator'' nor
uses it in regulation. The FHWA regulates ``employers'' and
``drivers.'' An owner-operator 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 DHHS-approved 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
[[Page 16385]]
the part 382 testing program. An employer must implement alcohol and
controlled substances testing in accordance with the schedule in
Sec. 382.115. If observance of the collective bargaining process would
make it impossible for the employer to comply with these deadlines,
Sec. 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 Sec. 382.107. The
employer is prohibited in Sec. 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 ``trip-lease'' 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 pre-employment drug
testing in Sec. 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 Sec. 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 Sec. 382.301(c)?
Guidance: An employer must meet all requirements in Sec. 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
Sec. 382.303 test even though the FHWA does not allow a Federal, State
or local law
[[Page 16386]]
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 Sec. 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 Sec. 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 Sec. 390.5) in a foreign country
are post-accident 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 Secs. 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
Sec. 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 Sec. 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 Sec. 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 Sec. 382.107 means any of those
on-duty functions set forth in Sec. 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.
[[Page 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 DOT-covered 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 pre-employment 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 ``pre-employment'' 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.
[[Page 16388]]
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 inter-State 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
pre-employment 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 Sec. 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 Secs. 382.307 and 382.603 applicable to an owner-
operator who is both an employer and the only employee?
Guidance: No. The requirements of Secs. 382.307 and 382.603 are not
applicable to owner-operators in non-supervisory 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 Sec. 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 Sec. 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, Sec. 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 Sec. 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 Sec. 382.307. Therefore,
such an owner-operator would not be subject to the training
requirements of Sec. 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 six-month 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 Sec. 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 Sec. 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.
[[Page 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 Sec. 382.401?
Guidance: Yes. However, the third-party 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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
safety-sensitive 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 Sec. 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 Sec. 382.401?
Guidance: Yes. However, the third-party 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 Secs. 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
[[Page 16390]]
information is being provided, and that blanket or non-specific
consents to release information are not allowed.
Section 382.501 Removal From Safety-Sensitive 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 safety-sensitive 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 Sec. 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
Sec. 382.601 from their employer, will the employee be in violation of
Sec. 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 Sec. 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 Sec. 382.601, to perform any safety
sensitive function, because Sec. 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 Sec. 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 Sec. 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 follow-up SAP evaluations are
clinical processes that must be conducted face-to-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
[[Page 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
follow-up 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
safety-sensitive 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-to-duty 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-to-duty 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 follow-up testing of the returning employee. In any case,
whether the employer pays or the employee pays, if the employee returns
to performance of safety-sensitive 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. Follow-up 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
[[Page 16392]]
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
non-driving capacity?
Guidance: Yes. Before an employee returns to performing safety-
sensitive functions, the requirements of Sec. 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 (Sec. 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
Sec. 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 (Sec. 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
Sec. 382.407(a)]. Though medical examiners must retain the physical
examination form, employers are not required to do so. Many employers
choose, however, to
[[Page 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
Sec. 391.41(a) and, if applicable, a waiver of certain physical defects
issued under Sec. 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 Secs. 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 Sec. 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 Sec. 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
[[Page 16394]]
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
(Sec. 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
(Sec. 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
Sec. 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 Sec. 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 Sec. 383.3(d).
Question 22: May fuel be considered ``farm supplies'' as used in
Sec. 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 (Sec. 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
[[Page 16395]]
(Sec. 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 FRSI-restricted CDLs, subject to the stringent
conditions and limitations of the waiver provisions in Sec. 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 Sec. 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 (Sec. 383(d))?
Guidance: No. The waiver covers only operators of farm vehicles
which are controlled and operated by ``farmers'' as defined in
Sec. 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 Sec. 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 cargo-carrying vehicle, does this vehicle meet the definition of a
CMV in Sec. 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, Sec. 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 Sec. 383.5, and a CDL is not federally required.
Question 7: Does the definition of a ``commercial motor vehicle''
in Sec. 383.5 of the CDL requirements include
[[Page 16396]]
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 Sec. 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 Sec. 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 Sec. 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. Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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
Sec. 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 Sec. 392.5(c)?
b. Is the carrier obligated to disqualify the driver for a period
of one year as prescribed by Secs. 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 Sec. 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?
[[Page 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 Sec. 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 non-CMV, 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 Sec. 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 Sec. 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
Sec. 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 Sec. 383.5, regardless of the person's duty status
under other regulations. Therefore, the driver, if convicted, would be
disqualified under Sec. 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 Sec. 383.51 if convicted
of driving under the influence of alcohol while operating a personal
vehicle?
Guidance: The convictions triggering mandatory disqualification
under Sec. 383.51 all pertain to offenses that occur while the person
is driving a CMV. However, a driver could be disqualified under
Sec. 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 Sec. 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 Sec. 383.51, assuming it is a first offense.
[[Page 16398]]
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
Sec. 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 Sec. 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
Sec. 383.51'' refer to in Sec. 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
Sec. 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 Sec. 383.73?
Guidance: The term ``initial licensure'' as used in the context of
Sec. 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 FRSI-restricted CDL?
Guidance: No. That would violate the single-license concept.
Question 8: Does the word ``issuing'' as used in Sec. 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 Sec. 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 Sec. 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
[[Page 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
Sec. 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 Sec. 383.77?
Guidance: Yes, provided the applicant meets all the eligibility
conditions under Sec. 383.77, including current operation of a CMV
(Sec. 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 Sec. 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?
[[Page 16400]]
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 Sec. 383.95 operate a CMV equipped with an air-over-
hydraulic brake system?
Guidance: No. Under Sec. 383.95(b), the term ``air brakes''
includes any braking system operating fully or partially on the air
brake principle. Air-over-hydraulic 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-over-hydraulic 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 Sec. 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 Secs. 383.71(d) and
383.73(d), and the upgraded CDL must show the vehicle group of the
passenger test vehicle.
[[Page 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 re-validation 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 out-of-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.
[[Page 16402]]
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 dead-headed (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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 387.11?
Guidance: With a properly executed Form MCS-90 from an insurance
company licensed in the U.S.
[[Page 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 Sec. 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 Sec. 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.
[[Page 16404]]
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 Sec. 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 Sec. 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 pre-
employment 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 Sec. 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
[[Page 16405]]
designed to carry more than 10 passengers in addition to the driver,
and used primarily for school bus operations (see Sec. 390.5). School
bus operations and transportation performed by government entities are
specifically exempted from the FMCSRs under Sec. 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 Sec. 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,''
Sec. 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 Sec. 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
Sec. 382.107 as any of those on-duty functions set forth in Sec. 395.2
On-Duty time, paragraphs (1) through (6), (generally, driving and
related activities) and;
(4) The accident report retention requirements of Sec. 390.15 are
applicable when the governmental entity is performing interstate
charter transportation of passengers.
Question 21: Does the exemption in Sec. 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.
[[Page 16406]]
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 Sec. 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, Sec. 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 Secs. 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?
[[Page 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 for-hire 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
Sec. 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 Sec. 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 for-hire 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 Sec. 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 driveaway-
towaway 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
[[Page 16408]]
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 Sec. 390.15.
Question 2: Would the accident report retention requirement in
Sec. 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 Sec. 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 Sec. 390.15(b)?
Guidance: The documents required by Sec. 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-of-service Regulations--Disasters
Question 1: Does Sec. 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
Sec. 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 Sec. 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 Sec. 390.5) drivers
comply with the medical requirements of this subpart?
[[Page 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 Sec. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 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 Secs. 383.51 and 383.5 and those listed in
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 16410]]
under Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
(Sec. 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 Sec. 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
Sec. 391.27(d)?
Guidance: Section 391.27(d) does not require documentation in the
qualification file. However, Sec. 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 Sec. 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).
[[Page 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 Sec. 391.41. Instructions to medical
examiners performing physical examinations of these drivers are found
at Sec. 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 habit-forming 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 Sec. 391.43(g)). A medical examiner who
believes a driver has a condition not specified in Sec. 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 Sec. 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 Sec. 391.41,
or a State driver licensing agency, for the purposes of Sec. 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
FHWA-required 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 Sec. 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 re-validation 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 Sec. 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
[[Page 16412]]
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
Secs. 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
Sec. 383.5, (1) require the driver to prepare and submit an employment
application in accordance with Sec. 391.21 and (2) conduct the
background investigation of the driver's previous employers required by
Sec. 391.23?
Guidance: Section 391.63(a) (1)-(2) exempts from compliance with
Secs. 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
Sec. 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
Sec. 391.21, but the driver must furnish the information required by
Sec. 383.35(c). The carrier may conduct a background investigation of
the driver's previous employers (Sec. 383.35(f)), and it must
investigate his/her previous alcohol and controlled substance test
results (Sec. 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 Sec. 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
Sec. 391.65
[[Page 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 Sec. 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 Sec. 391.65?
Guidance: No. The driver becomes a regularly employed driver of the
second motor carrier and the exemption in Sec. 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 Sec. 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 Sec. 392.5?
Guidance: No. The term ``out of service'' in the context of
Sec. 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 Sec. 392.5.
Question 3: Does the prohibition against carrying alcoholic
beverages in Sec. 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 Sec. 392.7?
Guidance: No.
Question 2: Must both drivers of a team operation comply with the
provisions of Sec. 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 Sec. 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
Sec. 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 Sec. 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
[[Page 16414]]
may have to adjust the cargo or load securing devices pursuant to
Sec. 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 Sec. 392.42?
Guidance: Yes.
Section 392.60 Unauthorized Persons Not To Be Transported
Question 1: Does Sec. 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 Driveaway-
Towaway 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 Sec. 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 Sec. 393.11.
In the case of vehicles placed in operation on or before March 7,
1989, Sec. 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 Sec. 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.
[[Page 16415]]
Section 393.17 Lamps and Reflectors-Combinations 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 393.41?
Guidance: No. The ``park'' position of the transmission is only a
locking device used to lock the transmission.
Question 2: Does Sec. 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 Sec. 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
Sec. 393.43(b), or may similar devices be used?
Guidance: No. Similar devices may be used provided the devices meet
the performance requirements of Sec. 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 Sec. 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
Sec. 393.48 (see question number 1 in Sec. 393.49).
Question 2: If a CMV manufactured on or after July 25, 1980 (see
Sec. 393.42) has brake components on the front axle, and the brakes are
not operable, does the vehicle comply with Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 393.48(c) is contingent
upon the conditions outlined in Sec. 393.42(b)(2). Towed vehicles must
have brakes as may be necessary to ensure compliance
[[Page 16416]]
with the performance requirements of Sec. 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
saddle-mounts, would not be covered under the exception found at
Sec. 393.48(c).
With regard to the disabled-vehicle provision of Sec. 393.48(c)(1),
the combination vehicle would have to meet the applicable performance
requirements of Sec. 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 Sec. 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 Sec. 393.49
(see question number 1 in Sec. 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 Sec. 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 Sec. 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 Sec. 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 Z26.1a-1969).
Question 2: May a decal designed to comply with the periodic
inspection documentation requirements of Sec. 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 Sec. 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 Sec. 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 Sec. 390.5), have to meet additional
emergency exits requirements under Sec. 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 Sec. 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 Sec. 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 push-out windows provides that older
buses must conform with the requirements of Secs. 393.61(b) or 571.217.
Buses which are subject to Sec. 571.217 would follow NHTSA's
interpretation on push-out windows. Buses which are subject to
Sec. 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 Secs. 393.61(c) and
393.60(a)) is intended to provide an adequate means of emergency exit
on older buses without resorting to push-out 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 non-school 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
[[Page 16417]]
bus manufacturer should be multiplied by \2/3\ to determine the adult
seating capacity for the purposes of Sec. 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 non-school 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 Sec. 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 up-to-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
Sec. 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 Sec. 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 deg. Celsius (32 deg. 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 Sec. 393.3).
Question 2: Do the FMCSRs specify a particular pressure relief
system?
Guidance: No, but the performance standards of Sec. 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 Sec. 393.67.
Section 393.70 Coupling Devices and Towing Methods, Except for
Driveaway-Towaway 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 Sec. 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 Sec. 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
Sec. 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
[[Page 16418]]
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 Sec. 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 driveaway-towaway operation?
Guidance: Yes. Section 393.71(g) requires the use of a tow-bar or a
saddle-mount. 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 Sec. 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, Sec. 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 Sec. 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 Sec. 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, Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.
[[Page 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 Sec. 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 Sec. 393.100(c)).
Question 3: Are the requirements of Sec. 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
Sec. 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 Secs. 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 Sec. 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 Sec. 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 trip-bolsters 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 Sec. 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 Sec. 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 Sec. 393.100(b)(2), they are not
special purpose vehicles and logs must be secured in accordance with
Sec. 393.100(b).
Section 393.102 Securement Systems
Question 1: Does Sec. 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, Secs. 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 Sec. 393.106, the securement
system would have to provide protection against longitudinal movement
[Sec. 393.104(a)]. If the load may shift sideways in transit then
Sec. 393.104(b) would also be applicable.
Question 2: Does Sec. 393.102(b) require that securement devices be
marked or labeled with their working load limit or any other
information?
Guidance: No. Although Sec. 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
Sec. 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 Sec. 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 Sec. 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?
[[Page 16420]]
Guidance: When operating CMVs, as defined in Sec. 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 Sec. 395.1(b), adverse driving
conditions, and Sec. 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
Sec. 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
Sec. 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
Sec. 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
Sec. 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 Sec. 395.1(d)(2)?
Guidance: The special rule in Sec. 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
Sec. 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 Sec. 395.3 by combining off-duty time or sleeper-berth time
at a natural gas or oil well site with off-duty time or sleeper-berth
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.
[[Page 16421]]
----------------------------------------------------------------------------------------------------------------
On Site Other Sleeping
On Site Off Duty Time On Site Sleeper Berth Accommodation
----------------------------------------------------------------------------------------------------------------
Away from Site Off Duty Time
Away from Site Sleeper Berth Time X Combination must be 8 X Combination must be 8 X Combination must be 8
or more hours. or more hours. 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 [Sec. 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 Sec. 395.8(d) or
that of the 100-air-mile radius exemption under Sec. 395.1(e)(5)?
Guidance: The ``mandatory information'' referred to is the time
records specified by Sec. 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 Sec. 395.8(j)(2) for drivers used for the first time or
intermittently.
Using the RODS to comply with Sec. 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 Sec. 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-air-mile radius exemption found at Sec. 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 Sec. 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 work-reporting 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 (Sec. 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 off-duty
before operating under the 100-air-mile radius exemption.
Question 24: Is the exemption contained in Sec. 395.1(f) concerning
department store deliveries during the period from December 10 to
December
[[Page 16422]]
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 work-reporting 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 off-duty time per Sec. 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 Sec. 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 Sec. 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 on-duty 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 nontransportation-related 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 Sec. 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
[[Page 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 on-duty (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 co-workers 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 ``driver-salesperson'' in Sec. 395.2 determined?
Guidance: The driving time is determined on a weekly basis. The
driver must be employed solely as a driver-salesperson. The driver-
salesperson 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 off-duty 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 non-availability, 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 work-related call,
following the required off-duty 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
Sec. 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 Sec. 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 full-time 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 non-consecutive 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
[[Page 16424]]
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
Sec. 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
re-entering 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 on-duty (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, Sec. 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 on-duty 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 Sec. 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
[[Page 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 ``on-
duty time'' as defined by Sec. 395.2?
Guidance: Yes.
Question 12: May a driver use ``white-out'' 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 off-duty, sleeper berth, driving, and on-duty (not driving) lines
on a record of duty status when changing their duty status?
Guidance: No. Under Sec. 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
Sec. 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
Sec. 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-duty-status (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 Sec. 395.8(d) or that of the 100
air-mile radius exemption under Sec. 395.1(e)(5)?
Guidance: The ``mandatory information'' referred to is the time
records specified by Sec. 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 Sec. 395.8(j)(2) for drivers used for the first time or
intermittently.
Using the RODS to comply with Sec. 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 (Sec. 395.1(e)), is the driver required to
have copies of his/her
[[Page 16426]]
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
Secs. 395.8(c) or 395.8(h)(5) require a description of on-duty 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 Sec. 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 off-duty 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 Sec. 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
record-of-duty status printed from the electronic hours-of-service
file, the motor carrier has converted the electronic document into a
paper document subject to Sec. 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.
[[Page 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 Secs. 396.11,
396.13, and 396.17 are in addition to the systematic inspection,
repair, and maintenance required by Sec. 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 Sec. 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 Sec. 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 Sec. 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-by-case basis.
Section 396.11 Driver Vehicle Inspection Report(s)
Question 1: Does Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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
[[Page 16428]]
the placement of the DVIR in the power unit?
Guidance: A leasing company has no responsibility to comply with
Sec. 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 Sec. 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 Sec. 396.11 and
Sec. 395.8 must be met.
Question 16: Does Sec. 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 Sec. 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 Secs. 396.11 and 396.13 are contained on the reports.
Question 18: Where must DVIRs be maintained?
Guidance: Since Sec. 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 Secs. 396.11 and
396.13?
Guidance: Yes, provided all information and certifications required
by Secs. 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
Sec. 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
Sec. 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-hour-period 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 Sec. 396.15?
Guidance: No. However, the written report must include all defects
in the parts and accessories listed in Sec. 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 (Sec. 396.19),
and motor carrier employees responsible for ensuring that brake-related
inspection, repair, or maintenance tasks are performed correctly
(Sec. 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 Sec. 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
[[Page 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 396.19.
Question 2: Is there a specific form or format to be used in
ensuring that inspectors are qualified in accordance with Sec. 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 Sec. 396.21 is a
carrier subject to when it utilizes an FHWA-approved State inspection
program?
Guidance: The motor carrier must comply with the recordkeeping
requirements of the State. The requirements specified in Sec. 396.21
(a) and (b) are applicable only in those instances where the motor
carrier self-inspects 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 Sec. 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
[[Page 16430]]
CMV that passes such an inspection has therefore met Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 State-approved 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 Sec. 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 Sec. 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.
[[Page 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 397.7?
Guidance: Yes. Safe havens, as outlined in Sec. 397.5, relate to
attendance and surveillance requirements. The parking restrictions of
Sec. 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
Sec. 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
Sec. 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 Truck-Tractor 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
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