Federal Railroad Administration, DOT § 268.21

(2) The extent and proportion to will down-select one or more projects which the private sector contributes fi- to complete additional environmental nancially to the project. studies, investment grade revenue fore- NOTE TO § 268.17: FRA recognizes that appli- casts, and other studies and analyses cants for preconstruction planning assist- necessary prior to initiation of con- ance may not have detailed information with struction. Final design and engineering respect to each of these criteria, and that work will also be initiated for the the purpose of the preconstruction planning down-selected project(s). To be down- assistance is to develop much of this information with respect to a particular Maglev selected a project must appear to meet project. The preconstruction planning appli- the project eligibility standards con- cation requirements of this part 268 are de- tained in § 268.11 (b), rate highly in the signed to elicit whatever information an ap- project selection criteria specified in plicant may have pertaining to these cri- § 268.17, be judged by FRA to have a teria. good chance of being constructed with § 268.19 Evaluation of applications for the Federal funds authorized for this preconstruction planning assist- program, and be successfully operated ance. by a public/private partnership. The FRA will evaluate the applica- (b) Only one project will be selected tions for their completeness and rein Phase IV of the Maglev Deployment sponsiveness to the requirements listed Program and be eligible for any Fed- in § 268.15. In addition, applicants are eral construction funds that Congress advised that the Maglev Deployment chooses to make available. That one Program contains a number of project project must meet each and every eligibility standards (minimum thresh- project eligibility standard contained old standards) and project evaluation in § 268.11 (b). If more than one project criteria that will guide the FRA’s re- down-selected in Phase III and funded view of the project descriptions pro- through Phase IV meets all of these duced under the Planning Grants. The standards, then FRA will evaluate and FRA’s implementation of these stand- compare the eligible projects according ards and criteria appears in § 268.11 and § 268.17, respectively. Although subject to the set of project selection criteria to revision, the information in § 268.11 contained in § 268.17. and § 268.17 should assist the States in (c) In reviewing competing projects completing their applications in the under the project eligibility standards competition for planning grants, since and project selection criteria, the FRA the project descriptions will need to re- will exercise particular vigilance respond to the standards and criteria. In garding the following elements of the evaluating the applications for plan- preconstruction planning process, al- ning grants, FRA will consider how though not to the exclusion of others: consistent the applicant’s project is to (1) The credibility of the demand and the standards and criteria, and the ap- revenue forecasts, cost estimates, and plication’s likelihood of leading to a benefit/cost comparisons; and project that meets all the standards (2) The credibility of the financial and criteria. plan. § 268.21 Down-selection of one or more (d) FRA intends to make periodic re- Maglev projects for further study views of the processes and products of and selection of one project for grant recipients. Such reviews may in- final design, engineering, and con- clude, at the FRA’s option, reviews at struction funding. key milestones in the preparation of (a) Upon completion of Phase III of project descriptions. the Maglev Deployment Program, FRA

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EDITORIAL NOTE: For nomenclature changes to chapter III see 59 FR 60323, Nov. 23, 1994, and 60 FR 38742, July 28, 1995.

SUBCHAPTER A—GENERAL REGULATIONS

Part Page 301 [Reserved] 325 Compliance with interstate motor carrier noise emission standards ...... 737

SUBCHAPTER B—FEDERAL MOTOR CARRIER SAFETY REGULATIONS 350 Commercial motor carrier safety assistance program ...... 748 355 Compatibility of State laws and regulations affecting interstate motor carrier operations ...... 761 356 Motor carrier routing regulations ...... 764 360 Fees for motor carrier registration and insurance .. 766 365 Rules governing applications for operating authority ...... 769 366 Designation of process agent ...... 781 367 Standards for registration with States ...... 781 368 Application for a certificate of registration to operate in municipalities in the United States on the United States-Mexico international border or within the commercial zones of such municipalities ...... 786 370 Principles and practices for the investigation and voluntary disposition of loss and damage claims and processing salvage ...... 788 371 Brokers of property ...... 791 372 Exemptions, commercial zones, and terminal areas 792 373 Receipts and bills ...... 805 374 Passenger carrier regulations ...... 807 375 Transportation of household goods in interstate or foreign commerce ...... 814

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Part Page 376 Lease and interchange of vehicles ...... 826 377 Payment of transportation charges ...... 833 378 Procedures governing the processing, investigation, and disposition of overcharge, duplicate payment, or overcollection claims ...... 837 379 Preservation of records ...... 840 381 Waivers, exemptions, and pilot programs ...... 844 382 Controlled substances and alcohol use and testing 851 383 Commercial driver’s license standards; requirements and penalties ...... 870 384 State compliance with commercial driver’s license program ...... 902 385 Safety fitness procedures ...... 911 386 Rules of practice for motor carrier, broker, freight forwarder, and hazardous materials proceedings 933 387 Minimum levels of financial responsibility for motor carriers ...... 956 388 Cooperative agreements with States ...... 979 389 Rulemaking procedures—Federal motor carrier safety regulations ...... 980 390 Federal motor carrier safety regulations; general .. 983 391 Qualifications of drivers ...... 995 392 Driving of commercial motor vehicles ...... 1024 393 Parts and accessories necessary for safe operation 1032 394 [Reserved] 395 Hours of service of drivers ...... 1126 396 Inspection, repair, and maintenance ...... 1137 397 Transportation of hazardous materials; driving and parking rules ...... 1142 398 Transportation of migrant workers ...... 1160 399 Employee safety and health standards ...... 1166 APPENDIX A TO SUBCHAPTER B [RESERVED] APPENDIX B TO SUBCHAPTER B—SPECIAL AGENTS ...... 1169 APPENDIXES C–E TO SUBCHAPTER B[RESERVED] APPENDIX F TO SUBCHAPTER B—COMMERCIAL ZONES ...... 1170 APPENDIX G TO SUBCHAPTER B—MINIMUM PERIODIC INSPEC- TION STANDARDS ...... 1188

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PART 301 [RESERVED] 325.79 Application of correction factors. Subpart G—Exhaust Systems and Tires PART 325—COMPLIANCE WITH INTERSTATE MOTOR CARRIER 325.91 Exhaust systems. NOISE EMISSION STANDARDS 325.93 Tires. AUTHORITY: 42 U.S.C. 4917; 49 U.S.C. 301; 49 Subpart A—General Provisions CFR 1.73. SOURCE: 40 FR 42437, Sept. 12, 1975, unless Sec. otherwise noted. 325.1 Scope of the rules in this part. 325.3 Effective date. EDITORIAL NOTE: Nomenclature changes to 325.5 Definitions. part 325 appear at 66 FR 49869, Oct. 1, 2001. 325.7 Allowable noise levels. 325.9 Measurement tolerances. Subpart A—General Provisions Subpart B—Administrative Provisions § 325.1 Scope of the rules in this part. 325.11 Issuance, amendment, and revocation (a) The rules in this part prescribe of the rules in this part. procedures for inspection, surveillance, 325.13 Inspection and examination of motor and measurement of motor vehicles vehicles. and motor vehicle equipment operated Subpart C—Instrumentation by motor carriers to determine whether those vehicles and that equipment 325.21 Scope of the rules in this subpart. conform to the Interstate Motor Car- 325.23 Type of measurement systems which rier Noise Emission Standards of the may be used. Environmental Protection Agency, 40 325.25 Calibration of measurement systems. 325.27 Use of a windscreen. CFR part 202. (b) Except as provided in paragraph Subpart D—Measurement of Noise (c) of this section, the rules in this part Emissions; Highway Operations apply to motor carriers engaged in interstate commerce. The rules apply 325.31 Scope of the rules in this subpart. at any time or under any condition of 325.33 Site characteristics; highway oper- highway grade, load, acceleration or ations. 325.35 Ambient conditions; highway oper- deceleration. ations. (c) The rules in this part do not apply 325.37 Location and operation of sound level to— measurement system; highway oper- (1) A motor vehicle that has a Gross ations. Vehicle Weight Rating (GVWR) of 325.39 Measurement procedure; highway op- 10,000 pounds (4,536 kg.) or less; erations. (2) A combination of motor vehicles Subpart E—Measurement of Noise that has a Gross Combination Weight Emissions; Stationary Test Rating (GCWR) of 10,000 pounds (4,536 kg.) or less; 325.51 Scope of the rules in this subpart. (3) The sound generated by a warning 325.53 Site characteristics; stationary test. device, such as a horn or siren, in- 325.55 Ambient conditions; stationary test. stalled in a motor vehicle, unless such 325.57 Location and operation of sound level device is intentionally sounded in order measurement systems; stationary test. 325.59 Measurement procedure; stationary to preclude an otherwise valid noise test. emission measurement; (4) An emergency motor vehicle, such Subpart F—Correction Factors as a fire engine, an ambulance, a police van, or a rescue van, when it is re- 325.71 Scope of the rules in this subpart. sponding to an emergency call; 325.73 Microphone distance correction factors. (5) A snow plow in operation; or 325.75 Ground surface correction factors. (6) The sound generated by auxiliary 325.77 Computation of open site require- equipment which is normally operated ments—nonstandard sites. only when the motor vehicle on which

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it is installed is stopped or is operating (2) Soft test site means any test site at a speed of 5 miles per hour (8 kph) or having the ground surface covered with less, unless such device is intentionally grass, other ground cover, or similar operated at speeds greater than 5 mph absorptive material for 1⁄2 or more of (8 kph) in order to preclude an other- the distance between the microphone wise valid noise measurement. Exam- target point and the microphone loca- ples of that type of auxiliary equip- tion point. ment include, but are not limited to, (3) Ground cover means any of various cranes, asphalt, spreaders, ditch dig- low, dense-growing plants, such as ivy, gers, liquid or slurry pumps, auxiliary myrtle, low weeds, or brush. air compressors, welders, and trash (4) Traffic railing means any longitu- compactors. dinal highway traffic barrier system installed along the side or median of a § 325.3 Effective date. highway. For the purpose of this part, a traffic railing must have at least 35 The rules in this part are effective on percent of its vertical height, from the October 15, 1975. ground surface to the top of the rail- § 325.5 Definitions. ing, open to free space in order to qualify as an acceptable object within a (a) Statutory definitions. All terms de- noise measurement test site. Further, fined in the Noise Control Act of 1972 for the purposes of this part, posts or (Pub. L. 92–574, 86 Stat. 1234) are used other discrete supports shall be ignored as they are defined in that Act. when ascertaining open free space. (b) Definitions in standards. All terms (5) Relatively flat when used to de- defined in § 202.10 of the Interstate scribe a noise measurement site means Motor Carrier Noise Emission Stand- a site which does not contain signifi- ards, 40 CFR 202.10, are used as they are cant concave curvatures or slope rever- defined in that section. sals that may result in the focusing of (c) Additional definitions. (1) Hard test sound waves toward the microphone lo- site means any test site having the cation point. ground surface covered with concrete, asphalt, packed dirt, gravel, or similar § 325.7 Allowable noise levels. reflective material for more than 1⁄2 the Motor vehicle noise emissions, when distance between the microphone tar- measured according to the rules of this get point and the microphone location part, shall not exceed the values speci- point. fied in Table 1.

TABLE 1—MAXIMUM PERMISSIBLE SOUND LEVEL READINGS (DECIBEL (A)) 1, THNSP;2

Highway operation test Stationary tests Soft site Hard Site 35 mi/h Above 35 35 mi/h Above 35 Soft site Hard site or less mi/h or less mi/h

If the distance between the microphone location point and the microphone target point is— 31 ft ( 9.5m) or more but less than 35 ft (10.7m) ...... 87 91 89 93 89 91 35 ft (10.7m) or more but less than 39 ft (11.9m) ...... 86 90 88 92 88 90 39 ft (11.9m) or more but less than 43 ft (13.1m) ...... 85 89 87 91 87 89 43 ft (13.1m) or more but less than 48 ft (14.6m) ...... 84 88 86 90 86 88 48 ft (14.6m) or more but less than 58 ft (17.1m) ...... 83 87 85 89 85 87 58 ft (17.1m) or more but less than 70 ft (21.3m) ...... 82 86 84 88 84 86 70 ft (21.3m) or more but less than 83 ft (25.3m) ...... 81 85 83 87 83 85 1 The speeds shown refer to measurements taken at sites having speed limits as indicated. These speed limits do not necessarily have to be posted. 2 This table is based on motor carrier noise emission requirements specified in 40 CFR 202.20 and 40 CFR 202.21.

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[40 FR 42437, Sept. 12, 1975, as amended at 54 (b) A motor carrier, its officers, driv- FR 50385, Dec. 6, 1989] ers, agents, and employees must, at any time, submit a motor vehicle used § 325.9 Measurement tolerances. in its operations for inspection, exam- (a) Measurement tolerances will be ination, and testing for the purpose of allowed to take into account the ef- ascertaining whether the motor vehicle fects of the following factors: and equipment installed on it conforms (1) The consensus standard practice to the Interstate Motor Carrier Noise of reporting filed sound level measure- Emission Standards of the Environ- ments to the nearest whole decibel. mental Protection Agency, 40 CFR part (2) Variations resulting from com- 202. mercial instrument tolerances. (c) Prescribed inspection report. Form (3) Variations resulting from the to- MCS–141, Noise Level Compliance pography of the noise measurement Check shall be used to record findings site. from motor vehicles selected for noise (4) Variations resulting from atmos- emission inspection by authorized em- pheric conditions such as wind, ambi- ployees. ent temperature, and atmospheric pres- (d) Motor carrier’s disposition of form sure. MCS–141. (1) The driver of any motor (5) Variations resulting from re- vehicle receiving a Form MCS–141 shall flected sound from small objects al- deliver such MCS–141 to the motor car- lowed within the test site. rier operating the vehicle upon his/her (6) The interpretation of the effects arrival at the next terminal or facility of the above cited factors by enforce- of the motor carrier, if such arrival oc- ment personnel. curs within twenty-four (24) hours. If (b) Measurement tolerances shall not the driver does not arrive at a terminal exceed 2 decibels for a given measure- or facility of the motor carrier oper- ment. ating the vehicle within twenty-four (24) hours he/she shall immediately mail the Form MCS–141 to the motor Subpart B—Administrative carrier. For operating convenience, Provisions motor carriers may designate any shop, terminal, facility, or person to § 325.11 Issuance, amendment, and which it may instruct its drivers to de- revocation of the rules in this part. liver or forward Form MCS–141. It shall The procedures specified in part 389 be the sole responsibility of the motor of this chapter for the issuance, amend- carrier that Form MCS–141 is returned ment, or revocation of the Federal to the Federal Highway Administra- Motor Carrier Safety Regulations tion, in accordance with the terms pre- apply to rulemaking proceedings for scribed thereon and in paragraphs (d) the issuance, amendment, or revoca- (2) and (3) of this section. A driver, if tion of the rules in this part. himself/herself a motor carrier, shall return Form MCS–141 to the Federal § 325.13 Inspection and examination of Motor carrier Safety Administration , motor vehicles. in accordance with the terms pre- (a) Any special agent of the Federal scribed thereon and in paragraphs (d) Motor Carrier Safety Administration (2) and (3) of this section. (designated in appendix B to sub- (2) Motor carriers shall carefully ex- chapter B of this chapter) is authorized amine Forms MCS–141. Appropriate to inspect, examine, and test a motor corrective action shall be taken on ve- vehicle operated by a motor carrier in hicles found to be not in compliance accordance with the procedures speci- with the requirements of this part. fied in this part for the purpose of (3) Motor carriers must complete the ascertaining whether the motor vehicle ‘‘Motor Carrier Certification of Action and equipment installed on the motor Taken’’ on Form MCS–141 in accord- vehicle conforms to the Interstate ance with the terms prescribed there- Motor Carrier Noise Emission Stand- on. Motor carriers must return Forms ards of the Environmental Protection MCS–141 to the Division Office at the Agency, 40 CFR part 202. address indicated on Form MCS–141

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within fifteen (15) days following the considered to have occurred if a 0.3 dB date of the vehicle inspection. or more excursion is noted from the system’s predetermined reference cali- [40 FR 42437, Sept. 12, 1975, as amended at 41 FR 10226, Mar. 10, 1976; 54 FR 50385, Dec. 6, bration level. In the case of systems 1989; 60 FR 38743, July 28, 1995; 66 FR 49869, using displays with whole decibel in- Oct. 1, 2001] crements, the operator may visually judge when the 0.3 dB drift has been Subpart C—Instrumentation met or exceeded. (2) The sound level measurement sys- § 325.21 Scope of the rules in this sub- tem must be checked periodically by part. its manufacturer, a representative of The rules in this subpart specify cri- its manufacturer, or a person of equiv- teria for sound level measurement sys- alent special competence to verify that tems which are used to make the sound its accuracy meets the manufacturer’s level measurements specified in sub- design criteria. part D and subpart E of this part. (b) An acoustical calibrator of the microphone coupler type designed for § 325.23 Type of measurement systems the sound level measurement system in which may be used. use shall be used to calibrate the sound The sound level measurement system level measurement system in accord- must meet or exceed the requirements ance with paragraph (a) of this section. of American National Standard Speci- The calibration must meet or exceed fication for Sound Level Meters (ANSI the accuracy requirements specified in S1.4–1971), approved April 27, 1971, section 5.4.1 of the American National issued by the American National Standard Institute Standard Methods Standards Institute,1 throughout the for Measurements of Sound Pressure Lev- applicable frequency range for either: els (ANSI S1.13–1971) for field method (a) A Type 1 sound level meter; measurements. (b) A Type 2 sound level meter; or [40 FR 42437, Sept. 12, 1975, as amended at 41 (c) A Type S sound level meter which FR 10227, Mar. 10, 1976] has— (1) A weighing frequency response; § 325.27 Use of a windscreen. (2) Fast dynamic characteristics of A properly installed windscreen, of its indicating instrument; and the type recommended by the manufac- (3) A relative response level tolerance turer of the Sound Level Measurement consistent with those of either a Type System, shall be used during the time 1 or Type 2 sound level meter, as speci- that noise emission measurements are fied in section 3.2 of ANSI S1.4–1971. being taken. § 325.25 Calibration of measurement systems. Subpart D—Measurement of Noise (a)(1) The sound level measurement Emissions; Highway Operations system must be calibrated and appropriately adjusted at one or more fre- § 325.31 Scope of the rules in this subpart. quencies in the range from 250 to 1,000 Hz at the beginning of each series of The rules in this subpart specify con- measurements and at intervals of 5–15 ditions and procedures for measure- minutes thereafter, until it has been ment of the sound level generated by a determined that the sound level meas- motor vehicle engaged in a highway op- urement system has not significantly eration for the purpose of ascertaining drifted from its calibrated level. Once whether the motor vehicle conforms to this fact has been established, calibra- the Standards for Highway Operations tions may be made at intervals once set forth in 40 CFR 202.20. every hour. A significant drift shall be § 325.33 Site characteristics; highway operations. 1 Copies of the specification may be secured from the American National Standards (a) Measurement shall be made at a Institute, 1430 Broadway, New York, New test site which is adjacent to, and in- York, 10018. cludes a portion of, a traveled lane of a

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public highway. A microphone target (c) The following objects may be point shall be established on the cen- within the test site if they are outside terline of the traveled lane of the high- of the triangular measurement area of way, and a microphone location point the site: shall be established on the ground sur- (1) Any vertical surface (such as bill- face not less than 31 feet (9.5 m) or board), regardless of size, having a more than 83 feet (25.3 m) from the lower edge more than 15 feet (4.6 m) microphone target point and on a line higher than the surface of the traveled that is perpendicular to the centerline lane of the highway. of the traveled lane of the highway and (2) Any uniformly smooth sloping that passes through the microphone surface slanting away from the high- target point. In the case of a standard way (such as a rise in grade alongside test site, the microphone location the highway) with a slope that is less point is 50 feet (15.2 m) from the micro- than 45 degrees above the horizontal. (3) Any surface slanting away from phone target point. Within the test site the highway that is 45 degrees or more is a triangular measurement area. A and not more than 90 degrees above the plan view diagram of a standard test horizontal, if all points on the surface site, having an open site within a 50- are more than 15 feet (4.6 m) above the foot (15.2 m) radius of both the micro- surface of the traveled lane of the high- phone target point and the microphone way. location point, is shown in Figure 1. (d) The surface of the ground within Measurements may be made at a test the measurement area must be rel- site having smaller or greater dimen- atively flat (see § 325.5(c)(5)). The site sions in accordance with the rules in shall be a ‘‘soft’’ test site. However, if subpart F of this part. the site is determined to be ‘‘hard,’’ the correction factor specified in § 325.75(a) of this part shall be applied to the measurement. (e) The traveled lane of the highway within the test site must be dry, paved with relatively smooth concrete or asphalt, and substantially free of— (1) Holes or other defects which would cause a motor vehicle to emit irregular tire, body, or chassis impact noise; and (2) Loose material, such as gravel or sand. (f) The traveled lane of the highway on which the microphone target point is situated must not pass through a tunnel or underpass located within 200 feet (61 m) of that point. (b) The test site must be an open site, essentially free of large sound-reflect- [40 FR 42437, Sept. 12, 1975, as amended at 54 FR 50385, Dec. 6, 1989] ing objects. However, the following objects may be within the test site, in- § 325.35 Ambient conditions; highway cluding the triangular measurement operations. area: (a)(1) Sound. The ambient A-weighted (1) Small cylindrical objects such as sound level at the microphone location fire hydrants or telephone or utility point shall be measured, in the absence poles. of motor vehicle noise emanating from (2) Rural mailboxes. within the clear zone, with fast meter (3) Traffic railings of any type of con- response using a sound level measure- struction except solid concrete barriers ment system that conforms to the (see § 325.5(c)(4)). rules of § 325.23. (4) One or more curbs having a (2) The measured ambient level must vertical height of 1 foot (.3 m) or less. be 10 dB(A) or more below that level

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specified in § 325.7, Table 1, which cor- toward the traveled lane of the high- responds to the maximum permissible way at the microphone target point at sound level reading which is applicable an angle that is consistent with the at the test site at the time of testing. recommendation of the system’s manu- (b) Wind. The wind velocity at the facturer. If the manufacturer of the test shall be measured at the beginning system does not recommend an angle of each series of noise measurements of orientation for its microphone, the and at intervals of 5–15 minutes there- microphone shall be oriented toward after until it has been established that the highway at an angle of not less the wind velocity is essentially con- than 70 degrees and not more than per- stant. Once this fact has been estab- pendicular to the horizontal plane of lished, wind velocity measurements the traveled lane of the highway at the may be made at intervals of once every microphone target point. hour. Noise measurements may only be (d) The sound level measurement sys- made if the measured wind velocity is tem shall be set to the A-weighting 12 mph (19.3 kph) or less. Gust wind network and ‘‘fast’’ meter response measurements of up to 20 mph (33.2 mode. kph) are allowed. [40 FR 42437, Sept. 12, 1975, as amended at 41 (c) Precipitation. Measurements are FR 10227, Mar. 10, 1976] prohibited under any condition of precipitation, however, measurements § 325.39 Measurement procedure; high- may be made with snow on the ground. way operations. The ground surface within the meas- (a) In accordance with the rules in urement area must be free of standing this subpart, a measurement shall be water. made of the sound level generated by a [40 FR 42437, Sept. 12, 1975, as amended at 41 motor vehicle operating through the FR 10227, Mar. 10, 1976; 41 FR 28267, July 9, measurement area on the traveled lane 1976] of the highway within the test site, regardless of the highway grade, load, ac- § 325.37 Location and operation of celeration or deceleration. sound level measurement system; highway operations. (b) The sound level generated by the motor vehicle is the highest reading (a) The microphone of a sound level observed on the sound level measure- measurement system that conforms to ment system as the vehicle passes the rules in § 325.23 of this part shall be through the measurement area, cor- located at a height of not less than 2 rected, when appropriate, in accord- feet (.6 m) nor more than 6 feet (1.8 M) ance with the rules in subpart F of this above the plane of the roadway surface part. (Table 1 in § 325.7 lists the range and not less than 31⁄2 feet (1.1 m) above of maximum permissible sound level the surface on which the microphone readings for various test conditions.) stands. The preferred microphone The sound level of the vehicle being height on flat terrain is 4 feet (1.2 m). measured must be observed to rise at (b)(1) When the sound level measure- least 6 dB(A) before the maximum ment system is hand-held or is other- sound level occurs and to fall at least 6 wise monitored by a person located dB(A) after the maximum sound level near its microphone, the holder must occurs in order to be considered a valid orient himself/herself relative to the sound level reading. highway in a manner consistent with the recommendation of the manufac- [40 FR 42437, Sept. 12, 1975, as amended at 41 turer of the sound level measurement FR 10227, Mar. 10, 1976] system. (2) In no case shall the holder or ob- Subpart E—Measurement of Noise server be closer than 2 feet (.6 m) from Emissions; Stationary Test the system’s microphone, nor shall he/ she locate himself/herself between the § 325.51 Scope of the rules in this sub- microphone and the vehicle being part. measured. (a) The rules in this subpart specify (c) The microphone of the sound level conditions and procedures for meas- measurement system shall be oriented uring the sound level generated by a

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vehicle when the vehicle’s engine is (b) The test site must be an open site, rapidly accelerated from idle to gov- essentially free of large sound-reflect- erned speed at wide open throttle with ing objects. However, the following ob- the vehicle stationary, its transmission jects may be within the test site, in- in neutral, and its clutch engaged, for cluding the triangular measurement the purpose of ascertaining whether area: the motor vehicle conforms to the (1) Small cylindrical objects such as Standard for Operation Under Sta- fire hydrants or telephone or utility tionary Test, 40 CFR 202.21. poles. (b) The rules in this subpart apply (2) Rural mailboxes. only to a motor vehicle that is (3) Traffic railings of any type of con- equipped with an engine speed gov- struction except solid concrete barriers ernor. (see § 325.5(c)(4)). (c) Tests conducted in accordance (4) One or more curbs having a height with the rules of this subpart may be of 1 foot (.3 m) or less. made on either side of the vehicle. (c) The following objects may be within the test site if they are outside § 325.53 Site characteristics; stationary of the triangular measurement area of test. the site: (a)(1) The motor vehicle to be tested (1) Any vertical surface, regardless of shall be parked on the test site. A size (such as a billboard), having a microphone target point shall be estab- lower edge more than 15 feet (4.6 m) lished on the ground surface of the site above the ground. on the centerline of the lane in which (2) Any uniformly smooth surface the motor vehicle is parked at a point slanting away from the vehicle with a that is within 3 feet (.9 m) of the longi- slope that is less than 45 degrees above tudinal position of the vehicle’s ex- the horizontal. haust system outlet(s). A microphone (3) Any surface slanting away from location point shall be established on the vehicle that is 45 degrees or more the ground surface not less than 31 feet and not more than 90 degrees above the (9.5 m) and not more than 83 feet (25.3 horizontal, if all points on the surface m) from the microphone target point. are more than 15 feet (4.6 m) above the Within the test site is a triangular surface of the ground in the test site. (d) The surface of the ground within measurement area. A plan view dia- the measurement area must be rel- gram of a standard test site, having an atively flat. (See § 325.5(c)(5)). The site open site within a 50-foot (15.2 m) ra- shall be a ‘‘hard’’ site. However, if the dius of both the microphone target site is determined to be ‘‘soft,’’ the cor- point and the microphone location rection factor specified in § 325.75(b) of point, is shown in Figure 2. this part shall be applied to the measurement. [40 FR 42437, Sept. 12, 1975, as amended at 41 FR 10227, Mar. 10, 1976; 54 FR 50385, Dec. 6, 1989]

§ 325.55 Ambient conditions; stationary test. (a)(1) Sound. The ambient A-weighted sound level at the microphone location point shall be measured, in the absence of motor vehicle noise emanating from within the clear zone, with fast meter response using a sound level measurement system that conforms to the rules of § 325.23. (2) Measurements may be made at a (2) The measured ambient level must test site having smaller or greater di- be 10 dB(A) or more below that level mensions in accordance with the rules specified in § 325.7, Table 1, which cor- in subpart F of this part. responds to the maximum permissible

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sound level reading which is applicable microphone, the microphone shall be at the test site at the time of testing. oriented at an angle of not less than 70 (b) Wind. The wind velocity at the degrees and not more than perpen- test site shall be measured at the be- dicular to the horizontal plane of the ginning of each series of noise meas- test site at the microphone target urements and at intervals of 5–15 min- point. utes thereafter until it has been estab- (d) The sound level measurement sys- lished that the wind velocity is essen- tem shall be set to the A-weighting tially constant. Once this fact has been network and ‘‘fast’’ meter response established, wind velocity measure- mode. ments may be made at intervals of once every hour. Noise measurements [40 FR 42437, Sept. 12, 1975, as amended at 41 may only be made if the measured wind FR 10227, Mar. 10, 1976] velocity is 12 mph (19.3 kph) or less. § 325.59 Measurement procedure; sta- Gust wind measurements of up to 20 tionary test. mph (33.2 kph) are allowed. (c) Precipitation. Measurements are In accordance with the rules in this prohibited under any conditions of pre- subpart, a measurement shall be made cipitation, however, measurements of the sound level generated by a sta- may be made with snow on the ground. tionary motor vehicle as follows: The ground within the measurement (a) Park the motor vehicle on the area must be free of standing water. test site as specified in § 325.53 of this subpart. If the motor vehicle is a com- [40 FR 42437, Sept. 12, 1975, as amended at 41 bination (articulated) vehicle, park the FR 28267, July 9, 1976] combination so that the longitudinal § 325.57 Location and operation of centerlines of the towing vehicle and sound level measurement systems; the towed vehicle or vehicles are in stationary test. substantial alinement. (a) The microphone of a sound level (b) Turn off all auxiliary equipment measurement system that conforms to which is installed on the motor vehicle the rules in § 325.23 shall be located at and which is designed to operate under a height of not less than 2 feet (.6 m) normal conditions only when the vehi- nor more than 6 feet (1.8 m) above the cle is operating at a speed of 5 mph (8 plane of the roadway surface and not kph) or less. Examples of such equip- less than 31⁄2 feet (1.1 m) above the sur- ment include cranes, asphalt spreaders, face on which the microphone stands. liquid or slurry pumps, auxiliary air The preferred microphone height on compressors, welders, and trash com- flat terrain is 4 feet (1.2 m). pactors. (b) When the sound level measure- (c) If the motor vehicle’s engine radi- ment system is hand-held or otherwise ator fan drive is equipped with a clutch monitored by a person located near its or similar device that automatically microphone, the holder must orient either reduces the rotational speed of himself/herself relative to the highway the fan or completely disengages the in a manner consistent with the rec- fan from its power source in response ommendation of the manufacturer of to reduced engine cooling loads, park the sound level measurement system. the vehicle before testing with its en- In no case shall the holder or observer gine running at high idle or any other be closer than 2 feet (.6 m) from the speed the operator may choose, for suf- system’s microphone, nor shall he/she ficient time but not more than 10 min- locate himself/herself between the utes, to permit the engine radiator fan microphone and the vehicle being to automatically disengage when the measured. vehicle’s noise emissions are measured (c) The microphone of the sound level under stationary test. measurement system shall be oriented (d) With the motor vehicle’s trans- toward the vehicle at an angle that is mission in neutral and its clutch en- consistent with the recommendation of gaged, rapidly accelerate the vehicle’s the system’s manufacturer. If the man- engine from idle to its maximum gov- ufacturer of the system does not rec- erned speed with wide open throttle. ommend an angle of orientation for its Return the engine’s speed to idle.

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(e) Observe the maximum reading on § 325.73 Microphone distance correc- the sound level measurement system tion factors.1 during the time the procedures speci- If the distance between the micro- fied in paragraph (d) of this section are phone location point and the micro- followed. Record that reading, if the phone target point is other than 50 feet reading has not been influenced by ex- (15.2 m), the maximum observed sound traneous noise sources such as motor level reading generated by the motor vehicles operating on adjacent road- vehicle in accordance with § 325.39 of ways. this part or the numerical average of (f) Repeat the procedures specified in the recorded maximum observed sound paragraphs (d) and (e) of this section level readings generated by the motor until the first two maximum sound vehicle in accordance with § 325.59 of level readings that are within 2 dB(A) this part shall be corrected as specified of each other are recorded. Numeri- in the following table: cally average those two maximum sound level readings. When appro- TABLE 2—DISTANCE CORRECTION FACTORS

priate, correct the average figure in ac- The value cordance with the rules in subpart F of dB(A) to be applied this part. If the distance between the microphone location to the ob- (g) The average figure, corrected as point and the microphone target point is served sound appropriate, contained in accordance level read- with paragraph (f) of this section, is ing is— the sound level generated by the motor 31 feet (9.5 m) or more but less than 35 feet vehicle for the purpose of determining (10.7 m) ...... ¥4 whether it conforms to the Standard 35 feet (10.7 m) or more but less than 39 feet ¥ for Operation Under Stationary Test, (11.9 m) ...... 3 39 feet (11.9 m) or more but less than 43 feet 40 CFR 202.21. (Table 1 in § 325.7 lists (13.1 m) ...... ¥2 the range of maximum permissible 43 feet (13.1 m) or more but less than 48 feet sound level readings for various test (14.6 m) ...... ¥1 48 feet (14.6 m) or more but less than 58 feet conditions.) (17.7 m) ...... 0 [40 FR 42437, Sept. 12, 1975, as amended at 41 58 feet (17.7 m) or more but less than 70 feet (21.3 m) ...... +1 FR 10226, Mar. 10, 1976] 70 feet (21.3 m) or more but less than 83 feet (25.3 m) ...... +2 Subpart F—Correction Factors [40 FR 42437, Sept. 12, 1975, as amended at 54 § 325.71 Scope of the rules in this sub- FR 50385, Dec. 6, 1989] part. (a) The rules in this subpart specify § 325.75 Ground surface correction fac- 1 correction factors which are added to, tors. or subtracted from, the reading of the (a) Highway operations. When meas- sound level generated by a motor vehi- urements are made in accordance with cle, as displayed on a sound level meas- the rules in subpart D of this part upon urement system, during the measurement of the motor vehicle’s sound level 1 Table 1, in § 325.7 is a tabulation of the emissions at a test site which is not a maximum allowable sound level readings standard site. taking into account both the distance cor- (b) The purpose of adding or sub- rection factors contained in § 325.73 and the ground surface correction factors contained tracting a correction factor is to in § 325.75. equate the sound level reading actually 1 Table 1, in § 325.7 is a tabulation of the generated by the motor vehicle to the maximum allowable sound level readings sound level reading it would have gen- taking into account both the distance cor- erated if the measurement had been rection factors contained in § 325.73 and the made at a standard test site. ground surface correction factors contained in § 325.75.

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a test site which is ‘‘hard,’’ a correction factor of 2 dB(A) shall be subtracted from the maximum observed sound level reading generated by the motor vehicle to determine whether the motor vehicle conforms to the Standards for Highway Operations, 40 CFR 202.20. (b) Stationary Test. When measurements are made in accordance with the rules in subpart E of this part upon a test site which is ‘‘soft,’’ a correction factor of 2 dB(A) shall be added to the numerical average of the recorded maximum observed sound level readings generated by the motor vehicle to determine whether the motor vehicle conforms to the Standard for Operation Under Stationary Test, 40 CFR 202.21.

§ 325.77 Computation of open site requirements—nonstandard sites. (a) If the distance between the microphone location point and the microphone target point is other than 50 feet (15.2 m), the test site must be an open site within a radius from both points which is equal to the distance between the microphone location point and the microphone target point. (b) Plan view diagrams of nonstandard test sites are shown in Fig- ures 3 and 4. Figure 3 illustrates a test site which is larger than a standard test site and is based upon a 60-foot § 325.79 Application of correction fac- (18.3 m) distance between the micro- tors. phone location point and the micro- (a) If two correction factors apply to phone target point. (See § 325.79(b)(1) a measurement they are applied cumu- for an example of the application of the latively. correction factor to a sound level read- (b) The following examples illustrate ing obtained at such a site.) Figure 4 il- the application of correction factors to lustrates a test site which is smaller sound level measurement readings: than a standard test site and is based (1) Example 1—Highway operations. As- upon a 35-foot (10.7 m) distance be- sume that a motor vehicle generates a tween the microphone location point maximum observed sound level reading and the microphone target point. (See of 86 dB(A) during a measurement in § 325.79(b)(2) for an example of the ap- accordance with the rules in subpart D plication of the correction factor to a of this part. Assume also that the dis- sound level reading obtained at such a tance between the microphone location site.) point and the microphone target point

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is 60 feet (18.3 m) and that the measure- vice is designed as an exhaust gas driv- ment area of the test site is acous- en cargo unloading system. tically ‘‘hard.’’ The corrected sound level generated by the motor vehicle § 325.93 Tires. would be 85 dB(A), calculated as fol- (a) Except as provided in paragraph lows: (b) of this section, a motor vehicle does 86 dB(A) Uncorrected reading not conform to the visual tire inspec- +1 dB(A) Distance correction factor tion requirements, 40 CFR 202.23, of the ¥2 dB(A) Ground surface correction factor Interstate Motor Carrier Noise Emis- lllll sions Standards, if inspection of any 85 dB(A) Corrected reading tire on which the vehicle is operating (2) Example 2—Stationary test. Assume discloses that the tire has a tread pat- that a motor vehicle generates max- tern composed primarily of cavities in imum sound level readings which aver- the tread (excluding sipes and local age 88 dB(A) during a measurement in chunking) which are not vented by accordance with the rules in subpart E grooves to the tire shoulder or circum- of this part. Assume also that the dis- ferentially to each other around the tance between the microphone location tire. point and the microphone target point (b) Paragraph (a) of this section does is 35 feet (10.7 m), and that the meas- not apply to a motor vehicle operated urement area of the test site is acous- on a tire having a tread pattern of the tically ‘‘soft.’’ The corrected sound type specified in that paragraph, if the level generated by the motor vehicle motor carrier who operates the motor would be 87 dB(A), calculated as fol- vehicle demonstrates to the satisfac- lows: tion of the Administrator or his/her designee that either— 88 dB(A) Uncorrected average of readings ¥3 dB(A) Distance correction factor (1) The tire did not have that type of +2 dB(A) Ground surface correction factor tread pattern when it was originally lllll manufactured or newly remanufac- 87 dB(A) Corrected reading tured; or (2) The motor vehicle generates a Subpart G—Exhaust Systems and maximum sound level reading of 90 Tires dB(A) or less when measured at a standard test site for highway oper- § 325.91 Exhaust systems. ations at a distance of 15.3 meters (50 feet) and under the following condi- A motor vehicle does not conform to tions: the visual exhaust system inspection (i) The measurement must be made requirements, 40 CFR 202.22, of the at a time and place and under condi- Interstate Motor Carrier Noise Emis- sion Standards, if inspection of the ex- tions specified by the Administrator or haust system of the motor vehicle dis- his/her designee. closes that the system— (ii) The motor vehicle must be oper- (a) Has a defect which adversely af- ated on the same tires that were in- fects sound reduction, such as exhaust stalled on it when the inspection speci- gas leaks or alteration or deterioration fied in paragraph (a) of this section oc- of muffler elements, (small traces of curred. soot on flexible exhaust pipe sections (iii) The motor vehicle must be oper- shall not constitute a violation of this ated on a highway having a posted subpart); speed limit of more than 56.3 kph (35 (b) Is not equipped with either a muf- mph). fler or other noise dissipative device, (iv) The sound level measurement such as a turbocharger (supercharger must be made while the motor vehicle driven by exhaust gases); or is operating at the posted speed limit. (c) Is equipped with a cut-out, by- [40 FR 42437, Sept. 12, 1975, as amended at 60 pass, or similar device, unless such de- FR 38743, July 28, 1995]

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PART 350—COMMERCIAL MOTOR 350.317 What are Incentive Funds and how may they be used? CARRIER SAFETY ASSISTANCE 350.319 What are permissible uses of High PROGRAM Priority Activity Funds? 350.321 What are permissible uses of Border Subpart A—General Activity Funds? 350.323 What criteria are used in the Basic Sec. Program Funds allocation? 350.101 What is the Motor Carrier Safety As- 350.325 [Reserved] sistance Program (MCSAP)? 350.327 How may States qualify for Incen- 350.103 What is the purpose of this part? tive Funds? 350.105 What definitions are used in this 350.329 How may a State or a local agency part? qualify for High Priority or Border Ac- 350.107 What jurisdictions are eligible for tivity Funds? MCSAP funding? 350.331 How does a State ensure its laws and 350.109 What are the national program ele- regulations are compatible with the ments? FMCSRs and HMRs? 350.111 What constitutes ‘‘traffic enforce- 350.333 What are the guidelines for the comment’’ for the purpose of the MCSAP? patibility review? 350.335 What are the consequences if my Subpart B—Requirements for Participation State has laws or regulations incompat- 350.201 What conditions must a State meet ible with the Federal regulations? to qualify for Basic Program Funds? 350.337 How may State laws and regulations 350.203 [Reserved] governing motor carriers, CMV drivers, 350.205 How and when does a State apply for and CMVs in interstate commerce differ MCSAP funding? from the FMCSRs and still be considered 350.207 What response does a State receive compatible? to its CVSP submission? 350.339 What are tolerance guidelines? 350.209 How does a State demonstrate that 350.341 What specific variances from the it satisfies the conditions for Basic Pro- FMCSRs are allowed for State laws and gram funding? regulations governing motor carriers, 350.211 What is the format of the certifi- CMV drivers, and CMVs engaged in intra- cation required by § 350.209? state commerce and not subject to Fed- 350.213 What must a State CVSP include? eral jurisdiction? 350.215 What are the consequences for a 350.343 How may a State obtain a new ex- State that fails to perform according to emption for State laws and regulations an approved CVSP or otherwise fails to for a specific industry involved in intra- meet the conditions of this part? state commerce? 350.217 What are the consequences for a 350.345 How does a State apply for addi- State with a CDL program not in sub- tional variances from the FMCSRs? stantial compliance with 49 CFR part 384, AUTHORITY: 49 U.S.C. 31100–31104, 31108, subpart B? 31136, 31140–31141, 31161, 31310–31312, 31502; Sec. Subpart C—Funding 103 of Pub. L. 106–159, 113 Stat. 1753; and 49 CFR 1.73.

350.301 What level of effort must a State SOURCE: 65 FR 15102, Mar. 21, 2000, unless maintain to qualify for MCSAP funding? otherwise noted. 350.303 What are the State and Federal shares of expenses incurred under an approved CVSP? Subpart A—General 350.305 Are U.S. Territories subject to the matching funds requirement? § 350.101 What is the Motor Carrier 350.307 How long are MCSAP funds available Safety Assistance Program to a State? (MCSAP)? 350.309 What activities are eligible for reim- The MCSAP is a Federal grant pro- bursement under the MCSAP? gram that provides financial assistance 350.311 What specific items are eligible for reimbursement under the MCSAP? to States to reduce the number and se- 350.313 How are MCSAP funds allocated? verity of accidents and hazardous ma- 350.315 How may Basic Program Funds be terials incidents involving commercial used? motor vehicles (CMV). The goal of the

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MCSAP is to reduce CMV-involved ac- Administrator means Federal Motor cidents, fatalities, and injuries through Carrier Safety Administrator. consistent, uniform, and effective CMV Basic Program Funds means the total safety programs. Investing grant mon- MCSAP funds less the High Priority ies in appropriate safety programs will Activity, Border Activity, Administra- increase the likelihood that safety de- tive Takedown, and Incentive Funds. fects, driver deficiencies, and unsafe Border Activity Funds means funds motor carrier practices will be de- provided to States, local governments, tected and corrected before they be- and other persons carrying out pro- come contributing factors to accidents. grams, activities, and projects relating The MCSAP also sets forth the condi- to CMV safety and regulatory enforce- tions for participation by States and ment supporting the North American local jurisdictions and promotes the Free Trade Agreement (NAFTA) at the adoption and uniform enforcement of U.S. border. Up to 5 percent of total safety rules, regulations, and standards MCSAP funds are available for these compatible with the Federal Motor activities. Carrier Safety Regulations (FMCSRs) Commercial motor vehicle (CMV) means and Federal Hazardous Material Regu- a motor vehicle that has any of the fol- lations (HMRs) for both interstate and lowing characteristics: intrastate motor carriers and drivers. (1) A gross vehicle weight (GVW), § 350.103 What is the purpose of this gross vehicle weight rating (GVWR), part? gross combination weight (GCW), or The purpose of this part is to ensure gross combination weight rating the Federal Motor Carrier Safety Ad- (GCWR) of 4,537 kilograms (10,001 ministration (FMCSA), States, and pounds) or more. other political jurisdictions work in (2) Regardless of weight, is designed partnership to establish programs to or used to transport 16 or more pas- improve motor carrier, CMV, and driv- sengers, including driver. er safety to support a safe and efficient (3) Regardless of weight, is used in transportation system. the transportation of hazardous materials and is required to be placarded § 350.105 What definitions are used in pursuant to 49 CFR part 172, subpart F. this part? Commercial vehicle safety plan (CVSP) 10-year average accident rate means for means the document outlining the each State, the aggregate number of State’s CMV safety objectives, strate- large truck-involved fatal crashes (as gies, activities and performance meas- reported in the Fatality Analysis Re- ures. porting System (FARS)) for a 10-year Compatible or Compatibility means period divided by the aggregate vehicle State laws and regulations applicable miles traveled (VMT) (as defined by the to interstate commerce and to intra- Federal Motor Carrier Safety Adminis- state movement of hazardous materials tration (FMCSA) ) for the same 10-year are identical to the FMCSRs and the period. HMRs or have the same effect as the Accident rate means for each State, FMCSRs. State laws applicable to the total number of fatal crashes in- intrastate commerce are either iden- volving large trucks (as measured by tical to, or have the same effect as, the the FARS for each State) divided by FMCSRs or fall within the established the total VMT as defined by the limited variances under § 350.341. FMCSA for each State for all vehicles. High Priority Activity Funds means Agency means Federal Motor Carrier funds provided to States, local govern- Safety Administration. ments, and other persons carrying out Administrative Takedown Funds means activities and projects that directly funds deducted by the FMCSA each fis- support the MCSAP, are national in cal year from the amount made avail- scope in that the successful activity or able for the MCSAP for expenses in- project could potentially be applied in curred in the administration of the other States on a national scale, and MCSAP, including expenses to train improve CMV safety and compliance State and local government employees. with CMV safety regulations. Up to 5

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percent of total MCSAP funds are § 350.111 What constitutes ‘‘traffic en- available for these activities. forcement’’ for the purpose of the Incentive Funds means funds awarded MCSAP? to States achieving reductions in CMV Traffic enforcement means enforce- involved fatal accidents, CMV fatal ac- ment activities of State or local offi- cident rate, or meeting specified CMV cials, including stopping CMVs oper- safety program performance criteria. ating on highways, streets, or roads for Large truck means a truck over 10,000 violations of State or local motor vehi- pounds gross vehicle weight rating in- cle or traffic laws (e.g., speeding, fol- cluding single unit trucks and truck lowing too closely, reckless driving, tractors (FARS definition). improper lane change). To be eligible Motor carrier means a for-hire motor for funding through the grant, traffic carrier or private motor carrier. The enforcement must include an appro- term includes a motor carrier’s agents, priate North American Standard In- officers, or representatives responsible spection of the CMV or driver or both for hiring, supervising, training, as- prior to releasing the driver or CMV for signing, or dispatching a driver or con- resumption of operations. cerned with the installation, inspection, and maintenance of motor vehicle Subpart B—Requirements for equipment or accessories or both. Participation North American Standard Inspection means the methodology used by State § 350.201 What conditions must a State CMV safety inspectors to conduct safe- meet to qualify for Basic Program ty inspections of CMVs. This consists Funds? of various levels of inspection of the Each State must meet the following vehicle or driver or both. The inspec- twenty-two conditions: tion criteria are developed by the (a) Assume responsibility for improv- FMCSA in conjunction with the Com- ing motor carrier safety and adopting mercial Vehicle Safety Alliance and enforcing State safety laws and (CVSA), an association of States, Cana- regulations that are compatible with dian Provinces, and Mexico whose the FMCSRs (49 CFR parts 390–397) and members agree to adopt these stand- the HMRs (49 CFR parts 107 (subparts F ards for inspecting CMVs in their juris- and G only), 171–173, 177, 178 and 180), diction. except as may be determined by the Administrator to be inapplicable to a § 350.107 What jurisdictions are eligi- State enforcement program. ble for MCSAP funding? (b) Implement a performance-based All of the States, the District of Co- program by the beginning of Fiscal lumbia, the Commonwealth of Puerto Year 2000 and submit a CVSP which Rico, the Commonwealth of the North- will serve as the basis for monitoring ern Mariana Islands, American Samoa, and evaluating the State’s performance. Guam, and the Virgin Islands are eligible to receive MCSAP grants directly (c) Designate, in its State Certifi- from the FMCSA. For purposes of this cation, the lead State agency responsible for implementing the CVSP. subpart, all references to ‘‘State’’ or ‘‘States’’ include these jurisdictions. (d) Ensure that only agencies having the legal authority, resources, and § 350.109 What are the national pro- qualified personnel necessary to en- gram elements? force the FMCSRs and HMRs or compatible State laws or regulations are The national program elements in- assigned to perform functions in ac- clude the following five activities: cordance with the approved CVSP. (a) Driver/vehicle inspections. (e) Allocate adequate funds for the (b) Traffic enforcement. administration of the CVSP including (c) Compliance reviews. the enforcement of the FMCSRs, (d) Public education and awareness. HMRs, or compatible State laws or reg- (e) Data collection. ulations.

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(f) Maintain the aggregate expendi- controlled substances and by ensuring ture of funds by the State and its polit- ready roadside access to alcohol detec- ical subdivisions, exclusive of Federal tion and measuring equipment. funds, for motor carrier and highway (2) Activities aimed at providing an hazardous materials safety enforce- appropriate level of training to MCSAP ment, eligible for funding under this personnel to recognize drivers impaired part, at a level at least equal to the av- by alcohol or controlled substances. erage expenditure for Federal or State (3) Interdiction activities affecting fiscal years 1997, 1998, and 1999. the transportation of controlled sub- (g) Provide legal authority for a right stances by CMV drivers and training on of entry and inspection adequate to appropriate strategies for carrying out carry out the CVSP. those interdiction activities. (h) Prepare and submit to the (r) Enforce requirements relating to FMCSA, upon request, all reports re- the licensing of CMV drivers, including quired in connection with the CVSP or checking the status of commercial other conditions of the grant. drivers’ licenses (CDL). (i) Adopt and use the reporting stand- (s) Require the proper and timely ards and forms required by the FMCSA correction of all CMV safety violations to record work activities performed noted during inspections carried out under the CVSP. with MCSAP funds. (j) Require registrants of CMVs to de- (t)(1) Enforce registration require- clare, at the time of registration, their ments under 49 U.S.C. 13902, and 49 CFR knowledge of applicable FMCSRs, parts 356 and 365, and 49 CFR 392.9a by HMRs, or compatible State laws or reg- placing out-of-service the vehicle dis- ulations. covered to be operating without reg- (k) Grant maximum reciprocity for istration or beyond the scope of its reg- inspections conducted under the North istration. American Standard Inspection through (2) Enforce financial responsibility the use of a nationally accepted system requirements under 49 U.S.C. 13906, that allows ready identification of pre- 31138, 31139, and 49 CFR part 387. viously inspected CMVs. (u) Adopt and maintain consistent, (l) Conduct CMV size and weight en- effective, and reasonable sanctions for forcement activities funded under this violations of CMV, driver, and haz- program only to the extent those ac- ardous materials regulations. tivities do not diminish the effective- (v) Ensure that MCSAP agencies ness of other CMV safety enforcement have policies that stipulate roadside programs. inspections will be conducted at loca- (m) Coordinate the CVSP, data col- tions that are adequate to protect the lection and information systems, with safety of drivers and enforcement per- State highway safety programs under sonnel. title United States Code (U.S.C.). (n) Ensure participation in [65 FR 15102, Mar. 21, 2000, as amended at 67 SAFETYNET and other information FR 55165, Aug. 28, 2002] systems by all appropriate jurisdictions receiving funding under this sec- § 350.203 [Reserved] tion. (o) Ensure information is exchanged § 350.205 How and when does a State apply for MCSAP funding? with other States in a timely manner. (p) Emphasize and improve enforce- (a) The lead agency, designated by ment of State and local traffic laws the Governor, must submit the State’s and regulations related to CMV safety. CVSP to the Motor Carrier State Di- (q) Promote activities in support of rector, FMCSA, on or before August 1 the national program elements listed of each year. in § 350.109, including the following (b) This deadline may, for good cause, three activities: be extended by the State Director for a (1) Activities aimed at removing im- period not to exceed 30 calendar days. paired CMV drivers from the highways (c) For a State to receive funding, through adequate enforcement of re- the CVSP must be complete and in- strictions on the use of alcohol and clude all required documents.

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§ 350.207 What response does a State personnel necessary to enforce the State’s receive to its CVSP submission? commercial motor carrier, driver, and highway hazardous materials safety laws or regu- (a) The FMCSA will notify the State, lations. in writing, within 30 days of receipt of 3. The State will obligate the funds or re- the CVSP whether: sources necessary to provide a matching (1) The plan is approved. share to the Federal assistance provided in (2) Approval of the plan is withheld the grant to administer the plan submitted because the CVSP does not meet the and to enforce the State’s commercial motor carrier safety, driver, and hazardous mate- requirements of this part, or is not ade- rials laws or regulations in a manner con- quate to ensure effective enforcement sistent with the approved plan. of the FMCSRs and HMRs or compat- 4. The laws of the State provide the State’s ible State laws and regulations. enforcement officials right of entry and in- (b) If approval is withheld, the State spection sufficient to carry out the purposes will have 30 days from the date of the of the CVSP, as approved, and provide that notice to modify and resubmit the the State will grant maximum reciprocity for inspections conducted pursuant to the plan. North American Standard Inspection proce- (c) Disapproval of a resubmitted plan dure, through the use of a nationally accept- is final. ed system allowing ready identification of (d) Any State aggrieved by an ad- previously inspected CMVs. verse decision under this section may 5. The State requires that all reports relat- seek judicial review under 5 U.S.C. ing to the program be submitted to the ap- chapter 7. propriate State agency or agencies, and the State will make these reports available, in a timely manner, to the FMCSA on request. § 350.209 How does a State dem- 6. The State has uniform reporting require- onstrate that it satisfies the condi- ments and uses FMCSA designated forms for tions for Basic Program funding? record keeping, inspection, and other en- (a) The Governor, the State’s Attor- forcement activities. ney General, or other State official 7. The State has in effect a requirement specifically designated by the Gov- that registrants of CMVs declare their ernor, must execute a State Certifi- knowledge of the applicable Federal or State CMV safety laws or regulations. cation as described in § 350.211. 8. The State will maintain the level of its (b) The State must submit the State expenditures, exclusive of Federal assist- Certification along with its CVSP, and ance, at least at the level of the average of supplement it with a copy of any State the aggregate expenditures of the State and law, regulation, or form pertaining to its political subdivisions during State or CMV safety adopted since the State’s Federal fiscal years 1997, 1998, and 1999. These last certification that bears on the expenditures must cover at least the fol- items contained in § 350.201 of this sub- lowing four program areas, if applicable: (a) Motor carrier safety programs in ac- part. cordance with 49 CFR 350.301. (b) Size and weight enforcement programs. § 350.211 What is the format of the cer- (c) Traffic safety. tification required by § 350.209? (d) Drug interdiction enforcement pro- The State’s certification must be grams. consistent with the following content: 9. The State will ensure that CMV size and weight enforcement activities funded with I (name), (title), on behalf of the State (or MCSAP funds will not diminish the effec- Commonwealth) of (State), as requested by tiveness of other CMV safety enforcement the Administrator as a condition of approval programs. of a grant under the authority of 49 U.S.C. 10. The State will ensure that violation 31102, as amended, do hereby certify as fol- fines imposed and collected by the State are lows: consistent, effective, and equitable. 1. The State has adopted commercial 11. The State will ensure it has a program motor carrier and highway hazardous mate- for timely and appropriate correction of all rials safety rules and regulations that are violations discovered during inspections con- compatible with the FMCSRs and the HMRs. ducted using MCSAP funds. 2. The State has designated (name of State 12. The State will ensure that the CVSP, CMV safety agency) as the lead agency to ad- data collection, and information systems are minister the CVSP for the grant sought and coordinated with the State highway safety (names of agencies) to perform defined func- program under title 23, U.S. Code. The name tions under the plan. These agencies have of the Governor’s highway safety representa- the legal authority, resources, and qualified tive (or other authorized State official

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through whom coordination was accom- controlled substances and by ensuring plished) is llllll. (Name) ready roadside access to alcohol detec- 13. The State participates in SAFETYNET tion and measuring equipment. and ensures information is exchanged with (2) Activities aimed at providing an other States in a timely manner. 14. The State has undertaken efforts to em- appropriate level of training to MCSAP phasize and improve enforcement of State personnel to recognize drivers impaired and local traffic laws as they pertain to CMV by alcohol or controlled substances. safety. (3) Interdiction activities affecting 15. Ensure that MCSAP agencies have de- the transportation of controlled sub- partmental policies stipulating that roadside stances by CMV drivers and training on inspections will be conducted at locations appropriate strategies for carrying out that are adequate to protect the safety of those interdiction activities. drivers and enforcement personnel. 16. The State will ensure that require- (4) Activities to enforce registration ments relating to the licensing of CMV driv- requirements under 49 U.S.C. 13902 and ers are enforced, including checking the sta- 49 CFR part 365 and financial responsi- tus of CDLs. bility requirements under 49 U.S.C. Date lllllllllllllllllllll 13906, 31138 and 31139 and 49 CFR part Signature llllllllllllllllll 387. (c) A definitive problem statement § 350.213 What must a State CVSP infor each objective, supported by data or clude? other information. The CVSP must The State’s CVSP must reflect a per- identify the source of the data, and formance-based program, and contain who is responsible for its collection, the following eighteen items: maintenance, and analysis. (a) A general overview section that (d) Performance objectives, stated in must include the following two items: quantifiable terms, to be achieved (1) A statement of the State agency through the State plan. Objectives goal or mission. must include a measurable reduction in (2) A program summary of the effec- highway accidents or hazardous mate- tiveness of the prior years’ activities in rials incidents involving CMVs. The ob- reducing CMV accidents, injuries and jective may also include documented fatalities, and improving driver and improvements in other program areas motor carrier safety performance. Data (e.g., legislative or regulatory author- periods used must be consistent from ity, enforcement results, or resource year to year. This may be calendar allocations). year or fiscal year or any 12-month pe- (e) Strategies to be employed to riod of time for which the State’s data achieve performance objectives. Strat- is current. The summary must show egies may include education, enforce- trends supported by safety and pro- ment, legislation, use of technology gram performance data collected over and improvements to safety infrastruc- several years. It must identify safety ture. or performance problems in the State (f) Specific activities intended to and those problems must be addressed achieve the stated strategies and objec- in the new or modified CVSP. tives. Planned activities must be eligi- (b) A brief narrative describing how ble under this program as defined in the State program addresses the na- §§ 350.309 and 350.311. tional program elements listed in (g) Specific quantifiable performance § 350.109. The plan must address these measures, as appropriate. These per- elements even if there are no planned formance measures will be used to as- activities in a program area. The ra- sist the State in monitoring the tionale for the resource allocation de- progress of its program and preparing cision must be explained. The narrative an annual evaluation. section must include a description of (h) A description of the State’s meth- how the State supports the three ac- od for ongoing monitoring of the tivities identified in § 350.201(q): progress of its plan. This should in- (1) Activities aimed at removing im- clude who will conduct the monitoring, paired CMV drivers from the highways the frequency with which it will be car- through adequate enforcement of re- ried out, and how and to whom reports strictions on the use of alcohol and will be made.

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(i) An objective evaluation that dis- (c) After considering the State’s cusses the progress towards individual reply, the Administrator will make a objectives listed under the final decision. ‘‘Performance Objectives’’ section of (d) In the event the State fails timely the previous year’s CVSP and identifies to reply to a notice of proposed deter- any safety or performance problems mination of nonconformity, the notice discovered. States will identify those becomes the Administrator’s final de- problems as new objectives or make termination of nonconformity. modifications to the existing objec- (e) Any adverse decision will result in tives in the next CVSP. immediate cessation of Federal funding (j) A budget which supports the under this part. CVSP, describing the expenditures for (f) Any State aggrieved by an adverse allocable costs such as personnel and decision under this section may seek related costs, equipment purchases, judicial review under 5 U.S.C. chapter printing, information systems costs, 7. and other eligible costs consistent with §§ 350.311 and 350.309. § 350.217 What are the consequences (k) A budget summary form includ- for a State with a CDL program not in substantial compliance with 49 ing planned expenditures for that fiscal CFR part 384, subpart B? year and projected number of activities in each national program element, ex- (a) A State with a CDL program not cept data collection. in substantial compliance with 49 CFR (l) The results of the annual review part 384, subpart B, as required by 49 to determine the compatibility of CFR part 384, subpart C, is subject to State laws and regulations with the the loss of all Motor Carrier Safety As- sistance Program (MCSAP) grant funds FMCSRs and HMRs. authorized under sec. 103(b)(1) of the (m) A copy of any new law or regula- Motor Carrier Safety Improvement Act tion affecting CMV safety enforcement of 1999 [Pub. L. 106–159, 113 Stat. 1748] that was enacted by the State since the and loss of certain Federal-aid highway last CVSP was submitted. funds, as specified in 49 CFR part 384, (n) Executed State Certification as subpart D. outlined in § 350.211. (b) Withheld MCSAP grant funds will (o) Executed MCSAP–1 form. be restored to the State if the State (p) List of MCSAP contacts. meets the conditions of § 384.403(b) of (q) Annual Certification of Compat- this subchapter. ibility, § 350.331. (r) State Training Plan. [67 FR 49755, July 31, 2002]

§ 350.215 What are the consequences Subpart C—Funding for a State that fails to perform according to an approved CVSP or § 350.301 What level of effort must a otherwise fails to meet the condi- State maintain to qualify for tions of this part? MCSAP funding? (a) If a State is not performing ac- (a) The State must maintain the av- cording to an approved plan or not ade- erage aggregate expenditure (monies quately meeting conditions set forth in spent during the base period of Federal § 350.201, the Administrator may issue a or State fiscal years 1997, 1998, and 1999) written notice of proposed determina- of State funds for motor carrier and tion of nonconformity to the Governor highway hazardous materials safety of the State or the official designated enforcement purposes, in the year in in the plan. The notice will set forth which the grant is sought. the reasons for the proposed deter- (b) Determination of a State’s level mination. of effort must not include the following (b) The State will have 30 days from three things: the date of the notice to reply. The (1) Federal funds received for support reply must address the deficiencies or of motor carrier and hazardous mate- incompatibility cited in the notice and rials safety enforcement. provide documentation as necessary. (2) State matching funds.

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(3) State funds used for federally (1) Enforcement of size and weight sponsored demonstration or pilot CMV regulations conducted at locations safety programs. other than fixed weight facilities, at (c) The State must include costs as- specific geographical locations where sociated with activities performed dur- the weight of the vehicle can signifi- ing the base period by State or local cantly affect the safe operation of the agencies currently receiving or pro- vehicle, or at seaports where inter- jected to receive funds under this part. modal shipping containers enter and It must include only those activities exit the United States. which meet the current requirements (2) Detection of the unlawful pres- for funding eligibility under the grant ence of controlled substances in a CMV program. or on the driver or any occupant of a CMV. § 350.303 What are the State and Fed- (3) Enforcement of State traffic laws eral shares of expenses incurred under an approved CVSP? and regulations designed to promote the safe operation of CMVs. (a) The FMCSA will reimburse up to 80 percent of the eligible costs incurred § 350.311 What specific items are eligi- in the administration of an approved ble for reimbursement under the CVSP. MCSAP? (b) In-kind contributions are accept- All reimbursable items must be nec- able in meeting the State’s matching essary, reasonable, allocable to the ap- share if they represent eligible costs as proved CVSP, and allowable under this established by 49 CFR part 18 or agency part and 49 CFR part 18. The eligibility policy. of specific items is subject to review by § 350.305 Are U.S. Territories subject the FMCSA. The following six types of to the matching funds requirement? expenses are eligible for reimbursement: The Administrator waives the re- (a) Personnel expenses, including requirement for matching funds for the cruitment and screening, training, sal- Virgin Islands, American Samoa, aries and fringe benefits, and super- Guam, and the Commonwealth of the vision. Northern Mariana Islands. (b) Equipment and travel expenses, § 350.307 How long are MCSAP funds including per diem, directly related to available to a State? the enforcement of safety regulations, The funds obligated to a State will including vehicles, uniforms, commu- remain available for the rest of the fis- nications equipment, special inspection cal year in which they were obligated equipment, vehicle maintenance, fuel, and the next full fiscal year. The State and oil. must account for any prior year’s un- (c) Indirect expenses for facilities, ex- expended funds in the annual CVSP. cept fixed scales, used to conduct in- Funds must be expended in the order in spections or house enforcement per- which they are obligated. sonnel, support staff, and equipment to the extent they are measurable and re- § 350.309 What activities are eligible curring (e.g., rent and overhead). for reimbursement under the (d) Expenses related to data acquisi- MCSAP? tion, storage, and analysis that are The primary activities eligible for re- specifically identifiable as program-reimbursement are: lated to develop a data base to coordi- (a) The five national program ele- nate resources and improve efficiency. ments listed in § 350.109 of this part. (e) Clerical and administrative ex- (b) Sanitary food transportation in- penses, to the extent necessary and di- spections performed under 49 U.S.C. rectly attributable to the MCSAP. 5708. (f) Expenses related to the improve- (c) The following three activities, ment of real property (e.g., installation when accompanied by an appropriate of lights for the inspection of vehicles North American Standard Inspection at night). Acquisition of real property, and inspection report: land, or buildings are not eligible costs.

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§ 350.313 How are MCSAP funds allo- § 350.319 What are permissible uses of cated? High Priority Activity Funds? (a) After deducting administrative (a) The FMCSA may generally use expenses authorized in 49 U.S.C. these funds to support, enrich, or 31104(e), the MCSAP funds are allo- evaluate State CMV safety programs cated as follows: and to accomplish the five objectives (1) Up to 5 percent of the MCSAP listed below: funds appropriated for each fiscal year (1) Implement, promote, and main- may be distributed for High Priority tain national programs to improve Activities and Projects at the discre- CMV safety. tion of the Administrator. (2) Increase compliance with CMV safety regulations. (2) Up to 5 percent of the MCSAP (3) Increase public awareness about funds appropriated for each fiscal year CMV safety. may be distributed for Border CMV (4) Provide education on CMV safety Safety and Enforcement Programs at and related issues. the discretion of the Administrator. (5) Demonstrate new safety related (3) The remaining funds will be allo- technologies. cated among qualifying States in two (b) These funds will be allocated, at ways: the discretion of the FMCSA, to (i) As Basic Program Funds in ac- States, local governments, and other cordance with § 350.323 of this part, organizations that use and train quali- (ii) As Incentive Funds in accordance fied officers and employees in coordina- with § 350.327 of this part. tion with State safety agencies. (b) The funding provided in para- (c) The FMCSA will notify the States graphs (a)(1) and (a)(2) of this section when such funds are available. may be awarded through contract, co- (d) The Administrator may designate operative agreement, or grant. The up to 5 percent of the annual MCSAP FMCSA will notify States if it intends funding for these projects and activi- to solicit State grant proposals for any ties. portion of this funding. (c) The funding provided under para- § 350.321 What are permissible uses of Border Activity Funds? graphs (a)(1) and (a)(2) of this section may be made available to State (a) The FMCSA may generally use MCSAP lead agencies, local govern- such funds to develop and implement a ments, and other persons that use and national program addressing CMV safe- train qualified officers and employees ty and enforcement activities along the in coordination with State motor vehi- United States’ borders. cle safety agencies. (b) These funds will be allocated, at the discretion of the FMCSA, to § 350.315 How may Basic Program States, local governments, and other Funds be used? organizations that use and train qualified officials and employees in coordi- Basic Program Funds may be used nation with State safety agencies. The for any eligible activity or item con- FMCSA will notify the States when sistent with §§ 350.309 and 350.311. such funds are available. The Adminis- trator may designate up to 5 percent of § 350.317 What are Incentive Funds the annual MCSAP funding for these and how may they be used? projects and activities. Incentive Funds are monies, in addition to Basic Program Funds, provided § 350.323 What criteria are used in the to States that achieve reduction in Basic Program Funds allocation? CMV-involved fatal accidents, CMV (a) The funds are distributed propor- fatal accident rate, or that meet speci- tionally to the States using the fol- fied CMV safety performance criteria. lowing four, equally weighted (25 per- Incentive Funds may be used for any cent), factors. eligible activity or item consistent (1) 1997 Road miles (all highways) as with §§ 350.309 and 350.311. defined by the FMCSA.

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(2) All vehicle miles traveled (VMT) (4) Special fuel consumption (net as defined by the FMCSA. after reciprocity adjustment) as de- (3) Population—annual census esti- fined by the FMCSA. mates as issued by the U.S. Census Bu- (b) Distribution of Basic Program reau. Funds is subject to a maximum and minimum allocation as illustrated in the Table to this section, as follows:

TABLE TO ¤ 350.323(b)—BASIC PROGRAM FUND ALLOCATION LIMITATIONS

Recipient Maximum allocation Minimum allocation

States and Puerto Rico ... 4.944% of the Basic Program Funds ...... $350,000 or 0.44% of Basic Program Funds, whichever is greater.

U.S. Territories ...... $350,000 (fixed amount)

§ 350.325 [Reserved] (2) Four shares will be awarded to States that reduce the fatal-accident § 350.327 How may States qualify for rate for the most recent calendar year Incentive Funds? for which data are available when com- (a) A State may qualify for Incentive pared to each State’s average fatal ac- Funds if it can demonstrate that its cident rate for the preceding 10-year CMV safety program has shown im- period. States with the lowest 10 per- provement in any or all of the fol- cent of accident rates in the most re- lowing five categories: cent calendar year for which data are (1) Reduction of large truck-involved available will be awarded three shares fatal accidents. if the rate for the State is the same as its average accident rate for the pre- (2) Reduction of large truck-involved ceding 10-year period. fatal accident rate or maintenance of a (3) Two shares will be awarded to large truck-involved fatal accident States that upload CMV accident data rate that is among the lowest 10 per- within FMCSA policy guidelines. cent of such rates of MCSAP recipi- (4) Two shares will be awarded to ents. States that certify their MCSAP in- (3) Upload of CMV accident reports in spection agencies have departmental accordance with current FMCSA policy policies that stipulate CDLs are guidelines. verified, as part of the inspection proc- (4) Verification of CDLs during all ess, through Commercial Driver’s Li- roadside inspections. cense Information System (CDLIS), (5) Upload of CMV inspection data in National Law Enforcement Tracking accordance with current FMCSA policy System (NLETS), or the State licens- guidelines. ing authority. (b) Incentive Funds will be distrib- (5) Two shares will be awarded to uted based upon the five following safe- States that upload CMV inspection re- ty and program performance factors: ports within current FMCSA policy (1) Five shares will be awarded to guidelines. States that reduce the number of large (c) The total of all States’ shares truck-involved fatal accidents for the awarded will be divided into the dollar most recent calendar year for which amount of Incentive Funds available, data are available when compared to thereby establishing the value of one the 10-year average number of large share. Each State’s incentive alloca- truck-involved fatal accidents ending tion will then be determined by multi- with the preceding year. The 10-year plying the State’s percentage partici- average will be computed from the pation in the formula allocation of number of large truck-involved fatal Basic Program Funds, by the number crashes, as reported by the FARS, ad- of shares it received that year, multi- ministered by the National Highway plied by the dollar value of one share. Traffic Safety Administration (d) States may use Incentive Funds (NHTSA). for any eligible CMV safety purpose.

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(e) Incentive Funds are subject to the mediately after enactment or issuance, same State matching requirements as for compatibility with the FMCSRs Basic Program Funds. and HMRs. (f) A State must annually certify (b) If the review determines that the compliance with the applicable incen- new law or regulation is incompatible tive criteria to receive Incentive with the FMCSRs and/or HMRs, the Funds. A State must submit the re- State must immediately notify the quired certification as part of its CVSP Motor Carrier State Director. or as a separate document. (c) A State must conduct an annual review of its laws and regulations for § 350.329 How may a State or a local compatibility and report the results of agency qualify for High Priority or Border Activity Funds? that review in the annual CVSP in accordance with § 350.213(l) along with a (a) States must meet the require- certification of compliance, no later ments of § 350.201, as applicable. than August 1 of each year. The report (b) Local agencies must meet the fol- must include the following two items: lowing nine conditions: (1) A copy of the State law, regula- (1) Prepare a proposal in accordance tion, or policy relating to CMV safety with § 350.213, as applicable. that was adopted since the State’s last (2) Coordinate the proposal with the report. State lead MCSAP agency to ensure (2) A certification, executed by the the proposal is consistent with State State’s Governor, Attorney General, or and national CMV safety program pri- other State official specifically des- orities. ignated by the Governor, stating that (3) Certify that your local jurisdic- the annual review was performed and tion has the legal authority, resources, that State CMV safety laws remain and trained and qualified personnel compatible with the FMCSRs and necessary to perform the functions HMRs. If State CMV laws are no longer specified in the proposal. compatible, the certifying official shall (4) Designate a person who will be re- explain. sponsible for implementation, reporting, and administering the approved (d) As soon as practical after the ef- proposal and will be the primary con- fective date of any newly enacted regu- tact for the project. lation or amendment to the FMCSRs (5) Agree to fund up to 20 percent of or HMRs, but no later than three years the proposed request. after that date, the State must amend (6) Agree to prepare and submit all its laws or regulations to make them reports required in connection with the compatible with the FMCSRs and/or proposal or other conditions of the HMRs, as amended. grant. § 350.333 What are the guidelines for (7) Agree to use the forms and report- the compatibility review? ing criteria required by the State lead MCSAP agency and/or the FMCSA to (a) The State law or regulation must record work activities to be performed apply to all segments of the motor car- under the proposal. rier industry (i.e., for-hire and private (8) Certify that the local agency will motor carriers of property and pas- impose sanctions for violations of CMV sengers). and driver laws and regulations that (b) Laws and regulations reviewed for are consistent with those of the State. the CDL compliance report are ex- (9) Certify participation in national cluded from the compatibility review. data bases appropriate to the project. (c) Definitions of words or terms must be consistent with those in the § 350.331 How does a State ensure its FMCSRs and HMRs. laws and regulations are compat- (d) A State must identify any law or ible with the FMCSRs and HMRs? regulation that is not the same as the (a) A State must review any new law corresponding Federal regulation and or regulation affecting CMV safety as evaluate it in accordance with the soon as possible, but in any event im- table to this section as follows:

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TABLE TO ¤ 350.333—GUIDELINES FOR THE STATE LAW AND REGULATION COMPATIBILITY REVIEW

Law or regulation has same effect as cor- Applies to interstate or Less stringent or more responding Federal reg- intrastate commerce stringent Action authorized ulation

(1) Yes ...... Compatible—Interstate and intrastate commerce enforcement authorized. (2) No ...... Intrastate ...... Refer to ¤ 350.341 (3) No ...... Interstate ...... Less stringent ...... Enforcement prohibited. (4) No ...... Interstate ...... More stringent ...... Enforcement authorized if the State can demonstrate the law or regulation has a safety benefit or does not create an undue burden upon interstate commerce (See 49 CFR Part 355).

§ 350.335 What are the consequences if (e) Any decision regarding the com- my State has laws or regulations in- patibility of your State law or regula- compatible with the Federal regulation with the HMRs that requires an tions? interpretation will be referred to the (a) A State that currently has com- Research and Special Programs Admin- patible CMV safety laws and regula- istration of the DOT for such interpre- tions pertaining to interstate com- tation before proceeding under § 350.215. merce (i.e., rules identical to the § 350.337 How may State laws and reg- FMCSRs and HMRs) and intrastate ulations governing motor carriers, commerce (i.e., rules identical to or CMV drivers, and CMVs in inter- within the tolerance guidelines for the state commerce differ from the FMCSRs and identical to the HMRs) FMCSRs and still be considered but enacts a law or regulation which compatible? results in an incompatible rule will not States are not required to adopt 49 be eligible for Basic Program Funds CFR parts 398 and 399, subparts A nor Incentive Funds. through E and H of part 107, and (b) A State that fails to adopt any §§ 171.15 and 171.16, as applicable to ei- new regulation or amendment to the ther interstate or intrastate com- FMCSRs or HMRs within three years of merce. its effective date will be deemed to have incompatible regulations and will § 350.339 What are tolerance guide- not be eligible for Basic Program nor lines? Incentive Funds. Tolerance guidelines set forth the (c) Those States with incompatible limited deviations from the FMCSRs laws or regulations pertaining to intra- allowed in your State’s laws and regu- state commerce and receiving 50 per- lations. These variances apply only to cent of their basic formula allocation motor carriers, CMV drivers and CMVs on April 20, 2000 will continue at that engaged in intrastate commerce and level of funding until those incompati- not subject to Federal jurisdiction. bilities are removed, provided no further incompatibilities are created. § 350.341 What specific variances from the FMCSRs are allowed for State (d) Upon a finding by the FMCSA, laws and regulations governing based upon its own initiative or upon a motor carriers, CMV drivers, and petition of any person, including any CMVs engaged in intrastate com- State, that your State law, regulation merce and not subject to Federal or enforcement practice pertaining to jurisdiction? CMV safety, in either interstate or (a) A State may exempt a CMV from intrastate commerce, is incompatible all or part of its laws or regulations ap- with the FMCSRs or HMRs, the plicable to intrastate commerce, pro- FMCSA may initiate a proceeding vided that neither the GVW, GVWR, under § 350.215 for withdrawal of eligi- GCW, nor GCWR of the vehicle equals bility for all Basic Program and Incen- or exceeds 11,801 kg (26,001 lbs.). How- tive Funds. ever, a State may not exempt a CMV

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from such laws or regulations if the ve- fication standards compatible with the hicle: Federal standards in 49 CFR 391.41. (1) Transports hazardous materials (ii) The otherwise non-qualifying requiring a placard. medical or physical condition has not (2) Is designed or used to transport 16 substantially worsened. or more people, including the driver. (iii) No other non-qualifying medical (b) State laws and regulations appli- or physical condition has developed. cable to intrastate commerce may not (2) The State may adopt or continue grant exemptions based upon the type programs granting variances to intra- of transportation being performed (e.g., state drivers with medical or physical for-hire, private, etc.). conditions that would otherwise be (c) A State may retain those exemp- non-qualifying under the State’s equiv- tions from its motor carrier safety alent of 49 CFR 391.41 if the variances laws and regulations that were in ef- are based upon sound medical judg- fect before April, 1988, are still in ef- ment combined with appropriate per- fect, and apply to specific industries formance standards ensuring no ad- operating in intrastate commerce. verse affect on safety. (d) State laws and regulations applicable to intrastate commerce must not § 350.343 How may a State obtain a include exemptions based upon the dis- new exemption for State laws and tance a motor carrier or driver oper- regulations for a specific industry ates from the work reporting location. involved in intrastate commerce? This prohibition does not apply to The FMCSA strongly discourages ex- those exemptions already contained in the FMCSRs nor to the extension of emptions for specific industries, but the mileage radius exemption con- will consider such requests if the State tained in 49 CFR 395.1(e) from 100 to 150 submits documentation containing in- miles. formation supporting evaluation of the (e) Hours of service—State hours-of- following 10 factors: service limitations applied to intra- (a) Type and scope of the industry ex- state transportation may vary to the emption requested, including percent- extent of allowing the following: age of industry affected, number of ve- (1) A 12-hour driving limit, provided hicles, mileage traveled, number of driving a CMV after having been on companies involved. duty more than 16 hours is prohibited. (b) Type and scope of the require- (2) Driving prohibitions for drivers ment to which the exemption would who have been on duty 70 hours in 7 apply. consecutive days or 80 hours in 8 con- (c) Safety performance of that spe- secutive days. cific industry (e.g., accident frequency, (f) Age of CMV driver—All CMV driv- rates and comparative figures). ers must be at least 18 years of age. (d) Inspection information (e.g., num- (g) Grandfather clauses—States may ber of violations per inspection, driver provide grandfather clauses in their and vehicle out-of-service informa- rules and regulations if such exemption). tions are uniform or in substantial har- (e) Other CMV safety regulations en- mony with the FMCSRs and provide an forced by other State agencies not par- orderly transition to full regulatory ticipating in the MCSAP. adoption at a later date. (f) Commodity transported (e.g., live- (h) Driver qualifications: stock, grain). (1) Intrastate drivers who do not (g) Similar variations granted and meet the physical qualification stand- the circumstances under which they ards in 49 CFR 391.41 may continue to were granted. be qualified to operate a CMV in intrastate commerce if the following three (h) Justification for the exemption. conditions are met: (i) Identifiable effects on safety. (i) The driver was qualified under ex- (j) State’s economic environment and isting State law or regulation at the its ability to compete in foreign and time the State adopted physical quali- domestic markets.

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§ 350.345 How does a State apply for (c) To establish deadlines for States additional variances from the to achieve compatibility with appro- FMCSRs? priate parts of the Federal Motor Car- Any State may apply to the Adminis- rier Safety Regulations with respect to trator for a variance from the FMCSRs interstate commerce. for intrastate commerce. The variance will be granted only if the State satis- § 355.3 Applicability. factorily demonstrates that the State These provisions apply to any State law, regulation or enforcement prac- that adopts or enforces laws or regula- tice: tions pertaining to commercial motor (a) Achieves substantially the same vehicle safety in interstate commerce. purpose as the similar Federal regulation. § 355.5 Definitions. (b) Does not apply to interstate com- Unless specifically defined in this merce. section, terms used in this part are (c) Is not likely to have an adverse subject to the definitions in 49 CFR impact on safety. 390.5. Compatible or Compatibility means PART 355—COMPATIBILITY OF that State laws and regulations appli- STATE LAWS AND REGULATIONS cable to interstate commerce and to AFFECTING INTERSTATE MOTOR intrastate movement of hazardous ma- CARRIER OPERATIONS terials are identical to the FMCSRs and the HMRs or have the same effect as the FMCSRs; and that State laws Subpart A—General Applicability and applicable to intrastate commerce are Definitions either identical to, or have the same Sec. effect as, the FMCSRs or fall within 355.1 Purpose. the established limited variances under 355.3 Applicability. §§ 350.341, 350.343, and 350.345 of this sub- 355.5 Definitions. chapter. Subpart B—Requirements Federal Hazardous Materials Regula- tions (FMHRs) means those safety regu- 355.21 Regulatory review. lations which are contained in parts 355.23 Submission of results. 107, 171–173, 177, 178 and 180, except part 355.25 Adopting and enforcing compatible 107 and §§ 171.15 and 171.16. laws and regulations. Federal Motor Carrier Safety Regula- APPENDIX A TO PART 355—GUIDELINES FOR tions (FMCSRs) means those safety reg- THE REGULATORY REVIEW ulations which are contained in parts AUTHORITY: 49 U.S.C. 504 and 31101 et seq.; 49 390, 391, 392, 393, 395, 396, and 397 of this CFR 1.73. subchapter. SOURCE: 57 FR 40962, Sept. 8, 1992, unless State means a State of the United otherwise noted. States, the District of Columbia, the Commonwealth of Puerto Rico, the EDITORIAL NOTE: Nomenclature changes to part 355 appear at 66 FR 49870, Oct. 1, 2001. Commonwealth of the Northern Mar- iana Islands, American Samoa, Guam Subpart A—General Applicability and the Virgin Islands. and Definitions [57 FR 40962, Sept. 8, 1992, as amended at 65 FR 15109, Mar. 21, 2000] § 355.1 Purpose. (a) To promote adoption and enforce- Subpart B—Requirements ment of State laws and regulations pertaining to commercial motor vehicle § 355.21 Regulatory review. safety that are compatible with appro- (a) General. Each State shall annu- priate parts of the Federal Motor Car- ally analyze its laws and regulations, rier Safety Regulations. including those of its political subdivi- (b) To provide guidelines for a con- sions, which pertain to commercial tinuous regulatory review of State motor vehicle safety to determine laws and regulations. whether its laws and regulations are

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compatible with the Federal Motor § 355.23 Submission of results. Carrier Safety Regulations. Guidelines Each State shall submit the results for the regulatory review are provided of its regulatory review annually with in the appendix to this part. its certification of compliance under (b) Responsibility. The State agency § 350.209 of this subchapter. It shall sub- designated as lead agency for the admit the results of the regulatory re- ministration of grants made pursuant view with the certification no later to part 350 of this subchapter is respon- than August 1 of each year with the sible for reviewing and analyzing State Commercial Vehicle Safety Plan laws and regulations for compliance (CVSP). The State shall include copies with this part. In the absence of an of- of pertinent laws and regulations. ficially designated Motor Carrier Safe- [65 FR 15109, Mar. 21, 2000] ty Assistance Program (MCSAP) lead agency or in its discretion, the State § 355.25 Adopting and enforcing com- shall designate another agency respon- patible laws and regulations. sible to review and determine compli- (a) General. No State shall have in ef- ance with these regulations. fect or enforce any State law or regula- (c) State review. (1) The State shall tion pertaining to commercial motor determine which of its laws and regula- vehicle safety in interstate commerce tions pertaining to commercial motor which the Administrator finds to be in- vehicle safety are the same as the Fed- compatible with the provisions of the eral Motor Carrier Safety or Federal Federal Motor Carrier Safety Regula- Hazardous Materials Regulations. With tions. respect to any State law or regulation (b) New state requirements. No State which is not the same as the FMCSRs shall implement any changes to a law (FHMRs must be identical), the State or regulation which makes that or any shall identify such law or regulation other law or regulation incompatible and determine whether: with a provision of the Federal Motor (i) It has the same effect as a cor- Carrier Safety Regulations. responding section of the Federal (c) Enforcement. To enforce compliance with this section, the Adminis- Motor Carrier Safety Regulations; trator will initiate a rulemaking pro- (ii) It applies to interstate com- ceeding under part 389 of this sub- merce; chapter to declare the incompatible (iii) It is more stringent than the State law or regulation pertaining to FMCSRs in that it is more restrictive commercial motor vehicle safety unen- or places a greater burden on any enti- forceable in interstate commerce. ty subject to its provisions. (d) Waiver of determination. Any per- (2) If the inconsistent State law or son (including any State) may petition regulation applies to interstate com- for a waiver of a determination made merce and is more stringent than the under paragraph (c) of this section. FMCSRs, the State shall determine: Such petition will also be considered in (i) The safety benefits associated a rulemaking proceeding under part with such State law or regulation; and 389. Waivers shall be granted only upon (ii) The effect of the enforcement of a satisfactory showing that continued such State law or regulation on inter- enforcement of the incompatible State state commerce. law or regulation is not contrary to the (3) If the inconsistent State law or public interest and is consistent with regulation does not apply to interstate the safe operation of commercial commerce or is less stringent than the motor vehicles. FMCSRs, the guidelines for participa- (e) Consolidation of proceedings. The tion in the Motor Carrier Safety As- Administrator may consolidate any action to enforce this section with other sistance Program in §§ 350.341, 350.343, proceedings required under this section and 350.345 of this subchapter shall if the Administrator determines that apply. such consolidation will not adversely [57 FR 40962, Sept. 8, 1992, as amended at 65 affect any party to any such pro- FR 15109, Mar. 21, 2000] ceeding.

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APPENDIX A TO PART 355—GUIDELINES HOURS OF SERVICE OF DRIVERS FOR THE REGULATORY REVIEW Prohibit a motor carrier from allowing or requiring any driver to drive: More than 10 Each State shall review its laws and regu- hours following 8 consecutive hours off duty; lations to achieve compatibility with the after being on duty 15 hours, after being on Federal Motor Carrier Safety Regulations duty more than 60 hours in any 7 consecutive (FMCSRs). Each State shall consider all re- days; or after being on duty more than 70 lated requirements on enforcement of the hours in any 8 consecutive days. State’s motor carrier safety regulations. The Require a driver to prepare a record-of- documentation shall be simple and brief. duty status for each 24-hour period. The driver and motor carrier must retain the records. SCOPE The State review required by § 355.21 may INSPECTION AND MAINTENANCE be limited to those laws and regulations pre- Prohibit a commercial motor vehicle from viously determined to be incompatible in the being operated when it is likely to cause an report of the Commercial Motor Vehicle accident or a breakdown; require the driver Safety Regulatory Review Panel issued in to conduct a walk-around inspection of the August 1990, or by subsequent determination vehicle before driving it to ensure that it can by the Administrator under this part, and be safely operated; require the driver to pre- any State laws or regulations enacted or pare a driver vehicle inspection report; and issued after August 1990. require commercial motor vehicles to be inspected at least annually. APPLICABILITY HAZARDOUS MATERIALS The requirements must apply to all segments of the motor carrier industry com- Require a motor carrier or a person oper- mon, contract, and private carriers of prop- ating a commercial motor vehicle trans- erty and for-hire carriers of passengers. porting hazardous materials to follow the safety and hazardous materials require- DEFINITIONS ments.

Definitions of terms must be consistent STATE DETERMINATIONS with those in the FMCSRs. 1. Each State must determine whether its DRIVER QUALIFICATIONS requirements affecting interstate motor carriers are ‘‘less stringent’’ than the Federal Require a driver to be properly licensed to requirements. ‘‘Less stringent’’ requirements drive a commercial motor vehicle; require a represent either gaps in the State require- driver to be in good physical health, at least ments in relation to the Federal require- 21 years of age, able to operate a vehicle ments as summarized under item number safely, and maintain a good driving record; one in this appendix or State requirements prohibit drug and alcohol abuse; require a which are less restrictive than the Federal motor carrier to maintain a driver qualifica- requirements. tion file for each driver; and require a motor a. An example of a gap is when a State carrier to ensure that a driver is medically does not have the authority to regulate the qualified. safety of for-hire carriers of passengers or has the authority but chooses to exempt the NOTE: The requirements for testing apply carrier. only to drivers of commercial motor vehicles b. An example of a less restrictive State re- as defined in 49 CFR part 383. quirement is when a State allows a person under 21 years of age to operate a commer- DRIVING OF MOTOR VEHICLES cial motor vehicle in interstate commerce. 2. Each State must determine whether its Prohibit possession, use, or driving under requirements affecting interstate motor car- the influence of alcohol or other controlled riers are ‘‘more stringent’’ than the Federal substances (while on duty); and establish 0.04 requirements: ‘‘More stringent’’ require- percent as the level of alcohol in the blood at ments are more restrictive or inclusive in re- which a driver is considered under the influ- lation to the Federal requirements as sum- ence of alcohol. marized under item number one in this ap- PARTS AND ACCESSORIES NECESSARY FOR SAFE pendix. For example, a requirement that a driver must have 2 days off after working 5 OPERATION consecutive days. The State would dem- Require operational lights and reflectors; onstrate that its more stringent require- require systematically arranged and in- ments: stalled wiring; and require brakes working at a. Have a ‘‘safety benefit;’’ for example, re- the required performance level, and other sult in fewer accidents or reduce the risk of key components included in 49 CFR part 393. accidents;

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b. do not create ‘‘an undue burden on inter- an unincorporated community having a state commerce,’’ e.g., do not delay, inter- post office of the same name, may fere with, or increase that cost or the admin- serve all points in the United States istrative burden for a motor carrier transporting property or passengers in interstate not beyond the territorial limits, if commerce; and any, fixed in such authority, as follows: c. Are otherwise compatible with Federal (1) All points within 3 miles of the safety requirements. post office in such unincorporated com- 3. A State must adopt and enforce in a con- munity if it has a population of less sistent manner the requirements referenced than 2,500; within 4 miles if it has a in the above guidelines in order for the population of 2,500 but less than 25,000; FMCSA to accept the State’s determination and within 6 miles if it has a popu- that it has compatible safety requirements affecting interstate motor carrier oper- lation of 25,000 or more; ations. Generally, the States would have up (2) At all points in any municipality to 3 years from the effective date of the new any part of which is within the limits Federal requirement to adopt and enforce described in paragraph (b)(1) of this compatible requirements. The FMCSA would section; and specify the deadline when promulgating fu- (3) At all points in any municipality ture Federal safety requirements. The re- wholly surrounded, or so surrounded quirements are considered of equal importance. except for a water boundary, by any municipality included under the terms [57 FR 40962, Sept. 8, 1992, as amended by 58 of paragraph (b)(2) of this section. FR 33776, June 21, 1993; 62 FR 37151, July 11, 1997; 65 FR 15110, Mar. 21, 2000] § 356.3 Regular route motor passenger service. PART 356—MOTOR CARRIER (a) A motor common carrier author- ROUTING REGULATIONS ized to transport passengers over regular routes may serve: Sec. 356.1 Authority to serve a particular area— (1) All points on its authorized route; construction. (2) All municipalities wholly within 356.3 Regular route motor passenger serv- one airline mile of its authorized route; ice. (3) All unincorporated areas within 356.5 Traversal authority. one airline mile of its authorized route; 356.7 Tacking. and 356.9 Elimination of routing restrictions— regular route carriers. (4) All military posts, airports, 356.11 Elimination of gateways—regular and schools, and similar establishments irregular route carriers. that may be entered within one airline 356.13 Redesignated highways. mile of its authorized route, but oper- AUTHORITY: 5 U.S.C. 553; 49 U.S.C. 13301 and ations within any part of such estab- 13902; and 49 CFR 1.73. lishment more than one airline mile from such authorized route may not be SOURCE: 62 FR 32041, June 12, 1997, unless otherwise noted. over a public road. (b) This section does not apply to EDITORIAL NOTE: Nomenclature changes to those motor passenger common car- part 356 appear at 66 FR 49870, Oct. 1, 2001. riers authorized to operate within: § 356.1 Authority to serve a particular (1) New York, NY; area—construction. (2) Rockland, Westchester, Orange, or (a) Service at municipality. A motor Nassau Counties, NY; carrier of property, motor passenger (3) Fairfield County, CT; and carrier of express, and freight for- (4) Passaic, Bergen, Essex, Hudson, warder authorized to serve a munici- Union, Morris, Somerset, Middlesex, or pality may serve all points within that Monmouth Counties, NJ. municipality’s commercial zone not beyond the territorial limits, if any, fixed § 356.5 Traversal authority. in such authority. (a) Scope. An irregular route motor (b) Service at unincorporated commu- carrier may operate between author- nity. A motor carrier of property, ized service points over any reasonably motor passenger carrier of express, and direct or logical route unless expressly freight forwarder, authorized to serve prohibited.

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(b) Requirements. Before commencing mile of, an alternative route it elects operations, the carrier must, regarding to use if all the following conditions each State traversed: are met: (1) Notify the State regulatory body (1) The carrier is authorized to serve in writing, attaching a copy of its oper- all intermediate points (without regard ating rights; to nominal restrictions) on the under- (2) Designate a process agent; and lying service route; (3) Comply with 49 CFR 387.315. (2) The alternative route involves the § 356.7 Tacking. use of a superhighway (i.e., a limited access highway with split-level cross- Unless expressly prohibited, a motor ings); common carrier of property holding separate authorities which have com- (3) The alternative superhighway mon service points may join, or tack, route, including highways connecting those authorities at the common point, the superhighway portion of the route or gateway, for the purpose of per- with the carrier’s authorized service forming through service as follows: route, (a) Regular route authorities may be (i) Extends in the same general direc- tacked with one another; tion as the carrier’s authorized service (b) Regular route authority may be route and tacked with irregular route authority; (ii) Is wholly within 25 airline miles (c) Irregular route authorities may of the carrier’s authorized service be tacked with one another if the au- route; and thorities were granted pursuant to ap- (4) Service is provided in the same plication filed on or before November manner as, and subject to any restric- 23, 1973, and the distance between the tions that apply to, service over the points at which service is provided, authorized service route. when measured through the gateway point, is 300 miles or less; and § 356.11 Elimination of gateways—reg- (d) Irregular route authorities may ular and irregular route carriers. be tacked with one another if the authorities involved contain a specific A motor common carrier of property provision granting the right to tack. holding separate grants of authority (including regular route authority), § 356.9 Elimination of routing restric- one or more of which authorizes trans- tions—regular route carriers. portation over irregular routes, where (a) Regular route authorities—construc- the authorities have a common service tion. All certificates that, either singly point at which they can lawfully be or in combination, authorize the trans- tacked to perform through service, portation by a motor common carrier may perform such through service over of property over: any available route. (1) A single regular route or; (2) Over two or more regular routes § 356.13 Redesignated highways. that can lawfully be tacked at a com- Where a highway over which a reg- mon service point, shall be construed ular route motor common carrier of as authorizing transportation between property is authorized to operate is as- authorized service points over any signed a new designation, such as a available route. new number, letter, or name, the car- (b) Service at authorized points. A com- rier shall advise the FMCSA by letter, mon carrier departing from its author- and shall provide information con- ized service routes under paragraph (a) of this section shall continue to serve cerning the new and the old designa- points authorized to be served on or in tion, the points between which the connection with its authorized service highway is redesignated, and each routes. place where the highway is referred to (c) Intermediate point service. A com- in the carrier’s authority. The new des- mon carrier conducting operations ignation of the highway will be shown under paragraph (a) of this section may in the carrier’s certificate when the serve points on, and within one airline FMCSA has occasion to reissue it.

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PART 360—FEES FOR MOTOR CAR- § 360.3 Filing fees. RIER REGISTRATION AND INSUR- (a) Manner of payment. (1) Except for ANCE the insurance fees described in the next sentence, all filing fees will be payable Sec. at the time and place the application, 360.1 Fees for records search, review, copy- petition, or other document is tendered ing, certification, and related services. for filing. The service fee for insurance, 360.3 Filing fees. surety or self-insurer accepted certifi- 360.5 Updating user fees. cate of insurance, surety bond or other AUTHORITY: 31 U.S.C. 9701; 49 U.S.C. 13908(c) instrument submitted in lieu of a and 14504(c)(2); and 49 CFR 1.73. broker surety bond must be charged to SOURCE: 64 FR 7137, Feb. 12, 1999, unless an insurance service account estab- otherwise noted. lished by the Federal Motor Carrier Safety Administration in accordance EDITORIAL NOTE: Nomenclature changes to part 360 appear at 66 FR 49870, Oct. 1, 2001. with paragraph (a)(2) of this section. (2) Billing account procedure. A writ- § 360.1 Fees for records search, review, ten request must be submitted to the copying, certification, and related Office of Enforcement and Compliance services. (MC–ECI) to establish an insurance Certifications and copies of public service fee account. records and documents on file with the (i) Each account will have a specific Federal Motor Carrier Safety Adminis- billing date within each month and a tration will be furnished on the fol- billing cycle. The billing date is the lowing basis, pursuant to the Freedom date that the bill is prepared and print- of Information Act regulations at 49 ed. The billing cycle is the period be- CFR Part 7: tween the billing date in one month (a) Certificate of the Director, Office and the billing date in the next month. of Data Analysis and Information Sys- A bill for each account which has ac- tems, as to the authenticity of docu- tivity or an unpaid balance during the ments, $9.00; billing cycle will be sent on the billing (b) Service involved in checking date each month. Payment will be due records to be certified to determine au- 20 days from the billing date. Pay- thenticity, including clerical work, ments received before the next billing etc., incidental thereto, at the rate of date are applied to the account. Inter- $16.00 per hour; est will accrue in accordance with 4 (c) Copies of the public documents, at CFR 102.13. the rate of $.80 per letter size or legal (ii) The Debt Collection Act of 1982, size exposure. A minimum charge of including disclosure to the consumer $5.00 will be made for this service; and reporting agencies and the use of col- (d) Search and copying services re- lection agencies, as set forth in 4 CFR quiring ADP processing, as follows: 102.5 and 102.6 will be utilized to en- (1) A fee of $42.00 per hour for profes- courage payment where appropriate. sional staff time will be charged when (iii) An account holder who files a pe- it is required to fulfill a request for tition in bankruptcy or who is the sub- ADP data. ject of a bankruptcy proceeding must (2) The fee for computer searches will provide the following information to be set at the current rate for computer the Office of Data Analysis and Infor- service. Information on those charges mation Systems, Licensing and Insur- can be obtained from the Office of Data ance Division: Analysis and Information Systems (A) The filing date of the bankruptcy (MC–RIS). petition; (3) Printing shall be charged at the (B) The court in which the bank- rate of $.10 per page of computer gen- ruptcy petition was filed; erated output with a minimum charge (C) The type of bankruptcy proof $.25. A charge of $30 per reel of mag- ceeding; netic tape will be made if the tape is to (D) The name, address, and telephone be permanently retained by the re- number of its representative in the questor. bankruptcy proceeding; and

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(E) The name, address, and telephone responding permanent operating au- number of the bankruptcy trustee, if thority. one has been appointed. (3) The Federal Motor Carrier Safety (3) Fees will be payable to the Fed- Administration may reject concur- eral Motor Carrier Safety Administra- rently filed applications, petitions, or tion by a check payable in United other documents asserted to be related States currency drawn upon funds de- and refund the filing fee if, in its judg- posited in a United States or foreign ment, they embrace two or more sever- bank or other financial institution, able matters which should be the sub- money order payable in United States’ ject of separate proceedings. currency, or credit card (VISA or (e) Waiver or reduction of filing fees. It MASTERCARD). is the general policy of the Federal (b) Any filing that is not accom- Motor Carrier Safety Administration panied by the appropriate filing fee is not to waive or reduce filing fees ex- deficient except for filings that satisfy cept as described as follows: the deferred payment procedures in (1) Filing fees are waived for an ap- paragraph (a) of this section. plication or other proceeding which is (c) Fees not refundable. Fees will be filed by a Federal government agency, assessed for every filing in the type of or a State or local government entity. proceeding listed in the schedule of For purposes of this section the fees contained in paragraph (f) of this phrases ‘‘Federal government agency’’ section, subject to the exceptions con- or ‘‘government entity’’ do not include tained in paragraphs (d) and (e) of this a quasi-governmental corporation or section. After the application, petition, government subsidized transportation or other document has been accepted company. for filing by the Federal Motor Carrier Safety Administration, the filing fee (2) In extraordinary situations the will not be refunded, regardless of Federal Motor Carrier Safety Adminis- whether the application, petition, or tration will accept requests for waivers other document is granted or approved, or fee reductions in accordance with denied, rejected before docketing, dis- the following procedure: missed, or withdrawn. (i) When to request. At the time that (d) Related or consolidated proceedings. a filing is submitted to the Federal (1) Separate fees need not be paid for Motor Carrier Safety Administration related applications filed by the same the applicant may request a waiver or applicant which would be the subject of reduction of the fee prescribed in this one proceeding. (This does not mean re- part. Such request should be addressed quests for multiple types of operating to the Director, Office of Data Analysis authority filed on forms in the OP–1 se- and Information Systems. ries under the regulations at 49 CFR (ii) Basis. The applicant must show part 365. A separate filing fee is re- the waiver or reduction of the fee is in quired for each type of authority the best interest of the public, or that sought in each transportation mode, payment of the fee would impose an e.g., common, contract, and broker au- undue hardship upon the requestor. thority for motor property carriers.) (iii) Federal Motor Carrier Safety Ad- (2) Separate fees will be assessed for ministration action. The Director, Office the filing of temporary operating au- of Data Analysis and Information Sys- thority applications as provided in tems, will notify the applicant of the paragraph (f)(6) of this section, regard- decision to grant or deny the request less of whether such applications are for waiver or reduction. related to an application for cor- (f) Schedule of filing fees.

Type of Proceeding Fee

Part I: Licensing: (1) ...... An application for motor carrier operating authority, a certificate of reg- $300 istration for certain foreign carriers, property broker authority, or freight forwarder authority. (2) ...... A petition to interpret or clarify an operating authority ...... 3,000

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Type of Proceeding Fee

(3) ...... A request seeking the modification of operating authority only to the ex- 50 tent of making a ministerial correction, when the original error was caused by applicant, a change in the name of the shipper or owner of a plant site, or the change of a highway name or number. (4) ...... A petition to renew authority to transport explosives ...... 250 (5) ...... An application for authority to deviate from authorized regular-route au- 150 thority. (6) ...... An application for motor carrier temporary authority issued in an emer- 100 gency situation. (7) ...... Request for name change of a motor carrier, property broker, or freight 14 forwarder. (8)—(49) ...... [Reserved] ...... Part II: Insurance: (50) ...... (i) An application for original qualification as self-insurer for bodily injury 4,200 and property damage insurance (BI&PD). (ii) An application for original qualification as self-insurer for cargo insur- 420 ance. (51) ...... A service fee for insurer, surety, or self-insurer accepted certificate of in- $10 per accepted certifi- surance, surety bond, and other instrument submitted in lieu of a cate, surety bond or broker surety bond. other instrument submitted in lieu of a broker surety bond. (52) ...... A petition for reinstatement of revoked operating authority ...... 80 (53)—(79) ...... [Reserved]. Part III: Services: (80) ...... Request for service or pleading list for proceedings ...... 13 per list (81) ...... Faxed copies of operating authority to applicants or their representatives 5 who did not receive a served copy.

(g) Returned check policy. (1) If a FEDERAL REGISTER and shall become check submitted to the FMCSA for a effective 30 days after publication. filing or service fee is dishonored by a (c) Payment of fees. Any person sub- bank or financial institution on which mitting a filing for which a fee is es- it is drawn, the FMCSA will notify the tablished shall pay the fee in effect at person who submitted the check that: the time of the filing. (i) All work will be suspended on the (d) Method of updating fees. Each fee filing or proceeding, until the check is shall be updated by updating the cost made good; components comprising the fee. Cost (ii) A returned check charge of $6.00 components shall be updated as fol- and any bank charges incurred by the lows: FMCSA as a result of the dishonored (1) Direct labor costs shall be updated check must be submitted with the fil- by multiplying base level direct labor ing fee which is outstanding; and costs by percentage changes in average (iii) If payment is not made within wages and salaries of FMCSA employ- the time specified by the FMCSA, the ees. Base level direct labor costs are di- proceeding will be dismissed or the fil- rect labor costs determined by the cost study in Regulations Governing Fees For ing may be rejected. Service, 1 I.C.C. 2d 60 (1984), or subse- (2) If a person repeatedly submits dis- quent cost studies. The base period for honored checks to the FMCSA for fil- measuring changes shall be April 1984 ing fees, the FMCSA may notify the or the year of the last cost study. person that all future filing fees must (2) Operations overhead shall be de- be submitted in the form of a certified veloped each year on the basis of cur- or cashier’s check or a money order. rent relationships existing on a weighted basis, for indirect labor applicable § 360.5 Updating user fees. to the first supervisory work centers (a) Update. Each fee established in directly associated with user fee activ- this part may be updated in accordance ity. Actual updating of operations with this section as deemed necessary overhead will be accomplished by ap- by the FMCSA. plying the current percentage factor to (b) Publication and effective dates. Up- updated direct labor, including current dated fees shall be published in the governmental overhead costs.

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(3)(i) Office general and administra- 365.107 Types of applications. tive costs shall be developed each year 365.109 FMCSA review of the application. on the basis of current levels costs, i.e., 365.111 Appeals to rejections of the applica- dividing actual office general and ad- tion. ministrative costs for the current fis- 365.113 Changing the request for authority or filing supplementary evidence after cal year by total office costs for the of- the application is filed. fice directly associated with user fee 365.115 After publication in the FMCSA activity. Actual updating of office gen- Register. eral and administrative costs will be 365.117 Obtaining a copy of the application. accomplished by applying the current 365.119 Opposed applications. percentage factor to updated direct 365.121 Filing a reply statement. labor, including current governmental 365.123 Applicant withdrawal. overhead and current operations overhead costs. Subpart B—How To Oppose Requests for (ii) FMCSA general and administra- Authority tive costs shall be developed each year 365.201 Definitions. on the basis of current level costs; i.e., 365.203 Time for filing. dividing actual FMCSA general and ad- 365.205 Contents of the protest. ministrative costs for the current fis- 365.207 Withdrawal. cal year by total agency expenses for the current fiscal year. Actual updat- Subpart C—General Rules Governing the ing of FMCSA general and administra- Application Process tive costs will be accomplished by ap- 365.301 Applicable rules. plying the current percentage factor to 365.303 Contacting another party. updated direct labor, including current 365.305 Serving copies of pleadings. governmental overhead, operations 365.307 Replies to motions. overhead and office general and admin- 365.309 FAX filings. istrative costs. Subpart D—Transfer of Operating Rights (4) Publication costs shall be ad- Under 49 U.S.C. 10926 justed on the basis of known changes in the costs applicable to publication of 365.401 Scope of rules. material in the FEDERAL REGISTER or 365.403 Definitions. FMCSA Register. 365.405 Applications. (This rounding procedures excludes 365.407 Notice. copying, printing and search fees.) 365.409 FMCSA action and criteria for ap- (e) Rounding of updated fees. Updated proval. 365.411 Responsive pleadings. fees shall be rounded in the following 365.413 Procedures for changing the name or manner: business form of a motor or water car- (1) Fees between $1 and $30 will be rier, household goods freight forwarder, rounded to the nearest $1; or property broker. (2) Fees between $30 and $100 will be rounded to the nearest $10; Subpart E—Special Rules for Certain (3) Fees between $100 and $999 will be Mexico-Domiciled Carriers rounded to the nearest $50; and 365.501 Scope of rules. (4) Fees above $1,000 will be rounded 365.503 Application. to the nearest $100. 365.505 Re-registration and fee waiver for certain applicants. PART 365—RULES GOVERNING AP- 365.507 FMCSA action on the application. 365.509 Requirement to notify FMCSA of PLICATIONS FOR OPERATING change in applicant information. AUTHORITY 365.511 Requirement for CVSA inspection of vehicles during first three consecutive Subpart A—How To Apply for Operating years of permanent operating authority. Authority APPENDIX A TO SUBPART E OF PART 365—EX- PLANATION OF PRE-AUTHORIZATION SAFE- Sec. TY AUDIT EVALUATION CRITERIA FOR MEX- 365.101 Applications governed by these ICO-DOMICILED MOTOR CARRIERS rules. 365.103 Modified procedure. AUTHORITY: 5 U.S.C. 553 and 559; 16 U.S.C. 365.105 Starting the application process: 1456; 49 U.S.C. 13101, 13301, 13901–13906, 14708, Form OP–1. 31138, and 31144; 49 CFR 1.73.

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SOURCE: 59 FR 63728, Dec. 9, 1994, unless § 365.103 Modified procedure. otherwise noted. Redesignated at 61 FR 54707, Oct. 21, 1996. The FMCSA will handle licensing application proceedings using the modi- EDITORIAL NOTE: Nomenclature changes to part 365 appear at 66 FR 49870, Oct. 1, 2001. fied procedure, if possible. The applicant and protestants send statements made under oath (verified statements) Subpart A—How To Apply for to each other and to the FMCSA. There Operating Authority are no personal appearances or formal hearings. § 365.101 Applications governed by these rules. § 365.105 Starting the application proc- These rules govern the handling of ess: Form OP–1. applications for operating authority of (a) All applicants must file the appro- the following type: priate form in the OP–1 series, effective (a) Applications for certificates and January 1, 1995. Form OP–1 for motor permits to operate as a motor common property carriers and brokers of gen- or contract carrier of property or pas- eral freight and household goods; Form sengers. OP–1(P) for motor passenger carriers; (b) Applications for permits to oper- Form OP–1(FF) for freight forwarders ate as a household goods freight for- of household goods; and Form OP– warder. (c) Applications for certificates, per- 1(MX) for Mexico-domiciled motor mits, and exemptions for water carrier property carriers, including household transportation of property and pas- goods and motor passenger carriers. A sengers. separate filing fee in the amount set (d) Applications for licenses to oper- forth at 49 CFR 360.3(f)(1) is required ate as a broker of motor vehicle trans- for each type of authority sought in portation. each transportation mode. (e) Applications for certificates under (b) Obtain the forms at a FMCSA Di- 49 U.S.C. 13902(b)(3) to operate as a vision Office in each State or at one of motor common carrier of passengers in the FMCSA Service Centers. Addresses intrastate commerce on a route over and phone numbers for the Division Of- which applicant holds interstate au- fices and Service Centers can be found thority as of November 19, 1982. at: http://www.fmcsa.dot.gov/aboutus/ (f) Applications for certificates under fieldoffs. The forms can also be 49 U.S.C. 13902(b)(3) to operate as a downloaded at: http:// motor common carrier of passengers in www.fmcsa.dot.gov/factsfigs/formspubs. intrastate commerce on a route over [66 FR 49870, Oct. 1, 2001, as amended at 67 FR which applicant has been granted or 12714, Mar. 19, 2002] will be granted interstate authority after November 19, 1982. § 365.107 Types of applications. (g) Applications for temporary motor (a) Fitness applications. Motor prop- and water carrier authority. erty applications and certain types of (h) Applications for Mexico-domiciled motor passenger applications require motor carriers to operate in foreign only the finding that the applicant is commerce as common, contract or pri- fit, willing and able to perform the in- vate motor carriers of property volved operations and to comply with (including exempt items) between Mex- all applicable statutory and regulatory ico and all points in the United States. provisions. These applications can be Under NAFTA Annex I, page I–U–20, a opposed only on the grounds that appli- Mexico-domiciled motor carrier may cant is not fit [e.g., is not in compli- not provide point-to-point transpor- ance with applicable financial responsi- tation services, including express deliv- bility and safety fitness requirements]. ery services, within the United States These applications are: for goods other than international (1) Motor common and contract car- cargo. rier of property (except household [59 FR 63728, Dec. 9, 1994, as amended at 60 goods) , Mexican motor property car- FR 63981, Dec. 13, 1995; 62 FR 49940, Sept. 24, riers that perform private carriage and 1997; 67 FR 12714, Mar. 19, 2002] transport exempt items, and motor

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contract carrier of passengers trans- NOTE: In view of the expedited time frames portation. established in this part for processing re- (2) Motor carrier brokerage of gen- quests for permanent authority, applications for TA will be entertained only in excep- eral commodities (except household tional circumstances (i.e., natural disasters goods). or national emergencies) when evidence of (3) Certain types of motor passenger immediate service need can be specifically applications as described in Form OP– documented in a narrative supplement ap- 1 (P). pended to Form OP–1 for motor property car- (b) Motor passenger ‘‘public interest’’ riers, Form OP–1MX for Mexican property carriers, Form OP–1(P) for motor passenger applications as described in Form OP– carriers, and Form OP–1(W) for water car- 1 (P). riers. TA applications must be filed with the (c) Intrastate motor passenger appli- Division Office which has jurisdiction over cations under 49 U.S.C. 13902(b)(3) as the area in which applicant’s headquarters described in Form OP–1, Schedule B. are located. Initial determinations of TA ap- (d) Motor common carrier of house- plications will be made by a Motor Carrier Board. hold goods applications, including Mexican carrier applicants. These ap- [59 FR 63728, Dec. 9, 1994, as amended at 60 plications require a finding that: FR 63981, Dec. 13, 1995; 62 FR 49940, Sept. 24, (1) The applicant is fit, willing, and 1997] able to provide the involved transportation and to comply with all applica- § 365.109 FMCSA review of the application. ble statutory and regulatory provisions; and (a) FMCSA staff will review the ap- (2) The service proposed will serve a plication for correctness, complete- useful public purpose, responsive to a ness, and adequacy of the evidence (the public demand or need. prima facie case). (e) Motor contract carrier of house- (1) Minor errors will be corrected hold goods, water contract carrier, without notification to the applicant. household goods property broker, and (2) Materially incomplete applica- household goods freight forwarder ap- tions will be rejected. Applications that are in substantial compliance plications. These applications require a with these rules may be accepted. finding that: (3) All motor carrier applications will (1) The applicant is fit, willing, and be reviewed for consistency with the able to provide the involved transpor- FMCSA’s operational safety fitness tation and to comply with all applica- policy. Applicants with ble statutory and regulatory provi- ‘‘Unsatisfactory’’ safety fitness ratings sions; and from DOT will have their applications (2) The transportation to be provided rejected. will be consistent with the public in- (4) FMCSA staff will review com- terest and the national transportation pleted applications that conform with policy of 49 U.S.C. 13101. the FMCSA’s safety fitness policy and (f) Water common carrier applica- that are accompanied by evidence of tions. These applications require a adequate financial responsibility. finding that: (5) Financial responsibility is indi- (1) The applicant is fit, willing, and cated by filing within 20 days from the able to provide the involved transpor- date an application notice is published tation and to comply with all applica- in the FMCSA Register: ble statutory and regulatory provi- (i) Form BMC–91 or 91X or BMC 82 sur- sions; and ety bond—Bodily injury and property (2) The transportation to be provided damage (motor property and passenger is or will be required by present or fu- carriers; household goods freight for- ture public convenience and necessity. warders that provide pickup or delivery (g) Temporary authority (TA) for service directly or by using a local de- motor and water carriers. These appli- livery service under their control). cations require a finding that there is (ii) Form BMC–84—Surety bond or or soon will be an immediate transpor- Form BMC–85—trust fund agreement tation need that cannot be met by ex- (property brokers of general commod- isting carrier service. ities and household goods).

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(iii) Form BMC–34 or BMC 83 surety § 365.117 Obtaining a copy of the ap- bond—Cargo liability (motor property plication. common carriers and household goods After publication, interested persons freight forwarders). may request a copy of the application (6) Applicants also must submit by contacting the FMCSA–designated Form BOC–3—designation of legal proc- contract agent (as identified in the ess agents—within 20 days from the FMCSA Register). date an application notice is published in the FMCSA Register. § 365.119 Opposed applications. (7) Applicants seeking to conduct op- If the application is opposed, oppos- erations for which tariffs are required ing parties are required to send a copy may not commence such operations of their protest to the applicant. until tariffs are on file with the FMCSA and in effect. § 365.121 Filing a reply statement. (8) All applications must be com- (a) If the application is opposed, ap- pleted in English. plicant may file a reply statement. (b) A summary of the application will This statement is due within 20 days be published as a preliminary grant of after FMCSA Register publication. authority in the FMCSA Register to (b) The reply statement may not con- give notice to the public in case anyone tain new evidence. It shall only rebut wishes to oppose the application. or further explain matters previously [59 FR 63728, Dec. 9, 1994, as amended at 60 raised. FR 63981, Dec. 13, 1995] (c) The reply statement need not be notarized or verified. Applicant under- § 365.111 Appeals to rejections of the stands that the oath in the application application. form applies to all evidence submitted (a) An applicant has the right to ap- in the application. Separate legal argu- peal rejection of the application. The ments by counsel need not be notarized appeal must be filed at the FMCSA or verified. within 10 days of the date of the letter § 365.123 Applicant withdrawal. of rejection. (b) If the appeal is successful and the If the applicant wishes to withdraw filing is found to be proper, the appli- an application, it shall request dis- cation shall be deemed to have been missal in writing. properly filed as of the decision date of the appeal. Subpart B—How To Oppose Requests for Authority § 365.113 Changing the request for authority or filing supplementary evi- § 365.201 Definitions. dence after the application is filed. A person wishing to oppose a request (a) Once the application is filed, the for permanent authority files a protest. applicant may supplement evidence A person filing a valid protest becomes only with approval of the FMCSA. a protestant. (b) Amendments to the application generally are not permitted, but in ap- § 365.203 Time for filing. propriate instances may be entertained A protest shall be filed (received at at the discretion of the FMCSA. the FMCSA) within 10 days after notice of the application appears in the § 365.115 After publication in the FMCSA Register. A copy of the protest FMCSA Register. shall be sent to applicant’s representa- (a) Interested persons have 10 days tive at the same time. Failure timely from the date of FMCSA Register publi- to file a protest waives further partici- cation to file protests. See Subpart B pation in the proceeding. of this part. (b) If no one opposes the application, § 365.205 Contents of the protest. the grant published in the FMCSA Reg- (a) All information upon which the ister will become effective by issuance protestant plans to rely is put into the of a certificate, permit, or license. protest.

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(b) A protest must be verified, as fol- (b) A protestant need serve only the lows: FMCSA and applicant with pleadings or letters. I, llllllllll, verify under penalty of perjury under laws of the United States of America, that the information above is true § 365.307 Replies to motions. and correct. Further, I certify that I am Replies to motions filed under this qualified and authorized to file this protest. part are due within 5 days of the date (See 18 U.S.C. 1001 and 18 U.S.C. 1621 for pen- the motion is filed at the FMCSA. alties.) (Signature and Date) § 365.309 FAX filings. (c) A protest not in substantial com- FAX filings of applications and sup- pliance with applicable statutory porting evidence are not permitted. To standards or these rules may be re- assist parties in meeting the expedited jected. time frames established for protesting (d) Protests must respond directly to an application, however, the FMCSA the statutory standards for FMCSA re- will accept FAX filings of protests and view of the application. As these stand- any reply or rebuttal evidence. FAX ards vary for particular types of appli- filings of these pleadings must be fol- cations, potential protestants should lowed by the original document, plus refer to the general criteria addressed one copy for FMCSA recordkeeping at § 365.107 and may consult the FMCSA purposes. at (202) 366–9805 for further assistance in developing their evidence. Subpart D—Transfer of Operating [59 FR 63728, Dec. 9, 1994. Redesignated at 61 Rights Under 49 U.S.C. 10926 FR 54707, Oct. 21, 1996, as amended at 62 FR 49940, Sept. 24, 1997] SOURCE: 53 FR 4852, Feb. 18, 1988, unless otherwise noted. Redesignated at 61 FR 54707, § 365.207 Withdrawal. Oct. 21, 1996. A protestant wishing to withdraw from a proceeding shall inform the § 365.401 Scope of rules. FMCSA and applicant in writing. These rules define the procedures that enable motor passenger and prop- Subpart C—General Rules Gov- erty carriers, water carriers, property erning the Application Proc- brokers, and household goods freight ess forwarders to obtain approval from the Interstate Commerce Commission to § 365.301 Applicable rules. merge, transfer, or lease their oper- Generally, all application pro- ating rights in financial transactions ceedings are governed by the FMCSA’s not subject to 49 U.S.C. 11343. Trans- Rules of Practice at part 386 of this actions covered by these rules are gov- chapter except as designated below. erned by 49 U.S.C. 10321 and 10926. The filing fee is set forth at 49 CFR § 365.303 Contacting another party. 1002.2(f)(25). When a person wishes to contact a § 365.403 Definitions. party or serve a pleading or letter on that party, it shall do so through its For the purposes of this part, the fol- representative. The phone and FAX lowing definitions apply: numbers and address of applicant’s rep- (a) Transfer. Transfers include all resentative shall be listed in the transactions (i.e., the sale or lease of FMCSA Register. interstate operating rights,1 or the

§ 365.305 Serving copies of pleadings. 1 The execution of a chattel mortgage, deed (a) An applicant must serve all plead- of trust, or other similar document does not constitute a transfer or require the FMCSA’s ings and letters on the FMCSA and all approval. However, a foreclosure for the pur- known participants in the proceeding, pose of transferring an operating right to except that a reply to a motion need satisfy a judgment or claim against the only be served on the moving party. Continued

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merger of two or more carriers or a this section) must be filed with the Of- carrier into a noncarrier) subject to 49 fice of the Secretary, Applications and U.S.C. 10926, as well as the sale of prop- Fees Unit, Interstate Commerce Com- erty brokers’ licenses under 49 U.S.C. mission, Washington, DC 20423. The 10321. original must show that an additional (b) Operating rights. Operating rights copy has been furnished to the include: FMCSA’s Regional Director for the Re- (1) Certificates and permits issued to gion(s) in which the applicants’ head- motor and water carriers; quarters are located. The nonrefund- (2) Permits issued to household goods able filing fee prescribed by 49 CFR freight forwarders; 1002.2(f)(25) must accompany the appli- (3) Licenses issued to property bro- cation. kers; and (2) At any time after the expiration (4) Certificates of Registration issued of the 10-day waiting period, applicants to motor carriers. The term also in- may consummate the transaction, sub- cludes authority held by virtue of the ject to the subsequent approval of the gateway elimination regulations pub- application by the FMCSA, as de- lished in the FEDERAL REGISTER as let- scribed below. The transferee may ter-notices. commence operations under the rights (c) Certificate of registration. The evi- acquired from the transferor upon its dence of a motor carrier’s right to en- compliance with the FMCSA’s regula- gage in interstate or foreign commerce tions governing insurance, tariffs (if within a single State is established by applicable), and process agents. See 49 a corresponding State certificate. CFR parts 387, subpart C, 1312 and 366, (d) Person. An individual, partner- respectively. In addition, contract car- ship, corporation, company, associa- riers must comply with the FMCSA’s tion, or other form of business, or a regulations concerning contracts at 49 trustee, receiver, assignee, or personal CFR part 1053. In the alternative, ap- representative of any of these. plicants may wait until the FMCSA (e) Record holder. The person shown has issued a decision on their applica- on the records of the FMCSA as the tion before transferring the operating legal owner of the operating rights. rights. If the transferee wants the (f) Control. A relationship between transferor’s operating authority to be persons that includes actual control, reissued in its name, it should furnish legal control, and the power to exercise the FMCSA with a statement executed control, through or by common direc- by both transferor and transferee indi- tors, officers, stockholders, a voting cating that the transaction has been trust, a holding or investment com- consummated. Authority will not be pany, or any other means. reissued until after the FMCSA has ap- (g) Category 1 transfers. Transactions proved the transaction. in which the person to whom the oper- (b) Information required. (1) In cat- ating rights would be transferred is not egory 1 and category 2 transfers, appli- an FMCSA carrier and is not affiliated cants must furnish the following infor- with any FMCSA carrier. mation: (h) Category 2 transfers. Transactions (i) Full name, address, and signatures in which the person to whom the oper- of the transferee and transferor. ating rights would be transferred is an (ii) A copy of that portion of the FMCSA carrier and/or is affiliated with transferor’s operating authority in- an FMCSA carrier. volved in the transfer proceeding. (iii) A short summary of the essential § 365.405 Applications. terms of the transaction. (a) Procedural requirements. (1) At (iv) If relevant, the status of pro- least 10 days before consummation, an ceedings for the transfer of State cer- original and two copies of a properly tificate(s) corresponding to the Certifi- completed Form OP–FC–1 and any at- cates of Registration being transferred. tachments (see paragraph (b)(1)(viii) of (v) A statement as to whether the transfer will or will not significantly record holder may not be effected without affect the quality of the human envi- approval of the FMCSA. ronment.

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(vi) Certification by transferor and ing from DOT, the transfer may be de- transferee of their current respective nied. If an application is denied, the safety ratings by the United States De- FMCSA will set forth the basis for its partment of Transportation (i.e., satis- action in a decision or letter notice. If factory, conditional, unsatisfactory, or parties with ‘‘Unsatisfactory’’ safety unrated). fitness ratings consummate a trans- (vii) Certification by the transferee action pursuant to the 10-day rule at that it has sufficient insurance cov- § 365.405 of this part prior to the notifi- erage under 49 U.S.C. 13906 for the serv- cation of FMCSA action, they do so at ice it intends to provide. their own risk and subject to any con- (viii) Information to demonstrate ditions we may impose subsequently. that the proposed transaction is con- Transactions that have been consistent with the national transpor- summated but later are denied by the tation policy and satisfies the criteria FMCSA are null and void and must be for approval set forth at § 365.409 of this rescinded. Similarly, if applications part. (Such information may be ap- contain false or misleading informa- pended to the application form and, if tion, they are void ab initio. provided, would be embraced by the [53 FR 4852, Feb. 18, 1988, as amended at 56 oath and verification contained on that FR 46735, Sept. 16, 1991; 62 FR 49940, Sept. 24, form.) 1997] (ix) If motor carrier operating rights are being transferred, certification by § 365.411 Responsive pleadings. the transferee that it is not domiciled (a) Protests must be filed within 20 in Mexico nor owned or controlled by days after the date of publication of an persons of that country. approved transfer application in the (2) Category 2 applicants must also FMCSA Register. Protests received prior submit the following additional infor- to the notice will be rejected. Appli- mation: cants may respond within 20 days after (i) Name(s) of the carrier(s), if any, the due date of protests. Petitions for with which the transferee is affiliated. reconsideration of decisions denying (ii) Aggregate revenues of the trans- applications must be filed within 20 feror, transferee, and their carrier af- days after the date of service of such filiates from interstate transportation decisions. sources for a 1-year period ending not (b) Protests and petitions for recon- earlier than 6 months before the date sideration must be filed with the Office of the agreement of the parties con- of the Secretary, Case Control Branch, cerning the transaction. If revenues ex- Interstate Commerce Commission, ceed $2 million, the transfer may be Washington, DC 20423, and be served on subject to 49 U.S.C. 14303 rather than appropriate parties. these rules. [53 FR 4852, Feb. 18, 1988, as amended at 54 § 365.413 Procedures for changing the FR 35343, Aug. 25, 1989; 62 FR 49940, Sept. 24, name or business form of a motor 1997] or water carrier, household goods freight forwarder, or property § 365.407 Notice. broker. The FMCSA will give notice of ap- (a) Scope. These procedures apply in proved transfer applications through the following circumstances: publication in the FMCSA Register. (1) A change in the form of a business, such as the incorporation of a § 365.409 FMCSA action and criteria partnership or sole proprietorship; for approval. (2) A change in the legal name of a A transfer will be approved under corporation or partnership or change in this section if: the trade name or assumed name of (a) The transaction is not subject to any entity; 49 U.S.C. 14303; and (3) A transfer of operating rights (b) The transaction is consistent with from a deceased or incapacitated the public interest; however, spouse to the other spouse; (c) If the transferor or transferee has (4) A reincorporation and merger for an ‘‘Unsatisfactory’’ safety fitness rat- the purpose of effecting a name change;

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(5) An amalgamation or consolida- (b) A Mexico-domiciled carrier may tion of a carrier and a noncarrier into not provide point-to-point transpor- a new carrier having a different name tation services, including express deliv- from either of the predecessor entities; ery services, within the United States and for goods other than international (6) A change in the State of incorpo- cargo. ration accomplished by dissolving the corporation in one State and reincor- § 365.503 Application. porating in another State. (a) Each applicant applying under (b) Procedures. To accomplish these this subpart must submit an applica- changes, a letter must be sent to the tion that consists of: FMCSA, Office of Data Analysis and (1) Form OP–1 (MX)—Application to Information Systems (MC–RIS), Wash- Register Mexican Carriers for Motor ington, DC 20590. The envelope should Carrier Authority To Operate Beyond be marked ‘‘NAME CHANGE’’. The ap- U.S. Municipalities and Commercial plicant must provide: Zones on the U.S.-Mexico Border; (1) The docket number(s) and name of (2) Form MCS–150—Motor Carrier the carrier requesting the change; Identification Report; and (2) A copy of the articles of incorpo- (3) A notification of the means used ration and the State certificate reflect- to designate process agents, either by ing the incorporation; submission in the application package (3) The name(s) of the owner(s) of the of Form BOC–3—Designation of Agents- stock and the distribution of the Motor Carriers, Brokers and Freight shares; Forwarders or a letter stating that the (4) The names of the officers and di- applicant will use a process agent serv- rectors of the corporation; and ice that will submit the Form BOC–3 (5) A statement that there is no electronically. change in the ownership, management, (b) The Federal Motor Carrier Safety or control of the business. When this Administration (FMCSA) will only procedure is being used to transfer op- process your application if it meets the erating rights from a deceased or inca- following conditions: pacitated spouse to the other spouse, (1) The application must be com- documentation that the other spouse pleted in English; has the legal right to effect such (2) The information supplied must be change must be included with the re- accurate, complete, and include all request. The fee for filing a name change quired supporting documents and appli- request is in § 360.3(f) of this chapter. cable certifications in accordance with the instructions to Form OP–1 (MX), [53 FR 4852, Feb. 18, 1988, as amended at 54 FR 47364, Nov. 14, 1989; 62 FR 49940, Sept. 24, Form MCS–150, and Form BOC–3; 1997] (3) The application must include the filing fee payable to the FMCSA in the amount set forth at 49 CFR 360.3(f)(1); Subpart E—Special Rules for Cer- and tain Mexico-domiciled Car- (4) The application must be signed by riers the applicant. (c) You must submit the application SOURCE: 67 FR 12714, Mar. 19, 2002, unless to the address provided in Form OP– otherwise noted. 1(MX). (d) You may obtain the application § 365.501 Scope of rules. forms from any FMCSA Division Office (a) The rules in this subpart govern or download it from the FMCSA the application by a Mexico-domiciled website at: http://www.fmcsa.dot.gov/ motor carrier to provide transpor- factsfigs/formspubs.htm. tation of property or passengers in interstate commerce between Mexico § 365.505 Re-registration and fee waiv- and points in the United States beyond er for certain applicants. the municipalities and commercial (a) If you filed an application using zones along the United States-Mexico Form OP–1(MX) before May 3, 2002, you international border. are required to file a new Form OP–

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1(MX). You do not need to submit a will publish a summary of the applica- new fee when you file a new application tion as a preliminary grant of author- under this subpart. ity in the FMCSA Register to give no- (b) If you hold a Certificate of Reg- tice to the public in case anyone wishes istration issued before April 18, 2002, to oppose the application, as required authorizing operations beyond the mu- in § 365.109(b) of this part. nicipalities along the United States- (e) If the FMCSA grants provisional Mexico border and beyond the commer- operating authority to the applicant, it cial zones of such municipalities, you will assign a distinctive USDOT Num- are required to file an OP–1(MX) if you ber that identifies the motor carrier as want to continue those operations. You authorized to operate beyond the mu- do not need to submit a fee when you nicipalities in the United States on the file an application under this subpart. U.S.-Mexico international border and (1) You must file the application by beyond the commercial zones of such November 4, 2003. municipalities. In order to operate in (2) The FMCSA may suspend or re- the United States, a Mexico-domiciled voke the Certificate of Registration of motor carrier with provisional oper- any applicable holder that fails to com- ating authority must: ply with the procedures set forth in (1) Have its surety or insurance pro- this section. vider file proof of financial responsi- (3) Certificates of Registration issued bility in the form of certificates of in- before April 18, 2002, will remain valid surance, surety bonds, and endorse- unbvtil the FMCSA acts on the OP– ments, as required by § 387.301 of this 1(MX) application. subchapter; § 365.507 FMCSA action on the appli- (2) File a hard copy of, or have its cation. process agent(s) electronically submit, Form BOC–3—Designation of Agents- (a) The FMCSA will review and act Motor Carriers, Brokers and Freight on each application submitted under Forwarders, as required by part 366 of this subpart in accordance with the procedures set out in this part. this subchapter; and (b) The FMCSA will validate the ac- (3) Comply with all provisions of the curacy of information and certifi- safety monitoring system in subpart B cations provided in the application by of part 385 of this subchapter, including checking data maintained in databases successfully passing CVSA Level I in- of the governments of Mexico and the spections at least every 90 days and United States. having decals affixed to each commer- (c) Pre-authorization safety audit. cial motor vehicle operated in the Every Mexico-domiciled carrier that United States as required by § 385.103(c) applies under this part must satisfac- of this subchapter. torily complete an FMCSA-adminis- (f) The FMCSA may grant permanent tered safety audit before FMCSA will operating authority to a Mexico-domi- grant provisional operating authority ciled carrier no earlier than 18 months to operate in the United States. The after the date that provisional oper- safety audit is a review by the FMCSA ating authority is granted and only of the carrier’s written procedures and after successful completion to the sat- records to validate the accuracy of in- isfaction of the FMCSA of the safety formation and certifications provided monitoring system for Mexico-domi- in the application and determine ciled carriers set out in subpart B of whether the carrier has established or part 385 of this subchapter. Successful exercises the basic safety management completion includes obtaining a satis- controls necessary to ensure safe oper- factory safety rating as the result of a ations. The FMCSA will evaluate the compliance review. results of the safety audit using the criteria in Appendix A to this subpart. § 365.509 Requirement to notify (d) If a carrier successfully completes FMCSA of change in applicant in- the pre-authorization safety audit and formation. the FMCSA approves its application (a) A motor carrier subject to this submitted under this subpart, FMCSA subpart must notify the FMCSA of any

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changes or corrections to the informa- (c) The safety audit will include: tion in parts I, IA or II submitted on (1) Verification of available performance the Form OP–1(MX) or the Form BOC– data and safety management programs; 3—Designation of Agents—Motor Car- (2) Verification of a controlled substances and alcohol testing program consistent with riers, Brokers and Freight Forwarders part 40 of this title; during the application process or after (3) Verification of the carrier’s system of having been granted provisional oper- compliance with hours-of-service rules in ating authority. The carrier must no- part 395 of this subchapter, including record- tify the FMCSA in writing within 45 keeping and retention; days of the change or correction. (4) Verification of proof of financial re- (b) If a carrier fails to comply with sponsibility; paragraph (a) of this section, the (5) Review of available data concerning the FMCSA may suspend or revoke its op- carrier’s safety history, and other information necessary to determine the carrier’s erating authority until it meets those preparedness to comply with the Federal requirements. Motor Carrier Safety Regulations, parts 382 through 399 of this subchapter, and the Fed- § 365.511 Requirement for CVSA in- eral Hazardous Material Regulations, parts spection of vehicles during first 171 through 180 of this title; three consecutive years of perma- (6) Inspection of available commercial nent operating authority. motor vehicles to be used under provisional A Mexico-domiciled motor carrier operating authority, if any of these vehicles granted permanent operating authority have not received a decal required by must have its vehicles inspected by § 385.103(d) of this subchapter; Commercial Vehicle Safety Alliance (7) Evaluation of the carrier’s safety inspection, maintenance, and repair facilities (CVSA)-certified inspectors every three or management systems, including months and display a current inspec- verification of records of periodic vehicle in- tion decal attesting to the successful spections; completion of such an inspection for at (8) Verification of drivers’ qualifications, least three consecutive years after re- including confirmation of the validity of the ceiving permanent operating authority Licencia de Federal de Conductor of each from the FMCSA. driver the carrier intends to assign to operate under its provisional operating author- APPENDIX A TO SUBPART E OF PART ity; and (9) An interview of carrier officials to re- 365—EXPLANATION OF PRE-AUTHOR- view safety management controls and evalu- IZATION SAFETY AUDIT EVALUATION ate any written safety oversight policies and CRITERIA FOR MEXICO-DOMICILED practices. MOTOR CARRIERS (d) To successfully complete the safety audit, a Mexico-domiciled motor carrier I. GENERAL must demonstrate to the FMCSA that it has (a) Section 350 of the Fiscal Year 2002 DOT the required elements in paragraphs (c)(2), Appropriations Act (Pub. L. 107–87) directed (3), (4), (7), and (8) above and other basic safe- the FMCSA to perform a safety audit of each ty management controls in place which func- Mexico-domiciled motor carrier before the tion adequately to ensure minimum accept- FMCSA grants the carrier provisional operable compliance with the applicable safety ating authority to operate beyond United requirements. The FMCSA developed a States municipalities and commercial zones ‘‘safety audit evaluation criteria,’’ which on the United States-Mexico international uses data from the safety audit and roadside border. inspections to determine that each applicant (b) The FMCSA will decide whether it will for provisional operating authority has basic conduct the safety audit at the Mexico-domi- safety management controls in place. ciled motor carrier’s principal place of busi- (e) The safety audit evaluation process de- ness in Mexico or at a location specified by veloped by the FMCSA is used to: the FMCSA in the United States, in accord- (1) Evaluate basic safety management con- ance with the statutory requirements that 50 trols and determine if each Mexico-domiciled percent of all safety audits must be con- carrier and each driver is able to operate ducted onsite and on-site inspections cover safely in the United States beyond munici- at least 50 percent of estimated truck traffic palities and commercial zones on the United in any year. All records and documents must States-Mexico international border; and be made available for examination within 48 (2) Identify motor carriers and drivers who hours after a request is made. Saturdays, are having safety problems and need im- Sundays, and Federal holidays are excluded provement in their compliance with the from the computation of the 48-hour period. FMCSRs and the HMRs, before FMCSA

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grants the carriers provisional operating au- provisional operating authority will be de- thority to operate beyond United States mu- nied. nicipalities and commercial zones on the United States-Mexico international border. IV. EVALUATION OF REGULATORY COMPLIANCE (a) During the safety audit, the FMCSA OURCE OF THE DATA FOR THE SAFETY II. S gathers information by reviewing a motor AUDIT EVALUATION CRITERIA carrier’s compliance with ‘‘acute’’ and (a) The FMCSA’s evaluation criteria are ‘‘critical’’ regulations of the FMCSRs and built upon the operational tool known as the HMRs. safety audit. The FMCSA developed this tool (b) Acute regulations are those where non- to assist auditors and investigators in as- compliance is so severe as to require imme- sessing the adequacy of a Mexico-domiciled diate corrective actions by a motor carrier carrier’s basic safety management controls. regardless of the overall basic safety man- (b) The safety audit is a review of a Mex- agement controls of the motor carrier. ico-domiciled motor carrier’s operation and (c) Critical regulations are those where is used to: noncompliance relates to management and/ (1) Determine if a carrier has the basic or operational controls. These are indicative safety management controls required by 49 of breakdowns in a carrier’s management U.S.C. 31144; controls. (2) Meet the requirements of Section 350 of (d) The list of the acute and critical regu- the DOT Appropriations Act; and lations, which are used in determining if a (3) In the event that a carrier is found not carrier has basic safety management con- to be in compliance with applicable FMCSRs trols in place, is included in Appendix B, VII. and HMRs, the safety audit can be used to List of Acute and Critical Regulations to educate the carrier on how to comply with part 385 of this subchapter. U.S. safety rules. (e) Noncompliance with acute and critical (c) Documents such as those contained in regulations are indicators of inadequate driver qualification files, records of duty sta- safety management controls and usually tus, vehicle maintenance records, and other higher than average accident rates. records are reviewed for compliance with the (f) Parts of the FMCSRs and the HMRs FMCSRs and HMRs. Violations are cited on having similar characteristics are combined the safety audit. Performance-based infor- together into six regulatory areas called mation, when available, is utilized to evalu- ‘‘factors.’’ The regulatory factors, evaluated ate the carrier’s compliance with the vehicle on the adequacy of the carrier’s safety man- regulations. Recordable accident informa- agement controls, are: (1) Factor 1—General: Parts 387 and 390; tion is also collected. (2) Factor 2—Driver: Parts 382, 383 and 391; III. OVERALL DETERMINATION OF THE CAR- (3) Factor 3—Operational: Parts 392 and RIER’S BASIC SAFETY MANAGEMENT CON- 395; TROLS (4) Factor 4—Vehicle: Part 393, 396 and inspection data for the last 12 months; (a) The carrier will not be granted provi- (5) Factor 5—Hazardous Materials: Parts sional operating authority if the FMCSA 171, 177, 180 and 397; and fails to: (6) Factor 6—Accident: Recordable Acci- (1) Verify a controlled substances and alco- dent Rate per Million Miles. hol testing program consistent with part 40 (g) For each instance of noncompliance of this title; with an acute regulation, 1.5 points will be (2) Verify a system of compliance with assessed. hours-of-service rules of this subchapter, in- (h) For each instance of noncompliance cluding recordkeeping and retention; with a critical regulation, 1 point will be as- (3) Verify proof of financial responsibility; sessed. (4) Verify records of periodic vehicle in- (i) Vehicle Factor. (1) When at least three spections; and vehicle inspections are recorded in the Motor (5) Verify drivers’ qualifications of each Carrier Management Information System driver the carrier intends to assign to oper- (MCMIS) during the twelve months before ate under such authority, as required by the safety audit or performed at the time of parts 383 and 391 of this subchapter, includ- the review, the Vehicle Factor (part 396) will ing confirming the validity of each driver’s be evaluated on the basis of the Out-of-Serv- Licencia de Federal de Conductor. ice (OOS) rates and noncompliance with (b) If the FMCSA confirms each item under acute and critical regulations. The results of II (a)(1) through (5) above, the carrier will be the review of the OOS rate will affect the Ve- granted provisional operating authority, ex- hicle Factor as follows: cept if FMCSA finds the carrier has inad- (i) If the motor carrier has had at least equate basic safety management controls in three roadside inspections in the twelve at least three separate factors described in months before the safety audit, and the vehi- part III below. If FMCSA makes such a de- cle OOS rate is 34 percent or higher, one termination, the carrier’s application for point will be assessed against the carrier.

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That point will be added to any other points cident rate in Fiscal Years 1994, 1995, and assessed for discovered noncompliance with 1996. acute and critical regulations of part 396 to (4) The FMCSA will continue to consider determine the carrier’s level of safety man- preventability when a new entrant contests agement control for that factor. the evaluation of the accident factor by pre- (ii) If the motor carrier’s vehicle OOS rate senting compelling evidence that the record- is less than 34 percent, or if there are less able rate is not a fair means of evaluating its than three inspections, the determination of accident factor. Preventability will be deter- the carrier’s level of safety management mined according to the following standard: controls will only be based on discovered ‘‘If a driver, who exercises normal judgment noncompliance with the acute and critical and foresight, could have foreseen the possi- regulations of part 396. bility of the accident that in fact occurred, (2) Over two million inspections occur on and avoided it by taking steps within his/her the roadside each year in the United States. control which would not have risked causing This vehicle inspection information is re- another kind of mishap, the accident was tained in the MCMIS and is integral to eval- preventable.’’ uating motor carriers’ ability to successfully (k) Factor Ratings maintain their vehicles, thus preventing (1) The following table shows the five regu- them from being placed OOS during roadside latory factors, parts of the FMCSRs and inspections. Each safety audit will continue HMRs associated with each factor, and the to have the requirements of part 396, Inspec- accident factor. Each carrier’s level of basic safety management controls with each fac- tion, Repair, and Maintenance, reviewed as tor is determined as follows: indicated by the above explanation. (i) Factor 1—General: Parts 390 and 387; (j) Accident Factor. (1) In addition to the (ii) Factor 2—Driver: Parts 382, 383, and 391; five regulatory factors, a sixth factor is in- (iii) Factor 3—Operational: Parts 392 and cluded in the process to address the accident 395; history of the motor carrier. This factor is (iv) Factor 4—Vehicle: Parts 393, 396 and the recordable accident rate, which the car- the Out of Service Rate; rier has experienced during the past 12 (v) Factor 5—Hazardous Materials: Part months. Recordable accident, as defined in 49 171, 177, 180 and 397; and CFR 390.5, means an accident involving a (vi) Factor 6—Accident: Recordable Acci- commercial motor vehicle operating on a dent Rate per Million Miles; public road in interstate or intrastate com- (2) For paragraphs III (k)(1)(i) through (v) merce which results in a fatality; a bodily (Factors 1 through 5), if the combined viola- injury to a person who, as a result of the in- tions of acute and or critical regulations for jury, immediately receives medical treat- each factor is equal to three or more points, ment away from the scene of the accident; or the carrier is determined not to have basic one or more motor vehicles incurring dis- safety management controls for that indi- abling damage as a result of the accident re- vidual factor. quiring the motor vehicle to be transported (3) For paragraphs III (k)(1)(vi), if the re- away from the scene by a tow truck or other cordable accident rate is greater than 1.7 re- motor vehicle. cordable accidents per million miles for an (2) Experience has shown that urban car- urban carrier (1.5 for all other carriers), the riers, those motor carriers operating entirely carrier is determined to have inadequate within a radius of less than 100 air miles basic safety management controls. (normally urban areas), have a higher expo- (l) Notwithstanding FMCSA verification of sure to accident situations because of their the items listed in part II (a)(1) through (5) environment and normally have higher acci- above, if the safety audit determines the car- dent rates. rier has inadequate basic safety management (3) The recordable accident rate will be controls in at least three separate factors de- used in determining the carrier’s basic safety scribed in part III, the carrier’s application management controls in Factor 6, Accident. for provisional operating authority will be It will be used only when a carrier incurs two denied. For example, FMCSA evaluates a or more recordable accidents within the 12 carrier finding: months before the safety audit. An urban (1) One instance of noncompliance with a carrier (a carrier operating entirely within a critical regulation in part 387 scoring one radius of 100 air miles) with a recordable rate point for Factor 1; per million miles greater than 1.7 will be (2) Two instances of noncompliance with deemed to have inadequate basic safety man- acute regulations in part 382 scoring three agement controls for the accident factor. All points for Factor 2; other carriers with a recordable accident (3) Three instances of noncompliance with rate per million miles greater than 1.5 will critical regulations in part 396 scoring three be deemed to have inadequate basic safety points for Factor 4; and management controls for the accident fac- (4) Three instances of noncompliance with tor. The rates are the result of roughly dou- acute regulations in parts 171 and 397 scoring bling the United States national average ac- four and one-half (4.5) points for Factor 5.

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Under this example, the carrier will not re- § 366.4 Required States. ceive provisional operating authority because it scored three or more points for Fac- (a) Motor carriers. Every motor car- tors 2, 4, and 5 and FMCSA determined the rier (of property or passengers) shall carrier had inadequate basic safety manage- make a designation for each State in ment controls in at least three separate fac- which it is authorized to operate and tors. for each State traversed during such operations. Every motor carrier PART 366—DESIGNATION OF (including private carriers) operating PROCESS AGENT in the United States in the course of transportation between points in a for- Sec. eign country shall file a designation for 366.1 Applicability. each State traversed. 366.2 Form of designation. (b) Brokers. Every broker shall make 366.3 Eligible persons. a designation for each State in which 366.4 Required States. its offices are located or in which con- 366.5 Blanket designations. tracts will be written. 366.6 Cancellation or change. [55 FR 11197, Mar. 27, 1990, as amended at 55 AUTHORITY: 49 U.S.C. 13303, 13304, and 14704; FR 47338, Nov. 13, 1990] and 49 CFR 1.73.

SOURCE: 55 FR 11197, Mar. 27, 1990, unless § 366.5 Blanket designations. otherwise noted. Redesignated at 61 FR 54707, Where an association or corporation Oct. 21, 1996. has filed with the FMCSA a list of EDITORIAL NOTE: Nomenclature changes to process agents for each State, motor part 366 appear at 66 FR 49870, Oct. 1, 2001. carriers may make the required designations by using the following state- § 366.1 Applicability. ment: These rules, relating to the filing of Those persons named in the list of process designations of persons upon whom agents on file with the Federal Motor Carrier court process may be served, govern Safety Administra- motor carriers and brokers and, as of tion by lllllllllllllll the moment of succession, their fidu- llllllllllllllllllllllll ciaries (as defined at 49 CFR 387.319(a)). (Name of association or corporation) and any [55 FR 11197, Mar. 27, 1990. Redesignated at 61 subsequently filed revisions thereof, for the FR 54707, Oct. 21, 1996; 62 FR 49940, Sept. 24, States in which this carrier is or may be au- 1997] thorized to operate, including States traversed during such operations, except those § 366.2 Form of designation. States for which individual designations are named. Designations shall be made on Form BOC–3, Designation of Agent for Service § 366.6 Cancellation or change. of Process. Only one completed current A designation may be canceled or form may be on file. It must include all changed only by a new designation ex- States for which agent designations are cept that, where a carrier or broker required. One copy must be retained by ceases to be subject to § 366.4 in whole the carrier or broker at its principal or in part for 1 year, designation is no place of business. longer required and may be canceled without making another designation. § 366.3 Eligible persons. [55 FR 11197, Mar. 27, 1990. Redesignated at 61 All persons (as defined at 49 U.S.C. FR 54707, Oct. 21, 1996; 62 FR 49940, Sept. 24, 13102(16)) designated must reside or 1997] maintain an office in the State for which they are designated. If a State PART 367—STANDARDS FOR official is designated, evidence of his willingness to accept service of process REGISTRATION WITH STATES must be furnished. Sec. [55 FR 11197, Mar. 27, 1990. Redesignated at 61 367.1 Definitions. FR 54707, Oct. 21, 1996; 62 FR 49940, Sept. 24, 367.2 Participation by States. 1997] 367.3 Selection of registration State.

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367.4 Requirements for registration. § 367.3 Selection of registration State. 367.5 Registration receipts. 367.6 Registration State accounting. (a) Each motor carrier required to 367.7 Violations unlawful; criminal pen- register and pay filing fees must select alties and civil sanctions. a single participating State as its reg- APPENDIX A TO PART 367—UNIFORM APPLICA- istration State. The carrier must select TION FOR SINGLE STATE REGISTRATION FOR the State in which it maintains its MOTOR CARRIERS REGISTERED WITH THE principal place of business, if such SECRETARY OF TRANSPORTATION State is a participating State. A car- AUTHORITY: 49 U.S.C. 13301 and 14504; and 49 rier that maintains its principal place CFR 1.73. of business outside of a participating State must select the State in which it SOURCE: 58 FR 28933, May 18, 1993, unless otherwise noted. Redesignated at 61 FR 54707, will operate the largest number of Oct. 21, 1996. motor vehicles during the next registration year. In the event a carrier EDITORIAL NOTE: Nomenclature changes to will operate the same largest number part 367 appear at 66 FR 49870, Oct. 1, 2001. of vehicles in more than one State, it § 367.1 Definitions. must select one of those States. (b) A carrier may not change its reg- (a) The Secretary. The Secretary of istration State unless it changes its Transportation. principal place of business or its reg- (b) Motor carrier and carrier. A person istration State ceases participating in authorized to engage in the transpor- the program, in which case the carrier tation of passengers or property, as a must select a registration State for the common or contract carrier, in inter- next registration year under the stand- state or foreign commerce, under the ards of paragraph (a) of this section. provisions of 49 U.S.C. 13902. (c) A carrier must give notice of its (c) Motor vehicle. A self-propelled or selection to the State commission of motor driven vehicle operated by a its selected registration State, and, the motor carrier in interstate or foreign State commission of its prior registra- commerce under authority issued by tion State, within 30 days after it has the Secretary. made its selection. If a carrier changes (d) Principal place of business. A single its principal place of business during location that serves as a motor car- the annual registration period specified rier’s headquarters and where it main- in § 367.4(b)(2), the carrier may continue tains or can make available its oper- to use its prior registration State, if ational records. any, for the next registration year. (e) State. A State of the United States or the District of Columbia. (d) A carrier must give notice of its selection to its insurer or insurers as [58 FR 28933, May 18, 1993. Redesignated at 61 soon as practicable after it has made FR 54707, Oct. 21, 1996, as amended at 62 FR its selection. 15420, Apr. 1, 1997] [58 FR 28933, May 18, 1993. Redesignated at 61 § 367.2 Participation by States. FR 54707, Oct. 21, 1996, as amended at 62 FR 15420, Apr. 1, 1997] (a) A State is eligible to participate as a registration State and to receive § 367.4 Requirements for registration. fee revenue only if, as of January 1, 1991, it charged or collected a fee for a (a) Except as provided in paragraph vehicle identification stamp or a num- (c)(1) of this section with regard to a ber pursuant to the provisions of the carrier operating under temporary au- predecessor to this part. thority, only a motor carrier holding a (b) An eligible State that intends ei- certificate or permit issued by the Sec- ther to commence or to cease partici- retary under 49 U.S.C. 13902 shall be re- pating in the registration program quired to register under these stand- must publish notice of its intention by ards. the 1st day of July of the year pre- (b) A motor carrier operating in ceding the registration year in which it interstate or foreign commerce in one will commence or cease participating. or more participating States under a

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certificate or permit issued by the Sec- mation is on file. Once a carrier has retary shall be required to register an- submitted, or caused to be submitted, a nually with a single registration State, copy of its proof or order of the Sec- and such registration shall be deemed retary, it may thereafter satisfy the to satisfy the registration require- filing requirement by certifying that it ments of all participating States. has done so and that its security, self- (1) The registration year will be the insurance, or agreement remains in ef- calendar year. fect; (2) A carrier must file its annual reg- (3) A copy of its designation of an istration application between the 1st agent or agents for service of process day of August and the 30th day of No- submitted to and accepted by the Sec- vember of the year preceding the reg- retary under 49 CFR part 366. A carrier istration year. A carrier that intends must supplement its filings as nec- to commence operating during the cur- essary to ensure that current informa- rent registration year may register at tion is on file. Once a carrier has sub- any time, but it must do so before it mitted a copy of its designation, it commences operating. may thereafter satisfy the filing re- (3) The registration application must quirement by certifying that its des- be in the form appended to this part ignation is on file; and and must contain the information and (4) A fee for the filing of proof of in- be accompanied by the fees specified in surance. In support of such fee, the car- paragraph (c) of this section. There will rier must submit the following infor- be no prorating of fees to account for mation: partial year operations. (i) The number of motor vehicles it (4) A carrier that has changed its reg- intends to operate in each partici- istration State since its last filing pating State during the next registra- must identify the registration State tion year; with which it previously filed. (ii) The per vehicle fee each pertinent (c) A motor carrier must file, or participating State charges, which fee cause to be filed, the following with its must equal the fee, not to exceed $10, registration State: that such State collected or charged as (1) Copies of its certificates and/or of November 15, 1991; permits. A carrier must supplement its (iii) The total fee due each partici- filing by submitting copies of any new pating State; and operating authorities as they are (iv) The total of all fees specified in issued. Once a carrier has submitted paragraph (c)(4)(iii) of this section. copies of its authorities, it may there- (d) Consistent with its obligations after satisfy the filing requirement by under paragraph (c)(2) of this section, a certifying that the copies are on file. A carrier must cause to be timely filed carrier may, with the permission of its with its registration State copies of registration State, submit a summary any notices of cancellation or of any of its operating authorities in lieu of replacement certificates of insurance, copies. A carrier granted emergency surety bonds, or other security filed temporary authority or temporary au- with the Secretary under 49 CFR part thority having a duration of 120 days or 387, subpart C. less is not required to file evidence of (e) A carrier must make such supple- such authority, but it must otherwise mental filings at any time during the comply with the requirements of this registration year as may be necessary section; to specify additional vehicles and/or (2) A copy of its proof of public liabil- States of operation and to pay addi- ity security submitted to and accepted tional fees. by the Secretary under 49 CFR part 387, (f) A motor carrier must submit to subpart C or a copy of an order of the its insurer or insurers a copy of the Secretary approving a public liability supporting information, including any self-insurance application or other pub- supplemental information, filed with lic liability security or agreement its registration State under paragraphs under the provisions of that part. A (c)(4) and (e) of this section. carrier must supplement its filings as (g) The charging or collection of any necessary to ensure that current infor- fee that is not in accordance with the

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fee system established above is deemed ies. It may not operate more motor ve- a burden on interstate commerce. This hicles in a participating State than the includes fees for the registration or fil- number for which it has paid fees. ing of evidence of insurance whether (d) A motor carrier may not copy or assessed directly upon the carrier or alter a receipt or an official copy of a indirectly upon the insurance provider receipt. or other party who seeks reimburse- (e) A motor carrier must maintain in ment from the carrier. each of its motor vehicles an official (h) To the extent any State registra- copy of its receipt indicating that it tion requirement imposes obligations has filed the required proof of insur- in excess of those specified in this part, ance and paid appropriate fees for each the requirement is an unreasonable State in which it operates. burden on transportation within the (f) A motor carrier may transfer its Secretary’s jurisdiction under 49 U.S.C. official copies of its receipts from vehi- 13501. cles taken out of service to their re- [58 FR 28933, May 18, 1993. Redesignated at 61 placement vehicles. FR 54707, Oct. 21, 1996, as amended at 62 FR (g) The driver of a motor vehicle 15420, Apr. 1, 1997] must present an official copy of a receipt for inspection by any authorized § 367.5 Registration receipts. government personnel on reasonable (a) On compliance by a motor carrier demand. with the annual or supplemental reg- (h) No registration State shall re- istration requirements of § 367.4, the quire decals, stamps, cab cards, or any registration State must issue the car- other means of registering or identi- rier a receipt reflecting that the car- fying specific vehicles operated by a rier has filed the required proof of in- motor carrier. surance and paid fees in accordance with the requirements of that section. [60 FR 30012, June 7, 1995. Redesignated at 61 The registration State also must issue FR 54707, Oct. 21, 1996, as amended at 62 FR a number of official copies of the re- 15420, Apr. 1, 1997] ceipt equal to the number of motor ve- § 367.6 Registration State accounting. hicles for which fees have been paid. (1) The receipt and official copies (a) A participating State must, on or must contain only information identi- before the last day of each month, allo- fying the carrier and specifying the cate and remit to each other partici- States for which fees were paid. Sup- pating State the appropriate portion of plemental receipts and official copies the fee revenue registrants submitted need contain only information relating during the preceding month. Each re- to their underlying supplemental reg- mittance must be accompanied by a istrations. supporting statement identifying reg- (b) Receipts and official copies issued istrants and specifying the number of pursuant to a filing made during the motor vehicles for which each reg- annual registration period specified in istrant submitted fees. A participating § 367.4(b)(2) must be issued within 30 State must submit a report of ‘‘no ac- days of filing of a fully acceptable reg- tivity’’ to any other participating istration application. All other re- State for which it collected no fees dur- ceipts and official copies must be ing any month. issued by the 30th day following the (b) A participating State must main- date of filing of a fully acceptable sup- tain records of fee revenue received plemental registration application. All from and remitted to each other par- receipts and official copies shall expire ticipating State. Such records must at midnight on the 31st day of Decem- specify the fees received from and re- ber of the registration year for which mitted to each participating State they were issued. with respect to each motor carrier reg- (c) A carrier is permitted to operate istrant. A participating State must re- its motor vehicles only in those par- tain such records for a minimum of 3 ticipating States with respect to which years. it has paid appropriate fees, as indi- (c) A participating State must keep cated on the receipts and official cop- records pertaining to each of the motor

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carriers for which it acts as a registra- [] New Registration State Selection— The tion State. The records must, at a min- motor carrier has changed its principal imum, include copies of annual and place of business or its prior registration supplemental registration applications State has left the registration program. The prior registration State was containing the information required by llllllllll. § 367.4(c). A registration State must re- [] Additional States not registered in prior tain all such records for a minimum of years. List 3 years. llllllllllllllllllllllll [58 FR 28933, May 18, 1993. Redesignated at 61 llllllllllllllllllllllll FR 54707, Oct. 21, 1996, as amended at 62 FR Type of Motor Carrier: (Check one) 15420, Apr. 1, 1997] [ ] Individual [ ] Partnership [ ] Cor- poration § 367.7 Violations unlawful; criminal penalties and civil sanctions. If corporation, give State in which incorporated:llllllllll Any violation of the provisions of List names of partners or officers: these standards is unlawful. Nothing in Name: llllllllllllllllllll these standards shall be construed to prevent a State from imposing crimi- Title: llllllllllllllllllll nal penalties or civil sanctions upon Name: llllllllllllllllllll any person or organization violating Title: llllllllllllllllllll any provision of them. Name: llllllllllllllllllll Title: llllllllllllllllllll APPENDIX A TO PART 367—UNIFORM AP- Type of FMCSA Registered Authority: PLICATION FOR SINGLE STATE REG- Permanent Certificate or Permit [ ] Tem- ISTRATION FOR MOTOR CARRIERS porary Authority (TA) [ ] Emergency REGISTERED WITH THE SECRETARY Temporary Authority (ETA) [ ] OF TRANSPORTATION FMCSA Certificate(s) or Permit(s): [ ] FMCSA Authority Order(s) attached for Motor Carrier Identification Numbers: initial registration. FMCSA MC No.(s.) lllllllllllll [ ] FMCSA Authority Order(s) attached for US DOT No. lllllllllllllllll additional grants received. Applicant (Identical to name on FMCSA [ ] No change from prior year registration. order): Proof of Public Liability Security: Name: llllllllllllllllllll [ ] The applicant is filing, or causing to be D/B/A llllllllllllllllllll filed, a copy of its proof of public liabil- Principal Place of Business Address: 1 ity security submitted to and accepted Street llllllllllllllllllll by the FMCSA under 49 CFR part 387, subpart C. City lllllllllllllllllllll [ ] The applicant has filed, or caused to be State llllllllllllllllllll filed, a copy of its proof of public liabil- Zip lllllllllllllllllllll ity security submitted to and accepted Mailing Address if Different From Business by the FMCSA under 49 CFR part 387, Address Above: subpart C, and the security remains in Street llllllllllllllllllll effect. City lllllllllllllllllllll FMCSA Approved Self-Insurance or Other Secu- rities: State llllllllllllllllllll [ ] FMCSA Insurance order attached for Zip lllllllllllllllllllll new carrier registration. (Check one Type of Registration: when completing for annual registra- [] New Carrier Registration— The motor car- tion.) rier has not previously registered. [ ] The FMCSA Order approving the self-in- [] Annual Registration— The motor carrier surance plan or other security is still in is renewing its annual registration. full force and effect, and the carrier is in [] Supplemental Registration— The motor full compliance with all conditions im- carrier is adding additional vehicles or posed by the FMCSA Order. States of travel after its annual registra- [ ] The motor carrier is no longer approved tion. under a self-insurance plan or other security, and the motor carrier will file, or 1 A principal place of business is a single lo- cause to be filed, a copy of proof of public cation that serves as a motor carrier’s head- liability security with this application in quarters and where it maintains or can make the registration State. available its operational records. Hazardous Materials: (Check one)

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[ ] The applicant will not haul hazardous § 368.1 Certificate of registration. materials in any quantity. [ ] The applicant will haul hazardous mate- (a) A Mexico-domiciled motor carrier rials that require the following limits in must apply to the FMCSA and receive accordance with Title 49 CFR 387.303: a Certificate of Registration to provide (Check one) interstate transportation in munici- [ ] Public Liability and Property Damage palities in the United States on the Insurance of $1 million. United States-Mexico international [ ] Public Liability and Property Damage border or within the commercial zones Insurance of $5 million. of such municipalities as defined in 49 Process Agents: U.S.C. 13902(c)(4)(A). [ ] FMCSA Form No. BOC–3 or blanket des- (b) A certificate of registration per- ignation attached for new registration. mits only interstate transportation of [ ] FMCSA Form No. BOC–3 or blanket designation attached reflecting changes of property in municipalities in the designation of process agents. United States on the United States- [ ] No change from prior year registration. Mexico international border or within Certification: the commercial zones of such munici- I, the undersigned, under penalty for false palities. A holder of a Certificate of statement, certify that the above informa- Registration who operates a vehicle be- tion is true and correct and that I am au- yond this area is subject to applicable thorized to execute and file this document on penalties and out-of-service orders. behalf of the applicant. (Penalty provisions subject to the laws of the registration § 368.2 Definitions. State.) Interstate transportation means trans- Name (Printed) lllllllllllllll portation described at 49 U.S.C. 13501, Signature llllllllllllllllll and transportation in the United Title lllllllllllllllllllll States otherwise exempt from the Sec- Telephone Number lllllllllllll retary’s jurisdiction under 49 U.S.C. Date lllllllllllllllllllll 13506(b)(1). [58 FR 28933, May 18, 1993. Redesignated at 61 Mexico-domiciled motor carrier means a FR 54707, Oct. 21, 1996, as amended at 62 FR motor carrier of property whose prin- 15420, Apr. 1, 1997] cipal place of business is located in Mexico. PART 368—APPLICATION FOR A § 368.3 Applying for a certificate of CERTIFICATE OF REGISTRATION registration. TO OPERATE IN MUNICIPALITIES (a) If you wish to obtain a certificate IN THE UNITED STATES ON THE of registration under this part, you UNITED STATES-MEXICO INTER- must submit an application that in- NATIONAL BORDER OR WITHIN cludes the following: THE COMMERCIAL ZONES OF (1) Form OP–2—Application for Mexi- SUCH MUNICIPALITIES. can Certificate of Registration for For- eign Motor Carriers and Foreign Motor Sec. Private Carriers Under 49 U.S.C. 13902; 368.1 Certificate of registration. (2) Form MCS–150—Motor Carrier 368.2 Definitions. Identification Report; and 368.3 Applying for a certificate of registra- (3) A notification of the means used tion. 368.4 Requirement to notify FMCSA of to designate process agents, either by change in applicant information. submission in the application package 368.5 Re-registration of certain carriers of Form BOC–3—Designation of holding certificates of registration. Agents—Motor Carriers, Brokers and 368.6 FMCSA action on an application. Freight Forwarders or a letter stating 368.7 Requirement to carry certificate of that the applicant will use a process registration in the vehicle. agent service that will submit the 368.8 Appeals. Form BOC–3 electronically. AUTHORITY: 49 U.S.C. 13301 and 13902; Pub. (b) The FMCSA will only process L. 106–159, 113 Stat. 1748; and 49 CFR 1.73. your application for a Certificate of SOURCE: 67 FR 12660, Mar. 19, 2002, unless Registration if it meets the following otherwise noted. conditions:

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(1) The application must be com- along the United States-Mexico inter- pleted in English; national border or in commercial zones (2) The information supplied must be of such municipalities issued before accurate and complete in accordance April 18, 2002, who wishes to continue with the instructions to the Form OP– solely in those operations must submit 2, Form MCS–150 and Form BOC–3; an application according to procedures (3) The application must include all established under § 368.3 of this part, the required supporting documents and except the filing fee in paragraph (b)(4) applicable certifications set forth in of that section is waived. You must file the instructions to the Form OP–2, your application by October 20, 2003. Form MCS–150 and Form BOC–3; (b) The FMCSA may suspend or re- (4) The application must include the voke the certificate of registration of filing fee payable to the FMCSA in the any registrant that fails to comply amount set forth in 49 CFR 360.3(f)(1); with the procedures set forth in this and section. (5) The application must be signed by (c) Certificates of registration issued the applicant. before April 18, 2002, remain valid until (c) If you fail to furnish the complete the FMCSA acts on the OP–2 applica- application as described under para- tion filed according to paragraph (a) of graph (b) of this section your applica- this section. tion may be rejected. (d) If you submit false information § 368.6 FMCSA action on the applica- under this section, you will be subject tion. to applicable Federal penalties. (a) The Federal Motor Carrier Safety (e) You must submit the application Administration will review the applica- to the address provided in the instruc- tion for correctness, completeness, and tions to the Form OP–2. adequacy of information. Non-material (f) You may obtain the application errors will be corrected without notice described in paragraph (a) of this sec- to the applicant. Incomplete application from any FMCSA Division Office tions may be rejected. or download it from the FMCSA web site at: http://www.fmcsa.dot.gov/ (b) If the applicant does not require factsfigs/formspubs.htm. or is not eligible for a Certificate of Registration, the FMCSA will deny the § 368.4 Requirement to notify FMCSA application and notify the applicant. of change in applicant information. (c) The FMCSA will validate the ac- (a) You must notify the FMCSA of curacy of information and certifi- any changes or corrections to the in- cations provided in the application formation in Parts I, IA or II sub- against data maintained in databases mitted on the Form OP–2 or the Form of the governments of Mexico and the BOC–3—Designation of Agents—Motor United States. Carriers, Brokers and Freight For- (d) If the FMCSA determines that the warders during the application process application and certifications dem- or while you have a Certificate of Reg- onstrate that the application is con- istration. You must notify the FMCSA sistent with the FMCSA’s safety fit- in writing within 45 days of the change ness policy, it will issue a provisional or correction. Certificate of Registration, including a (b) If you fail to comply with para- distinctive USDOT Number that identi- graph (a) of this section, the FMCSA fies the motor carrier as permitted to may suspend or revoke the Certificate provide interstate transportation of of Registration until you meet those property solely in municipalities in the requirements. United States on the U.S.-Mexico international border or within the § 368.5 Re-registration of certain car- commercial zones of such municipali- riers holding certificates of reg- ties. istration. (e) The FMCSA may issue a perma- (a) Each holder of a certificate of reg- nent Certificate of Registration to the istration that permits operations only holder of a provisional Certificate of in municipalities in the United States Registration no earlier than 18 months

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after the date of issuance of the Certifi- § 370.1 Applicability of regulations. cate and only after completion to the The regulations set forth in this part satisfaction of the FMCSA of the safe- shall govern the processing of claims ty monitoring system for Mexico-domi- for loss, damage, injury, or delay to ciled carriers set out in subpart B of property transported or accepted for part 385 of this subchapter. transportation, in interstate or foreign (f) Notice of the authority sought commerce, by each motor carrier, will not be published in either the water carrier, and freight forwarder FEDERAL REGISTER or the FMCSA Reg- (hereinafter called carrier), subject to ister. Protests or comments will not be 49 U.S.C. subtitle IV, part B. allowed. There will be no oral hearings. § 370.3 Filing of claims. § 368.7 Requirement to carry certifi- (a) Compliance with regulations. A cate of registration in the vehicle. claim for loss or damage to baggage or A holder of a Certificate of Registra- for loss, damage, injury, or delay to tion must maintain a copy of the Cer- cargo, shall not be voluntarily paid by tificate of Registration in any vehicle a carrier unless filed, as provided in providing transportation service within paragraph (b) of this section, with the the scope of the Certificate, and make receiving or delivering carrier, or car- it available upon request to any State rier issuing the bill of lading, receipt, or Federal authorized inspector or en- ticket, or baggage check, or carrier on forcement officer. whose line the alleged loss, damage, injury, or delay occurred, within the § 368.8 Appeals. specified time limits applicable thereto and as otherwise may be required by An applicant has the right to appeal law, the terms of the bill of lading or denial of the application. The appeal other contract of carriage, and all tar- must be in writing and specify in detail iff provisions applicable thereto. why the agency’s decision to deny the (b) Minimum filing requirements. A application was wrong. The appeal written or electronic communication must be filed with the Director, Office (when agreed to by the carrier and of Data Analysis and Information Sys- shipper or receiver involved) from a tems within 20 days of the date of the claimant, filed with a proper carrier letter denying the application. The de- within the time limits specified in the cision of the Director will be the final bill of lading or contract of carriage or agency order. transportation and: (1) Containing facts sufficient to PART 370—PRINCIPLES AND PRAC- identify the baggage or shipment (or TICES FOR THE INVESTIGATION shipments) of property, (2) Asserting liability for alleged AND VOLUNTARY DISPOSITION loss, damage, injury, or delay, and OF LOSS AND DAMAGE CLAIMS (3) Making claim for the payment of AND PROCESSING SALVAGE a specified or determinable amount of money, shall be considered as suffi- Sec. cient compliance with the provisions 370.1 Applicability of regulations. for filing claims embraced in the bill of 370.3 Filing of claims. lading or other contract of carriage; 370.5 Acknowledgment of claims. Provided, however, That where claims 370.7 Investigation of claims. are electronically handled, procedures 370.9 Disposition of claims. are established to ensure reasonable 370.11 Processing of salvage. carrier access to supporting docu- AUTHORITY: 49 U.S.C. 13301 and 14706; and 49 ments. CFR 1.73. (c) Documents not constituting claims. Bad order reports, appraisal reports of SOURCE: 62 FR 32042, June 12, 1997, unless otherwise noted. damage, notations of shortage or damage, or both, on freight bills, delivery EDITORIAL NOTE: Nomenclature changes to receipts, or other documents, or inspec- part 370 appear at 66 FR 49870, Oct. 1, 2001. tion reports issued by carriers or their

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inspection agencies, whether the ex- tion may be required by it further to tent of loss or damage is indicated in process the claim as its preliminary ex- dollars and cents or otherwise, shall, amination of the claim, as filed, may standing alone, not be considered by have revealed. carriers as sufficient to comply with (b) The carrier shall at the time each the minimum claim filing require- claim is received create a separate file ments specified in paragraph (b) of this and assign thereto a successive claim section. file number and note that number on (d) Claims filed for uncertain amounts. all documents filed in support of the Whenever a claim is presented against claim and all records and correspond- a proper carrier for an uncertain ence with respect to the claim, includ- amount, such as ‘‘$100 more or less,’’ ing the acknowledgment of receipt. At the carrier against whom such claim is the time such claim is received the car- filed shall determine the condition of rier shall cause the date of receipt to the baggage or shipment involved at be recorded on the face of the claim the time of delivery by it, if it was de- document, and the date of receipt shall livered, and shall ascertain as nearly as also appear in the carrier’s acknowl- possible the extent, if any, of the loss edgment of receipt to the claimant. or damage for which it may be respon- The carrier shall also cause the claim sible. It shall not, however, voluntarily file number to be noted on the shipping pay a claim under such circumstances order, if in its possession, and the de- unless and until a formal claim in writ- livery receipt, if any, covering such ing for a specified or determinable shipment, unless the carrier has estab- amount of money shall have been filed lished an orderly and consistent inter- in accordance with the provisions of nal procedure for assuring: paragraph (b) of this section. (1) That all information contained in (e) Other claims. If investigation of a shipping orders, delivery receipts, tally claim develops that one or more other sheets, and all other pertinent records carriers has been presented with a made with respect to the transpor- similar claim on the same shipment, tation of the shipment on which claim the carrier investigating such claim is made, is available for examination shall communicate with each such upon receipt of a claim; other carrier and, prior to any agree- (2) That all such records and document entered into between or among ments (or true and complete reproduc- them as to the proper disposition of tions thereof) are in fact examined in such claim or claims, shall notify all the course of the investigation of the claimants of the receipt of conflicting claim (and an appropriate record is or overlapping claims and shall require made that such examination has in further substantiation, on the part of fact taken place); and each claimant of his/her title to the (3) That such procedures prevent the property involved or his/her right with duplicate or otherwise unlawful pay- respect to such claim. ment of claims.

§ 370.5 Acknowledgment of claims. § 370.7 Investigation of claims. (a) Each carrier shall, upon receipt in (a) Prompt investigation required. Each writing or by electronic transmission claim filed against a carrier in the of a proper claim in the manner and manner prescribed in this part shall be form described in the regulations in promptly and thoroughly investigated the past, acknowledge the receipt of if investigation has not already been such claim in writing or electronically made prior to receipt of the claim. to the claimant within 30 days after (b) Supporting documents. When a nec- the date of its receipt by the carrier essary part of an investigation, each unless the carrier shall have paid or de- claim shall be supported by the origi- clined such claim in writing or elec- nal bill of lading, evidence of the tronically within 30 days of the receipt freight charges, if any, and either the thereof. The carrier shall indicate in original invoice, a photographic copy its acknowledgment to the claimant of the original invoice, or an exact what, if any, additional documentary copy thereof or any extract made evidence or other pertinent informa- therefrom, certified by the claimant to

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be true and correct with respect to the (b) When settling a claim for loss or property and value involved in the damage, a common carrier by motor claim; or certification of prices or val- vehicle of household goods as defined ues, with trade or other discounts, al- in § 375.1(b)(1) of this chapter shall use lowance, or deductions, of any nature the replacement costs of the lost or whatsoever and the terms thereof, or damaged item as a base to apply a de- depreciation reflected thereon; preciation factor to arrive at the cur- Provided, however, That where property rent actual value of the lost or dam- involved in a claim has not been aged item: Provided, That where an invoiced to the consignee shown on the item cannot be replaced or no suitable bill of lading or where an invoice does replacement is obtainable, the proper not show price or value, or where the measure of damages shall be the origi- property involved has been sold, or nal costs, augmented by a factor de- where the property has been trans- rived from a consumer price index, and ferred at bookkeeping values only, the adjusted downward by a factor depre- carrier shall, before voluntarily paying ciation over average useful life. a claim, require the claimant to establish the destination value in the quan- § 370.11 Processing of salvage. tity, shipped, transported, or involved; Provided, further, That when supporting (a) Whenever baggage or material, documents are determined to be a nec- goods, or other property transported by essary part of an investigation, the a carrier subject to the provisions in supporting documents are retained by this part is damaged or alleged to be the carriers for possible FMCSA in- damaged and is, as a consequence spection. thereof, not delivered or is rejected or (c) Verification of loss. When an as- refused upon tender thereof to the serted claim for loss of an entire pack- owner, consignee, or person entitled to age or an entire shipment cannot be receive such property, the carrier, after otherwise authenticated upon inves- giving due notice, whenever prac- tigation, the carrier shall obtain from ticable to do so, to the owner and other the consignee of the shipment involved parties that may have an interest a certified statement in writing that therein, and unless advised to the con- the property for which the claim is trary after giving such notice, shall un- filed has not been received from any dertake to sell or dispose of such prop- other source. erty directly or by the employment of § 370.9 Disposition of claims. a competent salvage agent. The carrier shall only dispose of the property in a (a) Each carrier subject to 49 U.S.C. manner that will fairly and equally subtitle IV, part B which receives a protect the best interests of all persons written or electronically transmitted having an interest therein. The carrier claim for loss or damage to baggage or shall make an itemized record suffi- for loss, damage, injury, or delay to cient to identify the property involved property transported shall pay, decline, or make a firm compromise settlement so as to be able to correlate it to the offer in writing or electronically to the shipment or transportation involved, claimant within 120 days after receipt and claim, if any, filed thereon. The of the claim by the carrier; Provided, carrier also shall assign to each lot of however, That, if the claim cannot be such property a successive lot number processed and disposed of within 120 and note that lot number on its record days after the receipt thereof, the car- of shipment and claim, if any claim is rier shall at that time and at the expi- filed thereon. ration of each succeeding 60-day period (b) Whenever disposition of salvage while the claim remains pending, ad- material or goods shall be made di- vise the claimant in writing or elec- rectly to an agent or employee of a car- tronically of the status of the claim rier or through a salvage agent or com- and the reason for the delay in making pany in which the carrier or one or final disposition thereof and it shall re- more of its directors, officers, or man- tain a copy of such advice to the claim- agers has any interest, financial or ant in its claim file thereon. otherwise, that carrier’s salvage

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records shall fully reflect the particu- the part of the agent in allocating traf- lars of each such transaction or rela- fic between the carrier and others. tionship, or both, as the case may be. (c) Brokerage or brokerage service is (c) Upon receipt of a claim on a ship- the arranging of transportation or the ment on which salvage has been proc- physical movement of a motor vehicle essed in the manner prescribed in this or of property. It can be performed on section, the carrier shall record in its behalf of a motor carrier, consignor, or claim file thereon the lot number as- consignee. signed, the amount of money recov- (d) Non-brokerage service is all other ered, if any, from the disposition of service performed by a broker on behalf such property, and the date of trans- of a motor carrier, consignor, or con- mittal of such money to the person or signee. persons lawfully entitled to receive the same. § 371.3 Records to be kept by brokers. (a) A broker shall keep a record of PART 371—BROKERS OF PROPERTY each transaction. For purposes of this section, brokers may keep master lists Sec. of consignors and the address and reg- 371.1 Applicability. istration number of the carrier, rather 371.2 Definitions. than repeating this information for 371.3 Records to be kept by brokers. each transaction. The record shall 371.7 Misrepresentation. show: 371.9 Rebating and compensation. (1) The name and address of the con- 371.10 Duties and obligations of brokers. 371.13 Accounting. signor; (2) The name, address, and registra- AUTHORITY: 49 U.S.C. 13301, 13501, and 14122; tion number of the originating motor and 49 CFR 1.73. carrier; SOURCE: 45 FR 68942, Oct. 17, 1980, unless (3) The bill of lading or freight bill otherwise noted. Redesignated at 61 FR 54707, number; Oct. 21, 1996. (4) The amount of compensation received by the broker for the brokerage § 371.1 Applicability. service performed and the name of the This part applies, to the extent pro- payer; vided therein, to all brokers of trans- (5) A description of any non-broker- portation by motor vehicle as defined age service performed in connection in § 371.2. with each shipment or other activity, [32 FR 20034, Dec. 20, 1967, as amended at 62 the amount of compensation received FR 15421, Apr. 1, 1997] for the service, and the name of the payer; and § 371.2 Definitions. (6) The amount of any freight charges (a) Broker means a person who, for collected by the broker and the date of compensation, arranges, or offers to ar- payment to the carrier. range, the transportation of property (b) Brokers shall keep the records re- by an authorized motor carrier. Motor quired by this section for a period of carriers, or persons who are employees three years. or bona fide agents of carriers, are not (c) Each party to a brokered trans- brokers within the meaning of this sec- action has the right to review the tion when they arrange or offer to ar- record of the transaction required to be range the transportation of shipments kept by these rules. which they are authorized to transport [45 FR 68942, Oct. 17, 1980. Redesignated at 61 and which they have accepted and le- FR 54707, Oct. 21, 1996, as amended at 62 FR gally bound themselves to transport. 15421, Apr. 1, 1997] (b) Bona fide agents are persons who are part of the normal organization of § 371.7 Misrepresentation. a motor carrier and perform duties (a) A broker shall not perform or under the carrier’s directions pursuant offer to perform any brokerage service to a preexisting agreement which pro- (including advertising), in any name vides for a continuing relationship, other than that in which its registra- precluding the exercise of discretion on tion is issued.

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(b) A broker shall not, directly or in- PART 372—EXEMPTIONS, COM- directly, represent its operations to be MERCIAL ZONES, AND TERMINAL that of a carrier. Any advertising shall AREAS show the broker status of the operation. Subpart A—Exemptions [45 FR 68942, Oct. 17, 1980. Redesignated at 61 Sec. FR 54707, Oct. 21, 1996, as amended at 62 FR 372.101 Casual, occasional, or reciprocal 15421, Apr. 1, 1997] transportation of passengers for compensation when such transportation is § 371.9 Rebating and compensation. sold or arranged by anyone for compensation. (a) A broker shall not charge or re- 372.103 Motor vehicles employed solely in ceive compensation from a motor car- transporting school children and teach- rier for brokerage service where: ers to or from school. (1) The broker owns or has a material 372.107 Definitions. beneficial interest in the shipment or 372.109 Computation of tonnage allowable in nonfarm-non-member transportation. (2) The broker is able to exercise con- 372.111 Nonmember transportation limita- trol over the shipment because the tion and record keeping. broker owns the shipper, the shipper 372.113 [Reserved] owns the broker, or there is common 372.115 Commodities that are not exempt ownership of the two. under 49 U.S.C. 13506(a)(6). (b) A broker shall not give or offer to 372.117 Motor transportation of passengers incidental to transportation by aircraft. give anything of value to any shipper, consignor or consignee (or their offi- Subpart B—Commercial Zones cers or employees) except inexpensive advertising items given for pro- 372.201 Albany, NY. 372.203 Beaumont, TX. motional purposes. 372.205 Charleston, SC. 372.207 Charleston, WV. § 371.10 Duties and obligations of bro- 372.209 Lake Charles, LA. kers. 372.211 Pittsburgh, PA. Where the broker acts on behalf of a 372.213 Pueblo, CO. 372.215 Ravenswood, WV. person bound by law or the FMCSA 372.217 Seattle, WA. regulation as to the transmittal of bills 372.219 Washington, DC. or payments, the broker must also 372.221 Twin Cities. abide by the law or regulations which 372.223 Consolidated governments. apply to that person. 372.225 Lexington-Fayette Urban County, KY. [45 FR 68943, Oct. 17, 1980, as amended at 62 372.227 Syracuse, NY. FR 15421, Apr. 1, 1997] 372.229 Spokane, WA. 372.231 Tacoma, WA. § 371.13 Accounting. 372.233 Chicago, IL. 372.235 New York, NY. Each broker who engages in any 372.237 Cameron, Hidalgo, Starr, and other business shall maintain accounts Willacy Counties, TX. so that the revenues and expenses re- 372.239 Definitions. 372.241 Commercial zones determined gen- lating to the brokerage portion of its erally, with exceptions. business are segregated from its other 372.243 Controlling distances and population activities. Expenses that are common data. shall be allocated on an equitable basis; however, the broker must be pre- Subpart C—Terminal Areas pared to explain the basis for the allo- 372.300 Distances and population data. cation. 372.301 Terminal areas of motor carriers and freight forwarders at municipalities [45 FR 68943, Oct. 17, 1980] served. 372.303 Terminal areas of motor carriers and household goods freight forwarders at unincorporated communities served.

AUTHORITY: 49 U.S.C. 13504 and 13506; and 49 CFR 1.73.

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EDITORIAL NOTE: Nomenclature changes to lowing definition in the Agricultural part 372 appear at 66 FR 49870, Oct. 1, 2001. Marketing Act, approved June 15, 1929, as amended (12 U.S.C. 1141j): Subpart A—Exemptions As used in this Act, the term cooperative association means any association in which SOURCE: 32 FR 20036, Dec. 20, 1967, unless farmers act together in processing, preparing otherwise noted. Redesignated at 61 FR 54708, for market, handling, and/or marketing the Oct. 21, 1996. farm products of persons so engaged, and also means any association in which farmers § 372.101 Casual, occasional, or recip- act together in purchasing, testing, grading, rocal transportation of passengers processing, distributing, and/or furnishing for compensation when such trans- farm supplies and/or farm business services. portation is sold or arranged by Provided, however, That such associations anyone for compensation. are operated for the mutual benefit of the members thereof as such producers or pur- The partial exemption from regula- chasers and conform to one or both of the tion under the provisions of 49 U.S.C. following requirements: subtitle IV, part B of the casual, occa- First. That no member of the association sional, and reciprocal transportation of is allowed more than one vote because of the passengers by motor vehicle in inter- amount of stock or membership capital he state or foreign commerce for com- may own therein; and pensation as provided in 49 U.S.C. Second. That the association does not pay dividends on stock or membership capital in 13506(b) be, and it is hereby, removed excess of 8 per centum per annum. to the extent necessary to make appli- And in any case to the following: cable all provisions of 49 U.S.C. subtitle Third. That the association shall not deal IV, part B to such transportation when in farm products, farm supplies and farm sold or offered for sale, or provided or business services with or for nonmembers in procured or furnished or arranged for, an amount greater in value than the total by any person who sells, offers for sale, amount of such business transacted by it with or for members. All business transacted provides, furnishes, contracts, or ar- by any cooperative association for or on be- ranges for such transportation for com- half of the United States or any agency or pensation or as a regular occupation or instrumentality thereof shall be disregarded business. in determining the volume of member and nonmember business transacted by such as- [32 FR 20036, Dec. 20, 1967. Redesignated at 61 sociation. FR 54708, Oct. 21, 1996, as amended at 62 FR 15421, Apr. 1, 1997] Associations which do not conform to such definition are not eligible to oper- § 372.103 Motor vehicles employed ate under the partial exemption of 49 solely in transporting school children and teachers to or from U.S.C. 13506(a)(5). school. (b) Federation of cooperative associations. The term ‘‘federation of coopera- The exemption set forth in 49 U.S.C. tive associations’’ means a federation 13506(a)(1) shall not be construed as composed of either two or more cooper- being inapplicable to motor vehicles ative associations, or one or more being used at the time of operation in farmers, which federation possesses no the transportation of schoolchildren greater powers or purposes than a co- and teachers to or from school, even operative association as defined in though such motor vehicles are em- paragraph (a) of this section. Federa- ployed at other times in transportation tions of cooperative associations which beyond the scope of the exemption. do not conform to such definition are [36 FR 9022, May 18, 1971, as amended at 62 not eligible to operate under the par- FR 15421, Apr. 1, 1997] tial exemption of 49 U.S.C. 13506(a)(5). (c) Member. The term ‘‘member’’ § 372.107 Definitions. means any farmer or cooperative asso- As used in the regulations in this ciation which has consented to be, has part, the following terms shall have been accepted as, and is a member in the meaning shown: good standing in accordance with the (a) Cooperative association. The term constitution, bylaws, or rules of the co- ‘‘cooperative association’’ means an as- operative association or federation of sociation which conforms to the fol- cooperative associations.

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(d) Farmer. The term ‘‘farmer’’ means its own property, its members’ prop- any individual, partnership, corpora- erty, property of other farmers and the tion, or other business entity to the ex- property of other cooperatives or fed- tent engaged in farming operations ei- erations in accordance with existing ther as a producer of agricultural com- law, except where the provisions of modities or as a farm owner. § 372.111 may be applicable to the limit (e) Interstate transportation. The term on member/nonmember transportation. ‘‘interstate transportation’’ means (a) The phrase ‘‘incidental to its pri- transportation by motor vehicle in mary transportation operation and interstate or foreign commerce subject necessary for its effective perform- to the FMCSA’s jurisdiction as set ance’’ means that the interstate trans- forth in 49 U.S.C. 13501. portation of the cooperative associa- (f) Member transportation. The term tion or federation of cooperation asso- ‘‘member transportation’’ means trans- ciation for nonmembers as described portation performed by a cooperative above is performed with the same association or federation of coopera- trucks or tractors employed in a prior tive associations for itself or for its or subsequent trip in the primary members, but does not include trans- transportation operation of the cooper- portation performed in furtherance of ative association or federation, that it the nonfarm business of such members. is not economically feasible to operate (g) Nonmember transportation. The the trucks or tractors empty on return term ‘‘nonmember transportation’’ trips (outbound trips in cases where means transportation performed by a the primary transportation operation cooperative association or federation is inbound to the association or federa- of cooperative associations other than tion), and that the additional income member transportation as defined in obtained from such transportation is paragraph (f) of this section. necessary to make the primary trans- (h) Fiscal year. The term ‘‘fiscal portation operation financially prac- year’’ means the annual accounting pe- ticable. Transportation for nonmem- riod adopted by the cooperative asso- bers as described above performed by a ciation or federation of cooperative as- cooperative or federation through the sociations for Federal income tax re- use of trucks or tractors trip-leased for porting purposes. one-way movements with the cooperative association or federation acting as [43 FR 2397, Jan. 17, 1978, as amended at 45 FR 45524, July 3, 1980; 47 FR 13353, Mar. 30, leasee, is not incidental and necessary; 1982; 47 FR 15142, Apr. 8, 1982] (b) The base tonnage to which the 25- percent limitation is applied is all ton- § 372.109 Computation of tonnage al- nage of all kinds transported by the co- lowable in nonfarm-non-member operative association or federation of transportation. cooperative associations in interstate Interstate transportation performed or foreign commerce, whether for by a cooperative association or federa- itself, its members or nonmembers, for tion of cooperative associations for or on behalf of the United States or nonmembers who are not farmers, co- any agency or instrumentality thereof, operative associations, or federations and that performed within the exemp- of associations or the United States tion provided by 49 U.S.C. 13506(a)(5). Government for compensation, (except [43 FR 2397, Jan. 17, 1978, as amended at 43 transportation otherwise exempt under FR 21894, May 22, 1978; 45 FR 45524, July 3, subtitle IV, part B, chapter 135 of title 1980; 62 FR 49940, Sept. 24, 1997] 49 of the United States Code) shall be limited to that which is incidental to § 372.111 Nonmember transportation its primary transportation operation limitation and record keeping. and necessary for its effective perform- (a) Overall limitation of nonmember ance. It shall in no event exceed 25 per- transportation. No cooperative associa- cent of its total interstate transpor- tion or federation of cooperative asso- tation services in any fiscal year, ciations may engage in nonmember measured in terms of tonnage. A coop- interstate transportation for com- erative association or federation of co- pensation in any fiscal year which, operative associations may transport measured in terms of tonnage, exceeds

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its total interstate member transpor- trative Ruling No. 133, which is repro- tation in such fiscal year. duced below, is a list of those commod- (b) Records of interstate transportation ities that are non-exempt by statute. when nonmember transportation is performed. Any cooperative association or ADMINISTRATIVE RULING NO. 133 federation of cooperative associations LIST OF COMMODITIES THAT ARE NOT EXEMPT performing interstate transportation BY STATUTE UNDER 49 U.S.C. 13506(A)(6) for nonmembers shall prepare and re- Animal fats tain for a period of at least two years Butter written records of all interstate trans- Canned fruits and vegetables portation performed for members and Carnauba wax as imported in slabs or chunks nonmembers. These records shall con- Cattle, slaughtered tain: Charcoal (1) The date of the shipment, Cheese (2) The names and addresses of the Coal Cocoa beans consignor and consignee, Coffee, beans, roasted, or instant (3) The origin and destination of the Copra meal shipment, Cotton yarn (4) A description of the articles in the Cottonseed cake or meal shipment, Diatomaceous earth (5) The weight or volume of the ship- Dinners, frozen ment, Feeds: (6) A description of the equipment Alfalfa meal used either by unit number or license Alfalfa pellets number and, in the event this equip- Beet pulp ment is nonowned, the name and ad- Bran shorts dress of its owners and drivers, Copra meal Corn gluten (7) The total charges collected, Distilled corn grain residues, with or with- (8) A copy of all leases executed by out solubles added the cooperative association or federa- Fish meal tion of cooperative associations to ob- Hominy feed tain equipment to perform transpor- Middlings tation under 49 U.S.C. 13506(a)(5), Pelletized ground refuse screenings (9) Whether the transportation per- Wheat bran formed is: Wheat shorts (i) Member transportation, Fertilizer, commercial (ii) Nonmember transportation for Fish: nonmembers who are farmers, coopera- Canned or salted as a treatment for pre- tive associations, or federations there- serving of, Cooked or partially cooked fish or shrimp, (iii) Other nonmember transpor- frozen or unfrozen Hermetically sealed in containers as a tation, and if of class (iii), how the treatment for preserving transportation was incidental and nec- Oil from fishes essary as defined in § 372.109(a). Preserved, or treated for preserving, such as smoked, salted, pickled, spiced, corned [43 FR 2397, Jan. 17, 1978, as amended at 45 or kippered FR 45524, July 3, 1980; 62 FR 38036, July 16, 1997; 62 FR 49940, Sept. 24, 1997] Flagstone Flaxseed meal § 372.113 [Reserved] Flour Forest products: § 372.115 Commodities that are not ex- Resin products, such as turpentine empt under 49 U.S.C. 13506(a)(6). Fruits and Berries: 49 U.S.C. 13506(a)(6) provides an exemption from regulation for motor ve- Bananas, fresh, dried, dehydrated, or fro- hicles used in carrying ordinary live- zen Canned stock, fish, and unmanufactured agri- Frozen cultural commodities. Certain specific Hulls of oranges after juice extractions commodities have been statutorily de- Juice, fruit, plain or concentrated termined to be non-exempt. Adminis- Pies, frozen

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Preserved, such as jam Soil, top Purees, strawberry and other, frozen Soup, frozen Grains: Sugar Sugar cane pulp Oils extracted from grain Sugar raw Popcorn, popped Syrup, cane Rice, precooked Syrup, maple Wheat germ Tea Gravel Tobacco: Hair, hog or other animal, product of slaughter of animal Cigars and cigarettes Hay, sweetened with 3 percent molasses by Homogenized weight Smoking Hemp fiber Top Soil Hides, green and salted Trees: Insecticides Limestone, agricultural Sawed into lumber Livestock: Vegetables: Monkeys Candied sweet potatoes, frozen Race horses Canned Show horses Cooked Zoo animals French fried potatoes Oil, extracted from vegetables Lumber, rough sawed or planed Soup, frozen Maple syrup Soybean meal Meal: Wool imported from a foreign country Alfalfa Wool tops and noils Copra Wool waste (carded, spun, woven, or knitted) Cottonseed Wool yarn Fish Note 1: Under 49 U.S.C. 13506(a)(6)(D), any Flaxseed listed fish or shellfish product that is not in- Linseed tended for human consumption is exempt. Peanut Note 2: Under 49 U.S.C. 13506(a)(6)(E), any Soybean listed livestock feed, poultry feed, agricul- Meat and meat products, fresh, frozen or tural seeds, or plants that are transported to canned a site of agricultural production or to a busi- Milk and Cream: ness enterprise engaged in the sale to agricultural producers of goods used in agricul- Chocolate tural production is exempt Condensed Sterilized in hermetically sealed cans [53 FR 17707, May 18, 1988, as amended at 62 FR 15421, Apr. 1, 1997] Molasses Nuts (including peanuts): § 372.117 Motor transportation of pas- Peanut meal sengers incidental to transportation Roasted or boiled by aircraft. Oil, mint (a) Passengers having an immediately Oil, extracted from vegetables, grain, seed, fish prior or subsequent movement by air. The or other commodity transportation of passengers by motor Pelts vehicle is transportation incidental to Pies, frozen transportation by aircraft provided (1) Pigeons, racing that it is confined to the transpor- Pulp, beet tation of passengers who have had or Pulp, sugar cane Rock (except natural crushed, vesicular rock to will have an immediately prior or im- be used for decorative purposes) mediately subsequent movement by air Rubber, crude, in bales and (2) that the zone within which Rubber, latex, natural, liquid, from which water motor transportation is incidental to has been extracted and to which ammonia transportation by aircraft, except as it has been added may be individually determined as pro- Sand vided in section (c) herein, shall not ex- Seeds: ceed in size the area encompassed by a Oil extracted from seeds 25-mile radius of the boundary of the Skins, animal airport at which the passengers arrive Soil, potting or depart and by the boundaries of the

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commercial zones (as defined by the by motor vehicle, in interstate or for- Secretary) of any municipalities any eign commerce, of passengers, having part of whose commercial zones falls an immediately prior or subsequent within the 25-mile radius of the perti- movement by air, between O’Hare nent airport. International Airport, at Chicago, Ill., (b) Substituted motor-for-air transpor- on the one hand, and, on the other, tation due to emergency conditions. points in Indiana on and north of U.S. Transportation of passengers by motor Highway 30 and on and west of Indiana vehicle is transportation incidental to Highway 49, is partially exempt from transportation by aircraft if it con- regulation under 49 U.S.C. stitutes substituted motor-for-air serv- 13506(a)(8)(A). ice performed at the expense of the air [32 FR 20036, Dec. 20, 1967, as amended at 37 carrier in emergency situations arising FR 5252, Mar. 11, 1972; 42 FR 10003, Feb. 18, from the inability of the air carrier to 1977; 42 FR 15705; Mar. 23, 1977; 62 FR 15421, perform air transportation due to ad- Apr. 1, 1997] verse weather conditions, equipment failure, or other causes beyond the con- Subpart B—Commercial Zones trol of the air carrier.

(c) Individual determination of exempt SOURCE: 41 FR 56653, Dec. 29, 1976, unless zones. Upon its own motion or upon pe- otherwise noted. Redesignated at 61 FR 54708, tition filed by any interested person, Oct. 21, 1996. the Secretary may in an appropriate proceeding, determine whether the § 372.201 Albany, NY. area within which the transportation The zone adjacent to, and commer- by motor vehicle of passengers having cially a part of Albany, N.Y., within an immediately prior or subsequent which transportation by motor vehicle, movement by air must be performed, in in interstate or foreign commerce, not order to come within the provisions of under common control, management, paragraph (a) of this section, should be or arrangement for a continuous car- individually determined with respect riage or shipment to or from a point to any particular airport or city served beyond such zone, is partially exempt by an airport, and whether there from regulations under 49 U.S.C. should be established therefor appro- 13506(b)(1) includes and is comprised of priate boundaries differing in extent all points as follows: from this defined in paragraph (a)(2) of (a) The municipality of Albany, N.Y., this section. itself. (d) Exempt zones and operations—(1) (b) All points within a line drawn Dulles and Baltimore-Washington Inter- eight miles beyond the municipal lim- national Airports. The transportation by its of Albany. motor vehicle, in interstate or foreign (c) All points in that area more than commerce, of passengers, having an eight miles beyond the municipal lim- immediately prior or subsequent move- its of Albany bounded by a line as fol- ment by air, between Dulles Inter- lows: Beginning at that point on the national Airport, near Chantilly, Va., western boundary of Cohoes, N.Y., and Baltimore-Washington Inter- where it crosses the line described in national Airport, near Baltimore, Md., paragraph (b) of this section, thence is partially exempt from regulation along the western and northern bound- under 49 U.S.C. 13506(a)(8)(A). ary of Cohoes to the Mohawk River (2) Savannah, Ga., Airport. The trans- thence along such river to the northern portation by motor vehicle, in inter- boundary of the Town of Waterford state or foreign commerce, of pas- thence along the northern and eastern sengers, having an immediately prior boundaries of the Town of Waterford to or subsequent movement by air, be- the northern boundary of the City of tween Savannah, Ga., Airport and all Troy (all of which city is included points on Hilton Head Island, SC, is under the next provision). partially exempt from regulation under (d) All of any municipality any part 49 U.S.C. 13506(a)(8)(A). of which is within the limits of the (3) Chicago O’Hare International Air- combined areas defined in paragraphs port (Chicago, Ill.). The transportation (b) and (c) of this section, and

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(e) All of any municipality wholly (c) Those points in Charleston Coun- surrounded, or so surrounded except for ty, S.C., which are not within the areas a water boundary, by the municipality described in paragraph (b) of this sec- of Albany or any other municipality tion; and those points in Berkley Coun- included under the terms of paragraph ty, S.C., which are not within the areas (d) of this section. described in paragraph (b) of this section, and which are west of South Caro- [41 FR 56653, Dec. 29, 1976, as amended at 62 FR 15422, Apr. 1, 1997] lina Highway 41; and all points in Dor- chester County, SC. § 372.203 Beaumont, TX. (d) All of any municipality any part of which is within the limits of the The zone adjacent to, and commer- combined areas defined in paragraphs cially a part of Beaumont, Tex., within (b) and (c) of this section, and which transportation by motor vehicle in interstate or foreign commerce, not (e) All of any municipality wholly under common control, management, surrounded, or so surrounded except for or arrangement for a continuous car- a water boundary, by the municipality riage or shipment to or from a point of Charleston or by any other munici- beyond such zone, is partially exempt pality included under the terms of from regulation under 49 U.S.C. paragraph (d) of this section. 13506(b)(1) includes and is comprised of [41 FR 56653, Dec. 29, 1976, as amended at 46 all points as follows: FR 28658, May 28, 1981; 62 FR 15422, Apr. 1, (a) The municipality of Beaumont, 1997] Tex., itself; (b) All points within a line drawn 8 § 372.207 Charleston, WV. miles beyond the municipal limits of The zone adjacent to, and commer- Beaumont; cially a part of Charleston, W. Va., (c) All points in Jefferson County and within which transportation by motor Orange County, Tex.; vehicle in interstate or foreign com- (d) All of any municipality any part merce, not under common control, of which is within the limits of the management, or arrangement for a combined areas defined in paragraphs continuous carriage or shipment to or (b) and (c) of this section, and from a point beyond such zone, is par- (e) All of any municipality wholly tially exempt from regulation under 49 surrounded, or so surrounded except for U.S.C. 13506(b)(1) includes and is com- a water boundary, by the municipality prised of all points as follows: of Beaumont or by any other munici- (a) The municipality of Charleston, pality included under the terms of W. Va., itself; paragraph (d) of this section. (b) All points within a line drawn 6 miles beyond the municipal limits of [41 FR 56653, Dec. 29, 1976, as amended at 62 FR 15422, Apr. 1, 1997] Charleston; (c) Those points in Kanawha County, § 372.205 Charleston, S.C. W. Va., which are not within the area The zone adjacent to, and commer- described in paragraph (b) of this sec- cially a part of Charleston, S.C., within tion; and those points in Putnam Coun- which transportation by motor vehicle ty, W. Va., south of West Virginia in interstate or foreign commerce, not Highway 34; under common control, management, (d) All of any municipality any part or arrangement for a continuous car- of which is within the limits of the riage or shipment to or from a point combined areas defined in paragraphs beyond such zone, is partially exempt (b) and (c) of this section, and from regulation under 49 U.S.C. (e) All of any municipality wholly 13506(b)(1) includes and is comprised of surrounded, or so surrounded except for all points as follows: a water boundary, by the municipality (a) The municipality of Charleston, of Charleston or by any other munici- S.C., itself; pality included under the terms of (b) All points within a line drawn 6 paragraph (d) of this section. miles beyond the municipal limits of [41 FR 56653, Dec. 29, 1976, as amended at 62 Charleston; FR 15422, Apr. 1, 1997]

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§ 372.209 Lake Charles, LA. combined areas defined in paragraphs (b) and (c) of this section, and The zone adjacent to, and commercially a part of Lake Charles, La., (e) All of any municipality wholly within which transportation by motor surrounded, or so surrounded except for vehicle in interstate or foreign com- a water boundary, by the municipality merce, not under common control, of Pittsburgh by any other munici- management, or arrangement for a pality included under the terms of continuous carriage or shipment to or paragraph (d) of this section. from a point beyond such zone, is par- [41 FR 56654, Dec. 29, 1976, as amended at 62 tially exempt from regulation under 49 FR 15422, Apr. 1, 1997] U.S.C. 13506(b)(1) includes and is comprised of all points as follows: § 372.213 Pueblo, CO. (a) The municipality of Lake Charles, The zone adjacent to, and commer- La., itself; cially a part of Pueblo, Colo., within (b) All points within a line drawn 6 which transportation by motor vehicle miles beyond the municipal limits of in interstate or foreign commerce, not Lake Charles; under common control, management, (c) Those points in Calcasieu Parish, or arrangement for a continuous car- La., which are not within the area de- riage or shipment to or from a point scribed in paragraph (b) of this section; beyond such zone, is partially exempt and which are east of Louisiana High- from regulations under 49 U.S.C. way 27 (western section); 13506(b)(1) includes and is comprised of (d) All of any municipality any part all points as follows: of which is within the limits of the (a) The municipality of Pueblo, Colo., combined areas defined in paragraphs itself; (b) and (c) of this section, and (b) All points within a line drawn 6 (e) All of any municipality wholly miles beyond the municipal limits of surrounded, or so surrounded except for Pueblo; a water boundary, by the municipality (c) Those points in Pueblo County, of Lake Charles or by any other mu- Colo., which are not within the area de- nicipality included under the terms of scribed in paragraph (b) of this section; paragraph (d) of this section. (d) All of any municipality any part [41 FR 56653, Dec. 29, 1976, as amended at 62 of which is within the limits of the FR 15422, Apr. 1, 1997] combined areas defined in paragraphs (b) and (c) of this section, and § 372.211 Pittsburgh, PA. (e) All of any municipality wholly The zone adjacent to, and commer- surrounded, or so surrounded except for cially a part of Pittsburgh within a water boundary, by the municipality which transportation by motor vehicle included under the terms of paragraph in interstate or foreign commerce, not (d) of this section. under common control, management, or arrangement for a continuous car- [41 FR 56654, Dec. 29, 1976, as amended at 62 riage or shipment to or from a point FR 15422, Apr. 1, 1997] beyond such zone, is partially exempt from regulation under 49 U.S.C. § 372.215 Ravenswood, WV. 13506(b)(1) includes and is comprised of The zone adjacent to, and commer- all points as follows: cially a part of Ravenswood, W. Va., (a) The municipality of Pittsburgh, within which transportation by motor Pa., itself; vehicle in interstate or foreign com- (b) All points within a line drawn 15 merce, not under common control, miles beyond the municipal limits of management, or arrangement for a Pittsburgh; continuous carriage or shipment to or (c) Those points in Allegheny Coun- from a point beyond such zone, is party, Pa., which are not within the area tially exempt from regulation under 49 described in paragraph (b) of this sec- U.S.C. 13506(b)(1) includes and is com- tion; prised of all points as follows: (d) All of any municipality any part (a) The municipality of Ravenswood, of which is within the limits of the W. Va., itself;

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(b) All points within a line drawn 4 within the area bounded by a line be- miles beyond the municipal limits of ginning at the intersection of the line Ravenswood; described in paragraph (b) of this sec- (c) Those points in Jackson County, tion and Washington Highway 3 to the W. Va., which are not within the area boundary of Olympic View Industrial described in paragraph (b) of this sec- Park/Bremerton-Kitsap County Air- tion, and which are north of U.S. High- port, thence westerly, southerly, eas- way 33; terly, and northerly along the bound- (d) All of any municipality any part ary of Olympic View Industrial Park/ of which is within the limits of the Bremerton-Kitsap County Airport to combined areas defined in paragraphs its juncture with Washington Highway (b) and (c) of this section, and 3 to its intersection with the line de- (e) All of any municipality wholly scribed in paragraph (b) of this section. surrounded, or so surrounded except for (d) All of any municipality any part a water boundary, by the municipality of Ravenswood or by any other munici- of which is within the limits of the pality included under the terms of combined areas defined in paragraphs paragraph (d) of this section. (b) and (c) of this section, and (e) All of any municipality wholly [41 FR 56654, Dec. 29, 1976, as amended at 62 surrounded, or so surrounded except for FR 15422, Apr. 1, 1997] a water boundary, by the municipality § 372.217 Seattle, WA. of Seattle or by any other municipality included under the terms of paragraph The zone adjacent to, and commer- (d) of this section. cially a part of Seattle, Wash., within which transportation by motor vehicle [41 FR 56654, Dec. 29, 1976, as amended at 46 in interstate or foreign commerce, not FR 25314, May 6, 1981; 62 FR 15422, Apr. 1, under common control, management, 1997] or arrangement for a continuous carriage or shipment to or from a point § 372.219 Washington, DC beyond such zone, is partially exempt The zone adjacent to, and commer- from regulation under 49 U.S.C. cially a part of Washington, D.C., with- 13506(b)(1) includes and is comprised of in which transportation by motor vehi- all points as follows: cle in interstate or foreign commerce, (a) The municipality of Seattle, not under common control, manage- Wash., itself; ment, or arrangement for a continuous (b) All points within a line drawn 15 carriage or shipment to or from a point miles beyond the municipal limits of beyond such zone, is partially exempt Seattle; from regulation under 49 U.S.C. (c) Those points in King County, 13506(b)(1) includes and is comprised of Wash., which are not within the area all points as follows: described in paragraph (b) of this sec- (a) The municipality of Washington, tion, and which are west of a line be- D.C., itself; ginning at the intersection of the line described in paragraph (b) of this sec- (b) All points within a line drawn 15 tion and Washington Highway 18, miles beyond the municipal limits of thence northerly along Washington Washington, DC Highway 18 to junction of Interstate (c) All points in Fairfax and Loudoun Highway 90, thence westerly along Counties, VA, and all points in Prince Interstate Highway 90 to junction William County, VA, including the Washington Highway 203, thence north- City of Manassas, VA, and the City of erly along Washington Highway 203 to Manassas Park, VA. the King County line; and those points (d) All of any municipality any part in Snohomish County, Wash., which of which is within the limits of the are not within the area described in combined areas defined in paragraphs paragraph (b) of this section and which (b) and (c) of this section, and are west of Washington Highway 9; and (e) All of any municipality wholly those points in Kitsap County, Wash., surrounded, or so surrounded except for which are not within the area described a water boundary, by the municipality in paragraph (b) of this section lying of Washington, D.C., or by any other

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municipality included under the terms the boundaries of the consolidated gov- of paragraph (d) of this section. ernment which are within the territory [41 FR 56654, Dec. 29, 1976, as amended at 46 determined by the most recent popu- FR 56424, Nov. 17, 1981; 62 FR 15422, Apr. 1, lation-mileage formula measured from 1997] the limits of the formerly independent core municipality. § 372.221 Twin Cities. (d) All of any municipality wholly For the purpose of determining com- surrounded, or so surrounded except for mercial zones, utilizing the general a water boundary, by the consolidated population-mileage formula as set government or by any other munici- forth in § 372.241, each of the following pality included under the terms of combinations of cities shall be consid- paragraphs (a), (b), or (c) of this sec- ered as a single municipality: tion. (a) Having a population equal to the sum of their combined populations, and [41 FR 56654, Dec. 29, 1976, as amended at 62 (b) Having boundaries comprised of FR 15422, Apr. 1, 1997] their combined corporate limits, with § 372.225 Lexington-Fayette Urban the common portion thereof dis- County, KY. regarded: (1) Bluefield, Va.-W. Va. The zone adjacent to and commer- (2) Bristol, Va.-Tenn. cially a part of Lexington-Fayette (3) Davenport, Iowa, and Rock Island Urban County, Ky., within which trans- and Moline, Ill. portation by motor vehicle, in inter- (4) Delmar, Del-Md. state or foreign commerce, not under a (5) Harrison, Ohio-West Harrison, common control, management, or ar- Ind. rangement for a continuous carriage or (6) Junction City, Ark.-La. shipment to or from a point beyond the (7) Kansas City, Mo.-Kansas City, zone, is partially exempt from regula- Kans. tion under 49 U.S.C. 13506(b)(1) includes (8) Minneapolis-St. Paul, Minn. and is comprised of all points as fol- (9) St. Louis, Mo.-East St. Louis, Ill. lows: (10) Texarkana, Ark.-Tex. (a) Lexington-Fayette Urban County, (11) Texhoma, Tex.-Okla. Ky., itself. (12) Union City, Ind.-Ohio. (b) All other municipalities and unin- [41 FR 56654, Dec. 29, 1976, as amended at 62 corporated areas within 5 miles of the FR 15422, Apr. 1, 1997] intersection of U.S. Highway 27 (Nicholasville Road) with the corporate § 372.223 Consolidated governments. boundary line between Jessamine The zone adjacent to, and commer- County, Ky., and Lexington-Fayette cially a part of a consolidated govern- Urban County, Ky. ment within which transportation by motor vehicle, in interstate or foreign [39 FR 18769, May 30, 1974. Redesignated at 41 commerce, not under common control, FR 56655, Dec. 29, 1976. Further redesignated at 55 FR 42198, Oct. 18, 1990, as amended at 62 management, or arrangement for a FR 15422, Apr. 1, 1997] continuous carriage or shipment to or from a point beyond the zone, is par- § 372.227 Syracuse, NY. tially exempt from regulation under 49 U.S.C. 13506(b)(1) includes and is com- The zone adjacent to, and commer- prised of all points as follows: cially a part of Syracuse, N.Y., within (a) All points within the boundaries which transportation by motor vehicle, of the consolidated government. in interstate or foreign commerce, not (b) All points beyond the boundaries under common control, management, of the consolidated government which or arrangement for shipment to or were at any time within the commer- from points beyond such zone, is par- cial zone of the formerly independent tially exempt from regulation under 49 core municipality. U.S.C. 13506(b)(1) includes and is com- (c) When the present population of prised of all points as follows: the formerly independent core munici- (a) The municipality of Syracuse, pality is identifiable, all points beyond N.Y., itself;

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(b) All points within a line drawn 10 (b) All points within a line drawn 8 miles beyond the municipal limits of miles beyond the municipal limits of Syracuse; Spokane; (c) Those points in the towns of Van (c) All points within that area more Buren and Lysander, Onondaga County, than 8 miles beyond the municipal lim- N.Y., which are not within the area de- its of Spokane bounded by a line as fol- scribed in paragraph (b) of this section, lows: From the intersection of the line but which are within an area bounded described in (b) of this section and U.S. by a line beginning at the intersection Highway 2, thence westerly along U.S. of new New York Highway 48 with the Highway 2 to junction Brooks Road, line described in (b) of this sectio, thence southerly along Brooks Road to thence northwesterly along new New junction Hallett Road, thence easterly York Highway 48 to junction New York along Hallett Road to its intersection Highway 370, thence westerly along with the line described in (b) of this New York Highway 370 to junction section; Emerick Road, thence northerly along (d) All of any municipality any part Emerick Road to junction Dunham of which is within the limits of the Road, thence northerly along Dunham combined areas in (b) and (c) of this road to junction New York Highway section; and 192, thence easterly along New York (e) All of any municipality wholly Highway 192 to junction new New York surrounded, or so surrounded except for Highway 48, thence northerly along a water boundary, by the municipality new New York Highway 48 to junction of Spokane or any other municipality New York Highway 213, thence easterly included under the terms of (d) of this along New York Highway 213 to junc- section. tion New York Highway 213A, thence easterly along New York Highway 213A [45 FR 62085, Sept. 18, 1980. Redesignated and amended at 55 FR 42198, Oct. 18, 1990; 62 FR to junction New York Highway 37, 15422, Apr. 1, 1997] thence southerly along New York High- way 37 to its intersection with the line § 372.231 Tacoma, WA. in (b) above; The zone adjacent to, and commer- (d) All of any municipality any part cially a part of Tacoma, WA, within of which is within the limits of the which transportation by motor vehicle, combined area defined in (b) and (c) of in interstate or foreign commerce, not this section, and under common control, management, (e) All of any municipality wholly or arrangement for shipment to or surrounded, or so surrounded except for from points beyond such zone, is par- a water boundary, by the municipality tially exempt from regulation under 49 of Syracuse or any other municipality U.S.C. 13506(b)(1), includes and is com- included under the terms of (d) of this prised of all points as follows: section. (a) The municipality of Tacoma, WA, [42 FR 44816, Sept. 7, 1977. Redesignated at 55 itself; FR 42198, Oct. 18, 1990, as amended at 62 FR (b) All points within a line drawn 8 15422, Apr. 1, 1997] miles beyond the municipal limits of Tacoma; § 372.229 Spokane, WA. (c) Those points in Pierce County, The zone adjacent to, and commer- WA, which are not within the area de- cially a part of Spokane, WA, within scribed in paragraph (b) of this section, which transportation by motor vehicle, but which are on Washington Highway in interstate or foreign commerce, not 162 beginning at its intersection with under control, management, or ar- the line described in paragraph (b) of rangement for shipment to or from this section, extending to and includ- points beyond such zone, is partially ing Orting, WA, and all points within exempt from regulation under 49 U.S.C. the Orting commercial zone. 13506(b)(1) includes and is comprised of (d) All of any municipality any part all points as follows: of which is within the limits of the (a) The municipality of Spokane, combined area defined in (b) and (c) of WA, itself, this section, and

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(e) All of any municipality wholly combined areas defined in paragraphs surrounded, or so surrounded except for (b) and (c); and a water boundary, by the municipality (e) All of any municipality wholly of Tacoma or any other municipality surrounded, or so surrounded except by included under the terms of (d) of this a water boundary, by the municipality section. of New York or by any other munici- [45 FR 66460, Oct. 7, 1980. Redesignated at 55 pality included under the terms of FR 42198, Oct. 18, 1990, as amended at 62 FR paragraph (d) of this section. 15422, Apr. 1, 1997] [50 FR 34478, Aug. 26, 1985. Redesignated at 55 FR 42198, Oct. 18, 1990, as amended at 62 FR § 372.233 Chicago, IL. 15422, Apr. 1, 1997] The zone adjacent to, and commercially a part of Chicago, IL, within § 372.237 Cameron, Hidalgo, Starr, and which transportation by motor vehicle, Willacy Counties, TX. in interstate or foreign commerce, not (a) Transportation within a zone under common control, management, comprised of Cameron, Hidalgo, Starr, or arrangement for a shipment to or and Willacy Counties, TX, by motor from such zone, is partially exempt carriers of property, in interstate or from regulation under 49 U.S.C. foreign commerce, not under common 13506(b)(1), includes and is comprised of control, management, or arrangement all points as follows: for shipment to or from points beyond (a) The municipality of Chicago, IL, such zone, is partially exempt from itself; regulation under 49 U.S.C. 13506(b)(1). (b) All points within a line drawn 20 (b) To the extent that commercial miles beyond the municipal limits of zones of municipalities within the four Chicago; counties (as determined under § 372.241) (c) All points in Lake County, IL. extend beyond the boundaries of this (d) All of any municipality any part four-county zone, the areas of such of which is within the limits of the commercial zones shall be considered combined area defined in paragraphs to be part of the zone and partially ex- (b) and (c) of this section, and empt from regulation under 49 U.S.C. (e) All of any municipality wholly 13506(b)(1). surrounded, or so surrounded except for a water boundary, by the municipality [51 FR 1815, Jan. 15, 1986. Redesignated at 55 included under the terms of paragraph FR 42198, Oct. 18, 1990, as amended at 62 FR (d) of this section. 15422, Apr. 1, 1997] [46 FR 11286, Feb. 6, 1981. Redesignated at 55 § 372.239 Definitions. FR 42198, Oct. 18, 1990, as amended at 62 FR 15422, Apr. 1, 1997] For the purposes of this part, the following terms are defined: § 372.235 New York, NY. (a) Municipality means any city, The zone adjacent to, and commer- town, village, or borough which has cially a part of, New York, NY, within been created by special legislative act which transportation by motor vehicle, or which has been, otherwise, individ- in interstate or foreign commerce, not ually incorporated or chartered pursu- under common control, management, ant to general State laws, or which is or arrangement for shipment to or recognized as such, under the Constitu- from points beyond such zone is par- tion or by the laws of the State in tially exempt from regulation under 49 which located, and which has a local U.S.C. 13506(b)(1), includes and is com- government. It does not include a town prised of all points as follows: of the township or New England type. (a) The municipality of New York, (b) Contiguous municipalities means NY, itself; municipalities, as defined in paragraph (b) All points within a line drawn 20 (a) of this section, which have at some miles beyond the municipal limits of point a common municipal or cor- New York, NY; porate boundary. (c) All points in Morris County, NJ; (c) Unincorporated area means any (d) All of any municipality any part area not within the corporate or mu- of which is within the limits of the nicipal boundaries of any municipality

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as defined in paragraph (a) of this sec- of any other municipality any part of tion. which is within 10 miles of the corporate limits of the base municipality. [32 FR 20048, Dec. 20, 1967] (6) When the base municipality has a § 372.241 Commercial zones deter- population of 500,000 but less than 1 mined generally, with exceptions. million, all unincorporated areas with- The commercial zone of each munici- in 15 miles of its corporate limits and pality in the United States, with the all of any other municipality any part exceptions indicated in the note at the of which is within 15 miles of the cor- end of this section, within which the porate limits of the base municipality. transportation of passengers or prop- (7) When the base municipality has a erty, in interstate or foreign com- population of 1 million or more, all un- merce, when not under a common con- incorporated areas within 20 miles of trol, management, or arrangement for its corporate limits and all of any a continuous carriage or shipment to other municipality any part of which is or from a point without such zone, is within 20 miles of the corporate limits exempt from all provisions of 49 U.S.C. of the base municipality, and subtitle IV, part B shall be deemed to (d) All municipalities wholly sur- consist of: rounded, or so surrounded except for a (a) The municipality itself, herein- water boundary, by the base munici- after called the base municipality; pality, by any municipality contiguous (b) All municipalities which are con- thereto, or by any municipality adja- tiguous to the base municipality; cent thereto which is included in the (c) All other municipalities and all commercial zone of such base munici- unincorporated areas within the United pality under the provisions of para- States which are adjacent to the base graph (c) of this section. municipality as follows: (1) When the base municipality has a NOTE: Except: Municipalities the commer- population less than 2,500 all unincor- cial zones of which have been or are here- after individually or specially determined. porated areas within 3 miles of its corporate limits and all of any other mu- [32 FR 20048, Dec. 20, 1967, as amended at 34 nicipality any part of which is within 3 FR 9870, June 26, 1969; 34 FR 15482, Oct. 4, miles of the corporate limits of the 1969; 41 FR 56655, Dec. 29, 1976; 62 FR 15422, base municipality, Apr. 1, 1997] (2) When the base municipality has a population of 2,500 but less than 25,000 § 372.243 Controlling distances and all unincorporated areas within 4 miles population data. of its corporate limits and all of any In the application of § 372.241: other municipality any part of which is (a) Air-line distances or mileages within 4 miles of the corporate limits about corporate limits of municipali- of the base municipality. ties shall be used. (3) When the base municipality has a (b) The population of any munici- population of 25,000 but less than pality shall be deemed to be the high- 100,000 all unincorporated areas within est figure shown for that municipality 6 miles of its corporate limits and all of in any decennial census since (and in- any other municipality any part of cluding) the 1940 decennial census. which is within 6 miles of the corporate (c) Contraction of municipal bound- limits of the base municipality, and aries will not alter the size of commer- (4) When the base municipality has a cial zones. population of 100,000 but less than 200,000 all unincorporated areas within [32 FR 20040, Dec. 20, 1967, as amended at 37 8 miles of its corporate limits and all FR 15701, Aug. 4, 1972; 50 FR 10233, Mar. 14, of any other municipality any part of 1985; 62 FR 15422, Apr. 1, 1997] which is within 8 miles of the corporate limits of the base municipality. Subpart C—Terminal Areas (5) When the base municipality has a population of 200,000 but less than SOURCE: 32 FR 20049, Dec. 20, 1967, unless 500,000 all unincorporated areas within otherwise noted. Redesignated at 61 FR 54708, 10 miles of its corporate limits and all Oct. 21, 1996.

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§ 372.300 Distances and population provisions of 49 U.S.C. subtitle IV, part data. B, consists of: In the application of this subpart, (a) All points in the United States distances and population data shall be which are located within the limits of determined in the same manner as pro- the operating authority of the motor carrier of property or freight forwarder vided in 49 CFR 372.243. See also defini- involved, and within 3 miles of the post tions in 49 CFR 372.239. office at such authorized unincor- [62 FR 15422, Apr. 1, 1997] porated point if it has a population less than 2,500, within 4 miles if it has a § 372.301 Terminal areas of motor car- population of 2,500 but less than 25,000, riers and freight forwarders at mu- or within 6 miles if it has a population nicipalities served. of 25,000 or more; The terminal area within the mean- (b) All of any municipality any part ing of 49 U.S.C. 13503 of any motor car- of which is included under paragraph rier of property or freight forwarder (a) of this section; and subject to 49 U.S.C. subtitle IV, part B (c) Any municipality wholly sur- at any municipality authorized to be rounded by any municipality included served by such motor carrier of prop- under paragaph (b) of this section, or erty or motor carrier of passengers in so wholly surrounded except for a the transportation of express or freight water boundary. forwarder, within which transportation [32 FR 20049, Dec. 20, 1967, as amended at 41 by motor carrier in the performance of FR 56655, Dec. 29, 1976; 51 FR 44297, Dec. 9, transfer, collection, or delivery serv- 1986; 62 FR 15423, Apr. 1, 1997] ices may be performed by, or for, such motor carrier of property or freight PART 373—RECEIPTS AND BILLS forwarder without compliance with the provisions of 49 U.S.C. subtitle IV, part Subpart A—Motor Carrier Receipts and Bills B consists of and includes all points or places which are: Sec. (a) Within the commercial zone, as 373.101 Motor Carrier bills of lading. defined by the Secretary, of that mu- 373.103 Expense bills. 373.105 Low value packages. nicipality, and (b) Not beyond the limits of the oper- Subpart B—Freight Forwarders; Bills of ating authority of such motor carrier Lading of property or freight forwarder. 373.201 Bills of lading for freight forwarders. [62 FR 15422, Apr. 1, 1997] AUTHORITY: 49 U.S.C. 13301 and 14706; and 49 § 372.303 Terminal areas of motor car- CFR 1.73. riers and household goods freight forwarders at unincorporated com- Subpart A—Motor Carrier Receipts munities served. and Bills The terminal areas within the meaning of 49 U.S.C. 13503 of any motor car- SOURCE: 55 FR 11198, Mar. 27, 1990, unless rier of property or freight forwarder otherwise noted. Redesignated at 61 FR 54708, subject to 49 U.S.C. subtitle IV, part B, Oct. 21, 1996. at any unincorporated community having a post office of the same name § 373.101 Motor Carrier bills of lading. which is authorized to be served by Every motor common carrier shall such motor carrier of property or issue a receipt or bill of lading for motor carrier of passengers in the property tendered for transportation in transportation of express or freight for- interstate or foreign commerce con- warder, within which transportation by taining the following information: motor vehicle in the performance of (a) Names of consignor and con- transfer, collection, or delivery serv- signee. ices may be performed by, or for, such (b) Origin and destination points. motor carrier of property or freight (c) Number of packages. forwarder without compliance with the (d) Description of freight.

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(e) Weight, volume, or measurement (1) Serial number, consisting of one of freight (if applicable to the rating of of a series of consecutive numbers as- the freight). signed in advance and imprinted on the The carrier shall keep a record of this bill. information as prescribed in 49 CFR (2) Name of carrier. part 379. (3) Names of payor and organization, [55 FR 11198, Mar. 27, 1990, as amended at 56 if any, for which transportation is per- FR 30874, July 8, 1991; 62 FR 15423, Apr. 1, formed. 1997] (4) Date(s) transportation was performed. § 373.103 Expense bills. (5) Origin, destination, and general (a) Property. Every motor common routing of trip. carrier shall issue a freight or expense (6) Identification and seating capac- bill for each shipment transported con- ity of each vehicle used. taining the following information: (7) Number of persons transported. (1) Names of consignor and consignee (8) Mileage upon which charges are (except on a reconsigned shipment, not based, including any deadhead mileage, the name of the original consignor). separately noted. (2) Date of shipment. (9) Applicable rates per mile, hour, (3) Origin and destination points day, or other unit. (except on a reconsigned shipment, not (10) Itemized charges for transpor- the original shipping point unless the tation, including special services and final consignee pays the charges from fees. that point). (11) Total charges assessed and col- (4) Number of packages. lected. (5) Description of freight. (6) Weight, volume, or measurement The carrier shall keep a copy of all ex- of freight (if applicable to the rating of pense bills issued for the period pre- the freight). scribed at 49 CFR part 379. If any ex- (7) Exact rate(s) assessed. pense bill is spoiled, voided, or unused (8) Total charges due, including the for any reason, a copy or written nature and amount of any charges for record of its disposition shall be re- special service and the points at which tained for a like period. such service was rendered. [55 FR 11198, Mar. 27, 1990, as amended at 59 (9) Route of movement and name of FR 2303, Jan. 14, 1994; 61 FR 19860, May 3, each carrier participating in the trans- 1996; 62 FR 15423, Apr. 1, 1997] portation. (10) Transfer point(s) through which § 373.105 Low value packages. shipment moved. The carrier and shipper may elect to (11) Address where remittance must waive the above provisions and use a be made or address of bill issuer’s prin- more streamlined recordkeeping or cipal place of business. documentation system for distribution The shipper or receiver owing the of ‘‘low value’’ packages. This includes charges shall be given the original the option of shipping such packages freight or expense bill and the carrier under the provisions of 49 U.S.C. shall keep a copy as prescribed at 49 14706(c). The shipper is responsible ulti- CFR part 379. If the bill is electroni- mately for determining which pack- cally transmitted (when agreed to by ages should be designated as low value. the carrier and payor), a receipted copy A useful guideline for this determina- shall be given to the payor upon pay- tion is an invoice value less than or ment. equal to the costs of preparing a loss or (b) Charter service. Every motor pas- damage claim. senger common carrier providing char- [55 FR 11198, Mar. 27, 1990. Redesignated at 61 ter service shall issue an expense bill FR 54708, Oct. 21, 1996, as amended at 62 FR containing the following information: 15423, Apr. 1, 1997]

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Subpart B—Freight Forwarders; 374.315 Transportation of passengers with disabilities. Bills of Lading 374.317 Identification—bus and driver. 374.319 Relief from provisions. § 373.201 Bills of lading for freight forwarders. Subpart D—Notice of and Procedures for Every household goods freight for- Baggage Excess Value Declaration warder (HHGFF) shall issue the shipper through bills of lading, covering trans- 374.401 Minimum permissible limitations portation from origin to ultimate des- for baggage liability. tination, on each shipment for which it 374.403 Notice of passenger’s ability to declare excess value on baggage. arranges transportation in interstate 374.405 Baggage excess value declaration commerce. Where a motor common procedures. carrier receives freight at the origin and issues a receipt therefor on its Subpart E—Incidental Charter Rights form with a notation showing the HHGFF’s name, the HHGFF, upon re- 374.501 Applicability. ceiving the shipment at the ‘‘on line’’ 374.503 Authority. or consolidating station, shall issue a 374.505 Exceptions. through bill of lading on its form as of AUTHORITY: 49 U.S.C. 13301 and 14101; and 49 the date the carrier receives the ship- CFR 1.73. ment. EDITORIAL NOTE: Nomenclature changes to [55 FR 11201, Mar. 27, 1990. Redesignated at 61 part 374 appear at 66 FR 49871, Oct. 1, 2001. FR 54708, Oct. 21, 1996.] Subpart A—Discrimination in Op- PART 374—PASSENGER CARRIER erations of Interstate Motor REGULATIONS Common Carriers of Pas- sengers Subpart A—Discrimination in Operations of Interstate Motor Common Carriers of SOURCE: 36 FR 1338, Jan. 28, 1971, unless Passengers otherwise noted. Redesignated at 61 FR 54709, Oct. 21, 1996. Sec. 374.101 Discrimination prohibited. § 374.101 Discrimination prohibited. 374.103 Notice to be printed on tickets. 374.105 Discrimination in terminal facili- No motor common carrier of pas- ties. sengers subject to 49 U.S.C. subtitle IV, 374.107 Notice to be posted at terminal fa- part B shall operate a motor vehicle in cilities. interstate or foreign commerce on 374.109 Carriers not relieved of existing obli- which the seating of passengers is gations. based upon race, color, creed, or na- 374.111 Reports of interference with regulations. tional origin. 374.113 Definitions. [36 FR 1338, Jan. 28, 1971. Redesignated at 61 FR 54709, Oct. 21, 1996, as amended at 62 FR Subpart B—Limitation of Smoking on 15423, Apr. 1, 1997] Interstate Passenger Carrier Vehicles § 374.103 Notice to be printed on tick- 374.201 Prohibition against smoking on ets. interstate passenger-carrying motor vehicles. Every motor common carrier of passengers subject to 49 U.S.C. subtitle IV, Subpart C—Adequacy of Intercity Motor part B shall cause to be printed on Common Carrier Passenger Service every ticket sold by it for transportation on any vehicle operated in inter- 374.301 Applicability. 374.303 Definitions. state or foreign commerce a plainly 374.305 Ticketing and information. legible notice as follows: ‘‘Seating 374.307 Baggage service. aboard vehicles operated in interstate 374.309 Terminal facilities. or foreign commerce is without regard 374.311 Service responsibility. to race, color, creed, or national ori- 374.313 Equipment. gin.’’

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NOTE: The following interpretation of the § 374.109 Carriers not relieved of exist- provisions of § 374.103 (formerly § 1055.2) ap- ing obligations. pears at 27 FR 230, Jan. 9, 1962: The words, ‘‘Seating aboard vehicles oper- Nothing in this regulation shall be ated in interstate or foreign commerce is construed to relieve any interstate without regard to race, color, creed, or na- motor common carrier of passengers tional origin’’, should appear on the face of subject to 49 U.S.C. subtitle IV, part B every ticket coming within the purview of of any of its obligations under 49 U.S.C. the section. If the ticket is in parts or con- subtitle IV, part B or its certificate(s) sists of additional elements, such as coupons, identification stubs, or checks, it shall be of public convenience and necessity. sufficient for the purposes of § 374.103 that [36 FR 1338, Jan. 28, 1971. Redesignated at 61 the notice appear only once on the ticket FR 54709, Oct. 21, 1996, as amended at 62 FR and be placed on the face of that portion of 15423, Apr. 1, 1997] the ticket which is held by the passenger. § 374.111 Reports of interference with [36 FR 1338, Jan. 28, 1971. Redesignated at 61 regulations. FR 54709, Oct. 21, 1996, as amended at 62 FR 15423, Apr. 1, 1997] Every motor common carrier of passengers subject to 49 U.S.C. subtitle IV, § 374.105 Discrimination in terminal part B operating vehicles in interstate facilities. or foreign commerce shall report to the No motor common carrier of pas- Secretary, within fifteen (15) days of sengers subject to 49 U.S.C. subtitle IV, its occurrence, any interference by any part B shall in the operation of vehi- person, municipality, county, parish, cles in interstate or foreign commerce State, or body politic with its observ- provide, maintain arrangements for, ance of the requirements of these regu- utilize, make available, adhere to any lations in this part. Such report shall understanding for the availability of, include a statement of the action that or follow any practice which includes such carrier may have taken to elimi- the availability of, any terminal facili- nate any such interference. ties which are so operated, arranged, or [36 FR 1338, Jan. 28, 1971. Redesignated at 61 maintained as to involve any separa- FR 54709, Oct. 21, 1996, as amended at 62 FR tion of any portion thereof, or in the 15423, Apr. 1, 1997] use thereof on the basis of race, color, creed, or national origin. § 374.113 Definitions. [36 FR 1338, Jan. 28, 1971. Redesignated at 61 For the purpose of these regulations FR 54709, Oct. 21, 1996, as amended at 62 FR the following terms and phrases are de- 15423, Apr. 1, 1997] fined: (a) Terminal facilities. As used in these § 374.107 Notice to be posted at ter- regulations the term ‘‘terminal facili- minal facilities. ties’’ means all facilities, including No motor common carrier of pas- waiting room, rest room, eating, drink- sengers subject to 49 U.S.C. subtitle IV, ing, and ticket sales facilities which a part B shall in the operation of vehi- motor common carrier makes available cles in interstate or foreign commerce to passengers of a motor vehicle oper- utilize any terminal facility in which ated in interstate or foreign commerce there is not conspicuously displayed as a regular part of their transpor- and maintained so as to be readily visi- tation. ble to the public a plainly legible sign (b) Separation. As used in § 374.105, the or placard containing the full text of term ‘‘separation’’ includes, among these regulations. Such sign or placard other things, the display of any sign in- shall be captioned: ‘‘Public Notice: dicating that any portion of the ter- Regulations Applicable to Vehicles and minal facilities are separated, allo- Terminal Facilities of Interstate Motor cated, restricted, provided, available, Common Carriers of Passengers, by used, or otherwise distinguished on the order of the Secretary, U.S. Depart- basis of race, color, creed, or national ment of Transportation.’’ origin. [36 FR 1338, Jan. 28, 1971. Redesignated at 61 [36 FR 1338, Jan. 28, 1971. Redesignated at 61 FR 54709, Oct. 21, 1996, as amended at 62 FR FR 54709, Oct. 21, 1996, as amended at 62 FR 15423, Apr. 1, 1997] 15423, Apr. 1, 1997]

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Subpart B—Limitation of Smoking capacity, used in a carrier’s authorized on Interstate Passenger Car- operations. rier Vehicles (c) Facility means any structure provided by or for a carrier at or near § 374.201 Prohibition against smoking which buses pick up or discharge pas- on interstate passenger-carrying sengers. motor vehicles. (d) Terminal means a facility operated (a) All motor common carriers of pas- or used by a carrier chiefly to furnish sengers subject to 49 U.S.C. subtitle IV, passengers transportation services and part B, shall prohibit smoking accommodations. (including the carrying of lit cigars, (e) Station means a facility, other cigarettes, and pipes) on vehicles trans- than a terminal, operated by or for a porting passengers in scheduled or spe- carrier to accommodate passengers. cial service in interstate commerce. (f) Service means passenger transpor- (b) Each carrier shall take such ac- tation by bus between authorized tion as is necessary to ensure that points or over authorized routes. smoking by passengers, drivers, and (g) Commuter service, means passenger other employees is not permitted in transportation wholly between points violation of this section. This shall in- not more than 100 airline miles apart clude making appropriate announce- and not involving through-bus, con- ments to passengers, the posting of the necting, or interline services to or from international no-smoking symbol, and points beyond 100 airline miles. The the posting of signs in all vehicles usual characteristics of commuter transporting passengers in letters in service include reduced fare, multiple- sharp color contrast to the back- ride, and commutation tickets, and ground, and of such size, shape, and peak morning and evening operations. color as to be readily legible. Such (h) Baggage means property a pas- signs and symbols shall be kept and senger takes with him for his personal maintained in such a manner as to re- use or convenience. main legible and shall indicate that (i) Restroom means a room in a bus or smoking is prohibited by Federal regu- terminal equipped with a toilet, wash- lation. bowl, soap or a reasonable alternative, (c) The provisions of paragraph (a) of mirror, wastebasket, and toilet paper. this section shall not apply to charter operations as defined in § 374.503 of this § 374.305 Ticketing and information. part. (a) Information service. (1) During [56 FR 1745, Jan. 17, 1991. Redesignated at 61 business hours at each terminal or sta- FR 54709, Oct. 21, 1996, as amended at 62 FR tion, information shall be provided as 15423, Apr. 1, 1997] to schedules, tickets, fares, baggage, and other carrier services. Subpart C—Adequacy of Intercity (2) Carrier agents and personnel who Motor Common Carrier Pas- sell or offer to sell tickets, or who pro- senger Service vide information concerning tickets and carrier services, shall be com- SOURCE: 55 FR 11199, Mar. 27, 1990, unless petent and adequately informed. otherwise noted. Redesignated at 61 FR 54709, (b) Telephone information service. Oct. 21, 1996. Every facility where tickets are sold shall provide telephonic information to § 374.301 Applicability. the traveling public, including current These rules govern only motor pas- bus schedules and fare information, senger common carriers conducting when open for ticket sales. regular-route operations. (c) Schedules. Printed, regular-route schedules shall be provided to the trav- § 374.303 Definitions. eling public at all facilities where tick- (a) Carrier means a motor passenger ets for such services are sold. Each common carriers. schedule shall show the points along (b) Bus means a passenger-carrying the carrier’s route(s) where facilities vehicle, regardless of design or seating are located or where the bus trips

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originate or terminate, and each sched- where baggage is accepted for check- ule shall indicate the arrival or depar- ing. ture time for each such point. (2) Carriers may refuse to accept as (d) Ticket refunds. Each carrier shall checked baggage and, if unknowingly refund unused tickets upon request, accepted, may disclaim liability for consistent with its governing tariff, at loss or damage to the following arti- each place where tickets are sold, with- cles: in 30 days after the request. (i) Articles whose transportation as (e) Announcements. No scheduled bus checked baggage is prohibited by law (except in commuter service) shall de- or regulation; part from a terminal or station until a (ii) Fragile or perishable articles, ar- public announcement of the departure ticles whose dimensions exceed the size and boarding point has been given. The limitations in the carrier’s tariff, re- announcement shall be given at least 5 ceptacles with articles attached or pro- minutes before the initial departure truding, guns, and materials that have and before departures from points a disagreeable odor; where the bus is scheduled to stop for (iii) Money; and more than 5 minutes. (iv) Those other articles that the Secretary exempts upon petition by § 374.307 Baggage service. the carrier. (a) Checking procedures. (1) Carriers (3) Carriers need not offer excess shall issue receipts, which may be in value coverage on articles of extraor- the form of preprinted tickets, for all dinary value (including, but not lim- checked services baggage. ited to, negotiable instruments, papers, (2)(i) If baggage checking service is manuscripts, irreplaceable publica- not provided at the side of the bus, all tions, documents, jewelry, and watch- baggage checked at a baggage checking es). counter at least 30 minutes but not (d) Express shipments. Passengers and more than 1 hour before departure their baggage always take precedence shall be transported on the same sched- over express shipments. ule as the ticketed passenger. (e) Baggage at destination. All checked (ii) If baggage checking service is baggage shall be made available to the provided at the side of the bus, pas- passenger within a reasonable time, sengers checking baggage at the bag- not to exceed 30 minutes, after arrival gage checking counter less than 30 at the passenger’s destination. If not, minutes before the scheduled departure the carrier shall deliver the baggage to shall be notified that their baggage the passenger’s local address at the may not travel on the same schedule. carrier’s expense. Such baggage must then be placed on (f) Lost or delayed baggage. (1) the next available bus to its destina- Checked baggage that cannot be lo- tion. All baggage checked at the side of cated within 1 hour after the arrival of the bus during boarding, or at alter- the bus upon which it was supposed to native locations provided for such pur- be transported shall be designated as pose, shall be transported on the same lost. The carrier shall notify the pas- schedule as the ticketed passenger. senger at that time and furnish him (b) Baggage security. All checked bag- with an appropriate tracing form. gage shall be placed in a secure or at- (2) Every carrier shall make avail- tended area prohibited to the public. able at each ticket window and bag- Baggage being readied for loading shall gage counter a single form suitable not be left unattended. both for tracing and for filing claims (c) Baggage liability. (1) No carrier for lost or misplaced baggage. The may totally exempt its liability for ar- form shall be prepared in duplicate and ticles offered as checked baggage, un- signed by the passenger and carrier less those articles have been exempted representative. The carrier or its agent by the Secretary. (Other liability is shall receive the signed original, with subject to subpart D of this part). A no- any necessary documentation and addi- tice listing exempted articles shall be tional information, and the claim prominently posted at every location check, for which a receipt shall be

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given. The passenger shall retain the reasonable time before it becomes ef- duplicate copy. fective and shall contain the carrier’s (3) The carrier shall make immediate name, a description of the proposed and diligent efforts to recover lost bag- schedule change, the effective date gage. thereof, the reasons for the change, the (4) A passenger may fill out a tracing availability of alternate service, and form for lost unchecked baggage. The the name and address of the carrier carrier shall forward recovered un- representative passengers may contact. checked baggage to the terminal or (c) Trip interruptions. A carrier shall station nearest the address shown on mitigate, to the extent possible, any the tracing form and shall notify the passenger inconvenience it causes by passenger that the baggage will be held disrupting travel plans. on a will-call basis. (d) Seating and reservations. A carrier (g) Settlement of claims. Notwith- shall provide sufficient buses to meet standing 49 CFR 370.9, if lost checked passengers’ normal travel demands, in- baggage cannot be located within 15 cluding ordinary weekend and usual days, the carrier shall immediately seasonal or holiday demand. Pas- process the matter as a claim. The date sengers (except commuters) shall be on which the carrier or its agent re- guaranteed, to the extent possible, pas- ceived the tracing form shall be consid- sage and seating. ered the first day of a 60-day period in (e) Inspection of rest stops. Each car- which a claim must be resolved by a rier shall inspect periodically all rest firm offer of settlement or by a written stops it uses to ensure that they are explanation of denial of the claim. clean. [55 FR 11199, Mar. 27, 1990. Redesignated at 61 [55 FR 11199, Mar. 27, 1990. Redesignated at 61 FR 54709, Oct. 21, 1996, as amended at 62 FR FR 54709, Oct. 21, 1996, as amended at 62 FR 15423, Apr. 1, 1997] 15423, Apr. 1, 1997]

§ 374.309 Terminal facilities. § 374.313 Equipment. (a) Passenger security. All terminals (a) Temperature control. A carrier and stations must provide adequate se- shall maintain a reasonable tempera- curity for passengers and their attend- ture on each bus (except in commuter ants and be regularly patrolled. service). (b) Outside facilities. At terminals and (b) Restrooms. Each bus (except in stations that are closed when buses are commuter service) seating more than scheduled to arrive or depart, there 14 passengers (not including the driver) shall be available, to the extent pos- shall have a clean, regularly main- sible, a public telephone, outside light- tained restroom, free of offensive odor. ing, posted schedule information, over- A bus may be operated without a rest- head shelter, information on local ac- room if it makes reasonable rest stops. commodations, and telephone numbers (c) Bus servicing. Each bus shall be for local taxi service and police. kept clean, with all required items in (c) Maintenance. Terminals shall be clean. good working order.

§ 374.311 Service responsibility. § 374.315 Transportation of passengers with disabilities. (a) Schedules. Carriers shall establish Service provided by a carrier to pas- schedules that can be reasonably met, sengers with disabilities is governed by including connections at junction the provisions of 42 U.S.C. 12101 et seq., points, to serve adequately all author- and regulations promulgated there- ized points. under by the Secretary of Transpor- (b) Continuity of service. No carrier tation (49 CFR parts 27, 37, and 38) and shall change an existing regular-route the Attorney General (28 CFR part 36), schedule without first filing a written incorporating the guidelines estab- notice with the FMCSA’s Division Of- lished by the Architectural and Trans- fice(s). The carrier shall display con- portation Barriers Compliance Board spicuously a copy of such notice in (36 CFR part 1191). each facility and on each bus affected. Such notice shall be displayed for a [57 FR 35764, Aug. 11, 1992]

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§ 374.317 Identification—bus and driv- clare a value in excess of the limited er. amount, and allow the passenger to re- Each bus and driver providing service cover the increased amount (but not shall be identified in a manner visible higher than the actual value) in event to passengers. The driver may be iden- of loss or damage. The carriers may tified by name or company number. publish a maximum value for which they will be liable, but that maximum § 374.319 Relief from provisions. value may not be less than $1,000. Ap- (a) Petitions. Where compliance with propriate identification must be at- any rule would impose an undue burden tached securely by the passenger to on a carrier, it may petition the Fed- each item of baggage checked, indi- eral Motor Carrier Safety Administra- cating in a clear and legible manner tion either to treat it as though it were the name and address to which the bag- conducting a commuter service or to gage should be forwarded if lost and waive the rule. The request for relief subsequently recovered. Identification must be justified by appropriate tags shall be made immediately avail- verified statements. able by the carriers to passengers upon (b) Notice to the public. The carrier request. shall display conspicuously, for at least (3) Carriers need not offer excess 30 days, in each facility and on each value coverage on articles listed in bus affected, a notice of the filing of § 374.307(c)(3). any petition. The notice shall contain (49 U.S.C. 10321, 5 U.S.C. 553) the carrier’s name and address, a concise description of and reasons for the [46 FR 22899, Apr. 22, 1981, as amended at 47 relief sought, and a statement that any FR 21840, May 20, 1982; 62 FR 15423, Apr. 1, interested person may file written 1997] comments with the Federal Motor Car- § 374.403 Notice of passenger’s ability rier Safety Administration (with one to declare excess value on baggage. copy mailed to the carrier) on or before a specific date that is at least 30 days (a) All motor common carriers of pas- later than the date the notice is post- sengers and baggage subject to 49 ed. U.S.C. subtitle IV, part B, which provide in their tariffs for the declaration [55 FR 11199, Mar. 27, 1990. Redesignated at 61 of baggage in excess of a free baggage FR 54709, Oct. 21, 1996, as amended at 62 FR allowance limitation, shall provide 15423, Apr. 1, 1997] clear and adequate notice to the public of the opportunity to declare such ex- Subpart D—Notice of and Proce- cess value on baggage. dures for Baggage Excess (b) The notice referred to in para- Value Declaration graph (a) of this section shall be in large and clear print, and shall state as SOURCE: 40 FR 1249, Jan. 7, 1975, unless oth- follows: erwise noted. Redesignated at 61 FR 54709, Oct. 21, 1996. NOTICE—BAGGAGE LIABILITY This motor carrier is not liable for loss or § 374.401 Minimum permissible limita- damage to properly identified baggage in an tions for baggage liability. amount exceeding $ll. If a passenger de- (a) Motor common carriers of pas- sires additional coverage for the value of his sengers and baggage subject to 49 baggage he may, upon checking his baggage, U.S.C. 13501 may not publish tariff pro- declare that his baggage has a value in ex- visions limiting their liability for loss cess of the above limitation and pay a charge as follows: or damage to baggage checked by a passenger transported in regular route IDENTIFY YOUR BAGGAGE or special operations unless: (1) The amount for which liability is Under FMCSA regulations, all baggage must be properly identified. Luggage tags limited is $250 or greater per adult fare, should indicate clearly the name and address and to which lost baggage should be forwarded. (2) The provisions permit the pas- Free luggage tags are available at all ticket senger, for an additional charge, to de- windows and baggage counters.

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The statement of charges for excess SOURCE: 54 FR 46619, Nov. 6, 1989, unless value declaration shall be clear, and otherwise noted. Redesignated at 61 FR 54709, any other pertinent provisions may be Oct. 21, 1996. added at the bottom in clear and read- § 374.501 Applicability. able print. The regulations in this part apply to (c) The notice referred to in para- incidental charter rights authorized graphs (a) and (b) of this section shall under 49 U.S.C. 13506 [49 U.S.C. be (1) placed in a position near the 10932(c)]. These regulations do not ticket seller, sufficiently conspicuous apply to interpreting authority con- to apprise the public of its provisions, tained in a certificate to transport pas- (2) placed on a form to be attached to sengers in special and/or charter oper- each ticket issued (and the ticket sell- ations. er shall, where possible, provide oral notice to each ticket purchaser to read [54 FR 46619, Nov. 6, 1989. Redesignated at 61 FR 54709, Oct. 21, 1996, as amended at 62 FR the form attached to the ticket), (3) 15423, Apr. 1, 1997] placed in a position at or near any location where baggage may be checked, § 374.503 Authority. sufficiently conspicuous to apprise Motor carriers transporting pas- each passenger checking baggage of its sengers, in interstate or foreign com- provisions, and (4) placed in a position merce, over regular routes authorized at each boarding point or waiting area in a certificate issued as a result of an used by the carrier at facilities main- application filed before January 2, 1967, tained by the carrier or its agents, suf- may transport special or chartered par- ficiently conspicuous to apprise each ties, in interstate or foreign commerce, boarding passenger of the provisions of between any points and places in the the said notice. United States (including Alaska and Hawaii). The term ‘‘special or char- [40 FR 1249, Jan. 7, 1975, as amended at 62 FR 15423, Apr. 1, 1997] tered party’’ means a group of passengers who, with a common purpose § 374.405 Baggage excess value dec- and under a single contract, and at a laration procedures. fixed charge for the vehicle in accordance with the carrier’s tariff, have ac- All motor common carriers of pas- quired the exclusive use of a passenger- sengers and baggage subject to 49 carrying motor vehicle to travel to- U.S.C. subtitle IV, part B, which pro- gether as a group to a specified des- vide in their tariffs for the declaration tination or for a particular itinerary. of baggage value in excess of a free baggage allowance limitation, shall § 374.505 Exceptions. provide for the declaration of excess (a) Incidental charter rights do not value on baggage at any time or place authorize the transportation of pas- where provision is made for baggage sengers to whom the carrier has sold checking, including (a) at a baggage individual tickets or with whom the checking counter until 15 minutes be- carrier has made separate and indi- fore scheduled boarding time, and (b) vidual transportation arrangements. at the side of the bus or at a baggage (b) Service provided under incidental checking counter in reasonable prox- charter rights may not be operated be- imity to the boarding area during tween the same points or over the same boarding at a terminal or any author- route so frequently as to constitute a ized service point. regular-route service. (c) Passenger transportation within [40 FR 1249, Jan. 7, 1975, as amended at 62 FR 15423, Apr. 1, 1997] the Washington Metropolitan Area Transit District (as defined in the Washington Metropolitan Area Trans- Subpart E—Incidental Charter portation Regulation Compact, Pub. L. Rights No. 86–794, 74 Stat. 1031 (1960), as amended by Pub. L. No. 87–767, 76 Stat. AUTHORITY: 5 U.S.C. 553 and 559 and 49 (1962) is not authorized by these regula- U.S.C. 10321, 10922, and 10932. tions, but is subject to the jurisdiction

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and regulations of the Washington carriers engaged in the transportation Metropolitan Area Transportation of household goods as defined in para- Commission. graph (b)(1) of this section in interstate (d) A private or public recipient of or foreign commerce. governmental assistance (within the (b) Definitions. As used in this part: meaning of 49 U.S.C. 13902(b)(8)) may (1) Household goods. The term provide service under incidental char- ‘‘household goods’’ means personal ef- ter rights only for special or chartered fects and property used or to be used in parties originating in the area in which a dwelling when a part of the equip- the private or public recipient provides ment or supply of such dwelling and regularly scheduled mass transpor- such other similar property as the tation services under the specific quali- FMCSA may provide by regulation; ex- fying certificate that confers its inci- cept that this definition shall not in- dental charter rights. clude property moving from a factory [54 FR 46619, Nov. 6, 1989. Redesignated at 61 or store, other than property that the FR 54709, Oct. 21, 1996, as amended at 62 FR householder has purchased with the in- 15423, Apr. 1, 1997] tent to use in his or her dwelling and is transported at the request of, and the PART 375—TRANSPORTATION OF transportation charges are paid to the carrier by the householder. HOUSEHOLD GOODS IN INTER- (2) Reasonable dispatch. The term STATE OR FOREIGN COMMERCE ‘‘reasonable dispatch’’ means the performance of transportation, excluding Sec. transportation provided under tariff 375.1 Applicability and definitions. 375.2 Information for shippers. provisions requiring guaranteed service 375.3 Estimates of charges. dates, on the dates or during the period 375.4 Final charges on shipments subject to of time agreed upon by the carrier and minimum weight or volume provisions. the shipper and shown on the Order For 375.5 Order for service. Service/Bill of Lading, Provided, That 375.6 Receipt or bill of lading. the defenses of force majeure as con- 375.7 Determination of weights. strued by the courts shall not be denied 375.8 Reasonable dispatch. 375.9 Notification of charges. the carrier. 375.10 Signed receipt for shipment-release (3) Advertisement. The term prohibited. ‘‘advertisement’’ means any commu- 375.11 Selling of insurance to shippers. nication to the public in connection 375.12 Liability of carriers. with an offer or sale of any interstate 375.13 Complaint and inquiry handling. or foreign transportation service, but 375.14 Agency agreements. shall not be construed to include a list- 375.15 Collection of freight charges on ing of a carrier name, address, and tele- household goods shipments involving loss or destruction in transit. phone number in a telephone directory 375.16 Collection of freight charges on ship- or similar publication. ments transported on more than one ve- (4) Certified Scales. As used in this hicle. part, a certified scale is any scale de- 375.17 Advertising by motor common car- signed for weighing motor vehicles, in- riers of household goods. cluding trailers or semi-trailers not at- 375.18 Preparation and filing of annual per- tached to a tractor, and certified by an formance report. 375.19 Use of charge card plans. authorized scale inspection and licensing authority. A certified scale may AUTHORITY: 5 U.S.C. 553; 49 U.S.C. 13301 and also be a platform or warehouse type 14104; and 49 CFR 1.73. scale properly inspected and certified. SOURCE: 46 FR 16218, Mar. 11, 1981, unless (5) Individual Shipper. As used in this otherwise noted. Redesignated at 61 FR 54707, part, ‘‘individual shipper’’ refers to any Oct. 21, 1996. person who is the consignor or con- EDITORIAL NOTE: Nomenclature changes to signee of a household goods shipment part 375 appear at 66 FR 49871, Oct. 1, 2001. and is identified as such in the bill of lading contract and owns the goods § 375.1 Applicability and definitions. being transported. (a) The regulations in this part are (6) Commercial Shipper. As used in this applicable to the operations of motor part, ‘‘commercial shipper’’ refers to

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(a) any person, excluding the federal tion shall be a telephone number which government, who is named as the con- the shipper may use to communicate signor and/or consignee in a bill of lad- with the carrier, accompanied by a ing contract who is not the owner of clear and concise statement concerning the goods being transported but who who shall pay for such calls. assumes the responsibility for payment (b) General Requirements: (1) The text of the transportation and other tariff and format of the publication shall not charges for the account of the bene- be changed without the written ap- ficial owner of the goods, normally an proval of the Director, Office of employee of the consignor and/or con- Enforcement and Compliance, Federal signee; or, (b) a freight forwarder which Motor Carrier Safety Administration. tenders a shipment to a carrier in fur- (2) The Director, Office of therance of authorized or exempt Enforcement and Compliance, Federal freight forwarder operations. Motor Carrier Safety Administration, (7) Government Bill of Lading Shipper. shall, within 30 days following the ef- As used in this part, ‘‘government bill fective date of a decision of the Federal of lading shipper’’ refers to any person Motor Carrier Safety Administration whose property is transported under changing any rule or regulation pub- the terms and conditions of a govern- lished at 49 CFR part 375, cause to be ment bill of lading issued by any de- published in the FEDERAL REGISTER a partment or agency of the federal gov- notice of amendment to Publication ernment to the carrier responsible for OCE–100 reflecting such change or the transportation of the shipment. changes. (8) Other terms. Where any other (3) The dimensions of the publication terms used in the regulations in this shall be optional, Provided, however, part are defined in 49 U.S.C. 13102, such The product of multiplying the length definitions shall be controlling. Where by the width shall be not less than 36 terms are used in this part which are square inches. neither defined herein nor in 49 U.S.C. (4) The color and design of the front 13102, they shall have the ordinary and back cover of the publication shall practical meaning of such terms. be optional. Provided, the only words [46 FR 16218, Mar. 11, 1981; 46 FR 22594, Apr. printed or appearing on the front cover 20, 1981, as amended at 65 FR 58664, Oct. 2, shall be ‘‘Your Rights and Responsibil- 2000] ities When You Move.’’ [46 FR 16218, Mar. 11, 1981; 46 FR 22594, Apr. § 375.2 Information for shippers. 20, 1981, as amended at 59 FR 2305, Jan. 14, (a) Prior to the execution of an order 1994; 59 FR 34392, July 5, 1994; 62 FR 49940, for service of a shipment of household 49941, Sept. 24, 1997] goods, as defined in § 375.1(b)(1), every motor common carrier holding out to § 375.3 Estimates of charges. perform the service shall cause to be (a) Binding estimates. Motor common furnished to the prospective individual carriers engaged in the transportation shipper the following publications. of household goods as defined in (1) Publication OCE–100, Your Rights § 375.1(b)(1) may provide in their tariffs and Responsibilities When You Move. for the preparation and furnishing to (2) A concise, easy-to-read, accurate shippers of binding estimates of the summary of any dispute settlement costs which the shippers will be re- program in which the carrier partici- quired to pay for the services included pates, as provided in 49 U.S.C. 14708 and in the estimates. Binding estimates approved by the FMCSA. must be furnished in writing to the (3) A copy of Form OCE–101, Annual shipper or other person responsible for Performance Report, most recently filed payment of the freight charges and a with the FMCSA, as prescribed in copy of each such estimate must be re- § 375.18, if the carrier is required to tained by the carrier as an addendum complete part B of that form. to the bill of lading. All such estimates (4) A written description of the cus- shall have clearly indicated on its face tomer complaint and inquiry handling that the estimate is binding on the car- procedures established and maintained rier and that the charges shown are the by the carrier. Included in this descrip- charges which will be assessed for the

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services identified in the estimate. upon payment of not more than 110 Binding estimates must clearly de- percent of the estimated charges and scribe the shipment and all services to shall defer demand for the payment of be provided. the balance of any remaining charges (b) Non-binding estimates. Motor com- for a period of 30 days following the mon carriers engaged in the transpor- date of delivery. tation of household goods as defined in § 375.1(b)(1) may provide estimates of [46 FR 16218, Mar. 11, 1981. Redesignated at 61 the approximate costs which will be as- FR 54707, Oct. 21, 1996; 62 FR 49941, Sept. 24, sessed for the transportation of such 1997] shipments. Non-binding estimates shall § 375.4 Final charges on shipments be reasonably accurate. Estimates of subject to minimum weight or vol- approximate costs shall not be binding ume provisions. on the carriers providing such estimates. The final charges on shipments (a) Motor common carriers engaged moved on non-binding estimates shall in the transportation of household be those appearing in the carriers’ tar- goods, as defined in § 375.1(b)(1), pro- iffs applicable to the transportation. viding service for individual shippers Non-binding estimates must be fur- on rates based on the transportation of nished without charge and in writing a minimum weight or volume, must in- to the shipper or other person respon- dicate on the order for service the min- sible for payment of the freight charges imum weight or volume-based rates, and a copy of each such estimate must and the the minimum charges applica- be retained by the carrier as an adden- ble to the shipment. dum to the bill of lading. All such esti- (b) Failure to comply with the re- mates shall have clearly indicated on quirements of paragraph (a) shall re- the face thereof that the estimate is quire, and the governing tariff shall not binding on the carrier and that the contain, a rule providing that the final charges shown are the approximate charges relating to such a shipment be charges which will be assessed for the computed based on the actual weight services identified in the estimate. or volume of the shipment. Non-binding estimates must clearly describe the shipment and all services to [46 FR 16218, Mar. 11, 1981. Redesignated at 61 be provided. FR 54707, Oct. 21, 1996; 62 FR 49941, Sept. 24, (c) Estimated charges required to be en- 1997] tered on the order for service and bill of lading. Motor common carriers fur- § 375.5 Order for service. nishing non-binding estimates shall (a) Order for service required. Every enter the estimated charges on the motor common carrier shall, prior to order for service, if an order for service the receipt of a shipment of household is required, and on the bill of lading. goods as defined in § 375.1(b)(1) to be (d) Maximum charges required to be moved for an individual shipper, prepaid at time of delivery on collect on de- pare an order for service which con- livery shipments subject to non-binding tains the following minimum informa- estimates of approximate costs. At time of tion: delivery of a collect on delivery shipment, except when such shipment is de- (1) Name and address and FMCSA livered to a warehouse for storage at docket number of carrier who is re- the request of the shipper, on which a sponsible for performing the service. non-binding estimate of the approxi- (2) Shipper’s name, address and, if mate costs has been furnished by the available, telephone number. carrier under the provisions of para- (3) Name, address and telephone num- graph (b), the shipper may request de- ber of the delivering carrier’s office or livery of the shipment upon payment, agent located at or nearest to the des- in a form acceptable to the carrier, of tination of the shipment. an amount not exceeding 110 percent of (4) A telephone number at which the the estimated charges. The carrier shipper/consignee may contact the car- shall, upon request of the shipper, re- rier or its designated agent. linquish possession of the shipment

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(5) Agreed pickup date and agreed de- mencement of the loading of a ship- livery date, or the agreed period or pe- ment. riods of time within which pickup, de- (b) Minimum information required on a livery, or the entire move, will be ac- receipt or bill of lading. Whenever a re- complished. If the shipment is to be ceipt or bill of lading is issued in com- transported on a guaranteed service pliance with paragraph (a), the carrier basis, the guaranteed dates or periods shall cause to be included therein the of time for pickup, transportation and following minimum information: delivery and any penalty or per diem (1) The name and address of the requirements of the agreement shall be motor carrier issuing the receipt or bill entered under this item. of lading. (6) Complete description of any spe- (2) The names and addresses of any cial or accessorial services ordered; and other motor carriers, when known, minimum weight or volume charges which will participate, through inter- applicable to the shipment. line, in the transportation of the ship- (7) Any identification or registration ment. number assigned the shipment by the (3) The name, address and telephone carrier. number of the office of the carrier that (8) Amount of estimated non-binding should be contacted in relation to the charges; method of payment of total transportation of shipments. charges; and, maximum amount re- (4) When the transportation is to be quired to be paid at time of delivery to performed on a collect on delivery obtain possession of the shipment or, basis, the name, address and, if fur- the amount of charges required to be nished, the telephone number of a per- paid based on a binding estimate and son to whom notification provided for the terms of payment under that esti- in § 375.9(b) shall be given. mate. (5) When the transportation is to be (9) Whether the shipper requests noti- performed for an individual shipper, fication of the charges prior to delivery and except when the transportation is and the telephone number or address at to be performed subject to tariff provi- which such communications will be re- sions providing for guaranteed service ceived. dates, the agreed date or period of time (10) Signatures required. The order for for pickup of the shipment and the service shall be signed by the shipper agreed date or period of time for the who is ordering the service, and by the delivery of the shipment. The agreed carrier or its agent. A copy of the order dates or periods of time for pickup and for service shall be dated and furnished delivery entered on the receipt or bill the shipper at the time it is executed. of lading shall conform to the agreed dates or periods of time for pickup and (b) Amendments to an order for service. delivery entered on the order for serv- Prior to loading an order for service ice or a proper amendment to the order may be amended by agreement of both for service. parties. (6) When the transportation is to be [46 FR 16219, Mar. 11, 1981; 46 FR 22594, Apr. performed subject to tariff provisions 20, 1981, as amended at 62 FR 49941, Sept. 24, providing for guaranteed pickup, trans- 1997] portation and delivery service, the dates for pickup and delivery and any § 375.6 Receipt or bill of lading. penalty or per diem entitlements due (a) Issuance of a receipt or bill of lad- the shipper under the agreement. ing. Every motor common carrier en- (7) The actual date of pickup. gaged in the transportation of house- (8) The company or carrier identifica- hold goods as defined in § 375.1(b)(1) tion number of the vehicle on which shall issue a receipt or bill of lading. the shipment is loaded. The bill of lading shall contain the (9) The terms and conditions for pay- minimum information required by ment of the total charges including no- § 375.6(b) and the terms and conditions tice of any minimum charges. of the contract. The carrier shall fur- (10) When the transportation is to be nish a complete copy of the bill of lad- performed on a collect on delivery ing to the shipper prior to the com- basis and if a pre-move estimate of the

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charges is provided to the shipper, the the tare weighing is the first weighing maximum amount required to be paid performed. at the time of delivery to obtain deliv- (4) The trailer of a tractor-trailer ve- ery of the shipment. hicle combination may be detached (11) The required released rates valu- from the tractor and the trailer ation statement. weighed separately at each weighing (12) Evidence of any insurance cov- providing the length of the scale plat- erage sold to or procured for the ship- form is adequate to accommodate and per, including the amount of the pre- support the entire trailer at one time. mium for such insurance. (5) Shipments weighing 1,000 pounds (c) Copy of receipt or bill of lading to or less may be weighed on a certified accompany shipment. A copy of the re- platform or warehouse scale prior to ceipt or bill of lading shall accompany loading for transportation or subse- a shipment at all times while in the quent to unloading. possession of a carrier. When the ship- (6) The net weight of shipments ment is loaded on a vehicle for trans- transported in containers shall be the portation the receipt or bill of lading difference between the tare weight of shall be in possession of the driver re- the container, including all pads, sponsible for the shipment. blocking and bracing used or to be used [46 FR 16219, Mar. 11, 1981; 46 FR 22594, Apr. in the transportation of the shipment 20, 1981, as amended at 50 FR 37534, Sept. 16, and the gross weight of the container 1985; 62 FR 49941, Sept. 24, 1997] with the shipment loaded therein. (7) The shipper or any other person § 375.7 Determination of weights. responsible for the payment of the (a) Every motor common carrier freight charges shall have the right to transporting household goods on a non- observe all weighings of the shipment. binding estimate shall determine the The carrier must advise the shipper or weight of each shipment transported any other person entitled to observe prior to the assessment of any charges the weighings of the time and specific dependent on the shipment weight. Ex- location where each weighing will be cept as otherwise provided herein the performed and must give that person a weight shall be obtained on a scale reasonable opportunity to be present to meeting the definition of a certified observe the weighings. Waiver by a scale as provided in § 375.1(b)(4). shipper of the right to observe any (1) Weighing procedure. Except as oth- weighing or reweighing is permitted erwise provided herein the weight of and does not affect any rights of the each shipment shall be obtained by de- shipper under these regulations or oth- termining the difference between the erwise. tare weight of the vehicle on which the (b) Weight tickets. The carrier shall shipment is to be loaded prior to the obtain a separate weight ticket for loading and the gross weight of the each weighing required under this sec- same vehicle after the shipment is tion except when both weighings are loaded; or, the gross weight of the vehi- performed on the same scale, one cle with the shipment loaded and the weight ticket may be used to record tare weight of the same vehicle after both weighings. Every weight ticket the shipment is unloaded. must be signed by the person per- (2) At the time of both weighings the forming the weighing and must contain vehicle shall have installed or loaded the following minimum information: all pads, dollies, handtrucks, ramps (1) The complete name and location and other equipment required in the of the scale. transportation of such shipments. Nei- (2) The date of each weighing. ther the driver nor any other persons (3) Identification of the weight en- shall be on the vehicle at the time of tries thereon as being the tare, gross either weighing. and/or net weights. (3) The fuel tanks on the vehicle shall (4) The company or carrier identifica- be full at the time of each weighing or, tion of the vehicle. in the alternative, no fuel may be (5) The last name of the shipper as it added between the two weighings when appears on the Bill of Lading.

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(6) The carrier’s shipment registra- quired by § 375.5(b). If the notification tion or Bill of Lading number. of delay occurs subsequent to the pick- (7) The original weight ticket or tick- up of the shipment, the carrier rep- ets relating to the determination of the resentative notifying the shipper of the weight of a shipment must be retained delay shall prepare a written record of by the carrier as part of the file on the the date, time and manner of notifica- shipment. All freight bills presented to tion and the amended date or period of collect any shipment charges depend- time for delivery by the carrier which ent on the weight transported must be record shall be retained by the carrier accompanied by true copies of all as part of its file on the shipment and weight tickets obtained in the deter- a true copy thereof shall be furnished, mination of the shipment weight. by first class mail or in person, to the (c) Reweighing of shipments. Before shipper. the actual commencement of the un- (b) Tendering for delivery. Except upon loading of a shipment weighed at origin the request or concurrence of the ship- and after the shipper is informed of the per, a shipment being transported for billing weight and total charges, the an individual shipper shall not be ten- shipper may request a reweigh. The dered for delivery prior to the agreed charges shall be based on the reweigh delivery date or period of time speci- weight. fied on the bill of lading: Provided, That whenever a carrier is able to tender [46 FR 16218, Mar. 11, 1981. Redesignated at 61 FR 54707, Oct. 21, 1996; 62 FR 49941, Sept. 24, such a shipment for final delivery more 1997] than 24 hours prior to such specified date or the first day of such specified § 375.8 Reasonable dispatch. period of time, and the shipper has not (a) Unless accepted for transpor- requested or concurred in such early tation on the basis of guaranteed pick- delivery, the carrier may, at its option, up and delivery dates: place the shipment in storage for its (1) Reasonable dispatch required. Each own account and at its own expense in motor common carrier accepting ship- a warehouse located in proximity to ments of household goods as defined in the destination of the shipment. When- § 375.1(b)(1) for transportation for the ever a carrier shall exercise such op- account of individual shippers shall tion it shall immediately notify the cause such shipments to be transported shipper of the name and address of the with reasonable dispatch as defined in warehouse in which the shipment has § 375.1(b)(2). been placed, and shall make and keep a (2) Notification of delay in providing record of such notification as a part of service with reasonable dispatch. When- its record of shipment. The carrier’s re- ever a carrier is unable to perform ei- sponsibility for the shipment under the ther or both the pickup and delivery of terms and conditions of the bill of lad- a shipment on the dates or during the ing and its responsibility for the periods of time specified in the order charges for redelivery, handling and for service, the carrier shall notify the storage thereof shall continue until shipper by telephone, telegram or in final delivery: Provided, that the car- person, at the carrier’s expense, of the rier’s responsibility under the bill of delay. Such notification shall be given lading shall not extend beyond the as soon as it becomes apparent to the agreed delivery date or the first day of carrier that it will be unable to provide the period within which delivery was to the service in compliance with the have been accomplished as specified in terms of the order for service. the bill of lading. (3) Carrier notification of delay. At the [46 FR 16220, Mar. 11, 1981; 46 FR 22594, Apr. time of notification of delay the car- 20, 1981, as amended at 62 FR 49941, Sept. 24, rier shall advise the shipper of the 1997] dates or periods of time that pickup and/or delivery can be made, which § 375.9 Notification of charges. considers the needs of the shipper. If (a) Whenever an individual shipper of the notification of delay occurs prior a shipment being transported on a col- to the pickup of the shipment, the lect on delivery basis specifically re- amendment shall be in writing as requests notification of the actual weight

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or volume and charges on a shipment, hold goods to be transported in inter- and supplies the carrier with an ad- state or foreign commerce by such car- dress or telephone number at which the rier; Provided, that the shipper is issued communication will be received, the a policy or other appropriate evidence carrier shall comply with such request of the insurance purchased, and a copy upon determining the actual weight thereof be furnished to the shipper at and charges. Such notification shall be the time the insurance is sold or pro- made by telephone, telegram, or in per- cured. Carrier issued policies shall be son. written in plain English and shall (b) Whenever a shipper requests noti- clearly specify the nature and extent of fication of the weight or volume and coverage. Failure to issue a policy or charges on a shipment as provided in other appropriate evidence of insur- paragraph (a), the notification must be ance purchased shall subject the car- received by the shipper, at least one rier to full liability for any claims to full 24-hour day, excluding Saturdays, recover for loss or damage attributed Sundays and legal holidays, prior to to the carrier. any tender of the shipment for deliv- (b) Any carrier offering or selling or ery. The 24-hour notification require- procuring insurance as provided in ment shall not apply on a shipment to paragraph (a) of this section shall pro- be backweighed or on a shipment vide in its tariff for the provision of which, with the agreement of the ship- such service. The tariff shall also proper, is to be picked up and delivered vide for the base transportation charge within a time period encompassing two to include assumption by the carrier consecutive week days, or on a ship- for full liability for the value of the ment on which the charges have been shipment in the event a policy or other estimated and the maximum amount appropriate evidence of the insurance required to be paid at time of delivery purchased by the shipper is not issued is 110 percent of the estimated charges. to the shipper at the time of purchase. [46 FR 16218, Mar. 11, 1981. Redesignated at 61 § 375.10 Signed receipt for shipment- FR 54707, Oct. 21, 1996, as amended at 62 FR release prohibited. 49941, Sept. 24, 1997] A shipping document to be signed by the consignee at time of delivery shall § 375.12 Liability of carriers. not contain any language which pur- (a) Liability restricted. Except as pro- ports to release or discharge the car- vided in § 375.11(a), common carriers by rier or its agents from liability, but motor vehicle of household goods as de- may contain a statement that the fined in § 375.1(b)(1) shall not assume property has been received in apparent any liability in excess of that for which good condition except as noted on the they are legally liable under their law- shipping documents. ful bills of lading and published tariffs. (b) Limitations of liability. A common § 375.11 Selling of insurance to ship- carrier by motor vehicle of household pers. goods shall be liable for loss of or dam- (a) When a shipment is released for age to any articles caused by it while transportation at a value not exceeding being transported or while being held 60 cents per pound per article, and the for storage-in-transit, including inci- shipper does not declare a valuation of dental pickup or delivery, and includ- $1.25 or more per pound and pay or ing liability for loss or damage to any agree to pay the carrier for assuming article or appliance resulting from the liability for the shipment equal to the servicing of such article or appliance declared value, any common carrier of by a third person engaged by the car- household goods as defined in rier to perform such service, to the ex- § 375.1(b)(1), or any employee, agent, or tent provided in the outstanding re- representative thereof, may sell, or leased rates order; except that the car- offer to sell or procure for any shipper, rier may exempt its liability in the fol- any kind of insurance, under any type lowing instances: of policy, covering loss or damage in (1) No liability need be assumed for excess of the specified carrier liability perishable articles included in the ship- to a shipment or shipments of house- ment without the knowledge of the

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carrier; and a carrier accepting for in accordance with the foregoing shall shipment perishable articles may im- automatically effect a continuance of pose reasonable conditions necessary carrier liability pursuant to the appli- to insure the safe transportation of cable tariff provisions with respect to such commodities. S.I.T., until the end of the day fol- (2) When a shipment is released to a lowing the date upon which notice is value greater than sixty cents (60¢) per given. pound, per article, liability for loss or [46 FR 16218, Mar. 11, 1981, as amended at 55 damage may be limited to $100 per FR 18729, May 9, 1990; 55 FR 30235, July 25, pound, per article (based upon the ac- 1990; 62 FR 49941, Sept. 24, 1997] tual article weight), for any article included in the shipment that exceeds § 375.13 Complaint and inquiry han- $100 per pound, per article in value, un- dling. less the shipper specifically notifies (a) Motor common carriers engaged the carrier in writing that an identified in the transportation of household article or articles with a value greater goods as defined in § 375.1(a) shall es- than $100 per pound will be included in tablish and maintain a procedure for the shipment. In such case, the shipper responding to complaints and inquiries will be entitled to full recovery up to from shippers for which such transpor- the declared value of the article or ar- tation is provided. The procedure shall ticles, not to exceed the declared value include a means whereby shippers may of the entire shipment. communicate with the principal office (c) Storage-in-transit. A common car- of the carrier by telephone. rier by motor vehicle of household (b) The carrier shall retain and make goods holding goods for storage-in- part of the file relating to a shipment transit (S.I.T.) shall, no less than 10 a written record of all complaints and days prior to the expiration of either inquiries received from a shipper by the specified period of time during any means of communication. which the goods are to be held in such [46 FR 16218, Mar. 11, 1981. Redesignated at 61 storage or the maximum period of time FR 54707, Oct. 21, 1996; 62 FR 49941, Sept. 24, provided in the carrier’s tariff for stor- 1997] age-in-transit, notify the shipper in writing (1) of the date of conversion to § 375.14 Agency agreements. permanent storage, (2) of the existence (a) Household Goods Agents are de- of a nine-month period subsequent to fined as follows: the date of conversion to permanent (1) Prime agents are defined as all storage during which shipper may file agents who are permitted or required claims against the carrier for loss and/ under the terms of any agreement or or damage which occurred to the goods arrangement with a principal carrier to in transit or during the S.I.T. period, provide any transportation service for and, (3) of the fact that on the date of or on behalf of the principal carrier, in- conversion, the liability of the carrier cluding the selling of or arranging for shall terminate and the property shall any transportation service, and who be subject to the rules, regulations, perform such services on other than an and charges of the warehouseman. No- emergency or temporary basis. tification shall be by certified mail, re- (2) Military agents are defined as all turn receipt requested. A common car- agents who are permitted or required rier by motor vehicle of household under the terms of any agreement or goods holding goods for storage-in- arrangement with a principal carrier to transit for a period of time less than 10 provide origin and/or destination serv- days shall, no less than one day prior ices only on shipments transported on to the expiration of the specified time Government bills of lading issued by during which the goods are to be held the Department of Defense, and who in such storage, give notification to perform such services on other than an the shipper of the information specified emergency or temporary basis. in paragraph (d) (1), (2), and (3) and (3) Temporary agents are defined as maintain a record thereof as part of its all agents who are permitted or re- record of the shipment. Failure or required under the terms of any agree- fusal of a carrier to notify the shipper ment or arrangement with a principal

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carrier to provide origin and/or des- corresponding to the portion of the tination services on behalf of the prin- shipment delivered by the total cipal carrier, excluding the selling of charges (including accessorial and ter- or arranging for any transportation minal charges) applicable to the ship- service, and who perform such services ment tendered by the shipper. If the on an emergency or temporary basis. charges computed in the manner set (b) Agreements between principal forth above exceed the charges other- carriers and their prime or military wise applicable to the shipment as de- agents must be reduced to writing and livered, the lesser of those charges signed by the principal and the re- shall apply. The provisions of this tained agent, and copies of any such paragraph shall apply only to the agreements must be in the files of the transportation of household goods as principal carrier for a period of not less defined in § 375.1(b)(1) of these rules. than 24 months following the date of Notwithstanding any other provisions termination of each agreement. of this paragraph, a carrier shall col- [46 FR 16222, Mar. 11, 1981; 46 FR 22594, Apr. lect, and the shipper shall be required 20, 1981] to pay, that proportion of any charges for accessorial or terminal services § 375.15 Collection of freight charges rendered which corresponds to the pro- on household goods shipments in- portion of the shipment not lost or de- volving loss or destruction in tran- stroyed in transit and any specific sit. valuation charge that may be due. The (a) No motor common carrier of provisions of this paragraph shall not household goods in interstate or for- be applicable to the extent that any eign commerce shall collect, or shall such loss or destruction is due to the require a shipper thereof to pay, any act or omission of the shipper. Carriers published freight charges (including shall determine, at their own expense, any charges for accessorial or terminal the proportion of the shipment not lost services) when that shipment is totally or destroyed in transit. lost or destroyed in transit. The provi- (c) The rights provided by this sec- sions of this subsection shall apply tion are in addition to, and not in lieu only to the transportation of household of, any other rights which the shipper goods as defined in § 375.1(b)(1) of these may have with respect to a shipment of rules. Notwithstanding any other pro- household goods which is lost or de- visions of this subsection, a carrier stroyed, or partially lost or destroyed, shall collect, and the shipper shall be in transit, whether or not that shipper required to pay, any specific valuation has exercised the rights provided in charge that may be due. This sub- paragraphs (a) and (b) of this section. section shall not be applicable to the [46 FR 16218, Mar. 11, 1981, as amended at 54 extent that any such loss or destruc- FR 36981, Sept. 6, 1989; 62 FR 49941, Sept. 24, tion is due to the act or omission of the 1997] shipper. (b) In the event that any portion, but § 375.16 Collection of freight charges less than all, of a shipment of house- on shipments transported on more hold goods is lost or destroyed in tran- than one vehicle. sit, a motor common carrier of house- (a) Whenever a collect on delivery hold goods in interstate or foreign shipment of household goods, as de- commerce shall, at the time it disposes fined in § 375.1(b)(1), is transported on of claims for loss, damage, or injury to more than one vehicle the carrier de- the articles in the shipment as pro- livering such split or divided shipment vided in part 370 of this chapter, refund shall observe the requirements of para- that portion of its published freight graphs (a)(1), (2) or (3) of this section in charges (including any charges for ac- the collection of the charges. cessorial or terminal services) cor- (1) At the option of the carrier, the responding to that portion of the ship- collection of the charges attributable ment which is lost or destroyed in to the transportation of the portion of transit. To calculate the charges appli- the shipment transported on each vehi- cable to the shipment as delivered, the cle may be deferred until all portions carrier shall multiply the percentage of the shipment are delivered; or,

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(2) Providing that the charges for the as defined in § 375.1(b)(3), which is false, entire shipment have been determined, misleading or deceptive. the carrier may collect at the time of delivery of any portion of the shipment [46 FR 16218, Mar. 11, 1981. Redesignated at 61 that percentage of the charges rep- FR 54707, Oct. 21, 1996; 62 FR 49941, Sept. 24, 1997] resented by the portion of the shipment tendered for delivery; or, § 375.18 Preparation and filing of an- (3) In the event that the charges due nual performance report. the carrier for the transportation of the entire shipment cannot reasonably (a) Filing requirement. Each motor be determined at the time any portion common carrier for household goods as of the shipment is tendered for deliv- defined in § 375.1(b) that delivers inter- ery, the carrier shall determine and state shipments to individual C.O.D. collect the charges for the portion of shippers, during any calendar year the shipment being delivered. The total shall, on or before March 31 of the fol- charges assessed by the carrier for the lowing year, file with the Office of transportation of the separate portions Enforcement and Compliance, Federal of the shipment shall not exceed the Motor Carrier Safety Administration, charges due for the entire shipment. Washington, DC 20590, a report of the (b) In the event of the loss or destruc- service performed during the report tion of any part of a shipment being year. The report shall be submitted on transported on more than one vehicle, Form OCE–101, and its accuracy must the collection of charges as provided in be verified by an official of the carrier. paragraph (a) of this section shall also All carriers must complete part A of be in conformity with the requirements Form OCE–101, and those carriers of § 375.15. transporting 100 or more shipments [46 FR 16218, Mar. 11, 1981. Redesignated at 61 also must complete part B. FR 54707, Oct. 21, 1996; 62 FR 49941, Sept. 24, (b) Prescribed Annual Performance 1997] Report Form OCE–101.

§ 375.17 Advertising by motor common FEDERAL MOTOR CARRIER SAFETY carriers of household goods. ADMINISTRATION (a) Every motor common carrier en- OFFICE OF ENFORCEMENT AND COMPLIANCE gaged in the transportation of household goods in interstate or foreign ANNUAL PERFORMANCE REPORT FOR YEAR commerce, including any carriers pro- ENDED DECEMBER 31, 20l viding any accessorial service inci- Carrier’s Name lllllllllllllll dental to or part of such interstate or Carrier’s Address llllllllllllll foreign transportation, shall include, USDOT or ICCMC Number lllllllll and shall require each of its agents to include, in every advertisement as de- PART A fined in § 375.1(b)(3), the name or trade During the year, the total number of name of the motor carrier under whose household goods shipments (1st proviso) de- operating authority the advertised livered for each type of shipper was: service will originate, and the certifi- 1. C.O.D. shipments delivered cate or docket number assigned to such under your common carrier au- operating authority by the Federal thority (excluding all Govern- Motor Carrier Safety Administration. ment, Freight Forwarder, and (b) Such certificate or docket number Interline shipments) ...... lllll shall be in the following form in every 2. All other 1st proviso shipments advertisement: ‘‘FMCSA No.lll’’ but (including all Government, shall not include any sub numbers Freight Forwarder, and Inter- which may have been assigned. line shipments) ...... lllll (c) No motor common carrier en- 3. Total of Lines 1 and 2 (NOTE: gaged in the transportation of house- Total must agree with total 1st proviso shipments reported in hold goods, as defined in § 375.1(b)(1), or your Annual Performance Re- any agent or other representative of port, Schedule 600, Line 7, Col- such a carrier, shall publish or cause to umn d, if you are required to be published or use any advertisement file that report) ...... lllll

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PART B CARRIER’S OATH (MUST BE COMPLETED BY A CARRIER OFFICIAL) Complete part B only if the C.O.D. delivered shipments reported in part A, Line 1, I, (name and title of company official), verify equals or exceeds 100 shipments. The ques- under penalty of perjury, under the laws of tions and answers below deal only with the the United States of America, that all infor- shipments reported in part A, Line 1. mation supplied on this form or relative to 4. Number of C.O.D. shipments the data contained in the form is, to the best where the order for service was of my knowledge and belief, true, correct and based upon a written binding es- complete, based on all the information re- timate (included are so-called quired to be included therein, of which I have hybrid estimates such as Guar- any knowledge, and these representations anteed Price and Price Protec- are made in good faith. Further, I certify tion) ...... lllll that I am qualified and authorized to certify 5. Number of C.O.D. shipments the accuracy of the data. I know that willful where the charges were based misstatements or omission of material facts on a written non-binding estimate lllll constitutes Federal crime violations punish- 6. Number of C.O.D. shipments able under 18 U.S.C. 1001 by imprisonment up where the charges were based to 5 years and fines up to $10,000 for each of- on other than a written binding fense. or non-binding estimate ...... lllll 7. Total of Lines 4, 5, and 6 llllllllllllllllllllllll (NOTE: Total should equal the Signature shipment count reported in part A, Line 1) ...... lllll llllllllllllllllllllllll 8. Percentage of shipments deliv- Title ered where the final charges exceeded the initial written llllllllllllllllllllllll binding estimate ...... lllll Date 9. Percentage of shipments delivered where the final charges (c) Instructions for Preparation of exceeded the initial written Annual Performance Report, Form non-binding estimate by 10% or OCE–101. more ...... lllll 10. Percentage of shipments that INSTRUCTIONS FOR PREPARATION were picked up after the last date for pickup listed on the General Instructions order for service or bill of lad- 1. Data for completion of Form OCE–101 ing ...... lllll may be obtained by random sampling pro- 11. Percentage of shipments that viding that in every instance, the universe were delivered after the last sampled is all shipments delivered under date of delivery specified on the your common carrier authority (excluding order for service or bill of lad- Government, Freight forwarder, and Inter- ing ...... lllll line traffic) during the report year or all 12. Percentage of shipments de- claims arising out of the transportation of livered where there was a claim those shipments that were received or set- filed (in excess of $200) for prop- tled, as appropriate, during the report year. erty damage or loss ...... lllll 2. When random sampling is used, the min- 13. Percentage of shipments delivered where there was a claim imum sample size in every instance shall be filed (in excess of $200) for dam- 400 shipments or claims, as appropriate, in ages resulting from late pickup replicates of 100 shipments or claims each. or delivery ...... lllll All samples must conform to standard devi- 14. Average number of days re- ation with a 95% confidence level. quired to settle a claim (in ex- 3. Carriers submitting Form OCE–101 shall cess of $200) ...... lllll retain and make available for review by an 15. Percentage of claims (in ex- authorized FMCSA employee all working pa- cess of $200) that were resolved pers, notes, and other files relating to the through the use of an arbitra- preparation of each report for a period of not tion program ...... lllll less than 24 months following the date of fil- 16. Percentage of claims (in ex- ing such a report. cess of $200) that were resolved 4. The data in Form OCE–101 must be after the carrier received a verified by a sworn statement signed by an legal notice of a lawsuit filed official of the company. by the shipper ...... lllll

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SPECIFIC INSTRUCTIONS Line 8: Compute the percentage of those shipments delivered where the final Part A charges exceeded the written estimate ini- Line 1: Only report those 1st proviso C.O.D. tially provided to the shipper because of shipments moved under your common car- changes agreed to by the carrier and ship- rier authority after excluding all Govern- per in commodities transported and serv- ment, Freight forwarder and Interline traf- ices provided. fic. Line 9: Compute the percentage of those Line 2: Report all other 1st proviso ship- shipments delivered under a non-binding ments, including those moving under con- written estimate where the final charges tract carriage provisions and all Govern- exceeded the written estimate provided to ment, Freight forwarder and Interline traf- the shipper by 10% or more. The 10% figure fic. is used because every C.O.D. shipper is re- Line 3: Sum lines 1 and 2. The total should quired to have available 110% of the esti- agree with total 1st proviso shipments re- mate at the time of delivery. ported in your Annual Performance Re- Line 10: Compute the percentage of those port, Schedule 600, Line 7, Column d, if you shipments where the actual pickup date are required to file that report. occurred after the last date for pickup promised on the order for service or bill of Part B lading. Line 11: Compute the percentage of those It is not necessary to complete Part B if shipments where the actual delivery date the total of C.O.D. shipments reported on occurred after the last date for delivery Part A, Line 1, did not equal or exceed 100 promised on the order for service or bill of shipments. If completion of Part B is not re- lading. quired, sign the Certification and return the Line 12: Compute the percentage of those form to the Federal Motor Carrier Safety shipments where there was a claim filed Administration. within 60 days of the actual date of deliv- Line 4: Report only those C.O.D. shipments ery to the residence. Only count those where the order for service was signed claims where the dollar value of the after the receipt of a written binding esti- amount claimed by the shipper exceeded mate. Include in this computation all so- $200 and resulted from property damaged called hybrid estimates (e.g., Guaranteed or lost. This excludes claims for late Price and Price Protection options). pickups and deliveries which are reported Line 5: Report the total number of C.O.D. on line 13. shipments where the order for service was Line 13: Compute the percentage of those signed after the receipt of a written non- shipments where there was a claim filed binding estimate. In the case of non-bind- within 60 days of the actual date of deliv- ing estimates, the actual charges are de- ery to the residence. Only count those termined after the shipment has been claims where the dollar value of the picked up and weighed. amount claimed by the shipper exceeded Line 6: Report only those C.O.D. shipments $200 and resulted from a late pickup or de- where there was no requirement for the livery. Late pickups and deliveries are de- preparation of a binding or non-binding fined in Instructions 10 and 11. written estimate by the carrier. As with Line 14: Enter the average number of days non-binding estimates, the charges here required to pay, decline, or make a firm are determined after the shipment has compromise offer of settlement of all been picked up and weighed. claims exceeding $200 during the report Line 7: Sum of Lines 4, 5, and 6. The number year. For the purpose of this report, a of shipments reported on Line 7 should be claim shall be considered to be a ‘‘claim the same as those reported in Part A, Line filed’’ if it meets the criteria set forth in 1. Lines 11 and 12, and shall be considered as paid, declined, or compromised on the date COMPUTATION OF PERCENTAGES OR AVERAGES on which a written offer is mailed or deliv- You must determine the number of ship- ered in person to a claimant. ments falling into each of the categories de- Line 15: Compute the percentage of the scribed in Lines 8 and 9, respectively, and di- claims exceeding $200 arising out of the vide these shipments by the number of ship- transportation of shipments which were re- ments reported on Lines 4 and 5, respec- solved during the report year through the tively. use of a dispute resolution or arbitration You must determine the number of ship- procedure maintained or participated in by ments falling into each of the categories de- the carrier. scribed in Lines 10 through 16 and divide Line 16: Compute the percentage of the these shipments by the number of shipments claims exceeding $200 arising out of the reported on Line 7. (Exception: Line 13 is an transportation of shipments which were re- average, not a percentage.) solved during the report year as a result of

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legal notice of suit to recover being filed SOURCE: 44 FR 4681, Jan. 23, 1979, unless by the shipper. otherwise noted. Redesignated at 61 FR 54707, Oct. 21, 1996. [59 FR 2305, Jan. 14, 1994, as amended at 59 FR 34392, July 5, 1994; 62 FR 49941, Sept. 24, EDITORIAL NOTE: Nomenclature changes to 1997] part 376 appear at 66 FR 49871, Oct. 1, 2001.

§ 375.19 Use of charge card plans. Subpart A—General Applicability Motor common carriers of household and Definitions goods, as defined in 49 CFR 375.1(b)(1), may provide in their tariffs for the ac- § 376.1 Applicability. ceptance of charge cards for the pay- The regulations in this part apply to ment of freight charges whenever ship- the following actions by motor carriers ments are transported under agree- registered with the Secretary to trans- ments and tariffs requiring payment by port property: cash, certified check or money order. (a) The leasing of equipment with Payment by charge card shall be con- which to perform transportation regu- sidered the same as payment by cash, lated by the Secretary. certified check or money order. Any (b) The leasing of equipment to tariff rule or item permitting the ac- motor private carrier or shippers. (c) The interchange of equipment be- ceptance of charge cards shall identify tween motor common carriers in the the charge card plans participated in performance of transportation regu- by the carrier. lated by the Secretary. [46 FR 16218, Mar. 11, 1981. Redesignated at 61 [44 FR 4681, Jan. 23, 1979. Redesignated at 61 FR 54707, Oct. 21, 1996; 62 FR 49941, Sept. 24, FR 54707, Oct. 21, 1996, as amended at 62 FR 1997] 15423, Apr. 1, 1997] PART 376—LEASE AND § 376.2 Definitions. INTERCHANGE OF VEHICLES (a) Authorized carrier. A person or persons authorized to engage in the trans- Subpart A—General Applicability and portation of property as a motor car- Definitions rier under the provisions of 49 U.S.C. 13901 and 13902. Sec. (b) Equipment. A motor vehicle, 376.1 Applicability. straight truck, tractor, semitrailer, 376.2 Definitions. full trailer, any combination of these and any other type of equipment used Subpart B—Leasing Regulations by authorized carriers in the transpor- 376.11 General leasing requirements. tation of property for hire. 376.12 Written lease requirements. (c) Interchange. The receipt of equipment by one motor common carrier of Subpart C—Exemptions for the Leasing property from another such carrier, at Regulations a point which both carriers are authorized to serve, with which to continue a 376.21 General exemptions. through movement. 376.22 Exemption for private carrier leasing (d) Owner. A person (1) to whom title and leasing between authorized carriers. to equipment has been issued, or (2) 376.26 Exemption for leases between author- who, without title, has the right to ex- ized carriers and their agents. clusive use of equipment, or (3) who has lawful possession of equipment reg- Subpart D—Interchange Regulations istered and licensed in any State in the 376.31 Interchange of equipment. name of that person. (e) Lease. A contract or arrangement Subpart E—Private Carriers and Shippers in which the owner grants the use of equipment, with or without driver, for 376.42 Lease of equipment by regulated car- a specified period to an authorized carriers. rier for use in the regulated transpor- AUTHORITY: 49 U.S.C. 13301 and 14102; and 49 tation of property, in exchange for CFR 1.73. compensation.

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(f) Lessor. In a lease, the party grant- (b) Receipts for equipment. Receipts, ing the use of equipment, with or with- specifically identifying the equipment out driver, to another. to be leased and stating the date and (g) Lessee. In a lease, the party ac- time of day possession is transferred, quiring the use of equipment with or shall be given as follows: without driver, from another. (1) When possession of the equipment (h) Sublease. A written contract in is taken by the authorized carrier, it which the lessee grants the use of shall give the owner of the equipment a leased equipment, with or without receipt. The receipt identified in this driver, to another. section may be transmitted by mail, (i) Addendum. A supplement to an ex- telegraph, or other similar means of isting lease which is not effective until communication. signed by the lessor and lessee. (2) When possession of the equipment (j) Private carrier. A person, other by the authorized carrier ends, a re- than a motor carrier, transporting ceipt shall be given in accordance with property by motor vehicle in interstate the terms of the lease agreement if the or foreign commerce when (1) the person is the owner, lessee, or bailee of the lease agreement requires a receipt. property being transported; and (2) the (3) Authorized representatives of the property is being transported for sale, carrier and the owner may take posses- lease, rent, or bailment, or to further a sion of leased equipment and give and commercial enterprise. receive the receipts required under this (k) Shipper. A person who sends or re- subsection. ceives property which is transported in (c) Identification of equipment. The au- interstate or foreign commerce. thorized carrier acquiring the use of (l) Escrow fund. Money deposited by equipment under this section shall the lessor with either a third party or identify the equipment as being in its the lessee to guarantee performance, to service as follows: repay advances, to cover repair ex- (1) During the period of the lease, the penses, to handle claims, to handle li- carrier shall identify the equipment in cense and State permit costs, and for accordance with the FMCSA’s require- any other purposes mutually agreed ments in 49 CFR part 390 of this chap- upon by the lessor and lessee. ter (Identification of Vehicles). (m) Detention. The holding by a con- (2) Unless a copy of the lease is car- signor or consignee of a trailer, with or ried on the equipment, the authorized without power unit and driver, beyond carrier shall keep a statement with the the free time allocated for the ship- equipment during the period of the ment, under circumstances not attrib- lease certifying that the equipment is utable to the performance of the car- being operated by it. The statement rier. shall also specify the name of the [44 FR 4681, Jan. 23, 1979, as amended at 49 owner, the date and length of the lease, FR 47850, Dec. 7, 1984; 62 FR 15424, Apr. 1, any restrictions in the lease relative to 1997] the commodities to be transported, and the address at which the original lease Subpart B—Leasing Regulations is kept by the authorized carrier. This statement shall be prepared by the au- § 376.11 General leasing requirements. thorized carrier or its authorized rep- Other than through the interchange resentative. of equipment as set forth in § 376.31, (d) Records of equipment. The author- and under the exemptions set forth in ized carrier using equipment leased subpart C of these regulations, the au- under this section shall keep records of thorized carrier may perform author- the equipment as follows: ized transportation in equipment it (1) The authorized carrier shall pre- does not own only under the following pare and keep documents covering each conditions: trip for which the equipment is used in (a) Lease. There shall be a written its service. These documents shall con- lease granting the use of the equipment tain the name and address of the owner and meeting the requirements con- of the equipment, the point of origin, tained in § 376.12. the time and date of departure, and the

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point of final destination. Also, the au- carrier lessee as the owner of the thorized carrier shall carry papers with equipment for the purpose of sub- the leased equipment during its oper- leasing it under these regulations to ation containing this information and other authorized carriers during the identifying the lading and clearly indi- lease. cating that the transportation is under (3) When an authorized carrier of its responsibility. These papers shall be household goods leases equipment for preserved by the authorized carrier as the transportation of household goods, part of its transportation records. as defined by the Secretary, the parties Leases which contain the information may provide in the lease that the pro- required by the provisions in this para- visions required by paragraph (c)(1) of graph may be used and retained instead this section apply only during the time of such documents or papers. As to the equipment is operated by or for the lease agreements negotiated under a authorized carrier lessee. master lease, this provision is complied (4) Nothing in the provisions required with by having a copy of a master lease by paragraph (c)(1) of this section is in- in the unit of equipment in question tended to affect whether the lessor or and where the balance f documentation driver provided by the lessor is an inde- called for by this paragraph is included pendent contractor or an employee of in the freight documents prepared for the authorized carrier lessee. An inde- the specific movement. pendent contractor relationship may (2) [Reserved] exist when a carrier lessee complies [44 FR 4681, Jan. 23, 1979, as amended at 49 with 49 U.S.C. 14102 and attendant ad- FR 47269, Dec. 3, 1984; 49 FR 47850, Dec. 7, ministrative requirements. 1984; 50 FR 24649, June 12, 1985; 51 FR 37406, (d) Compensation to be specified. The Oct. 22, 1986; 62 FR 15424, Apr. 1, 1997] amount to be paid by the authorized § 376.12 Written lease requirements. carrier for equipment and driver’s services shall be clearly stated on the face Except as provided in the exemptions of the lease or in an addendum which is set forth in subpart C of this part, the attached to the lease. Such lease or ad- written lease required under § 376.11(a) dendum shall be delivered to the lessor shall contain the following provisions. prior to the commencement of any trip The required lease provisions shall be adhered to and performed by the au- in the service of the authorized carrier. thorized carrier. An authorized representative of the (a) Parties. The lease shall be made lessor may accept these documents. between the authorized carrier and the The amount to be paid may be ex- owner of the equipment. The lease pressed as a percentage of gross rev- shall be signed by these parties or by enue, a flat rate per mile, a variable their authorized representatives. rate depending on the direction trav- (b) Duration to be specific. The lease eled or the type of commodity trans- shall specify the time and date or the ported, or by any other method of com- circumstances on which the lease be- pensation mutually agreed upon by the gins and ends. These times or cir- parties to the lease. The compensation cumstances shall coincide with the stated on the lease or in the attached times for the giving of receipts re- addendum may apply to equipment and quired by § 376.11(b). driver’s services either separately or as (c) Exclusive possession and responsibil- a combined amount. ities. (1) The lease shall provide that (e) Items specified in lease. The lease the authorized carrier lessee shall have shall clearly specify which party is re- exclusive possession, control, and use sponsible for removing identification of the equipment for the duration of devices from the equipment upon the the lease. The lease shall further pro- termination of the lease and when and vide that the authorized carrier lessee how these devices, other than those shall assume complete responsibility painted directly on the equipment, will for the operation of the equipment for be returned to the carrier. The lease the duration of the lease. shall clearly specify the manner in (2) Provision may be made in the which a receipt will be given to the au- lease for considering the authorized thorized carrier by the equipment

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owner when the latter retakes posses- been lost or stolen, a letter certifying sion of the equipment upon termi- its removal will satisfy this require- nation of the lease agreement, if a re- ment. Until this requirement is com- ceipt is required at all by the lease. plied with, the carrier may withhold The lease shall clearly specify the re- final payment. The authorized carrier sponsibility of each party with respect may require the submission of addi- to the cost of fuel, fuel taxes, empty tional documents by the lessor but not mileage, permits of all types, tolls, fer- as a prerequisite to payment. Payment ries, detention and accessorial services, to the lessor shall not be made contin- base plates and licenses, and any un- gent upon submission of a bill of lading used portions of such items. The lease to which no exceptions have been shall clearly specify who is responsible taken. The authorized carrier shall not for loading and unloading the property set time limits for the submission by onto and from the motor vehicle, and the lessor of required delivery docu- the compensation, if any, to be paid for ments and other paperwork. this service. Except when the violation (g) Copies of freight bill or other form of results from the acts or omissions of freight documentation. When a lessor’s the lessor, the authorized carrier lessee revenue is based on a percentage of the shall assume the risks and costs of gross revenue for a shipment, the lease fines for overweight and oversize trail- must specify that the authorized car- ers when the trailers are pre-loaded, rier will give the lessor, before or at sealed, or the load is containerized, or the time of settlement, a copy of the when the trailer or lading is otherwise rated freight bill or a computer-gen- outside of the lessor’s control, and for erated document containing the same improperly permitted overdimension information, or, in the case of contract and overweight loads and shall reimburse the lessor for any fines paid by carriers, any other form of documenta- the lessor. If the authorized carrier is tion actually used for a shipment con- authorized to receive a refund or a taining the same information that credit for base plates purchased by the would appear on a rated freight bill. lessor from, and issued in the name of, When a computer-generated document the authorized carrier, or if the base is provided, the lease will permit lessor plates are authorized to be sold by the to view, during normal business hours, authorized carrier to another lessor the a copy of any actual document under- authorized carrier shall refund to the lying the computer-generated docu- initial lessor on whose behalf the base ment. Regardless of the method of plate was first obtained a prorated compensation, the lease must permit share of the amount received. lessor to examine copies of the car- (f) Payment period. The lease shall rier’s tariff or, in the case of contract specify that payment to the lessor carriers, other documents from which shall be made within 15 days after sub- rates and charges are computed, pro- mission of the necessary delivery docu- vided that where rates and charges are ments and other paperwork concerning computed from a contract of a contract a trip in the service of the authorized carrier, only those portions of the con- carrier. The paperwork required before tract containing the same information the lessor can receive payment is lim- that would appear on a rated freight ited to log books required by the De- bill need be disclosed. The authorized partment of Transportation and those carrier may delete the names of ship- documents necessary for the author- pers and consignees shown on the ized carrier to secure payment from freight bill or other form of docu- the shipper. In addition, the lease may mentation. provide that, upon termination of the (h) Charge-back items. The lease shall lease agreement, as a condition prece- clearly specify all items that may be dent to payment, the lessor shall re- initially paid for by the authorized car- move all identification devices of the rier, but ultimately deducted from the authorized carrier and, except in the lessor’s compensation at the time of case of identification painted directly payment or settlement, together with on equipment, return them to the car- a recitation as to how the amount of rier. If the identification device has each item is to be computed. The lessor

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shall be afforded copies of those docu- itemization of any deductions for cargo ments which are necessary to deter- or property damage made from any mine the validity of the charge. compensation of money owed to the (i) Products, equipment, or services from lessor. The written explanation and authorized carrier. The lease shall speci- itemization must be delivered to the fy that the lessor is not required to lessor before any deductions are made. purchase or rent any products, equip- (k) Escrow funds. If escrow funds are ment, or services from the authorized required, the lease shall specify: carrier as a condition of entering into (1) The amount of any escrow fund or the lease arrangement. The lease shall performance bond required to be paid specify the terms of any agreement in by the lessor to the authorized carrier which the lessor is a party to an equip- or to a third party. ment purchase or rental contract (2) The specific items to which the es- which gives the authorized carrier the crow fund can be applied. right to make deductions from the les- (3) That while the escrow fund is sor’s compensation for purchase or under the control of the authorized rental payments. carrier, the authorized carrier shall (j) Insurance. (1) The lease shall clear- provide an accounting to the lessor of ly specify the legal obligation of the any transactions involving such fund. authorized carrier to maintain insur- The carrier shall perform this account- ance coverage for the protection of the ing in one of the following ways: public pursuant to FMCSA regulations (i) By clearly indicating in individual under 49 U.S.C. 13906. The lease shall settlement sheets the amount and de- further specify who is responsible for scription of any deduction or addition providing any other insurance coverage made to the escrow fund; or for the operation of the leased equip- (ii) By providing a separate account- ment, such as bobtail insurance. If the ing to the lessor of any transactions in- authorized carrier will make a charge volving the escrow fund. This separate back to the lessor for any of this insur- accounting shall be done on a monthly ance, the lease shall specify the basis. amount which will be charged-back to (4) The right of the lessor to demand the lessor. to have an accounting for transactions (2) If the lessor purchases any insur- involving the escrow fund at any time. ance coverage for the operation of the (5) That while the escrow fund is leased equipment from or through the under the control of the carrier, the authorized carrier, the lease shall carrier shall pay interest on the escrow specify that the authorized carrier will fund on at least a quarterly basis. For provide the lessor with a copy of each purposes of calculating the balance of policy upon the request of the lessor. the escrow fund on which interest must Also, where the lessor purchases such be paid, the carrier may deduct a sum insurance in this manner, the lease equal to the average advance made to shall specify that the authorized car- the individual lessor during the period rier will provide the lessor with a cer- of time for which interest is paid. The tificate of insurance for each such pol- interest rate shall be established on icy. Each certificate of insurance shall the date the interest period begins and include the name of the insurer, the shall be at least equal to the average policy number, the effective dates of yield or equivalent coupon issue yield the policy, the amounts and types of on 91-day, 13-week Treasury bills as es- coverage, the cost to the lessor for tablished in the weekly auction by the each type of coverage, and the deduct- Department of Treasury. ible amount for each type of coverage (6) The conditions the lessor must for which the lessor may be liable. fulfill in order to have the escrow fund (3) The lease shall clearly specify the returned. At the time of the return of conditions under which deductions for the escrow fund, the authorized carrier cargo or property damage may be made may deduct monies for those obliga- from the lessor’s settlements. The tions incurred by the lessor which have lease shall further specify that the au- been previously specified in the lease, thorized carrier must provide the les- and shall provide a final accounting to sor with a written explanation and the lessor of all such final deductions

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made to the escrow fund. The lease (c) Equipment leased without drivers shall further specify that in no event from a person who is principally en- shall the escrow fund be returned later gaged in such a business. than 45 days from the date of termi- (d) Any type of trailer not drawn by nation. a power unit leased from the same les- (l) Copies of the lease. An original and sor. two copies of each lease shall be signed [44 FR 4681, Jan. 23, 1979. Redesignated at 61 by the parties. The authorized carrier FR 54707, Oct. 21, 1996, as amended at 62 FR shall keep the original and shall place 15424, Apr. 1, 1997] a copy of the lease on the equipment during the period of the lease unless a § 376.22 Exemption for private carrier statement as provided for in leasing and leasing between author- § 376.11(c)(2) is carried on the equipment ized carriers. instead. The owner of the equipment Regardless of the leasing regulations shall keep the other copy of the lease. set forth in this part, an authorized (m) This paragraph applies to owners carrier may lease equipment to or from who are not agents but whose equip- another authorized carrier, or a private ment is used by an agent of an author- carrier may lease equipment to an au- ized carrier in providing transportation thorized carrier under the following on behalf of that authorized carrier. In conditions: this situation, the authorized carrier is (a) The identification of equipment obligated to ensure that these owners requirements in § 376.11(c) must be com- receive all the rights and benefits due plied with; an owner under the leasing regulations, (b) The lessor must own the equip- especially those set forth in paragraphs ment or hold it under a lease; (d)–(k) of this section. This is true re- (c) There must be a written agree- gardless of whether the lease for the ment between the authorized carriers equipment is directly between the au- or between the private carrier and authorized carrier and its agent rather thorized carrier, as the case may be, than directly between the authorized concerning the equipment as follows: carrier and each of these owners. The (1) It must be signed by the parties or lease between an authorized carrier their authorized representatives. and its agent shall specify this obliga- (2) It must provide that control and tion. responsibility for the operation of the [44 FR 4681, Jan. 23, 1979, as amended at 45 equipment shall be that of the lessee FR 13092, Feb. 28, 1980; 47 FR 28398, June 30, from the time possession is taken by 1982; 47 FR 51140, Nov. 12, 1982; 47 FR 54083, the lessee and the receipt required Dec. 1, 1982; 49 FR 47851, Dec. 7, 1984; 51 FR under § 376.11(b) is given to the lessor 37406, 37407, Oct. 22, 1986; 52 FR 2412, Jan. 22, until: (i) Possession of the equipment is 1987; 57 FR 32905, July 24, 1992; 62 FR 15424, returned to the lessor and the receipt Apr. 1, 1997] required under § 376.11(b) is received by the authorized carrier; or (ii) in the Subpart C—Exemptions for the event that the agreement is between Leasing Regulations authorized carriers, possession of the equipment is returned to the lessor or § 376.21 General exemptions. given to another authorized carrier in Except for § 376.11(c) which requires an interchange of equipment. the identification of equipment, the (3) A copy of the agreement must be leasing regulations in this part shall carried in the equipment while it is in not apply to: the possession of the lessee. (a) Equipment used in substituted (4) Nothing in this section shall pro- motor-for-rail transportation of rail- hibit the use, by authorized carriers, road freight moving between points private carriers, and all other entities that are railroad stations and on rail- conducting lease operations pursuant road billing. to this section, of a master lease if a (b) Equipment used in transportation copy of that master lease is carried in performed exclusively within any com- the equipment while it is in the posses- mercial zone as defined by the Sec- sion of the lessee, and if the master retary. lease complies with the provisions of

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this section and receipts are exchanged (c) Through bills of lading. The traffic in accordance with § 376.11(b), and if transported in interchange service records of the equipment are prepared must move on through bills of lading and maintained in accordance with issued by the originating carrier. The § 376.11(d). rates charged and the revenues col- (d) Authorized and private carriers lected must be accounted for in the under common ownership and control same manner as if there had been no may lease equipment to each other interchange. Charges for the use of the under this section without complying interchanged equipment shall be kept with the requirements of paragraph (a) separate from divisions of the joint of this section pertaining to identifica- rates or the proportions of such rates tion of equipment, and the require- accruing to the carriers by the applica- ments of paragraphs (c)(2) and (c)(4) of tion of local or proportional rates. this section pertaining to equipment (d) Identification of equipment. The au- receipts. The leasing of equipment be- thorized common carrier receiving the tween such carriers will be subject to equipment shall identify equipment op- all other requirements of this section. erated by it in interchange service as follows: [49 FR 9570, Mar. 14, 1984, as amended at 49 (1) The authorized common carrier FR 47269, Dec. 3, 1984; 49 FR 47851, Dec. 7, shall identify power units in accord- 1984; 62 FR 15424, Apr. 1, 1997; 63 FR 40838, ance with the FMCSA’s requirements July 31, 1998] in 49 CFR part 390 of this chapter § 376.26 Exemption for leases between (Identification of Vehicles). Before giv- authorized carriers and their ing up possession of the equipment, the agents. carrier shall remove all identification showing it as the operating carrier. The leasing regulations set forth in (2) Unless a copy of the interchange § 376.12(e) through (l) do not apply to agreement is carried on the equipment, leases between authorized carriers and the authorized common carrier shall their agents. carry a statement with each vehicle [47 FR 28398, June 30, 1982, as amended at 62 during interchange service certifying FR 15424, Apr. 1, 1997] that it is operating the equipment. The statement shall also identify the equip- Subpart D—Interchange ment by company or State registration Regulations number and shall show the specific point of interchange, the date and time § 376.31 Interchange of equipment. it assumes responsibility for the equipment, and the use to be made of the Authorized common carriers may equipment. This statement shall be interchange equipment under the fol- signed by the parties to the inter- lowing conditions: change agreement or their authorized (a) Interchange agreement. There shall representatives. The requirements of be a written contract, lease, or other this paragraph shall not apply where arrangement providing for the inter- the equipment to be operated in interchange and specifically describing the change service consists only of trailers equipment to be interchanged. This or semitrailers. written agreement shall set forth the (3) Authorized carriers under com- specific points of interchange, how the mon ownership and control may inter- equipment is to be used, and the com- change equipment with each other pensation for such use. The inter- without complying with the require- change agreement shall be signed by ments of paragraph (d)(1) of this sec- the parties or by their authorized rep- tion pertaining to removal of identi- resentatives. fication from equipment. (b) Operating authority. The carriers (e) Connecting carriers considered as participating in the interchange shall owner—An authorized carrier receiving be registered with the Secretary to equipment in connection with a provide the transportaiton of the com- through movement shall be considered modities at the point where the phys- to the owner of the equipment for the ical exchange occurs. purpose of leasing the equipment to

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other authorized carriers in further- § 377.101 Applicability. ance of the movement to destination or The rules and regulations in this part the return of the equipment after the movement is completed. apply to the transportation by motor vehicle of c.o.d. shipments by all com- [44 FR 4681, Jan. 23, 1979. Redesignated at 61 mon carriers of property subject to 49 FR 54707, Oct. 21, 1996, as amended at 62 FR U.S.C. 13702, except such transpor- 15424, Apr. 1, 1997; 63 FR 40838, July 31, 1998] tation which is auxiliary to or supplemental of transportation by railroad Subpart E—Private Carriers and and performed on railroad bills of lad- Shippers ing, and except such transportation which is performed for freight for- § 376.42 Lease of equipment by regu- warders and on freight forwarder bills lated carriers. of lading. Authorized carriers may lease equipment and drivers from private carriers, [32 FR 20050, Dec. 20, 1967. Redesignated at 61 for periods of less than 30 days, in the FR 54708, Oct. 21, 1996, as amended at 62 FR manner set forth in § 376.22. 15424, Apr. 1, 1997] [49 FR 9570, Mar. 14, 1984, as amended at 51 § 377.103 Tariff requirements. FR 37034, Oct. 17, 1986; 62 FR 15424, Apr. 1, 1997] No common carrier of property subject to the provisions of 49 U.S.C. 13702, except as otherwise provided in PART 377—PAYMENT OF § 377.101, shall render any c.o.d. service TRANSPORTATION CHARGES unless such carrier has published, posted and filed tariffs which contain the Subpart A—Handling of C.O.D. Shipments rates, charges and rules governing such Sec. service, which rules shall conform to 377.101 Applicability. the regulations in this part. 377.103 Tariff requirements. [32 FR 20050, Dec. 20, 1967. Redesignated at 61 377.105 Collection and remittance. FR 54708, Oct. 21, 1996, as amended at 62 FR Subpart B—Extension of Credit to Shippers 15424, Apr. 1, 1997] by Motor Common Carriers, Water § 377.105 Collection and remittance. Common Carriers, and Household Goods Freight Forwarders Every common carrier of property subject to 49 U.S.C. 13702, except as 377.201 Scope. otherwise provided in § 377.101, which 377.203 Extension of credit to shippers. chooses to provide c.o.d. service may 377.205 Presentation of freight bills. publish and maintain, or cause to be 377.207 Effect of mailing freight bills or payments. published and maintained for its ac- 377.209 Additional charges. count, a tariff or tariffs which set forth 377.211 Computation of time. nondiscriminatory rules governing 377.213 [Reserved] c.o.d. service and the collection and re- 377.215 Household goods shipments by mittance of c.o.d. funds. Alternatively, motor common carriers. any carrier that provides c.o.d. service, 377.217 Interline settlement of revenues. but does not wish to publish and main- AUTHORITY: 49 U.S.C. 13101, 13301, 13701, tain, or cause to be published and 13702, 13706, 13707, and 14101; and 49 CFR 1.73. maintained, its own nondiscriminatory EDITORIAL NOTE: Nomenclature changes to tariff, may adopt a rule requiring re- part 377 appear at 66 FR 49871, Oct. 1, 2001. mittance of each c.o.d. collection directly to the consignor or other person Subpart A—Handling of C.O.D. designated by the consignor as payee Shipments within fifteen (15) days after delivery of the c.o.d. shipment to the consignee.

SOURCE: 32 FR 20050, Dec. 20, 1967, unless [52 FR 45966, Dec. 3, 1987, as amended at 62 otherwise noted. Redesignated at 61 FR 54708, FR 15424, Apr. 1, 1997] Oct. 21, 1996.

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Subpart B—Extension of Credit to lished by tariff publication pursuant to Shippers by Motor Common paragraph (d) of this section, the credit Carriers, Water Common Car- period is 15 days. It includes Saturdays, Sundays, and legal holidays. riers, and Household Goods (d) Carriers may establish different Freight Forwarders credit periods in tariff rules. Carriers may publish tariff rules establishing SOURCE: 50 FR 2290, Jan 16, 1985, unless oth- credit periods different from those in erwise noted. Redesignated at 61 FR 54709, paragraph (c) of this section. Such Oct. 21, 1996. credit periods shall not be longer than 30 calendar days. § 377.201 Scope. (e) Service charges. (1) Service charges (a) General. These regulations apply shall not apply when credit is extended to the extension of credit in the trans- and payments are made within the portation of property under Federal standard credit period. The term Motor Carrier Safety Administration standard credit period, as used in the regulation by motor carriers and preceding sentence, means— household goods freight forwarders, ex- (i) The credit period prescribed in cept as otherwise provided. paragraph (c) of this section, or (b) Exceptions. These regulations do (ii) A substitute credit period pub- not apply to— lished in a tariff rule pursuant to the (1) Contract carriage operations. authorization in paragraph (d) of this (2) Transportation for— section. (i) The United States or any depart- (2) Carriers may, by tariff rule, ex- ment, bureau, or agency thereof, tend credit for an additional time pe- (ii) Any State, or political subdivi- riod, subject if they wish to a service sion thereof, charge for that additional time. The (iii) The District of Columbia. combined length of the carrier’s stand- (3) Property transportation inci- ard credit period (as defined in para- dental to passenger operations. graph (e)(1) of this section) and its ad- [50 FR 2290, Jan. 16, 1985, as amended at 51 ditional credit period shall not exceed FR 44297, Dec. 9, 1986; 62 FR 15424, Apr. 1, the 30-day maximum credit period pre- 1997] scribed in paragraph (d) of this section. When such a tariff rule is in effect, § 377.203 Extension of credit to ship- shippers may elect to postpone pay- pers. ment until the end of the extended (a) Authorization to extend credit. (1) A credit period if, in consideration there- carrier that meets the requirements in for, they include any published service paragraph (a)(2) of this section may— charges when making their payment. (i) Relinquish possession of freight in (3) Carriers may, by tariff rule, estab- advance of the payment of the tariff lish service charges for payments made charges, and after the expiration of an authorized (ii) Extend credit in the amount of credit period. Such a rule shall— such charges to those who undertake (i) Institute such charges on the day to pay them (such persons are called following the last day of an authorized shippers in this part). credit period, and (2) For such authorization, the car- (ii) Notify shippers— rier shall take reasonable actions to (A) That its only purpose is to pre- assure payment of the tariff charges vent a shipper who does not pay on within the credit periods specified— time from having free use of funds due (i) In this part, or to the carrier, (ii) In tariff provisions published pur- (B) That it does not sanction pay- suant to the regulations in paragraph ment delays, and (d) of this section. (C) That failure to pay within the au- (b) When the credit period begins. The thorized credit period will, despite this credit period shall begin on the day fol- provision for such charges, continue to lowing presentation of the freight bill. require the carrier, before again ex- (c) Length of credit period. Unless a tending credit, to determine in good different credit period has been estab- faith whether the shipper will comply

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with the credit regulations in the fu- sought for collection on past shipments ture. by a bankruptcy trustee, or any other (4) Tariff rules that establish charges person or agent; pursuant to paragraph (e) (2) or (3) of (iv) Shall not apply to instances of this section may establish minimum clear clerical or ministerial error such charges. as non-receipt of a carrier’s freight (f) Discounts. Carriers may, by tariff bill, or shipper’s payment check lost in rule, authorize discounts for early the mail, or carrier mailing of the freight bill payments when credit is ex- freight bill to the wrong address; tended. (v) Shall not apply in any way to a (g)(1) Collection expense charges. Car- charge for a transportation service if riers may, by tariff rule, assess reason- the carrier’s bill of lading independ- able and certain liquidated damages for ently provides that the shipper is liable all costs incurred in the collection of for fees incurred by the carrier in the overdue freight charges. Carriers may collection of freight charges on that use one of two methods in their tariffs: same transportation service; (i) The first method is to assess liq- (vi) shall be applied only after the uidated damages as a separate addi- authorized credit period, and when the tional charge to the unpaid freight bill. carrier has issued a revised freight bill In doing so, the tariff rule shall dis- or notice of imposition of collection ex- close the exact amount of the charges pense charges for late payment within by stating either a dollar or specified 90 days after expiration of the author- percentage amount (or a combination ized credit period. of both) of the unpaid freight bill. The (3) As an alternative to the tariff-rule tariff shall further specify the time pe- methods allowed under paragraphs riod (which shall at least allow for the (g)(1) (i) and (ii) of this section, a car- authorized credit period) within which rier may, wholly outside of its tariff, the shipper must pay to avoid such liq- assess collection charges though con- uidated damages. tract terms in a bill of lading. By using (ii) The second method is to require the carrier and its bill of lading, the payment of the full, nondiscounted shipper accepts the bill of lading rate instead of the discounted rate oth- terms. erwise applicable. The difference be- (h) Discrimination prohibited. Tariff tween the discount and the full rate rules published pursuant to paragraphs constitutes a carrier’s liquidated dam- (d), (e), and (f) of this section shall not ages for its collection effort. Under this result in unreasonable discrimination method the tariff shall identify the dis- among shippers. count rates that are subject to the condition precedent and which require the [50 FR 2290, Jan 16, 1985, as amended at 53 FR shipper to make payment by a date 6991, Mar. 4, 1988; 54 FR 30748, July 24, 1989] certain. The date certain may not be § 377.205 Presentation of freight bills. set to occur by the carrier until at least after the expiration of the car- (a) ‘‘To be prepaid’’ shipments. (1) On rier’s authorized credit period. ‘‘to be prepaid’’ shipments, the carrier (2) The damages, the timing of their shall present its freight bill for all applicability, and the conditions, if transportation charges within the time any, as provided by the tariff-rule period prescribed in paragraph (a)(2) of methods allowed under paragraphs this section, except— (g)(1) (i) and (ii) of this section also: (i) As noted in paragraph (d) of this (i) Shall be clearly described in the section, or tariff rule; (ii) As otherwise excepted in this (ii) Shall be applied without unlawful part. prejudice and/or unjust discrimination (2) The time period for a carrier to between similarly situated shippers present its freight bill for all transpor- and/or consignees; tation charges shall be 7 days, meas- (iii) Shall be applied only to the non- ured from the date the carrier received payment of original, separate and inde- the shipment. This time period does pendent freight bills and shall not not include Saturdays, Sundays, or apply to aggregate balance-due claims legal holidays.

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(b) ‘‘Collect’’ shipments. (1) On § 377.207 Effect of mailing freight bills ‘‘collect’’ shipments, the carrier shall or payments. present its freight bill for all transpor- (a) Presentation of freight bills by mail. tation charges within the time period When carriers present freight bills by prescribed in paragraph (b)(2) and of mail, the time of mailing shall be this section, except— deemed to be the time of presentation (i) As noted in paragraph (d) of this of the bills. The term freight bills, as section, or used in this paragraph, includes both (ii) As otherwise excepted in this paper documents and billing by use of part. electronic media such as computer (2) The time period for a carrier to tapes or disks, when the mails are used present its freight bill for all transpor- to transmit them. tation charges shall be 7 days, meas- (b) Payment by mail. Wnen shippers ured from the date the shipment was mail acceptable checks, drafts, or delivered at its destination. This time money orders in payment of freight period does not include Saturdays, charges, the act of mailing them with- Sundays, or legal holidays. in the credit period shall be deemed to (c) Bills or accompanying written no- be the collection of the tariff charges tices shall state penalties for late pay- within the credit period for the pur- ment, credit time limits and service charge poses of the regulations in this part. and/or collection expense charge and dis- (c) Disputes as to date of mailing. In count terms. When credit is extended, case of dispute as to the date of mail- freight bills or a separate written no- ing, the postmark shall be accepted as tice accompanying a freight bill or a such date. group of freight bills presented at one time shall state that ‘‘failure timely to § 377.209 Additional charges. pay freight charges may be subject to When a carrier— tariff penalties’’ (or a statement of similar import). The bills or other no- (a) Has collected the amount of tariff tice shall also state the time by which charges represented in a freight bill payment must be made and any appli- presented by it as the total amount of cable service charge and/or collection such charges, and expense charge and discount terms. (b) Thereafter presents to the shipper (d) When the carrier lacks sufficient in- another freight bill for additional formation to compute tariff charges. (1) charges— When information sufficient to enable the carrier may extend credit in the the carrier to compute the tariff amount of such additional charges for charges is not then available to the a period of 30 calendar days from the carrier at its billing point, the carrier date of the presentation of the freight shall present its freight bill for pay- bill for the additional charges. ment within 7 days following the day upon which sufficient information be- § 377.211 Computation of time. comes available at the billing point. Time periods involving calendar days This time period does not include Sat- shall be calculated pursuant to 49 CFR urdays, Sundays, or legal holidays. 386.32(a). (2) A carrier shall not extend further credit to any shipper which fails to fur- [50 FR 2290, Jan 16, 1985. Redesignated at 61 nish sufficient information to allow the FR 54709, Oct. 21, 1996, as amended at 62 FR 15424, Apr. 1, 1997] carrier to render a freight bill within a reasonable time after the shipment is § 377.213 [Reserved] tendered to the origin carrier. (3) As used in this paragraph, the § 377.215 Household goods shipments term ‘‘shipper’’ includes, but is not by motor common carriers. limited to, freight forwarders, and (a) Exceptions—Household goods shippers’ associations and shippers’ ‘‘collect on delivery’’ shipments. The reg- agents. ulations in the other sections of this [50 FR 2290, Jan 16, 1985, as amended at 54 FR part and in paragraph (c) of this sec- 30748, July 24, 1989; 62 FR 15424, Apr. 1, 1997] tion do not apply when the carrier is

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required by 49 CFR 375.3(d) to relin- tions prescribed by the FMCSA for the quish possession of an otherwise settlement of carrier rates and charges. ‘‘collect on delivery’’ household goods [50 FR 2290, Jan 16, 1985. Redesignated at 61 shipment in advance of payment of all FR 54709, Oct. 21, 1996, as amended at 62 FR of the charges. 15424, Apr. 1, 1997] (b) Charge card reversed transactions. The regulations of this part apply § 377.217 Interline settlement of reve- when— nues. (1) Charges for household goods Nothing in this part shall be inter- movements are paid by use of charge preted as affecting the interline settle- cards pursuant to 49 CFR 375.19, and ment of revenues from traffic which is (2) The shipper forces an involuntary transported over through routes com- extension of credit by the carrier by posed of lines of common carriers sub- causing the charge card issuer to reject to the Secretary’s jurisdiction verse the charge transaction and under 49 U.S.C. subtitle IV, part B. charge payments back to the carrier’s [50 FR 2290, Jan 16, 1985. Redesignated at 61 account. FR 54709, Oct. 21, 1996, as amended at 62 FR (c) Exceptions—House goods credit ship- 15424, Apr. 1, 1997] ments. The provisions in paragraphs (c) (1) through (3) of this section are excep- PART 378—PROCEDURES GOV- tions to the other regulations in this ERNING THE PROCESSING, IN- part. They apply to credit extensions VESTIGATION, AND DISPOSITION for household goods transportation by OF OVERCHARGE, DUPLICATE motor common carriers (except as pro- PAYMENT, OR OVERCOLLECTION vided in paragraph (a) of this section)— CLAIMS (1) A freight bill shall be presented within 15 days (excluding Saturdays, Sec. Sundays, and legal holidays) of the 378.1 Applicability. date of delivery of a shipment at its 378.2 Definitions. destination. 378.3 Filing and processing claims. (2) The credit period is 7 days 378.4 Documentation of claims. (excluding Saturdays, Sundays, and 378.5 Investigation of claims. legal holidays). 378.6 Claim records. 378.7 Acknowledgment of claims. (3) Motor Common carriers of house- 378.8 Disposition of claims. hold goods must provide in their tariffs 378.9 Disposition of unidentified payments, that— overcharges, duplicate payments, and (i) The credit period shall automati- overcollections not supported by claims.

cally be extended to a total of 30 cal- AUTHORITY: 49 U.S.C. 13321, 14101, 14704 and endar days for any shipper who has not 14705; and 49 CFR 1.73. paid the carrier’s freight bill within SOURCE: 43 FR 41040, Sept. 14, 1978, unless the 7-day period. otherwise noted. Redesignated at 61 FR 54707, (ii) Such shipper will be assessed a Oct. 21, 1996. service charge by the carrier equal to 1 percent of the amount of the freight § 378.1 Applicability. bill, subject to a $10 minimum charge, The regulations set forth in this part for such extension of the credit period, govern the processing of claims for and overcharge, duplicate payment, or (iii) No such carrier shall grant cred- overcollection for the transportation of it to any shipper who fails to pay a property in interstate or foreign com- duly presented freight bill within the merce by motor common carriers and 30-day period, unless and until such household goods freight forwarders shipper affirmatively satisfies the car- subject to 49 U.S.C. subtitle IV, part B. rier that all future freight bills duly [43 FR 41040, Sept. 14, 1978, as amended at 51 presented will be paid strictly in ac- FR 44297, Dec. 9, 1986; 62 FR 15424, Apr. 1, cordance with the rules and regula- 1997]

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§ 378.2 Definitions. that carrier shall transmit the claim to (a) Carrier means a motor common the collecting carrier within 15 days carrier or household goods freight for- after receipt of the claim. If the col- warder subject to 49 U.S.C. subtitle IV, lecting carrier is unable to dispose of part B. the claim for any reason, the claim (b) Overcharge means an overcharge may be filed with or transferred to any as defined in 49 U.S.C. 14704(b). It also participating carrier for final disposi- includes duplicate payments as defined tion. in paragraph (c) of this section and (b) A single claim may include more overcollections as defined in paragraph than one shipment provided the claim (d) of this section when a dispute exists on each shipment involves: (1) The same tariff issue or authority between the parties concerning such or circumstances, charges. (2) Single line service by the same (c) Duplicate payment means two or carrier, or more payments for transporting the (3) Service by the same interline car- same shipment. Where one or more riers. payment is not in the exact amount of the applicable tariff rates and charges, [43 FR 41040, Sept 14, 1978, as amended at 47 refunds shall be made on the basis of FR 12804, Mar. 25, 1982] the excess amount over the applicable tariff rates and charges. § 378.4 Documentation of claims. (d) Overcollection means the receipt (a) Claims for overcharge, duplicate by a household goods carrier of a pay- payment, or overcollection shall be ac- ment in excess of the transportation companied by sufficient information to and/or accessorial charges applicable to allow the carriers to conduct an inves- a particular shipment of household tigation and pay or decline the claim goods, as defined in part 375 of this within the time limitations set forth in chapter, under tariffs lawfully on file § 378.8. Claims shall include the name of with the United States Department of the claimant, its file number, if any, Transportation’s Surface Transpor- and the amount of the refund sought to tation Board. be recovered, if known. (e) Unidentified payment means a pay- (b) Except when the original freight ment which a carrier has received but bill is not a paper document but is elec- which the carrier is unable to match tronically transmitted, claims for with its open accounts receivable or overcharge shall be accompanied by otherwise identify as being due for the the original freight bill. Additional in- performance of transportation services. formation may include, but is not lim- (f) Claimant means any shipper or re- ited to, the following: ceiver, or its authorized agent, filing a (1) The rate, classification, or com- request with a carrier for the refund of modity description or weight claimed an overcharge, duplicate payment, or to have been applicable. overcollection. (2) Complete tariff authority for the [43 FR 41040, Sept. 14, 1978, as amended at 44 rate, classification, or commodity de- FR 66832, Nov. 21, 1979; 51 FR 34989, Oct. 1, scription claimed. 1986; 51 FR 44297, Dec. 9, 1986; 62 FR 15424, (3) Freight bill payment information. Apr. 1, 1997] (4) Other documents or data which is believed by claimant to substantiate § 378.3 Filing and processing claims. the basis for its claim. (a) A claim for overcharge, duplicate (c) Claims for duplicate payment and payment, or overcollection shall not be overcollection shall be accompanied by paid unless filed in writing or elec- the original freight bill(s) for which tronically communicated (when agreed charges were paid (except when the to by the carrier and shipper or re- original freight bill is not a paper docu- ceiver involved) with the carrier that ment but is electronically transmitted) collected the transportation charges. and by freight bill payment informa- The collecting carrier shall be the car- tion. rier to process all such claims. When a (d) Regardless of the provisions of claim is filed with another carrier that paragraphs (a), (b), and (c) of this sec- participated in the transportation, tion, the failure to provide sufficient

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information and documentation to the carrier shall also note that number allow a carrier to conduct an investiga- on the shipping order and delivery re- tion and pay or decline the claim with- ceipt, if any, covering the shipment in- in the allowable time limitation shall volved. not constitute grounds for disallow- [47 FR 12804, Mar. 25, 1982, as amended at 62 ance of the claim. Rather, the carrier FR 15425, Apr. 1, 1997] shall comply with § 378.5(c) to obtain the additional information required. § 378.7 Acknowledgment of claims. (e) A carrier shall accept copies in- Upon receipt of a written or elec- stead of the orginal documents re- tronically transmitted claim, the car- quired to be submitted in this section rier shall acknowledge its receipt in where the carrier is furnished with an writing or electronically to the claim- agreement entered into by the claimant within 30 days after the date of re- ant which indemnifies the carrier for ceipt except when the carrier shall subsequent duplicate claims which have paid or declined in writing or might be filed and supported by the electronically within that period. The original documents. carrier shall include the date of receipt [43 FR 41040, Sept. 14, 1978, as amended at 44 in its written or electronic claim which FR 4679, Jan. 23, 1979; 47 FR 12804, Mar. 25, shall be placed in the file for that 1982; 62 FR 15424, Apr. 1, 1997] claim. § 378.5 Investigation of claims. [47 FR 12804, Mar. 25, 1982] (a) Upon receipt of a claim, whether § 378.8 Disposition of claims. written or otherwise, the processing carrier shall promptly initiate an in- The processing carrier shall pay, de- vestigation and establish a file, as re- cline to pay, or settle each written or quired by § 378.6. electronically communicated claim (b) If a carrier discovers an over- within 60 days after its receipt by that charge, duplicate payment, or over- carrier, except where the claimant and collection which has not been the sub- the carrier agree in writing or elec- ject of a claim, it shall promptly ini- tronically to a specific extension based tiate an investigation and comply with upon extenuating circumstances. If the the provisions in § 378.9. carrier declines to pay a claim or (c) In the event the carrier processing makes settlement in an amount dif- the claim requires information or doc- ferent from that sought, the carrier uments in addition to that submitted shall notify the claimant in writing or with the claim, the carrier shall electronically, of the reason(s) for its promptly notify the claimant and reaction, citing tariff authority or other quest the information required. This pertinent information developed as a includes notifying the claimant that a result of its investigation. written or electronically transmitted [47 FR 12804, Mar. 25, 1982] claim must be filed before the carrier becomes subject to the time limits for § 378.9 Disposition of unidentified pay- settling such a claim under § 378.8. ments, overcharges, duplicate pay- [43 FR 41040, Sept. 14, 1978, as amended at 47 ments, and overcollections not sup- FR 12804, Mar. 25, 1982; 62 FR 15424, 15425, ported by claims. Apr. 1, 1997] (a)(1) Carriers shall establish procedures for identifying and properly ap- § 378.6 Claim records. plying all unidentified payments. If a At the time a claim is received the carrier does not have sufficient infor- carrier shall create a separate file and mation with which properly to apply assign it a successive claim file number such a payment, the carrier shall no- and note that number on all documents tify the payor of the unidentified pay- filed in support of the claim and all ment within 60 days of receipt of the records and correspondence with re- payment and request information spect to the claim, including the writ- which will enable it to identify the ten or electronic acknowledgment of payment. If the carrier does not receive receipt required under § 378.7. If perti- the information requested within 90 nent to the disposition of the claim, days from the date of the notice, the

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carrier may treat the unidentified pay- from the date of such discovery or noti- ment as a payment in fact of freight fication. charges owing to it. Following the 90- [43 FR 41040, Sept. 14, 1978, as amended at 44 day period, the regular claims proce- FR 66832, Nov. 21, 1979] dure under this part shall be applicable. (2) Notice shall be in writing and PART 379—PRESERVATION OF clearly indicate that it is a final notice RECORDS and not a bill. Notice shall include: The check number, amount, and date; the Sec. 379.1 Applicability. payor’s name; and any additional basic 379.3 Records required to be retained. information the carrier is able to pro- 379.5 Protection and storage of records. vide. The final notice also must inform 379.7 Preservation of records. payor that: (i) Applicable regulations 379.9 Companies going out of business. allow the carrier to conditionally re- 379.11 Waiver of requirements of the regula- tain the payment as revenue in the ab- tions in this part. 379.13 Disposition and retention of records. sence of a timely response by the payor; and (ii) following the 90-day pe- APPENDIX A TO PART 379—SCHEDULE OF RECORDS AND PERIODS OF RETENTION riod the regular claims procedure shall be applicable. AUTHORITY: 49 U.S.C. 13301, 14122 and 14123; (3) Upon a carrier’s receipt of infor- and 49 CFR 1.73. mation from the payor, the carrier SOURCE: 62 FR 32044, June 12, 1997, unless shall, within 14 days: (i) Make a com- otherwise noted. plete refund of such funds to the payor; EDITORIAL NOTE: Nomenclature changes to or (ii) notify the payor that the infor- part 379 appear at 66 FR 49871, Oct. 1, 2001. mation supplied is not sufficient to identify the unapplied payment and re- § 379.1 Applicability. quest additional information; or (iii) (a) The preservation of record rules notify the payor of the carrier’s deter- contained in this part shall apply to mination that such payment was appli- the following: cable to particular freight charges law- (1) Motor carriers and brokers; fully due the carrier. Where no refund (2) Water carriers; and is made by the carrier, the carrier shall (3) Household goods freight for- advise the payor of its right to file a warders. formal claim for refund with the car- (b) This part applies also to the pres- rier in accordance with the regular ervation of accounts, records and claims procedure under this part. memoranda of traffic associations, (b) When a carrier which participates weighing and inspection bureaus, and in a transportation movement, but did other joint activities maintained by or not collect the transporation charges, on behalf of companies listed in para- finds that an overpayment has been graph (a) of this section. made, that carrier shall immediately notify the collecting carrier. When the § 379.3 Records required to be re- collecting carrier (when single or joint tained. line haul) discovers or is notified by Companies subject to this part shall such a participating carrier that an retain records for the minimum reten- overcharge, duplicate payment, or tion periods provided in appendix A to overcollection exists for any this part. After the required retention tranportation charge which has not periods, the records may be destroyed been the subject of a claim, the carrier at the discretion of each company’s shall create a file as if a claim had management. It shall be the obligation been submitted and shall record in the of the subject company to maintain file the date it discovered or was noti- records that adequately support finan- fied of the overpayment. The carrier cial and operational data required by that collected the charges shall then the Secretary. The company may re- refund the amount of the overpayment quest a ruling from the Secretary on to the person who paid the transpor- the retention of any record. The provi- tation charges or to the person that sions of this part shall not be con- made duplicate payment within 30 days strued as excusing compliance with the

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lawful requirements of any other gov- maintained on the medium for ref- ernmental body prescribing longer re- erence. tention periods for any category of records. § 379.9 Companies going out of business. § 379.5 Protection and storage of The records referred to in the regula- records. tions in this part may be destroyed (a) The company shall protect after business is discontinued and the records subject to this part from fires, company is completely liquidated. The floods, and other hazards, and safe- records may not be destroyed until dis- guard the records from unnecessary ex- solution is final and all pending trans- posure to deterioration from excessive actions and claims are completed. humidity, dryness, or lack of ventila- When a company is merged with an- tion. other company under jurisdiction of (b) The company shall notify the Sec- the Secretary, the successor company retary if prescribed records are sub- shall preserve records of the merged stantially destroyed or damaged before company in accordance with the regu- the term of the prescribed retention pe- lations in this part. riods. § 379.11 Waiver of requirements of the § 379.7 Preservation of records. regulations in this part. (a) All records may be preserved by A waiver from any provision of the any technology that is immune to al- regulations in this part may be made teration, modification, or erasure of the underlying data and will enable by the Secretary upon his/her own ini- production of an accurate and tiative or upon submission of a written unaltered paper copy. request by the company. Each request (b) Records not originally preserved for waiver shall demonstrate that un- on hard copy shall be accompanied by a usual circumstances warrant a depar- statement executed by a person having ture from prescribed retention periods, personal knowledge of the facts indi- procedures, or techniques, or that com- cating the type of data included within pliance with such prescribed require- the records. One comprehensive statements would impose an unreasonable ment may be executed in lieu of indi- burden on the company. vidual statements for multiple records if the type of data included in the mul- § 379.13 Disposition and retention of records. tiple records is common to all such records. The records shall be indexed The schedule in appendix A to this and retained in such a manner as will part shows periods that designated render them readily accessible. The records shall be preserved. The descrip- company shall have facilities available tions specified under the various gen- to locate, identify and produce legible eral headings are for convenient ref- paper copies of the records. erence and identification, and are in- (c) Any significant characteristic, tended to apply to the items named re- feature or other attribute that a par- gardless of what the records are called ticular medium will not preserve shall in individual companies and regardless be clearly indicated at the beginning of of the record media. The retention pe- the applicable records as appropriate. riods represent the prescribed number (d) The printed side of forms, such as of years from the date of the document instructions, need not be preserved for and not calendar years. Records not each record as long as the printed mat- listed in appendix A to this part shall ter is common to all such forms and an be retained as determined by the man- identified specimen of the form is agement of each company.

APPENDIX A TO PART 379—SCHEDULE OF RECORDS AND PERIODS OF RETENTION

Item and category of records Retention period

A. Corporate and General 1. Incorporation and reorganization: (a) Charter or certificate of incorporation and amendments ...... Note A.

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Item and category of records Retention period

(b) Legal documents related to mergers, consolidations, reorganization, re- Note A. ceiverships and similar actions which affect the identity or organization of the company. 2. Minutes of Directors, Executive Committees, Stockholders and other corporate Note A. meetings. 3. Titles, franchises and authorities: (a) Certificates of public convenience and necessity issued by regulating bod- Until expiration or cancellation. ies. (b) Operating authorizations and exemptions to operate ...... Until expiration or cancellation. (c) Copies of formal orders of regulatory bodies served upon the company .... Note A. (d) Deeds, charters, and other title papers ...... Until disposition of property. (e) Patents and patent records ...... Note A. 4. Annual reports or statements to stockholders ...... 3 years. 5. Contracts and agreements: (a) Service contracts, such as for operational management, accounting, fi- Until expiration or termination plus 3 years. nancial or legal services, and agreements with agents. (b) Contracts and other agreements relating to the construction, acquisition Until expiration or termination plus 3 years. or sale of real property and equipment except as otherwise provided in (a) above. (c) Contracts for the purchase or sale of material and supplies except as pro- Until expiration. vided in (a) above. (d) Shipping contracts for transportation or caretakers of freight ...... Until expiration. (e) Contracts with employees and employee bargaining groups ...... Until expiration. (f) Contracts, leases and agreements, not specifically provided for in this sec- Until expiration or termination plus 1 year. tion. 6. Accountant’s auditor’s, and inspector’s reports: (a) Certifications and reports of examinations and audits conducted by public 3 years. accountants. (b) Reports of examinations and audits conducted by internal auditors, time 3 years. inspectors, and others. 7. Other ...... Note A. B. Treasury 1. Capital stock records: (a) Capital stock ledger ...... Note A. (b) Capital stock certificates, records of or stubs of ...... Note A. (c) Stock transfer register ...... Note A. 2. Long-term debt records: (a) Bond indentures, underwritings, mortgages, and other long-term credit Until redemption plus 3 years. agreements. (b) Registered bonds and debenture ledgers ...... Until redemption plus 3 years. (c) Stubs or similar records of bonds or other long-term debt issued ...... Note A. 3. Authorizations from regulatory bodies for issuance of securities including appli- Note A. cations, reports, and supporting papers. 4. Records of securities owned, in treasury, or held by custodians, detailed ledg- Until the securities are sold, redeemed or ers and journals, or their equivalent. otherwise disposed of. 5. Other ...... Note A. C. Financial and Accounting 1. Ledgers: (a) General and subsidiary ledgers with indexes ...... Until discontinuance of use plus 3 years. (b) Balance sheets and trial balance sheets of general and subsidiary ledgers 3 years. 2. Journals: (a) General journals ...... Until discontinuance of use plus 3 years. (b) Subsidiary journals and any supporting data, except as otherwise pro- 3 years. vided for, necessary to explain journal entries. 3. Cash books: (a) General cash books ...... Until discontinuance of use plus 3 years. (b) Subsidiary cash books ...... 3 years. 4. Vouchers: (a) Voucher registers, indexes, or equivalent ...... 3 years. (b) Paid and canceled vouchers, expenditure authorizations, detailed distribu- 3 years. tion sheets and other supporting data including original bills and invoices, if not provided for elsewhere. (c) Paid drafts, paid checks, and receipts for cash paid out ...... 3 years. 5. Accounts receivable: (a) Record or register of accounts receivable, indexes thereto, and sum- 3 years after settlement. maries of distribution. (b) Bills issued for collection and supporting data ...... 3 years after settlement. (c) Authorization for writing off receivables ...... 1 year. (d) Reports and statements showing age and status of receivables ...... 1 year. 6. Records of accounting codes and instructions ...... 3 years after discontinuance. 7. Other ...... Note A.

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Item and category of records Retention period

D. Property and Equipment Note.—All accounts, records, and memoranda necessary for making a complete analysis of the cost or value of property shall be retained for the periods shown. If any of the records elsewhere provided for in this schedule are of this character, they shall be retained for the periods shown below, regardless of any lesser retention period assigned. 1. Property records: (a) Records which maintain complete information on cost or other value of all 3 years after disposition of property. real and personal property or equipment. (b) Records of additions and betterments made to property and equipment ... 3 years after disposition of property. (c) Records pertaining to retirements and replacements of property and 3 years after disposition of property. equipment. (d) Records pertaining to depreciation ...... 3 years after disposition of property. (e) Records of equipment number changes ...... 3 years after disposition of property. (f) Records of motor and engine changes ...... 3 years after disposition of property. (g) Records of equipment lightweighed and stenciled ...... Only current or latest records. 2. Engineering records of property changes actually made ...... 3 years after disposition of property. 3. Other ...... Note A. E. Personnel and Payroll 1. Personnel and payroll records ...... 1 year. F. Insurance and Claims 1. Insurance records: (a) Schedules of insurance against fire, storms, and other hazards and Until expiration plus 1 year. records of premium payments. (b) Records of losses and recoveries from insurance companies and sup- 1 year after settlement. porting papers. (c) Insurance policies ...... Until expiration of coverage plus 1 year. 2. Claims records: (a) Claim registers, card or book indexes, and other records which record 1 year after settlement. personal injury, fire and other claims against the company, together with all supporting data. (b) Claims registers, card or book indexes, and other records which record 1 year after settlement. overcharges, damages, and other claims filed by the company against others, together with all supporting data. (c) Records giving the details of authorities issued to agents, carriers, and 3 years. others for participation in freight claims. (d) Reports, statements and other data pertaining to personal injuries or 3 years. damage to property when not necessary to support claims or vouchers. (e) Reports, statements, tracers, and other data pertaining to unclaimed, 1 year. over, short, damaged, and refused freight, when not necessary to support claims or vouchers. (f) Authorities for disposal of unclaimed, damaged, and refused freight ...... 3 years. 3. Other ...... Note A. G. Taxes 1. Taxes...... Note A. H. Purchases and Stores 1. Purchases and stores...... Note A. I. Shipping and Agency Documents 1. Bills of lading and releases: (a) Consignors’ shipping orders, consignors’ shipping tickets, and copies of 1 year. bills of lading, freight bills from other carriers and other similar documents furnished the carrier for movement of freight. (b) Shippers’ order-to-notify bills of lading taken up and canceled ...... 1 year. 2. Freight waybills: (a) Local waybills ...... 1 year. (b) Interline waybills received from and made to other carriers ...... 1 year. (c) Company freight waybills ...... 1 year. (d) Express waybills ...... 1 year. 3. Freight bills and settlements: (a) Paid copy of freight bill retained to support receipt of freight charges: (1) Bus express freight bills provided no claim has been filed ...... 1 year. (2) All other freight bills ...... 1 year. (b) Paid copy of freight bill retained to support payment of freight charges to other carriers: (1) Bus express freight bills provided no claim has been filed ...... 1 year. (2) All other freight bills ...... 1 year. (c) Records of unsettled freight bills and supporting papers ...... 1 year after disposition. (d) Records and reports of correction notices ...... 1 year. 4. Other freight records: (a) Records of freight received, forwarded, and delivered ...... 1 year. (b) Notice to consignees of arrival of freight; tender of delivery ...... 1 year. 5. Agency records (to include conductors, pursers, stewards, and others):

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Item and category of records Retention period

(a) Cash books ...... 1 year. (b) Remittance records, bank deposit slips and supporting papers ...... 1 year. (c) Balance sheets and supporting papers ...... 1 year. (d) Statements of corrections in agents’ accounts ...... 1 year. (e) Other records and reports pertaining to ticket sales, baggage handled, 1 year. miscellaneous collections, refunds, adjustments, etc.. J. Transportation 1. Records pertaining to transportation of household goods: (a) Estimate of charges ...... 1 year. (b) Order for service ...... 1 year. (c) Vehicle-load manifest ...... 1 year. (d) Descriptive inventory ...... 1 year. 2. Records and reports pertaining to operation of marine and floating equipment: (a) Ship log ...... 3 years. (b) Ship articles ...... 3 years. (c) Passenger and room list ...... 3 years. (d) Floatmen’s barge, lighter, and escrow captain’s reports, demurrage 2 years. records, towing reports and checks sheets. 3. Dispatchers’ sheets, registers, and other records pertaining to movement of 3 years. transportation equipment. 4. Import and export records including bonded freight and steamship engage- 2 years. ments. 5. Records, reports, orders and tickets pertaining to weighting of freight ...... 3 years. 6. Records of loading and unloading of transportation equipment ...... 2 years. 7. Records pertaining to the diversion or reconsignment of freight, including re- 2 years. quests, tracers, and correspondence. 8. Other ...... Note A. K. Supporting Data for Reports and Statistics 1. Supporting data for reports filed with the Federal Motor Carrier Safety Adminis- tration, the Surface Transportation Board, the Department of Transportation’s Bureau of Transportation Statistics and regulatory bodies: (a) Supporting data for annual financial, operating and statistical reports ...... 3 years. (b) Supporting data for periodical reports of operating revenues, expenses, 3 years. and income. (c) Supporting data for reports detailing use of proceeds from issuance or 3 years. sale of company securities. (d) Supporting data for valuation inventory reports and records. This includes 3 years after disposition of the property. related notes, maps and sketches, underlying engineering, land, and accounting reports, pricing schedules, summary or collection sheets, yearly reports of changes and other miscellaneous data, all relating to the valuation of the company’s property by the Federal Highway Administration, the Surface Transportation Board, the Department of Transportation’s Bu- reau of Transportation Statistics or other regulatory body. 2. Supporting data for periodical reports of accidents, inspections, tests, hours of 3 years. service, repairs, etc.. 3. Supporting data for periodical statistical of operating results or performance by 3 years. tonnage, mileage, passengers carried, piggyback traffic, commodities, costs, analyses of increases and decreases, or otherwise. M. Miscellaneous 1. Index of records ...... Until revised as record structure changes. 2. Statement listing records prematurely destroyed or lost ...... For the remainder of the period as prescribed for records destroyed. Note A.—Records referenced to this note shall be maintained as determined by the designated records supervisory official. Companies should be mindful of the record retention requirements of the Internal Revenue Service, Securities and Exchange Commission, State and local jurisdictions, and other regulatory agencies. Companies shall exercise reasonable care in choosing retention periods, and the choice of retention periods shall reflect past experiences, company needs, pending litigation, and regulatory requirements.

PART 381—WAIVERS, EXEMPTIONS, 381.110 What definitions are applicable to AND PILOT PROGRAMS this part? Subpart B—Procedures for Requesting Subpart A—General Waivers

Sec. 381.200 What is a waiver? 381.100 What is the purpose of this part? 381.205 How do I determine when I may re- 381.105 Who is required to comply with the quest a waiver? rules in this part? 381.210 How do I request a waiver?

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381.215 What will the FMCSA do after the SOURCE: 63 FR 67608, Dec. 8, 1998, unless agency receives my request for a waiver? otherwise noted. 381.220 How long will it take the agency to respond to my request for a waiver? EDITORIAL NOTE: Nomenclature changes to 381.225 Who should I contact if I have ques- part 381 appear at 66 FR 49872, Oct. 1, 2001. tions about the information I am required to submit to the FMCSA or about Subpart A—General the status of my request for a waiver? § 381.100 What is the purpose of this Subpart C—Procedures for Applying for part? Exemptions This part prescribes the rules and 381.300 What is an exemption? procedures for requesting waivers and 381.305 How do I determine when I may applying for exemptions from those apply for an exemption? provisions of the Federal Motor Carrier 381.310 How do I apply for an exemption? 381.315 What will the FMCSA do after the Safety Regulations (FMCSRs) which agency receives my application for an ex- were issued on the authority of 49 emption? U.S.C. 31136 or chapter 313, and the ini- 381.320 How long will it take the agency to tiation and administration of pilot pro- respond to my application for an exemp- grams. tion? 381.325 Who should I contact if I have ques- § 381.105 Who is required to comply tions about the information I am re- with the rules in this part? quired to submit to the FMCSA or about the status of my application for an ex- (a) You must comply with the rules emption? in this part if you are going to request 381.330 What am I required to do if the a waiver or apply for an exemption. FMCSA grants my application for an ex- (b) You should follow the instruc- emption? tions in subpart D of this part if you would like to recommend the agency Subpart D—Initiation of Pilot Programs initiate a pilot program. 381.400 What is a pilot program? 381.405 Who determines whether a pilot pro- § 381.110 What definitions are applica- gram should be initiated? ble to this part? 381.410 What may I do if I have an idea or Commercial motor vehicle means any suggestion for a pilot program? 381.415 Who should I contact if I have ques- motor vehicle that meets the definitions about the information to be in- tion of ‘‘commercial motor vehicle’’ cluded in my suggestion? found at 49 CFR 382.107 concerning con- 381.420 What will the FMCSA do after the trolled substances and alcohol use and agency receives my suggestion for a pilot testing, 49 CFR 383.5 concerning com- program? mercial driver’s license standards, or 49 CFR 390.5 concerning parts 390 through Subpart E—Administrative Procedures for 399 of the FMCSRs. Pilot Programs Federal Motor Carrier Safety Adminis- 381.500 What are the general requirements trator (the Administrator) means the the agency must satisfy in conducting a chief executive of the Federal Motor pilot program? Carrier Safety Administration, an 381.505 What are the minimum elements re- agency within the Department of quired for a pilot program? 381.510 May the FMCSA end a pilot program Transportation. before its scheduled completion date? FMCSRs means Federal Motor Car- 381.515 May the FMCSA remove approved rier Safety Regulations (49 CFR parts participants from a pilot program? 382 and 383, §§ 385.21 and 390.21, parts 391 381.520 What will the FMCSA do with the through 393, 395, 396, and 399). results from a pilot program? You means an individual or motor carrier or other entity that is, or will Subpart F—Preemption of State Rules be, responsible for the operation of a 381.600 Do waivers, exemptions, and pilot CMV(s). The term includes a motor programs preempt State laws and regula- carrier’s agents, officers and represent- tions? atives as well as employees responsible AUTHORITY: 49 U.S.C. 31136(e) and 31315; and for hiring, supervising, training, as- 49 CFR 1.73. signing, or dispatching of drivers and

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employees concerned with the installa- that will take no more than three tion, inspection, and maintenance of months to complete. motor vehicle equipment and/or acces- (b) Before you decide to request a sories. You also includes any interested waiver, you should carefully review the party who would like to suggest or rec- regulation to determine whether there ommend that the FMCSA initiate a are any practical alternatives already pilot program. available that would allow your use or operation of CMVs during the event. Subpart B—Procedures for You should also determine whether you Requesting Waivers need a waiver from all of the requirements in one or more parts of the regu- § 381.200 What is a waiver? lations, or whether a more limited waiver of certain sections within one (a) A waiver is temporary regulatory or more of the parts of the regulations relief from one or more FMCSR given would provide an acceptable level of to a person subject to the regulations, regulatory relief. For example, if you or a person who intends to engage in an need relief from one of the record- activity that would be subject to the keeping requirements concerning driv- regulations. er qualifications, you should not re- (b) A waiver provides the person with quest relief from all of the require- relief from the regulations for up to ments of part 391. three months. (c) A waiver is intended for unique, § 381.210 How do I request a waiver? non-emergency events and is subject to conditions imposed by the Adminis- (a) You must send a written request trator. (for example, a typed or handwritten (d) Waivers may only be granted from (printed) letter), which includes all of one or more of the requirements con- the information required by this sec- tained in the following parts and section, to the Federal Motor Carrier tions of the FMCSRs: Safety Administrator, U.S. Depart- (1) Part 382—Controlled Substances ment of Transportation, 400 Seventh and Alcohol Use and Testing; Street, SW., Washington, DC 20590. (2) Part 383—Commercial Driver’s Li- (b) You must identify the person who cense Standards; Requirements and would be covered by the waiver. The Penalties; application for a waiver must include: (3) § 390.19 Motor Carrier Identifica- (1) Your name, job title, mailing ad- tion Report; dress, and daytime telephone number; (4) § 390.21 Marking of commercial (2) The name of the individual, motor motor vehicles; carrier, or other entity that would be (5) Part 391—Qualifications of Driv- responsible for the use or operation of ers; CMVs during the unique, non-emer- (6) Part 392—Driving of Commercial gency event; Motor Vehicles; (3) Principal place of business for the (7) Part 393—Parts and Accessories motor carrier or other entity (street Necessary for Safe Operation; address, city, State, and zip code); and (8) Part 395—Hours of Service of Driv- (4) The USDOT identification number ers; for the motor carrier, if applicable. (9) Part 396—Inspection, Repair, and (c) You must provide a written state- Maintenance (except § 396.25); and ment that: (10) Part 399—Step, Handhold and (1) Describes the unique, non-emer- Deck Requirements. gency event for which the waiver would be used, including the time period dur- § 381.205 How do I determine when I ing which the waiver is needed; may request a waiver? (2) Identifies the regulation that you (a) You may request a waiver if one believe needs to be waived; or more FMCSR would prevent you (3) Provides an estimate of the total from using or operating CMVs, or make number of drivers and CMVs that it unreasonably difficult to do so, dur- would be operated under the terms and ing a unique, non-emergency event conditions of the waiver; and

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(4) Explains how you would ensure would make them subject to the regu- that you could achieve a level of safety lations. that is equivalent to, or greater than, (b) An exemption provides the person the level of safety that would be ob- or class of persons with relief from the tained by complying with the regula- regulations for up to two years, and tion. may be renewed. (c) Exemptions may only be granted § 381.215 What will the FMCSA do from one or more of the requirements after the agency receives my re- contained in the following parts and quest for a waiver? sections of the FMCSRs: (a) The Federal Motor Carrier Safety (1) Part 382—Controlled Substances Administration will review your re- and Alcohol Use and Testing; quest and make a recommendation to (2) Part 383—Commercial Driver’s Li- the Administrator. The final decision cense Standards; Requirements and whether to grant or deny the applica- Penalties; tion for a waiver will be made by the (3) Part 391—Qualifications of Driv- Administrator. ers; (b) After a decision is signed by the (4) Part 392—Driving of Commercial Administrator, you will be sent a copy Motor Vehicles; of the document, which will include the (5) Part 393—Parts and Accessories terms and conditions for the waiver or the reason for denying the application Necessary for Safe Operation; for a waiver. (6) Part 395—Hours of Service of Driv- ers; § 381.220 How long will it take the (7) Part 396—Inspection, Repair, and agency to respond to my request for Maintenance (except for § 396.25); and a waiver? (8) Part 399—Step, Handhold and You should receive a response from Deck Requirements. the agency within 60 calendar days from the date the Administrator re- § 381.305 How do I determine when I ceives your request. However, depend- may apply for an exemption? ing on the complexity of the issues dis- (a) You may apply for an exemption cussed in your application, and the if one or more FMCSR prevents you availability of staff to review the ma- from implementing more efficient or terial, a final decision may take up to effective operations that would main- 120 days. tain a level of safety equivalent to, or greater than, the level achieved with- § 381.225 Who should I contact if I out the exemption. have questions about the informa- (b) Before you decide to apply for an tion I am required to submit to the FMCSA or about the status of my exemption you should carefully review request for a waiver? the regulation to determine whether there are any practical alternatives al- You should contact the Office of Bus ready available that would allow you and Truck Standards and Operations, to conduct your motor carrier oper- Federal Motor Carrier Safety Adminis- ations. You should also determine tration, 400 Seventh Street, SW., Wash- whether you need an exemption from ington, DC 20590. The telephone num- all of the requirements in one or more ber is (202) 366–1790. parts of the regulations, or whether a more limited exemption from certain Subpart C—Procedures for sections within one or more parts of Applying for Exemptions the regulations would provide an acceptable level of regulatory relief. For § 381.300 What is an exemption? example, if you need regulatory relief (a) An exemption is temporary regu- from one of the recordkeeping require- latory relief from one or more FMCSR ments concerning driver qualifications, given to a person or class of persons you should not request regulatory re- subject to the regulations, or who in- lief from all of the requirements of tend to engage in an activity that part 391.

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§ 381.310 How do I apply for an exemp- § 381.315 What will the FMCSA do tion? after the agency receives my application for an exemption? (a) You must send a written request (for example, a typed or handwritten (a) The Federal Motor Carrier Safety (printed) letter), which includes all of Administration will review your appli- the information required by this sec- cation and prepare, for the Administra- tion, to the Federal Motor Carrier tor’s signature, a FEDERAL REGISTER Safety Administrator, U.S. Depart- notice requesting public comment on ment of Transportation, Federal Motor your application for an exemption. The Carrier Safety Administration, 400 Sev- notice will give the public an oppor- enth Street, SW., Washington, DC tunity to review your request and your 20590. safety assessment or analysis (required by § 381.310) and any other relevant in- (b) You must identify the person or formation known to the agency. class of persons who would be covered (b) After a review of the comments by the exemption. The application for received in response to the FEDERAL an exemption must include: REGISTER notice described in paragraph (1) Your name, job title, mailing ad- (a) of this section, the Federal Motor dress, and daytime telephone number; Carrier Safety Administration will (2) The name of the individual or make a recommendation(s) to the Ad- motor carrier that would be respon- ministrator to either to grant or deny sible for the use or operation of CMVs; the exemption. Notice of the Adminis- (3) Principal place of business for the trator’s decision will be published in motor carrier (street address, city, the FEDERAL REGISTER. State, and zip code); and (c)(1) If the exemption is granted, the (4) The USDOT identification number notice will identify the provisions of for the motor carrier. the FMCSRs from which you will be ex- (c) You must provide a written state- empt, the effective period, and all ment that: terms and conditions of the exemption. (1) Describes the reason the exemp- (2) If the exemption is denied, the no- tion is needed, including the time pe- tice will explain the reason for the de- riod during which it is needed; nial. (2) Identifies the regulation from (d) A copy of your application for an which you would like to be exempted; exemption and all comments received (3) Provides an estimate of the total in response to the FEDERAL REGISTER number of drivers and CMVs that notice will be included in a public would be operated under the terms and docket and be available for review by conditions of the exemption; interested parties. (4) Assesses the safety impacts the (1) Interested parties may view the exemption may have; information contained in the docket by visiting the Department of Transpor- (5) Explains how you would ensure tation, U.S. DOT Dockets, Room PL– that you could achieve a level a safety 401, 400 Seventh Street, SW., Wash- that is equivalent to, or greater than, ington DC. All information in the ex- the level of safety that would be ob- emption docket will be available for tained by complying with the regula- examination at this address from 10 tion; and a.m. to 5 p.m., e.t., Monday through (6) Describes the impacts (e.g., inabil- Friday, except Federal holidays. ity to test innovative safety manage- (2) Internet users can access all infor- ment control systems, etc.) you could mation received by the U.S. DOT Dock- experience if the exemption is not ets, Room PL–401, by using the uni- granted by the FMCSA. versal resources locator (URL): http:// (d) Your application must include a dms.dot.gov. It is available 24 hours copy of all research reports, technical each day, 365 days each year. Please papers, and other publications and doc- follow the instructions online for more uments you reference. information and help.

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§ 381.320 How long will it take the the regulations for a period of up to agency to respond to my applica- three years. tion for an exemption? (c) A pilot program is intended for The agency will attempt to issue a use in collecting specific data for eval- final decision within 180 days of the uating alternatives to the regulations date it receives your application. How- or innovative approaches to safety ever, if you leave out important details while ensuring that the safety perform- or other information necessary for the ance goals of the regulations are satis- FMCSA to prepare a meaningful re- fied. quest for public comments, the agency (d) The number of participants in the will attempt to issue a final decision pilot program must be large enough to within 180 days of the date it receives ensure statistically valid findings. the additional information. (e) Pilot programs must include an oversight plan to ensure that partici- § 381.325 Who should I contact if I pants comply with the terms and con- have questions about the informa- ditions of participation, and procedures tion I am required to submit to the to protect the health and safety of FMCSA or about the status of my study participants and the general pub- application for an exemption? lic. You should contact the Office of Bus (f) Exemptions for pilot programs and Truck Standards and Operations, may be granted only from one or more Federal Motor Carrier Safety Adminis- of the requirements contained in the tration, 400 Seventh Street, SW., Wash- following parts and sections of the ington, DC 20590. The telephone num- FMCSRs: ber is (202) 366–1790. (1) Part 382—Controlled Substances and Alcohol Use and Testing; § 381.330 What am I required to do if (2) Part 383—Commercial Driver’s Li- the FMCSA grants my application for an exemption? cense Standards; Requirements and Penalties; (a) You must comply with all the (3) Part 391—Qualifications of Driv- terms and conditions of the exemption. ers; (b) The FMCSA will immediately re- (4) Part 392—Driving of Commercial voke your exemption if: Motor Vehicles; (1) You fail to comply with the terms (5) Part 393—Parts and Accessories and conditions of the exemption; Necessary for Safe Operation; (2) The exemption has resulted in a (6) Part 395—Hours of Service of Driv- lower level of safety than was main- ers; tained before the exemption was grant- (7) Part 396—Inspection, Repair, and ed; or Maintenance (except for § 396.25); and (3) Continuation of the exemption is (8) Part 399—Step, Handhold and determined by the FMCSA to be incon- Deck Requirements. sistent with the goals and objectives of the FMCSRs. § 381.405 Who determines whether a pilot program should be initiated? Subpart D—Initiation of Pilot (a) Generally, pilot programs are ini- Programs tiated by the FMCSA when the agency determines that there may be an effec- § 381.400 What is a pilot program? tive alternative to one or more of the (a) A pilot program is a study in requirements in the FMCSRs, but does which temporary regulatory relief from not have sufficient research data to one or more FMCSR is given to a per- support the development of a notice of son or class of persons subject to the proposed rulemaking to change the regulations, or a person or class of per- regulation. sons who intend to engage in an activ- (b) You may request the FMCSA to ity that would be subject to the regula- initiate a pilot program. However, the tions. decision of whether to propose a pilot (b) During a pilot program, the par- program will be made at the discretion ticipants would be given an exemption of the FMCSA. The FMCSA is not re- from one or more sections or parts of quired to publish a notice in the

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FEDERAL REGISTER requesting public (7) Assesses the safety impacts the comment on your ideas or suggestions pilot program exemption may have; for pilot programs. and (8) Provides recommendations on how § 381.410 What may I do if I have an the safety measures in the pilot project idea or suggestion for a pilot program? would be designed to achieve a level a safety that is equivalent to, or greater (a) You may send a written state- than, the level of safety that would be ment (for example, a typed or hand- obtained by complying with the regula- written (printed) letter) to the Federal tion. Motor Carrier Safety Administrator, (d) Your recommendation should in- U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC clude a copy of all research reports, 20590. technical papers, publications and (b) You should identify the persons or other documents you reference. class of persons who would be covered § 381.415 Who should I contact if I by the pilot program exemptions. Your have questions about the informa- letter should include: tion to be included in my sugges- (1) Your name, job title, mailing ad- tion? dress, and daytime telephone number; (2) The name of the individuals or You should contact the Office of Bus motor carrier that would be respon- and Truck Standards and Operations, sible for the use or operation of CMVs Federal Motor Carrier Safety Adminis- covered by the pilot program, if there tration, 400 Seventh Street, SW., Wash- are motor carriers that have expressed ington, DC 20590. The telephone num- an interest in participating in the pro- ber is (202) 366–1790. gram; (3) Principal place of business for the § 381.420 What will the FMCSA do motor carrier (street address, city, after the agency receives my sug- State, and zip code); and gestion for a pilot program? (4) The USDOT identification number (a) The Federal Motor Carrier Safety for the motor carrier. Administration will review your sug- (c) You should provide a written gestion for a pilot program and make a statement that: recommendation to the Administrator. (1) Presents your estimate of the po- The final decision whether to propose tential benefits to the motor carrier in- the development of a pilot program dustry, the FMCSA, and the general based upon your recommendation will public if the pilot program is con- be made by the Administrator. ducted, and describes how you devel- (b) You will be sent a copy of the Ad- oped your estimate; ministrator’s decision. If the pilot pro- (2) Estimates of the amount of time gram is approved, the agency will fol- that would be needed to conduct the low the administrative procedures con- pilot program (e.g., the time needed to tained in subpart E of this part. complete the collection and analysis of data); (3) Identifies the regulation from Subpart E—Administrative which the participants would need to Procedures for Pilot Programs be exempted; (4) Recommends a reasonable number § 381.500 What are the general requirements the agency must satisfy in of participants necessary to yield sta- conducting a pilot program? tistically valid findings; (5) Provides ideas or suggestions for a (a) The FMCSA may conduct pilot monitoring plan to ensure that partici- programs to evaluate alternatives to pants comply with the terms and con- regulations, or innovative approaches, ditions of participation; concerning motor carrier, CMV, and (6) Provides ideas or suggestions for a driver safety. plan to protect the health and safety of (b) Pilot programs may include ex- study participants and the general pub- emptions from the regulations listed in lic. § 381.400(f) of this part.

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(c) Pilot programs must, at a min- a level of safety that is at least equiva- imum, include all of the program ele- lent to the level of safety that would be ments listed in § 381.505. achieved by complying with the regula- (d) The FMCSA will publish in the tions. FEDERAL REGISTER a detailed description of each pilot program, including § 381.515 May the FMCSA remove ap- the exemptions to be considered, and proved participants from a pilot provide notice and an opportunity for program? public comment before the effective The Administrator will immediately date of the pilot program. revoke participation in a pilot program of a motor carrier, CMV, or driver for § 381.505 What are the minimum ele- failure to comply with the terms and ments required for a pilot program? conditions of the pilot program, or if (a) Safety measures. Before granting continued participation is inconsistent exemptions for a pilot program, the with the goals and objectives of the FMCSA will ensure that the safety safety regulations. measures in a pilot program are designed to achieve a level of safety that § 381.520 What will the FMCSA do with the results from a pilot program? is equivalent to, or greater than, the level of safety that would be achieved At the conclusion of each pilot pro- by complying with the regulations. gram, the FMCSA will report to Con- (b) Pilot program plan. Before initi- gress the findings and conclusions of ating a pilot program, the FMCSA will the program and any recommendations ensure that there is a pilot program it considers appropriate, including sug- plan which includes the following ele- gested amendments to laws and regula- ments: tions that would enhance motor car- (1) A scheduled duration of three rier, CMV, and driver safety and im- years or less; prove compliance with the FMCSRs. (2) A specific data collection and safety analysis plan that identifies a Subpart F—Preemption of State method of comparing the safety per- Rules formance for motor carriers, CMVs, and drivers operating under the terms § 381.600 Do waivers, exemptions, and and conditions of the pilot program, pilot programs preempt State laws with the safety performance of motor and regulations? carriers, CMVs, and drivers that com- Yes. During the time period that a ply with the regulation; waiver, exemption, or pilot program (3) A reasonable number of partici- authorized by this part is in effect, no pants necessary to yield statistically State shall enforce any law or regula- valid findings; tion that conflicts with or is incon- (4) A monitoring plan to ensure that sistent with the waiver, exemption, or participants comply with the terms pilot program with respect to a person and conditions of participation in the operating under the waiver or exemp- pilot program; tion or participating in the pilot pro- (5) Adequate safeguards to protect gram. the health and safety of study participants and the general public; and PART 382—CONTROLLED SUB- (6) A plan to inform the States and STANCES AND ALCOHOL USE the public about the pilot program and AND TESTING to identify approved participants to enforcement personnel and the general Subpart A—General public. Sec. § 381.510 May the FMCSA end a pilot 382.101 Purpose program before its scheduled com- 382.103 Applicability. pletion date? 382.105 Testing procedures. 382.107 Definitions. The FMCSA will immediately termi- 382.109 Preemption of State and local laws. nate a pilot program if there is reason 382.111 Other requirements imposed by em- to believe the program is not achieving ployers.

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382.113 Requirements for notice. Subpart A—General 382.115 Starting date for testing programs. 382.117 Public interest exclusion. § 382.101 Purpose. 382.119 Stand-down waiver provision. 382.121 Employee admission of alcohol and The purpose of this part is to estab- controlled substances use. lish programs designed to help prevent accidents and injuries resulting from Subpart B—Prohibitions the misuse of alcohol or use of controlled substances by drivers of com- 382.201 Alcohol concentration. 382.205 On-duty use. mercial motor vehicles. 382.207 Pre-duty use. 382.209 Use following an accident. § 382.103 Applicability. 382.211 Refusal to submit to a required alco- (a) This part applies to every person hol or controlled substances test. and to all employers of such persons 382.213 Controlled substances use. who operate a commercial motor vehi- 382.215 Controlled substances testing. cle in commerce in any State, and is Subpart C—Tests Required subject to: (1) The commercial driver’s license 382.301 Pre-employment testing. requirements of part 383 of this sub- 382.303 Post-accident testing. chapter; 382.305 Random testing. (2) The Licencia Federal de Con- 382.307 Reasonable suspicion testing. ductor (Mexico) requirements; or 382.309 Return-to-duty testing. (3) The commercial drivers license re- 382.311 Follow-up testing. quirements of the Canadian National Subpart D—Handling of Test Results, Safety Code. Record Retention, and Confidentiality (b) An employer who employs himself/herself as a driver must comply 382.401 Retention of records. with both the requirements in this part 382.403 Reporting of results in a manage- that apply to employers and the re- ment information system. quirements in this part that apply to 382.405 Access to facilities and records. drivers. An employer who employs only 382.407 Medical review officer notifications to the employer. himself/herself as a driver shall imple- 382.409 Medical review officer record reten- ment a random alcohol and controlled tion for controlled substances. substances testing program of two or 382.411 Employer notifications. more covered employees in the random 382.413 Inquiries for alcohol and controlled testing selection pool. substances information from previous (c) The exceptions contained in employers. § 390.3(f) of this subchapter do not apply to this part. The employers and drivers Subpart E—Consequences for Drivers En- identified in § 390.3(f) of this subchapter gaging in Substance Use-Related Con- must comply with the requirements of duct this part, unless otherwise specifically 382.501 Removal from safety-sensitive func- provided in paragraph (d) of this section. tion. 382.503 Required evaluation and testing. (d) Exceptions. This part shall not 382.505 Other alcohol-related conduct. apply to employers and their drivers: 382.507 Penalties. (1) Required to comply with the alcohol and/or controlled substances test- Subpart F—Alcohol Misuse and Controlled ing requirements of part 655 of this Substances Use Information, Training, title (Federal Transit Administration and Referral alcohol and controlled substances test- 382.601 Employer obligation to promulgate ing regulations); or a policy on the misuse of alcohol and use (2) Who a State must waive from the of controlled substances. requirements of part 383 of this sub- 382.603 Training for supervisors. chapter. These individuals include ac- 382.605 Referral, evaluation, and treatment. tive duty military personnel; members AUTHORITY: 49 U.S.C. 31133, 31136, 31301 et of the reserves; and members of the na- seq., 31502; and 49 CFR 1.73. tional guard on active duty, including SOURCE: 66 FR 43103, Aug. 17, 2001, unless personnel on full-time national guard otherwise noted. duty, personnel on part-time national

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guard training and national guard mili- use and does not include observation of tary technicians (civilians who are re- employee behavior or physical charac- quired to wear military uniforms), and teristics sufficient to warrant reason- active duty U.S. Coast Guard per- able suspicion testing under § 382.307. sonnel; or Alcohol means the intoxicating agent (3) Who a State has, at its discretion, in beverage alcohol, ethyl alcohol, or exempted from the requirements of other low molecular weight alcohols part 383 of this subchapter. These indi- including methyl and isopropyl alco- viduals may be: hol. (i) Operators of a farm vehicle which Alcohol concentration (or content) is: means the alcohol in a volume of (A) Controlled and operated by a breath expressed in terms of grams of farmer; alcohol per 210 liters of breath as indi- (B) Used to transport either agricul- cated by an evidential breath test tural products, farm machinery, farm under this part. supplies, or both to or from a farm; Alcohol use means the drinking or (C) Not used in the operations of a swallowing of any beverage, liquid mix- common or contract motor carrier; and ture or preparation (including any (D) Used within 241 kilometers (150 medication), containing alcohol. miles) of the farmer’s farm. Commerce means: (ii) Firefighters or other persons who operate commercial motor vehicles (1) Any trade, traffic or transpor- which are necessary for the preserva- tation within the jurisdiction of the tion of life or property or the execution United States between a place in a of emergency governmental functions, State and a place outside of such State, are equipped with audible and visual including a place outside of the United signals, and are not subject to normal States; and traffic regulation. (2) Trade, traffic, and transportation in the United States which affects any § 382.105 Testing procedures. trade, traffic, and transportation de- Each employer shall ensure that all scribed in paragraph (1) of this defini- alcohol or controlled substances test- tion. ing conducted under this part complies Commercial motor vehicle means a with the procedures set forth in part 40 motor vehicle or combination of motor of this title. The provisions of part 40 vehicles used in commerce to transport of this title that address alcohol or passengers or property if the vehicle— controlled substances testing are made (1) Has a gross combination weight applicable to employers by this part. rating of 11,794 or more kilograms (26,001 or more pounds) inclusive of a § 382.107 Definitions. towed unit with a gross vehicle weight Words or phrases used in this part rating of more than 4,536 kilograms are defined in §§ 386.2 and 390.5 of this (10,000 pounds); or subchapter, and § 40.3 of this title, ex- (2) Has a gross vehicle weight rating cept as provided in this section— of 11,794 or more kilograms (26,001 or Actual knowledge for the purpose of more pounds); or subpart B of this part, means actual (3) Is designed to transport 16 or knowledge by an employer that a driv- more passengers, including the driver; er has used alcohol or controlled sub- or stances based on the employer’s direct (4) Is of any size and is used in the observation of the employee, informa- transportation of materials found to be tion provided by the driver’s previous hazardous for the purposes of the Haz- employer(s), a traffic citation for driv- ardous Materials Transportation Act ing a CMV while under the influence of (49 U.S.C. 5103(b)) and which require alcohol or controlled substances or an the motor vehicle to be placarded employee’s admission of alcohol or under the Hazardous Materials Regula- controlled substance use, except as pro- tions (49 CFR part 172, subpart F). vided in § 382.121. Direct observation as Confirmation (or confirmatory) drug used in this definition means observa- test means a second analytical proce- tion of alcohol or controlled substances dure performed on a urine specimen to

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identify and quantify the presence of a (iv) Damage to turn signals, horn, or specific drug or drug metabolite. windshield wipers which make them in- Confirmation (or confirmatory) validity operative. test means a second test performed on a DOT Agency means an agency (or urine specimen to further support a va- ‘‘operating administration’’) of the lidity test result. United States Department of Transpor- Confirmed drug test means a confirma- tation administering regulations re- tion test result received by an MRO quiring alcohol and/or drug testing (14 from a laboratory. CFR parts 61, 63, 65, 121, and 135; 49 CFR Consortium/Third party administrator parts 199, 219, 382, and 655), in accord- (C/TPA) means a service agent that ance with part 40 of this title. provides or coordinates one or more Driver means any person who oper- drug and/or alcohol testing services to ates a commercial motor vehicle. This DOT-regulated employers. C/TPAs includes, but is not limited to: Full typically provide or coordinate the pro- time, regularly employed drivers; cas- vision of a number of such services and ual, intermittent or occasional drivers; perform administrative tasks con- leased drivers and independent owner- cerning the operation of the employers’ operator contractors. drug and alcohol testing programs. Employer means a person or entity This term includes, but is not limited employing one or more employees to, groups of employers who join to- (including an individual who is self-em- gether to administer, as a single enti- ployed) that is subject to DOT agency ty, the DOT drug and alcohol testing regulations requiring compliance with programs of its members (e.g., having a this part. The term, as used in this combined random testing pool). C/TPAs part, means the entity responsible for are not ‘‘employers’’ for purposes of overall implementation of DOT drug this part. and alcohol program requirements, including individuals employed by the Controlled substances mean those sub- entity who take personnel actions re- stances identified in § 40.85 of this title. sulting from violations of this part and Designated employer representative any applicable DOT agency regula- is an individual identified by the (DER) tions. Service agents are not employers employer as able to receive commu- for the purposes of this part. nications and test results from service Licensed medical practitioner means a agents and who is authorized to take person who is licensed, certified, and/or immediate actions to remove employ- registered, in accordance with applica- ees from safety-sensitive duties and to ble Federal, State, local, or foreign make required decisions in the testing laws and regulations, to prescribe con- and evaluation processes. The indi- trolled substances and other drugs. vidual must be an employee of the Performing (a safety-sensitive function) company. Service agents cannot serve means a driver is considered to be per- as DERs. forming a safety-sensitive function Disabling damage means damage during any period in which he or she is which precludes departure of a motor actually performing, ready to perform, vehicle from the scene of the accident or immediately available to perform in its usual manner in daylight after any safety-sensitive functions. simple repairs. Positive rate means the number of (1) Inclusions. Damage to motor vehi- positive results for random controlled cles that could have been driven, but substances tests conducted under this would have been further damaged if so part plus the number of refusals of ran- driven. dom controlled substances tests re- (2) Exclusions. (i) Damage which can quired by this part, divided by the be remedied temporarily at the scene total of random controlled substances of the accident without special tools or tests conducted under this part plus parts. the number of refusals of random tests (ii) Tire disablement without other required by this part. damage even if no spare tire is avail- Refuse to submit (to an alcohol or con- able. trolled substances test) means that a (iii) Headlight or taillight damage. driver:

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(1) Fail to appear for any test (except (9) Is reported by the MRO as having a pre-employment test) within a rea- a verified adulterated or substituted sonable time, as determined by the em- test result. ployer, consistent with applicable DOT Safety-sensitive function means all agency regulations, after being di- time from the time a driver begins to rected to do so by the employer. This work or is required to be in readiness includes the failure of an employee to work until the time he/she is re- (including an owner-operator) to ap- lieved from work and all responsibility pear for a test when called by a C/TPA for performing work. Safety-sensitive (see § 40.61(a) of this title); functions shall include: (2) Fail to remain at the testing site (1) All time at an employer or shipper until the testing process is complete. plant, terminal, facility, or other prop- Provided, that an employee who leaves erty, or on any public property, wait- the testing site before the testing proc- ing to be dispatched, unless the driver ess commences (see § 40.63(c) of this has been relieved from duty by the em- title) a pre-employment test is not ployer; deemed to have refused to test; (2) All time inspecting equipment as (3) Fail to provide a urine specimen required by §§ 392.7 and 392.8 of this sub- for any drug test required by this part chapter or otherwise inspecting, serv- or DOT agency regulations. Provided, icing, or conditioning any commercial that an employee who does not provide motor vehicle at any time; a urine specimen because he or she has (3) All time spent at the driving con- left the testing site before the testing trols of a commercial motor vehicle in process commences (see § 40.63(c) of this operation; title) for a pre-employment test is not (4) All time, other than driving time, deemed to have refused to test; in or upon any commercial motor vehicle except time spent resting in a (4) In the case of a directly observed sleeper berth (a berth conforming to or monitored collection in a drug test, the requirements of § 393.76 of this sub- fails to permit the observation or mon- chapter); itoring of the driver’s provision of a (5) All time loading or unloading a specimen (see §§ 40.67(l) and 40.69(g) of vehicle, supervising, or assisting in the this title); loading or unloading, attending a vehi- (5) Fail to provide a sufficient cle being loaded or unloaded, remain- amount of urine when directed, and it ing in readiness to operate the vehicle, has been determined, through a re- or in giving or receiving receipts for quired medical evaluation, that there shipments loaded or unloaded; and was no adequate medical explanation (6) All time repairing, obtaining as- for the failure (see § 40.193(d)(2) of this sistance, or remaining in attendance title); upon a disabled vehicle. (6) Fail or declines to take a second Screening test (or initial test) means: test the employer or collector has di- (1) In drug testing, a test to elimi- rected the driver to take; nate ‘‘negative’’ urine specimens from (7) Fail to undergo a medical exam- further analysis or to identify a speci- ination or evaluation, as directed by men that requires additional testing the MRO as part of the verification for the presence of drugs. process, or as directed by the DER (2) In alcohol testing, an analytical under § 40.193(d) of this title. In the procedure to determine whether an em- case of a pre-employment drug test, ployee may have a prohibited con- the employee is deemed to have refused centration of alcohol in a breath or sa- to test on this basis only if the pre-em- liva specimen. ployment test is conducted following a Stand-down means the practice of contingent offer of employment; temporarily removing an employee (8) Fail to cooperate with any part of from the performance of safety-sen- the testing process (e.g., refuse to sitive functions based only on a report empty pockets when so directed by the from a laboratory to the MRO of a con- collector, behave in a confrontational firmed positive test for a drug or drug way that disrupts the collection proc- metabolite, an adulterated test, or a ess); or substituted test, before the MRO has

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completed verification of the test re- § 382.115 Starting date for testing pro- sults. grams. Violation rate means the number of (a) All domestic-domiciled employers drivers (as reported under § 382.305) must implement the requirements of found during random tests given under this part on the date the employer be- this part to have an alcohol concentra- gins commercial motor vehicle oper- tion of 0.04 or greater, plus the number ations. of drivers who refuse a random test re- (b) All foreign-domiciled employers quired by this part, divided by the must implement the requirements of total reported number of drivers in the this part on the date the employer be- industry given random alcohol tests gins commercial motor vehicle oper- under this part plus the total reported ations in the United States. number of drivers in the industry who refuse a random test required by this § 382.117 Public interest exclusion. part. No employer shall use the services of a service agent who is subject to public § 382.109 Preemption of State and interest exclusion in accordance with local laws. 49 CFR part 40, Subpart R. (a) Except as provided in paragraph (b) of this section, this part preempts § 382.119 Stand-down waiver provi- any State or local law, rule, regula- sion. tion, or order to the extent that: (a) Employers are prohibited from (1) Compliance with both the State or standing employees down, except con- local requirement in this part is not sistent with a waiver from the Federal possible; or Motor Carrier Safety Administration (2) Compliance with the State or as required under this section. local requirement is an obstacle to the (b) An employer subject to this part accomplishment and execution of any who seeks a waiver from the prohibi- requirement in this part. tion against standing down an em- (b) This part shall not be construed ployee before the MRO has completed to preempt provisions of State crimi- the verification process shall follow nal law that impose sanctions for reck- the procedures in 49 CFR 40.21. The em- less conduct leading to actual loss of ployer must send a written request, life, injury, or damage to property, which includes all of the information whether the provisions apply specifi- required by that section to the Federal cally to transportation employees, em- Motor Carrier Safety Administrator (or ployers, or the general public. the Administrator’s designee), U.S. De- partment of Transportation, 400 Sev- § 382.111 Other requirements imposed enth Street, SW., Washington, DC by employers. 20590. (c) The final decision whether to Except as expressly provided in this grant or deny the application for a part, nothing in this part shall be con- waiver will be made by the Adminis- strued to affect the authority of em- trator or the Administrator’s designee. ployers, or the rights of drivers, with (d) After a decision is signed by the respect to the use of alcohol, or the use Administrator or the Administrator’s of controlled substances, including au- designee, the employer will be sent a thority and rights with respect to test- copy of the decision, which will include ing and rehabilitation. the terms and conditions for the waiver or the reason for denying the applica- § 382.113 Requirement for notice. tion for a waiver. Before performing each alcohol or (e) Questions regarding waiver appli- controlled substances test under this cations should be directed to the Office part, each employer shall notify a driv- of Enforcement and Compliance, Fed- er that the alcohol or controlled sub- eral Motor Carrier Safety Administra- stances test is required by this part. No tion, 400 Seventh Street, SW., Wash- employer shall falsely represent that a ington, DC 20590. The telephone num- test is administered under this part. ber is (202) 366–5720.

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§ 382.121 Employee admission of alco- alcohol concentration of less than 0.02; hol and controlled substances use. and/or (a) Employees who admit to alcohol (ii) Prior to the employee partici- misuse or controlled substances use are pating in a safety sensitive function, the employee shall undergo a return to not subject to the referral, evaluation duty controlled substance test with a and treatment requirements of this verified negative test result for con- part and part 40 of this title, provided trolled substances use; and that: (5) It may incorporate employee (1) The admission is in accordance monitoring and include non-DOT fol- with a written employer-established low-up testing. voluntary self-identification program or policy that meets the requirements of paragraph (b) of this section; Subpart B—Prohibitions (2) The driver does not self-identify § 382.201 Alcohol concentration. in order to avoid testing under the requirements of this part; No driver shall report for duty or remain on duty requiring the perform- (3) The driver makes the admission of ance of safety-sensitive functions while alcohol misuse or controlled sub- having an alcohol concentration of 0.04 stances use prior to performing a safe- or greater. No employer having actual ty sensitive function (i.e., prior to re- knowledge that a driver has an alcohol porting for duty); and concentration of 0.04 or greater shall (4) The driver does not perform a permit the driver to perform or con- safety sensitive function until the em- tinue to perform safety-sensitive func- ployer is satisfied that the employee tions. has been evaluated and has successfully completed education or treat- § 382.205 On-duty use. ment requirements in accordance with No driver shall use alcohol while per- the self-identification program guide- forming safety-sensitive functions. No lines. employer having actual knowledge (b) A qualified voluntary self-identi- that a driver is using alcohol while per- fication program or policy must conforming safety-sensitive functions tain the following elements: shall permit the driver to perform or (1) It must prohibit the employer continue to perform safety-sensitive from taking adverse action against an functions. employee making a voluntary admission of alcohol misuse or controlled § 382.207 Pre-duty use. substances use within the parameters No driver shall perform safety-sen- of the program or policy and paragraph sitive functions within four hours after (a) of this section; using alcohol. No employer having ac- (2) It must allow the employee suffi- tual knowledge that a driver has used cient opportunity to seek evaluation, alcohol within four hours shall permit education or treatment to establish a driver to perform or continue to per- control over the employee’s drug or al- form safety-sensitive functions. cohol problem; (3) It must permit the employee to § 382.209 Use following an accident. return to safety sensitive duties only No driver required to take a post-ac- upon successful completion of an edu- cident alcohol test under § 382.303 shall cational or treatment program, as de- use alcohol for eight hours following termined by a drug and alcohol abuse the accident, or until he/she undergoes evaluation expert, i.e., employee as- a post-accident alcohol test, whichever sistance professional, substance abuse occurs first. professional, or qualified drug and alcohol counselor; § 382.211 Refusal to submit to a re- (4) It must ensure that: quired alcohol or controlled sub- (i) Prior to the employee partici- stances test. pating in a safety sensitive function, No driver shall refuse to submit to a the employee shall undergo a return to post-accident alcohol or controlled duty test with a result indicating an substances test required under § 382.303,

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a random alcohol or controlled sub- form safety-sensitive functions unless stances test required under § 382.305, a the employer has received a controlled reasonable suspicion alcohol or con- substances test result from the MRO or trolled substances test required under C/TPA indicating a verified negative § 382.307, or a follow-up alcohol or contest result for that driver. trolled substances test required under (b) An employer is not required to ad- § 382.311. No employer shall permit a minister a controlled substances test driver who refuses to submit to such required by paragraph (a) of this sec- tests to perform or continue to perform tion if: safety-sensitive functions. (1) The driver has participated in a controlled substances testing program § 382.213 Controlled substances use. that meets the requirements of this (a) No driver shall report for duty or part within the previous 30 days; and remain on duty requiring the perform- (2) While participating in that pro- ance of safety-sensitive functions when gram, either: the driver uses any controlled sub- (i) Was tested for controlled substance, except when the use is pursuant stances within the past 6 months (from to the instructions of a licensed med- the date of application with the em- ical practitioner, as defined in § 382.107, ployer), or who has advised the driver that the (ii) Participated in the random con- substance will not adversely affect the trolled substances testing program for driver’s ability to safely operate a the previous 12 months (from the date commercial motor vehicle. of application with the employer); and (b) No employer having actual knowledge that a driver has used a controlled (3) The employer ensures that no substance shall permit the driver to prior employer of the driver of whom perform or continue to perform a safe- the employer has knowledge has ty-sensitive function. records of a violation of this part or (c) An employer may require a driver the controlled substances use rule of to inform the employer of any thera- another DOT agency within the pre- peutic drug use. vious six months. (c)(1) An employer who exercises the § 382.215 Controlled substances test- exception in paragraph (b) of this sec- ing. tion shall contact the controlled sub- No driver shall report for duty, re- stances testing program(s) in which the main on duty or perform a safety-sen- driver participates or participated and sitive function, if the driver tests posi- shall obtain and retain from the test- tive or has adulterated or substituted a ing program(s) the following informa- test specimen for controlled sub- tion: stances. No employer having actual (i) Name(s) and address(es) of the knowledge that a driver has tested program(s). positive or has adulterated or sub- (ii) Verification that the driver par- stituted a test specimen for controlled ticipates or participated in the pro- substances shall permit the driver to gram(s). perform or continue to perform safety- (iii) Verification that the program(s) sensitive functions. conforms to part 40 of this title. (iv) Verification that the driver is Subpart C—Tests Required qualified under the rules of this part, including that the driver has not re- § 382.301 Pre-employment testing. fused to be tested for controlled sub- (a) Prior to the first time a driver stances. performs safety-sensitive functions for (v) The date the driver was last test- an employer, the driver shall undergo ed for controlled substances. testing for controlled substances as a (vi) The results of any tests taken condition prior to being used, unless within the previous six months and any the employer uses the exception in other violations of subpart B of this paragraph (b) of this section. No em- part. ployer shall allow a driver, who the (2) An employer who uses, but does employer intends to hire or use, to per- not employ a driver more than once a

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year to operate commercial motor ve- road in commerce, each employer shall hicles must obtain the information in test for alcohol for each of its sur- paragraph (c)(1) of this section at least viving drivers: once every six months. The records (1) Who was performing safety-sen- prepared under this paragraph shall be sitive functions with respect to the ve- maintained in accordance with § 382.401. hicle, if the accident involved the loss If the employer cannot verify that the of human life; or driver is participating in a controlled (2) Who receives a citation within 8 substances testing program in accord- hours of the occurrence under State or ance with this part and part 40 of this local law for a moving traffic violation title, the employer shall conduct a pre- arising from the accident, if the acci- employment controlled substances dent involved: test. (i) Bodily injury to any person who, (d) An employer may, but is not re- as a result of the injury, immediately quired to, conduct pre-employment al- receives medical treatment away from cohol testing under this part. If an em- the scene of the accident; or ployer chooses to conduct pre-employ- (ii) One or more motor vehicles in- ment alcohol testing, it must comply curring disabling damage as a result of with the following requirements: the accident, requiring the motor vehi- (1) It must conduct a pre-employ- cle to be transported away from the ment alcohol test before the first per- scene by a tow truck or other motor formance of safety-sensitive functions vehicle. by every covered employee (whether a (b) As soon as practicable following new employee or someone who has transferred to a position involving the an occurrence involving a commercial performance of safety-sensitive func- motor vehicle operating on a public tions). road in commerce, each employer shall (2) It must treat all safety-sensitive test for controlled substances for each employees performing safety-sensitive of its surviving drivers: functions the same for the purpose of (1) Who was performing safety-sen- pre-employment alcohol testing (i.e., it sitive functions with respect to the ve- must not test some covered employees hicle, if the accident involved the loss and not others). of human life; or (3) It must conduct the pre-employ- (2) Who receives a citation within ment tests after making a contingent thirty-two hours of the occurrence offer of employment or transfer, sub- under State or local law for a moving ject to the employee passing the pre- traffic violation arising from the acci- employment alcohol test. dent, if the accident involved: (4) It must conduct all pre-employ- (i) Bodily injury to any person who, ment alcohol tests using the alcohol as a result of the injury, immediately testing procedures of 49 CFR part 40 of receives medical treatment away from this title. the scene of the accident; or (5) It must not allow a covered em- (ii) One or more motor vehicles in- ployee to begin performing safety-sen- curring disabling damage as a result of sitive functions unless the result of the the accident, requiring the motor vehi- employee’s test indicates an alcohol cle to be transported away from the concentration of less than 0.04. scene by a tow truck or other motor vehicle. § 382.303 Post-accident testing. (c) The following table notes when a (a) As soon as practicable following post-accident test is required to be con- an occurrence involving a commercial ducted by paragraphs (a)(1), (a)(2), motor vehicle operating on a public (b)(1), and (b)(2) of this section:

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TABLE FOR ¤ 382.303(A) AND (B)

Citation issued Test must be Type of accident involved to the CMV performed by driver employer

i. Human fatality ...... YES ...... YES. NO ...... YES. ii. Bodily injury with immediate YES ...... YES. medical treatment away from NO ...... NO. the scene. iii. Disabling damage to any motor YES ...... YES. vehicle requiring tow away. NO ...... NO.

(d)(1) Alcohol tests. If a test required motor vehicle, so that drivers will be by this section is not administered able to comply with the requirements within two hours following the acci- of this section. dent, the employer shall prepare and (g)(1) The results of a breath or blood maintain on file a record stating the test for the use of alcohol, conducted reasons the test was not promptly ad- by Federal, State, or local officials ministered. If a test required by this having independent authority for the section is not administered within test, shall be considered to meet the re- eight hours following the accident, the quirements of this section, provided employer shall cease attempts to ad- such tests conform to the applicable minister an alcohol test and shall pre- Federal, State or local alcohol testing pare and maintain the same record. requirements, and that the results of Records shall be submitted to the the tests are obtained by the employer. FMCSA upon request. (2) The results of a urine test for the (2) Controlled substance tests. If a test use of controlled substances, conducted required by this section is not adminis- by Federal, State, or local officials tered within 32 hours following the ac- having independent authority for the cident, the employer shall cease at- test, shall be considered to meet the re- tempts to administer a controlled sub- quirements of this section, provided stances test, and prepare and maintain such tests conform to the applicable on file a record stating the reasons the Federal, State or local controlled sub- test was not promptly administered. stances testing requirements, and that Records shall be submitted to the the results of the tests are obtained by FMCSA upon request. the employer. (e) A driver who is subject to post-accident testing shall remain readily (h) Exception. This section does not available for such testing or may be apply to: deemed by the employer to have re- (1) An occurrence involving only fused to submit to testing. Nothing in boarding or alighting from a stationary this section shall be construed to re- motor vehicle; or quire the delay of necessary medical (2) An occurrence involving only the attention for injured people following loading or unloading of cargo; or an accident or to prohibit a driver from (3) An occurrence in the course of the leaving the scene of an accident for the operation of a passenger car or a multi- period necessary to obtain assistance purpose passenger vehicle (as defined in responding to the accident, or to ob- in § 571.3 of this title) by an employer tain necessary emergency medical unless the motor vehicle is trans- care. porting passengers for hire or haz- (f) An employer shall provide drivers ardous materials of a type and quan- with necessary post-accident informa- tity that require the motor vehicle to tion, procedures and instructions, prior be marked or placarded in accordance to the driver operating a commercial with § 177.823 of this title.

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§ 382.305 Random testing. trator may lower this rate to 25 per- (a) Every employer shall comply with cent of all driver positions if the the requirements of this section. Every FMCSA Administrator determines that driver shall submit to random alcohol the data received under the reporting and controlled substance testing as re- requirements of § 382.403 for two con- quired in this section. secutive calendar years indicate that (b)(1) Except as provided in para- the violation rate is less than 1.0 per- graphs (c) through (e) of this section, cent but equal to or greater than 0.5 the minimum annual percentage rate percent. for random alcohol testing shall be 10 (e)(1) When the minimum annual per- percent of the average number of driver centage rate for random alcohol test- positions. ing is 10 percent, and the data received (2) Except as provided in paragraphs under the reporting requirements of (f) through (h) of this section, the min- § 382.403 for that calendar year indicate imum annual percentage rate for ran- that the violation rate is equal to or dom controlled substances testing shall greater than 0.5 percent, but less than be 50 percent of the average number of 1.0 percent, the FMCSA Administrator driver positions. will increase the minimum annual per- (c) The FMCSA Administrator’s deci- centage rate for random alcohol test- sion to increase or decrease the mining to 25 percent for all driver posi- imum annual percentage rate for alco- tions. hol testing is based on the reported (2) When the minimum annual per- violation rate for the entire industry. centage rate for random alcohol test- All information used for this deter- ing is 25 percent or less, and the data mination is drawn from the alcohol received under the reporting require- management information system re- ments of § 382.403 for that calendar year ports required by § 382.403. In order to indicate that the violation rate is ensure reliability of the data, the equal to or greater than 1.0 percent, FMCSA Administrator considers the the FMCSA Administrator will in- quality and completeness of the re- crease the minimum annual percentage ported data, may obtain additional in- rate for random alcohol testing to 50 formation or reports from employers, percent for all driver positions. and may make appropriate modifica- (f) The FMCSA Administrator’s deci- tions in calculating the industry viola- sion to increase or decrease the min- tion rate. In the event of a change in imum annual percentage rate for con- the annual percentage rate, the trolled substances testing is based on FMCSA Administrator will publish in the reported positive rate for the entire the FEDERAL REGISTER the new min- industry. All information used for this imum annual percentage rate for ran- determination is drawn from the con- dom alcohol testing of drivers. The new trolled substances management infor- minimum annual percentage rate for mation system reports required by random alcohol testing will be applica- § 382.403. In order to ensure reliability ble starting January 1 of the calendar of the data, the FMCSA Administrator year following publication in the considers the quality and completeness FEDERAL REGISTER. of the reported data, may obtain addi- (d)(1) When the minimum annual per- tional information or reports from em- centage rate for random alcohol test- ployers, and may make appropriate ing is 25 percent or more, the FMCSA modifications in calculating the indus- Administrator may lower this rate to try positive rate. In the event of a 10 percent of all driver positions if the change in the annual percentage rate, FMCSA Administrator determines that the FMCSA Administrator will publish the data received under the reporting in the FEDERAL REGISTER the new min- requirements of § 382.403 for two con- imum annual percentage rate for consecutive calendar years indicate that trolled substances testing of drivers. the violation rate is less than 0.5 per- The new minimum annual percentage cent. rate for random controlled substances (2) When the minimum annual per- testing will be applicable starting Jan- centage rate for random alcohol test- uary 1 of the calendar year following ing is 50 percent, the FMCSA Adminis- publication in the FEDERAL REGISTER.

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(g) When the minimum annual per- (k)(1) Each employer shall ensure centage rate for random controlled that random alcohol and controlled substances testing is 50 percent, the substances tests conducted under this FMCSA Administrator may lower this part are unannounced. rate to 25 percent of all driver positions (2) Each employer shall ensure that if the FMCSA Administrator deter- the dates for administering random al- mines that the data received under the cohol and controlled substances tests reporting requirements of § 382.403 for conducted under this part are spread two consecutive calendar years indi- reasonably throughout the calendar cate that the positive rate is less than year. 1.0 percent. (l) Each employer shall require that (h) When the minimum annual per- each driver who is notified of selection centage rate for random controlled for random alcohol and/or controlled substances testing is 25 percent, and substances testing proceeds to the test the data received under the reporting site immediately; provided, however, requirements of § 382.403 for any cal- that if the driver is performing a safe- endar year indicate that the reported ty-sensitive function, other than driv- positive rate is equal to or greater than ing a commercial motor vehicle, at the 1.0 percent, the FMCSA Administrator time of notification, the employer will increase the minimum annual per- shall instead ensure that the driver centage rate for random controlled ceases to perform the safety-sensitive substances testing to 50 percent of all function and proceeds to the testing driver positions. site as soon as possible. (i)(1) The selection of drivers for ran- (m) A driver shall only be tested for dom alcohol and controlled substances alcohol while the driver is performing testing shall be made by a scientif- safety-sensitive functions, just before ically valid method, such as a random the driver is to perform safety-sen- number table or a computer-based ran- sitive functions, or just after the driver dom number generator that is matched has ceased performing such functions. with drivers’ Social Security numbers, (n) If a given driver is subject to ran- payroll identification numbers, or dom alcohol or controlled substances other comparable identifying numbers. testing under the random alcohol or (2) Each driver selected for random controlled substances testing rules of alcohol and controlled substances test- more than one DOT agency for the ing under the selection process used, same employer, the driver shall be sub- shall have an equal chance of being ject to random alcohol and/or contested each time selections are made. trolled substances testing at the an- (3) Each driver selected for testing nual percentage rate established for shall be testing during the selection pe- the calendar year by the DOT agency riod. regulating more than 50 percent of the (j) The employer shall randomly se- driver’s function. lect a sufficient number of drivers for (o) If an employer is required to con- testing during each calendar year to duct random alcohol or controlled sub- equal an annual rate not less than the stances testing under the alcohol or minimum annual percentage rate for controlled substances testing rules of random alcohol and controlled sub- more than one DOT agency, the em- stances testing determined by the ployer may— FMCSA Administrator. If the employer (1) Establish separate pools for ran- conducts random testing for alcohol dom selection, with each pool con- and/or controlled substances through a taining the DOT-covered employees C/TPA, the number of drivers to be who are subject to testing at the same tested may be calculated for each indi- required minimum annual percentage vidual employer or may be based on rate; or the total number of drivers covered by (2) Randomly select such employees the C/TPA who are subject to random for testing at the highest minimum an- alcohol and/or controlled substances nual percentage rate established for testing at the same minimum annual the calendar year by any DOT agency percentage rate under this part. to which the employer is subject.

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§ 382.307 Reasonable suspicion testing. employer shall prepare and maintain (a) An employer shall require a driver on file a record stating the reasons the to submit to an alcohol test when the alcohol test was not promptly adminis- employer has reasonable suspicion to tered. If an alcohol test required by believe that the driver has violated the this section is not administered within prohibitions of subpart B of this part eight hours following the determina- concerning alcohol. The employer’s de- tion under paragraph (a) of this sec- termination that reasonable suspicion tion, the employer shall cease attempts exists to require the driver to undergo to administer an alcohol test and shall an alcohol test must be based on spe- state in the record the reasons for not cific, contemporaneous, articulable ob- administering the test. servations concerning the appearance, (2) Notwithstanding the absence of a behavior, speech or body odors of the reasonable suspicion alcohol test under driver. this section, no driver shall report for (b) An employer shall require a driver duty or remain on duty requiring the to submit to a controlled substances performance of safety-sensitive func- test when the employer has reasonable tions while the driver is under the in- suspicion to believe that the driver has fluence of or impaired by alcohol, as violated the prohibitions of subpart B shown by the behavioral, speech, and of this part concerning controlled sub- performance indicators of alcohol mis- stances. The employer’s determination use, nor shall an employer permit the that reasonable suspicion exists to require the driver to undergo a con- driver to perform or continue to per- trolled substances test must be based form safety-sensitive functions, until: on specific, contemporaneous, (i) An alcohol test is administered articulable observations concerning and the driver’s alcohol concentration the appearance, behavior, speech or measures less than 0.02; or body odors of the driver. The observa- (ii) Twenty four hours have elapsed tions may include indications of the following the determination under chronic and withdrawal effects of con- paragraph (a) of this section that there trolled substances. is reasonable suspicion to believe that (c) The required observations for al- the driver has violated the prohibitions cohol and/or controlled substances rea- in this part concerning the use of alco- sonable suspicion testing shall be made hol. by a supervisor or company official (3) Except as provided in paragraph who is trained in accordance with (e)(2) of this section, no employer shall § 382.603. The person who makes the de- take any action under this part against termination that reasonable suspicion a driver based solely on the driver’s be- exists to conduct an alcohol test shall havior and appearance, with respect to not conduct the alcohol test of the alcohol use, in the absence of an alco- driver. hol test. This does not prohibit an em- (d) Alcohol testing is authorized by ployer with independent authority of this section only if the observations re- this part from taking any action other- quired by paragraph (a) of this section wise consistent with law. are made during, just preceding, or just (f) A written record shall be made of after the period of the work day that the observations leading to an alcohol the driver is required to be in compli- or controlled substances reasonable ance with this part. A driver may be di- suspicion test, and signed by the super- rected by the employer to only undergo reasonable suspicion testing while the visor or company official who made the driver is performing safety-sensitive observations, within 24 hours of the ob- functions, just before the driver is to served behavior or before the results of perform safety-sensitive functions, or the alcohol or controlled substances just after the driver has ceased per- tests are released, whichever is earlier. forming such functions. (e)(1) If an alcohol test required by § 382.309 Return-to-duty testing. this section is not administered within The requirements for return-to-duty two hours following the determination testing must be performed in accord- under paragraph (a) of this section, the ance with 49 CFR part 40, Subpart O.

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§ 382.311 Follow-up testing. (c) Types of records. The following specific types of records shall be main- The requirements for follow-up test- tained. ‘‘Documents generated’’ are ing must be performed in accordance documents that may have to be pre- with 49 CFR part 40, Subpart O. pared under a requirement of this part. If the record is required to be prepared, Subpart D—Handling of Test Re- it must be maintained. sults, Records Retention, and (1) Records related to the collection Confidentiality process: (i) Collection logbooks, if used; § 382.401 Retention of records. (ii) Documents relating to the ran- (a) General requirement. Each em- dom selection process; ployer shall maintain records of its al- (iii) Calibration documentation for cohol misuse and controlled substances evidential breath testing devices; use prevention programs as provided in (iv) Documentation of breath alcohol this section. The records shall be main- technician training; tained in a secure location with con- (v) Documents generated in connec- trolled access. tion with decisions to administer rea- (b) Period of retention. Each employer sonable suspicion alcohol or controlled shall maintain the records in accord- substances tests; ance with the following schedule: (vi) Documents generated in connec- (1) Five years. The following records tion with decisions on post-accident shall be maintained for a minimum of tests; five years: (vii) Documents verifying existence of a medical explanation of the inabil- (i) Records of driver alcohol test re- ity of a driver to provide adequate sults indicating an alcohol concentra- breath or to provide a urine specimen tion of 0.02 or greater, for testing; and (ii) Records of driver verified positive (viii) Consolidated annual calendar controlled substances test results, year summaries as required by § 382.403. (iii) Documentation of refusals to (2) Records related to a driver’s test take required alcohol and/or controlled results: substances tests, (i) The employer’s copy of the alco- (iv) Driver evaluation and referrals, hol test form, including the results of (v) Calibration documentation, the test; (vi) Records related to the adminis- (ii) The employer’s copy of the con- tration of the alcohol and controlled trolled substances test chain of cus- substances testing programs, and tody and control form; (vii) A copy of each annual calendar (iii) Documents sent by the MRO to year summary required by § 382.403. the employer, including those required (2) Two years. Records related to the by part 40, subpart G, of this title; alcohol and controlled substances col- (iv) Documents related to the refusal lection process (except calibration of of any driver to submit to an alcohol or evidential breath testing devices). controlled substances test required by (3) One year. Records of negative and this part; canceled controlled substances test re- (v) Documents presented by a driver sults (as defined in part 40 of this title) to dispute the result of an alcohol or and alcohol test results with a con- controlled substances test adminis- centration of less than 0.02 shall be tered under this part; and maintained for a minimum of one year. (vi) Documents generated in connec- (4) Indefinite period. Records related tion with verifications of prior employ- to the education and training of breath ers’ alcohol or controlled substances alcohol technicians, screening test test results that the employer: technicians, supervisors, and drivers (A) Must obtain in connection with shall be maintained by the employer the exception contained in § 382.301, and while the individual performs the func- (B) Must obtain as required by tions which require the training and § 382.413. for two years after ceasing to perform (3) Records related to other viola- those functions. tions of this part.

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(4) Records related to evaluations: Federal Motor Carrier Safety Adminis- (i) Records pertaining to a deter- tration. mination by a substance abuse profes- (e) OMB control number. (1) The infor- sional concerning a driver’s need for mation collection requirements of this assistance; and part have been reviewed by the Office (ii) Records concerning a driver’s of Management and Budget pursuant to compliance with recommendations of the Paperwork Reduction Act of 1995 the substance abuse professional. (44 U.S.C. 3501 et seq.) and have been (5) Records related to education and assigned OMB control number 2126– training: 0012. (i) Materials on alcohol misuse and (2) The information collection re- controlled substance use awareness, in- quirements of this part are found in cluding a copy of the employer’s policy the following sections: Sections 382.105, on alcohol misuse and controlled sub- 382.113, 382.301, 382.303, 382.305, 382.307, stance use; 382.401, 382.403, 382.405, 382.409, 382.411, (ii) Documentation of compliance 382.601, 382.603. with the requirements of § 382.601, in- § 382.403 Reporting of results in a cluding the driver’s signed receipt of management information system. education materials; (a) An employer shall prepare and (iii) Documentation of training pro- maintain a summary of the results of vided to supervisors for the purpose of its alcohol and controlled substances qualifying the supervisors to make a testing programs performed under this determination concerning the need for part during the previous calendar year, alcohol and/or controlled substances when requested by the Secretary of testing based on reasonable suspicion; Transportation, any DOT agency, or (iv) Documentation of training for any State or local officials with regu- breath alcohol technicians as required latory authority over the employer or by § 40.213(a) of this title; and any of its drivers. (v) Certification that any training (b) If an employer is notified, during conducted under this part complies the month of January, of a request by with the requirements for such train- the Federal Motor Carrier Safety Ad- ing. ministration to report the employer’s (6) Administrative records related to annual calendar year summary infor- alcohol and controlled substances test- mation, the employer shall prepare and ing: submit the report to the FMCSA by (i) Agreements with collection site March 15 of that year. The employer facilities, laboratories, breath alcohol shall ensure that the annual summary technicians, screening test technicians, report is accurate and received by medical review officers, consortia, and March 15 at the location that the third party service providers; FMCSA specifies in its request. The re- (ii) Names and positions of officials port shall be in the form and manner and their role in the employer’s alcohol prescribed by the FMCSA in its re- and controlled substances testing pro- quest. When the report is submitted to gram(s); the FMCSA by mail or electronic (iii) Semi-annual laboratory statis- transmission, the information re- tical summaries of urinalysis required quested shall be typed, except for the by § 40.111(a) of this title; and signature of the certifying official. (iv) The employer’s alcohol and con- Each employer shall ensure the accu- trolled substances testing policy and racy and timeliness of each report sub- procedures. mitted by the employer or a consor- (d) Location of records. All records re- tium. quired by this part shall be maintained (c) Detailed summary. Each annual as required by § 390.31 of this sub- calendar year summary that contains chapter and shall be made available for information on a verified positive con- inspection at the employee’s principal trolled substances test result, an alco- place of business within two business hol screening test result of 0.02 or days after a request has been made by greater, or any other violation of the an authorized representative of the alcohol misuse provisions of subpart B

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of this part shall include the following (i) Had a verified positive controlled informational elements: substance test result, or (1) Number of drivers subject to this (ii) Engaged in prohibited alcohol part; misuse under the provisions of this (2) Number of drivers subject to test- part; ing under the alcohol misuse or con- (14) Number of drivers who were ad- trolled substances use rules of more ministered alcohol and drug tests at than one DOT agency, identified by the same time, with both a verified each agency; positive drug test result and an alcohol (3) Number of urine specimens col- test result indicating an alcohol con- lected by type of test (e.g., pre-employ- centration of 0.04 or greater; and ment, random, reasonable suspicion, (15) Number of drivers who were post-accident); found to have violated any non-testing (4) Number of positives verified by a prohibitions of subpart B of this part, MRO by type of test, and type of con- and any action taken in response to trolled substance; the violation. (5) Number of negative controlled (d) Short summary. Each employer’s substance tests verified by a MRO by annual calendar year summary that type of test; contains only negative controlled sub- (6) Number of persons denied a posi- stance test results, alcohol screening tion as a driver following a pre-employ- test results of less than 0.02, and does ment verified positive controlled sub- not contain any other violations of stances test and/or a pre-employment subpart B of this part, may prepare and alcohol test that indicates an alcohol submit, as required by paragraph (b) of concentration of 0.04 or greater; this section, either a standard report form containing all the information (7) Number of drivers with tests elements specified in paragraph (c) of verified positive by a medical review this section, or an ‘‘EZ’’ report form. officer for multiple controlled sub- The ‘‘EZ’’ report shall include the fol- stances; lowing information elements: (8) Number of drivers who refused to (1) Number of drivers subject to this submit to an alcohol or controlled subpart; stances test required under this sub- (2) Number of drivers subject to test- part, including those who submitted ing under the alcohol misuse or con- substituted or adulterated specimens; trolled substance use rules of more (9)(i) Number of supervisors who have than one DOT agency, identified by received required alcohol training dur- each agency; ing the reporting period; and (3) Number of urine specimens col- (ii) Number of supervisors who have lected by type of test (e.g., pre-employ- received required controlled substances ment, random, reasonable suspicion, training during the reporting period; post-accident); (10)(i) Number of screening alcohol (4) Number of negatives verified by a tests by type of test; and medical review officer by type of test; (ii) Number of confirmation alcohol (5) Number of drivers who refused to tests, by type of test; submit to an alcohol or controlled sub- (11) Number of confirmation alcohol stances test required under this sub- tests indicating an alcohol concentra- part, including those who submitted tion of 0.02 or greater but less than 0.04, substituted or adulterated specimens; by type of test; (6)(i) Number of supervisors who have (12) Number of confirmation alcohol received required alcohol training dur- tests indicating an alcohol concentra- ing the reporting period; and tion of 0.04 or greater, by type of test; (ii) Number of supervisors who have (13) Number of drivers who were re- received required controlled substances turned to duty (having complied with training during the reporting period; the recommendations of a substance (7) Number of screen alcohol tests by abuse professional as described in type of test; and § 382.503 and part 40, subpart O of this (8) Number of drivers who were re- title), in this reporting period, who pre- turned to duty (having complied with viously: the recommendations of a substance

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abuse professional as described in thority over the employer or any of its § 382.503 and part 40, subpart O, of this drivers. title), in this reporting period, who pre- (d) Each employer shall make avail- viously: able copies of all results for employer (i) Had a verified positive controlled alcohol and/or controlled substances substance test result, or testing conducted under this part and (ii) Engaged in prohibited alcohol any other information pertaining to misuse under the provisions of this the employer’s alcohol misuse and/or part. controlled substances use prevention (e) Each employer that is subject to program, when requested by the Sec- more than one DOT agency alcohol or retary of Transportation, any DOT controlled substances rule shall iden- agency, or any State or local officials tify each driver covered by the regula- with regulatory authority over the em- tions of more than one DOT agency. ployer or any of its drivers. The identification will be by the total number of covered functions. Prior to (e) When requested by the National conducting any alcohol or controlled Transportation Safety Board as part of substances test on a driver subject to an accident investigation, employers the rules of more than one DOT agen- shall disclose information related to cy, the employer shall determine which the employer’s administration of a DOT agency rule or rules authorizes or post-accident alcohol and/or controlled requires the test. The test result infor- substance test administered following mation shall be directed to the appro- the accident under investigation. priate DOT agency or agencies. (f) Records shall be made available to (f) A C/TPA may prepare annual cal- a subsequent employer upon receipt of endar year summaries and reports on a written request from a driver. Disclo- behalf of individual employers for pur- sure by the subsequent employer is per- poses of compliance with this section. mitted only as expressly authorized by However, each employer shall sign and the terms of the driver’s request. submit such a report and shall remain (g) An employer may disclose infor- responsible for ensuring the accuracy mation required to be maintained and timeliness of each report prepared under this part pertaining to a driver on its behalf by a C/TPA. to the decision maker in a lawsuit, grievance, or administrative pro- § 382.405 Access to facilities and records. ceeding initiated by or on behalf of the individual, and arising from a positive (a) Except as required by law or ex- DOT drug or alcohol test or a refusal to pressly authorized or required in this test (including, but not limited to, section, no employer shall release driv- adulterated or substituted test results) er information that is contained in of this part (including, but not limited records required to be maintained to, a worker’s compensation, unem- under § 382.401. (b) A driver is entitled, upon written ployment compensation, or other pro- request, to obtain copies of any records ceeding relating to a benefit sought by pertaining to the driver’s use of alcohol the driver). Additionally, an employer or controlled substances, including any may disclose information in criminal records pertaining to his or her alcohol or civil actions in accordance with or controlled substances tests. The em- § 40.323(a)(2) of this title. ployer shall promptly provide the (h) An employer shall release infor- records requested by the driver. Access mation regarding a driver’s records as to a driver’s records shall not be con- directed by the specific written consent tingent upon payment for records other of the driver authorizing release of the than those specifically requested. information to an identified person. (c) Each employer shall permit ac- Release of such information by the per- cess to all facilities utilized in com- son receiving the information is per- plying with the requirements of this mitted only in accordance with the part to the Secretary of Transpor- terms of the employee’s specific writ- tation, any DOT agency, or any State ten consent as outlined in § 40.321(b) of or local officials with regulatory au- this title.

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§ 382.407 Medical review officer notifi- which controlled substance or sub- cations to the employer. stances were verified as positive. (b) The designated employer rep- Medical review officers shall report resentative shall make reasonable ef- the results of controlled substances forts to contact and request each driv- tests to employers in accordance with er who submitted a specimen under the the requirements of part 40, Subpart G, employer’s program, regardless of the of this title. driver’s employment status, to contact § 382.409 Medical review officer record and discuss the results of the con- retention for controlled substances. trolled substances test with a medical review officer who has been unable to (a) A medical review officer or third contact the driver. party administrator shall maintain all (c) The designated employer rep- dated records and notifications, identi- resentative shall immediately notify fied by individual, for a minimum of the medical review officer that the five years for verified positive con- driver has been notified to contact the trolled substances test results. medical review officer within 72 hours. (b) A medical review officer or third party administrator shall maintain all § 382.413 Inquiries for alcohol and con- dated records and notifications, identi- trolled substances information from fied by individual, for a minimum of previous employers. one year for negative and canceled con- Employers shall request alcohol and trolled substances test results. controlled substances information (c) No person may obtain the indi- from previous employers in accordance vidual controlled substances test re- with the requirements of § 40.25 of this sults retained by a medical review offi- title. cer or third party administrator, and no medical review officer or third Subpart E—Consequences for party administrator shall release the Drivers Engaging in Substance individual controlled substances test Use-Related Conduct results of any driver to any person, without first obtaining a specific, writ- § 382.501 Removal from safety-sen- ten authorization from the tested driv- sitive function. er. Nothing in this paragraph (c) shall (a) Except as provided in subpart F of prohibit a medical review officer or this part, no driver shall perform safe- third party administrator from releas- ty-sensitive functions, including driving, to the employer or to officials of ing a commercial motor vehicle, if the the Secretary of Transportation, any driver has engaged in conduct prohib- DOT agency, or any State or local offi- ited by subpart B of this part or an al- cials with regulatory authority over cohol or controlled substances rule of the controlled substances testing pro- another DOT agency. gram under this part, the information (b) No employer shall permit any delineated in part 40, Subpart G, of this driver to perform safety-sensitive func- title. tions; including driving a commercial motor vehicle, if the employer has de- § 382.411 Employer notifications. termined that the driver has violated (a) An employer shall notify a driver this section. of the results of a pre-employment con- (c) For purposes of this subpart, com- trolled substances test conducted mercial motor vehicle means a com- under this part, if the driver requests mercial motor vehicle in commerce as such results within 60 calendar days of defined in § 382.107, and a commercial being notified of the disposition of the motor vehicle in interstate commerce employment application. An employer as defined in part 390 of this sub- shall notify a driver of the results of chapter. random, reasonable suspicion and post- accident tests for controlled substances § 382.503 Required evaluation and test- conducted under this part if the test ing. results are verified positive. The em- No driver who has engaged in con- ployer shall also inform the driver duct prohibited by subpart B of this

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part shall perform safety-sensitive Subpart F—Alcohol Misuse and functions, including driving a commer- Controlled Substances Use In- cial motor vehicle, unless the driver formation, Training, and Refer- has met the requirements of part 40, ral subpart O, of this title. No employer shall permit a driver who has engaged § 382.601 Employer obligation to pro- in conduct prohibited by subpart B of mulgate a policy on the misuse of this part to perform safety-sensitive alcohol and use of controlled sub- functions, including driving a commer- stances. cial motor vehicle, unless the driver (a) General requirements. Each em- has met the requirements of part 40, ployer shall provide educational mate- subpart O, of this title. rials that explain the requirements of this part and the employer’s policies § 382.505 Other alcohol-related con- and procedures with respect to meeting duct. these requirements. (a) No driver tested under the provi- (1) The employer shall ensure that a sions of subpart C of this part who is copy of these materials is distributed found to have an alcohol concentration to each driver prior to the start of al- of 0.02 or greater but less than 0.04 cohol and controlled substances testing shall perform or continue to perform under this part and to each driver sub- safety-sensitive functions for an em- sequently hired or transferred into a ployer, including driving a commercial position requiring driving a commer- motor vehicle, nor shall an employer cial motor vehicle. permit the driver to perform or con- (2) Each employer shall provide writ- tinue to perform safety-sensitive func- ten notice to representatives of em- tions, until the start of the driver’s ployee organizations of the availability next regularly scheduled duty period, of this information. but not less than 24 hours following ad- (b) Required content. The materials to ministration of the test. be made available to drivers shall include detailed discussion of at least the (b) Except as provided in paragraph following: (a) of this section, no employer shall (1) The identity of the person des- take any action under this part against ignated by the employer to answer a driver based solely on test results driver questions about the materials; showing an alcohol concentration less (2) The categories of drivers who are than 0.04. This does not prohibit an em- subject to the provisions of this part; ployer with authority independent of (3) Sufficient information about the this part from taking any action other- safety-sensitive functions performed by wise consistent with law. those drivers to make clear what period of the work day the driver is re- § 382.507 Penalties. quired to be in compliance with this Any employer or driver who violates part; the requirements of this part shall be (4) Specific information concerning subject to the civil and/or criminal driver conduct that is prohibited by penalty provisions of 49 U.S.C. 521(b). this part; In addition, any employer or driver (5) The circumstances under which a who violates the requirements of 49 driver will be tested for alcohol and/or CFR part 40 shall be subject to the civil controlled substances under this part, and/or criminal penalty provisions of 49 including post-accident testing under U.S.C. 521(b). § 382.303(d); (6) The procedures that will be used to test for the presence of alcohol and

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controlled substances, protect the driv- may provide a copy of the certificate er and the integrity of the testing proc- to the driver. esses, safeguard the validity of the test results, and ensure that those results § 382.603 Training for supervisors. are attributed to the correct driver, in- Each employer shall ensure that all cluding post-accident information, pro- persons designated to supervise drivers cedures and instructions required by receive at least 60 minutes of training § 382.303(d); on alcohol misuse and receive at least (7) The requirement that a driver an additional 60 minutes of training on submit to alcohol and controlled sub- controlled substances use. The training stances tests administered in accord- will be used by the supervisors to de- ance with this part; termine whether reasonable suspicion (8) An explanation of what con- exists to require a driver to undergo stitutes a refusal to submit to an alco- testing under § 382.307. The training hol or controlled substances test and shall include the physical, behavioral, the attendant consequences; speech, and performance indicators of (9) The consequences for drivers probable alcohol misuse and use of con- found to have violated subpart B of trolled substances. Recurrent training this part, including the requirement for supervisory personnel is not re- that the driver be removed imme- quired. diately from safety-sensitive functions, § 382.605 Referral, evaluation, and and the procedures under part 40, sub- treatment. part O, of this title; The requirements for referral, eval- (10) The consequences for drivers uation, and treatment must be per- found to have an alcohol concentration formed in accordance with 49 CFR part of 0.02 or greater but less than 0.04; 40, Subpart O. (11) Information concerning the effects of alcohol and controlled sub- PART 383—COMMERCIAL DRIVER’S stances use on an individual’s health, work, and personal life; signs and LICENSE STANDARDS; REQUIRE- symptoms of an alcohol or a controlled MENTS AND PENALTIES substances problem (the driver’s or a co-worker’s); and available methods of Subpart A—General intervening when an alcohol or a con- Sec. trolled substances problem is sus- 383.1 Purpose and scope. pected, including confrontation, refer- 383.3 Applicability. ral to any employee assistance pro- 383.5 Definitions. gram and or referral to management. 383.7 Validity of CDL issued by decertified states. (c) Optional provision. The materials supplied to drivers may also include in- Subpart B—Single License Requirement formation on additional employer policies with respect to the use of alcohol 383.21 Number of drivers’ licenses. 383.23 Commercial driver’s license. or controlled substances, including any consequences for a driver found to have Subpart C—Notification Requirements and a specified alcohol or controlled sub- Employer Responsibilities stances level, that are based on the employer’s authority independent of this 383.31 Notification of convictions for driver part. Any such additional policies or violations. consequences must be clearly and obvi- 383.33 Notification of driver’s license suspensions. ously described as being based on inde- 383.35 Notification of previous employment. pendent authority. 383.37 Employer responsibilities. (d) Certificate of receipt. Each employer shall ensure that each driver is Subpart D—Driver Disqualifications and required to sign a statement certifying Penalties that he or she has received a copy of 383.51 Disqualification of drivers. these materials described in this sec- 383.52 Disqualification of drivers deter- tion. Each employer shall maintain the mined to constitute an imminent hazard. original of the signed certificate and 383.53 Penalties.

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Subpart E—Testing and Licensing mercial motor vehicles in an unsafe Procedures manner. (b) This part: 383.71 Driver application procedures. (1) Prohibits a commercial motor ve- 383.72 Implied consent to alcohol testing. 383.73 State procedures. hicle driver from having more than one 383.75 Third party testing. commercial motor vehicle driver’s li- 383.77 Substitute for driving skills tests. cense; (2) Requires a driver to notify the Subpart F—Vehicle Groups and driver’s current employer and the driv- Endorsements er’s State of domicile of certain convictions; 383.91 Commercial motor vehicle groups. 383.93 Endorsements. (3) Requires that a driver provide pre- 383.95 Air brake restrictions. vious employment information when applying for employment as an oper- Subpart G—Required Knowledge and Skills ator of a commercial motor vehicle; (4) Prohibits an employer from allow- 383.110 General requirement. ing a person with a suspended license 383.111 Required knowledge. 383.113 Required skills. to operate a commercial motor vehicle; 383.115 Requirements for double/triple trail- (5) Establishes periods of disquali- ers endorsement. fication and penalties for those persons 383.117 Requirements for passenger endorse- convicted of certain criminal and other ment. offenses and serious traffic violations, 383.119 Requirements for tank vehicle en- or subject to any suspensions, revoca- dorsement. tions, or cancellations of certain driv- 383.121 Requirements for hazardous materials endorsement. ing privileges; (6) Establishes testing and licensing APPENDIX TO SUBPART G—REQUIRED KNOWL- requirements for commercial motor ve- EDGE AND SKILLS—SAMPLE GUIDELINES hicle operators; Subpart H—Tests (7) Requires States to give knowledge and skills tests to all qualified appli- 383.131 Test procedures. cants for commercial drivers’ licenses 383.133 Testing methods. which meet the Federal standard; 383.135 Minimum passing scores. (8) Sets forth commercial motor ve- Subpart I [Reserved] hicle groups and endorsements; (9) Sets forth the knowledge and Subpart J—Commercial Driver’s License skills test requirements for the motor Document vehicle groups and endorsements; (10) Sets forth the Federal standards 383.151 General. for procedures, methods, and minimum 383.153 Information on the document and passing scores for States and others to application. 383.155 Tamperproofing requirements. use in testing and licensing commercial motor vehicle operators; and AUTHORITY: 49 U.S.C. 521, 31136, 31301 et seq., (11) Establishes requirements for the 31502; Sec. 214 of Pub. L. 106–159, 113 Stat. State issued commercial license docu- 1766; and 49 CFR 1.73. mentation. SOURCE: 52 FR 20587, June 1, 1987, unless otherwise noted. [52 FR 20587, June 1, 1987, as amended at 53 FR 27648, July 21, 1988; 54 FR 40787, Oct. 3, EDITORIAL NOTE: Nomenclature changes to 1989] part 383 appear at 66 FR 49872, Oct. 1, 2001. § 383.3 Applicability. Subpart A—General (a) The rules in this part apply to every person who operates a commer- § 383.1 Purpose and scope. cial motor vehicle (CMV) in interstate, (a) The purpose of this part is to help foreign, or intrastate commerce, to all reduce or prevent truck and bus acci- employers of such persons, and to all dents, fatalities, and injuries by requir- States. ing drivers to have a single commercial (b) The exceptions contained in motor vehicle driver’s license and by §390.3(f) of this subchapter do not apply disqualifying drivers who operate com- to this part. The employers and drivers

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identified in §390.3(f) must comply with boundaries of that unit for the purpose the requirements of this part, unless of removing snow or ice from a road- otherwise provided in this section. way by plowing, sanding, or salting, if (c) Exception for certain military driv- (A) The properly licensed employee ers. Each State must exempt from the who ordinarily operates a commercial requirements of this part individuals motor vehicle for these purposes is un- who operate CMVs for military pur- able to operate the vehicle; or poses. This exception is applicable to (B) The employing governmental en- active duty military personnel; mem- tity determines that a snow or ice bers of the military reserves; member emergency exists that requires addi- of the national guard on active duty, tional assistance. including personnel on full-time na- (ii) This exemption shall not preempt tional guard duty, personnel on part- State laws and regulations concerning time national guard training, and na- the safe operation of commercial tional guard military technicians motor vehicles. (civilians who are required to wear (e) Restricted commercial drivers license military uniforms); and active duty (CDL) for certain drivers in the State of U.S. Coast Guard personnel. This ex- Alaska. (1) The State of Alaska may, at ception is not applicable to U.S. Re- its discretion, waive only the following serve technicians. requirements of this part and issue a (d) Exception for farmers, firefighters, CDL to each driver that meets the con- emergency response vehicle drivers, and ditions set forth in paragraphs (e) (2) drivers removing snow and ice. A State and (3) of this section: may, at its discretion, exempt individ- (i) The knowledge tests standards for uals identified in paragraphs (d)(1), testing procedures and methods of sub- (d)(2), and (d)(3) of this section from part H, but must continue to admin- the requirements of this part. The use ister knowledge tests that fulfill the of this waiver is limited to the driver’s content requirements of subpart G for home State unless there is a reci- all applicants; procity agreement with adjoining (ii) All the skills test requirements; States. and (1) Operators of a farm vehicle which (iii) The requirement under is: § 383.153(a)(4) to have a photograph on (i) Controlled and operated by a the license document. farmer, including operation by employ- (2) Drivers of CMVs in the State of ees or family members; Alaska must operate exclusively over (ii) Used to transport either agricul- roads that meet both of the following tural products, farm machinery, farm criteria to be eligible for the exception supplies, or both to or from a farm; in paragraph (e)(1) of this section: (iii) Not used in the operations of a (i) Such roads are not connected by common or contract motor carrier; and land highway or vehicular way to the (iv) Used within 241 kilometers (150 land-connected State highway system; miles) of the farmer’s farm. and (2) Firefighters and other persons (ii) Such roads are not connected to who operate CMVs which are necessary any highway or vehicular way with an to the preservation of life or property average daily traffic volume greater or the execution of emergency govern- than 499. mental functions, are equipped with (3) Any CDL issued under the terms audible and visual signals and are not of this paragraph must carry two re- subject to normal traffic regulation. strictions: These vehicles include fire trucks, (i) Holders may not operate CMVs hook and ladder trucks, foam or water over roads other than those specified in transport trucks, police SWAT team paragraph (e)(2) of this section; and vehicles, ambulances, or other vehicles (ii) The license is not valid for CMV that are used in response to emer- operation outside the State of Alaska. gencies. (f) Restricted CDL for certain drivers in (3)(i) A driver, employed by an eligi- farm-related service industries. (1) A ble unit of local government, operating State may, at its discretion, waive the a commercial motor vehicle within the required knowledge and skills tests of

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subpart H of this part and issue re- connection with any traffic accident, stricted CDLs to employees of these and has no record of an accident in designated farm-related service indus- which he/she was at fault. tries: (ii) Restricted CDLs shall have the (i) Agri-chemical businesses; same renewal cycle as unrestricted (ii) Custom harvesters; CDLs, but shall be limited to the sea- (iii) Farm retail outlets and sup- sonal period or periods as defined by pliers; the State of licensure, provided that (iv) Livestock feeders. the total number of calendar days in (2) A restricted CDL issued pursuant any 12-month period for which the re- to this paragraph shall meet all the restricted CDL is valid does not exceed quirements of this part, except subpart 180. If a State elects to provide for H of this part. A restricted CDL issued more than one seasonal period, the re- pursuant to this paragraph shall be ac- stricted CDL is valid for commercial corded the same reciprocity as a CDL motor vehicle operation only during meeting all of the requirements of this the currently approved season, and part. The restrictions imposed upon must be revalidated for each successive the issuance of this restricted CDL season. Only one seasonal period of va- shall not limit a person’s use of the lidity may appear on the license docu- CDL in a non-CMV during either vali- ment at a time. The good driving dated or non-validated periods, nor record must be confirmed prior to any shall the CDL affect a State’s power to renewal or revalidation. administer its driver licensing program (iii) Restricted CDL holders are lim- for operators of vehicles other than ited to operating Group B and C vehi- CMVs. cles, as described in subpart F of this (3) A State issuing a CDL under the part. terms of this paragraph must restrict (iv) Restricted CDLs shall not be issuance as follows: issued with any endorsements on the li- (i) Applicants must have a good driv- cense document. Only the limited tank ing record as defined in this paragraph. vehicle and hazardous materials en- Drivers who have not held any motor dorsement privileges that the re- vehicle operator’s license for at least stricted CDL automatically confers one year shall not be eligible for this and are described in paragraph (f)(3)(v) CDL. Drivers who have between one of this section are permitted. and two years of driving experience (v) Restricted CDL holders may not must demonstrate a good driving drive vehicles carrying any placardable record for their entire driving history. quantities of hazardous materials, ex- Drivers with more than two years of cept for diesel fuel in quantities of 3,785 driving experience must have a good liters (1,000 gallons) or less; liquid fer- driving record for the two most recent tilizers (i.e., plant nutrients) in vehi- years. For the purposes of this para- cles or implements of husbandry in graph, the term good driving record total quantities of 11,355 liters (3,000 means that an applicant: gallons) or less; and solid fertilizers (A) Has not had more than one li- (i.e., solid plant nutrients) that are not cense (except in the instances specified transported with any organic sub- in § 383.21(b)); stance. (B) Has not had any license sus- (vi) Restricted CDL holders may not pended, revoked, or canceled; hold an unrestricted CDL at the same (C) Has not had any conviction for time. any type of motor vehicle for the dis- (vii) Restricted CDL holders may not qualifying offenses contained in operate a commercial motor vehicle § 383.51(b); beyond 241 kilometers (150 miles) from (D) Has not had any conviction for the place of business or the farm cur- any type of motor vehicle for serious rently being served. traffic violations; and (g) Restricted CDL for certain drivers in (E) Has not had any conviction for a the pyrotechnic industry. (1) A State violation of State or local law relating may, at its discretion, waive the re- to motor vehicle traffic control (other quired hazardous materials knowledge than a parking violation) arising in tests of subpart H of this part and issue

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restricted CDLs to part-time drivers (5) Persons who operate commercial operating commercial motor vehicles motor vehicles during the period from transporting less than 227 kilograms July 7 through June 29 for purposes of (500 pounds) of fireworks classified as transporting less than 227 kilograms DOT Class 1.3G explosives. (500 pounds) of fireworks classified as (2) A State issuing a CDL under the DOT Class 1.3G explosives in a vehicle terms of this paragraph must restrict with a GVWR of less than 4,537 kilo- issuance as follows: grams (10,001 pounds) and who also op- (i) The GVWR of the vehicle to be operate such vehicles for the same pur- erated must be less than 4,537 kilo- poses during the period June 30 grams (10,001 pounds); through July 6 shall not be issued a re- (ii) If a State believes, at its discre- stricted CDL pursuant to this para- tion, that the training required by graph. § 172.704 of this title adequately prepares part-time drivers meeting the [61 FR 9564, Mar. 8, 1996, as amended at 61 FR 14679, Apr. 3, 1996; 62 FR 1296, Jan. 9, 1997; 67 other requirements of this paragraph FR 49755, July 31, 2002] to deal with fireworks and the other potential dangers posed by fireworks § 383.5 Definitions. transportation and use, the State may waive the hazardous materials knowl- As used in this part: edge tests of subpart H of this part. Administrator means the Federal The State may impose any require- Motor Carrier Safety Administrator, ments it believes is necessary to ensure the chief executive of the Federal itself that a driver is properly trained Motor Carrier Safety Administration, pursuant to § 172.704 of this title. an agency within the Department of (iii) A restricted CDL document Transportation. issued pursuant to this paragraph shall Alcohol or alcoholic beverage means: have a statement clearly imprinted on (a) Beer as defined in 26 U.S.C. 5052(a), the face of the document that is sub- of the Internal Revenue Code of 1954, stantially similar as follows: ‘‘For use (b) wine of not less than one-half of one as a CDL only during the period from per centum of alcohol by volume, or (c) June 30 through July 6 for purposes of distilled spirits as defined in section transporting less than 227 kilograms 5002(a)(8), of such Code. (500 pounds) of fireworks classified as Alcohol concentration (AC) means the DOT Class 1.3G explosives in a vehicle concentration of alcohol in a person’s with a GVWR of less than 4,537 kilo- blood or breath. When expressed as a grams (10,001 pounds). percentage it means grams of alcohol (3) A restricted CDL issued pursuant per 100 milliliters of blood or grams of to this paragraph shall meet all the re- alcohol per 210 liters of breath. quirements of this part, except those Commerce means (a) any trade, traffic specifically identified. A restricted or transportation within the jurisdic- CDL issued pursuant to this paragraph tion of the United States between a shall be accorded the same reciprocity place in a State and a place outside of as a CDL meeting all of the require- such State, including a place outside of ments of this part. The restrictions im- the United States and (b) trade, traffic, posed upon the issuance of this re- and transportation in the United stricted CDL shall not limit a person’s States which affects any trade, traffic, use of the CDL in a non-CMV during ei- and transportation described in para- ther validated or non-validated peri- graph (a) of this definition. ods, nor shall the CDL affect a State’s Commercial driver’s license (CDL) power to administer its driver licensing means a license issued by a State or program for operators of vehicles other other jurisdiction, in accordance with than CMVs. the standards contained in 49 CFR part (4) Restricted CDLs shall have the 383, to an individual which authorizes same renewal cycle as unrestricted the individual to operate a class of a CDLs, but shall be limited to the sea- commercial motor vehicle. sonal period of June 30 through July 6 Commercial driver’s license information of each year or a lesser period as de- system (CDLIS) means the CDLIS estab- fined by the State of licensure. lished by FMCSA pursuant to section

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12007 of the Commercial Motor Vehicle than parking, vehicle weight or vehicle Safety Act of 1986. defect violations). Commercial motor vehicle (CMV) means (c) A determination by the FMCSA a motor vehicle or combination of that a person is not qualified to oper- motor vehicles used in commerce to ate a commercial motor vehicle under transport passengers or property if the part 391 of this chapter. motor vehicle— Driver applicant means an individual (a) Has a gross combination weight who applies to a State to obtain, trans- rating of 11,794 kilograms or more fer, upgrade, or renew a CDL. (26,001 pounds or more) inclusive of a Driver’s license means a license issued towed unit with a gross vehicle weight by a State or other jurisdiction, to an rating of more than 4,536 kilograms individual which authorizes the indi- (10,000 pounds); or vidual to operate a motor vehicle on (b) Has a gross vehicle weight rating the highways. of 11,794 or more kilograms (26,001 Driving a commercial motor vehicle pounds or more); or while under the influence of alcohol (c) Is designed to transport 16 or means committing any one or more of more passengers, including the driver; the following acts in a CMV— or (a) Driving a CMV while the person’s (d) Is of any size and is used in the alcohol concentration is 0.04 or more; transportation of materials found to be (b) Driving under the influence of al- hazardous for the purposes of the Haz- cohol, as prescribed by State law; or ardous Materials Transportation Act (c) Refusal to undergo such testing as and which require the motor vehicle to is required by any State or jurisdiction be placarded under the Hazardous Ma- in the enforcement of § 383.51(b) or terials Regulations (49 CFR part 172, § 392.5(a)(2) of this subchapter. subpart F). Controlled substance has the meaning Eligible unit of local government means such term has under 21 U.S.C. 802(6) a city, town, borough, county, parish, and includes all substances listed on district, or other public body created schedules I through V of 21 CFR 1308 by or pursuant to State law which has (§§ 1308.11 through 1308.15), as they may a total population of 3,000 individuals be amended by the United States De- or less. partment of Justice. Employee means any operator of a Conviction means an unvacated adju- commercial motor vehicle, including dication of guilt, or a determination full time, regularly employed drivers; that a person has violated or failed to casual, intermittent or occasional driv- comply with the law in a court of origi- ers; leased drivers and independent, nal jurisdiction or by an authorized ad- owner-operator contractors (while in ministrative tribunal, an unvacated the course of operating a commercial forfeiture of bail or collateral depos- motor vehicle) who are either directly ited to secure the person’s appearance employed by or under lease to an em- in court, a plea of guilty or nolo ployer. contendere accepted by the court, the Employer means any person payment of a fine or court cost, or vio- (including the United States, a State, lation of a condition of release without District of Columbia or a political sub- bail, regardless of whether or not the division of a State) who owns or leases penalty is rebated, suspended, or pro- a commercial motor vehicle or assigns bated.’’ employees to operate such a vehicle. Disqualification means any of the fol- Endorsement means an authorization lowing three actions: to an individual’s CDL required to per- (a) The suspension, revocation, or mit the individual to operate certain cancellation of a CDL by the State or types of commercial motor vehicles. jurisdiction of issuance. Fatality means the death of a person (b) Any withdrawal of a person’s as a result of a motor vehicle accident. privileges to drive a CMV by a State or Felony means an offense under State other jurisdiction as the result of a vio- or Federal law that is punishable by lation of State or local law relating to death or imprisonment for a term ex- motor vehicle traffic control (other ceeding 1 year.

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Foreign means outside the fifty North American Uniform Out-of-Serv- United States and the District of Co- ice Criteria. lumbia. Representative vehicle means a motor Gross combination weight rating vehicle which represents the type of (GCWR) means the value specified by motor vehicle that a driver applicant the manufacturer as the loaded weight operates or expects to operate. of a combination (articulated) vehicle. School bus means a CMV used to In the absence of a value specified by transport pre-primary, primary, or sec- the manufacturer, GCWR will be deter- ondary school students from home to mined by adding the GVWR of the school, from school to home, or to and power unit and the total weight of the from school-sponsored events. School towed unit and any load thereon. bus does not include a bus used as a Gross vehicle weight rating (GVWR) common carrier. means the value specified by the manu- Serious traffic violation means convic- facturer as the loaded weight of a sin- tion of any of the following offenses gle vehicle. when operating a CMV, except weight, Hazardous materials has the meaning defect and parking violations: such term has under section 103 of the (a) Excessive speeding, involving any Hazardous Materials Transportation Act. single offense for any speed of 15 miles per hour or more above the posted Imminent hazard means the existence of a condition that presents a substan- speed limit; tial likelihood that death, serious ill- (b) Reckless driving, as defined by ness, severe personal injury, or a sub- State or local law or regulation, in- stantial endangerment to health, prop- cluding but not limited to offenses of erty, or the environment may occur be- driving a CMV in willful or wanton dis- fore the reasonably foreseeable comple- regard for the safety of persons or tion date of a formal proceeding begun property; to lessen the risk of that death, illness, (c) Improper or erratic traffic lane injury or endangerment. changes; Motor vehicle means a vehicle, ma- (d) Following the vehicle ahead too chine, tractor, trailer, or semitrailer closely; propelled or drawn by mechanical (e) A violation, arising in connection power used on highways, except that with a fatal accident, of State or local such term does not include a vehicle, law relating to motor vehicle traffic machine, tractor, trailer, semitrailer control; operated exclusively on a rail. (f) Driving a CMV without obtaining Nonresident CDL means a CDL issued a CDL; by a State under either of the following (g) Driving a CMV without a CDL in two conditions: the driver’s possession. Any individual (a) To an individual domiciled in a who provides proof to the enforcement foreign country meeting the require- authority that issued the citation, by ments of § 383.23(b)(1). the date the individual must appear in (b) To an individual domiciled in an- court or pay any fine for such a viola- other State meeting the requirements tion, that the individual held a valid of § 383.23(b)(2). CDL on the date the citation was Non-CMV means a motor vehicle or issued, shall not be guilty of this of- combination of motor vehicles not defined by the term ‘‘commercial motor fense; or vehicle (CMV)’’ in this section. (h) Driving a CMV without the proper Out-of-service order means a declara- class of CDL and/or endorsements for tion by an authorized enforcement offi- the specific vehicle group being oper- cer of a Federal, State, Canadian, ated or for the passengers or type of Mexican, or local jurisdiction that a cargo being transported. driver, a commercial motor vehicle, or State means a State of the United a motor carrier operation, is out-of- States and the District of Columbia. service pursuant to §§ 386.72, 392.5, State of domicile means that State 395.13, 396.9, or compatible laws, or the where a person has his/her true, fixed,

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and permanent home and principal res- and H of this part for the commercial idence and to which he/she has the in- motor vehicle that person operates or tention of returning whenever he/she is expects to operate. absent. (2) Except as provided in paragraph Tank vehicle means any commercial (b) of this section, no person may le- motor vehicle that is designed to trans- gally operate a CMV unless such person port any liquid or gaseous materials possesses a CDL which meets the within a tank that is either perma- standards contained in subpart J of nently or temporarily attached to the this part, issued by his/her State or ju- vehicle or the chassis. Such vehicles risdiction of domicile. include, but are not limited to, cargo (b) Exception. (1) If a CMV operator is tanks and portable tanks, as defined in not domiciled in a foreign jurisdiction part 171 of this title. However, this def- which the Administrator has deter- inition does not include portable tanks mined tests drivers and issues CDLs in having a rated capacity under 1,000 gal- accordance with, or under standards lons. similar to, the standards contained in United States the term United States subparts F, G, and H of this part, the means the 50 States and the District of person may obtain a Nonresident CDL Columbia. from a State which does comply with Vehicle means a motor vehicle unless the testing and licensing standards otherwise specified. contained in such subparts F, G, and H Vehicle group means a class or type of of this part.1 vehicle with certain operating characteristics. (2) If an individual is domiciled in a State while that State is prohibited [52 FR 20587, June 1, 1987, as amended at 53 from issuing CDLs in accordance with FR 27648, July 21, 1988; 53 FR 39050, Oct. 4, § 384.405 of this subchapter, that indi- 1988; 54 FR 40787, Oct. 3, 1989; 59 FR 26028, vidual is eligible to obtain a Non- May 18, 1994; 61 FR 9566, Mar. 8, 1996; 61 FR 14679, Apr. 3, 1996; 62 FR 37151, July 11, 1997; resident CDL from any State that 67 FR 49756, July 31, 2002] elects to issue a Nonresident CDL and which complies with the testing and li- § 383.7 Validity of CDL issued by de- censing standards contained in sub- certified State. parts F, G, and H of this part. A CDL issued by a State prior to the (c) Learner’s permit. State learner’s date the State is notified by the Ad- permits, issued for limited time periods ministrator, in accordance with the according to State requirements, shall provisions of § 384.405 of this sub- be considered valid commercial drivers’ chapter, that the State is prohibited licenses for purposes of behind-the- from issuing CDLs, will remain valid wheel training on public roads or high- until its stated expiration date. ways, if the following minimum conditions are met: [67 FR 49756, July 31, 2002]

Subpart B—Single License 1 Effective December 29, 1988, the Adminis- trator determined that commercial drivers’ Requirement licensees issued by Canadian Provinces and Territories in conformity with the Canadian § 383.21 Number of drivers’ licenses. National Safety Code are in accordance with No person who operates a commercial the standards of this part. Effective Novem- motor vehicle shall at any time have ber 21, 1991, the Administrator determined more than one driver’s license. that the new Licencias Federales de Con- ductor issued by the United Mexican States [64 FR 48110, Sept. 2, 1999] are in accordance with the standards of this part. Therefore, under the single license pro- § 383.23 Commercial driver’s license. vision of § 383.21, a driver holding a commer- (a) General rule. (1) Effective April 1, cial driver’s license issued under the Cana- 1992, no person shall operate a commer- dian National Safety Code or a new Licencia Federal de Conductor issued by Mexico is cial motor vehicle unless such person prohibited from obtaining nonresident CDL, has taken and passed written and driv- or any other type of driver’s license, from a ing tests which meet the Federal State or other jurisdiction in the United standards contained in subparts F, G, States.

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(1) The learner’s permit holder is at (4) The specific criminal or other of- all time accompanied by the holder of fense(s), serious traffic violation(s), a valid CDL; and and other violation(s) of State or local (2) He/she either holds a valid auto- law relating to motor vehicle traffic mobile driver’s license, or has passed control, for which the person was con- such vision, sign/symbol, and knowl- victed and any suspension, revocation, edge tests as the State issuing the or cancellation of certain driving privi- learner’s permit ordinarily administers leges which resulted from such convic- to applicants for automobile drivers’ li- tion(s); censes. (5) Indication whether the violation [53 FR 27649, July 21, 1988, as amended at 54 was in a commercial motor vehicle; FR 22285, May 23, 1989; 57 FR 31457, July 16, (6) Location of offense; and 1992; 67 FR 49756, July 31, 2002] (7) Driver’s signature. [52 FR 20587, June 1, 1987, as amended at 54 Subpart C—Notification Require- FR 40787, Oct. 3, 1989] ments and Employer Respon- sibilities § 383.33 Notification of driver’s license suspensions. § 383.31 Notification of convictions for Each employee who has a driver’s li- driver violations. cense suspended, revoked, or canceled (a) Each person who operates a com- by a State or jurisdiction, who loses mercial motor vehicle, who has a com- the right to operate a commercial mercial driver’s license issued by a motor vehicle in a State or jurisdiction State or jurisdiction, and who is con- for any period, or who is disqualified victed of violating, in any type of from operating a commercial motor ve- motor vehicle, a State or local law re- hicle for any period, shall notify his/ lating to motor vehicle traffic control her current employer of such suspen- (other than a parking violation) in a sion, revocation, cancellation, lost State or jurisdiction other than the privilege, or disqualification. The noti- one which issued his/her license, shall fication must be made before the end of notify an official designated by the the business day following the day the State or jurisdiction which issued such employee received notice of the suspen- license, of such conviction. The notifi- sion, revocation, cancellation, lost cation must be made within 30 days privilege, or disqualification. after the date that the person has been convicted. [54 FR 40788, Oct. 3, 1989] (b) Each person who operates a commercial motor vehicle, who has a com- § 383.35 Notification of previous employment. mercial driver’s license issued by a State or jurisdiction, and who is con- (a) Any person applying for employ- victed of violating, in any type of ment as an operator of a commercial motor vehicle, a State or local law re- motor vehicle shall provide at the time lating to motor vehicle traffic control of application for employment, the in- (other than a parking violation), shall formation specified in paragraph (c) of notify his/her current employer of such this section. conviction. The notification must be (b) All employers shall request the made within 30 days after the date that information specified in paragraph (c) the person has been convicted. If the of this section from all persons apply- driver is not currently employed, he/ ing for employment as a commercial she must notify the State or jurisdic- motor vehicle operator. The request tion which issued the license according shall be made at the time of applica- to § 383.31(a). tion for employment. (c) Notification. The notification to (c) The following employment his- the State official and employer must tory information for the 10 years pre- be made in writing and contain the fol- ceding the date the application is sub- lowing information: mitted shall be presented to the pro- (1) Driver’s full name; spective employer by the applicant: (2) Driver’s license number; (1) A list of the names and addresses (3) Date of conviction; of the applicant’s previous employers

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for which the applicant was an oper- Subpart D—Driver Disqualifications ator of a commercial motor vehicle; and Penalties (2) The dates the applicant was employed by these employers; and § 383.51 Disqualification of drivers. (3) The reason for leaving such em- (a) General. (1) A driver or holder of a ployment. CDL who is disqualified must not drive (d) The applicant shall certify that a CMV. all information furnished is true and (2) An employer must not knowingly complete. allow, require, permit, or authorize a (e) An employer may require an ap- driver who is disqualified to drive a plicant to provide additional informa- CMV. tion. (3) A driver is subject to disqualifica- (f) Before an application is sub- tion sanctions designated in para- mitted, the employer shall inform the graphs (b) and (c) of this section, if the applicant that the information he/she holder of a CDL drives a CMV or non- provides in accordance with paragraph CMV and is convicted of the violations. (4) Determining first and subsequent (c) of this section may be used, and the violations. For purposes of determining applicant’s previous employers may be first and subsequent violations of the contacted for the purpose of inves- offenses specified in this subpart, each tigating the applicant’s work history. conviction for any offense listed in Ta- bles 1 through 4 to this section result- § 383.37 Employer responsibilities. ing from a separate incident, whether No employer may knowingly allow, committed in a CMV or non-CMV, require, permit, or authorize a driver must be counted. to operate a CMV in the United States: (5) Reinstatement after lifetime dis- (a) During any period in which the qualification. A State may reinstate driver has a CMV driver’s license sus- any driver disqualified for life for of- pended, revoked, or canceled by a fenses described in paragraphs (b)(1) State, has lost the right to operate a through (b)(8) of this section (Table 1 CMV in a State, or has been disquali- to § 383.51) after 10 years if that person fied from operating a CMV; has voluntarily entered and success- (b) During any period in which the fully completed an appropriate reha- driver has more than one CMV driver’s bilitation program approved by the State. Any person who has been rein- license; stated in accordance with this provi- (c) During any period in which the sion and who is subsequently convicted driver, or the CMV he or she is driving, of a disqualifying offense described in or the motor carrier operation, is sub- paragraphs (b)(1) through (b)(8) of this ject to an out-of-service order; or section (Table 1 to § 383.51) must not be (d) In violation of a Federal, State, or reinstated. local law or regulation pertaining to (b) Disqualification for major offenses. railroad-highway grade crossings. Table 1 to § 383.51 contains a list of the offenses and periods for which a driver [64 FR 48110, Sept. 2, 1999] must be disqualified, depending upon the type of vehicle the driver is operating at the time of the violation, as follows:

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(c) Disqualification for serious traffic pending upon the type of vehicle the violations. Table 2 to § 383.51 contains a driver is operating at the time of the list of the offenses and the periods for violation, as follows: which a driver must be disqualified, de-

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(d) Disqualification for railroad-high- be disqualified, when the driver is oper- way grade crossing offenses. Table 3 to ating a CMV at the time of the viola- § 383.51 contains a list of the offenses tion, as follows: and the periods for which a driver must

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(e) Disqualification for violating out-of- for which a driver must be disqualified service orders. Table 4 to § 383.51 con- when the driver is operating a CMV at tains a list of the offenses and periods the time of the violation, as follows:

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[67 FR 49756, July 31, 2002] (b) Special penalties pertaining to violation of out-of-service orders—(1) Driver § 383.52 Disqualification of drivers de- violations. A driver who is convicted of termined to constitute an imminent violating an out-of-service order shall hazard. be subject to a civil penalty of not less (a) The Assistant Administrator or than $1,100 nor more than $2,750, in ad- his/her designee must disqualify from dition to disqualification under operating a CMV any driver whose § 383.51(e). driving is determined to constitute an (2) Employer violations. An employer imminent hazard, as defined in § 383.5. who is convicted of a violation of (b) The period of the disqualification § 383.37(c) shall be subject to a civil pen- may not exceed 30 days unless the alty of not less than $2,750 nor more FMCSA complies with the provisions of than $11,000. paragraph (c) of this section. (c) Special penalties pertaining to rail- (c) The Assistant Administrator or road-highway grade crossing violations. his/her delegate may provide the driver An employer who is convicted of a vio- an opportunity for a hearing after lation of § 383.37(d) must be subject to a issuing a disqualification for a period civil penalty of not more than $10,000. of 30 days or less. The Assistant Ad- [59 FR 26028, May 18, 1994, as amended at 64 ministrator or his/her delegate must FR 48111, Sept. 2, 1999; 67 FR 49759, July 31, provide the driver notice of a proposed 2002] disqualification period of more than 30 days and an opportunity for a hearing to present a defense to the proposed Subpart E—Testing and Licensing disqualification. A disqualification im- Procedures posed under this paragraph may not exceed one year in duration. The driver, SOURCE: 53 FR 27649, July 21, 1988, unless or a representative on his/her behalf, otherwise noted. may file an appeal of the disqualification issued by the Assistant Adminis- § 383.71 Driver application procedures. trator’s delegate with the Assistant (a) Initial Commercial Driver’s License. Administrator, Adjudications Counsel, Prior to obtaining a CDL, a person Federal Motor Carrier Safety Adminis- must meet the following requirements: tration (Room 8217), 400 Seventh (1) A person who operates or expects Street, SW., Washington, DC 20590. to operate in interstate or foreign com- (d) Any disqualification imposed in merce, or is otherwise subject to part accordance with the provisions of this 391 of this title, shall certify that he/ section must be transmitted by the she meets the qualification require- FMCSA to the jurisdiction where the ments contained in part 391 of this driver is licensed and must become a title. A person who operates or expects part of the driver’s record maintained to operate entirely in intrastate com- by that jurisdiction. merce and is not subject to part 391, is (e) A driver who is simultaneously subject to State driver qualification re- disqualified under this section and quirements and must certify that he/ under other provisions of this subpart, she is not subject to part 391; or under State law or regulation, shall (2) Pass a knowledge test in accord- serve those disqualification periods ance with the standards contained in concurrently. subparts G and H of this part for the type of motor vehicle the person oper- [67 FR 49759, July 31, 2002] ates or expects to operate; (3) Pass a driving or skills test in ac- § 383.53 Penalties. cordance with the standards contained (a) General rule. Any person who vio- in subparts G and H of this part taken lates the rules set forth in subparts B in a motor vehicle which is representa- and C of this part may be subject to tive of the type of motor vehicle the civil or criminal penalties as provided person operates or expects to operate; for in 49 U.S.C. 521(b). or provide evidence that he/she has suc- (b) Special penalties pertaining to viola- cessfully passed a driving test adminis- tion of out-of-service orders— tered by an authorized third party;

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(4) Certify that the motor vehicle in (4) Provide the names of all States which the person takes the driving where the applicant has previously skills test is representative of the type been licensed to drive any type of of motor vehicle that person operates motor vehicle during the previous 10 or expects to operate; years. (5) Provide to the State of issuance (d) License upgrades. When applying the information required to be included to operate a commercial motor vehicle on the CDL as specified in subpart J of in a different group or endorsement this part; from the group or endorsement in (6) Certify that he/she is not subject which the applicant already has a CDL, to any disqualification under § 383.51, or all persons shall: any license suspension, revocation, or cancellation under State law, and that (1) Provide the necessary certifi- he/she does not have a driver’s license cations as specified in § 383.71(a) (1) and from more than one State or jurisdic- (4); and tion; (2) Pass all tests specified in (7) Surrender the applicant’s non- § 383.71(a) (2) and (3) for the new vehicle CDL driver’s licenses to the State; and group and/or different endorsements. (8) Provide the names of all States (e) Nonresident CDL. When an appli- where the applicant has previously cant is domiciled in a foreign jurisdic- been licensed to drive any type of tion, as defined in § 383.5, where the motor vehicle during the previous 10 commercial motor vehicle operator years. testing and licensing standards do not (b) License transfer. When applying to meet the standards contained in sub- transfer a CDL from one State of domi- parts G and H of this part, as deter- cile to a new State domicile, an appli- mined by the Administrator, such ap- cant shall apply for a CDL from the plicant shall obtain a Nonresident CDL new State of domicile within no more from a State which meets such stand- than 30 days after establishing his/her ards. Such applicant shall: new domicile. The applicant shall: (1) Complete the requirements to ob- (1) Provide to the new State of domi- tain a CDL contained in § 383.71(a); and cile the certifications contained in § 383.71(a) (1) and (6): (2) After receipt of the CDL, and for (2) Provide to the new State of domi- as long as it is valid, notify the State cile updated information as specified in which issued the CDL of any adverse subpart J of this part; action taken by any jurisdiction or (3) If the applicant wishes to retain a governmental agency, foreign or do- hazardous materials endorsement, mestic, against his/her driving privi- comply with State requirements as leges. Such adverse actions would in- specified in § 383.73(b)(4); clude but not be limited to license sus- (4) Surrender the CDL from the old pension or revocation, or disqualifica- State of domicile to the new State of tion from operating a commercial domicile; and motor vehicle for the convictions de- (5) Provide the names of all States scribed in § 383.51. Notifications shall be where the applicant has previously made within the time periods specified been licensed to drive any type of in § 383.33. motor vehicle during the previous 10 (f) If a State uses the alternative years. method described in § 383.73(i) to (c) License renewal. When applying for achieve the objectives of the certifi- a renewal of a CDL, all applicants cations in § 383.71(a), then the driver shall: applicant shall satisfy such alternative (1) Provide certification contained in methods as are applicable to him/her § 383.71(a)(1); with respect to initial licensing, li- (2) Provide update information as specified in subpart J of this part; and cense transfer, license renewal, and li- (3) If a person wishes to retain a haz- cense upgrades. ardous materials endorsement, pass the [53 FR 27649, July 21, 1988, as amended at 67 test for such endorsement as specified FR 49759, July 31, 2002] in § 383.121; and

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§ 383.72 Implied consent to alcohol (iv) A request for the applicant’s testing. complete driving record from all States Any person who holds a CDL is con- where the applicant was previously li- sidered to have consented to such test- censed over the last 10 years to drive ing as is required by any State or juris- any type of motor vehicle. Exception: A diction in the enforcement of State is only required to make the §§ 383.51(b)(2)(i) and 392.5(a)(2) of this driving record check specified in this chapter. Consent is implied by driving paragraph (a)(3) for drivers renewing a a commercial motor vehicle. CDL for the first time after September 30, 2002, provided a notation is made on [66 FR 49872, Oct. 1, 2001] the driver’s record confirming that the driver record check required by this § 383.73 State procedures. paragraph (a)(3) has been made and (a) Initial licensure. Prior to issuing a noting the date it was done; and CDL to a person, a State shall: (4) Require the driver applicant to (1) Require the driver applicant to surrender his/her driver’s license issued certify, pass tests, and provide infor- by another State, if he/she has moved mation as described in §§ 383.71(a) (1) from another State. through (6); (b) License transfers. Prior to issuing (2) Check that the vehicle in which a CDL to a person who has a CDL from the applicant takes his/her test is rep- another State, a State shall: resentative of the vehicle group the ap- (1) Require the driver applicant to plicant has certified that he/she oper- make the certifications contained in ates or expects to operate; § 383.71(a); (2) Complete a check of the driver ap- (3) Initiate and complete a check of plicant’s record as contained in the applicant’s driving record to ensure § 383.73(a)(3); that the person is not subject to any (3) Request and receive updates of in- disqualification under § 383.51, or any formation specified in subpart J of this license suspension, revocation, or can- part; cellation under State law, and that the (4) If such applicant wishes to retain person does not have a driver’s license a hazardous materials endorsement, from more than one State or jurisdic- ensure that the driver has, within the 2 tion. The record check must include, years preceding the transfer, either: but is not limited to, the following: (i) Passed the test for such endorse- (i) A check of the applicant’s driving ment specified in § 383.121; or record as maintained by his/her current (ii) Successfully completed a haz- State of licensure, if any; ardous materials test or training that (ii) A check with the CDLIS to deter- is given by a third party and that is mine whether the driver applicant al- deemed by the State to substantially ready has been issued a CDL, whether cover the same knowledge base as that the applicant’s license has been sus- described in § 383.121; and pended, revoked, or canceled, or if the (5) Obtain the CDL issued by the ap- applicant has been disqualified from plicant’s previous State of domicile. operating a commercial motor vehicle; (c) License Renewals. Prior to renew- (iii) A check with the National Driv- ing any CDL a State shall: er Register (NDR) to determine wheth- (1) Require the driver applicant to er the driver applicant has: make the certifications contained in (A) Been disqualified from operating § 383.71(a); a motor vehicle (other than a commer- (2) Complete a check of the driver ap- cial motor vehicle); plicant’s record as contained in (B) Had a license (other than CDL) § 383.73(a)(3); suspended, revoked, or canceled for (3) Request and receive updates of in- cause in the 3-year period ending on formation specified in subpart J of this the date of application; or part; and (C) Been convicted of any offenses (4) If such applicant wishes to retain contained in section 205(a)(3) of the Na- a hazardous materials endorsement, re- tional Driver Register Act of 1982 (23 quire the driver to pass the test for U.S.C. 401 note); and such endorsement specified in § 383.121.

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(d) License upgrades. Prior to issuing cation, or disqualify the person from an upgrade of a CDL, a State shall: operating a commercial motor vehicle (1) Require such driver applicant to for a period of at least 60 consecutive provide certifications and pass tests as days. described in § 383.71(d); and (h) Reciprocity. A State shall allow (2) Complete a check of the driver ap- any person who has a valid CDL which plicant’s record as described in is not suspended, revoked, or canceled, § 383.73(a)(3). and who is not disqualified from oper- (e) Nonresident CDL. A State may ating a commercial motor vehicle, to issue a Nonresident CDL to a person operate a commercial motor vehicle in domiciled in a foreign country if the the State. Administrator has determined that the (i) Alternative procedures. A State commercial motor vehicle testing and may implement alternative procedures licensing standards in the foreign juris- to the certification requirements of diction of domicile do not meet the § 383.71(a) (1), (4), and (6), provided those standards contained in this part. State procedures ensure that the driver procedures for the issuance of a non- meets the requirements of those para- resident CDL, for any modifications graphs. thereto, and for notifications to the CDLIS shall at a minimum be identical [53 FR 27649, July 21, 1988, as amended at 54 to those pertaining to any other CDL, FR 40788, Oct. 3, 1989; 67 FR 49760, July 31, 2002] with the following exceptions: (1) If the applicant is requesting a § 383.75 Third party testing. transfer of his/her Nonresident CDL, the State shall obtain the Nonresident (a) Third party tests. A State may au- CDL currently held by the applicant thorize a person (including another and issued by another State; State, an employer, a private driver (2) The State shall add the word training facility or other private insti- ‘‘Nonresident’’ to the face of the CDL, tution, or a department, agency or in- in accordance with § 383.153(b); and strumentality of a local government) (3) The State shall have established, to administer the skills tests as speci- prior to issuing any Nonresident CDL, fied in subparts G and H of this part, if the practical capability of disquali- the following conditions are met: fying the holder of any Nonresident (1) The tests given by the third party CDL, by withdrawing, suspending, can- are the same as those which would oth- celing, and revoking his/her Non- erwise be given by the State; and resident CDL as if the Nonresident (2) The third party as an agreement CDL were a CDL issued to a resident of with the State containing, at a min- the State. imum, provisions that: (f) License issuance. After the State (i) Allow the FMCSA, or its rep- has completed the procedures described resentative, and the State to conduct in § 383.73 (a), (b), (c), (d) or (e), it may random examinations, inspections and issue a CDL to the driver applicant. audits without prior notice; The State shall notify the operator of (ii) Require the State to conduct on- the CDLIS of such issuance, transfer, site inspections at least annually; renewal, or upgrade within the 10-day (iii) Require that all third party ex- period beginning on the date of license aminers meet the same qualification issuance. and training standards as State exam- (g) Penalties for false information. If a iners, to the extent necessary to con- State determines, in its check of an ap- duct skills tests in compliance with plicant’s license status and record subparts G and H; prior to issuing a CDL, or at any time (iv) Require that, at least on an an- after the CDL is issued, that the appli- nual basis, State employees take the cant has falsified information contests actually administered by the tained in subpart J of this part or any third party as if the State employee of the certifications required in were a test applicant, or that States § 383.71(a), the State shall at a min- test a sample of drivers who were ex- imum suspend, cancel, or revoke the amined by the third party to compare person’s CDL or his/her pending appli- pass/fail results; and

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(v) Reserve unto the State the right (b) An applicant must provide evi- to take prompt and appropriate reme- dence and certify that: dial action against the third-party (1) He/she is regularly employed in a testers in the event that the third- job requiring operation of a CMV, and party fails to comply with State or that either: Federal standards for the CDL testing (2) He/she has previously taken and program, or with any other terms of passed a skills test given by a State the third-party contract. with a classified licensing and testing (b) Proof of testing by a third party. A system, and that the test was behind- driver applicant who takes and passes the-wheel in a representative vehicle driving tests administered by an au- for that applicant’s driver’s license thorized third party shall provide evi- classification; or dence to the State licensing agency (3) He/she has operated, for at least 2 that he/she has successfully passed the years immediately preceding applica- driving tests administered by the third tion for a CDL, a vehicle representative of the commercial motor vehicle the party. driver applicant operates or expects to § 383.77 Substitute for driving skills operate. tests. [53 FR 27649, July 21, 1988, as amended at 55 At the discretion of a State, the driv- FR 25606, June 22, 1990; 67 FR 49760, July 31, 2002] ing skill test as specified in § 383.113 may be waived for a CMV operator who is currently licensed at the time of his/ Subpart F—Vehicle Groups and her application for a CDL, and sub- Endorsements stituted with either an applicant’s driving record and previous passage of SOURCE: 53 FR 27651, July 21, 1988, unless an acceptable skills test, or an appli- otherwise noted. cant’s driving record in combination with certain driving experience. The § 383.91 Commercial motor vehicle groups. State shall impose conditions and limitations to restrict the applicants from (a) Vehicle group descriptions. Each whom a State may accept alternative driver applicant must possess and be requirements for the skills test de- tested on his/her knowledge and skills, scribed in § 383.113. Such conditions described in subpart G of this part, for must require at least the following: the commercial motor vehicle group(s) (a) An applicant must certify that, for which he/she desires a CDL. The during the two-year period imme- commercial motor vehicle groups are diately prior to applying for a CDL, he/ as follows: she: (1) Combination vehicle (Group A)— Any combination of vehicles with a (1) Has not had more than one license gross combination weight rating (except in the instances specified in (GCWR) of 11,794 kilograms or more § 383.21(b)); (26,001 pounds or more) provided the (2) Has not had any license sus- GVWR of the vehicle(s) being towed is pended, revoked, or canceled; in excess of 4,536 kilograms (10,000 (3) Has not had any convictions for pounds). any type of motor vehicle for the dis- (2) Heavy Straight Vehicle (Group qualifying offenses contained in B)—Any single vehicle with a GVWR of § 383.51(b); 11,794 kilograms or more (26,001 pounds (4) Has not had more than one con- or more), or any such vehicle towing a viction for any type of motor vehicle vehicle not in excess of 4,536 kilograms for serious traffic violations; and (10,000 pounds) GVWR. (5) Has not had any conviction for a (3) Small Vehicle (Group C)—Any sin- violation of State or local law relating gle vehicle, or combination of vehicles, to motor vehicle traffic control (other that meets neither the definition of than a parking violation) arising in Group A nor that of Group B as con- connection with any traffic accident, tained in this section, but that either and has no record of an accident in is designed to transport 16 or more pas- which he/she was at fault; and sengers including the driver, or is used

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in the transportation of materials required to retake and pass all related found to be hazardous for the purposes tests, except the following: of the Hazardous Materials Transpor- (1) A driver who has passed the tation Act and which require the motor knowledge and skills tests for a com- vehicle to be placarded under the Haz- bination vehicle (Group A) may operate ardous Materials Regulations (49 CFR a heavy straight vehicle (Group B) or a part 172, subpart F). small vehicle (Group C), provided that (b) Representative vehicle. For pur- he/she possesses the requisite endorse- poses of taking the driving test in ac- ment(s); and cordance with § 383.113, a representative (2) A driver who has passed the vehicle for a given vehicle group con- knowledge and skills tests for a heavy tained in § 383.91(a), is any commercial straight vehicle (Group B) may operate motor vehicle which meets the defini- any small vehicle (Group C), provided tion of that vehicle group. that he/she possesses the requisite en- (c) Relation between vehicle groups. dorsement(s). Each driver applicant who desires to (d) Vehicle group illustration. Figure 1 operate in a different commercial illustrates typical vehicles within each motor vehicle group from the one of the vehicle groups defined in this which his/her CDL authorizes shall be section.

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[53 FR 27651, July 21, 1988, as amended at 54 FR 47989, Nov. 20, 1989; 61 FR 9566, Mar. 8, 1996]

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§ 383.93 Endorsements. § 383.110 General requirement. (a) General. In addition to taking and All drivers of commercial motor ve- passing the knowledge and skills tests hicles shall have knowledge and skills described in subpart G of this part, all necessary to operate a commercial persons who operate or expect to oper- motor vehicle safely as contained in ate the type(s) of motor vehicles de- this subpart. A sample of the specific scribed in paragraph (b) of this section types of items which a State may wish shall take and pass specialized tests to to include in the knowledge and skills obtain each endorsement. The State tests that it administers to CDL appli- shall issue CDL endorsements only to cants is included in the appendix to drivers who successfully complete the this subpart G. tests. (b) Endorsement descriptions. An oper- § 383.111 Required knowledge. ator must obtain State-issued endorse- All commercial motor vehicle opera- ments to his/her CDL to operate com- tors must have knowledge of the fol- mercial motor vehicles which are: lowing general areas: (1) Double/triple trailers; (a) Safe operations regulations. Driver- (2) Passenger vehicles; related elements of the regulations (3) Tank vehicles; contained in 49 CFR parts 382, 391, 392, (4) Required to be placarded for haz- 393, 395, 396, and 397, such as: Motor ve- ardous materials; or hicle inspection, repair, and mainte- (5) School buses. nance requirements; procedures for (c) Endorsement testing requirements. safe vehicle operations; the effects of The following tests are required for the fatigue, poor vision, hearing, and gen- endorsements contained in paragraph eral health upon safe commercial (b) of this section: motor vehicle operation; the types of (1) Double/Triple Trailers—a knowl- motor vehicles and cargoes subject to edge test; the requirements; and the effects of al- (2) Passenger—a knowledge and a cohol and drug use upon safe commer- skills test; cial motor vehicle operations. (3) Tank vehicle—a knowledge test; (b) Commercial motor vehicle safety (4) Hazardous Materials—a knowledge control systems. Proper use of the motor test; and vehicle’s safety system, including (5) School bus—a knowledge and a lights, horns, side and rear-view mir- skills test. rors, proper mirror adjustments, fire extinguishers, symptoms of improper [53 FR 27651, July 21, 1988, as amended at 67 FR 49760, July 31, 2002] operation revealed through instruments, motor vehicle operation charac- § 383.95 Air brake restrictions. teristics, and diagnosing malfunctions. Commercial motor vehicle drivers shall (a) If an applicant either fails the air have knowledge on the correct proce- brake component of the knowledge dures needed to use these safety sys- test, or performs the skills test in a ve- tems in an emergency situation, e.g., hicle not equipped with air brakes, the skids and loss of brakes. State shall indicate on the CDL, if (c) Safe vehicle control—(1) Control sys- issued, that the person is restricted tems The purpose and function of the from operating a CMV equipped with controls and instruments commonly air brakes. found on commercial motor vehicles. (b) For the purposes of the skills test (2) Basic control. The proper proce- and the restriction, air brakes shall in- dures for performing various basic ma- clude any braking system operating neuvers. fully or partially on the air brake prin- (3) Shifting. The basic shifting rules ciple. and terms, as well as shift patterns and procedures for common transmissions. Subpart G—Required Knowledge (4) Backing. The procedures and rules and Skills for various backing maneuvers. (5) Visual search. The importance of SOURCE: 53 FR 27654, July 21, 1988, unless proper visual search, and proper visual otherwise noted. search methods.

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(6) Communication. The principles and (4) Implications of low air pressure procedures for proper communications readings; and the hazards of failure to signal (5) Procedures to conduct safe and ac- properly. curate pre-trip inspections. (7) Speed management. The impor- (6) Procedures for conducting enroute tance of understanding the effects of and post-trip inspections of air actu- speed. ated brake systems, including ability (8) Space management. The procedures to detect defects which may cause the and techniques for controlling the system to fail. space around the vehicle. (h) Operators for the combination vehi- (9) Night operation. Preparations and cle group shall also have knowledge of: procedures for night driving. (1) Coupling and uncoupling—The (10) Extreme driving conditions. The procedures for proper coupling and un- basic information on operating in ex- coupling a tractor to semi-trailer. treme driving conditions and the haz- (2) Vehicle inspection—The objec- ards that are encountered in extreme tives and proper procedures that are conditions. unique for performing vehicle safety in- (11) Hazard perceptions. The basic inspections on combination vehicles. formation on hazard perception and [53 FR 27654, July 21, 1988, as amended at 62 clues for recognition of hazards. FR 37151, July 11, 1997] (12) Emergency maneuvers. The basic information concerning when and how § 383.113 Required skills. to make emergency maneuvers. (a) Basic vehicle control skills. All ap- (13) Skid control and recovery. The in- plicants for a CDL must possess and formation on the causes and major demonstrate basic motor vehicle con- types of skids, as well as the proce- trol skills for each vehicle group which dures for recovering from skids. the driver operates or expects to oper- (d) Relationship of cargo to vehicle con- ate. These skills should include the trol. The principles and procedures for ability to start, to stop, and to move the proper handling of cargo. the vehicle forward and backward in a (e) Vehicle inspections: The objectives safe manner. and proper procedures for performing (b) Safe driving skills. All applicants vehicle safety inspections, as follows: for a CDL must possess and dem- (1) The importance of periodic inspec- onstrate the safe driving skills for tion and repair to vehicle safety. their vehicle group. These skills should (2) The effect of undiscovered mal- include proper visual search methods, functions upon safety. appropriate use of signals, speed con- (3) What safety-related parts to look trol for weather and traffic conditions, for when inspecting vehicles. and ability to position the motor vehi- (4) Pre-trip/enroute/post-trip inspec- cle correctly when changing lanes or tion procedures. turning. (5) Reporting findings. (c) Air brake skills. Except as provided (f) Hazardous materials knowledge, in § 393.95, all applicants shall dem- such as: What constitutes hazardous onstrate the following skills with re- material requiring an endorsement to spect to inspection and operation of air transport; classes of hazardous mate- brakes: rials; labeling/placarding requirements; (1) Pre-trip inspection skills. Appli- and the need for specialized training as cants shall demonstrate the skills nec- a prerequisite to receiving the endorse- essary to conduct a pre-trip inspection ment and transporting hazardous car- which includes the ability to: goes. (i) Locate and verbally identify air (g) Air brake knowledge as follows: brake operating controls and moni- (1) Air brake system nomenclature; toring devices; (2) The dangers of contaminated air (ii) Determine the motor vehicle’s supply; brake system condition for proper ad- (3) Implications of severed or discon- justments and that air system connec- nected air lines between the power unit tions between motor vehicles have been and the trailer(s); properly made and secured;

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(iii) Inspect the low pressure warning (a) Knowledge test. All applicants for device(s) to ensure that they will acti- the passenger endorsement must have vate in emergency situations; knowledge covering at least the fol- (iv) Ascertain, with the engine run- lowing topics: ning, that the system maintains an (1) Proper procedures for loading/un- adequate supply of compressed air; loading passengers; (v) Determine that required min- (2) Proper use of emergency exits, in- imum air pressure build up time is cluding push-out windows; within acceptable limits and that re- (3) Proper responses to such emer- quired alarms and emergency devices gency situations as fires and unruly automatically deactivate at the proper passengers; pressure level; and (4) Proper procedures at railroad (vi) Operationally check the brake crossings and drawbridges; and system for proper performance. (5) Proper braking procedures. (2) Driving skills. Applicants shall suc- (b) Skills test. To obtain a passenger cessfully complete the skills tests con- endorsement applicable to a specific tained in § 383.113 in a representative vehicle group, an applicant must take vehicle equipped with air brakes. his/her skills test in a passenger vehi- (d) Test area. Skills tests shall be con- cle satisfying the requirements of that ducted in on-street conditions or under group as defined in § 383.91. a combination of on-street and off- street conditions. § 383.119 Requirements for tank vehi- (e) Simulation technology. A State cle endorsement. may utilize simulators to perform In order to obtain a Tank Vehicle En- skills testing, but under no cir- dorsement, each applicant must have cumstances as a substitute for the re- knowledge covering the following: quired testing in on-street conditions. (a) Causes, prevention, and effects of cargo surge on motor vehicle handling; § 383.115 Requirements for double/tri- (b) Proper braking procedures for the ple trailers endorsement. motor vehicle when it is empty, full In order to obtain a Double/Triple and partially full; Trailers endorsement each applicant (c) Differences in handling of baffled/ must have knowledge covering: compartmental tank interiors versus (a) Procedures for assembly and non-baffled motor vehicles; hookup of the units; (d) Differences in tank vehicle type (b) Proper placement of heaviest and construction; trailer; (e) Differences in cargo surge for liq- (c) Handling and stability character- uids of varying product densities; istics including off-tracking, response (f) Effects of road grade and cur- to steering, sensory feedback, braking, vature on motor vehicle handling with oscillatory sway, rollover in steady filled, half-filled and empty tanks; turns, yaw stability in steady turns; (g) Proper use of emergency systems; and and (d) Potential problems in traffic op- (h) For drivers of DOT specification erations, including problems the motor tank vehicles, retest and marking re- vehicle creates for other motorists due quirements. to slower speeds on steep grades, longer passing times, possibility for blocking § 383.121 Requirements for hazardous entry of other motor vehicles on free- materials endorsement. ways, splash and spray impacts, aero- In order to obtain a Hazardous Mate- dynamic buffeting, view blockages, and rial Endorsement each applicant must lateral placement. have such knowledge as is required of a driver of a hazardous materials laden § 383.117 Requirements for passenger vehicle, from information contained in endorsement. 49 CFR parts 171, 172, 173, 177, 178, and An applicant for the passenger en- 397 on the following: dorsement must satisfy both of the fol- (a) Hazardous materials regulations lowing additional knowledge and skills including: test requirements. (1) Hazardous materials table;

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(2) Shipping paper requirements; (2) Knowledge test. Must have knowl- (3) Marking; edge covering at least the following (4) Labeling; three topics: (5) Placarding requirements; (i) Loading and unloading children, (6) Hazardous materials packaging; including the safe operation of stop sig- (7) Hazardous materials definitions nal devices, external mirror systems, and preparation; flashing lights and other warning and (8) Other regulated material (e.g., passenger safety devices required for ORM–D); school buses by State or Federal law or (9) Reporting hazardous materials ac- regulation. cidents; and (ii) Emergency exits and procedures (10) Tunnels and railroad crossings. for safely evacuating passengers in an (b) Hazardous materials handling in- emergency. cluding: (iii) State and Federal laws and regu- (1) Forbidden Materials and Pack- lations related to safely traversing ages; highway rail grade crossings. (2) Loading and Unloading Materials; (3) Cargo Segregation; (3) Skills test. Must take a driving (4) Passenger Carrying Buses and skills test in a school bus of the same Hazardous Materials; vehicle group (see § 383.91(a)) as the (5) Attendance of Motor Vehicles; school bus applicant will drive. (6) Parking; (b) Substitute for driving skills test. (1) (7) Routes; At the discretion of a State, the driv- (8) Cargo Tanks; and ing skills test required in paragraph (9) ‘‘Safe Havens.’’ (a)(3) of this section may be waived for (c) Operation of emergency equip- an applicant who is currently licensed, ment including: has experience driving a school bus, (1) Use of equipment to protect the has a good driving record, and meets public; the conditions set forth in paragraph (2) Special precautions for equipment (b)(2) of this section. to be used in fires; (2) An applicant must certify and the (3) Special precautions for use of State must verify that, during the two- emergency equipment when loading or year period immediately prior to ap- unloading a hazardous materials laden plying for the school bus endorsement, motor vehicle; and the applicant: (4) Use of emergency equipment for (i) Held a valid CDL with a passenger tank vehicles. vehicle endorsement to operate a (d) Emergency response procedures school bus representative of the group including: he or she will be driving; (1) Special care and precautions for (ii) Has not had his or her driver’s li- different types of accidents; cense or CDL suspended, revoked or (2) Special precautions for driving canceled or been disqualified from op- near a fire and carrying hazardous ma- erating a CMV; terials, and smoking and carrying haz- (iii) Has not been convicted of any of ardous materials; (3) Emergency procedures; and the disqualifying offenses in § 383.51(b) (4) Existence of special requirements while operating a CMV or of any of- for transporting Class A and B explo- fense in a non-CMV that would be dis- sives. qualifying under § 383.51(b) if committed in a CMV; § 383.123 Requirements for a school (iv) Has not had more than one con- bus endorsement. viction of any of the serious traffic vio- (a) An applicant for a school bus en- lations defined in § 383.5, while oper- dorsement must satisfy the following ating any type motor vehicle; three requirements: (v) Has not had any conviction for a (1) Qualify for passenger vehicle en- violation of State or local law relating dorsement. Pass the knowledge and to motor vehicle traffic control (other skills test for obtaining a passenger ve- than a parking violation) arising in hicle endorsement. connection with any traffic accident;

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(vi) Has not been convicted of any (2) Basic control. The proper procedures for motor vehicle traffic violation that re- performing various basic maneuvers, includ- sulted in an accident; and ing: (vii) Has been regularly employed as (i) Starting, warming up, and shutting down the engine; a school bus driver, has operated a (ii) Putting the vehicle in motion and stop- school bus representative of the group ping; the applicant seeks to drive, and pro- (iii) Backing in a straight line; and vides evidence of such employment. (iv) Turning the vehicle, e.g., basic rules, (3) After September 30, 2005 the provi- off-tracking, right/left turns and right sions in paragraph (b) of this section do curves. not apply. (3) Shifting. The basic shifting rules and terms, as well as shift patterns and proce- [67 FR 49760, July 31, 2002] dures for common transmissions, including: (i) Key elements of shifting, e.g., controls, APPENDIX TO SUBPART G OF PART 383— when to shift and double clutching; REQUIRED KNOWLEDGE AND SKILLS— (ii) Shift patterns and procedures; and SAMPLE GUIDELINES (iii) Consequences of improper shifting. (4) Backing. The procedures and rules for The following is a sample of the specific various backing maneuvers, including: types of items which a State may wish to in- (i) Backing principles and rules; and clude in the knowledge and skills tests that (ii) Basic backing maneuvers, e.g., it administers to CDL applicants. This ap- straight-line backing, and backing on a pendix closely follows the framework of curved path. §§ 383.111 and 383.113. It is intended to provide (5) Visual search. The importance of proper more specific guidance and suggestion to visual search, and proper visual search meth- States. Additional detail in this appendix is ods, including: not binding and States may depart from it at (i) Seeing ahead and to the sides; their discretion provided their CDL program (ii) Use of mirrors; and tests for the general areas of knowledge and (iii) Seeing to the rear. skill specified in §§ 383.111 and 383.113. (6) Communication. The principles and procedures for proper communications and the EXAMPLES OF SPECIFIC KNOWLEDGE ELEMENTS hazards of failure to signal properly, includ- (a) Safe operations regulations. Driver-re- ing: lated elements of the following regulations: (i) Signaling intent, e.g., signaling when (1) Motor vehicle inspection, repair, and changing speed or direction in traffic; maintenance requirements as contained in (ii) Communicating presence, e.g., using parts 393 and 396 of this title; horn or lights to signal presence; and (2) Procedures for safe vehicle operations (iii) Misuse of communications. as contained in part 392 of this title; (7) Speed management. The importance of (3) The effects of fatigue, poor vision, hear- understanding the effects of speed, including: ing, and general health upon safe commer- (i) Speed and stopping distance; cial motor vehicle operation as contained in (ii) Speed and surface conditions; parts 391, 392, and 395 of this title; (iii) Speed and the shape of the road; (4) The types of motor vehicles and cargoes (iv) Speed and visibility; and subject to the requirements contained in (v) Speed and traffic flow. part 397 of this title; and (8) Space management. The procedures and (5) The effects of alcohol and drug use upon techniques for controlling the space around safe commercial motor vehicle operations as the vehicle, including: contained in parts 391 and 395 of this title. (i) The importance of space management; (b) Commercial motor vehicle safety control (ii) Space cushions, e.g., controlling space systems. Proper use of the motor vehicle’s ahead/to the rear; safety system, including lights, horns, side (iii) Space to the sides; and and rear-view mirrors, proper mirror adjust- (iv) Space for traffic gaps. ments, fire extinguishers, symptoms of im- (9) Night operation. Preparations and proce- proper operation revealed through instru- dures for night driving, including: ments, motor vehicle operation characteris- (i) Night driving factors, e.g., driver fac- tics, and diagnosing malfunctions. Commer- tors, (vision, glare, fatigue, inexperience), cial motor vehicle drivers shall have knowl- roadway factors, (low illumination, vari- edge on the correct procedures needed to use ation in illumination, familiarity with these safety systems in an emergency situa- roads, other road users, especially drivers ex- tion, e.g., skids and loss of brakes. hibiting erratic or improper driving), vehicle (c) Safe vehicle control—(1) Control systems. factors (headlights, auxiliary lights, turn The purpose and function of the controls and signals, windshields and mirrors); and instruments commonly found on commercial (ii) Night driving procedures, e.g., pre- motor vehicles. paring to drive at night and driving at night.

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(10) Extreme driving conditions. The basic in- (3) Implications of severed or disconnected formation on operating in extreme driving air lines between the power unit and the conditions and the hazards that are encoun- trailer(s); tered in extreme conditions, including: (4) Implications of low air pressure read- (i) Adverse weather; ings; (ii) Hot weather; and (5) Procedures to conduct safe and accurate (iii) Mountain driving. pre-trip inspections, including knowledge (11) Hazard perceptions. The basic informa- about: tion on hazard perception and clues for rec- (i) Automatic fail-safe devices; ognition of hazards, including: (ii) System monitoring devices; and (i) Importance of hazards recognition; (iii) Low pressure warning alarms. (ii) Road characteristics; and (6) Procedures for conducting enroute and (iii) Road user activities. post-trip inspections of air actuated brake (12) Emergency maneuvers. The basic infor- systems, including ability to detect defects mation concerning when and how to make which may cause the system to fail, includ- emergency maneuvers, including: ing: (i) Evasive steering; (ii) Emergency stop; (i) Tests which indicate the amount of air (iii) Off-road recovery; loss from the braking system within a specified period, with and without the engine run- (iv) Brake failure; and ning; and (v) Blowouts. (13) Skid control and recovery. The informa- (ii) Tests which indicate the pressure lev- tion on the causes and major types of skids, els at which the low air pressure warning de- as well as the procedures for recovering from vices and the tractor protection valve should skids. activate. (d) Relationship of cargo to vehicle control. (h) Operators for the combination vehicle The principles and procedures for the proper group shall also have knowledge of: handling of cargo, including: (1) Coupling and uncoupling. The procedures (1) The importance of proper cargo han- for proper coupling and uncoupling a tractor dling, e.g., consequences of improperly se- to semi-trailer. cured cargo, drivers’ responsibilities, Fed- (2) Vehicle inspection—The objectives and eral/State and local regulations. proper procedures that are unique for per- (2) Principles of weight distribution. forming vehicle safety inspections on com- (3) Principles and methods of cargo secure- bination vehicles. ment. (e) Vehicle inspections: The objectives and EXAMPLES OF SPECIFIC SKILLS ELEMENTS proper procedures for performing vehicle These examples relate to paragraphs (a) safety inspections, as follows: and (b) of § 383.113 only. (1) The importance of periodic inspection (a) Basic vehicle control skills. All applicants and repair to vehicle safety and to preven- for a CDL must possess and demonstrate the tion of enroute breakdowns. following basic motor vehicle control skills (2) The effect of undiscovered malfunctions for each vehicle group which the driver oper- upon safety. ates or expects to operate. These skills shall (3) What safety-related parts to look for include: when inspecting vehicles, e.g., fluid leaks, (1) Ability to start, warm-up, and shut interference with visibility, bad tires, wheel down the engine; and rim defects, braking system defects, steering system defects, suspension system (2) Ability to put the motor vehicle in mo- defects, exhaust system defects, coupling tion and accelerate smoothly, forward and system defects, and cargo problems. backward; (4) Pre-trip/enroute/post-trip inspection (3) Ability to bring the motor vehicle to a procedures. smooth stop; (5) Reporting findings. (4) Ability to back the motor vehicle in a (f) Hazardous materials knowledge, as fol- straight line, and check path and clearance lows: while backing; (1) What constitutes hazardous material (5) Ability to position the motor vehicle to requiring an endorsement to transport; and negotiate and then make left and right (2) Classes of hazardous materials, label- turns; ing/placarding requirements, and the need (6) Ability to shift as required and select for specialized training as a prerequisite to appropriate gear for speed and highway con- receiving the endorsement and transporting ditions; hazardous cargoes. (7) Ability to back along a curved path; (g) Air brake knowledge as follows: and (1) General air brake system nomenclature; (8) Ability to observe the road and the be- (2) The dangers of contaminated air (dirt, havior of other motor vehicles, particularly moisture and oil) supply; before changing speed and direction.

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(b) Safe driving skills. All applicants for a (4) Details of testing procedures, in- CDL must possess and demonstrate the fol- cluding the purpose of the tests, how to lowing safe driving skills for any vehicle respond, any time limits for taking the group. These skills shall include: test, and any other special procedures (1) Ability to use proper visual search determined by the State of issuance; methods. (2) Ability to signal appropriately when and changing speed or direction in traffic. (5) Directions for taking the tests. (3) Ability to adjust speed to the configura- (b) Examiner procedures. A State shall tion and condition of the roadway, weather provide to test examiners details on and visibility conditions, traffic conditions, testing and any other State-imposed and motor vehicle, cargo and driver condi- requirements in the examiner’s man- tions; ual, and shall ensure that examiners (4) Ability to choose a safe gap for chang- are qualified to administer tests on the ing lanes, passing other vehicles, as well as basis of training and/or other experi- for crossing or entering traffic; ence. States shall provide standardized (5) Ability to position the motor vehicle scoring sheets for the skills tests, as correctly before and during a turn to prevent other vehicles from passing on the wrong well as standardized driving instruc- side as well as to prevent problems caused by tions for the applicants. Such exam- off-tracking; iners’ manuals shall contain the fol- (6) Ability to maintain a safe following dis- lowing: tance depending on the condition of the road, (1) Information on driver application on visibility, and on vehicle weight; and procedures contained in § 383.71, State (7) Ability to adjust operation of the motor procedures described in § 383.73, and vehicle to prevailing weather conditions in- other appropriate driver information cluding speed selection, braking, direction contained in subpart E of this part; changes and following distance to maintain control. (2) Details on information which must be given to the applicant; (3) Details on how to conduct the Subpart H—Tests tests; (4) Scoring procedures and minimum SOURCE: 53 FR 27657, July 21, 1988, unless passing scores; otherwise noted. (5) Information for selecting driving test routes; § 383.131 Test procedures. (6) List of the skills to be tested; (a) Driver information manuals. Infor- (7) Instructions on where and how the mation on how to obtain a CDL and en- skills will be tested; dorsements shall be included in manu- (8) How performance of the skills will als and made available by States to be scored; and CDL applicants. All information pro- (9) Causes for automatic failure of vided to the applicant shall include the skills tests. following: [53 FR 27657, July 21, 1988, as amended at 53 (1) Information on the requirements FR 39051, Oct. 4, 1988] described in § 383.71, the implied consent to alcohol testing described in § 383.133 Testing methods. § 383.72, the procedures and penalties, (a) All tests shall be constructed in contained in § 383.51(b) to which a CDL such a way as to determine if the appli- holder is exposed for refusal to comply cant possesses the required knowledge with such alcohol testing, State proce- and skills contained in subpart G of dures described in § 383.73, and other ap- this part for the type of motor vehicle propriate driver information contained or endorsement the applicant wishes to in subpart E of this part; obtain. (2) Information on vehicle groups and (b) States shall develop their own endorsements as specified in subpart F specifications for the tests for each ve- of this part; hicle group and endorsement which (3) The substance of the knowledge must be at least as stringent as the and skills which drivers shall have as Federal standards. outlined in subpart G of this part for (c) States shall determine specific the different vehicle groups and en- methods for scoring the knowledge and dorsements; skills tests.

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(d) Passing scores must meet those omitted the air brake component as de- standards contained in § 383.135. scribed in § 383.113(c) and, if the driver (e) Knowledge and skills tests shall is issued a CDL, the air brake restric- be based solely on the information con- tion shall be indicated on the license. tained in the driver manuals referred to in § 383.131(a). Subpart I [Reserved] (f) Each knowledge test shall be valid and reliable so as to assure that driver applicants possess the knowledge re- Subpart J—Commercial Driver’s quired under § 383.111. License Document (g) Each basic knowledge test, i.e., the test covering the areas referred to SOURCE: 53 FR 27657, July 21, 1988, unless in § 383.111 for the applicable vehicle otherwise noted. group, shall contain at least 30 items, exclusive of the number of items test- § 383.151 General. ing air brake knowledge. Each endorse- The CDL shall be a document that is ment knowledge test, and the air brake easy to recognize as a CDL. At a min- component of the basic knowledge test imum, the document shall contain in- as described in § 383.111(g), shall con- formation specified in § 383.153. tain a number of questions that is sufficient to test the driver applicant’s § 383.153 Information on the document knowledge of the required subject mat- and application. ter with validity and reliability. (a) All CDLs shall contain the fol- (h) The skills tests shall have admin- lowing information: istrative procedures, designed to (1) The prominent statement that the achieve interexaminer reliability, that license is a ‘‘Commercial Driver’s Li- are sufficient to ensure fairness of pass/ cense’’ or ‘‘CDL,’’ except as specified in fail rates. § 383.153(b). (2) The full name, signature, and § 383.135 Minimum passing scores. mailing address of the person to whom (a) The driver applicant must cor- such license is issued; rectly answer at least 80 percent of the (3) Physical and other information to questions on each knowledge test in identify and describe such person in- order to achieve a passing score on cluding date of birth (month, day, and such knowledge test. year), sex, and height; (b) To achieve a passing score on the (4) Color photograph of the driver; skills test, the driver applicant must (5) The driver’s State license number; demonstrate that he/she can success- (6) The name of the State which fully perform all of the skills listed in issued the license; § 383.113. (7) The date of issuance and the date (c) If the driver applicant does not of expiration of the license; obey traffic laws, or causes an accident (8) The group or groups of commer- during the test, he/she shall automati- cial motor vehicle(s) that the driver is cally fail the test. authorized to operate, indicated as fol- (d) The scoring of the basic knowl- lows: edge and skills tests shall be adjusted (i) A for Combination Vehicle; as follows to allow for the air brake re- (ii) B for Heavy Straight Vehicle; and striction (§ 383.95): (iii) C for Small Vehicle. (1) If the applicant scores less than 80 (9) The endorsement(s) for which the percent on the air brake component of driver has qualified, if any, indicated the basic knowledge test as described as follows: in § 383.111(g), the driver will have (i) T for double/triple trailers; failed the air brake component and, if (ii) P for passenger; the driver is issued a CDL, an air brake (iii) N for tank vehicle; restriction shall be indicated on the li- (iv) H for hazardous materials; cense; and (v) X for a combination of tank vehi- (2) If the applicant performs the cle and hazardous materials endorse- skills test in a vehicle not equipped ments; with air brakes, the driver will have (vi) S for school bus; and

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(vii) At the discretion of the State, 384.209 Notification of traffic violations. additional codes for additional 384.210 Limitation on licensing. groupings of endorsements, as long as 384.211 Return of old licenses. each such discretionary code is fully 384.212 Domicile requirement. explained on the front or back of the 384.213 State penalties for drivers of CMVs. 384.214 Reciprocity. CDL document. 384.215 First offenses. (b) If the CDL is a Nonresident CDL, 384.216 Second offenses. it shall contain the prominent state- 384.217 Drug offenses. ment that the license is a ‘‘Nonresident 384.218 Second serious traffic violation. Commercial Driver’s License’’ or 384.219 Third serious traffic violation. ‘‘Nonresident CDL.’’ The word ‘‘Non- 384.220 National Driver Register informa- resident’’ must be conspicuously and tion. unmistakably displayed, but may be 384.221 Out-of-service regulations (intoxi- noncontiguous with the words ‘‘Com- cating beverage). mercial Driver’s License’’ or ‘‘CDL.’’ 384.222 Violation of out-of-service orders. (c) If the State has issued the appli- 384.223 Railroad-highway grade crossing violation. cant an air brake restriction as speci- 384.224 Noncommercial motor vehicle viola- fied in § 383.95, that restriction must be tions. indicated on the license. 384.225 Record of violations. (d) Except in the case of a Non- 384.226 Prohibition on masking convictions. resident CDL: 384.227–384.230 [Reserved] (1) A driver applicant must provide 384.231 Satisfaction of State disqualifica- his/her Social Security Number on the tion requirement. application of a CDL; and 384.232 Required timing of record checks. (2) The State must provide the Social Security Number to the CDLIS. Subpart C—Procedures for Determining State Compliance [53 FR 27657, July 21, 1988, as amended at 67 FR 49760, July 31, 2002] 384.301 Substantial compliance—general requirement. § 383.155 Tamperproofing require- 384.303 [Reserved] ments. 384.305 State certifications for Federal fiscal years after FY 1994. States shall make the CDL 384.307 FMCSA program reviews of State tamperproof to the maximum extent compliance. practicable. At a minimum, a State 384.309 Results of compliance determina- shall use the same tamperproof method tion. used for noncommercial drivers’ licenses. Subpart D—Consequences of State Noncompliance PART 384—STATE COMPLIANCE 384.401 Withholding of funds based on non- WITH COMMERCIAL DRIVER’S LI- compliance. CENSE PROGRAM 384.403 Period of availability; effect of compliance and noncompliance. Subpart A—General 384.405 Decertification of State CDL program. Sec. 384.407 Emergency CDL grants. 384.101 Purpose and scope. AUTHORITY: 49 U.S.C. 31136, 31301 et seq., 384.103 Applicability. 31502; Sec. 103 of Pub. L. 106–159, 113 Stat. 384.105 Definitions. 1753; and 49 CFR 1.73. 384.107 Matter incorporated by reference. SOURCE: 59 FR 26039, May 18, 1994, unless Subpart B—Minimum Standards for otherwise noted. Substantial Compliance by States EDITORIAL NOTE: Nomenclature changes to 384.201 Testing program. part 384 appear at 66 FR 49872, Oct. 1, 2001. 384.202 Test standards. 384.203 Driving while under the influence. Subpart A—General 384.204 CDL issuance and information. 384.205 CDLIS information. § 384.101 Purpose and scope. 384.206 State record checks. 384.207 Notification of licensing. (a) Purpose. The purpose of this part 384.208 Notification of disqualification. is to ensure that the States comply

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with the provisions of section 12009(a) Office of the Federal Register and spec- of the Commercial Motor Vehicle Safe- ified in the regulation are incor- ty Act of 1986 (49 U.S.C. 31311(a)). porated. Material is incorporated as it (b) Scope. This part: exists on the date of the approval and (1) Includes the minimum standards a notice of any change in these mate- for the actions States must take to be rials will be published in the FEDERAL in substantial compliance with each of REGISTER. the 22 requirements of 49 U.S.C. (b) Materials incorporated. The 31311(a); AAMVAnet, Inc.’s ‘‘Commercial Driver (2) Establishes procedures for deter- License Information System (CDLIS) minations to be made of such compli- State Procedures,’’ Version 2.0, October ance by States; and 1998, IBR approved for §384.231(d). (3) Specifies the consequences of (c) Addresses. (1) All of the materials State noncompliance. incorporated by reference are available [62 FR 37152, July 11, 1997] for inspection at: (i) The Department of Transportation § 384.103 Applicability. Library, 400 Seventh Street, SW, Wash- The rules in this part apply to all ington, DC 20590 in Room 2200. These States. documents are also available for inspection and copying as provided in 49 § 384.105 Definitions. CFR part 7. (a) The definitions in part 383 of this (ii) The Office of the Federal Reg- title apply to this part, except where ister, 800 North Capitol Street, NW, otherwise specifically noted. Suite 700, Washington, DC. (b) As used in this part: (2) Information and copies of all of Issue and issuance mean initial licen- the materials incorporated by ref- sure, license transfers, license renew- erence may be obtained by writing to: als, license upgrades, and nonresident American Association of Motor Vehicle commercial driver’s licenses (CDLs), as Administrators, Inc., 4301 Wilson Blvd, described in § 383.73 of this title. Suite 400, Arlington, VA 22203. Licensing entity means the agency of State government that is authorized to [67 FR 49761, July 31, 2002] issue drivers’ licenses. Year of noncompliance means any Fed- Subpart B—Minimum Standards eral fiscal year during which— for Substantial Compliance by (1) A State fails to submit timely cer- States tification as prescribed in subpart C of this part; or § 384.201 Testing program. (2) The State does not meet one or The State shall adopt and administer more of the standards of subpart B of a program for testing and ensuring the this part, based on a final determination by the FMCSA under § 384.307(c) of fitness of persons to operate commer- this part. cial motor vehicles (CMVs) in accordance with the minimum Federal stand- § 384.107 Matter incorporated by ref- ards contained in part 383 of this title. erence. § 384.202 Test standards. (a) Incorporation by reference. This part includes references to certain No State shall authorize a person to matter or materials. The text of the operate a CMV unless such person materials is not included in the regula- passes a knowledge and driving skills tions contained in this part. The mate- test for the operation of a CMV in ac- rials are hereby made a part of the reg- cordance with part 383 of this title. ulations in this part. The Director of the Office of the Federal Register has § 384.203 Driving while under the in- approved the materials incorporated by fluence. reference in accordance with 5 U.S.C. (a) The State must have in effect and 552(a) and 1 CFR part 51. For materials enforce through licensing sanctions the subject to change, only the specific disqualifications prescribed in version approved by the Director of the § 383.51(b) of this subchapter for driving

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a CMV with a 0.04 alcohol concentra- shall issue the license, or, in the case tion. of adverse information, promptly im- (b) Nothing in this section shall be plement the disqualifications, licensing construed to require a State to apply limitations, denials, and/or penalties its criminal or other sanctions for driv- that are called for in any applicable ing under the influence to a person section(s) of this subpart. found to have operated a CMV with an alcohol concentration of 0.04, except li- § 384.206 State record checks. censing sanctions including suspension, (a) Required checks—(1) Issuing State’s revocation, or cancellation. records. Before issuing a CDL to any (c) A State that enacts and enforces person, the State shall, within the pe- through licensing sanctions the dis- riod of time specified in § 384.232, check qualifications prescribed in § 383.51(b) its own driving record for such person of this subchapter for driving a CMV in accordance with § 383.73(a)(3) of this with a 0.04 alcohol concentration and title. gives full faith and credit to the dis- (2) Other States’ records. Before the qualification of CMV drivers by other initial or transfer issuance of a CDL to States shall be deemed in substantial a person, and before renewing a CDL compliance with section 12009(a)(3) of held by any person, the issuing State the Commercial Motor Vehicle Safety must: Act of 1986 (49 U.S.C. 31311(a)(3)). (i) Require the applicant to provide [67 FR 49761, July 31, 2002] the names of all States where the applicant has previously been licensed to § 384.204 CDL issuance and informa- operate any type of motor vehicle. tion. (ii) Within the time period specified (a) General rule. The State shall au- in § 384.232, request the complete driv- thorize a person to operate a CMV only ing record from all States where the by issuance of a CDL, unless a waiver applicant was licensed within the pre- under the provisions of § 383.7 applies, vious 10 years to operate any type of which contains, at a minimum, the in- motor vehicle. formation specified in part 383, subpart (iii) States receiving a request for J, of this title. the driving record of a person currently (b) Exceptions—(1) Training. The State or previously licensed by the State may authorize a person, who does not must provide the information within 30 hold a CDL valid in the type of vehicle days. in which training occurs, to undergo (b) Required action. Based on the find- behind-the-wheel training in a CMV ings of the State record checks pre- only by means of a learner’s permit scribed in this section, the State shall issued and used in accordance with issue the license, or, in the case of ad- § 383.23(c) of this title. verse information, promptly imple- (2) Confiscation of CDL pending en- ment the disqualifications, licensing forcement. A State may allow a CDL limitations, denials, and/or penalties holder whose CDL is held in trust by that are called for in any applicable that State or any other State in the section(s) of this subpart. course of enforcement of the motor ve- [59 FR 26039, May 18, 1994, as amended at 67 hicle traffic code, but who has not been FR 49761, July 31, 2002] convicted of a disqualifying offense under § 383.51 based on such enforce- § 384.207 Notification of licensing. ment, to drive a CMV while holding a Within the period defined in § 383.73(f) dated receipt for such CDL. of this title, the State shall: (a) Notify the operator of the CDLIS § 384.205 CDLIS information. of each CDL issuance; Before issuing a CDL to any person, (b) Notify the operator of the CDLIS the State shall, within the period of of any changes in driver identification time specified in § 384.232, perform the information; and check of the Commercial Driver’s Li- (c) In the case of transfer issuances, cense Information System (CDLIS) in implement the Change State of Record accordance with § 383.73(a)(3)(ii) of this transaction, as specified by the oper- title, and, based on that information, ator of the CDLIS, in conjunction with

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the previous State of record and the (2) Beginning on September 30, 2008, operator of the CDLIS. the notification must be made within 10 days of the conviction. § 384.208 Notification of disqualification. [67 FR 49761, July 31, 2002] (a) No later than 10 days after dis- § 384.210 Limitation on licensing. qualifying a CDL holder licensed by an- A State must not knowingly issue a other State, or revoking, suspending, CDL or a commercial special license or or canceling an out-of-State CDL hold- permit (including a provisional or tem- er’s privilege to operate a commercial porary license) permitting a person to motor vehicle for at least 60 days, the drive a CMV during a period in which: State must notify the State that issued (a) A person is disqualified from oper- the license of the disqualification, rev- ating a CMV, as disqualification is de- ocation, suspension, or cancellation. fined by § 383.5 of this subchapter, or (b) The notification must include under the provisions of § 383.73(g) or both the disqualification and the viola- § 384.231(b)(2) of this subchapter; tion that resulted in the disqualifica- (b) The CDL holder’s noncommercial tion, revocation, suspension, or can- driving privilege has been revoked, sus- cellation. The notification and the in- pended, or canceled; or formation it provides must be recorded (c) Any type of driver’s license held on the driver’s record. by such person is suspended, revoked, or canceled by the State where the [67 FR 49761, July 31, 2002] driver is licensed for any State or local law related to motor vehicle traffic § 384.209 Notification of traffic viola- control (other than parking violations. tions). (a) Required notification with respect to [67 FR 49761, July 31, 2002] CDL holders. Whenever a person who holds a CDL from another State is con- § 384.211 Return of old licenses. victed of a violation of any State or The State shall not issue a CDL to a local law relating to motor vehicle person who possesses a driver’s license traffic control (other than a parking issued by another State or jurisdiction violation), in any type of vehicle, the unless such person first surrenders the licensing entity of the State in which driver’s license issued by such other the conviction occurs must notify the State or jurisdiction in accordance licensing entity in the State where the with §§ 383.71(a)(7) and (b)(4) of this driver is licensed of this conviction title. within the time period established in paragraph (c) of this section. § 384.212 Domicile requirement. (b) Required notification with respect to (a) The State shall issue CDLs only non-CDL holders. Whenever a person to those persons for whom such State who does not hold a CDL, but who is li- is the State of domicile as defined in censed to drive by another State, is § 383.5 of this title; except that the convicted of a violation in a CMV of State may issue a nonresident CDL any State or local law relating to under the conditions specified in motor vehicle traffic control (other §§ 383.23(b), 383.71(e), and 383.73(e) of this than a parking violation), the licensing title. entity of the State in which the convic- (b) The State shall require any per- tion occurs must notify the licensing son holding a CDL issued by another entity in the State where the driver is State to apply for a transfer CDL from licensed of this conviction within the the State within 30 days after estab- time period established in paragraph lishing domicile in the State, as speci- (c) of this section. fied in § 383.71(b) of this title. (c) Time period for notification of traffic violations. (1) Beginning on Sep- § 384.213 State penalties for drivers of tember 30, 2005, the notification must CMVs. be made within 30 days of the convic- The State must impose on drivers of tion. CMVs appropriate civil and criminal

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penalties that are consistent with the § 384.217 Drug offenses. penalties prescribed under part 383, The State must disqualify from oper- subpart D, of this subchapter. ating a CMV for life each person who is [67 FR 49761, July 31, 2002] convicted, as defined in § 383.5 of this subchapter, in any State or jurisdic- § 384.214 Reciprocity. tion of a first offense, of using a CMV The State shall allow any person to in the commission of a felony described operate a CMV in the State who is not in item (9) of Table 1 to § 383.51 of this disqualified from operating a CMV and subchapter. The State shall not apply who holds a CDL which is— the special rule in § 384.216(b) to life- (a) Issued to him or her by any other time disqualifications imposed for con- State or jurisdiction in accordance trolled substance felonies as detailed in with part 383 of this title; item (9) of Table 1 to § 383.51 of this (b) Not suspended, revoked, or can- subchapter. celed; and [67 FR 49762, July 31, 2002] (c) Valid, under the terms of part 383, subpart F, of this title, for the type of § 384.218 Second serious traffic viola- vehicle being driven. tion. § 384.215 First offenses. The State must disqualify from operating a CMV for a period of not less (a) General rule. The State must dis- than 60 days each person who, in a qualify from operating a CMV each three-year period, is convicted, as de- person who is convicted, as defined in fined in § 383.5 of this subchapter, in § 383.5 of this subchapter, in any State any State(s) or jurisdiction(s), of two or jurisdiction, of a disqualifying of- serious traffic violations as specified in fense specified in items (1) through (8) of Table 1 to § 383.51 of this subchapter, Table 2 to § 383.51. for no less than one year. [67 FR 49762, July 31, 2002] (b) Special rule for hazardous materials offenses. If the offense under paragraph § 384.219 Third serious traffic viola- (a) of this section occurred while the tion. driver was operating a vehicle trans- The State must disqualify from oper- porting hazardous materials required ating a CMV for a period of not less to be placarded under the Hazardous than 120 days each person who, in a Materials Transportation Act three-year period, is convicted, as de- (implementing regulations at 49 CFR fined in § 383.5 of this subchapter, in 177.823), the State shall disqualify the any State(s) or jurisdiction(s), of three person for no less than three years. serious traffic violations as specified in [59 FR 26039, May 18, 1994, as amended at 67 Table 2 to § 383.51. This disqualification FR 49762, July 31, 2002] period must be in addition to any other previous period of disqualification. § 384.216 Second offenses. [67 FR 49762, July 31, 2002] (a) General rule. The State must disqualify for life from operating a CMV § 384.220 National Driver Register in- each person who is convicted, as deformation. fined in § 383.5 of this subchapter, in any State or jurisdiction, of a subse- Before issuing a CDL to any person, quent offense as described in Table 1 to the State shall, within the period of § 383.51 of this subchapter. time specified in § 384.232, perform the (b) Special rule for certain lifetime dis- check of the National Driver Register qualifications. A driver disqualified for in accordance with § 383.73(a)(3)(iii) of life under Table 1 to § 383.51 may be re- this title, and, based on that informa- instated after 10 years by the driver’s tion, promptly implement the disquali- State of residence if the requirements fications, licensing limitations, and/or of § 383.51(a)(5) have been met. penalties that are called for in any applicable section(s) of this subpart. [67 FR 49762, July 31, 2002]

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§ 384.221 Out-of-service regulations for violations of any State or local law (intoxicating beverage). relating to motor vehicle traffic con- The State shall adopt, and enforce on trol (other than a parking violation) operators of CMVs as defined in §§ 383.5 committed while the driver was oper- and 390.5 of this title, the provisions of ating a CMV. § 392.5 (a) and (c) of this title in accord- (c) Make driver history information ance with the Motor Carrier Safety As- required by this section available to the users designated in paragraph (e) of sistance Program as contained in 49 this section, or to their authorized CFR part 350 and applicable policy and agent, within 10 days of: guidelines. (1) Receiving the conviction or dis- § 384.222 Violation of out-of-service or- qualification information from another ders. State; or (2) The date of the conviction, if it The State must have and enforce occurred in the same State. laws and/or regulations applicable to (d) Retain on the driver history drivers of CMVs and their employers, record all convictions, disqualifica- as defined in § 383.5 of this subchapter, tions and other licensing actions for which meet the minimum require- violations for at least 3 years or longer ments of §§ 383.37(c), Table 4 to 383.51, as required under § 384.231(d). and 383.53(b) of this subchapter. (e) Only the following users or their [67 FR 49762, July 31, 2002] authorized agents may receive the designated information: § 384.223 Railroad-highway grade (1) States—All information on all crossing violation. driver records. The State must have and enforce (2) Secretary of Transportation—All in- laws and/or regulations applicable to formation on all driver records. CMV drivers and their employers, as (3) Driver—Only information related defined in § 383.5 of this subchapter, to that driver’s record. which meet the minimum require- (4) Motor Carrier or Prospective Motor ments of §§ 383.37(d), Table 3 to 383.51, Carrier—After notification to a driver, and 383.53(c) of this subchapter. all information related to that driver’s, or prospective driver’s, record. [67 FR 49762, July 31, 2002] [67 FR 49762, July 31, 2002] § 384.224 Noncommercial motor vehicle violations. § 384.226 Prohibition on masking convictions. The State must have and enforce The State must not mask, defer im- laws and/or regulations applicable to position of judgment, or allow an indi- drivers of non-CMVs, as defined in vidual to enter into a diversion pro- § 383.5 of this subchapter, which meet gram that would prevent a CDL driv- the minimum requirements of Tables 1 er’s conviction for any violation, in and 2 to § 383.51 of this subchapter. any type of motor vehicle, of a State or [67 FR 49762, July 31, 2002] local traffic control law (except a parking violation) from appearing on the § 384.225 Record of violations. driver’s record, whether the driver was The State must: convicted for an offense committed in (a) CDL holders. Record and maintain the State where the driver is licensed as part of the driver history all convic- or another State. tions, disqualifications and other li- [67 FR 49762, July 31, 2002] censing actions for violations of any State or local law relating to motor ve- §§ 384.227–384.230 [Reserved] hicle traffic control (other than a parking violation) committed in any type § 384.231 Satisfaction of State disquali- of vehicle. fication requirement. (b) A person required to have a CDL. (a) Applicability. The provisions of Record and maintain as part of the §§ 384.203, 384.206(b), 384.210, 384.213, driver history all convictions, disquali- 384.215 through 384.219, 384.221 through fications and other licensing actions 384.224, and 384.231 of this part apply to

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the State of licensure of the person af- does not currently possess a valid CDL fected by the provision. The provisions from the same State and no earlier of § 384.210 of this part also apply to any than 10 days prior to issuance for all State to which a person makes applica- other drivers. tion for a transfer CDL. (b) Required action. (1) CDL holders. A Subpart C—Procedures for State must satisfy the requirement of Determining State Compliance this part that the State disqualify a person who holds a CDL by, at a min- § 384.301 Substantial compliance-gen- imum, suspending, revoking, or can- eral requirements celing the person’s CDL for the applica- (a) To be in substantial compliance ble period of disqualification. with 49 U.S.C. 31311(a), a State must (2) A person required to have a CDL. A meet each and every standard of sub- State must satisfy the requirement of part B of this part by means of the de- this subpart that the State disqualify a monstrable combined effect of its stat- person required to have a CDL who is utes, regulations, administrative pro- convicted of an offense or offenses ne- cedures and practices, organizational cessitating disqualification under structures, internal control mecha- § 383.51 of this subchapter. At a min- nisms, resource assignments (facilities, imum, the State must implement the equipment, and personnel), and en- limitation on licensing provisions of forcement practices. § 384.210 and the timing and record- (b) A State shall come into substan- keeping requirements of paragraphs (c) tial compliance with the requirements and (d) of this section so as to prevent of subpart B of this part in effect as of such a person from legally obtaining a September 30, 2002 as soon as practical, CDL from any State during the appli- but, unless otherwise specifically pro- cable disqualification period(s) speci- vided in this part, not later than three fied in this subpart. years after September 30, 2002. (c) Required timing. The State must disqualify a driver as expeditiously as [67 FR 49763, July 31, 2002] possible. (d) Recordkeeping requirements. The § 384.303 [Reserved] State must conform to the require- § 384.305 State certifications for Fed- ments of the October 1998 edition of the eral fiscal years after FY 1994. AAMVAnet, Inc.’s ‘‘Commercial Driver (a) Certification requirement. Prior to License Information System (CDLIS) January 1 of each Federal fiscal year State Procedures,’’ Version 2.0. after FY 1994, each State shall review (Incorporated by reference, see its compliance with this part and cer- § 384.107.) These requirements include tify to the Federal Motor Carrier Safe- the maintenance of such driver records ty Administrator as prescribed in para- and driver identification data on the graph (b) of this section. The certifi- CDLIS as the FMCSA finds are nec- cation shall be submitted as a signed essary to the implementation and en- original and four copies to the State forcement of the disqualifications Director or Officer-in-Charge, Federal called for in §§ 384.215 through 384.219, Motor Carrier Safety Administration, and 384.221 through 384.224 of this part. located in that State. [67 FR 49762, July 31, 2002] (b) Certification content. The certification shall consist of a statement § 384.232 Required timing of record signed by the Governor of the State, or checks. by an official designated by the Gov- The State shall perform the record ernor, and reading as follows: ‘‘I (name checks prescribed in §§ 384.205, 384.206, of certifying official), (position title), and 384.220, no earlier than 10 days of the State (Commonwealth) of lll, prior to issuance for licenses issued be- do hereby certify that the State fore October 1, 1995. For licenses issued (Commonwealth) has continuously after September 30, 1995, the State been in substantial compliance with all shall perform the record checks no ear- requirements of 49 U.S.C. 31311(a), as lier than 24 hours prior to issuance if defined in 49 CFR 384.301, since [the the license is issued to a driver who first day of the current Federal fiscal

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year], and contemplates no changes in consideration the corrective action ei- statutes, regulations, or administra- ther implemented or planned to be im- tive procedures, or in the enforcement plemented in accordance with the mu- thereof, which would affect such sub- tually agreed upon schedule. stantial compliance through [the last (e) State’s right to judicial review. Any date of the current Federal fiscal State aggrieved by an adverse decision year].’’ under this section may seek judicial (Approved by the Office of Management and review under 5 U.S.C. Chapter 7. Budget under control number 2125–0542) [67 FR 49763, July 31, 2002] [59 FR 26039, May 18, 1994, as amended at 62 FR 37152, July 11, 1997] § 384.309 Results of compliance determination. § 384.307 FMCSA program reviews of State compliance. (a) A State shall be determined not (a) FMCSA Program Reviews. Each substantially in compliance with 49 State’s CDL program will be subject to U.S.C. 31311(a) for any fiscal year in review to determine whether or not the which it: State meets the general requirement (1) Fails to submit the certification for substantial compliance in § 384.301. as prescribed in this subpart; or The State must cooperate with the re- (2) Does not meet one or more of the view and provide any information re- standards of subpart B of this part, as quested by the FMCSA. established in a final determination by (b) Preliminary FMCSA determination the FMCSA under § 384.307(c). and State response. If, after review, a (b) A State shall be in substantial preliminary determination is made ei- compliance with 49 U.S.C. 31311(a) for ther that the State has not submitted any fiscal year in which neither of the the required annual self-certification eventualities in paragraph (a) of this or that the State does not meet one or section occurs. more of the minimum standards for substantial compliance under subpart [62 FR 37152, July 11, 1997] B of this part, the State will be informed accordingly. Subpart D—Consequences of (c) Reply. The State will have up to 30 State Noncompliance calendar days to respond to the preliminary determination. The State’s § 384.401 Withholding of funds based reply must explain what corrective ac- on noncompliance. tion it either has implemented or in- (a) Following the first year of non- tends to implement to correct the defi- compliance. A State is subject to both ciencies cited in the notice or, alternatively, why the FMCSA preliminary of the following sanctions: determination is incorrect. The State (1) An amount equal to five percent must provide documentation of correc- of the Federal-aid highway funds re- tive action as required by the agency. quired to be apportioned to any State Corrective action must be adequate to under each of sections 104(b)(1), (b)(3), correct the deficiencies noted in the and (b)(4) of title 23, U.S.C., shall be program review and be implemented on withheld on the first day of the fiscal a schedule mutually agreed upon by year following such State’s first year the agency and the State. Upon request of noncompliance under this part. by the State, an informal conference (2) The Motor Carrier Safety Assist- will be provided during this time. ance Program (MCSAP) grant funds au- (d) Final FMCSA determination. If, thorized under section 103(b)(1) of the after reviewing a timely response by Motor Carrier Safety Improvement Act the State to the preliminary deter- of 1999 (Public Law 106–159, 113 Stat. mination, a final determination is 1754) shall be withheld from a State on made that the State is not in compli- the first day of the fiscal year fol- ance with the affected standard, the lowing the fiscal year in which the State will be notified of the final deter- FMCSA determined that the State was mination. In making its final deter- not in substantial compliance with mination, the FMCSA will take into subpart B of this part.

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(b) Following second and subsequent (3) Transfer of out-of-State CDLs to year(s) of noncompliance. A State is sub- the State. ject to both of the following sanctions: (4) Upgrade of CDLs. (1) An amount equal to ten percent of (b) Conditions considered in making de- the Federal-aid funds required to be ap- certification determination. The Adminis- portioned to any State under each of trator will consider, but is not limited sections 104(b)(1), (b)(3), and (b)(4) of to, the following five conditions in de- title 23, U.S.C., shall be withheld on termining whether the CDL program of the first day of the fiscal year fol- a State in substantial noncompliance lowing such State’s second or subse- should be decertified: quent year of noncompliance under (1) The State computer system does this part. not check the Commercial Driver’s Li- (2) The Motor Carrier Safety Assist- cense Information System (CDLIS) ance Program (MCSAP) grant funds au- and/or National Driver Register (NDR) thorized under section 103(b)(1) of the as required by § 383.73 of this sub- Motor Carrier Safety Improvement Act chapter when processing CDL appli- of 1999 (Public Law 106–159, 113 Stat. cants, drivers transferring a CDL 1753) shall be withheld from a State on issued by another State, CDL renewals the first day of the fiscal year fol- and/or upgrades. lowing the fiscal year in which the (2) The State does not disqualify FMCSA determined that the State had drivers convicted of disqualifying of- not returned to substantial compliance fenses in commercial motor vehicles. with subpart B of this part. (3) The State does not transmit con- [67 FR 49763, July 31, 2002] victions for out of State drivers to the State where the driver is licensed. § 384.403 Availability of funds with- (4) The State does not properly ad- held for noncompliance. minister knowledge and/or skills tests (a) Federal-aid highway funds with- to CDL applicants or drivers. held from a State under § 384.401(a)(1) (5) The State fails to submit a correc- or (b)(1) shall not thereafter be avail- tive action plan for a substantial com- able for apportionment to the State. pliance deficiency or fails to imple- (b) MCSAP funds withheld from a ment a corrective action plan within State under § 384.401(a)(2) or (b)(2) re- the agreed upon time frame. main available until June 30 of the fis- (c) Standard for considering defi- cal year in which they were withheld. ciencies. The deficiencies described in If before June 30 the State submits a paragraph (b) of this section must af- document signed by the Governor or fect a substantial number of either his or her delegate certifying, and the CDL applicants or drivers. FMCSA determines, that the State is (d) Decertification: preliminary deter- now in substantial compliance with the mination. If the Administrator finds standards of subpart B of this part, the that a State is in substantial non- withheld funds shall be restored to the compliance with subpart B of this part, State. After June 30, unrestored funds as indicated by the factors specified in shall lapse and be allocated in accord- § 384.405(b), among other things, the ance with § 350.313 of this subchapter to FMCSA will inform the State that it all States currently in substantial has made a preliminary determination compliance with subpart B of this part. of noncompliance and that the State’s [67 FR 49763, July 31, 2002] CDL program may therefore be decertified. Any response from the State, in- § 384.405 Decertification of State CDL cluding factual or legal arguments or a program. plan to correct the noncompliance, (a) Prohibition on CDL licensing activi- must be submitted within 30 calendar ties. The Administrator may prohibit a days after receipt of the preliminary State found to be in substantial non- determination. compliance from performing any of the (e) Decertification: final determination. following four licensing transactions: If, after considering all material sub- (1) Issuance of initial CDLs. mitted by the State in response to the (2) Renewal of CDLs. FMCSA preliminary determination,

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the Administrator decides that sub- 385.9 Determination of a safety rating. stantial noncompliance exists which 385.11 Notification of safety fitness deter- warrants decertification of the CDL mination. program, he or she will issue a decerti- 385.13 Unsatisfactory rated motor carriers; prohibition on transportation; ineligi- fication order prohibiting the State bility for Federal contracts. from issuing CDLs until such time as 385.14 Motor carriers, brokers, and freight the Administrator determines that the forwarders delinquent in paying civil condition(s) causing the decertification penalties: prohibition on transportation. has (have) been corrected. 385.15 Administrative review. (f) Recertification of a State. The Gov- 385.17 Change to safety rating based upon ernor of the decertified State or his or corrective actions. her designated representative must 385.19 Safety fitness information. submit a certification and documenta- Subpart B—Safety Monitoring System for tion that the condition causing the de- Mexico-Domiciled Carriers certification has been corrected. If the FMCSA determines that the condition 385.101 Definitons. causing the decertification has been 385.103 Safety monitoring system. satisfactorily corrected, the Adminis- 385.105 Expedited action. trator will issue a recertification order, 385.107 The safety audit. including any conditions that must be 385.109 The compliance review. met in order to begin issuing CDLs in 385.111 Suspension and revocation of Mex- the State. ico-domiciled carrier registration. 385.113 Administrative review. (g) State’s right to judicial review. Any 385.115 Reapplying for provisional registra- State aggrieved by an adverse decision tion. under this section may seek judicial 385.117 Duration of safety monitoring sys- review under 5 U.S.C. Chapter 7. tem. (h) Validity of previously issued CDLs. 385.119 Applicability of safety fitness and A CDL issued by a State prior to the enforcement procedures. date the State is prohibited from issuing CDLs in accordance with provi- Subpart C—Certification of Safety Auditors, sions of paragraph (a) of this section, Safety Investigators, and Safety Inspectors will remain valid until its stated expi- Sec. ration date. 385.201 Who is qualified to perform a review [67 FR 49763, July 31, 2002] of a motor carrier? 385.203 What are the requirements to obtain § 384.407 Emergency CDL grants. and maintain certification? 385.205 How can a person who has lost his or The FMCSA may provide grants of up her certification be re-certified? to $1,000,000 per State from funds made available under 49 U.S.C. 31107(a), to as- Subpart D—New Entrant Safety Assurance sist States whose CDL programs may Program fail to meet the compliance requirements of subpart B of this part, but Sec. 385.301 What is a motor carrier required to which are determined by the FMCSA to do before beginning interstate oper- be making a good faith effort to com- ations? ply with these requirements. 385.303 How does a motor carrier register [67 FR 49764, July 31, 2002] with the FMCSA? 385.305 What happens after the FMCSA receives a request for new entrant registra- PART 385—SAFETY FITNESS tion? PROCEDURES 385.307 What happens after a motor carrier begins operations as a new entrant? Sec. 385.309 What is the purpose of the safety audit? Subpart A—General 385.311 What will the safety audit consist of? 385.1 Purpose and scope. 385.313 Who will conduct the safety audit? 385.3 Definitions. 385.315 Where will the safety audit be con- 385.5 Safety fitness standard. ducted? 385.7 Factors to be considered in deter- 385.317 Will a safety audit result in a safety mining a safety rating. fitness determination by the FMCSA?

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385.319 What happens after the completion safety fitness of motor carriers, to as- of the safety audit? sign safety ratings, to direct motor 385.321 What failures of safety management carriers to take remedial action when practices disclosed by the safety audit will result in a notice to a new entrant required, and to prohibit motor car- that its DOT new entrant registration riers receiving a safety rating of ‘‘un- will be revoked? satisfactory’’ from operating a CMV. 385.323 May the FMCSA extend the period (b) The provisions of this part apply under § 385.319(c) for a new entrant to to all motor carriers subject to the retake corrective action to remedy its quirements of this subchapter, except safety management practices? non-business private motor carriers of 385.325 What happens after a new entrant has been notified under 385.319(c) to take passengers and motor carriers con- corrective action to remedy its safety ducting for-hire operations of pas- management practices? senger CMVs with a capacity of fewer 385.327 What happens when a new entrant than 16 persons, including the driver. receives a notice under § 385.319(c) that its new entrant registration will be re- [65 FR 50934, Aug. 22, 2000] voked and it believes the FMCSA made EFFECTIVE DATE NOTE: At 67 FR 31982, May an error in its determination? 13, 2002, § 385.1 was amended by redesignating 385.329 May a new entrant that has had its paragraph (b) as paragraph (c) and revising U.S. DOT registration revoked and its it, and by adding new paragraph (b), effective operations placed out of service (OOS) re- Jan. 1, 2003. For the convenience of the user, apply? the revised text follows: 385.331 What happens if a new entrant operates a CMV after having been issued an § 385.1 Purpose and scope. order placing its interstate operations out of service (OOS)? 385.333 What happens at the end of the 18- * * * * * month safety monitoring period? (b) This part establishes the safety assur- 385.335 If the FMCSA conducts a compliance ance program for a new entrant motor car- review on a new entrant, will the new en- rier initially seeking to register with trant also be subject to a safety audit? FMCSA to conduct interstate operations. It 385.337 What happens if a new entrant re- also describes the consequences that will fuses to permit a safety audit to be per- occur if the new entrant fails to maintain formed on its operations? adequate basic safety management controls. APPENDIX A TO PART 385 EXPLORATION OF (c) The provisions of this part apply to all SAFETY AUDIT EVALUATION CRITERIA motor carriers subject to the requirements APPENDIX B TO PART 385—EXPLANATION OF of this subchapter, except non-business pri- SAFETY RATING PROCESS vate motor carriers of passengers. AUTHORITY: 49 U.S.C. 113, 504, 521(b), 5113, 13901–13905, 31136, 31144, 31148, and 31502; Sec- § 385.3 Definitions. tion 350 of Public Law 107–87; and 49 CFR Applicable safety regulations or require- 1.73. ments means 49 CFR subtitle B, chapter EFFECTIVE DATE NOTE: At 67 FR 31982, May III, Subchapter B—Federal Motor Car- 13, 2002, the authority citation for part 385 rier Safety Regulations; and 49 CFR was revised, effective Jan. 1, 2003. For the subtitle B, chapter I, Subchapter C— convenience of the user, the revised text follows: Hazardous Materials Regulations. Commercial motor vehicle shall have the same meaning as described in § 390.5 of this subchapter. AUTHORITY: 49 U.S.C. 113, 504, 521(b), 5113, Preventable accident on the part of a 31136, 31144, 31148, and 31502; and 49 CFR 1.73. motor carrier means an accident (1) SOURCE: 53 FR 50968, Dec. 19, 1988, unless that involved a commercial motor ve- otherwise noted. hicle, and (2) that could have been EDITORIAL NOTE: Nomenclature changes to averted but for an act, or failure to act, part 385 appear at 66 FR 49872, Oct. 1, 2001. by the motor carrier or the driver. Reviews. For the purposes of this Subpart A—General part: (1) Compliance review means an on- § 385.1 Purpose and scope. site examination of motor carrier oper- (a) This part establishes the ations, such as drivers’ hours of serv- FMCSA’s procedures to determine the ice, maintenance and inspection, driver

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qualification, commercial drivers li- currences listed in § 385.5 (a) through cense requirements, financial responsi- (k). bility, accidents, hazardous materials, (4) Unrated carrier means that a safe- and other safety and transportation ty rating has not been assigned to the records to determine whether a motor motor carrier by the FMCSA. carrier meets the safety fitness standard. A compliance review may be con- [53 FR 50968, Dec. 19, 1988, as amended at 56 FR 40805, Aug. 16, 1991; 62 FR 60042, Nov. 6, ducted in response to a request to 1997; 67 FR 12779, Mar. 19, 2002] change a safety rating, to investigate potential violations of safety regula- EFFECTIVE DATE NOTE: At 67 FR 31983, May tions by motor carriers, or to inves- 13, 2002, § 385.3 was amended by revising the section heading and adding definitions and tigate complaints or other evidence of acronyms in alphabetical order, effective safety violations. The compliance re- Jan. 1, 2003. For the convenience of the user, view may result in the initiation of an the revised and added text follows: enforcement action. (2) Safety Audit means an examina- § 385.3 Definitions and acronyms. tion of a motor carrier’s operations to provide educational and technical as- * * * * * sistance on safety and the operational CMV means a commercial motor vehicle as requirements of the FMCSRs and appli- defined in § 390.5 of this subchapter. cable HMRs and to gather critical safety data needed to make an assessment * * * * * of the carrier’s safety performance and basic safety management controls. FMCSA means the Federal Motor Carrier Safety audits do not result in safety Safety Administration. ratings. FMCSRs mean Federal Motor Carrier Safe- (3) Safety management controls means ty Regulations (49 CFR parts 350–399). HMRs means the Hazardous Materials Reg- the systems, policies programs, prac- ulations (49 CFR parts 100–178). tices, and procedures used by a motor New entrant is a motor carrier not domi- carrier to ensure compliance with ap- ciled in Mexico that applies for a United plicable safety and hazardous materials States Department of Transportation (DOT) regulations which ensure the safe identification number in order to initiate op- movement of products and passengers erations in interstate commerce. through the transportation system, New entrant registration is the registration and to reduce the risk of highway acci- (US DOT number) granted a new entrant be- dents and hazardous materials inci- fore it can begin interstate operations in an 18-month monitoring period. A safety audit dents resulting in fatalities, injuries, must be performed on a new entrant’s oper- and property damage. ations within 18 months after receipt of its Safety ratings: (1) Satisfactory safety US DOT number and it must be found to rating means that a motor carrier has have adequate basic safety management con- in place and functioning adequate safe- trols to continue operating in interstate ty management controls to meet the commerce at the end of the 18-month period. safety fitness standard prescribed in § 385.5. Safety management controls are § 385.5 Safety fitness standard. adequate if they are appropriate for the The satisfactory safety rating is size and type of operation of the par- based on the degree of compliance with ticular motor carrier. the safety fitness standard for motor (2) Conditional safety rating means a carriers. To meet the safety fitness motor carrier does not have adequate standard, the motor carrier shall dem- safety management controls in place to onstrate that it has adequate safety ensure compliance with the safety fit- management controls in place, which ness standard that could result in oc- function effectively to ensure accept- currences listed in § 385.5 (a) through able compliance with applicable safety (k). requirements to reduce the risk associ- (3) Unsatisfactory safety rating means ated with: a motor carrier does not have adequate (a) Commercial driver’s license safety management controls in place to standard violations (part 383), ensure compliance with the safety fit- (b) Inadequate levels of financial re- ness standard which has resulted in oc- sponsibility (part 387),

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(c) The use of unqualified drivers cident and incident indicators have im- (part 391), proved or deteriorated over time. (d) Improper use and driving of motor (g) The number and severity of viola- vehicles (part 392), tions of state safety rules, regulations, (e) Unsafe vehicles operating on the standards, and orders applicable to highways (part 393), commercial motor vehicles and motor (f) Failure to maintain accident reg- carrier safety that are compatible with isters and copies of accident reports Federal rules, regulations, standards, (part 390), and orders. (g) The use of fatigued drivers (part 395), [53 FR 50968, Dec. 19, 1988, as amended at 58 FR 33776, June 21, 1993] (h) Inadequate inspection, repair, and maintenance of vehicles (part 396), § 385.9 Determination of a safety rat- (i) Transportation of hazardous mate- ing. rials, driving and parking rule viola- (a) Following a compliance review of tions (part 397), (j) Violation of hazardous materials a motor carrier operation, the FMCSA, regulations (parts 170 through 177), and using the factors prescribed in § 385.7 as (k) Motor vehicle accidents and haz- computed under the Safety Fitness ardous materials incidents. Rating Methodology set forth in appendix B of this part, shall determine [53 FR 50968, Dec. 19, 1988, as amended at 58 whether the present operations of the FR 33776, June 21, 1993] motor carrier are consistent with the safety fitness standard set forth in § 385.7 Factors to be considered in determining a safety rating. § 385.5, and assign a safety rating accordingly. The factors to be considered in deter- (b) Unless otherwise specifically pro- mining the safety fitness and assigning vided in this part, a safety rating will a safety rating include information be issued to a motor carrier within 30 from safety reviews, compliance re- days following the completion of a views and any other data. The factors compliance review. may include all or some of the following: [62 FR 60042, Nov. 6, 1997] (a) Adequacy of safety management controls. The adequacy of controls may § 385.11 Notification of safety fitness be questioned if their degree of for- determination. malization, automation, etc., is found (a) The FMCSA will provide a motor to be substantially below the norm for carrier written notice of any safety similar carriers. Violations, accidents rating resulting from a compliance re- or incidents substantially above the view as soon as practicable, but not norm for similar carriers will be strong later than 30 days after the review. The evidence that management controls notice will take the form of a letter are either inadequate or not func- issued from the FMCSA’s headquarters tioning properly. office and will include a list of FMCSR (b) Frequency and severity of regu- and HMR compliance deficiencies latory violations. which the motor carrier must correct. (c) Frequency and severity of driver/ (b) If the safety rating is vehicle regulatory violations identified ‘‘satisfactory’’ or improves a previous in roadside inspections. ‘‘unsatisfactory’’ safety rating, it is (d) Number and frequency of out-of- final and becomes effective on the date service driver/vehicle violations. of the notice. (e) Increase or decrease in similar (c) In all other cases, a notice of a types of regulatory violations discov- proposed safety rating will be issued. It ered during safety or compliance re- becomes the final safety rating after views. the following time periods: (f) Frequency of accidents; hazardous (1) For motor carriers transporting materials incidents; accident rate per hazardous materials in quantities re- million miles; preventable accident quiring placarding or transporting pas- rate per million miles; and other acci- sengers by CMV—45 days after the date dent indicators; and whether these ac- of the notice.

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(2) For all other motor carriers oper- passengers in a CMV or to transport ating CMVs—60 days after the date of hazardous materials in quantities re- the notice. quiring placarding. (d) A proposed safety rating of (c) A Federal agency must not use a ‘‘unsatisfactory’’ is a notice to the motor carrier for other CMV transpor- motor carrier that the FMCSA has tation if that carrier holds an made a preliminary determination that ‘‘unsatisfactory’’ rating which became the motor carrier is ‘‘unfit’’ to con- effective on or after January 22, 2001. tinue operating in interstate com- (d) Penalties. If a proposed merce, and that the prohibitions in ‘‘unsatisfactory’’ safety rating becomes § 385.13 will be imposed after 45 or 60 final, the FMCSA will issue an order days if necessary safety improvements placing its interstate operations out of are not made. service. Any motor carrier that oper- (e) A motor carrier may request the ates CMVs in violation of this section FMCSA to perform an administrative will be subject to the penalty provi- review of a proposed or final safety rat- sions listed in 49 U.S.C. 521(b). ing. The process and the time limits are described in § 385.15. [65 FR 50934, Aug. 22, 2000] (f) A motor carrier may request a change to a proposed or final safety § 385.14 Motor carriers, brokers, and rating based upon its corrective ac- freight forwarders delinquent in tions. The process and the time limits paying civil penalties: prohibition are described in § 385.17. on transportation. (a) A CMV owner or operator that has [65 FR 50934, Aug. 22, 2000] failed to pay civil penalties imposed by § 385.13 Unsatisfactory rated motor the FMCSA, or has failed to abide by a carriers; prohibition on transpor- payment plan, may be prohibited from tation; ineligibility for Federal con- operating CMVs in interstate com- tracts. merce under 49 CFR 386.83. (a) Generally, a motor carrier rated (b) A broker, freight forwarder, or ‘‘unsatisfactory’’ is prohibited from op- for-hire motor carrier that has failed erating a CMV. Information on motor to pay civil penalties imposed by the carriers, including their most current FMCSA, or has failed to abide by a safety rating, is available from the payment plan, may be prohibited from FMCSA on the Internet at http:// operating in interstate commerce, and www.safersys.org, or by telephone at its registration may be suspended (800) 832–5660. under the provisions of 49 CFR 386.84. (1) Motor carriers transporting haz- [65 FR 78427, Dec. 15, 2000] ardous materials in quantities requiring placarding, and motor carriers § 385.15 Administrative review. transporting passengers in a CMV, are prohibited from operating a CMV be- (a) A motor carrier may request the ginning on the 46th day after the date FMCSA to conduct an administrative of the FMCSA’s notice of proposed review if it believes the FMCSA has ‘‘unsatisfactory’’ rating. committed an error in assigning its (2) All other motor carriers rated proposed safety rating in accordance from reviews completed on or after No- with § 385.15(c) or its final safety rating vember 20, 2000 are prohibited from opin accordance with § 385.11(b). erating a CMV beginning on the 61st (b) The motor carrier’s request must day after the date of the FMCSA’s no- explain the error it believes the tice of proposed ‘‘unsatisfactory’’ rat- FMCSA committed in issuing the safe- ing. If the FMCSA determines the ty rating. The motor carrier must in- motor carrier is making a good-faith clude a list of all factual and proce- effort to improve its safety fitness, the dural issues in dispute, and any infor- FMCSA may allow the motor carrier to mation or documents that support its operate for up to 60 additional days. argument. (b) A Federal agency must not use a (c) The motor carrier must submit its motor carrier that holds an request in writing to the Chief Safety ‘‘unsatisfactory’’ rating to transport Officer, Federal Motor Carrier Safety

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Administration, 400 Seventh Street, ice Center for the geographic area SW., Washington DC 20590. where the carrier maintains its prin- (1) If a motor carrier has received a cipal place of business. The addresses notice of a proposed ‘‘unsatisfactory’’ and geographical boundaries of the safety rating, it should submit its re- Service Centers are listed in § 390.27 of quest within 15 days from the date of this chapter. the notice. This time frame will allow (c) The motor carrier must base its the FMCSA to issue a written decision request upon evidence that it has before the prohibitions outlined in taken corrective actions and that its § 385.13 (a)(1) and (2) take effect. Failure operations currently meet the safety to petition within this 15-day period standard and factors specified in §§ 385.5 may prevent the FMCSA from issuing a and 385.7. The request must include a final decision before such prohibitions written description of corrective ac- take effect. tions taken, and other documentation (2) A motor carrier must make a re- the carrier wishes the FMCSA to con- quest for an administrative review sider. within 90 days of the date of the pro- (d) The FMCSA will make a final de- posed safety rating issued under § 385.11 termination on the request for change (c) or a final safety rating issued under based upon the documentation the § 385.11 (b), or within 90 days after de- motor carrier submits, and any addi- nial of a request for a change in rating tional relevant information. under § 385.17(i). (e) The FMCSA will perform reviews (d) The FMCSA may ask the motor of requests made by motor carriers carrier to submit additional data and with a proposed or final attend a conference to discuss the safe- ‘‘unsatisfactory’’ safety rating in the ty rating. If the motor carrier does not following time periods after the motor provide the information requested, or carrier’s request: does not attend the conference, the (1) Within 30 days for motor carriers FMCSA may dismiss its request for re- transporting passengers in CMVs or view. placardable quantities of hazardous (e) The FMCSA will notify the motor materials. carrier in writing of its decision fol- (2) Within 45 days for all other motor lowing the administrative review. The carriers. FMCSA will complete its review: (f) The filing of a request for change (1) Within 30 days after receiving a to a proposed or final safety rating request from a hazardous materials or under this section does not stay the 45- passenger motor carrier that has re- day period specified in § 385.13(a)(1) for ceived a proposed or final motor carriers transporting passengers ‘‘unsatisfactory’’ safety rating. or hazardous materials. If the motor (2) Within 45 days after receiving a carrier has submitted evidence that request from any other motor carrier corrective actions have been taken pur- that has received a proposed or final suant to this section and the FMCSA ‘‘unsatisfactory’’ safety rating. cannot make a final determination (f) The decision constitutes final within the 45-day period, the period be- agency action. fore the proposed safety rating be- (g) Any motor carrier may request a comes final may be extended for up to rating change under the provisions of 10 days at the discretion of the § 385.17. FMCSA. [65 FR 50935, Aug. 22, 2000] (g) The FMCSA may allow a motor carrier with a proposed rating of § 385.17 Change to safety rating based ‘‘unsatisfactory’’ (except those trans- upon corrective actions. porting passengers in CMVs or (a) A motor carrier that has taken placardable quantities of hazardous action to correct the deficiencies that materials) to continue to operate in resulted in a proposed or final rating of interstate commerce for up to 60 days ‘‘conditional’’ or ‘‘unsatisfactory’’ may beyond the 60 days specified in the pro- request a rating change at any time. posed rating, if the FMCSA determines (b) A motor carrier must make this that the motor carrier is making a request in writing to the FMCSA Serv- good faith effort to improve its safety

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status. This additional period would Subpart B—Safety Monitoring Sys- begin on the 61st day after the date of tem for Mexico-Domiciled the notice of the proposed ‘‘unsatisfac- Carriers tory’’ rating. (h) If the FMCSA determines that the motor carrier has taken the corrective Source: [67 FR 12771, Mar. 19, 2002], unless otherwise noted. actions required and that its operations currently meet the safety stand- § 385.101 Definitions ard and factors specified in §§ 385.5 and 385.7, the agency will notify the motor Compliance Review means a compli- carrier in writing of its upgraded safe- ance review as defined in § 385.3 of this ty rating. part. Provisional certificate of registration (i) If the FMCSA determines that the means the registration under § 368.6 of motor carrier has not taken all the this subchapter that the FMCSA corrective actions required, or that its grants to a Mexico-domiciled motor operations still fail to meet the safety carrier to provide interstate transpor- standard and factors specified in §§ 385.5 tation of property within the United and 385.7, the agency will notify the States solely within the municipalities motor carrier in writing. along the United States-Mexico border (j) Any motor carrier whose request and the commercial zones of such mu- for change is denied in accordance with nicipalities. It is provisional because it paragraph (i) of this section may re- will be revoked if the registrant does quest administrative review under the not demonstrate that it is exercising procedures of § 385.15. The motor car- basic safety management controls dur- rier must make the request within 90 ing the safety monitoring period estab- days of the denial of the request for a lished in this subpart. rating change. If the proposed rating Provisional operating authority means has become final, it shall remain in ef- the registration under § 365.507 of this fect during the period of any adminis- subchapter that the FMCSA grants to a trative review. Mexico-domiciled motor carrier to pro- [65 FR 50935, Aug. 22, 2000] vide interstate transportation within the United States beyond the munici- § 385.19 Safety fitness information. palities along the United States-Mex- ico border and the commercial zones of (a) Final ratings will be made avail- such municipalities. It is provisional able to other Federal and State agen- because it will be revoked if the reg- cies in writing, telephonically or by re- istrant is not assigned a Satisfactory mote computer access. safety rating following a compliance (b) The final safety rating assigned to review conducted during the safety a motor carrier will be made available monitoring period established in this to the public upon request. Any person subpart. requesting the assigned rating of a Safety audit means an examination of motor carrier shall provide the FMCSA a motor carrier’s operations to provide with the motor carrier’s name, prin- educational and technical assistance cipal office address, and, if known, the on safety and the operational require- USDOT number or the ICCMC docket ments of the FMCSRs and applicable number, if any. HMRs and to gather critical safety (c) Requests should be addressed to data needed to make an assessment of the Office of Data Analysis and Infor- the carrier’s safety performance and mation Systems (MC RIS), Federal basic safety management controls. Motor Carrier Safety Administration, Safety audits do not result in safety 400 Seventh Street, SW., Washington, ratings. DC 20590. The information can also be found at the SAFER website: http:// § 385.103 Safety monitoring system. www.safersys.org. (a) General. Each Mexico-domiciled (d) Oral requests by telephone to (800) carrier operating in the United States 832–5660 will be given an oral response. will be subject to an oversight program [62 FR 60043, Nov. 6, 1997, as amended at 66 to monitor its compliance with appli- FR 49872, Oct. 1, 2001] cable Federal Motor Carrier Safety

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Regulations (FMCSRs), Federal Motor (i) A highway route controlled quan- Vehicle Safety Standards (FMVSSs), tity of a Class 7 (radioactive) material and Hazardous Materials Regulations as defined in § 173.403 of this title; (HMRs). (ii) Any quantity of a Class 1, Divi- (b) Roadside monitoring. Each Mexico- sion 1.1, 1.2, or 1.3 explosive as defined domiciled carrier that receives provi- in § 173.50 of this title; or sional operating authority or a provi- (iii) Any quantity of a poison inhala- sional Certificate of Registration will tion hazard Zone A or B material as de- be subject to intensified monitoring fined in §§ 173.115, 173.132, or 173.133 of through frequent roadside inspections. this title. (4) Involvement in, due to carrier act (c) CVSA decal. Each Mexico-domi- or omission, two or more hazardous ciled carrier granted provisional oper- material incidents occurring within ating authority under part 365 of this the United States and involving any subchapter must have on every com- hazardous material not listed in para- mercial motor vehicle it operates in graph (a)(3) of this section and defined the United States a current decal at- in chapter I of this title. testing to a satisfactory inspection by (5) Using a driver who tests positive a Commercial Vehicle Safety Alliance for controlled substances or alcohol or (CVSA) inspector. who refuses to submit to required con- (d) Safety audit. The FMCSA will controlled substances or alcohol tests. duct a safety audit on a Mexico-domi- (6) Operating within the United ciled carrier within 18 months after the States a motor vehicle that is not in- FMCSA issues the carrier a provisional sured as required by part 387 of this Certificate of Registration under part chapter. 368 of this subchapter. (7) Having a driver or vehicle out-of- (e) Compliance review. The FMCSA service rate of 50 percent or more based will conduct a compliance review on a upon at least three inspections occur- Mexico-domiciled carrier within 18 ring within a consecutive 90-day pe- months after the FMCSA issues the riod. carrier provisional operating authority (b) Failure to respond to an agency under part 365 of this subchapter. demand for a written response demonstrating corrective action within 30 § 385.105 Expedited action. days will result in the suspension of (a) A Mexico-domiciled motor carrier the carrier’s provisional operating au- committing any of the following viola- thority or provisional Certificate of tions identified through roadside in- Registration until the required show- spections, or by any other means, may ing of corrective action is submitted to the FMCSA. be subjected to an expedited safety (c) A satisfactory response to a writ- audit or compliance review, or may be ten demand for corrective action does required to submit a written response not excuse a carrier from the require- demonstrating corrective action: ment that it undergo a safety audit or (1) Using drivers not possessing, or compliance review, as appropriate, dur- operating without, a valid Licencia ing the provisional registration period. Federal de Conductor. An invalid Licencia Federal de Conductor includes § 385.107 The safety audit. one that is falsified, revoked, expired, (a) The criteria used in a safety audit or missing a required endorsement. to determine whether a Mexico-domi- (2) Operating vehicles that have been ciled carrier exercises the necessary placed out of service for violations of basic safety management controls are the Commercial Vehicle Safety Alli- specified in Appendix A to this part. ance (CVSA) North American Standard (b) If the FMCSA determines, based Out-of-Service Criteria, without mak- on the safety audit, that the Mexico- ing the required repairs. domiciled carrier has adequate basic (3) Involvement in, due to carrier act safety management controls, the or omission, a hazardous materials in- FMCSA will provide the carrier written cident within the United States involv- notice of this finding as soon as prac- ing: ticable, but not later than 45 days after

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the completion of the safety audit. The under this subpart, it will initiate a carrier’s Certificate of Registration suspension and revocation proceeding will remain provisional and the car- in accordance with § 385.111 of this sub- rier’s on-highway performance will part. continue to be closely monitored for the remainder of the 18-month provi- § 385.111 Suspension and revocation of sional registration period. Mexico-domiciled carrier registra- (c) If the FMCSA determines, based tion. on the safety audit, that the Mexico- (a) If a carrier is assigned an domiciled carrier’s basic safety man- ‘‘Unsatisfactory’’ safety rating fol- agement controls are inadequate, it lowing a compliance review conducted will initiate a suspension and revoca- under this subpart, or a safety audit tion proceeding in accordance with conducted under this subpart deter- § 385.111 of this subpart. mines that a carrier does not exercise (d) The safety audit is also used to the basic safety management controls assess the basic safety management necessary to ensure safe operations, controls of Mexico-domiciled appli- the FMCSA will provide the carrier cants for provisional operating author- written notice, as soon as practicable, ity to operate beyond United States that its registration will be suspended municipalities and commercial zones effective 15 days from the service date on the United States-Mexico border of the notice unless the carrier dem- under § 365.507 of this subchapter. onstrates, within 10 days of the service date of the notice, that the compliance § 385.109 The compliance review. review or safety audit contains mate- (a) The criteria used in a compliance rial error. review to determine whether a Mexico- (b) For purposes of this section, ma- domiciled carrier granted provisional terial error is a mistake or series of operating authority under § 365.507 of mistakes that resulted in an erroneous this subchapter exercises the necessary safety rating or an erroneous deter- basic safety management controls are mination that the carrier does not ex- specified in Appendix B to this part. ercise the necessary basic safety man- (b) Satisfactory Rating. If the FMCSA agement controls. assigns a Mexico-domiciled carrier a (c) If the carrier demonstrates that Satisfactory rating following a compli- the compliance review or safety audit ance review conducted under this sub- contained material error, its registra- part, the FMCSA will provide the car- tion will not be suspended. If the carrier written notice as soon as prac- rier fails to show a material error in ticable, but not later than 45 days after the safety audit, the FMCSA will issue the completion of the compliance re- an Order: view. The carrier’s operating authority (1) Suspending the carrier’s provi- will remain in provisional status and sional operating authority or provi- its on-highway performance will con- sional Certificate of Registration and tinue to be closely monitored for the requiring it to immediately cease all remainder of the 18-month provisional further operations in the United registration period. States; and (c) Conditional Rating. If the FMCSA (2) Notifying the carrier that its pro- assigns a Mexico-domiciled carrier a visional operating authority or provi- Conditional rating following a compli- sional Certificate of Registration will ance review conducted under this sub- be revoked unless it presents evidence part, it will initiate a revocation proof necessary corrective action within 30 ceeding in accordance with § 385.111 of days from the service date of the Order. this subpart. The carrier’s provisional (d) If a carrier is assigned a operating authority will not be sus- ‘‘Conditional’’ rating following a com- pended prior to the conclusion of the pliance review conducted under this revocation proceeding. subpart, the provisions of subpara- (d) Unsatisfactory Rating. If the graphs (a) through (c) of this section FMCSA assigns a Mexico-domiciled will apply, except that its provisional carrier an Unsatisfactory rating fol- registration will not be suspended lowing a compliance review conducted under paragraph (c)(1) of this section.

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(e) If a carrier subject to this subpart of-service order, it is subject to the fails to provide the necessary docu- penalty provisions in 49 U.S.C. ments for a safety audit or compliance 521(b)(2)(A), not to exceed $10,000 for review upon reasonable request, or fails each offense. to submit evidence of the necessary (i) Notwithstanding any provision of corrective action as required by this subpart, a carrier subject to this § 385.105 of this subpart, the FMCSA subpart is also subject to the suspen- will provide the carrier with written sion and revocation provisions of 49 notice, as soon as practicable, that its U.S.C. 13905 for repeated violations of registration will be suspended 15 days DOT regulations governing its motor from the service date of the notice un- carrier operations. less it provides all necessary documents or information. This suspension § 385.113 Administrative review. will remain in effect until the nec- (a) A Mexico-domiciled motor carrier essary documents or information are may request the FMCSA to conduct an produced and: administrative review if it believes the (1) A safety audit determines that FMCSA has committed an error in as- the carrier exercises basic safety man- signing a safety rating or suspending agement controls necessary for safe op- or revoking the carrier’s provisional erations; operating authority or provisional Cer- (2) The carrier is rated Satisfactory tificate of Registration under this sub- or Conditional after a compliance re- part. view; or (b) The carrier must submit its re- (3) The FMCSA determines, following quest in writing, in English, to the As- review of the carrier’s response to a de- sociate Administrator for Enforce- mand for corrective action under ment, Federal Motor Carrier Safety § 385.105, that the carrier has taken the Administration, 400 Seventh Street, necessary corrective action. SW., Washington DC 20590. (f) If a carrier commits any of the (c) The carrier’s request must explain violations specified in § 385.105(a) of the error it believes the FMCSA com- this subpart after the removal of a sus- mitted in assigning the safety rating or pension issued under this section, the suspending or revoking the carrier’s suspension will be automatically rein- provisional operating authority or pro- stated. The FMCSA will issue an Order visional Certificate of Registration and requiring the carrier to cease further include any information or documents operations in the United States and that support its argument. demonstrate, within 15 days from the (d) The FMCSA will complete its ad- service date of the Order, that it did ministrative review no later than 10 not commit the alleged violation(s). If days after the carrier submits its re- the carrier fails to demonstrate that it quest for review. The Associate Admin- did not commit the violation(s), the istrator’s decision will constitute the FMCSA will issue an Order revoking final agency action. its provisional operating authority or provisional Certificate of Registration. § 385.115 Reapplying for provisional (g) If the FMCSA receives credible registration. evidence that a carrier has operated in (a) A Mexico-domiciled motor carrier violation of a suspension order issued whose provisional operating authority under this section, it will issue an or provisional Certificate of Registra- Order requiring the carrier to show tion has been revoked may reapply cause, within 10 days of the service under part 365 or 368 of this subchapter, date of the Order, why its provisional as appropriate, no sooner than 30 days operating authority or provisional Cer- after the date of revocation. tificate of Registration should not be (b) The Mexico-domiciled motor car- revoked. If the carrier fails to make rier will be required to initiate the ap- the necessary showing, the FMCSA will plication process from the beginning. revoke its registration. The carrier will be required to dem- (h) If a Mexico-domiciled motor car- onstrate how it has corrected the defi- rier operates a commercial motor vehi- ciencies that resulted in revocation of cle in violation of a suspension or out- its registration and how it will ensure

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that it will have adequate basic safety eral safety fitness procedures estab- management controls. It will also have lished in subpart A of this part and to to undergo a pre-authorization safety compliance and enforcement proce- audit if it applies for provisional oper- dures applicable to all carriers regu- ating authority under part 365 of this lated by the FMCSA. subchapter. Subpart C—Certification of Safety § 385.117 Duration of safety monitoring system. Auditors, Safety Investigators, (a) Each Mexico-domiciled carrier and Safety Inspectors subject to this subpart will remain in the safety monitoring system for at SOURCE: 67 FR 12779, Mar. 19, 2002, unless least 18 months from the date FMCSA otherwise noted. issues its provisional Certificate of § 385.201 Who is qualified to perform a Registration or provisional operating review of a motor carrier? authority, except as provided in paragraphs (c) and (d) of this section. (a) An FMCSA employee, or a State (b) If, at the end of this 18-month pe- or local government employee funded riod, the carrier’s most recent safety through MCSAP, who was qualified to audit or safety rating was Satisfactory perform a compliance review before and no additional enforcement or safe- June 17, 2002, may perform a compli- ty improvement actions are pending ance review, safety audit or roadside under this subpart, the Mexico-domi- inspection if he or she complies with ciled carrier’s provisional operating § 385.203(b). authority or provisional Certificate of (b) A person who was not qualified to Registration will become permanent. perform a compliance review before (c) If, at the end of this 18-month pe- June 17, 2002, may perform a compli- riod, the FMCSA has not been able to ance review, safety audit or roadside conduct a safety audit or compliance inspection after complying with the re- review, the carrier will remain in the quirements of § 385.203(a). safety monitoring system until a safety audit or compliance review is con- § 385.203 What are the requirements to ducted. If the results of the safety obtain and maintain certification? audit or compliance review are satis- (a) After June 17, 2002, a person who factory, the carrier’s provisional oper- is not qualified under § 385.201(a) may ating authority or provisional Certifi- not perform a compliance review, safe- cate of Registration will become per- ty audit, or roadside inspection unless manent. he or she has been certified by FMCSA (d) If, at the end of this 18-month pe- or a State or local agency applying the riod, the carrier’s provisional operating FMCSA standards after successfully authority or provisional Certificate of completing classroom training and ex- Registration is suspended under aminations on the FMCSRs and HMRs § 385.111(a) of this subpart, the carrier as described in detail on the FMCSA will remain in the safety monitoring website (www.fmcsa.dot.gov). These em- system until the FMCSA either: ployees must also comply with the (1) Determines that the carrier has maintenance of certification/qualifica- taken corrective action; or tion requirements of paragraph (b) of (2) Completes measures to revoke the this section. carrier’s provisional operating author- (b) Maintenance of certification/quali- ity or provisional Certificate of Reg- fication. A person may not perform a istration under § 385.111(c) of this sub- compliance review, safety audit, or part. roadside inspection unless he or she meets the quality-control and periodic § 385.119 Applicability of safety fitness re-training requirements adopted by and enforcement procedures. the FMCSA to ensure the maintenance At all times during which a Mexico- of high standards and familiarity with domiciled motor carrier is subject to amendments to the FMCSRs and the safety monitoring system in this HMRs. These maintenance of certifi- subpart, it is also subject to the gen- cation/qualification requirements are

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described in detail on the FMCSA website (www.fmcsa.dot.gov) to secure and/or website (www.fmcsa.dot.gov). complete the application package online. (c) The requirements of paragraphs (b) The application package will contain (a) and (b) of this section for training, the following: performance and maintenance of cer- (1) Educational and technical assistance tification/qualification, which are de- material regarding the requirements of the scribed on the FMCSA website FMCSRs and HMRs, if applicable. (2) The Form MCS–150, The Motor Carrier (www.fmcsa.dot.gov), are also available Identification Report. in hard copy from the Office of Profes- (3) The Form MCS–150A, The Safety Cer- sional Development and Training, tification for Applications for U.S. DOT FMCSA, 400 7th Street, SW., Wash- Number. ington, DC 20590. (4) Application forms to obtain operating authority under 49 CFR 365, as appropriate. § 385.205 How can a person who has (c) Upon completion of the application lost his or her certification be re- forms, the new entrant will be issued a certified? USDOT number. He or she must successfully complete (d) For-hire motor carriers, unless pro- the requirements of § 385.203(a) and (b). viding transportation exempt from 49 CFR part 365 registration requirements, must also Subpart D—New Entrant Safety comply with the procedures established in 49 CFR part 365 to obtain operating authority Assurance Program before operating in interstate commerce.

EFFECTIVE DATE NOTE: At 67 FR 31983, May § 385.307 What happens after a motor car- 13, 2002, Part 385 was amended by adding sub- rier begins operations as a new entrant? part D, effective Jan. 1, 2003. After a new entrant satisfies all applicable pre-operational requirements, it will be sub- § 385.301 What is a motor carrier required ject to the new entrant safety monitoring to do before beginning interstate oper- procedures for a period of 18 months. During ations? this 18-month period: (a) Before a motor carrier of property or (a) The new entrant’s roadside safety per- passengers begins interstate operations, it formance will be closely monitored to ensure must register with the FMCSA and receive a the new entrant has basic safety manage- USDOT number. In addition, for-hire motor ment controls that are operating effectively. carriers must obtain operating authority from FMCSA following the registration pro- An accident rate or driver or vehicle viola- cedures described in 49 CFR part 365, unless tion rate that is higher than the industry av- providing transportation exempt from 49 erage for similar motor carrier operations CFR part 365 registration requirements. may cause the FMCSA to conduct an expe- (b) This subpart applies to motor carriers dited safety audit or compliance review at domiciled in the United States and Canada. any time. (c) A Mexico-domiciled motor carrier of (b) A safety audit will be conducted on the property or passengers must register with new entrant, once it has been in operation the FMCSA by following the registration for enough time to have sufficient records to procedures described in 49 CFR part 365 or allow the agency to evaluate the adequacy of 368, as appropriate. The regulations in this its basic safety management controls. This subpart do not apply to Mexico-domiciled period will generally be at least 3 months. carriers. (c) All records and documents required for the safety audit shall be made available for § 385.303 How does a motor carrier register with the FMCSA? inspection upon request by an individual certified under FMCSA regulations to perform A motor carrier may contact the FMCSA safety audits. by internet (www.fmcsa.dot.gov); or Wash- ington, DC headquarters by mail at, FMCSA, § 385.309 What is the purpose of the safety 400 7th Street SW., Washington, DC 20590; fax audit? (703) 280–4003; or telephone 1–800–832–5660, and The purpose of a safety audit is to: request the application materials for a new entrant motor carrier. (a) Provide educational and technical assistance to the new entrant; and § 385.305 What happens after the FMCSA re- (b) Gather safety data needed to make an ceives a request for new entrant registra- assessment of the new entrant’s safety per- tion? formance and adequacy of its basic safety (a) The requester for new entrant registra- management controls. tion will be directed to the FMCSA Internet

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§ 385.311 What will the safety audit consist sengers, including the driver, or transports of? hazardous materials requiring placarding; or The safety audit will consist of a review of (2) 60 days of the date of the notice for all the new entrant’s safety management sys- other new entrants. tems and a sample of required records to assess compliance with the FMCSRs, applica- § 385.321 What failures of safety management practices disclosed by the safety ble HMRs and related record-keeping re- audit will result in a notice to a new en- quirements as specified in Appendix A of this trant that its DOT new entrant registra- part. The areas for review include, but are tion will be revoked? not limited to, the following: The failures of safety management prac- (a) Driver qualification; tices consist of a lack of basic safety man- (b) Driver duty status; agement controls as described in Appendix A (c) Vehicle maintenance; of this part and will result in a notice to a (d) Accident register; and new entrant that its DOT new entrant reg- (e) Controlled substances and alcohol use istration will be revoked. and testing requirements. § 385.323 May the FMCSA extend the period § 385.313 Who will conduct the safety audit? under § 385.319(c) for a new entrant to An individual certified under the FMCSA take corrective action to remedy its safe- regulations to perform safety audits will ty management practices? conduct the safety audit. (a) If a new entrant that transports passengers in a CMV designed or used to trans- § 385.315 Where will the safety audit be con- port 16 or more passengers, including the ducted? driver, or transports hazardous materials in The safety audit will generally be con- quantities requiring placarding, has sub- ducted at the new entrant’s business prem- mitted evidence that corrective actions have ises. been taken pursuant to § 385.319(c) and the FMCSA cannot make a determination re- § 385.317 Will a safety audit result in a safe- garding the adequacy of the corrective ac- ty fitness determination by the FMCSA? tions within the 45 day period, the period A safety audit will not result in a safety may be extended for up to 10 days at the dis- fitness determination. Safety fitness deter- cretion of the FMCSA. minations follow completion of a compliance (b) The FMCSA may extend the 60-day pe- review. riod in § 385.319(c)(2), for up to an additional 60 days provided FMCSA determines that the § 385.319 What happens after the completion of the safety audit? new entrant is making a good faith effort to remedy its safety management practices. (a) Upon the completion of the safety audit, the auditor will review the findings § 385.325 What happens after a new entrant with the new entrant. has been notified under § 385.319(c) to (b) If the FMCSA determines that the safe- take corrective action to remedy its safety audit discloses that the new entrant has ty management practices? adequate basic safety management controls, (a) If the new entrant provides evidence of the FMCSA will provide the new entrant corrective action acceptable to the FMCSA written notice as soon as practicable, but within the time period provided in not later than 45 days after the completion § 385.319(c), including any extension of that of the safety audit, that it has adequate period authorized under § 385.323, the FMCSA basic safety management controls. The new will provide written notification to the new entrant’s safety performance will continue entrant that its DOT new entrant registra- to be closely monitored for the remainder of tion will not be revoked and it may continue the 18-month period of new entrant registra- operations. tion. (b) If a new entrant, after being notified (c) If the FMCSA determines that the find- that it is required to take corrective action ings of the safety audit disclose that the new to improve its safety management practices, entrant’s basic safety management controls fails to submit a written response dem- are inadequate, it will provide the new en- onstrating corrective action acceptable to trant written notice, as soon as practicable, FMCSA within the time specified in but not later than 45 days after the comple- § 385.319(c), including any extension of that tion of the safety audit, that its USDOT new period authorized under § 385.323, the FMCSA entrant registration will be revoked and its will revoke its new entrant registration and operations placed out-of-service unless it issue an out-of-service order effective on: takes the actions specified in the notice to (1) Day 46 from the date of notification if remedy its safety management practices the new entrant transports passengers in a within: CMV designed to transport 16 or more pas- (1) 45 days of the date of the notice if the sengers, including the driver, or transports new entrant transports passengers in a CMV hazardous materials in quantities requiring designed or used to transport 16 or more pas- placarding; or

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(2) Day 61 from the date of notification for lations of DOT regulations governing motor all other new entrants; or carrier operations. (3) If an extension has been granted under § 385.323, the day following the expiration of § 385.329 May a new entrant that has had its the extension date. U.S. DOT registration revoked and its op- (c) The new entrant may not operate in erations placed out of service (OOS) re- interstate commerce on or after the effective apply? date of the out-of-service order. (a) A new entrant whose U.S. DOT registration has been revoked and whose operations § 385.327 What happens when a new entrant have been placed OOS by the FMCSA may re- receives a notice under § 385.319(c) that apply under § 385.301 no sooner than 30 days its new entrant registration will be re- after the date of revocation. voked and it believes the FMCSA made an error in its determination? (b) The motor carrier will be required to (a) If a new entrant receives a revocation initiate the process from the beginning, and notice, it may request the FMCSA to con- will be required to demonstrate that it has duct an administrative review if it believes corrected the deficiencies that resulted in the FMCSA has committed an error in deter- revocation of its registration and otherwise mining that its basic safety management will ensure that it will have adequate basic controls were inadequate. safety management controls. (1) The request must be made to the Field § 385.331 What happens if a new entrant op- Administrator of the appropriate FMCSA erates a CMV after having been issued an Service Center. order placing its interstate operations (2) The request must explain the error the out of service (OOS)? new entrant believes the FMCSA committed If a new entrant operates a CMV in viola- in its determination. (3) The request must include a list of all tion of an out-of-service (OOS) order and factual and procedural issues in dispute, and § 385.325(b), it is subject to the penalty provi- any information or documents that support sions in 49 U.S.C. 521(b)(2)(A), not to exceed the new entrant’s argument. $10,000 for each offense. (b) The new entrant should submit its re- § 385.333 What happens at the end of the 18- quest no later than 15 days from the date of month safety monitoring period? the notice of the inadequacy of its basic safety management controls. Submitting the re- (a) If a safety audit has been performed quest within 15 days will allow the FMCSA within the 18-month period, and the new en- to issue a written decision before the prohi- trant is not currently subject to an order bitions outlined in § 385.319(c) take effect. placing its operations out-of-service under Failure to petition within this 15-day period § 385.325(b) or under a notice ordering it to may prevent the FMCSA from issuing a final take specified actions to remedy its safety decision before the prohibitions take effect. management controls under § 385.319(c), the (c) The FMCSA may request that the new FMCSA will remove the new entrant des- entrant submit additional data and attend a ignation and notify the new entrant in writ- conference to discuss the issue(s) in dispute. ing that its registration has become perma- If the new entrant does not attend the con- nent. Thereafter, the FMCSA will evaluate ference, or does not submit the requested the motor carrier on the same basis as any data, the FMCSA may dismiss the new en- other carrier. trant’s request for review. (b) If a new entrant is determined to be (d) The FMCSA will complete its review ‘‘unfit’’ after a compliance review its new en- and notify the new entrant in writing of its trant registration will be revoked. (See decision within 30 days after receiving a re- § 385.13) quest for review from a hazardous materials (c) A new entrant that has reached the or passenger new entrant and within 45 days conclusion of the 18-month period but is from any other new entrant. under an order to correct its safety manage- (e) A new entrant must make a request for ment practices under § 385.319(c) will have its an administrative review within: new entrant registration removed following (1) 90 days of the date when it was initially FMCSA’s determination that the specified notified under § 385.319(c) that its basic safe- actions have been taken to remedy its safety ty management controls were inadequate; or management practices. The motor carrier (2) 90 days after it was notified that its cor- will be notified in writing that its new en- rective action under § 385.319(c) was insuffi- trant designation is removed and that its cient and its basic safety management con- registration has become permanent. There- trols remain inadequate. after, the FMCSA will evaluate the motor (f) The Field Administrator’s decision con- carrier on the same basis as any other car- stitutes the final agency action. rier. (g) Notwithstanding this subpart, a new (d) If a safety audit or compliance review entrant is subject to the suspension and rev- has not been performed by the end of the 18- ocation provisions of 49 U.S.C. 13905 for vio- month monitoring period through no fault of

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the motor carrier, the carrier will be per- (b) To meet the safety standard, a motor mitted to continue operating as a new en- carrier must demonstrate to the FMCSA trant until a safety audit or compliance re- that it has basic safety management con- view is performed and a final determination trols in place which function adequately to is made regarding the adequacy of its safety ensure minimum acceptable compliance with management controls. Based on the results the applicable safety requirements. A of the safety audit or compliance review, the ‘‘safety audit evaluation criteria’’ was devel- FMCSA will either: oped by the FMCSA, which uses data from (1) Remove the new entrant designation the safety audit and roadside inspections to and notify the new entrant in writing that determine that each owner and each oper- its registration has become permanent; or ator applicant for a provisional operating au- (2) Revoke the new entrant registration in thority or provisional Certificate of Reg- accordance with § 385.319(c). istration has basic safety management con- § 385.335 If the FMCSA conducts a compli- trols in place. The term ‘‘safety audit’’ is the ance review on a new entrant, will the equivalent to the ‘‘safety review’’ required new entrant also be subject to a safety by Sec. 210. Using ‘‘safety audit’’ avoids any audit? possible confusion with the safety reviews If the FMCSA conducts a compliance re- previously conducted by the agency that view on a new entrant that has not pre- were discontinued on September 30, 1994. viously been subject to a safety audit and (c) The safety audit evaluation process de- issues a safety fitness determination, the veloped by the FMCSA is used to: new entrant will not have to undergo a safe- 1. Evaluate basic safety management con- ty audit under this subpart. However, the trols and determine if each owner and each new entrant will continue to be subject to operator is able to operate safely in inter- the 18-month safety-monitoring period prior state commerce; and to removal of the new entrant designation. 2. Identify owners and operators who are § 385.337 What happens if a new entrant re- having safety problems and need improve- fuses to permit a safety audit to be per- ment in their compliance with the FMCSRs formed on its operations? and the HMRs, before they are granted per- (a) If a new entrant refuses to permit a manent registration. safety audit to be performed on its operations, the FMCSA will provide the carrier II. SOURCE OF THE DATA FOR THE SAFETY with written notice that its registration will AUDIT EVALUATION CRITERIA be revoked and its operations placed out of (a) The FMCSA’s evaluation criteria are service unless the new entrant agrees in built upon the operational tool known as the writing, within 10 days from the service date safety audit. This tool was developed to as- of the notice, to permit the safety audit to sist auditors and investigators in assessing be performed. The initial refusal to permit a the adequacy of a new entrant’s basic safety safety audit to be performed may subject the new entrant to the penalty provisions in 49 management controls. U.S.C. 521(b)(2)(A). (b) The safety audit is a review of a Mex- (b) If the new entrant does not agree to un- ico-domiciled motor carrier’s operation and dergo a safety audit as specified in paragraph is used to: (a) of this section, its registration will be re- 1. Determine if a carrier has the basic safe- voked and its interstate operations placed ty management controls required by 49 out of service effective on the 11th day from U.S.C. 31144; the service date of the notice issued under 2. Meet the requirements of Section 350 of paragraph (a) of this section. the DOT Appropriations Act; and 3. In the event that a carrier is found not APPENDIX A TO PART 385—EXPLANATION to be in compliance with applicable FMCSRs OF SAFETY AUDIT EVALUATION CRITERIA and HMRs, the safety audit can be used to educate the carrier on how to comply with I. GENERAL U.S. safety rules. (a) Section 210 of the Motor Carrier Safety (c) Documents such as those contained in Improvement Act (49 U.S.C. 31144) directed the driver qualification files, records of duty the Secretary to establish a procedure status, vehicle maintenance records, and whereby each owner and each operator other records are reviewed for compliance granted new authority must undergo a safe- with the FMCSRs and HMRs. Violations are ty review within 18 months after the owner cited on the safety audit. Performance-based or operator begins operations. The Secretary information, when available, is utilized to was also required to establish the elements evaluate the carrier’s compliance with the of this safety review, including basic safety vehicle regulations. Recordable accident in- management controls. The Secretary, in formation is also collected. turn, delegated this to the FMCSA.

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III. DETERMINING IF THE CARRIER HAS BASIC assessed for discovered noncompliance with SAFETY MANAGEMENT CONTROLS acute and critical regulations of part 396 to determine the carrier’s level of safety man- (a) During the safety audit, the FMCSA agement control for that factor; and gathers information by reviewing a motor 2. If the motor carrier’s vehicle OOS rate is carrier’s compliance with ‘‘acute’’ and less than 34 percent, or if there are less than ‘‘critical’’ regulations of the FMCSRs and three inspections, the determination of the HMRs. carrier’s level of safety management con- (b) Acute regulations are those where non- trols will only be based on discovered noncompliance is so severe as to require imme- compliance with the acute and critical regu- diate corrective actions by a motor carrier lations of part 396. regardless of the overall basic safety man- (b) Over two million inspections occur on agement controls of the motor carrier. the roadside each year. This vehicle inspec- (c) Critical regulations are those where tion information is retained in the MCMIS noncompliance relates to management and/ and is integral to evaluating motor carriers’ or operational controls. These are indicative ability to successfully maintain their vehi- of breakdowns in a carrier’s management cles, thus preventing them from being placed controls. OOS during roadside inspections. Each safety (d) The list of the acute and critical regu- audit will continue to have the requirements lations, which are used in determining if a of part 396, Inspection, Repair, and Mainte- carrier has basic safety management con- nance, reviewed as indicated by the above ex- trols in place, is included in Appendix B, VII. planation. List of Acute and Critical Regulations. (e) Noncompliance with acute and critical B. The Accident Factor regulations are indicators of inadequate (a) In addition to the five regulatory fac- safety management controls and usually tors, a sixth factor is included in the process higher than average accident rates. to address the accident history of the motor (f) Parts of the FMCSRs and the HMRs carrier. This factor is the recordable acci- having similar characteristics are combined dent rate, which the carrier has experienced together into six regulatory areas called during the past 12 months. Recordable acci- ‘‘factors.’’ The regulatory factors, evaluated dent, as defined in 49 CFR 390.5, means an ac- on the basis of the adequacy of the carrier’s cident involving a commercial motor vehicle safety management controls, are: operating on a public road in interstate or 1. Factor 1—General: Parts 387 and 390; intrastate commerce which results in a fa- 2. Factor 2—Driver: Parts 382, 383 and 391; tality; a bodily injury to a person who, as a 3. Factor 3—Operational: Parts 392 and 395; result of the injury, immediately receives 4. Factor 4—Vehicle: Part 393, 396 and in- medical treatment away from the scene of spection data for the last 12 months; the accident; or one or more motor vehicles 5. Factor 5—Hazardous Materials: Parts incurring disabling damage as a result of the 171, 177, 180 and 397; and accident requiring the motor vehicle to be 6. Factor 6—Accident: Recordable Accident transported away from the scene by a tow Rate per Million Miles. truck or other motor vehicle. (g) For each instance of noncompliance (b) Experience has shown that urban car- with an acute regulation, 1.5 points will be riers, those motor carriers operating entirely assessed. within a radius of less than 100 air miles (h) For each instance of noncompliance (normally urban areas), have a higher expo- with a critical regulation, 1 point will be assure to accident situations because of their sessed. environment and normally have higher acci- A. Vehicle Factor dent rates. (c) The recordable accident rate will be (a) When at least three vehicle inspections used in determining the carrier’s basic safety are recorded in the Motor Carrier Manage- management controls in Factor 6, Accident. ment Information System (MCMIS) during It will be used only when a carrier incurs two the twelve months before the safety audit or or more recordable accidents within the 12 performed at the time of the review, the Ve- months before the safety audit. An urban hicle Factor (Part 396) will be evaluated on carrier (a carrier operating entirely within a the basis of the Out-of-Service (OOS) rates radius of 100 air miles) with a recordable rate and noncompliance with acute and critical per million miles greater than 1.7 will be regulations. The results of the review of the deemed to have inadequate basic safety man- OOS rate will affect the Vehicle Factor as agement controls for the accident factor. All follows: other carriers with a recordable accident 1. If the motor carrier has had at least rate per million miles greater than 1.5 will three roadside inspections in the twelve be deemed to have inadequate basic safety months before the safety audit, and the vehi- management controls for the accident fac- cle OOS rate is 34 percent or higher, one tor. The rates are the result of roughly dou- point will be assessed against the carrier. bling the national average accident rate in That point will be added to any other points Fiscal Years 1994, 1995, and 1996.

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(d) The FMCSA will continue to consider EFFECTIVE DATE NOTE: At 67 FR 31985, May preventability when a new entrant contests 13, 2002, Appendix A to part 385 was amended the evaluation of the accident factor by pre- as follows, effective Jan. 1, 2003: senting compelling evidence that the record- a. In section I. General, revise paragraph able rate is not a fair means of evaluating its (b); accident factor. Preventability will be deter- b. In section II. Source of the Data for the mined according to the following standard: Safety Audit Evaluation Criteria, revise the ‘‘If a driver, who exercises normal judgment introductory text of paragraph (b); and foresight, could have foreseen the possi- c. In section IV. Overall Determination of bility of the accident that in fact occurred, the Carrier’s Basic Safety Management Con- and avoided it by taking steps within his/her trols, designate the first paragraph as para- control which would not have risked causing graph (a) and revise it, designate the second another kind of mishap, the accident was paragraph as paragraph (b), and designate preventable.’’ the last paragraph as paragraph (c) and revise it. C. Factor Ratings APPENDIX A TO PART 385—EXPLANATION For Factors 1 through 5, if the combined violations of acute and or critical regula- OF SAFETY AUDIT EVALUATION CRITERIA tions for each factor is equal to three or I. GENERAL more points, the carrier is determined not to have basic safety management controls for that individual factor. * * * * * If the recordable accident rate is greater (b) To meet the safety standard, a motor than 1.7 recordable accidents per million carrier must demonstrate to the FMCSA miles for an urban carrier (1.5 for all other that it has basic safety management con- carriers), the carrier is determined to have trols in place which function adequately to inadequate basic safety management con- ensure minimum acceptable compliance with trols. the applicable safety requirements. A ‘‘safety audit evaluation criteria’’ was devel- IV. OVERALL DETERMINATION OF THE CAR- oped by the FMCSA, which uses data from RIER’S BASIC SAFETY MANAGEMENT CON- the safety audit and roadside inspections to TROLS determine that each owner and each oper- If the carrier is evaluated as having inad- ator applicant for new entrant registration, equate basic safety management controls in provisional operating authority, or provi- at least three separate factors, the carrier sional Certificate of Registration has basic will be considered to have inadequate safety safety management controls in place. The management controls in place and corrective term ‘‘safety audit’’ is the equivalent to the action will be necessary in order to avoid ‘‘safety review’’ required by Sec. 210. Using having its provisional operating authority or ‘‘safety audit’’ avoids any possible confusion provisional Certificate of Registration re- with the safety reviews previously conducted voked. by the agency that were discontinued on For example, FMCSA evaluates a carrier September 30, 1994. finding: (1) One instance of noncompliance with a * * * * * critical regulation in part 387 scoring one point for Factor 1; II. SOURCE OF THE DATA FOR THE SAFETY (2) Two instances of noncompliance with AUDIT EVALUATION CRITERIA acute regulations in part 382 scoring three points for Factor 2; * * * * * (3) Three instances of noncompliance with critical regulations in part 396 scoring three (b) The safety audit is a review of a Mex- points for Factor 4; and ico-domiciled or new entrant motor carrier’s (4) Three instances of noncompliance with operation and is used to: acute regulations in parts 171 and 397 scoring four and one-half (4.5) points for Factor 5. * * * * * In this example, the carrier scored three or more points for Factors 2, 4, and 5 and IV. OVERALL DETERMINATION OF THE CAR- FMCSA determined the carrier had inad- RIER’S BASIC SAFETY MANAGEMENT CON- equate basic safety management controls in TROLS at least three separate factors. FMCSA will (a) If the carrier is evaluated as having in- require corrective action in order to avoid adequate basic safety management controls having the carrier’s provisional operating in at least three separate factors, the carrier authority or provisional Certificate of Reg- will be considered to have inadequate safety istration suspended and possibly revoked. management controls in place and corrective [67 FR 12773, Mar. 19, 2002] action will be necessary in order to avoid

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having its new entrant registration, provi- I. SOURCE OF DATA FOR RATING METHODOLOGY sional operating authority, or provisional (a) The FMCSA’s rating process is built Certificate of Registration revoked. upon the operational tool known as the CR. This tool was developed to assist Federal and * * * * * State safety specialists in gathering pertinent motor carrier compliance and accident (c) In this example, the carrier scored information. three or more points for Factors 2, 4 and 5 (b) The CR is an in-depth examination of a and FMCSA determined the carrier had inad- motor carrier’s operations and is used (1) to equate basic safety management controls in rate unrated motor carriers, (2) to conduct a at least three separate factors. FMCSA will follow-up investigation on motor carriers require corrective action in order to avoid rated unsatisfactory or conditional as a result having the carrier’s new entrant registration of a previous review, (3) to investigate com- revoked, or having the provisional operating plaints, or (4) in response to a request by a authority or provisional Certificate of Reg- motor carrier to reevaluate its safety rating. Documents such as those contained in driver istration suspended and possibly revoked. qualification files, records of duty status, vehicle maintenance records, and other records PT. 385, APP. B are thoroughly examined for compliance with the FMCSRs and HMRs. Violations are APPENDIX B TO PART 385—EXPLANATION OF cited on the CR document. Performance- SAFETY RATING PROCESS based information, when available, is uti- (a) Section 215 of the Motor Carrier Safety lized to evaluate the carrier’s compliance Act of 1984 (49 U.S.C. 31144) directed the Sec- with the vehicle regulations. Recordable ac- retary of Transportation to establish a pro- cident information is also collected. cedure to determine the safety fitness of II. CONVERTING CR INFORMATION INTO A owners and operators of commercial motor SAFETY RATING vehicles operating in interstate or foreign commerce. The Secretary, in turn, delegated (a) The FMCSA gathers information this responsibility to the Federal Motor Car- through an in-depth examination of the rier Safety Administration (FMCSA). motor carrier’s compliance with identified (b) As directed, FMCSA promulgated a ‘‘acute’’ or ‘‘critical’’ regulations of the safety fitness regulation, entitled ‘‘Safety FMCSRs and HMRs. (b) Acute regulations are those identified Fitness Procedures,’’ which established a as such where noncompliance is so severe as procedure to determine the safety fitness of to require immediate corrective actions by a motor carriers through the assignment of motor carrier regardless of the overall safety safety ratings and established a ‘‘safety fit- posture of the motor carrier. An example of ness standard’’ which a motor carrier must an acute regulation is § 383.37(b), allowing, meet to obtain a satisfactory safety rating. requiring, permitting, or authorizing an em- (c) To meet the safety fitness standard, a ployee with more than one Commercial Driv- motor carrier must demonstrate to the er’s License (CDL) to operate a commercial FMCSA that it has adequate safety manage- motor vehicle. Noncompliance with ment controls in place which function effec- § 383.37(b) is usually discovered when the tively to ensure acceptable compliance with motor carrier’s driver qualification file re- the applicable safety requirements. A flects that the motor carrier had knowledge ‘‘safety fitness rating methodology’’ (SFRM) of a driver with more than one CDL, and still was developed by the FMCSA, which uses permitted the driver to operate a commer- data from compliance reviews (CRs) and cial motor vehicle. If the motor carrier did roadside inspections to rate motor carriers. not have such knowledge or could not rea- (d) The safety rating process developed by sonably be expected to have such knowledge, FMCSA is used to: then a violation would not be cited. 1. Evaluate safety fitness and assign one of (c) Critical regulations are those identified as such where noncompliance relates to man- three safety ratings (satisfactory, conditional agement and/or operational controls. These or unsatisfactory) to motor carriers operating are indicative of breakdowns in a carrier’s in interstate commerce. This process con- management controls. An example of a crit- forms to 49 CFR 385.5, Safety fitness stand- ical regulation is § 395.3(a)(1), requiring or ard, and § 385.7, Factors to be considered in permitting a driver to drive more than 10 determining a safety rating. hours. 2. Identify motor carriers needing improve- (d) The list of the acute and critical regu- ment in their compliance with the Federal lations which are used in determining safety Motor Carrier Safety Regulations (FMCSRs) ratings is included at the end of this docu- and applicable Hazardous Material Regula- ment. tions (HMRs). These are carriers rated (e) Noncompliance with acute regulations unsatisfactory or conditional. and patterns of non-compliance with critical

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regulations are quantitatively linked to in- during the examination of Part 396 require- adequate safety management controls and ments, the factor rating will be lowered to usually higher than average accident rates. conditional. If the examination of Part 396 re- The FMCSA has used noncompliance with quirements discovers no such problems with acute regulations and patterns of noncompli- the systems the motor carrier is required to ance with critical regulations since 1989 to maintain for compliance, the Vehicle Factor determine motor carriers’ adherence to the remains satisfactory. Safety fitness standard in § 385.5. (b) Nearly two million vehicle inspections (f) The regulatory factors, evaluated on the occur on the roadside each year. This vehicle basis of the adequacy of the carrier’s safety inspection information is retained in the management controls, are (1) Parts 387 and MCMIS and is integral to evaluating motor 390; (2) Parts 382, 383 and 391; (3) Parts 392 and carriers’ ability to successfully maintain 395; (4) Parts 393 and 396 when there are less their vehicles, thus preventing them from than three vehicle inspections in the last 12 being placed OOS during roadside inspec- months to evaluate; and (5) Parts 397, 171, 177 tions. Since many of the roadside inspections and 180. are targeted to visibly defective vehicles and (g) For each instance of noncompliance since there are a limited number of inspec- with an acute regulation or each pattern of tions for many motor carriers, the use of noncompliance with a critical regulation that data is limited. Each CR will continue during the CR, one point will be assessed. A to have the requirements of Part 396, Inspec- pattern is more than one violation. When a tion, Repair, and Maintenance, reviewed as number of documents are reviewed, the num- indicated by the above explanation. ber of violations required to meet a pattern is equal to at least 10 percent of those exam- B. Accident Factor ined. (a) In addition to the five regulatory rating (h) However, each pattern of noncompli- factors, a sixth factor is included in the proc- ance with a critical regulation relative to ess to address the accident history of the Part 395, Hours of Service of Drivers, will be motor carrier. This factor is the recordable assessed two points. accident rate which the carrier has experienced during the past 12 months. Recordable A. Vehicle Factor accident, as defined in 49 CFR 390.5, means (a) When a total of three or more inspections an accident involving a commercial motor are recorded in the Motor Carrier Management vehicle operating on a public road in inter- Information System (MCMIS) during the twelve state or intrastate commerce which results months prior to the CR or performed at the time in a fatality; bodily injury to a person who, of the review, the Vehicle Factor (Parts 393 as a result of the injury, immediately re- and 396) will be evaluated on the basis of the ceives medical treatment away from the Out-of-Service (OOS) rates and noncompli- scene of the accident; one or more motor ve- ance with acute regulations and/or a pattern hicles incurring disabling damage as a result of noncompliance with critical regulations. of the accident requiring the motor vehicle The results of the review of the OOS rate to be transported away from the scene by a will affect the Vehicle Factor rating as fol- tow truck or other motor vehicle. lows: (b) Recordable accidents per million miles 1. If a motor carrier has three or more were computed for each CR performed in Fis- roadside vehicle inspections in the twelve cal Years 1994,1995 and 1996. The national av- months prior to the carrier review, or three erage for all carriers rated was 0.747, and .839 vehicles inspected at the time of the review, for carriers operating entirely within the 100 or a combination of the two totaling three or air mile radius. more, and the vehicle OOS rate is 34 percent (c) Experience has shown that urban car- or greater, the initial factor rating will be riers, those motor carriers operating pri- conditional. The requirements of Part 396, In- marily within a radius of less than 100 air spection, Repair, and Maintenance, will be miles (normally in urban areas) have a high- examined during each review. The results of er exposure to accident situations because of the examination could lower the factor rat- their environment and normally have higher ing to unsatisfactory if noncompliance with accident rates. an acute regulation or a pattern of non- (d) The recordable accident rate will be compliance with a critical regulation is dis- used to rate Factor 6, Accident. It will be covered. If the examination of the Part 396 used only when a motor carrier incurs two or requirements reveals no such problems with more recordable accidents occurred within the systems the motor carrier is required to the 12 months prior to the CR. An urban car- maintain for compliance, the Vehicle Factor rier (a carrier operating entirely within a ra- remains conditional. dius of 100 air miles) with a recordable acci- 2. If a carrier’s vehicle OOS rate is less dent rate greater than 1.7 will receive an than 34 percent, the initial factor rating will unsatisfactory rating for the accident factor. be satisfactory. If noncompliance with an All other carriers with a recordable accident acute regulation or a pattern of noncompli- rate greater than 1.5 will receive an ance with a critical regulation is discovered unsatisfactory factor rating. The rates are a

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result of roughly doubling the national aver- B. Proposed Safety Rating age accident rate for each type of carrier (a) The proposed safety rating will appear rated in Fiscal Years 1994, 1995 and 1996. on the CR. The following appropriate infor- (e) The FMCSA will continue to consider mation will appear after the last entry on preventability when a motor carrier contests the CR, MCS–151, part B. a rating by presenting compelling evidence that the recordable rate is not a fair means ‘‘Your proposed safety rating is SATIS- of evaluating its accident factor. Prevent- FACTORY.’’ ability will be determined according to the OR following standard: ‘‘If a driver, who exercises normal judgment and foresight could ‘‘Your proposed safety rating is CONDI- have foreseen the possibility of the accident TIONAL.’’ The proposed safety rating will that in fact occurred, and avoided it by tak- become the final safety rating 45 days after ing steps within his/her control which would you receive this notice. not have risked causing another kind of mishap, the accident was preventable.’’ OR ‘‘Your proposed safety rating is UNSATIS- C. Factor Ratings FACTORY.’’ The proposed safety rating will (a) Parts of the FMCSRs and the HMRs become the final safety rating 45 days after having similar characteristics are combined you receive this notice together into five regulatory areas called (b) Proposed safety ratings of conditional or ‘‘factors.’’ unsatisfactory will list the deficiencies dis- (b) The following table shows the five regu- covered during the CR for which corrective latory factors, parts of the FMCSRs and actions must be taken. HMRs associated with each factor, and the (c) Proposed unsatisfactory safety ratings accident factor. Factor Ratings are deter- will indicate that, if the unsatisfactory rating mined as follows: becomes final, the motor carrier will be subject to the provision of § 385.13, which pro- FACTORS hibits motor carriers rated unsatisfactory Factor 1 General=Parts 387 and 390 from transporting hazardous materials re- Factor 2 Driver=Parts 382, 383 and 391 quiring placarding or more than 15 pas- Factor 3 Operational=Parts 392 and 395 sengers, including the driver. Factor 4 Vehicle=Parts 393 and 396 IV. ASSIGNMENT OF FINAL RATING/MOTOR Factor 5 Haz. Mat.=Parts 397, 171, 177 and CARRIER NOTIFICATION 180 Factor 6 Accident Factor=Recordable Rate When the official rating is determined in ‘‘Satisfactory’’—if the acute and/or Washington, D.C., the FMCSA notifies the critical=0 points motor carrier in writing of its safety rating ‘‘Conditional’’—if the acute and/or critical=1 as prescribed in § 385.11. A proposed point conditional safety rating (which is an im- ‘‘Unsatisfactory’’—if the acute and/or provement of an existing unsatisfactory rat- critical=2 or more points ing) becomes effective as soon as the official safety rating from Washington, D.C. is III. SAFETY RATING issued, and the carrier may also avail itself of relief under the § 385.15, Administrative A. Rating Table Review and § 385.17, Change to safety rating based on corrective actions. (a) The ratings for the six factors are then entered into a rating table which establishes V. MOTOR CARRIER RIGHTS TO A CHANGE IN the motor carrier’s safety rating. THE SAFETY RATING (b) The FMCSA has developed a computer- ized rating formula for assessing the infor- Under §§ 385.15 and 385.17, motor carriers mation obtained from the CR document and have the right to petition for a review of is using that formula in assigning a safety their ratings if there are factual or procedural rating. disputes, and to request another review after corrective actions have been taken. They are MOTOR CARRIER SAFETY RATING TABLE the procedural avenues a motor carrier which believes its safety rating to be in error Factor ratings Overall may exercise, and the means to request another review after corrective action has been Unsatisfactory Conditional Safety rating taken. 0 ...... 2 or fewer ...... Satisfactory 0 ...... more than 2 ...... Conditional VI. CONCLUSION 1 ...... 2 or fewer ...... Conditional (a) The FMCSA believes this ‘‘safety fit- 1 ...... more than 2 ...... Unsatisfactory ness rating methodology’’ is a reasonable ap- 2 or more ...... 0 or more ...... Unsatisfactory proach for assigning a safety rating which

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best describes the current safety fitness pos- tion of less than .02 or with verified nega- ture of a motor carrier as required by the tive test result, after engaging in conduct safety fitness regulations (§ 385.9). This meth- prohibited by part 382 subpart B (acute). odology has the capability to incorporate § 382.605(c)(2)(ii) Failing to subject a driver regulatory changes as they occur. who has been identified as needing assist- (b) Improved compliance with the regula- ance to at least six unannounced follow-up tions leads to an improved rating, which in alcohol and/or controlled substance tests turn increases safety. This increased safety in the first 12 months following the driv- is our regulatory goal. er’s return to duty (critical). § 383.23(a) Operating a commercial motor VII. LIST OF ACUTE AND CRITICAL vehicle without a valid commercial driv- REGULATIONS. er’s license (critical). § 382.115(a) Failing to implement an alcohol § 383.37(a) Knowingly allowing, requiring, and/or controlled substances testing pro- permitting, or authorizing an employee gram (domestic motor carrier) (acute). with a commercial driver’s license which is § 382.201 Using a driver known to have an al- suspended, revoked, or canceled by a state cohol concentration of 0.04 or greater or who is disqualified to operate a commer- (acute). cial motor vehicle (acute). § 382.211 Using a driver who has refused to § 383.37(b) Knowingly allowing, requiring, submit to an alcohol or controlled sub- permitting, or authorizing an employee stances test required under part 382 with more than one commercial driver’s li- (acute). cense to operate a commercial motor vehi- § 382.213(b) Using a driver known to have cle (acute). used a controlled substance (acute). § 382.215 Using a driver known to have test- § 383.51(a) Knowingly allowing, requiring, ed positive for a controlled substance permitting, or authorizing a driver to drive (acute). who is disqualified to drive a commercial § 382.301(a) Using a driver before the motor motor vehicle (acute). carrier has received a negative pre-employ- § 387.7(a) Operating a motor vehicle without ment controlled substance test result having in effect the required minimum lev- (critical). els of financial responsibility coverage § 382.303(a) Failing to conduct post accident (acute). testing on driver for alcohol and/or con- § 387.7(d) Failing to maintain at principal trolled substances (critical). place of business required proof of finan- § 382.305 Failing to implement a random cial responsibility (critical). controlled substances and/or an alcohol § 387.31(a) Operating a passenger carrying testing program (acute). vehicle without having in effect the re- § 382.305(b)(1) Failing to conduct random al- quired minimum levels of financial respon- cohol testing at an annual rate of not less sibility (acute). than the applicable annual rate of the av- § 387.31(d) Failing to maintain at principal erage number of driver positions (critical). place of business required proof of finan- § 382.305(b)(2) Failing to conduct random cial responsibility for passenger carrying controlled substances testing at an annual vehicles (critical). rate of not less than the applicable annual § 390.15(b)(2) Failing to maintain copies of rate of the average number of driver posi- all accident reports required by State or tions (critical). other governmental entities or insurers § 382.309(a) Using a driver who has not un- (critical). dergone a return-to-duty alcohol test with § 390.35 Making, or causing to make fraudu- a result indicating an alcohol concentra- lent or intentionally false statements or tion of less than 0.02 (acute). records and/or reproducing fraudulent § 382.309(b) Using a driver who has not un- records (acute). dergone a return-to-duty controlled sub- § 391.11(b)(4) Using a physically unqualified stances test with a result indicating a driver (acute). verified negative result for controlled substances (acute). § 391.15(a) Using a disqualified driver § 382.503 Allowing a driver to perform safety (acute). sensitive function, after engaging in con- § 391.45(a) Using a driver not medically ex- duct prohibited by subpart B, without amined and certified (critical). being evaluated by substance abuse profes- § 391.45(b)(1) Using a driver not medically sional, as required by § 382.605 (critical). examined and certified during the pre- § 382.505(a) Using a driver within 24 hours ceding 24 months (critical). after being found to have an alcohol con- § 391.51(a) Failing to maintain driver quali- centration of 0.02 or greater but less than fication file on each driver employed 0.04 (acute). (critical). § 382.605(c)(1) Using a driver who has not un- § 391.51(b)(2) Failing to maintain inquiries dergone a return-to-duty alcohol test with into driver’s driving record in driver’s a result indicating an alcohol concentra- qualification file (critical).

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§ 391.51(b)(7) Failing to maintain medical § 395.8(k)(1) Failing to preserve driver’s examiner’s certificate in driver’s qualifica- records of duty status supporting docu- tion file (critical). ments for 6 months (critical). § 392.2 Operating a motor vehicle not in ac- § 396.3(b) Failing to keep minimum records cordance with the laws, ordinances, and of inspection and vehicle maintenance regulations of the jurisdiction in which it (critical). is being operated (critical). § 396.9(c)(2) Requiring or permitting the op- § 392.4(b) Requiring or permitting a driver eration of a motor vehicle declared ‘‘out- to drive while under the influence of, or in of-service’’ before repairs were made possession of, a narcotic drug, amphet- (acute). amine, or any other substance capable of § 396.11(a) Failing to require driver to pre- rendering the driver incapable of safely op- pare driver vehicle inspection report erating a motor vehicle (acute). (critical). § 396.11(c) Failing to correct Out-of-Service § 392.5(b)(1) Requiring or permitting a driver defects listed by driver in a driver vehicle to drive a motor vehicle while under the inspection report before the vehicle is op- influence of, or in possession of, an intoxi- erated again (acute). cating beverage (acute). § 396.17(a) Using a commercial motor vehi- § 392.5(b)(2) Requiring or permitting a driver cle not periodically inspected (critical). who shows evidence of having consumed an § 396.17(g) Failing to promptly repair parts intoxicating beverage within 4 hours to op- and accessories not meeting minimum erate a motor vehicle (acute). periodic inspection standards (acute). § 392.6 Scheduling a run which would neces- § 397.5(a) Failing to ensure a motor vehicle sitate the vehicle being operated at speeds containing Division 1.1, 1.2, or 1.3 in excess of those prescribed (critical). (explosive) material is attended at all § 392.9(a)(1) Requiring or permitting a driver times by its driver or a qualified represent- to drive without the vehicle’s cargo being ative (acute). properly distributed and adequately se- § 397.7(a)(1) Parking a motor vehicle con- cured (critical). taining Division 1.1, 1.2, or 1.3 materials § 395.1(h)(1)(i) Requiring or permitting a within 5 feet of traveled portion of high- driver to drive more than 15 hours (Driving way or street (critical). in Alaska) (critical). § 397.7(b) Parking a motor vehicle con- § 395.1(h)(1)(ii) Requiring or permitting a taining hazardous material(s) other than driver to drive after having been on duty 20 Division 1.1, 1.2, or 1.3 materials within 5 hours (Driving in Alaska) (critical). feet of traveled portion of highway or § 395.1(h)(1)(iii) Requiring or permitting street (critical). driver to drive after having been on duty § 397.13(a) Permitting a person to smoke or more than 70 hours in 7 consecutive days carry a lighted cigarette, cigar or pipe (Driving in Alaska) (critical). within 25 feet of a motor vehicle con- § 395.1(h)(1)(iv) Requiring or permitting taining Class 1 materials, Class 5 mate- driver to drive after having been on duty rials, or flammable materials classified as more than 80 hours in 8 consecutive days Division 2.1, Class 3, Divisions 4.1 and 4.2 (Driving in Alaska) (critical). (critical). § 395.3(a)(1) Requiring or permitting driver § 397.19(a) Failing to furnish driver of motor to drive more than 10 hours (critical). vehicle transporting Division 1.1, 1.2, or 1.3 § 395.3(a)(2) Requiring or permitting driver (explosive) materials with a copy of the to drive after having been on duty 15 hours rules of part 397 and/or emergency response (critical). instructions (critical). § 397.67(d) Requiring or permitting the oper- § 395.3(b)(1) Requiring or permitting driver ation of a motor vehicle containing explo- to drive after having been on duty more sives in Class 1, Divisions 1.1, 1.2, or 1.3 than 60 hours in 7 consecutive days that is not accompanied by a written route (critical). plan (critical). § 395.3(b)(2) Requiring or permitting driver § 171.15 Carrier failing to give immediate to drive after having been on duty more telephone notice of an incident involving than 70 hours in 8 consecutive days hazardous materials (critical). (critical). § 171.16 Carrier failing to make a written re- § 395.8(a) Failing to require driver to make a port of an incident involving hazardous record of duty status (critical). materials (critical). § 395.8(e) False reports of records of duty § 177.800(c) Failing to instruct a category of status (critical). employees in hazardous materials regula- § 395.8(i) Failing to require driver to forward tions (critical). within 13 days of completion, the original § 177.817(a) Transporting a shipment of haz- of the record of duty status (critical). ardous materials not accompanied by a § 395.8(k)(1) Failing to preserve driver’s properly prepared shipping paper (critical). record of duty status for 6 months § 177.817(e) Failing to maintain proper ac- (critical). cessibility of shipping papers (critical).

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§ 177.823(a) Moving a transport vehicle con- Subpart D—General Rules and Hearings taining hazardous material that is not properly marked or placarded (critical). 386.31 Service. § 177.841(e) Transporting a package bearing 386.32 Computation of time. a poison label in the same transport vehi- 386.33 Extension of time. cle with material marked or known to be 386.34 Official notice. foodstuff, feed, or any edible material in- 386.35 Motions. tended for consumption by humans or ani- 386.36 Motions to dismiss and motions for a mals unless an exception in § 177.841(e)(i) or more definite statement. (ii) is met (acute). 386.37 Discovery methods. § 180.407(a) Transporting a shipment of haz- 386.38 Scope of discovery. ardous material in cargo tank that has not 386.39 Protective orders. been inspected or retested in accordance 386.40 Supplementation of responses. with § 180.407 (critical). 386.41 Stipulations regarding discovery. § 180.407(c) Failing to periodically test and 386.42 Written interrogatories to parties. 386.43 Production of documents and other inspect a cargo tank (critical). evidence; entry upon land for inspection § 180.415 Failing to mark a cargo tank which and other purposes; and physical and passed an inspection or test required by mental examination. § 180.407 (critical). 386.44 Request for admissions. § 180.417(a)(1) Failing to retain cargo tank 386.45 Motion to compel discovery. manufacturer’s data report certificate and 386.46 Depositions. related papers, as required (critical). 386.47 Use of deposition at hearings. § 180.417(a)(2) Failing to retain copies of 386.48 Medical records and physicians’ re- cargo tank manufacturer’s certificate and ports. related papers (or alternative report) as re- 386.49 Form of written evidence. quired (critical). 386.50 Appearances and rights of witnesses. [62 FR 60043, Nov. 6, 1997, as amended at 63 386.51 Amendment and withdrawal of plead- FR 62959, Nov. 10, 1998; 65 FR 11907, Mar. 7, ings. 2000] 386.52 Appeals from interlocutory rulings. 386.53 Subpoenas, witness fees. 386.54 Administrative law judge. PART 386—RULES OF PRACTICE 386.55 Prehearing conferences. FOR MOTOR CARRIER, BROKER, 386.56 Hearings. 386.57 Proposed findings of fact, conclusions FREIGHT FORWARDER, AND HAZ- of law. ARDOUS MATERIALS PRO- 386.58 Burden of proof. CEEDINGS Subpart E—Decision Subpart A—Scope of Rules; Definitions 386.61 Decision. 386.62 Review of administrative law judge’s Sec. decision. 386.1 Scope of rules in this part. 386.63 Decision on review. 386.2 Definitions. 386.64 Reconsideration. 386.65 Failure to comply with final order. Subpart B—Commencement of 386.66 Motions for rehearing or for modifica- Proceedings, Pleadings tion. 386.67 Appeal. 386.11 Commencement of proceedings. 386.12 Complaint. Subpart F—Injunctions and Imminent 386.13 Petitions to review and request for Hazards hearing: Driver qualification proceedings. 386.71 Injunctions. 386.14 Replies and request for hearing: Civil 386.72 Imminent hazard. forfeiture proceedings. 386.15 [Reserved] Subpart G—Penalties 386.16 Action on petitions or replies. 386.81 General. 386.17 Intervention. 386.82 Civil penalties for violations of notices and orders. Subpart C—Compliance and Consent 386.83 Sanction for failure to pay civil pen- Orders alties or abide by payment plan; operation in interstate commerce prohibited. 386.21 Compliance order. 386.84 Sanction for failure to pay civil pen- 386.22 Consent order. alties or abide by payment plan; suspen- 386.23 Content of consent order. sion or revocation of registration.

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APPENDIX A TO PART 386—PENALTY SCHED- Motor Carrier Safety Administration. ULE; VIOLATIONS OF NOTICES AND ORDERS The Assistant Administrator is the APPENDIX B TO PART 386—PENALTY SCHED- Chief Safety Officer of the agency pur- ULE; VIOLATIONS AND MAXIMUM MONE- TARY PENALTIES suant to 49 U.S.C. 113(d). Decisions of the Assistant Administrator in motor AUTHORITY: 49 U.S.C. 113, chapters 5, 51, 59, carrier, broker, freight forwarder, and 131–141, 145–149, 311, 313, and 315; sec. 206, Pub. L. 106–159, 113 Stat. 1763; and 49 CFR 1.45 and hazardous materials proceedings under 1.73. this part are administratively final. Broker means a person who, for com- SOURCE: 50 FR 40306, Oct. 2, 1985, unless otherwise noted. pensation, arranges or offers to arrange the transportation of property by an EDITORIAL NOTE: Nomenclature changes to authorized motor carrier. A motor car- part 386 appear at 65 FR 7755, Feb. 16, 2000 And 66 FR 49873, Oct. 1, 2001. rier, or person who is an employee or bona fide agent of a carrier, is not a Subpart A—Scope of Rules; broker within the meaning of this sec- Definitions tion when it arranges or offers to arrange the transportation of shipments § 386.1 Scope of rules in this part. which it is authorized to transport and which it has accepted and legally The rules in this part govern pro- bound itself to transport. ceedings before the Assistant Adminis- trator, who also acts as the Chief Safe- Civil forfeiture proceedings means pro- ty Officer of the Federal Motor Carrier ceedings to collect civil penalties for Safety Administration (FMCSA), under violations under the Commercial applicable provisions of the Federal Motor Vehicle Safety Act of 1986 (49 Motor Carrier Safety Regulations (49 U.S.C. Chapter 313); the Hazardous Ma- CFR parts 350–399), including the com- terials Transportation Act of 1975, as mercial regulations (49 CFR parts 360– amended (49 U.S.C. Chapter 51); the 379) and the Hazardous Materials Regu- Motor Carrier Safety Act of 1984 (49 lations (49 CFR parts 171–180). The pur- U.S.C. Chapter 311, Subchapter III); pose of the proceedings is to enable the section 18 of the Bus Regulatory Re- Assistant Administrator to determine form Act of 1982 (49 U.S.C. 31138); sec- whether a motor carrier, property tion 30 of the Motor Carrier Act of 1980 broker, freight forwarder, or its agents, (49 U.S.C. 31139); and the FMCSA Ter- employees, or any other person subject mination Act of 1995 (49 U.S.C. Chap- to the jurisdiction of the FMCSA, has ters 131–149). failed to comply with the provisions or Claimant means the representative of requirements of applicable statutes and the Federal Motor Carrier Safety Ad- the corresponding regulations and, if ministration authorized to make such violations are found, to issue an claims. appropriate order to compel compli- Commercial regulations means statutes ance with the statute or regulation, assess a civil penalty, or both. and regulations that apply to persons providing or arranging transportation [65 FR 78427, Dec. 15, 2000] for compensation subject to the Sec- retary’s jurisdiction under 49 U.S.C. § 386.2 Definitions. Chapter 135. The statutes are codified Abate or abatement means to dis- in Part B of Subtitle IV, Title 49, continue regulatory violations by re- U.S.C. (49 U.S.C. 13101 through 14913). fraining from or taking actions identi- The regulations include those issued by fied in a notice to correct noncompli- the Federal Motor Carrier Safety Ad- ance. ministration or its predecessors under Administration means the Federal authority provided in 49 U.S.C. 13301 or Motor Carrier Safety Administration. a predecessor statute. Administrative law judge means an ad- Compliance Order means a written di- ministrative law judge appointed pursuant to the provisions of 5 U.S.C. 3105. rection to a respondent under this part Assistant Administrator means the As- requiring the performance of certain sistant Administrator of the Federal acts which, based upon the findings in

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the proceeding, are considered nec- Subpart B—Commencement of essary to bring respondent into compli- Proceedings, Pleadings ance with the regulations found to have been violated. § 386.11 Commencement of pro- Consent Order means a compliance ceedings. order which has been agreed to by re- (a) Driver qualification proceedings. spondent in the settlement of a civil These proceedings are commenced by forfeiture proceeding. the issuance of a determination by the Driver qualification proceeding means Director, Office of Truck and Bus a proceeding commenced under 49 CFR Standards and Operations, in a case 391.47 or by issuance of a letter of dis- arising under § 391.47 of this chapter or qualification. by the issuance of a letter of disqualification. Final agency order means a notice of (1) Such determination and letters final agency action issued pursuant to must be accompanied by the following: this part by either the appropriate (i) A citation of the regulation under FMCSA Field Administrator (for de- which the action is being taken; fault judgements under § 386.14(e)), the (ii) A copy of all documentary evi- FMCSA Chief Safety Officer, or an Ad- dence relied on or considered in taking ministrative Law Judge (ALJ), typi- such action, or in the case of volumi- cally requiring payment of a civil pen- nous evidence a summary of such evi- alty by a broker, freight forwarder, dence; driver, or motor carrier. (iii) Notice to the driver and motor Freight forwarder means a person carrier involved in the case that they holding itself out to the general public may petition for review of the action; (other than as an express, pipeline, (iv) Notice that a hearing will be rail, sleeping car, motor, or water car- granted if the Assistant Administrator rier) to provide transportation of prop- determines there are material factual erty for compensation in interstate issues in dispute; commerce, and in the ordinary course (v) Notice that failure to petition for of its business: review will constitute a waiver of the right to contest the action; and (1) Performs or provides for assem- (vi) Notice that the burden or proof bling, consolidating, break-bulk, and will be on the petitioner in cases aris- distribution of shipments; ing under § 391.47 of this chapter. (2) Assumes responsibility for trans- (2) At any time before the close of portation from place of receipt to des- hearing, upon application of a party, tination; and the letter or determination may be (3) Uses for any part of the transpor- amended at the discretion of the ad- tation a carrier subject to FMCSA ju- ministrative law judge upon such risdiction. terms as he/she approves. Motor carrier means a motor carrier, (b) Civil forfeitures. These proceedings motor private carrier, or motor carrier are commenced by the issuance of a of migrant workers as defined in 49 Claim Letter or a Notice of Investiga- U.S.C. 13102 and 31501. tion. Petitioner means a party petitioning (1) Each claim letter must contain to overturn a determination in a driver the following: (i) A statement of the provisions of qualification proceeding. law alleged to have been violated; Respondent means a party against (ii) A brief statement of the facts whom relief is sought or claim is made. constituting each violation; [50 FR 40306, Oct. 2, 1985, as amended at 53 FR (iii) Notice of the amount being 2036, Jan. 26, 1988; 56 FR 10182, Mar. 11, 1991; claimed, and notice of the maximum 65 FR 7755, Feb. 16, 2000; 65 FR 78427, Dec. 15, amount authorized to be claimed under 2000] the statute;

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(iv) The form in which and the place (v) A statement that the rules in this where the respondent may pay the part require a reply to be filed within claim; and 30 days of service of the notice of inves- (v) Notice that the respondent may, tigation, and within 15 days of service, notify the (vi) A certificate that the notice of claimant that the respondent intends investigation was served in accordance to contest the notice, and that if the with § 386.31. notice is contested the respondent will (2) At any time before the close of be afforded an opportunity for a hear- hearing or upon application of a party, ing. the notice of investigation may be (2) In addition to the information re- amended at the discretion of the ad- quired by paragraph (b)(1) of this sec- ministrative law judge upon such tion, the letter may contain such other terms as he/she deems appropriate. matters as the FMCSA deems appro- (3) A Claim Letter may be combined priate, including a notice to abate. with a Notice of Investigation in a sin- (3) In proceedings for collection of gle proceeding. In such proceeding, the civil penalties for violations of the 30-day reply period in paragraph (c)(1) motor carrier safety regulations under of this section shall apply. the Motor Carrier Safety Act of 1984, (4) A notice to abate contained in a the claimant may require the respond- Claim Letter or Notice of Investigation ent to post a copy of the claim letter in shall specify what must be done by the such place or places and for such dura- respondent, a reasonable time within tion as the claimant may determine which abatement must be achieved, appropriate to aid in the enforcement and that failure to abate subjects the of the law and regulations. respondent to additional penalties as (c) Notice of investigation. This is a no- prescribed in subpart G of this part. tice to respondent that the FMCSA has [50 FR 40306, Oct. 2, 1985, as amended at 53 FR discovered violations of the Federal 2036, Jan. 26, 1988; 56 FR 10182, Mar. 11, 1991; Motor Carrier Safety Regulations, Haz- 65 FR 7756, Feb. 16, 2000] ardous Materials Regulations, or Com- mercial Regulations under cir- § 386.12 Complaint. cumstances which may require a com- (a) Filing of a complaint. Except as pliance order and/or monetary pen- otherwise provided in paragraph (c) of alties. The proposed form of the com- this section, any person, State board, pliance order will be included in the organization, or body politic may file a notice. The Assistant Administrator written complaint with the Assistant may issue a Notice of Investigation in Administrator, requesting the issuance his or her own discretion or upon a of a notice of investigation under complaint filed pursuant to § 386.12. § 386.11(c). Each complaint must con- (1) Each notice of investigation must tain: include the following: (1) The name and address of the party (i) A statement of the legal authority who files it, and a statement specifying and jurisdiction for the institution of the authority for a party (other than a the proceedings; natural person) to file the complaint; (ii) The name and address of each (2) A statement of the interest of the motor carrier, broker, or freight for- party in the proceedings; warder against whom relief is sought; (3) The name and address of each (iii) One or more clear, concise, and motor carrier against who relief is separately numbered paragraphs stat- sought; ing the facts alleged to constitute a (4) The reasons why the party be- violation of the law; lieves that a notice of investigation (iv) The relief demanded which, should be issued; where practical, should be in the form (5) A statement of any prior action of an order for the Assistant Adminis- which the party has taken to redress trator’s signature, and which shall fix the violations of law alleged in the a reasonable time for abatement of the complaint and the results of that ac- violations and may specify actions to tion; and be taken in order to abate the viola- (6) The relief which the party be- tions; lieves the Administration should seek.

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(b) Action on paragraph (a) complaint. not meet the requirements of para- Upon the filing of a complaint under graph (c), he/she shall dismiss the com- paragraph (a) of this section, the As- plaint and notify the complainant in sistant Administrator shall determine writing of the reasons for such dis- whether it states reasonable grounds missal. for investigation and action by the Ad- (e) Notwithstanding the provisions of ministration. If he/she determines that section 552 of title 5, United States the complaint states such grounds, the Code, the Assistant Administrator Assistant Administrator shall issue, or shall not disclose the identity of com- authorize the issuance of, a notice of plainants unless it is determined that investigation under § 386.11(c). If he/she such disclosure is necessary to pros- determines that the complaint does not ecute a violation. If disclosure becomes state reasonable grounds for investiga- necessary, the Assistant Administrator tion and action by the Administration, shall take every practical means with- the Assistant Administrator shall dis- in the Assistant Administrator’s au- miss it. thority to assure that the complainant (c) Complaint of substantial violation. is not subject to harassment, intimida- Any person may file a written com- tion, disciplinary action, discrimina- plaint with the Assistant Adminis- tion, or financial loss as a result of trator alleging that a substantial vio- such disclosure. lation of any regulation issued under the Motor Carrier Safety Act of 1984 is § 386.13 Petitions to review and re- occurring or has occurred within the quest for hearing: Driver qualifica- preceding 60 days. A substantial violation proceedings. tion is one which could reasonably lead (a) Within 60 days after service of the to, or has resulted in, serious personal determination under § 391.47 of this injury or death. Each complaint must chapter or the letter of disqualifica- be signed by the complainant and must tion, the driver or carrier may petition contain: to review such action. Such petitions (1) The name, address, and telephone must be submitted to the Assistant Ad- number of the person who files it; ministrator and must contain the fol- (2) The name and address of the allowing: leged violator and, with respect to each (1) Identification of what action the alleged violator, the specific provisions petitioner wants overturned; of the regulations that the complain- (2) Copies of all evidence upon which ant believes were violated; and petitioner relies in the form set out in (3) A concise but complete statement § 386.49; of the facts relied upon to substantiate (3) All legal and other arguments each allegation, including the date of which the petitioner wishes to make in each alleged violation. support of his/her position; (d) Action on complaint of substantial (4) A request for oral hearing, if one violation. Upon the filing of a com- is desired, which must set forth mate- plaint of a substantial violation under rial factual issues believed to be in dis- paragraph (c) of this section, the As- pute; sistant Administrator shall determine (5) Certification that the reply has whether it is nonfrivolous and meets been filed in accordance with § 386.31; the requirements of paragraph (c) of and this section. If the Assistant Adminis- (6) Any other pertinent material. trator determines that the complaint (b) Failure to submit a petition as is nonfrivolous and meets the require- specified in paragraph (a) of this sec- ments of paragraph (c), he/she shall in- tion shall constitute a waiver of the vestigate the complaint. The complain- right to petition for review of the de- ant shall be timely notified of findings termination or letter of disqualifica- resulting from such investigation. The tion. In these cases, the determination Assistant Administrator shall not be or disqualification issued automati- required to conduct separate investiga- cally becomes the final decision of the tions of duplicative complaints. If the Assistant Administrator 30 days after Assistant Administrator determines the time to submit the reply or peti- that the complaint is frivalous or does tion to review has expired, unless the

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Assistant Administrator orders other- (e) Failure to reply or request a hear- wise. ing. If the respondent does not reply to (c) If the petition does not request a a Claim Letter within the time prehearing, the Assistant Administrator scribed in this section, the Claim Let- may issue a final decision and order ter becomes the final agency order in based on the evidence and arguments the proceeding 25 days after it is submitted. served. When no reply to the Notice of Investigation is received, the Assistant § 386.14 Replies and request for hear- Administrator may, on motion of any ing: Civil forfeiture proceedings. party, issue a final order in the pro- (a) Time for reply. The respondent ceeding. must reply within 15 days after a Claim (f) Non-compliance with final order. Letter is served, or 30 days after a No- Failure to pay the civil penalty as di- tice of Investigation is received. rected in a final order constitutes a (b) Contents of reply. The reply must violation of that order subjecting the contain the following: respondent to an additional penalty as (1) An admission or denial of each al- prescribed in subpart G of this part. legation of the claim or notice and a concise statement of facts constituting [50 FR 40306, Oct. 2, 1985, as amended at 56 FR each defense; 10183, Mar. 11, 1991] (2) If the respondent contests the claim or notice, a request for an oral § 386.15 [Reserved] hearing or notice of intent to submit evidence without an oral hearing must § 386.16 Action on petitions or replies. be contained in the reply. A request for (a) Replies not requesting an oral hear- a hearing must list all material facts ing. If the reply submitted does not re- believed to be in dispute. Failure to request an oral hearing, the Assistant quest a hearing within 15 days after the Administrator may issue a final deci- Claim Letter is served, or 30 days in sion and order based on the evidence the case of a Notice of Investigation, and arguments submitted. shall constitute a waiver of any right (b) Request for oral hearing. If a re- to a hearing; quest for an oral hearing has been filed, (3) A statement of whether the re- the Assistant Administrator shall de- spondent wishes to negotiate the terms termine whether there are any mate- of payment or settlement of the rial factual issues in dispute. If there amount claimed, or the terms and con- are, he/she shall call the matter for a ditions of the order; and hearing. If there are none, he/she shall (4) Certification that the reply has issue an order to that effect and set a been served in accordance with § 386.31. time for submission of argument by the (c) Submission of evidence. If a notice parties. Upon the submission of argu- of intent to submit evidence without ment he/she shall decide the case. oral hearing is filed, or if no hearing is (c) Settlement of civil forfeitures. (1) requested under paragraph (b)(2) of this When negotiations produce an agree- section, and the respondent contests ment as to the amount or terms of pay- the claim or the contents of the notice, ment of a civil penalty or the terms all evidence must be served in written and conditions of an order, a settle- form no later than the 40th day following service of the Claim Letter or ment agreement shall be drawn and Notice of Investigation. Evidence must signed by the respondent and the As- be served in the form specified in sistant Administrator. Such settle- § 386.49. ment agreement must contain the fol- (d) Complainant’s request for a hearing. lowing: If the respondent files a notice of in- (i) The statutory basis of the claim; tent to submit evidence without formal (ii) A brief statement of the viola- hearing, the complainant may, within tions; 15 days after that reply is filed, submit (iii) The amount claimed and the a request for a formal hearing. The re- amount paid; quest must include a listing of all fac- (iv) The date, time, and place and tual issues believed to be in dispute. form of payment;

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(v) A statement that the agreement Subpart C—Compliance and is not binding on the agency until exe- Consent Orders cuted by the Assistant Administrator; and § 386.21 Compliance order. (vi) A statement that failure to pay (a) When a respondent contests a No- in accordance with the terms of the tice of Investigation or fails to reply to agreement which has been adopted as a such notice, the final order disposing of Final Order will result in the loss of the proceeding may contain a compli- any reductions in penalties for claims ance order. found to be valid, and the original (b) A compliance order shall be exe- amount claimed will be due imme- cuted by the Assistant Administrator diately. and shall contain the following: (2) Any settlement agreement may (1) A statement of jurisdictional contain a consent order. facts; (2) Findings of facts, or reference (3) An executed settlement agree- thereto in an accompanying decision, ment is binding on the respondent and as determined by a hearing officer or the claimant according to its terms. by the Assistant Administrator upon The respondent’s consent to a settle- respondent’s failure to reply to the no- ment agreement that has not been exe- tice, which establish the violations cuted by the Assistant Administrator charged; may not be withdrawn for a period of 30 (3) A specific direction to the re- days after it is executed by the respondent to comply with the regula- spondent. tions violated within time limits provided; [50 FR 40306, Oct. 2, 1985, as amended at 56 FR (4) Other directions to the respondent 10183, Mar. 11, 1991] to take reasonable measures, in the § 386.17 Intervention. time and manner specified, to assure future compliance; After the matter is called for hearing (5) A statement of the consequences and before the date set for the hearing for failure to meet the terms of the to begin, any person may petition for order; leave to intervene. The petition is to be (6) Provision that the Notice of In- served on the administrative law judge. vestigation and the final decision of The petition must set forth the reasons the hearing officer or Assistant Admin- why the petitioner alleges he/she is en- istrator may be used to construe the titled to intervene. The petition must terms of the order; and be served on all parties in accordance (7) A statement that the order con- with § 386.31. Any party may file a re- stitutes final agency action, subject to sponse within 10 days of service of the review as provided in 49 U.S.C. 521(b)(8) petition. The administrative law judge for violations of regulations issued shall then determine whether to permit under the authority of 49 U.S.C. 31502, the Motor Carrier Safety Act of 1984 or or deny the petition. The petition will sections 12002, 12003, 12004, 12005(b), or be allowed if the administrative law 12008(d)(2) of the Commercial Motor judge determines that the final deci- Vehicle Safety Act of 1986; or as pro- sion could directly and adversely affect vided in 5 U.S.C. 701 et seq., for viola- the petitioner or the class he/she rep- tions of regulations issued under the resents, and if the petitioner may con- authority of 49 U.S.C. 5123 (hazardous tribute materially to the disposition of materials proceedings) or 49 U.S.C. the proceedings and his/her interest is 31138–31139 (financial responsibility not adequately represented by existing proceedings) or violations of the com- parties. Once admitted, a petitioner is mercial regulations. a party for the purpose of all subse- (c) Notice of imminent hazard. A com- quent proceedings. pliance order may also contain notice

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that further violations of the same reg- proceeding unless and until the Assist- ulations may constitute an imminent ant Administrator executes it. hazard subjecting respondent to an (b) A consent order may also contain order under subpart F of this part. any of the provisions enumerated in § 386.21—Compliance Order. [56 FR 10183, Mar. 11, 1991, as amended at 65 FR 7756, Feb. 16, 2000] [50 FR 40306, Oct. 2, 1985. Redesignated and amended at 56 FR 10183, Mar. 11, 1991; 65 FR § 386.22 Consent order. 7756, Feb. 16, 2000] When a respondent has filed an elec- tion not to contest under § 386.15(a), or Subpart D—General Rules and has agreed to settlement of a civil for- Hearings feiture, and at any time before the hearing is concluded, the parties may § 386.31 Service. execute an appropriate agreement for (a) All service required by these rules disposing of the case by consent for the shall be by mail or by personal deliv- consideration of the Assistant Admin- ery. Service by mail is complete upon istrator. The agreement is filed with mailing. the Assistant Administrator who may (b) A certificate of service shall ac- (a) accept it, (b) reject it and direct that proceedings in the case continue, company all pleadings, motions, and or (c) take such other action as he/she documents when they are tendered for deems appropriate. If the Assistant Ad- filing, and shall consist of a certificate ministrator accepts the agreement, he/ of personal delivery or a certificate of she shall enter an order in accordance mailing, executed by the person mak- with its terms. ing the personal delivery or mailing the document. The first pleading of the [50 FR 40306, Oct. 2, 1985. Redesignated at 56 Government in a proceeding initiated FR 10183, Mar. 11, 1991] under this part shall have attached to it a service list of persons to be served. § 386.23 Content of consent order. This list shall be updated as necessary. (a) Every agreement filed with the (c) Copies of all pleadings, motions, Assistant Administrator under § 386.22 and documents must be served on the must contain: docket clerk and upon all parties to (1) An order for the disposition of the the proceedings by the person filing case in a form suitable for the Assist- them, in the number of copies indi- ant Administrator’s signature that has cated on the Government’s initial serv- been signed by the respondent; ice list. (2) An admission of all jurisdictional facts; § 386.32 Computation of time. (3) A waiver of further procedural (a) Generally, in computing any time steps, of the requirement that the deci- period set out in these rules or in an sion or order must contain findings of order issued hereunder, the time com- fact and conclusions of law, and of all putation begins with the day following right to seek judicial review or other- the act, event, or default. The last day wise challenge or contest the validity of the period is included unless it is a of the order; Saturday, Sunday, or legal Federal hol- (4) Provisions that the notice of in- iday in which case the time period vestigation or settlement agreement shall run to the end of the next day may be used to construe the terms of that is not a Saturday, Sunday, or the order; legal Federal holiday. All Saturdays, (5) Provisions that the order has the Sundays, and legal Federal holidays ex- same force and effect, becomes final, cept those falling on the last day of the and may be modified, altered, or set period shall be computed. aside in the same manner as other or- (b) Date of entry of orders. In com- ders issued under 49 U.S.C. Chapters 5, puting any period of time involving the 131–149, 311 and 315; date of the entry of an order, the date (6) Provisions that the agreement of entry shall be the date the order is will not be part of the record in the served.

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(c) Computation of time for delivery by (c) Answers. Except when a motion is mail. (1) Documents are not deemed filed during a hearing, any party may filed until received by the docket file an answer in support or opposition clerk. However, when documents are to a motion, accompanied by affidavits filed by mail, 5 days shall be added to or other evidence relied upon. Such an- the prescribed period. swers shall be served within 7 days (2) Service of all documents is after the motion is served or within deemed effected at the time of mailing. such other time as the Assistant Ad- (3) Whenever a party has the right or ministrator or administrative law is required to take some action within judge may set. a prescribed period after the service of (d) Argument. Oral argument or briefs a pleading, notice, or other document on a motion may be ordered by the As- upon said party, and the pleading, no- sistant Administrator or the adminis- tice, or document is served upon said trative law judge. party by mail, 5 days shall be added to (e) Disposition. Motions may be ruled the prescribed period. on immediately or at any other time § 386.33 Extension of time. specified by the administrative law judge or the Assistant Administrator. All requests for extensions of time (f) Suspension of time. The pendency of shall be filed with the Assistant Ad- ministrator or, if the matter has been a motion shall not affect any time lim- called for a hearing, with the adminis- its set in these rules unless expressly trative law judge. All requests must ordered by the Assistant Administrator state the reasons for the request. Only or administrative law judge. those requests showing good cause will § 386.36 Motions to dismiss and mo- be granted. No motion for continuance tions for a more definite statement. or postponement of a hearing date filed within 7 days of the date set for a hear- (a) Motions to dismiss must be made ing will be granted unless it is accom- within the time set for reply or peti- panied by an affidavit showing that ex- tion to review, except motions to dis- traordinary circumstances warrant a miss for lack of jurisdiction, which continuance. may be made at any time. (b) Motions for a more definite state- § 386.34 Official notice. ment may be made in lieu of a reply. The Assistant Administrator or ad- The motion must point out the defects ministrative law judge may take offi- complained of and the details desired. cial notice of any fact not appearing in If the motion is granted, the pleading evidence if he/she notifies all parties complained of must be remedied within he/she intends to do so. Any party ob- 15 days of the granting of the motion jecting to the official notice shall file or it will be stricken. If the motion is an objection within 10 days after serv- denied, the party who requested the ice of the notice. more definite statement must file his/ her pleading within 10 days after the § 386.35 Motions. denial. (a) General. An application for an order or ruling not otherwise covered § 386.37 Discovery methods. by these rules shall be by motion. All Parties may obtain discovery by one motions filed prior to the calling of the or more of the following methods: matter for a hearing shall be to the As- Depositions upon oral examination or sistant Administrator. All motions written questions; written interrog- filed after the matter is called for hear- atories; production of documents or ing shall be to the administrative law other evidence for inspection and other judge. purposes; physical and mental exami- (b) Form. Unless made during hear- nations; and requests for admission. ing, motions shall be made in writing, Unless the Assistant Administrator or, shall state with particularity the in cases that have been called for a grounds for relief sought, and shall be hearing, the administrative law judge accompanied by affidavits or other evi- orders otherwise, the frequency or se- dence relied upon. quence of these methods is not limited.

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§ 386.38 Scope of discovery. (b) The discovery may be had only on (a) Unless otherwise limited by order specified terms and conditions, includ- of the Assistant Administrator or, in ing a designation of the time or place; cases that have been called for a hear- (c) The discovery may be had only by ing, the administrative law judge, in a method of discovery other than that accordance with these rules, the par- selected by the party seeking dis- ties may obtain discovery regarding covery; any matter, not privileged, which is (d) Certain matters not relevant may relevant to the subject matter involved not be inquired into, or that the scope in the proceeding, including the exist- of discovery be limited to certain mat- ence, description, nature, custody, con- ters; dition, and location of any books, docu- (e) Discovery be conducted with no ments, or other tangible things and the one present except persons designated identity and location of persons having by the Assistant Administrator or the knowledge of any discoverable matter. administrative law judge; or (b) It is not ground for objection that (f) A trade secret or other confiden- information sought will not be admis- tial research, development, or commer- sible at the hearing if the information cial information may not be disclosed sought appears reasonably calculated or be disclosed only in a designated to lead to the discovery of admissible way. evidence. (c) A party may obtain discovery of § 386.40 Supplementation of responses. documents and tangible things otherwise discoverable under paragraph (a) A party who has responded to a re- of this section and prepared in antici- quest for discovery with a response pation of or for the hearing by or for that was complete when made is under another party’s representative no duty to supplement his/her response (including his or her attorney, consult- to include information thereafter ac- ant, surety, indemnitor, insurer, or quired, except as follows: agent) only upon a showing that the (a) A party is under a duty to supple- party seeking discovery has substan- ment timely his/her response with re- tial need of the materials in the prepa- spect to any question directly ad- ration of his or her case and that he or dressed to: she is unable without undue hardship (1) The identity and location of per- to obtain the substantial equivalent of sons having knowledge of discoverable the materials by other means. In order- matters; and ing discovery of such materials when (2) The identity of each person ex- the required showing has been made, pected to be called as an expert witness the Assistant Administrator or the ad- at the hearing, the subject matter on ministrative law judge shall protect which he or she is expected to testify against disclosure of the mental im- and the substance of his or her testi- pressions, conclusions, opinions, or mony. legal theories of an attorney or other representative of a party concerning (b) A party is under a duty to amend the proceeding. timely a prior response if he or she later obtains information upon the § 386.39 Protective orders. basis of which: Upon motion by a party or other per- (1) he or she knows the response was son from whom discovery is sought, incorrect when made; or and for good cause shown, the Assist- (2) he or she knows that the response ant Administrator or the administra- though correct when made is no longer tive law judge, if one has been ap- true and the circumstances are such pointed, may make any order which that a failure to amend the response is justice requires to protect a party or in substance a knowing concealment. person from annoyance, embarrass- (c) A duty to supplement responses ment, oppression, or undue burden or may be imposed by order of the Assist- expense, including one or more of the ant Administrator or the administra- following: tive law judge or agreement of the par- (a) The discovery not be had; ties.

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§ 386.41 Stipulations regarding dis- prehearing conference or other later covery. time. Unless otherwise ordered, a written stipulation entered into by all the par- § 386.43 Production of documents and other evidence; entry upon land for ties and filed with the Assistant Ad- inspection and other purposes; and ministrator or the administrative law physical and mental examination. judge, if one has been appointed, may: (a) Provide that depositions be taken (a) Any party may serve on any other before any person, at any time or party a request to: place, upon sufficient notice, and in (1) Produce and permit the party any manner, and when so taken may be making the request, or a person acting used like other depositions, and on his or her behalf, to inspect and (b) Modify the procedures provided by copy any designated documents, or to these rules for other methods of dis- inspect and copy, test, or sample any covery. tangible things which are in the possession, custody, or control of the party § 386.42 Written interrogatories to par- upon whom the request is served; or ties. (2) Permit entry upon designated (a) Any party may serve upon any land or other property in the posses- other party written interrogatories to sion or control of the party upon whom be answered in writing by the party the request is served for the purpose of served, or if the party served is a public inspection and measuring, or private corporation or a partnership photographing, testing, or for other or association or governmental agency, purposes as stated in paragraph (a)(1) by any authorized officer or agent, who of this section. shall furnish such information as is (3) Submit to a physical or mental available to the party. A copy of the examination by a physician. interrogatories, answers, and all re- (b) The request may be served on any lated pleadings shall be served on the party without leave of the Assistant Assistant Administrator or, in cases Administrator or administrative law that have been called to a hearing, on judge. the administrative law judge, and upon (c) The request shall: all parties to the proceeding. (1) Set forth the items to be in- (b) Each interrogatory shall be an- spected either by individual item or swered separately and fully in writing category; under oath or affirmation, unless it is objected to, in which event the reasons (2) Describe each item or category for objection shall be stated in lieu of with reasonable particularity; an answer. The answers and objections (3) Specify a reasonable time, place, shall be signed by the person making and manner of making the inspection them. The party upon whom the inter- and performing the related acts; rogatories were served shall serve a (4) Specify the time, place, manner, copy of the answer and objections upon conditions, and scope of the physical or all parties to the proceeding within 30 mental examination and the person or days after service of the interrog- persons by whom it is to be made. A re- atories, or within such shortened or port of examining physician shall be longer period as the Assistant Adminis- made in accordance with Rule 35(b) of trator or the administrative law judge the Federal Rules of Civil Procedure, may allow. title 28, U.S. Code, as amended. (c) An interrogatory otherwise proper (d) The party upon whom the request is not necessarily objectionable merely is served shall serve on the party sub- because an answer to the interrogatory mitting the request a written response involves an opinion or contention that within 30 days after service of the re- relates to fact or the application of law quest. to fact, but the Assistant Adminis- (e) The response shall state, with re- trator or administrative law judge may spect to each item or category: order that such an interrogatory need (1) That inspection and related ac- not be answered until after designated tivities will be permitted as requested; discovery has been completed or until a or

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(2) That objection is made in whole under this rule is for the purpose of the or in part, in which case the reasons pending action only and may not be for objection shall be stated. used in any other proceeding. (f) A copy of each request for produc- (c) If a party refuses to admit a mat- tion and each written response shall be ter or the authenticity of a document served on all parties and filed with the which is later proved, the party re- Assistant Administrator or the admin- questing the admission may move for istrative law judge, if one has been ap- an award of expenses incurred in mak- pointed. ing the proof. Such a motion shall be granted unless there was a good reason § 386.44 Request for admissions. for failure to admit. (a) Request for admission. (1) Any party may serve upon any other party § 386.45 Motion to compel discovery. a request for admission of any relevant (a) If a deponent fails to answer a matter or the authenticity of any rel- question propounded or a party upon evant document. Copies of any docu- whom a request is made pursuant to ment about which an admission is re- §§ 386.42 through 386.44, or a party upon quested must accompany the request. whom interrogatories are served fails (2) Each matter for which an admis- to respond adequately or objects to the sion is requested shall be separately set request, or any part thereof, or fails to forth and numbered. The matter is ad- permit inspection as requested, the dis- mitted unless within 15 days after serv- covering party may move the Assistant ice of the request, the party to whom Administrator or the administrative the request is directed serves upon the law judge, if one has been appointed, party requesting the admission a writ- for an order compelling a response or ten answer signed by the party or his/ inspection in accordance with the re- her attorney. quest. (3) Each answer must specify whether (b) The motion shall set forth: the party admits or denies the matter. (1) The nature of the questions or re- If the matter cannot be admitted or de- quest; nied, the party shall set out in detail (2) The response or objections of the the reasons. party upon whom the request was (4) A party may not issue a denial or served; and fail to answer on the ground that he/ (3) Arguments in support of the mo- she lacks knowledge unless he/she has tion. made reasonable inquiry to ascertain (c) For purposes of this section, an information sufficient to allow him/her evasive answer or incomplete answer or to admit or deny. response shall be treated as a failure to (5) A party may file an objection to a answer or respond. request for admission within 10 days (d) In ruling on a motion made pursu- after service. Such motion shall be ant to this section, the Assistant Ad- filed with the administrative law judge ministrator or the administrative law if one has been appointed, otherwise it judge, if one has been appointed, may shall be filed with the Assistant Ad- make and enter a protective order such ministrator. An objection must explain as he or she is authorized to enter on a in detail the reasons the party should motion made pursuant to § 386.39(a). not answer. A reply to the objection may be served by the party requesting § 386.46 Depositions. the admission within 10 days after (a) When, how, and by whom taken. service of the objection. It is not suffi- The deposition of any witness may be cient ground for objection to claim taken at any stage of the proceeding at that the matter about which an admis- reasonable times. Depositions may be sion is requested presents an issue of taken by oral examination or upon fact for hearing. written interrogatories before any per- (b) Effect of admission. Any matter ad- son having power to administer oaths. mitted is conclusively established un- (b) Application. Any party desiring to less the Assistant Administrator or ad- take the deposition of a witness shall ministrative law judge permits with- indicate to the witness and all other drawal or amendment. Any admission parties the time when, the place where,

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and the name and post office address of § 386.47 Use of deposition at hearings. the person before whom the deposition (a) Generally. At the hearing, any is to be taken; the name and address of part or all of a deposition, so far as ad- each witness; and the subject matter missible under the rules of evidence, concerning which each such witness is may be used against any party who was expected to testify. present or represented at the taking of (c) Notice. Notice shall be given for the deposition or who had due notice the taking of a deposition, which shall thereof in accordance with any one of be not less than 5 days written notice the following provisions: when the deposition is to be taken (1) Any deposition may be used by within the continental United States any party for the purpose of contra- and not less than 20 days written no- dicting or impeaching the testimony of tice when the deposition is to be taken the deponent as a witness. elsewhere. (2) The deposition of expert wit- (d) Taking and receiving in evidence. nesses, particularly the deposition of Each witness testifying upon deposi- physicians, may be used by any party tion shall be sworn, and any other for any purpose, unless the Assistant Administrator or administrative law party shall have the right to cross-ex- judge rules that such use would be un- amine. The questions propounded and fair or a violation of due process. the answers thereto, together with all (3) The deposition of a party or of objections made, shall be reduced to anyone who at the time of taking the writing; read by or to, and subscribed deposition was an officer, director, or by the witness; and certified by the duly authorized agent of a public or person administering the oath. There- private organization, partnership, or after, such officer shall seal the deposi- association which is a party, may be tion in an envelope and mail the same used by any other party for any pur- by certified mail to the Assistant Ad- pose. ministrator or the administrative law (4) The deposition of a witness, judge, if one has been appointed. Sub- whether or not a party, may be used by ject to such objections to the questions any party for any purpose if the pre- and answers as were noted at the time siding officer finds: of taking the deposition and which (i) That the witness is dead; or would have been valid if the witness (ii) That the witness is out of the were personally present and testifying, United States or more than 100 miles such deposition may be read and of- from the place of hearing unless it ap- fered in evidence by the party taking it pears that the absence of the witness as against any party who was present was procured by the party offering the or represented at the taking of the dep- deposition; or osition or who had due notice thereof. (iii) That the witness is unable to at- (e) Motion to terminate or limit exam- tend to testify because of age, sickness, ination. During the taking of a deposi- infirmity, or imprisonment; or (iv) That the party offering the depo- tion, a party or deponent may request sition has been unable to procure the suspension of the deposition on attendance of the witness by subpoena; grounds of bad faith in the conduct of or the examination, oppression of a depo- (v) Upon application and notice, that nent or party or improper questions such exceptional circumstances exist propounded. The deposition will then as to make it desirable, in the interest be adjourned. However, the objecting of justice and with due regard to the party or deponent must immediately importance of presenting the testi- move the Assistant Administrator or mony of witnesses orally in open hear- administrative law judge for a ruling ing, to allow the deposition to be used. on his or her objections to the deposi- (5) If only part of a deposition is of- tion conduct or proceedings. The As- fered in evidence by a party, any other sistant Administrator or administra- party may require him or her to intro- tive law judge may then limit the duce all of it which is relevant to the scope or manner of the taking of the part introduced, and any party may in- deposition. troduce any other parts.

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(b) Objections to admissibility. Except ports, test results and medical records as provided in this paragraph, objec- not served under this rule shall be ex- tion may be made at the hearing to re- cluded from evidence at any hearing. ceiving in evidence any deposition or part thereof for any reason which [50 FR 40306, Oct. 2, 1985, as amended at 53 FR 2036, Jan. 26, 1988; 65 FR 7756, Feb. 16, 2000] would require the exclusion of the evidence if the witness were then present § 386.49 Form of written evidence. and testifying. (1) Objections to the competency of a All written evidence shall be sub- witness or to the competency, rel- mitted in the following forms: evancy or materiality of testimony are (a) An affidavit of a person having not waived by failure to make them be- personal knowledge of the facts al- fore or during the taking of the deposi- leged, or tion, unless the ground of the objection (b) Documentary evidence in the is one which might have been obviated form of exhibits attached to an affi- or removed if presented at that time. davit identifying the exhibit and giving (2) Errors and irregularities occur- its source. ring at the oral examination in the manner of taking the deposition, in the § 386.50 Appearances and rights of wit- form of the questions or answers, in nesses. the oath or affirmation, or in the con- (a) Any party to a proceeding may duct of parties and errors of any kind appear and be heard in person or by at- which might be obviated, removed, or torney. A regular employee of a party cured if promptly presented, are waived who appears on behalf of the party may unless reasonable objection thereto is be required by the administrative law made at the taking of the deposition. judge to show his or her authority to so (3) Objections to the form or written appear. interrogatories are waived unless (b) Any person submits data or evi- served in writing upon the party pro- dence in a proceeding governed by this pounding them. part may, upon timely request and (c) Effect of taking using depositions. A payment of costs, procure a copy of party shall not be deemed to make a any document submitted by him/her or person his or her own witness for any of any transcript. Original documents, purpose by taking his or her deposi- data or evidence may be retained upon tion. The introduction in evidence of permission of the administrative law the deposition or any part thereof for judge or Assistant Administrator upon any purpose other than that of contra- substitution of copy therefor. dicting or impeaching the deponent makes the deponent the witness of the § 386.51 Amendment and withdrawal party introducing the deposition, but of pleadings. this shall not apply to the use by any other party of a deposition as described (a) Except in instances covered by in paragraph (a)(2) of this section. At other rules, anytime more than 15 days the hearing, any party may rebut any prior to the hearing, a party may relevant evidence contained in a depo- amend his/her pleadings by serving the sition whether introduced by him or amended pleading on the Assistant Ad- her or by any other party. ministrator or the administrative law judge, if one has been appointed, and § 386.48 Medical records and physi- on all parties. Within 15 days prior to cians’ reports. the hearing, an amendment shall be al- In cases involving the physical quali- lowed only at the discretion of the Ad- fications of drivers, copies of all physi- ministrative law judge. When an cians’ reports, test results, and other amended pleading is filed, other parties medical records that a party intends to may file a response and objection with- rely upon shall be served on all other in 10 days. parties at least 30 days prior to the (b) A party may withdraw his/her date set for a hearing. Except as pleading only on approval of the ad- waived by the Director, Office of Truck ministrative law judge or Assistant Ad- and Bus Standards and Operations, re- ministrator.

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§ 386.52 Appeals from interlocutory of the proceedings to ensure a fair and rulings. impartial hearing, and to avoid delay Rulings of the administrative law in the disposition of the proceedings. judge may not be appealed to the As- The powers of the administrative law sistant Administrator prior to his/her judge include the following: consideration of the entire proceeding (1) To administer oaths and affirma- except under exceptional cir- tions; cumstances and with the consent of the (2) To issue orders permitting inspec- administrative law judge. In deciding tion and examination of lands, build- whether to allow appeals, the adminis- ings, equipment, and any other phys- trative law judge shall determine ical thing and the copying of any docu- whether the appeal is necessary to pre- ment; vent undue prejudice to a party or to (3) To issue subpoenas for the attend- prevent substantial detriment to the ance of witnesses and the production of public interest. evidence as authorized by law; (4) To rule on offers of proof and re- § 386.53 Subpoenas, witness fees. ceive evidence; (a) Applications for the issuance of (5) To regulate the course of the subpoenas must be submitted to the hearing and the conduct of participants Assistant Administrator, or in cases in it; that have been called for a hearing, to (6) To consider and rule upon all pro- the administrative law judge. The ap- cedural and other motions, including plication must show the general rel- motions to dismiss, except motions evance and reasonable scope of the evi- which, under this part, are made di- dence sought. Any person served with a rectly to the Assistant Administrator; subpoena may, within 7 days after serv- (7) To hold conferences for settle- ice, file a motion to quash or modify. ment, simplification of issues, or any The motion must be filed with the offi- other proper purpose; cial who approved the subpoena. The (8) To make and file decisions; and filing of a motion shall stay the effect (9) To take any other action author- of the subpoena until a decision is ized by these rules and permitted by reached. law. (b) Witnesses shall be entitled to the same fees and mileage as are paid wit- [50 FR 40306, Oct. 2, 1985, as amended at 53 FR nesses in the courts of the United 2036, Jan. 26, 1988; 66 FR 49872, Oct. 1, 2001] States. The fees shall be paid by the § 386.55 Prehearing conferences. party at whose instance the witness is subpoenaed or appears. (a) Convening. At any time before the (c) Paragraph (a) of this section shall hearing begins, the administrative law not apply to the Administrator or em- judge, on his/her own motion or on mo- ployees of the FMCSA or to the production by a party, may direct the parties tion of documents in their custody. Ap- or their counsel to participate with plications for the attendance of such him/her in a prehearing conference to persons or the production of such docu- consider the following: ments at a hearing shall be made to (1) Simplification and clarification of the Assistant Administrator or admin- the issues; istrative law judge, if one is appointed, (2) Necessity or desirability of and shall set forth the need for such amending pleadings; evidence and its relevancy. (3) Stipulations as to the facts and the contents and authenticity of docu- § 386.54 Administrative law judge. ments; (a) Appointment. After the matter is (4) Issuance of and responses to sub- called for hearing, the Assistant Ad- poenas; ministrator shall appoint an adminis- (5) Taking of depositions and the use trative law judge. of depositions in the proceedings; (b) Power and duties. The administra- (6) Orders for discovery, inspection tive law judge has power to take any and examination of premises, produc- action and to make all needful rules tion of documents and other physical and regulations to govern the conduct objects, and responses to such orders;

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(7) Disclosure of the names and ad- reasons therefor. If the administrative dresses of witnesses and the exchange law judge orders written proposals and of documents intended to be offered in arguments, each proposed finding must evidence; and include a citation to the specific por- (8) Any other matter that will tend tion of the record relied on to support to simplify the issues or expedite the it. Written submissions, if any, must be proceedings. served within the time period set by (b) Order. The administrative law the administrative law judge. judge shall issue an order which recites the matters discussed, the agreements § 386.58 Burden of proof. reached, and the rulings made at the (a) Enforcement cases. The burden of prehearing conference. The order shall proof shall be on the Administration in be served on the parties and filed in the enforcement cases. record of the proceedings. (b) Conflict of medical opinion. The § 386.56 Hearings. burden of proof in cases arising under § 391.47 of this chapter shall be on the (a) As soon as practicable after his/ her appointment, the administrative party petitioning for review under law judge shall issue an order setting § 386.13(a). the date, time, and place for the hearing. The order shall be served on the Subpart E—Decision parties and become a part of the record of the proceedings. The order may be § 386.61 Decision. amended for good cause shown. After receiving the proposed findings (b) Conduct of hearing. The adminis- of fact, conclusions of law, and argu- trative law judge presides over the ments of the parties, the administra- hearing. Hearings are open to the pub- tive law judge shall issue a decision. If lic unless the administrative law judge the proposed findings of fact, conclu- orders otherwise. sions of law, and arguments were oral, (c) Evidence. Except as otherwise pro- he/she may issue an oral decision. The vided in these rules and the Adminis- decision of the administrative law trative Procedure Act, 5 U.S.C. 551 et judge becomes the final decision of the seq., the Federal Rules of Evidence Assistant Administrator 45 days after shall be followed. it is served unless a petition or motion (d) Information obtained by investiga- for review is filed under § 386.62. The de- tion. Any document, physical exhibit, cision shall be served on all parties and or other material obtained by the Ad- on the Assistant Administrator. ministration in an investigation under its statutory authority may be dis- § 386.62 Review of administrative law closed by the Administration during judge’s decision. the proceeding and may be offered in (a) All petitions to review must be evidence by counsel for the Adminis- accompanied by exceptions and briefs. tration. (e) Record. The hearing shall be Each petition must set out in detail ob- stenographically transcribed and rejections to the initial decision and ported. The transcript, exhibits, and shall state whether such objections are other documents filed in the pro- related to alleged errors of law or fact. ceedings shall constitute the official It shall also state the relief requested. record of the proceedings. A copy of the Failure to object to any error in the transcript and exhibits will be made initial decision shall waive the right to available to any person upon payment allege such error in subsequent proof prescribed costs. ceedings. (b) Reply briefs may be filed within § 386.57 Proposed findings of fact, con- 30 days after service of the appeal brief. clusions of law. (c) No other briefs shall be permitted The administrative law judge shall except upon request of the Assistant afford the parties reasonable oppor- Administrator. tunity to submit proposed findings of (d) Copies of all briefs must be served fact, conclusions of law, and supportng on all parties.

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(e) No oral argument will be per- (2) A statement of the changed cir- mitted except on order of the Assistant cumstances justifying the request; and Administrator. (3) Copies of all evidence intended to be relied on by the party submitting § 386.63 Decision on review. the motion. Upon review of a decision, the Assist- (b) Upon receipt of the motion, the ant Administrator may adopt, modify, Assistant Administrator may make a or set aside the administrative law decision denying the motion or modi- judge’s findings of fact and conclusions fying the order in whole or in part. He/ of law. He/she may also remand pro- she may also, prior to making his/her ceedings to the administrative law decision, order such other proceedings judge with instructions for such fur- under these rules as he/she deems nec- ther proceedings as he/she deems ap- essary and may request additional in- propriate. If not remanded, the Assist- formation from the party making the ant Administrator shall issue a final motion. order disposing of the proceedings, and serve it on all parties. § 386.67 Appeal. § 386.64 Reconsideration. Any aggrieved person, who, after a Within 20 days after the Assistant hearing, is adversely affected by a final Administrator’s final order is issued, order issued under 49 U.S.C. 521 may, any party may petition the Assistant within 30 days, petition for review of Administrator for reconsideration of the order in the United States Court of his/her findings of fact, conclusions of Appeals in the circuit wherein the vio- law, or final order. The filing of a peti- lation is alleged to have occurred or tion for reconsideration does not stay where the violator has his/her principal the effectiveness of the final order un- place of business or residence, or in the less the Assistant Administrator so or- United States Court of Appeals for the ders. District of Columbia Circuit. Review of the order shall be based on a deter- § 386.65 Failure to comply with final mination of whether the Assistant Ad- order. ministrator’s findings and conclusions If, within 30 days of receipt of a final were supported by substantial evi- agency order issued under this part, dence, or were otherwise not in accord- the respondent does not submit in writ- ance with law. No objection that has ing his/her acceptance of the terms of not been urged before the Assistant Ad- an order directing compliance, or, ministrator shall be considered by the where appropriate, pay a civil penalty, court, unless reasonable grounds ex- or file an appeal under § 386.67, the case isted for failure or neglect to do so. may be referred to the Attorney Gen- The commencement of proceedings eral with a request that an action be under this section shall not, unless or- brought in the appropriate United dered by the court, operate as a stay of States District Court to enforce the the order of the Assistant Adminis- terms of a compliance order or collect trator. the civil penalty.

§ 386.66 Motions for rehearing or for Subpart F—Injunctions and modification. Imminent Hazards (a) No motion for rehearing or for § 386.71 Injunctions. modification of an order shall be entertained for 1 year following the date the Whenever it is determined that a per- Assistant Administrator’s order goes son has engaged, or is about to engage, into effect. After 1 year, any party may in any act or practice constituting a file a motion with the Assistant Ad- violation of section 13502 of title 49, ministrator requesting a rehearing or United States Code, or the Motor Car- modification of the order. The motion rier Safety Act of 1984, or the Haz- must contain the following: ardous Materials Transportation Act, (1) A copy of the order about which or any regulation or order issued under the change is requested; that section or those Acts for which

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the Federal Motor Carrier Safety Ad- employer to cease all or part of the em- ministrator exercises enforcement re- ployer’s commercial motor vehicle op- sponsibility, the Chief Counsel or the erations, as provided by 49 U.S.C. Assistant Chief Counsel for Motor Car- 521(b)(5). In making any such order, no rier and Highway Safety Law may re- restrictions shall be imposed on any quest the United States Attorney Gen- employee or employer beyond that re- eral to bring an action in the appro- quired to abate the hazard. In this priate United States District Court for paragraph, ‘‘imminent hazard’’ means such relief as is necessary or appro- any condition of vehicle, employee, or priate, including mandatory or prohibi- commercial motor vehicle operations tive injunctive relief, interim equitable which substantially increases the like- relief, and punitive damages, as pro- lihood of serious injury or death if not vided by section 213(c) of the Motor discontinued immediately. Carrier Safety Act of 1984 and section (2) Upon the issuance of an order 111(a) of the Hazardous Materials under paragraph (b)(1) of this section, Transportation Act (49 U.S.C. 507(c), the motor carrier employer or driver 5122). employee shall comply immediately with such order. Opportunity for re- [50 FR 40306, Oct. 2, 1985, as amended at 65 FR 7756, Feb. 16, 2000] view shall be provided in accordance with 5 U.S.C. 554, except that such re- § 386.72 Imminent hazard. view shall occur not later than 10 days (a) Whenever it is determined that an after issuance of such order, as pro- imminent hazard exists as a result of vided by section 213(b) of the Motor the transportation by motor vehicle of Carrier Safety Act of 1984 (49 U.S.C. a particular hazardous material, the 521(b)(5)). An order to an employer to Chief Counsel or Deputy Chief Counsel cease all or part of its operations shall of the FMCSA may bring, or request not prevent vehicles in transit at the the United States Attorney General to time the order is served from pro- bring, an action in the appropriate ceeding to their immediate destina- United States District Court for an tions, unless any such vehicle or its order suspending or restricting the driver is specifically ordered out of transportation by motor vehicle of the service forthwith. However, vehicles hazardous material or for such other and drivers proceeding to their imme- order as is necessary to eliminate or diate destination shall be subject to ameliorate the imminent hazard, as compliance upon arrival. (3) For purposes of this section the provided by 49 U.S.C. 5122. In this para- term ‘‘immediate destination’’ is the graph, ‘‘imminent hazard’’ means the next scheduled stop of the vehicle al- existence of a condition that presents a ready in motion where the cargo on substantial likelihood that death, seri- board can be safely secured. ous illness, severe personal injury, or a (4) Failure to comply immediately substantial endangerment to health, with an order issued under this section property, or the environment may shall subject the motor carrier em- occur before a notice of investigation ployer or driver to penalties prescribed proceeding, or other administrative in subpart G of this part. hearing or formal proceeding, to abate the risk of harm can be completed. [50 FR 40306, Oct. 2, 1985, as amended at 53 FR (b)(1) Whenever it is determined that 2036, Jan. 26, 1988; 53 FR 50970, Dec. 19, 1988; a violation of 49 U.S.C. 31502 or the 56 FR 10184, Mar. 11, 1991; 65 FR 7756, Feb. 16, Motor Carrier Safety Act of 1984, as 2000; 65 FR 58664, Oct. 2, 2000] amended, or the Commercial Motor Ve- hicle Safety Act of 1986, as amended, or Subpart G—Penalties a regulation issued under such section or Acts, or a combination of such viola- SOURCE: 56 FR 10184, Mar. 11, 1991, unless tions, poses an imminent hazard to otherwise noted. safety, the Director of the Office of En- forcement and Compliance or a State § 386.81 General. Director, or his or her delegate, shall (a) The amounts of civil penalties order a vehicle or employee operating that can be assessed for regulatory vio- such vehicle out of service, or order an lations subject to the proceedings in

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this subchapter are established in the (c) Claims for penalties provided in statutes granting enforcement powers. this section and in the appendix A to The determination of the actual civil this part shall be made through the penalties assessed in each proceeding is civil forfeiture proceedings contained based on those defined limits or mini- in this part. The issues to be decided in mums and consideration of information such proceedings will be limited to available at the time the claim is made whether violations of notices and or- concerning the nature, gravity of the ders occurred as claimed and the appro- violation and, with respect to the vio- priate penalty for such violations. lator, the degree of culpability, history Nothing contained herein shall be con- of prior offenses, ability to pay, effect strued to authorize the reopening of a on ability to continue to do business, matter already finally adjudicated and such other matters as justice and under this part. public safety may require. In addition to these factors, a civil penalty as- § 386.83 Sanction for failure to pay sessed under 49 U.S.C. 14901(a) and (d) civil penalties or abide by payment concerning household goods is also plan; operation in interstate com- based on the degree of harm caused to merce prohibited. a shipper and whether the shipper has been adequately compensated before (a)(1) General rule. A CMV owner or institution of the civil penalty pro- operator that fails to pay a civil pen- ceeding. In adjudicating the claims and alty in full within 90 days after the orders under the administrative proce- date specified for payment by the dures herein, additional information FMCSA’s final agency order is prohib- may be developed regarding these fac- ited from operating in interstate com- tors that may affect the final amount merce starting on the next (i.e., the of the claim. 91st) day. The prohibition continues (b) When assessing penalties for vio- until the FMCSA has received full pay- lations of notices and orders or settling ment of the penalty. claims based on these assessments, (2) Civil penalties paid in installments. consideration will be given to good The FMCSA Service Center may allow faith efforts to achieve compliance a CMV owner or operator to pay a civil with the terms of the notices and or- penalty in installments. If the CMV ders. owner or operator fails to make an installment payment on schedule, the [56 FR 10184, Mar. 11, 1991, as amended at 65 FR 7756, Feb. 16, 2000] payment plan is void and the entire debt is payable immediately. A CMV § 386.82 Civil penalties for violations owner or operator that fails to pay the of notices and orders. full outstanding balance of its civil (a) Additional civil penalties are penalty within 90 days after the date of chargeable for violations of notices and the missed installment payment, is orders which are issued under civil for- prohibited from operating in interstate feiture proceedings pursuant to 49 commerce on the next (i.e., the 91st) U.S.C. 521(b). These notices and orders day. The prohibition continues until are as follows: the FMCSA has received full payment (1) Notice to abate—§ 386.11 (b)(2) and of the entire penalty. (c)(1)(iv); (3) Appeals to Federal Court. If the (2) Notice to post—§ 386.11(b)(3); CMV owner or operator appeals the (3) Final order—§ 386.14(f); and final agency order to a Federal Circuit (4) Out-of-service order—§ 386.72(b)(3). Court of Appeals, the terms and pay- (b) A schedule of these additional ment due date of the final agency order penalties is provided in the appendix A are not stayed unless the Court so di- to this part. All the penalties are maxi- rects. mums, and discretion will be retained (b) Show Cause Proceeding. (1) The to meet special circumstances by set- FMCSA will notify a CMV owner or op- ting penalties for violations of notices erator in writing if it has not received and orders, in some cases, at less than payment within 45 days after the date the maximum. specified for payment by the final

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agency order or the date of a missed in- § 386.84 Sanction for failure to pay stallment payment. The notice will in- civil penalties or abide by payment clude a warning that failure to pay the plan; suspension or revocation of entire penalty within 90 days after pay- registration. ment was due, will result in the CMV (a)(1) General rule. The registration of owner or operator being prohibited a broker, freight forwarder, or for-hire from operating in interstate com- motor carrier that fails to pay a civil merce. penalty in full within 90 days after the (2) The notice will order the CMV date specified for payment by the owner or operator to show cause why it FMCSA’s final agency order, will be should not be prohibited from oper- suspended starting on the next (i.e., the ating in interstate commerce on the 91st) day. The suspension continues until the FMCSA has received full pay- 91st day after the date specified for ment of the penalty. payment. The prohibition may be (2) Civil penalties paid in installments. avoided only by submitting to the The FMCSA Service Center may allow Chief Safety Officer: a respondent broker, freight forwarder, (i) Evidence that the respondent has or for-hire motor carrier to pay a civil paid the entire amount due; or penalty in installments. If the respond- (ii) Evidence that the respondent has ent fails to make an installment pay- filed for bankruptcy under chapter 11, ment on schedule, the payment plan is title 11, United States Code. Respond- void and the entire debt is payable im- ents in bankruptcy must also submit mediately. The registration of a re- the information required by paragraph spondent that fails to pay the remain- (d) of this section. der of its civil penalty in full within 90 (3) The notice will be delivered by days after the date of the missed in- certified mail or commercial express stallment payment, is suspended on the service. If a CMV owner’s or operator’s next (i.e., the 91st) day. The suspension principal place of business is in a for- continues until the FMCSA has re- eign country, the notice will be deliv- ceived full payment of entire penalty. ered to the CMV owner’s or operator’s (3) Appeals to Federal Court. If the redesignated agent. spondent broker, freight forwarder, or (c) A CMV owner or operator that for-hire motor carrier appeals the final continues to operate in interstate com- agency order to a Federal Circuit Court merce in violation of this section may of Appeals, the terms and payment due date of the final agency order are not be subject to additional sanctions stayed unless the Court so directs. under paragraph IV (h) of appendix A (b) Show Cause Proceeding. (1) The to part 386. FMCSA will notify a respondent (d) This section does not apply to any broker, freight forwarder, or for-hire person who is unable to pay a civil pen- motor carrier in writing if it has not alty because the person is a debtor in a received payment within 45 days after case under chapter 11, title 11, United the date specified for payment by the States Code. CMV owners or operators final agency order or the date of a in bankruptcy proceedings under chap- missed installment payment. The no- ter 11 must provide the following infor- tice will include a warning that failure mation in their response to the to pay the entire penalty within 90 FMCSA: days after payment was due, will result (1) The chapter of the Bankruptcy in the suspension of the respondent’s Code under which the bankruptcy pro- registration. ceeding is filed (i.e., chapter 7 or 11); (2) The notice will order the respond- (2) The bankruptcy case number; ent to show cause why its registration (3) The court in which the bank- should not be suspended on the 91st day ruptcy proceeding was filed; and after the date specified for payment. (4) Any other information requested The prohibition may be avoided only by the agency to determine a debtor’s by submitting to the Chief Safety Offi- cer: bankruptcy status. (i) Evidence that the respondent has [65 FR 78428, Dec. 15, 2000] paid the entire amount due; or

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(ii) Evidence that the respondent has b. Violation—failure to comply with spe- filed for bankruptcy under chapter 11, cific actions prescribed in a notice of inves- title 11, United States Code. Respond- tigation, compliance order or consent order, ents in bankruptcy must also submit other than cessation of violations of the regulations, which were determined to be essen- the information required by paragraph tial to abatement of future violations. (d) of this section. Penalty—$1,100 per violation per day. (3) The notice will be delivered by Maximum—$11,000. certified mail or commercial express service. If a respondent’s principal II. Notice to Post place of business is in a foreign coun- Violation— Failure to post notice of viola- try, it will be delivered to the respond- tion (i.e., notice of investigation) as pre- ent’s designated agent. scribed. (c) The registration of a broker, Penalty—$550 (A separate violation may be freight forwarder or for-hire motor car- charged each time a failure to post as or- rier that continues to operate in inter- dered is discovered.) state commerce in violation of this III. Final Order section after its registration has been suspended may be revoked after an ad- Violation— Failure to comply with final agency order, i.e., failure to pay the penalty ditional notice and opportunity for a assessed therein after notice and opportunity proceeding in accordance with 49 U.S.C. for hearing within time prescribed in the 13905(c). Additional sanctions may be order. imposed under paragraph IV (h) of ap- Penalty— Automatic waiver of any reduc- pendix A to part 386. tion in the original claim found to be valid, (d) This section does not apply to any and immediate restoration to the full person who is unable to pay a civil pen- amount assessed in the Claim Letter or No- alty because the person is a debtor in a tice of Investigation. case under chapter 11, title 11, United IV. Out-of-Service Order States Code. Brokers, freight forwarders, or for-hire motor carriers in a. Violation— Operation of a commercial vehicle by a driver during the period the bankruptcy proceedings under chapter driver was placed out of service. 11 must provide the following informa- Penalty— Up to $1,100 per violation. tion in their response to the FMCSA: (For purposes of this violation, the term (1) The chapter of the Bankruptcy ‘‘driver’’ means an operator of a commercial Code under which the bankruptcy pro- motor vehicle, including an independent con- ceeding is filed (i.e., chapter 7 or 11); tractor who, while in the course of operating (2) The bankruptcy case number; a commercial motor vehicle, is employed or (3) The court in which the bank- used by another person.) ruptcy proceeding was filed; and b. Violation—Requiring or permitting a (4) Any other information requested driver to operate a commercial vehicle dur- by the agency to determine a debtor’s ing the period the driver was placed out of bankruptcy status. service. Penalty— Up to $11,000 per violation. [65 FR 78428, Dec. 15, 2000] (This violation applies to motor carriers, including an independent contractor who is APPENDIX A TO PART 386—PENALTY not a ‘‘driver,’’ as defined under paragraph SCHEDULE; VIOLATIONS OF NOTICES IVa above.) AND ORDERS c. Violation— Operation of a commercial motor vehicle by a driver after the vehicle I. Notice to Abate was placed out of service and before the re- a. Violation—failure to cease violations of quired repairs are made. the regulations in the time prescribed in the Penalty—$1,100 each time the vehicle is so notice. operated. (The time within which to comply with a no- (This violation applies to drivers as defined tice to abate shall not begin to run with rein IVa above.) spect to contested violations, i.e., where d. Violation— Requiring or permitting the there are material issues in dispute under operation of a commercial motor vehicle § 386.14, until such time as the violation has placed out of service before the required re- been established.) pairs are made. Penalty—reinstatement of any deferred as- Penalty— Up to $11,000 each time the vehi- sessment or payment of a penalty or portion cle is so operated after notice of the defect is thereof. received.

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(This violation applies to motor carriers, in- (2) Knowing falsification of records. A person cluding an independent owner-operator who or entity that knowingly falsifies, destroys, is not a ‘‘driver,’’ as defined in IVa above.) mutilates or changes a report or record re- e. Violation— Failure to return written cer- quired by parts 385 and 390–399 of this sub- tification of correction as required by the chapter, knowingly makes or causes to be out-of-service order. made a false or incomplete record about an Penalty— Up to $550 per violation. operation or business fact or transaction, or f. Violation— Knowingly falsifies written knowingly makes, prepares, or preserves a certification of correction required by the record in violation of a regulation or order of out-of-service order. the Secretary is subject to a maximum civil penalty of $5,000 if such action misrepresents Penalty— Considered the same as the viola- a fact that constitutes a violation other than tions described in paragraphs IVc and IVd a reporting or recordkeeping violation. above, and subject to the same penalties. (3) Non-recordkeeping violations. A person or NOTE: Falsification of certification may entity who violates parts 385 or 390–399 of also result in criminal prosecution under 18 this subchapter, except a recordkeeping re- U.S.C. 1001. quirement, is subject to a civil penalty not to exceed $10,000 for each violation. g. Violation— Operating in violation of an order issued under § 386.72(b) to cease all or (4) Non-recordkeeping violations by drivers. A part of the employer’s commercial motor ve- driver who violates parts 385 and 390–399 of hicle operations, i.e., failure to cease oper- this subchapter, except a recordkeeping vio- ations as ordered. lation, is subject to a civil penalty not to exceed $2,500. Penalty— Up to $11,000 per day the operation continues after the effective date and (5) Violation of 49 CFR 392.5. A driver placed time of the order to cease. out of service for 24 hours for violating the alcohol prohibitions of 49 CFR 392.5(a) or (b) h. Violation—Conducting operations during who drives during that period is subject to a a period of suspension under §§ 386.83 or 386.84 civil penalty not to exceed $2,750 for each for failure to pay penalties. violation. Penalty—Up to $10,000 for each day that op- (b) Commercial driver’s license (CDL) viola- erations are conducted during the suspension tions. Any person who violates 49 CFR part period. 383, subparts B, C, E, F, G, or H is subject to [56 FR 10184, Mar. 11, 1991, as amended at 63 a civil penalty of $2,750. FR 12414, Mar. 13, 1998; 65 FR 78429, Dec. 15, (c) Special penalties pertaining to violations 2000] of out-of-service orders by CDL-holders. A CDL- holder who is convicted of violating an out- APPENDIX B TO PART 386—PENALTY of-service order shall be subject to a civil SCHEDULE; VIOLATIONS AND MAX- penalty of not less than $1,100 nor more than IMUM MONETARY PENALTIES $2,750. An employer of a CDL-holder who knowingly allows, requires, permits, or au- The Debt Collection Improvement Act of thorizes that employee to operate a CMV 1996 [Public Law 104–134, title III, chapter 10, during any period in which the CDL-holder is Sec. 31001, par. (s), 110 Stat. 1321–373] amend- subject to an out-of-service order, is subject ed the Federal Civil Penalties Inflation Ad- to a civil penalty of not less than $2,750 or justment Act of 1990 to require agencies to more than $11,000. adjust for inflation ‘‘each civil monetary (d) Financial responsibility violations. A penalty provided by law within the jurisdic- motor carrier that fails to maintain the lev- tion of the Federal agency * * *’’ and to pub- els of financial responsibility prescribed by lish that regulation in the FEDERAL REG- Part 387 of this subchapter is subject to a ISTER. Pursuant to that authority, the infla- maximum penalty of $11,000 for each violation-adjusted civil penalties listed in para- tion. Each day of a continuing violation con- graphs (a)(5) and (b) through (f) below super- stitutes a separate offense. sede the corresponding civil penalty amounts (e) Violations of the Hazardous Materials listed in title 49, United States Code. Regulations (HMRs). This paragraph applies What are the types of violations and max- to violations by motor carriers, drivers, ship- imum monetary penalties? pers and other persons who transport haz- (a) Violations of the Federal Motor Carrier ardous materials on the highway in commer- Safety Regulations (FMCSRs). cial motor vehicles or cause hazardous mate- (1) Recordkeeping. A person or entity that rials to be so transported. fails to prepare or maintain a record re- (1) All knowing violations of 49 U.S.C. quired by parts 385 and 390–399 of this subchapter 51 or orders or regulations issued chapter, or prepares or maintains a required under the authority of that chapter applica- record that is incomplete, inaccurate, or ble to the transportation or shipment of haz- false, is subject to a maximum civil penalty ardous materials by commercial motor vehi- of $500 for each day the violation continues, cle on highways are subject to a civil penalty up to $5,000. of not less than $250 and not more than

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$27,500 for each violation. Each day of a con- tation of the land transportation provisions tinuing violation constitutes a separate of- of the North American Free Trade Agree- fense. ment, outside the boundaries of a commer- (2) All knowing violations of 49 U.S.C. cial zone along the United States-Mexico chapter 51 or orders, regulations, or exemp- border is liable for a maximum penalty of tions issued under the authority of that $10,000 for an intentional violation and a chapter applicable to the manufacture, fab- maximum penalty of $25,000 for a pattern of rication, marking, maintenance, recondi- intentional violations. tioning, repair or testing of a packaging or (6) A person who operates as a motor car- container which is represented, marked, cer- rier or broker for the transportation of haz- tified or sold as being qualified for use in the ardous wastes in violation of the registration transportation or shipment of hazardous ma- provisions of 49 U.S.C. 13901 is liable for a terials by commercial motor vehicle on high- maximum penalty of $20,000 per violation. ways, are subject to a civil penalty of not (7) A motor carrier or freight forwarder of less than $250 and not more than $27,500 for household goods, or their receiver or trustee, each violation. that does not comply with any regulation re- (3) Whenever regulations issued under the lating to the protection of individual ship- authority of 49 U.S.C. chapter 51 require pers is liable for a minimum penalty of $1,000 compliance with the FMCSRs while trans- per violation. porting hazardous materials, any violations (8) A person— of the FMCSRs will be considered a violation (i) Who falsifies, or authorizes an agent or of the HMRs and subject to a civil penalty of other person to falsify, documents used in not less than $250 and not more than $27,500. the transportation of household goods by (f) Operating with an unsatisfactory safety motor carrier or freight forwarder to evi- rating. A motor carrier knowingly trans- dence the weight of a shipment or porting hazardous materials in quantities re- (ii) Who charges for services which are not quiring placarding, or passengers in a vehicle performed or are not reasonably necessary in designed or used to transport more than 15 the safe and adequate movement of the ship- passengers, on the 46th or any subsequent ment is liable for a minimum penalty of day after receiving an unsatisfactory safety $2,000 for the first violation and $5,000 for rating, is subject to a civil penalty of not each subsequent violation. less than $250 and not more than $27,500. (9) A person who knowingly accepts or re- Each day the transportation of hazardous ceives from a carrier a rebate or offset materials continues constitutes a separate against the rate specified in a tariff required violation. under 49 U.S.C. 13702 for the transportation (g) Violations of the commercial regulations of property delivered to the carrier commits (CRs). Penalties for violations of the CRs are a violation for which the penalty is equal to specified in 49 U.S.C. Chapter 149. These pen- three times the amount accepted as a rebate alties relate to transportation subject to the or offset and three times the value of other Secretary’s jurisdiction under 49 U.S.C. consideration accepted or received as a re- Chapter 135. Unless otherwise noted, a sepa- bate or offset for the six-year period before rate violation occurs for each day the viola- the action is begun. tion continues. (10) A person who offers, gives, solicits, or (1) A person who fails to make a report, to receives transportation of property by a car- specifically, completely, and truthfully an- rier at a different rate than the rate in effect swer a question, or to make, prepare, or pre- under 49 U.S.C. 13702 is liable for a maximum serve a record in the form and manner pre- penalty of $100,000 per violation. When acting scribed is liable for a minimum penalty of in the scope of his/her employment, the acts $500 per violation. or omissions of a person acting for or em- (2) A person who operates as a carrier or ployed by a carrier or shipper are considered broker for the transportation of property in to be the acts and omissions of that carrier violation of the registration requirements of or shipper, as well as that person. 49 U.S.C. 13901 is liable for a minimum pen- (11) Any person who offers, gives, solicits, alty of $500 per violation. or receives a rebate or concession related to (3) A person who operates as a motor car- motor carrier transportation subject to ju- rier of passengers in violation of the reg- risdiction under subchapter I of 49 U.S.C. istration requirements of 49 U.S.C. 13901 is Chapter 135, or who assists or permits an- liable for a minimum penalty of $2,000 per other person to get that transportation at violation. less than the rate in effect under 49 U.S.C. (4) A person who operates as a foreign 13702, commits a violation for which the pen- motor carrier or foreign motor private car- alty is $200 for the first violation and $250 for rier in violation of the provisions of 49 U.S.C. each subsequent violation. 13902 (c) is liable for a minimum penalty of (12) A freight forwarder, its officer, agent, $500 per violation. or employee, that assists or willingly per- (5) A person who operates as a foreign mits a person to get service under 49 U.S.C. motor carrier or foreign motor private car- 13531 at less than the rate in effect under 49 rier without authority, before the implemen- U.S.C. 13702 commits a violation for which

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the penalty is up to $500 for the first viola- of their employment with a carrier are con- tion and up to $2,000 for each subsequent vio- sidered to be the actions and omissions of lation. the carrier as well as the individual. (13) A person who gets or attempts to get (20) In a proceeding begun under 49 U.S.C. service from a freight forwarder under 49 14902 or 14903, the rate that a carrier pub- U.S.C. 13531 at less than the rate in effect lishes, files, or participates in under section under 49 U.S.C. 13702 commits a violation for 13702 is conclusive proof against the carrier, which the penalty is up to $500 for the first its officers, and agents that it is the legal violation and up to $2,000 for each subse- rate for the transportation or service. De- quent violation. parting, or offering to depart, from that pub- (14) A person who knowingly authorizes, lished or filed rate is a violation of 49 U.S.C. consents to, or permits a violation of 49 14902 and 14903. U.S.C. 14103 relating to loading and unloading motor vehicles or who knowingly vio- [63 FR 12414, Mar. 13, 1998, as amended at 65 lates subsection (a) of 49 U.S.C. 14103 is liable FR 7756, Feb. 16,, 2000] for a penalty of not more than $10,000 per violation. PART 387—MINIMUM LEVELS OF FI- (15) A person, or an officer, employee, or NANCIAL RESPONSIBILITY FOR agent of that person, who tries to evade regulation under Part B of Subtitle IV, Title 49, MOTOR CARRIERS U.S.C., for carriers or brokers is liable for a penalty of $200 for the first violation and at Subpart A—Motor Carriers of Property least $250 for a subsequent violation. (16) A person required to make a report to Sec. the Secretary, answer a question, or make, 387.1 Purpose and scope. prepare, or preserve a record under Part B of 387.3 Applicability. Subtitle IV, Title 49, U.S.C., or an officer, 387.5 Definitions. agent, or employee of that person, is liable 387.7 Financial responsibility required. for a maximum penalty of $5,000 per viola- 387.9 Financial responsibility, minimum tion if it does not make the report, does not levels. completely and truthfully answer the ques- 387.11 State authority and designation of tion within 30 days from the date the Sec- agent. retary requires the answer, does not make or 387.13 Fiduciaries. preserve the record in the form and manner 387.15 Forms. prescribed, falsifies, destroys, or changes the 387.17 Violation and penalty. report or record, files a false report or record, makes a false or incomplete entry in Subpart B—Motor Carriers of Passengers the record about a business related fact, or 387.25 Purpose and scope. prepares or preserves a record in violation of 387.27 Applicability. a regulation or order of the Secretary. 387.29 Definitions. (17) A motor carrier, water carrier, freight 387.31 Financial responsibility required. forwarder, or broker, or their officer, re- 387.33 Financial responsibility, minimum ceiver, trustee, lessee, employee, or other levels. person authorized to receive information 387.35 State authority and designation of from them, who discloses information identi- agent. fied in 49 U.S.C. 14908 without the permission 387.37 Fiduciaries. of the shipper or consignee is liable for a 387.39 Forms. maximum penalty of $2,000. 387.41 Violation and penalty. (18) A person who violates a provision of Part B, Subtitle IV, Title 49, U.S.C., or a reg- Subpart C—Surety Bonds and Policies of ulation or order under Part B, or who vio- Insurance for Motor Carriers and Prop- lates a condition of registration related to erty Brokers transportation that is subject to jurisdiction under subchapter I or III or Chapter 135, or 387.301 Surety bond, certificate of insur- who violates a condition of registration of a ance, or other securities. foreign motor carrier or foreign motor pri- 387.303 Security for the protection of the vate carrier under section 13902, is liable for public: Minimum limits. a penalty of $500 for each violation if another 387.305 Combination vehicles. penalty is not provided in 49 U.S.C. Chapter 387.307 Property broker surety bond or trust 149. fund. (19) A violation of Part B, Subtitle IV, 387.309 Qualifications as a self-insurer and Title 49, U.S.C., committed by a director, of- other securities or agreements. ficer, receiver, trustee, lessee, agent, or em- 387.311 Bonds and certificates of insurance. ployee of a carrier that is a corporation is 387.313 Forms and procedures. also a violation by the corporation to which 387.315 Insurance and surety companies. the penalties of Chapter 149 apply. Acts and 387.317 Refusal to accept, or revocation by omissions of individuals acting in the scope the FMCSA of surety bonds, etc.

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387.319 Fiduciaries. (c) Exception. (1) The rules in this 387.321 Operations in foreign commerce. part do not apply to a motor vehicle 387.323 Electronic filing of surety bonds, that has a gross vehicle weight rating trust fund agreements, certificates of in- (GVWR) of less than 10,000 pounds. This surance and cancellations. exception does not apply if the vehicle Subpart D—Surety Bonds and Policies of is used to transport any quantity of a Insurance for Freight Forwarders Division 1.1, 1.2, or 1.3 material, any quantity of a Division 2.3, Hazard Zone 387.401 Definitions. A, or Division 6.1, Packing Group I, 387.403 General requirements. Hazard Zone A, or to a highway route 387.405 Limits of liability. 387.407 Surety bonds and certificates of in- controlled quantity of a Class 7 mate- surance. rial as it is defined in 49 CFR 173.403, in 387.409 Insurance and surety companies. interstate or foreign commerce. 387.411 Qualifications as a self-insurer and (2) The rules in this part do not apply other securities or agreements. to the transportation of non-bulk oil, 387.413 Forms and procedure. non-bulk hazardous materials, sub- 387.415 Acceptance and revocation by the stances, or wastes in intrastate com- FMCSA. 387.417 Fiduciaries. merce, except that the rules in this 387.419 Electronic filing of surety bonds, part do apply to the transportation of a certificates of insurance and cancella- highway route controlled quantity of a tions. Class 7 material as defined in 49 CFR

AUTHORITY: 49 U.S.C. 13101, 13301, 13906, 173.403, in intrastate commerce. 14701, 31138, and 31139; and 49 CFR 1.73. [46 FR 30982, June 11, 1981; 46 FR 45612, Sept. EDITORIAL NOTE: Nomenclature changes to 14, 1981, as amended at 48 FR 5559, Feb. 7, part 387 appear at 66 FR 49873, Oct. 1, 2001. 1983; 48 FR 52683, Nov. 21, 1983; 49 FR 38290, Sept. 28, 1984; 59 FR 63923, Dec. 12, 1994]

Subpart A—Motor Carriers of § 387.5 Definitions. Property As used in this subpart— § 387.1 Purpose and scope. Accident includes continuous or re- This subpart prescribes the minimum peated exposure to the same conditions levels of financial responsibility re- resulting in public liability which the quired to be maintained by motor car- insured neither expected nor intended. riers of property operating motor vehi- Bodily injury means injury to the cles in interstate, foreign, or intrastate body, sickness, or disease including commerce. The purpose of these regu- death resulting from any of these. lations is to create additional incen- Cancellation of insurance the with- tives to motor carriers to maintain and drawal of insurance coverage by either operate their vehicles in a safe manner the insurer or the insured. and to assure that motor carriers Endorsement an amendment to an in- maintain an appropriate level of finan- surance policy. cial responsibility for motor vehicles Environmental restoration restitution operated on public highways. for the loss, damage, or destruction of [46 FR 30982, June 11, 1981, as amended at 48 natural resources arising out of the ac- FR 52683, Nov. 21, 1983] cidental discharge, dispersal, release or escape into or upon the land, atmos- § 387.3 Applicability. phere, watercourse, or body of water of (a) This subpart applies to for-hire any commodity transported by a motor motor carriers operating motor vehi- carrier. This shall include the cost of cles transporting property in interstate removal and the cost of necessary or foreign commerce. measure taken to minimize or mitigate (b) This subpart applies to motor car- damage to human health, the natural riers operating motor vehicles trans- environment, fish, shellfish, and wild- porting hazardous materials, hazardous life. substances, or hazardous wastes in Evidence of security a surety bond or a interstate, foreign, or intrastate com- policy of insurance with the appro- merce. priate endorsement attached.

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Financial responsibility the financial Samoa, Guam, and the Northern Mar- reserves (e.g., insurance policies or sur- iana Islands. ety bonds) sufficient to satisfy liability [46 FR 30982, June 11, 1981; 46 FR 45612, Sept. amounts set forth in this subpart cov- 14, 1981; 47 FR 12801, Mar. 25, 1982, as amended ering public liability. at 48 FR 52683, Nov. 21, 1983; 51 FR 33856, For-hire carriage means the business Sept. 23, 1986; 53 FR 12160, Apr. 13, 1988; 59 FR of transporting, for compensation, the 63923, Dec. 12, 1994; 62 FR 16709, Apr. 8, 1997; goods or property of another. 63 FR 33275, June 18, 1998] In bulk—the transportation, as cargo, § 387.7 Financial responsibility re- of property, except Division 1.1, 1.2, or quired. 1.3 materials, and Division 2.3, Hazard Zone A gases, in containment systems (a) No motor carrier shall operate a with capacities in excess of 3500 water motor vehicle until the motor carrier gallons. has obtained and has in effect the minimum levels of financial responsibility In bulk (Division 1.1, 1.2, and 1.3 explo- as set forth in § 387.9 of this subpart. sives)—the transportation, as cargo, of (b)(1) Policies of insurance, surety any Division 1.1, 1.2, or 1.3 materials in bonds, and endorsements required any quantity. under this section shall remain in ef- In bulk (Division 2.3, Hazard Zone A or fect continuously until terminated. Division 6.1, Packing Group I, Hazard Cancellation may be effected by the in- Zone A materials)—the transportation, surer or the insured motor carrier giv- as cargo, of any Division 2.3, Hazard ing 35 days’ notice in writing to the Zone A, or Division 6.1, packing Group other. The 35 days’ notice shall com- I, Hazard Zone A material, in any mence to run from the date the notice quantity. is mailed. Proof of mailing shall be suf- Insured and principal— the motor car- ficient proof of notice. rier named in the policy of insurance, (2) Exception. Policies of insurance surety bond, endorsement, or notice of and surety bonds may be obtained for a cancellation, and also the fiduciary of finite period of time to cover any lapse such motor carrier. in continuous compliance. Insurance premium the monetary sum (3) Exception. A Mexico-domiciled an insured pays an insurer for accept- motor carrier operating solely in mu- ance of liability for public liability nicipalities in the United States on the claims made against the insured. U.S.-Mexico international border or Motor carrier means a for-hire motor within the commercial zones of such carrier or a private motor carrier. The municipalities with a Certificate of term includes, but is not limited to, a Registration issued under part 368 may meet the minimum financial responsi- motor carrier’s agent, officer, or rep- bility requirements of this subpart by resentative; an employee responsible obtaining insurance coverage, in the for hiring, supervising, training, as- required amounts, for periods of 24 signing, or dispatching a driver; or an hours or longer, from insurers that employee concerned with the installa- meet the requirements of § 387.11 of this tion, inspection, and maintenance of subpart. A Mexican motor carrier so motor vehicle equipment and/or acces- insured must have available for inspec- sories. tion in each of its vehicles copies of the Property damage means damage to or following documents: loss of use of tangible property. (i) The Certificate of Registration; Public liability liability for bodily in- (ii) The required insurance endorse- jury or property damage and includes ment (Form MCS–90); and liability for environmental restoration. (iii) An insurance identification card, State means a State of the United binder, or other document issued by an States, the District of Columbia, Puer- authorized insurer which specifies both to Rico, the Virgin Islands, American the effective date and the expiration

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date of the temporary insurance cov- maintains a satisfactory safety rating erage authorized by this exception. as determined by the Federal Motor Mexician motor carriers insured under Carrier Safety Administration under this exception are also exempt from part 385 of this chapter. the notice of cancellation requirements (e) The proof of minimum levels of fi- stated on Form MCS–90. nancial responsibility required by this (c) Policies of insurance and surety section shall be considered public in- bonds required under this section may formation and be produced for review be replaced by other policies of insur- upon reasonable request by a member ance or surety bonds. The liability of of the public. the retiring insurer or surety, as to (f) All vehicles operated within the events after the termination date, shall United States by motor carriers domi- be considered as having terminated on ciled in a contiguous foreign country, the effective date of the replacement shall have on board the vehicle a leg- policy of insurance or surety bond or at ible copy, in English, of the proof of the end of the 35 day cancellation pe- the required financial responsibility riod required in paragraph (b) of this (Form MCS–90 or MCS–82) used by the section, whichever is sooner. motor carrier to comply with para- (d) Proof of the required financial re- graph (d) of this section. sponsibility shall be maintained at the (g) Any motor vehicle in which there motor carrier’s principal place of busi- is no evidence of financial responsi- ness. The proof shall consist of— bility required by paragraph (f) of this (1) ‘‘Endorsement(s) for Motor Car- section shall be denied entry into the rier Policies of Insurance for Public Li- United States. ability Under Sections 29 and 30 of the [46 FR 30982, June 11, 1981; 46 FR 45612, Sept. Motor Carrier Act of 1980’’ (Form MCS– 14, 1981, as amended at 48 FR 5559, Feb. 7, 90) issued by an insurer(s); 1983; 48 FR 52683, Nov. 21, 1983; 51 FR 22083, (2) A ‘‘Motor Carrier Surety Bond for June 18, 1986; 54 FR 49092, Nov. 29, 1989; 59 FR Public Liability Under Section 30 of 63923, Dec. 12, 1994; 67 FR 12661, Mar. 19, 2002] the Motor Carrier Act of 1980’’ (Form MCS–82) issued by a surety; or § 387.9 Financial responsibility, min- (3) A written decision, order, or au- imum levels. thorization of the Federal Motor Car- The minimum levels of financial re- rier Safety Administration authorizing sponsibility referred to in § 387.7 of this a motor carrier to self-insure under subpart are hereby prescribed as fol- § 387.309, provided the motor carrier lows:

SCHEDULE OF LIMITS—PUBLIC LIABILITY

Type of carriage Commodity transported Jan. 1, 1985

(1) For-hire (In interstate or foreign Property (nonhazardous) ...... $750,000 commerce, with a gross vehicle weight rating of 10,000 or more pounds). (2) For-hire and Private (In inter- Hazardous substances, as defined in 49 CFR 171.8, transported in 5,000,000 state, foreign, or intrastate com- cargo tanks, portable tanks, or hopper-type vehicles with capacities in merce, with a gross vehicle weight excess of 3,500 water gallons; or in bulk Division 1.1, 1.2, and 1.3 rating of 10,000 or more pounds). materials, Division 2.3, Hazard Zone A, or Division 6.1, Packing Group I, Hazard Zone A material; in bulk Division 2.1 or 2.2; or highway route controlled quantities of a Class 7 material, as defined in 49 CFR 173.403. (3) For-hire and Private (In interstate Oil listed in 49 CFR 172.101; hazardous waste, hazardous materials, 1,000,000 or foreign commerce, in any quan- and hazardous substances defined in 49 CFR 171.8 and listed in 49 tity; or in intrastate commerce, in CFR 172.101, but not mentioned in (2) above or (4) below. bulk only; with a gross vehicle weight rating of 10,000 or more pounds). (4) For-hire and Private (In interstate Any quantity of Division 1.1, 1.2, or 1.3 material; any quantity of a Divi- 5,000,000 or foreign commerce, with a gross sion 2.3, Hazard Zone A, or Division 6.1, Packing Group I, Hazard vehicle weight rating of less than Zone A material; or highway route controlled quantities of a Class 7 10,000 pounds). material as defined in 49 CFR 173.403.

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[59 FR 63923, Dec. 12, 1994] dorsement and surety bond shall be issued in the exact name of the motor § 387.11 State authority and designa- carrier. tion of agent. A policy of insurance or surety bond ILLUSTRATION I does not satisfy the financial responsi- Form MCS–90 (3/82) bility requirements of this subpart un- Form Approved less the insurer or surety furnishing OMB No. 2125–0074 the policy or bond is— ENDORSEMENT FOR MOTOR CARRIER POLICIES (a) Legally authorized to issue such OF INSURANCE FOR PUBLIC LIABILITY UNDER policies or bonds in each State in SECTIONS 29 AND 30 OF THE MOTOR CARRIER which the motor carrier operates; or ACT OF 1980 (b) Legally authorized to issue such Issued to llllllllllllllllll policies or bonds in the State in which of llllllllllllllllllllll the motor carrier has its principal Dated at lllllllllllllllllll place of business or domicile, and is this ll day of llllllllll, 19ll willing to designate a person upon Amending Policy No. llllllllllll whom process, issued by or under the Effective Date llllllllllllllll authority of any court having jurisdic- Name of Insurance Company llllllll tion of the subject matter, may be Countersigned by llllllllllll Authorized Company Representative served in any proceeding at law or equity brought in any State in which the The policy to which this endorsement is attached provides primary or excess insurance, motor carrier operates; or as indicated by ‘‘X’’, for the limits shown: (c) Legally authorized to issue such b This insurance is primary and the com- policies or bonds in any State of the pany shall not be liable for amounts in ex- United States and eligible as an excess cess of $lllll for each accident. or surplus lines insurer in any State in b This insurance is excess and the company which business is written, and is will- shall not be liable for amounts in excess of ing to designate a person upon whom $lllll for each accident in excess of the underlying limit of $lllll for each process, issued by or under the author- accident. ity of any court having jurisdiction of Whenever required by the FMCSA the com- the subject matter, may be served in pany agrees to furnish the FMCSA a dupli- any proceeding at law or equity cate of said policy and all its endorsements. brought in any State in which the The company also agrees, upon telephone re- motor carrier operates. quest by an authorized representative of the FMCSA, to verify that the policy is in force [46 FR 30982, June 11, 1981, as amended at 48 as of a particular date. The telephone num- FR 52683, Nov. 21, 1983] ber to call is: llllll Cancellation of this endorsement may be ef- § 387.13 Fiduciaries. fected by the company or the insured by giv- The coverage of fiduciaries shall ating (1) thirty-five (35) days notice in writing tach at the moment of succession of to the other party (said 35 days notice to such fiduciaries. commence from the date the notice is mailed, proof of mailing shall be sufficient [46 FR 30982, June 11, 1981] proof of notice), and (2) if the insured is subject to the FMCSA’s jurisdiction, by pro- § 387.15 Forms. viding thirty (30) days notice to the FMCSA (said 30 days notice to commence from the Endorsements for policies of insur- date the notice is received by the FMCSA at ance (Illustration I) and surety bonds its office in Washington, DC). (Illustration II) must be in the form prescribed by the FMCSA and approved DEFINITIONS AS USED IN THIS ENDORSEMENT by the OMB. Endorsements to policies Accident includes continuous or repeated ex- of insurance and surety bonds shall posure to conditions which results in bod- specify that coverage thereunder will ily injury, property damage, or environ- remain in effect continuously until ter- mental damage which the insured neither minated, as required in § 387.7 of this expected or intended. Motor Vehicle means a land vehicle, machine, subpart. The continuous coverage re- truck, tractor, trailer, or semitrailer pro- quirement does not apply to Mexican pelled or drawn by mechanical power and motor carriers insured under used on a highway for transporting prop- § 387.7(b)(3) of this subpart. The en- erty, or any combination thereof.

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Bodily Injury means injury to the body, sick- that the company would not have been obli- ness, or disease to any person, including gated to make under the provisions of the death resulting from any of these. policy except for the agreement contained in Environmental Restoration means restitution this endorsement. for the loss, damage, or destruction of nat- It is further understood and agreed that, ural resources arising out of the accidental upon failure of the company to pay any final discharge, dispersal, release or escape into judgment recovered against the insured as or upon the land, atmosphere, watercourse, provided herein, the judgment creditor may or body of water, of any commodity trans- maintain an action in any court of com- ported by a motor carrier. This shall in- petent jurisdiction against the company to clude the cost of removal and the cost of compel such payment. necessary measures taken to minimize or mitigate damage to human health, the nat- The limits of the company’s liability for ural environment, fish, shellfish, and wild- the amounts prescribed in this endorsement life. apply separately to each accident and any Property Damage means damage to or loss of payment under the policy because of any one use of tangible property. accident shall not operate to reduce the li- Public Liability means liability for bodily inability of the company for the payment of jury, property damage, and environmental final judgments resulting from any other ac- restoration. cident. The insurance policy to which this en- ILLUSTRATION II dorsement is attached provides automobile liability insurance and is amended to assure Form MCS–82 (4/83) compliance by the insured, within the limits stated herein, as a motor carrier of property, (Form approved by Office of Management with sections 29 and 30 of the Motor Carrier and Budget under control no. 2125–0075) Act of 1980 and the rules and regulations of the Federal Motor Carrier Safety Adminis- MOTOR CARRIER PUBLIC LIABILITY SURETY tration. In consideration of the premium stated in BOND UNDER SECTIONS 29 AND 30 OF THE the policy to which this endorsement is at- MOTOR CARRIER ACT OF 1980 tached, the insurer (the company) agrees to Motor carrier prin- pay, within the limits of liability described Surety company and cipal, FMCSA Dock- herein, any final judgment recovered against Parties principal place of business address et No. and principal the insured for public liability resulting place of business from negligence in the operation, maintenance or use of motor vehicles subject to the ...... financial responsibility requirements of sec- ...... tions 29 and 30 of the Motor Carrier Act of ...... 1980 regardless of whether or not each motor ...... vehicle is specifically described in the policy Purpose— This is an agreement be- and whether or not such negligence occurs tween the Surety and the Principal on any route or in any territory authorized to be served by the insured or elsewhere. under which the Surety, its successors Such insurance as is afforded, for public li- and assigness, agree to be responsible ability, does not apply to injury to or death for the payment of any final judgment of the insured’s employees while engaged in or judgments against the Principal for the course of their employment, or property public liability, property damage, and transported by the insured, designated as environmental restoration liability cargo. It is understood and agreed that no condition, provision, stipulation, or limita- claims in the sums prescribed herein; tion contained in the policy, this endorse- subject to the governing provisions and ment, or any other endorsement thereon, or the following conditions. violation thereof, shall relieve the company Governing provisions—(1) Sections 29 from liability or from the payment of any and 30 of the Motor Carrier Act of 1980 final judgment, within the limits of liability (49 U.S.C. 13906). herein described, irrespective of the financial condition, insolvency or bankruptcy of the (2) Rules and regulations of the Fed- insured. However, all terms, conditions, and eral Motor Carrier Safety Administra- limitations in the policy to which the en- tion. dorsement is attached shall remain in full Conditions— The Principal is or in- force and effect as binding between the intends to become a motor carrier of sured and the company. The insured agrees to reimburse the company for any payment property subject to the applicable gov- made by the company on account of any ac- erning provisions relating to financial cident, claim, or suit involving a breach of responsibility for the protection of the the terms of the policy, and for any payment public.

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This bond assures compliance by the in Washington, DC). The Surety shall Principal with the applicable gov- not be liable for the payment of any erning provisions, and shall inure to judgment or judgments against the the benefit of any person or persons Principal for public liability, property who shall recover a final judgment or damage, or environmental restoration judgments against the Principal for claims resulting from accidents which public liability, property damage, or occur after the termination of this environmental restoration liability bond as described herein, but such ter- claims (excluding injury to or death of mination shall not affect the liability the Principal’s employees while en- of the Surety for the payment of any gaged in the course of their employ- such judgment or judgments resulting ment, and loss of or damange to prop- from accidents which occur during the erty of the principal, and the cargo time the bond is in effect. transported by the Principal). If every (AFFIX CORPORATE SEAL) final judgment shall be paid for such Date lllllllllllllllllllll claims resulting from the negligent op- Surety llllllllllllllllllll eration, maintenance, or use of motor City lllllllllllllllllllll vehicles in transportation subject to State llllllllllllllllllll the applicable governing provisions, By llllllllllllllllllllll then this obligation shall be void, otherwise it will remain in full effect. ACKNOWLEDGEMENT OF SURETY Within the limits described herein, State of lllllllllllllllllll the Surety extends to such losses re- County of llllllllllllllllll gardless of whether such motor vehi- On this lll day of lll, 19ll, before cles are specifically described herein me personally came lllll, who, being by and whether occurring on the route or me duly sworn, did depose and say that he/ in the territory authorized to be served she resides in lllll; that he/she is the by the Principal or elsewhere. lllll of the lllll, the corporation The liability of the Surety on each described in and which executed the fore- motor vehicle subject to the financial going instrument; that he/she knows the seal responsibility requirements of Sec- of said corporation, that the seal affixed to said instrument is such corporate seal, that tion’s 29 and 30 of the Motor Carrier it was so affixed by order of the board of di- Act of 1980 for each accident shall not rectors of said corporation, that he/she exceed $lllll, and shall be a con- signed his/her name thereto by like order, tinuing one notwithstanding any re- and he/she duly acknowledged to me that he/ covery hereunder. she executed the same for and on behalf of The surety agrees, upon telephone re- said corporation. quest by an authorized representative (OFFICIAL SEAL) of the FMCSA, to verify that the sur- llllllllllllllllllllllll ety bond is in force as of a particular Title of official administering oath lllll date. The telephone number is: Surety Company File No. llllllllll llllll [46 FR 30982, June 11, 1981, as amended at 48 This bond is effective from lll FR 52683, Nov. 21, 1983; 49 FR 27292, July 2, (12:01 a.m., standard time, at the ad- 1984; 49 FR 38290, Sept. 28, 1984; 51 FR 33856, dress of the Principal as stated herein) Sept. 23, 1986; 53 FR 12160, Apr. 13, 1988; 54 FR and shall countine in force until termi- 49092, Nov. 29, 1989; 59 FR 63924, Dec. 12, 1994] nated as described herein. The principal or the Surety may at any time § 387.17 Violation and penalty. terminate this bond by giving (1) thirty Any person (except an employee who five (35) days notice in writing to the acts without knowledge) who know- other party (said 35 day notice to com- ingly violates the rules of this subpart mence from the date the notice is shall be liable to the United States for mailed, proof of mailing shall be suffi- civil penalty of no more than $11,000 for cient proof of notice), and (2) if the each violation, and if any such viola- Principal is subject to the FMCSA’s ju- tion is a continuing one, each day of risdiction, by providing thirty (30) days violation will constitute a separate of- notice to the FMCSA (said 30 days no- fense. The amount of any such penalty tice to commence from the date notice shall be assessed by the FMCSA’s is received by the FMCSA at its office Administrator, by written notice. In

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determining the amount of such pen- curricular trips organized, sponsored, alty, the Administrator, or his/her au- and paid by a school district. thorized delegate shall take into ac- [48 FR 52683, Nov. 21, 1983, as amended at 63 count the nature, circumstances, ex- FR 33275, June 18, 1998] tent, the gravity of the violation committed and, with respect to the person § 387.29 Definitions. found to have committed such viola- As used in this subpart— tion, the degree of culpability, any his- Accident includes continuous or re- tory of prior offenses, ability to pay, peated exposure to the same conditions effect on ability to continue to do busi- resulting in public liability which the ness, and such other matters as justice insured neither expected nor intended. may require. Bodily injury means injury to the body, sickness, or disease including [59 FR 63924, Dec. 12, 1994] death resulting from any of these. Endorsement an amendment to an in- Subpart B—Motor Carriers of surance policy. Passengers Financial responsibility the financial reserves (e.g., insurance policies or surety bonds) sufficient to satisfy liability SOURCE: 48 FR 52683, Nov. 21, 1983, unless amounts set forth in this subpart cov- otherwise noted. ering public liability. For-hire carriage means the business § 387.25 Purpose and scope. of transporting, for compensation, pas- This subpart prescribes the minimum sengers and their property, including levels of financial responsibility re- any compensated transportation of the quired to be maintained by for-hire goods or property or another. motor carriers of passengers operating Insured and principal the motor car- motor vehicles in interstate or foreign rier named in the policy of insurance, commerce. The purpose of these regu- surety bond, endorsement, or notice of lations is to create additional incen- cancellation, and also the fiduciary of tives to carriers to operate their vehi- such motor carrier. cles in a safe manner and to assure Insurance premium the monetary sum that they maintain adequate levels of an insured pays an insurer for accept- financial responsibility. ance of liability for public liability claims made against the insured. § 387.27 Applicability. Motor carrier means a for-hire motor carrier. The term includes, but is not (a) This subpart applies to for-hire limited to, a motor carrier’s agent, of- motor carriers transporting passengers ficer, or representative; an employee in interstate or foreign commerce. responsible for hiring, supervising, (b) Exception. The rules in this sub- training, assigning, or dispatching a part do not apply to— driver; or an employee concerned with (1) A motor vehicle transporting only the installation, inspection, and main- school children and teachers to or from tenance of motor vehicle equipment school; and/or accessories. (2) A motor vehicle providing taxicab Property damage means damage to or service and having a seating capacity loss of use of tangible property. of less than 7 passengers and not oper- Public liability liability for bodily in- ated on a regular route or between jury or property damage. specified points; Seating capacity any plan view location capable of accommodating a per- (3) A motor vehicle carrying less son at least as large as a 5th percentile than 16 individuals in a single daily adult female, if the overall seat con- round trip to commute to and from figuration and design and vehicle de- work; and sign is such that the position is likely (4) A motor vehicle operated by a to be used as a seating position while motor carrier under contract providing the vehicle is in motion, except for transportation of preprimary, primary, auxiliary seating accommodations and secondary students for extra- such as temporary or folding jump

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seats. Any bench or split bench seat in the notice of cancellation requirements a passenger car, truck or multi-purpose stated on Form MCS–90B. passenger vehicle with a gross vehicle (c) Policies of insurance and surety weight rating less than 10,000 pounds, bonds required under this section may having greater than 50 inches of hip be replaced by other policies of insur- room (measured in accordance with ance or surety bonds. The liability of SEA Standards J1100(a)) shall have not retiring insurer or surety, as to events less than three designated seating posi- after the termination date, shall be tions, unless the seat design or vehicle considered as having terminated on the design is such that the center position effective date of the replacement pol- cannot be used for seating. icy of insurance or surety bond or at the end or the 35 day cancellation pe- [48 FR 52683, Nov. 21, 1983, as amended at 63 FR 33276, June 18, 1998] riod required in paragraph (b) of this section, whichever is sooner. § 387.31 Financial responsibility re- (d) Proof of the required financial required. sponsibility shall be maintained at the (a) No motor carrier shall operate a motor carrier’s principal place of busi- motor vehicle transporting passengers ness. The proof shall consist of— until the motor carrier has obtained (1) ‘‘Endorsement(s) for Motor Car- and has in effect the minimum levels of riers of Passengers Policies of Insur- financial responsibility as set forth in ance for Public Liability Under Section § 387.33 of this subpart. 18 of the Bus Regulatory Reform Act of (b) Policies of insurance, surety 1982’’ (Form MCS–90B) issued by an in- bonds, and endorsements required surer(s); or under this section shall remain in ef- (2) A ‘‘Motor Carrier of Passengers fect continuously until terminated. Surety Bond for Public Liability Under (1) Cancellation may be effected by Section 18 of the Bus Regulatory Re- the insurer or the insured motor car- form Act of 1982’’ (Form MCS–82B) rier giving 35 days notice in writing to issued by a surety. the other. The 35 days notice shall (e) The proof of minimum levels of fi- commence to run from the date the no- nancial responsibility required by this tice is mailed. Proof of mailing shall be section shall be considered public insufficient proof of notice. formation and be produced for review (2) Exception. Policies of insurance upon reasonable request by a member and surety bonds may be obtained for a of the public. finite period of time to cover any lapse (f) All passenger carrying vehicles in continuous compliance. operated within the United States by (3) Exception. Mexican motor carriers motor carriers domiciled in a contig- may meet the minimum financial re- uous foreign country, shall have on sponsibility requirements of this sub- board the vehicle a legible copy, in part by obtaining insurance coverage, English, of the proof of the required fi- in the required amounts, for periods of nancial responsibility (Forms MCS–90B 24 hours or longer, from insurers that or MCS–82B) used by the motor carrier meet the requirements of § 387.35 of this to comply with paragraph (d) of this subpart. A Mexican motor carrier so section. insured must have available for inspec- (g) Any motor vehicle in which there tion in each of its vehicles copies of the is no evidence of financial responsi- following documents: bility required by paragraph (f) of this (i) The required insurance endorse- section shall be denied entry into the ment (Form MCS–90B); and United States. (ii) An insurance identification card, [48 FR 52683, Nov. 21, 1983, as amended at 50 binder, or other document issued by an FR 7062, Feb. 20, 1985; 54 FR 49092, Nov. 29, authorized insurer which specifies both 1989; 60 FR 38743, July 28, 1995] the effective date and the expiration date of the temporary insurance cov- § 387.33 Financial responsibility, min- erage authorized by this exception. imum levels. Mexican motor carriers insured under The minimum levels of financial re- this exception are also exempt from sponsibility referred to in § 387.31 of

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this subpart are hereby prescribed as uity brought in any State in which the follows: motor carrier operates; or (c) Legally authorized to issue such SCHEDULE OF LIMITS policies or bonds in any State of the Public Liability United States and eligible as an excess or surplus lines insurer in any State in For-hire motor carriers of passengers oper- which business is written, and is will- ating in interstate or foreign commerce. ing to designate a person upon whom Effective dates process, issued by or under the authority of any court having jurisdiction of Vehicle seating capacity Nov. 19, Nov. 19, 1983 1985 the subject matter, may be served in any proceeding at law or equity (1) Any vehicle with a seating ca- brought in any State in which the pacity of 16 passengers or more $2,500,000 $5,000,000 motor carrier operates.. (2) Any vehicle with a seating ca- 1 pacity of 15 passengers or less 750,000 1,500,000 § 387.37 Fiduciaries. 1 Except as provided in ¤ 387.27(b). The coverage of fiduciaries shall at- § 387.35 State authority and designa- tach at the moment of succession of tion of agent. such fiduciaries. A policy of insurance or surety bond § 387.39 Forms. does not satisfy the financial responsi- Endorsements for policies of insur- bility requirements of this subpart un- ance (Illustration I) and surety bonds less the insurer or surety furnishing (Illustration II) must be in the form the policy or bond is— prescribed by the FMCSA and approved (a) Legally authorized to issue such by the OMB. Endorsements to policies policies or bonds in each State in of insurance and surety bonds shall which the motor carrier operates, or specify that coverage thereunder will (b) Legally authorized to issue such remain in effect continuously until ter- policies or bonds in the State in which minated, as required in § 387.31 of this the motor carrier has its principal subpart. The continuous coverage replace of business or domicile, and is quirement does not apply to Mexican willing to designate a person upon motor carriers insured under whom process, issued by or under the § 387.31(b)(3) of this subpart. The en- authority of any court having jurisdic- dorsement and surety bond shall be tion of the subject matter, may be issued in the exact name of the motor served in any proceeding at law or eq- carrier.

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(Approved by the Office of Management and Budget under control number 2125–0518) [48 FR 52683, Nov. 21, 1983, as amended at 49 FR 22326, May 29, 1984; 54 FR 49093, Nov. 29, 1989]

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§ 387.41 Violation and penalty. nance or use of motor vehicles in trans- Any person (except an employee who portation subject to Subtitle IV, part acts without knowledge) who know- B, chapter 135 of title 49 of the U.S. ingly violates the rules of this subpart Code, or for loss of or damage to prop- shall be liable to the United States for erty of others, or, in the case of motor civil penalty of no more than $11,000 for carriers of property operating freight each violation, and if any such viola- vehicles described in § 387.303(b)(2) of tion is a continuing one, each day of this part, for environmental restora- violation will constitute a separate of- tion. fense. The amount of any such penalty (2) Motor Carriers of property which shall be assessed by the Administrator are subject to the conditions set forth or his/her designee, by written notice. in paragraph (a)(1) of this section and In determining the amount of such transport the commodities described in penalty, the Administrator or his/her § 387.303(b)(2), are required to obtain se- designee shall take into account the curity in the minimum limits pre- nature, circumstances, extent, the scribed in § 387.303(b)(2). gravity of the violation committed (b) Common carriers-cargo insurance; and, with respect to the person found exempt commodities. No common carrier to have committed such violation, the by motor vehicle subject to Subtitle degree of culpability, any history of IV, part B, chapter 135 of title 49 of the prior offenses, ability to pay, effect on U.S. Code nor any foreign (Mexican) ability to continue to do business, and common carrier of exempt commod- such other matters as justice may re- ities shall engage in interstate or for- quire. eign commerce, nor shall any certificate be issued to such a carrier or re- [53 FR 47543, Nov. 23, 1988] main in force unless and until there shall have been filed with and accepted Subpart C—Surety Bonds and Poli- by the FMCSA, a surety bond, certifi- cies of Insurance for Motor cate of insurance, proof of qualifica- Carriers and Property Brokers tions as a self-insurer, or other securities or agreements in the amounts pre- CROSS REFERENCE: Prescribed forms relat- scribed in § 387.303, conditioned upon ing to this part are listed in 49 CFR part 1003. such carrier making compensation to shippers or consignees for all property SOURCE: 32 FR 20032, Dec. 20, 1967, unless otherwise noted. Redesignated at 61 FR 54709, belonging to shippers or consignees and Oct. 21, 1996. coming into the possession of such carrier in connection with its transpor- § 387.301 Surety bond, certificate of in- tation service: Provided, That the re- surance, or other securities. quirements of this paragraph shall not (a) Public liability. (1) No common or apply in connection with the transpor- contract carrier or foreign (Mexican) tation of the following commodities: motor private carrier or foreign motor Agricultural ammonium nitrate. carrier transporting exempt commod- Agricultural nitrate of soda. ities subject to Subtitle IV, part B, Anhydrous ammonia—used as a fertilizer chapter 135 of title 49 of the U.S. Code only. shall engage in interstate or foreign Ashes, wood or coal. commerce, and no certificate or permit Bituminous concrete (also known as black- shall be issued to such a carrier or re- top or amosite), including mixtures of asphalt paving. main in force unless and until there Cement, dry, in containers or in bulk. shall have been filed with and accepted Cement, building blocks. by the FMCSA surety bonds, certifi- Charcoal. cates of insurance, proof of qualifica- Chemical fertilizer. tions as self-insurer, or other securities Cinder blocks. or agreements, in the amounts pre- Cinders, coal. scribed in § 387.303, conditioned to pay Coal. Coke. any final judgment recovered against Commercial fertilizer. such motor carrier for bodily injuries Concrete materials and added mixtures. to or the death of any person resulting Corn cobs. from the negligent operation, mainte- Cottonseed hulls.

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Crushed stone. Wood chips, not processed. Drilling salt. Wooden pallets, unassembled. Dry fertilizer. Wreck or disabled motor vehicles. Fish scrap. Other materials or commodities of low Fly ash. value, upon specific application to and ap- Forest products; viz: Logs, billets, or bolts, proval by the FMCSA. native woods, Canadian wood or Mexican pine; pulpwood, fuel wood, wood kindling; (c) Continuing compliance required. and wood sawdust or shavings (shingle Such security as is accepted by the tow) other than jewelers’ or paraffined. FMCSA in accordance with the require- Foundry and factory sweepings. ments of section 13906 of title 49 of the Garbage. U.S. Code, shall remain in effect at all Gravel, other than bird gravel. Hardwood and parquet flooring. times. Haydite. [48 FR 51780, Nov. 14, 1983, as amended at 60 Highway construction materials, when FR 63981, Dec. 13, 1995; 62 FR 49941, Sept. 24, transported in dump trucks and unloaded 1997] at destination by dumping. Ice. Iron ore. § 387.303 Security for the protection of Lime and limestone. the public: Minimum limits. Liquid fertilizer solutions, in bulk, in tank (a) Definitions. (1) Primary security vehicles. means public liability coverage pro- Lumber. vided by the insurance or surety com- Manure. Meat scraps. pany responsible for the first dollar of Mud drilling salt. coverage. Ores, in bulk, including ore concentrates. (2) Excess security means public liabil- Paving materials, unless contain oil hauled ity coverage above the primary secu- in tank vehicles. rity, or above any additional under- Peat moss. lying security, up to and including the Peeler cores. required minimum limits set forth in Plywood. Poles and piling, other than totem poles. paragraph (b)(2) of this section. Potash, used as commercial fertilizer. (b)(1) Motor carriers subject to Pumice stone, in bulk in dump vehicles. § 387.301(a)(1) are required to have secu- Salt, in bulk or in bags. rity for the required minimum limits Sand, other than asbestos, bird, iron, mona- as follows: zite, processed, or tobacco sand. (i) Small freight vehicles: Sawdust. Scoria stone. Transportation pro- Minimum Scrap iron. Kind of equipment vided limits Scrap steel. Shells, clam, mussel, or oyster. Fleet including only ve- Commodities not sub- $300,000 Slag, other than slag with commercial value hicles under 10,000 ject to for the further extraction of metals. pounds GVWR. ¤ 387.303(b)(2). Slag, derived aggregates—cinders. Slate, crushed or scrap. (ii) Passenger carriers Slurry, as waste material. Soil, earth or marl, other than infusorial, di- KIND OF EQUIPMENT atomaceous, tripoli, or inoculated soil or earth. Effective dates Stone, unglazed and unmanufactured, includ- Vehicle seating capacity Nov. 19, Nov. 19, ing ground agricultural limestone. 1983 1985 Sugar beet pulp. Sulphate of ammonia, bulk, used as fer- (1) Any vehicle with a seating tilizer. capacity of 16 passengers or Surfactants. more ...... $2,500,000 $5,000,000 (2) Any vehicle with a seating Trap rock. capacity of 15 passengers or Treated poles. less ...... 750,000 1,500,000 Veneer. Volcanic scoria. (2) Motor carriers subject to Waste, hazardous and nonhazardous, transported solely for purposes of disposal. § 387.301(a)(2) are required to have secu- Water, other than mineral or prepared— rity for the required minimum limits water. as follows:

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July 1, July 1, Kind of equipment Commodity transported 1983* 1984*

(a) Freight Vehicles of Property (non-hazardous) ...... $500,000 $750,000 10,000 Pounds or More GVWR. (b) Freight Vehicles of Hazardous substances, as defined in ¤ 171.8, transported in cargo tanks, 1,000,000 5,000,000 10,000 Pounds or portable tanks, or hopper-type vehicles with capacities in excess of More GVWR. 3,500 water gallons, or in bulk Class A or B explosives, poison gas (Poison A) liquefied compressed gas or compressed gas, or highway route controlled quantity radioactive materials as defined in ¤ 173.455. (c) Freight Vehicles of Oil listed in ¤ 172.101; hazardous waste, hazardous materials and haz- 500,000 1,000,000 10,000 Pounds or ardous substances defined in ¤ 171.8 and listed in ¤ 172.101, but not More GVWR. mentioned in (b) above or (d) below. (d) Freight Vehicles Any quantity of Class A or B explosives; any quantity of poison gas 1,000,000 5,000,000 Under 10,000 Pounds (Poison A); or highway route controlled quantity radioactive materials GVWR. as defined in ¤ 173.455.

*NOTE: The effective date of the current required minimum limit in ¤ 387.303(b)(2) was January 6, 1983, in accordance with the requirements of Pub. L. 97Ð424, 96 Stat. 2097.

(3) Motor carriers subject to the min- and the reference to cancellation no- imum limits governed by this section, tice at § 387.313(d) are not applicable to which are also subject to Department these carriers. of Transportation limits requirements, (c) Motor common carriers: Cargo liabil- are at no time required to have secu- ity. Security required to compensate rity for more than the required min- shippers or consignees for loss or dam- imum limits established by the Sec- age to property belonging to shippers retary of Transportation in the appli- or consignees and coming into the pos- cable provisions of 49 CFR Part 387— session of motor carriers in connection Minimum Levels of Financial Respon- with their transportation service, (1) sibility for Motor Carriers. for loss of or damage to property car- (4) Foreign motor carriers and foreign ried on any one motor vehicle—$5,000, motor private carriers. Foreign motor (2) for less of or damage to or aggregate carriers and foreign motor private car- of losses or damages of or to property riers (Mexican), subject to the require- occurring at any one time and place— ments of 49 U.S.C. 13902(c) and 49 CFR $10,000. part 368 regarding obtaining certificates of registration from the FMCSA, [47 FR 55944, Dec. 14, 1982, as amended at 48 must meet our minimum financial re- FR 43333, Sept. 23, 1983; 48 FR 45775, Oct. 7, 1983; 48 FR 51780, Nov. 14, 1983; 49 FR 1991, sponsibility requirements by obtaining Jan. 17, 1984; 49 FR 27767, July 6, 1984; 50 FR insurance coverage, in the required 40030, Oct. 1, 1985; 53 FR 36984, Sept. 23, 1988; amounts, for periods of 24 hours or 54 FR 52034, Dec. 20, 1989; 55 FR 47338, Nov. 13, longer, from insurance or surety com- 1990; 62 FR 49941, Sept. 24, 1997] panies, that meet the requirements of 49 CFR 387.315. These carriers must § 387.305 Combination vehicles. have available for inspection, in each The following combinations will be vehicle operating in the United States, regarded as one motor vehicle for pur- copies of the following documents: poses of this part, (a) a tractor and (i) The certificate of registration; trailer or semitrailer when the tractor (ii) The required insurance endorse- is engaged solely in drawing the trailer ment (Form MCS–90); and or semitrailer, and (b) a truck and (iii) An insurance identification card, trailer when both together bear a sin- binder, or other document issued by an gle load. authorized insurer which specifies both the effective date and the expiration § 387.307 Property broker surety bond date of the insurance coverage. or trust fund. Notwithstanding the provisions of (a) Security. A property broker must § 387.301(a)(1), the filing of evidence of have a surety bond or trust fund in ef- insurance is not required as a condition fect for $10,000. The FMCSA will not to the issuance of a certificate of reg- issue a property broker license until a istration. Further, the reference to surety bond or trust fund for the full continuous coverage at § 387.313(a)(6) limits of liability prescribed herein is

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in effect. The broker license shall re- bonds and trust fund agreements shall main valid or effective only as long as specify that coverage thereunder will a surety bond or trust fund remains in remain in effect continuously until ter- effect and shall ensure the financial re- minated as herein provided. sponsibility of the broker. (i) Cancellation notice. The surety (b) Evidence of Security. Evidence of a bond and the trust fund agreement surety bond must be filed using the may be cancelled as only upon 30 days’ FMCSA’s prescribed Form BMC 84. Evi- written notice to the FMCSA, on pre- dence of a trust fund with a financial scribed Form BMC 36, by the principal institution must be filed using the or surety for the surety bond, and on FMCSA’s prescribed Form BMC 85. The prescribed Form BMC 85, by the surety bond or the trust fund shall en- trustor/broker or trustee for the trust sure the financial responsibility of the fund agreement. The notice period broker by providing for payments to commences upon the actual receipt of shippers or motor carriers if the broker the notice at the FMCSA’s Wash- fails to carry out its contracts, agree- ington, DC office. ments, or arrangements for the sup- (ii) Termination by replacement. plying of transportation by authorized Broker surety bonds or trust fund motor carriers. agreements which have been accepted (c) Financial Institution—when used in by the FMCSA under these rules may this section and in forms prescribed be replaced by other surety bonds or under this section, where not otherwise trust fund agreements, and the liabil- distinctly expressed or manifestly in- ity of the retiring surety or trustee compatible with the intent thereof, under such surety bond or trust fund shall mean—Each agent, agency, agreements shall be considered as hav- branch or office within the United ing terminated as of the effective date States of any person, as defined by the of the replacement surety bond or trust ICC Termination Act, doing business in fund agreement. However, such termi- one or more of the capacities listed nation shall not affect the liability of below: the surety or the trustee hereunder for (1) An insured bank (as defined in the payment of any damages arising as section 3(h) of the Federal Deposit In- the result of contracts, agreements or surance Act (12 U.S.C. 1813(h)); arrangements made by the broker for (2) A commercial bank or trust com- the supplying of transportation prior pany; to the date such termination becomes (3) An agency or branch of a foreign effective. bank in the United States; (3) Filing and copies. Broker surety (4) An insured institution (as defined bonds and trust fund agreements must in section 401(a) of the National Hous- be filed with the FMCSA in duplicate. ing Act (12 U.S.C. 1724(a)); [53 FR 10396, Mar. 31, 1988] (5) A thrift institution (savings bank, building and loan association, credit § 387.309 Qualifications as a self-in- union, industrial bank or other); surer and other securities or agree- (6) An insurance company; ments. (7) A loan or finance company; or (a) As a self-insurer. The FMCSA will (8) A person subject to supervision by consider and will approve, subject to any state or federal bank supervisory appropriate and reasonable conditions, authority. the application of a motor carrier to (d) Forms and Procedures—(1) Forms qualify as a self-insurer, if the carrier for broker surety bonds and trust agree- furnishes a true and accurate statements. Form BMC–84 broker surety ment of its financial condition and bond will be filed with the FMCSA for other evidence that establishes to the the full security limits under sub- satisfaction of the FMCSA the ability section (a); or Form BMC–85 broker of the motor carrier to satisfy its obli- trust fund agreement will be filed with gation for bodily injury liability, prop- the FMCSA for the full security limits erty damage liability, or cargo liabil- under paragraph (a) of this section. ity. Application Guidelines: In addition (2) Broker surety bonds and trust fund to filing Form B.M.C. 40, applicants for agreements in effect continuously. Surety authority to self-insure against bodily

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injury and property damage claims § 387.311 Bonds and certificates of in- should submit evidence that will allow surance. the FMCSA to determine: (a) Public liability. Each Form BMC 82 (1) The adequacy of the tangible net surety bond filed with the FMCSA worth of the motor carrier in relation must be for the full limits of liability to the size of operations and the extent required under § 387.303(b)(1). Form of its request for self-insurance author- MCS–82 surety bonds and other forms ity. Applicant should demonstrate that of similar import prescribed by the De- it will maintain a net worth that will partment of Transportation, may be ensure that it will be able to meet its aggregated to comply with the min- statutory obligations to the public to imum security limits required under indemnify all claimants in the event of § 387.303(b)(1) or § 387.303(b)(2). Each loss. Form BMC 91 certificate of insurance (2) The existence of a sound self-insur- filed with the FMCSA will always rep- ance program. Applicant should dem- resent the full security minimum lim- onstrate that it has established, and its required for the particular carrier, will maintain, an insurance program while it remains in force, under that will protect the public against all § 387.303(b)(1) or § 387.303(b)(2), which- claims to the same extent as the min- ever is applicable. Any previously exe- imum security limits applicable to ap- cuted Form BMC 91 filed before the plicant under § 387.303 of this part. Such current revision which is left on file a program may include, but not be lim- with the FMCSA after the effective ited to, one or more of the following: date of this regulation, and not canceled within 30 days of that date will be Irrevocable letters of credit; irrev- deemed to certify the same coverage ocable trust funds; reserves; sinking limits as would the filing of a revised funds; third-party financial guarantees, Form BMC 91. Each Form BMC 91X cer- parent company or affiliate sureties; tificate of insurance filed with the excess insurance coverage; or other FMCSA will represent the full security similar arrangements. limits under § 387.303(b)(1) or (3) The existence of an adequate safety § 387.303(b)(2) or the specific security program. Applicant must submit evi- limits of coverage as indicated on the dence of a current ‘‘satisfactory’’ safe- face of the form. If the filing reflects ty rating by the United States Depart- aggregation, the certificate must show ment of Transportation. Non-rated car- clearly whether the insurance is pri- riers need only certify that they have mary or, if excess coverage, the not been rated. Applications by car- amount of underlying coverage as well riers with a less than satisfactory rat- as amount of the maximum limits of ing will be summarily denied. Any self- coverage.* Each Form BMC 91MX cer- insurance authority granted by the tificate of insurance filed with the FMCSA will automatically expire 30 FMCSA will represent the security days after a carrier receives a less than limits of coverage as indicated on the satisfactory rating from DOT. face of the form. The Form BMC 91MX (4) Additional information. Applicant must show clearly whether the insur- must submit such additional informa- ance is primary or, if excess coverage, tion to support its application as the the amount of underlying coverage as FMCSA may require. well as amount of the maximum limits (b) Other securities or agreements. The of coverage. FMCSA also will consider applications (b) Cargo Liability. Each form B.M.C. for approval of other securities or 83 surety bond filed with the FMCSA agreements and will approve any such must be for the full limits of liability application if satisfied that the secu- required under § 387.303(c). Each Form rity or agreement offered will afford the security for protection of the pub- *NOTE: Aggregation to meet the require- lic contemplated by 49 U.S.C. 13906. ment of § 387.303(b)(1) will not be allowed until the completion of our rulemaking in Ex [48 FR 51780, Nov. 14, 1983 and 51 FR 15008, Parte No. MC–5 (Sub-No. 2), Motor Carrier and Apr. 22, 1986, as amended at 52 FR 3815, Feb. Freight Forwarder Insurance Procedures and 6, 1987; 62 FR 49941, Sept. 24, 1997] Minimum Amounts of Liability.

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B.M.C. 34 certificate of insurance filed Department of Transportation pre- with the FMCSA will represent the full scribed form endorsement and Form security limits under § 387.303(c) or the BMC 91X certificate is required of each specific security limits of coverage as insurer. When insurance is provided by indicated on the face of the form. If the more than one insurer to aggregate filing reflects aggregation, the certifi- coverage for security limits under cate must show clearly whether the in- § 387.303(c) a separate Form BMC 32 en- surance is primary or, if excess cov- dorsement and Form BMC 34 certifi- erage, the amount of underlying cov- cate of insurance is required for each erage as well as amount of the max- insurer. imum limits of coverage. For aggregation of insurance for for- (c) Each policy of insurance in con- eign motor private carriers of nonhaz- nection with the certificate of insur- ardous commodities to cover security ance which is filed with the FMCSA, limits under § 387.303(b)(4), a separate shall be amended by attachment of the Form BMC 90 with the specific appropriate endorsement prescribed by amounts of underlying and limits of the FMCSA and the certificate of in- coverage shown thereon or appended surance filed must accurately reflect thereto, or Department of Transpor- that endorsement. tation prescribed form endorsement, [47 FR 55944, Dec. 14, 1982, as amended at 48 and Form BMC 91MX certificate is re- FR 43332, Sept. 23, 1983; 48 FR 51781, Nov. 14, quired for each insurer. 1983; 50 FR 40030, Oct. 1, 1985; 62 FR 49941, (3) Use of Certificates and Endorsements Sept. 24, 1997] in BMC Series. Form BMC 91 certificates § 387.313 Forms and procedures. of insurance will be filed with the FMCSA for the full security limits (a) Forms for endorsements, certificates under § 387.303 (b)(1) or (b)(2). of insurance and others. (1) In form pre- Form BMC 91X certificate of insurance scribed. Endorsements for policies of in- will be filed to represent full coverage surance and surety bonds, certificates or any level of aggregation for the se- of insurance, applications to qualify as a self-insurer, or for approval of other curity limits under § 387.303 (b)(1) or securities or agreements, and notices (b)(2). of cancellation must be in the form Form BMC 90 endorsement will be used prescribed and approved by the with each filing of Form BMC 91 or FMCSA. Form 91X certificate with the FMCSA (2) Aggregation of Insurance.** When which certifies to coverage not gov- insurance is provided by more than one erned by the requirements of the De- insurer in order to aggregate security partment of Transportation. Form BMC limits for carriers operating only 32 endorsement and Form BMC 34 cer- freight vehicles under 10,000 pounds tificate of insurance and Form BMC 83 Gross Vehicle Weight Rating, as de- surety bonds are used for the limits of fined in § 387.303(b)(1), a separate Form cargo liability under § 387.303(c). BMC 90, with the specific amounts of Form BMC 91MX certificate of insur- underlying and limits of coverage ance will be filed to represent any level shown thereon or appended thereto, of aggregation for the security limits and Form BMC 91X certificate is re- under § 387.303(b)(4). quired of each insurer. (4) Use of Endorsements in MCS Series. For aggregation of insurance for all When Security limits certified under other carriers to cover security limits § 387.303 (b)(1) or (b)(2) involves cov- under § 387.303 (b)(1) or (b)(2), a separate erage also required by the Department of Transportation a Form MCS endorse- **NOTE: See NOTE for Rule 387.311. Also, it ment prescribed by the Department of should be noted that DOT is considering pre- Transportation such as, and including, scribing adaptations of the Form MCS 90 en- the Form MCS 90 endorsement is re- dorsement and the Form MCS 82 surety bond quired. for use by passenger carriers and Rules §§ 387.311 and 387.313 have been written suffi- (5) Surety bonds. When surety bonds ciently broad to provide for this contingency are used rather than certificates of in- when new forms are prescribed by that Agen- surance, Form BMC 82 is required for cy. the security limits under § 387.303(b)(1)

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not subject to regulation by the De- FMCSA under these rules may be re- partment of Transportation, and Form placed by other certificates of insur- MCS 82, or any form of similar import ance, surety bonds or other security, prescribed by the Department of Trans- and the liability of the retiring insurer portation, is used for the security lim- or surety under such certificates of in- its subject also to minimum coverage surance or surety bonds shall be con- requirements of the Department of sidered as having terminated as of the Transportation. effective date of the replacement cer- (6) Surety bonds and certificates in ef- tificate of insurance, surety bond or fect continuously. Surety bonds and cer- other security, provided the said re- tificates of insurance shall specify that placement certificate, bond or other se- coverage thereunder will remain in ef- curity is acceptable to the FMCSA fect continuously until terminated as under the rules and regulations in this herein provided, except: (1) When filed expressly to fill prior gaps or lapses in part. coverage or to cover grants of emer- [47 FR 55944, Dec. 14, 1982, as amended at 48 gency temporary authority of unusu- FR 43334, Sept. 23, 1983; 48 FR 51781, Nov. 14, ally short duration and the filing clear- 1983; 50 FR 40030, Oct. 1, 1985; 51 FR 34623, ly so indicates, or (2) in special or un- Sept. 30, 1986; 62 FR 49941, Sept. 24, 1997] usual circumstances, when special permission is obtained for filing certifi- § 387.315 Insurance and surety compa- cates of insurance or surety bonds on nies. terms meeting other particular needs A certificate of insurance or surety of the situation. bond will not be accepted by the (b) Filing and copies. Certificates of FMCSA unless issued by an insurance insurance, surety bonds, and notices of or surety company that is authorized cancellation must be filed with the (licensed or admitted) to issue bonds or FMCSA in triplicate. underlying insurance policies: (c) Name of insured. Certificates of in- (a) In each state in which the motor surance and surety bonds shall be carrier is authorized by the FMCSA to issued in the full and correct name of operate, or the individual, partnership, corporation or other person to whom the cer- (b) In the state in which the motor tificate, permit, or license is, or is to carrier has its principal place of busi- be, issued. In the case of a partnership, ness or domicile, and will designate in all partners shall be named. writing upon request by the FMCSA, a (d) Cancellation notice. Except as pro- person upon whom process, issued by or vided in paragraph (e) of this section, under the authority of a court of com- surety bonds, certificates of insurance petent jurisdiction, may be served in and other securities or agreements any proceeding at law or equity shall not be cancelled or withdrawn brought in any state in which the car- until 30 days after written notice has rier operates, or been submitted to the FMCSA at its of- (c) In any state, and is eligible as an fices in Washington, DC, on the pre- excess or surplus lines insurer in any scribed form (Form BMC–35, Notice of state in which business is written, and Cancellation Motor Carrier Policies of will make the designation of process Insurance under 49 U.S.C. 13906, and agent described in paragraph (b) of this BMC–36, Notice of Cancellation Motor section. Carrier and Broker Surety Bonds, as appropriate) by the insurance com- [56 FR 28111, June 19, 1991] pany, surety or sureties, motor carrier, broker or other party thereto, as the § 387.317 Refusal to accept, or revoca- case may be, which period of thirty (30) tion by the FMCSA of surety bonds, etc. days shall commence to run from the date such notice on the prescribed form The FMCSA may, at any time, refuse is actually received by the FMCSA. to accept or may revoke its acceptance (e) Termination by replacement. Cer- of any surety bond, certificate of insur- tificates of insurance or surety bonds ance, qualifications as a self-insurer, or which have been accepted by the other securities or agreements if, in its

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judgment such security does not com- shall have been filed with and accepted ply with these sections or for any rea- by the FMCSA a certificate of insur- son fails to provide satisfactory or ade- ance, surety bond, proof of qualifica- quate protection for the public. Rev- tions as a self-insurer, or other securi- ocation of acceptance of any certificate ties or agreements in the amount pre- of insurance, surety bond or other se- scribed in § 387.303(b), conditioned to curity shall not relieve the motor car- pay any final judgment recovered rier from compliance with § 387.301(d). against such motor carrier for bodily [47 FR 55945, Dec. 14, 1982, as amended at 62 injuries to or the death of any person FR 49942, Sept. 24, 1997] resulting from the negligent operation, maintenance, or use of motor vehicles § 387.319 Fiduciaries. in transportation between places in a (a) Definitions. The terms ‘‘insured’’ foreign country or between a place in and ‘‘principal’’ as used in a certificate one foreign country and a place in an- of insurance, surety bond, and notice of other foreign country, insofar as such cancellation, filed by or for a motor transportation takes place in the carrier, include the motor carrier and United States, or for loss of or damage its fiduciary as of the moment of suc- to property of others. The security for cession. The term ‘‘fiduciary’’ means the protection of the public required by any person authorized by law to collect this section shall be maintained in ef- and preserve property of incapacitated, fect at all times and shall be subject to financially disabled, bankrupt, or de- the provisions of §§ 387.309 through ceased holders of operating rights, and 387.319. The requirements of § 387.315(a) assignees of such holders. shall be satisfied if the insurance or (b) Insurance coverage in behalf of fi- surety company, in addition to having duciaries to apply concurrently. The cov- been approved by the FMCSA, is le- erage furnished under the provisions of gally authorized to issue policies or this section on behalf of fiduciaries surety bonds in at least one of the shall not apply subsequent to the effec- States in the United States, or one of tive date of other insurance, or other the Provinces in Canada, and has filed security, filed with and approved by with the FMCSA the name and address the FMCSA in behalf of such fidu- of a person upon whom legal process ciaries. After the coverage provided in may be served in each State in or this section shall have been in effect through which the motor carrier oper- thirty (30) days, it may be cancelled or ates. Such designation may from time withdrawn within the succeeding pe- to time be changed by like designation riod of thirty (30) days by the insurer, similarly filed, but shall be maintained the insured, the surety, or the prin- during the effectiveness of any certifi- cipal upon ten (10) days’ notice in writ- cate of insurance or surety bond issued ing to the FMCSA at its office in Wash- by the company, and thereafter with ington, DC, which period of ten (10) respect to any claims arising during days shall commence to run from the the effectiveness of such certificate or date such notice is actually received by bond. The term ‘‘motor carrier’’ as the FMCSA. After such coverage has used in this section shall not include been in effect for a total of sixty (60) private carriers or carriers operating days, it may be cancelled or withdrawn under the partial exemption from regu- only in accordance with § 1043.7. lation in 49 U.S.C. 13503 and 13506. [32 FR 20032, Dec. 20, 1967, as amended at 47 [47 FR 55945, Dec. 14, 1982, as amended at 62 FR 49596, Nov. 1, 1982; 47 FR 55945, Dec. 14, FR 49942, Sept. 24, 1997] 1982; 55 FR 11197, Mar. 27, 1990] § 387.323 Electronic filing of surety § 387.321 Operations in foreign com- bonds, trust fund agreements, cer- merce. tificates of insurance and cancella- No motor carrier may operate in the tions. United States in the course of trans- (a) Insurers may, at their option and portation between places in a foreign in accordance with the requirements country or between a place in one for- and procedures set forth in paragraphs eign country and a place in another (a) through (d) of this section, file foreign country unless and until there forms BMC 34, BMC 35, BMC 36, BMC

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82, BMC 83, BMC 84, BMC 85, BMC 91, (c) Filings may be transmitted online and BMC 91X electronically, in lieu of via the Internet at: http://fhwa– using the prescribed printed forms. li.volpe.dot.gov or via American Stand- (b) Each insurer must obtain author- ard Code Information Interchange ization to file electronically by reg- (ASCII). All ASCII transmission must istering with the FMCSA. An indi- be in fixed format, i.e., all records must vidual account number and password have the same number of fields and for computer access will be issued to same length. The record layouts for each registered insurer. ASCII electronic transactions are described in the following table:

ELECTRONIC INSURANCE FILING TRANSACTIONS

Required F=filing Start Field name Number of positions Description C=cancel field End field B=both

Record type ...... 1 Numeric ...... 1=Filing B11 2=Cancellation Insurer number ...... 8 Text ...... FMCSA Assigned Insurer Number B29 (Home Office) With Suffix (Issuing Office), If Different, e.g. 12345Ð01. Filing type ...... 1 Numeric ...... 1 = BI&PD B1010 2 = Cargo 3 = Bond 4 = Trust Fund FMCSA docket number 8 Text ...... FMCSA Assigned MC or FF Num- B1118 ber, e.g., MC000045. Insured legal name ...... 120 Text ...... Legal Name ...... B 19 138 Insured d/b/a name ...... 60 Text...... Doing Business As Name If Dif- B 139 198 ferent From Legal Name. Insured address ...... 35 Text ...... Either street or mailing address ...... B 199 233 Insured city ...... 30 Text ...... B 234 263 Insured state ...... 2 Text ...... B 264 265 Insured zip code ...... 9 Numeric (Do not include dash if using 9 digit B 266 274 code). Insured country ...... 2 Text ...... (Will default to US) ...... B 275 276 Form code ...... 10 Text ...... BMCÐ91, BMCÐ91X, BMCÐ34, B 277 286 BMCÐ35, etc. Full, primary or excess 1 Text ...... If BMCÐ91X, P or E = indicator of F 287 287 coverage. primary or excess policy; 1 = Full under ¤ 387.303(b)(1); 2 = Full under ¤ 387.303(b)(2). Limit of liability ...... 5 Numeric ...... $ in Thousands ...... F 288 292 Underlying limit of liabil- 5 Numeric ...... $ in Thousands (will default to $000 F 293 297 ity. if Primary). Effective date ...... 8 Text ...... MM/DD/YY Format for both Filing B 298 305 or Cancellation. Policy number ...... 25 Text ...... Surety companies may enter bond B 306 330 number.

(d) All registered insurers agree to Subpart D—Surety Bonds and Poli- furnish upon request to the FMCSA a cies of Insurance for Freight duplicate original of any policy (or Forwarders policies) and all endorsements, surety bond, trust fund agreement, or other filing. SOURCE: 55 FR 11201, Mar. 27, 1990, unless otherwise noted. Redesignated at 61 FR 54710, [60 FR 16810, Apr. 3, 1995, as amended at 62 Oct. 21, 1996. FR 49942, Sept. 24, 1997; 66 FR 49873, Oct. 1, 2001] § 387.401 Definitions. (a) Freight forwarder means a person holding itself out to the general public (other than as an express, pipeline,

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rail, sleeping car, motor, or water car- ated by or under its control in per- rier) to provide transportation of prop- forming such service. erty for compensation in interstate [55 FR 11201, Mar. 27, 1990. Redesignated at 61 commerce, and in the ordinary course FR 54710, Oct. 21, 1996, as amended at 62 FR of its business: 49942, Sept. 24, 1997] (1) Performs or provides for assem- bling, consolidating, break-bulk, and § 387.405 Limits of liability. distribution of shipments; and The minimum amounts for cargo and (2) Assumes responsibility for trans- public liability security are identical portation from place of receipt to des- to those prescribed for motor carriers tination; and at 49 CFR 387.303. (3) Uses for any part of the transportation a carrier subject to FMCSA ju- [55 FR 11201, Mar. 27, 1990. Redesignated at 61 risdiction. FR 54710, Oct. 21, 1996, as amended at 62 FR (b) Household goods freight forwarder 49942, Sept. 24, 1997] (HHGFF) means a freight forwarder of § 387.407 Surety bonds and certificates household goods, unaccompanied bag- of insurance. gage, or used automobiles. (c) Motor vehicle means any vehicle, (a) The limits of liability under machine, tractor, trailer, or § 387.405 may be provided by aggrega- semitrailer propelled or drawn by me- tion under the procedures at 49 CFR chanical power and used to transport part 387, subpart C. property, but does not include any ve- (b) Each policy of insurance used in hicle, locomotive, or car operated ex- connection with a certificate of insur- clusively on a rail or rails. The fol- ance filed with the FMCSA shall be lowing combinations will be regarded amended by attachment of the appro- as one motor vehicle: priate endorsement prescribed by the (1) A tractor that draws a trailer or FMCSA (or the Department of Trans- semitrailer; and portation, where applicable). (2) A truck and trailer bearing a sin- [55 FR 11201, Mar. 27, 1990. Redesignated at 61 gle load. FR 54710, Oct. 21, 1996, as amended at 62 FR 49942, Sept. 24, 1997] § 387.403 General requirements. (a) Cargo. A freight forwarder § 387.409 Insurance and surety compa- (including a HHGFF) may not operate nies. until it has filed with the FMCSA an A certificate of insurance or surety approriate surety bond, certificate of bond will not be accepted by the insurance, qualifications as a self-in- FMCSA unless issued by an insurance surer, or other securities or agree- or surety company that is authorized ments, in the amounts prescribed at (licensed or admitted) to issue bonds or § 387.405, for loss of or damage to prop- underlying insurance policies: erty. (a) In each state in which the freight (b) Public liability. A HHGFF may not forwarder is authorized by the FMCSA perform transfer, collection, and deliv- to perform service, or ery service until it has filed with the (b) In the state in which the freight FMCSA an appropriate surety bond, forwarder has its principal place of certificate of insurance, qualifications business or domicile, and will des- as a self-insurer, or other securities or ignate in writing upon request by the agreements, in the amounts prescribed FMCSA, a person upon whom process, at § 387.405, conditioned to pay any issued by or under the authority of a final judgment recovered against such court of competent jurisdiction, may HHGFF for bodily injury to or the be served in any proceeding at law or death of any person, or loss of or dam- equity brought in any state in which age to property (except cargo) of oth- the freight forwarder performs service; ers, or, in the case of freight vehicles or described at 49 CFR 387.303(b)(2), for en- (c) In any state, and is eligible as an vironmental restoration, resulting excess or surplus lines insurer in any from the negligent operation, mainte- state in which business is written, and nance, or use of motor vehicles oper- will make the designation of process

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agent prescribed in paragraph (b) of ment’s effective date, if acceptable to this section. the FMCSA. [56 FR 28111, June 19, 1991] [55 FR 11201, Mar. 27, 1990. Redesignated at 61 FR 54710, Oct. 21, 1996, as amended at 62 FR § 387.411 Qualifications as a self-in- 49942, Sept. 24, 1997] surer and other securities or agreements. § 387.415 Acceptance and revocation (a) Self-insurer. The FMCSA will ap- by the FMCSA. prove the application of a freight The FMCSA may at any time refuse fowarder to qualify as a self-insurer if to accept or may revoke its acceptance it is able to meet its obligations for of any surety bond, certificate of insur- bodily-injury, property-damage, and ance, qualifications as a self-insurer, or cargo liability without adversely af- other security or agreement that does fecting its business. not comply with these rules or fails to (b) Other securities and agreements. provide adequate public protection. The FMCSA will grant applications for approval of other securities and agree- § 387.417 Fiduciaries. ments if the public will be protected as contemplated by 49 U.S.C. 13906(c). (a) Interpretations. The terms ‘‘insured’’ and ‘‘principal’’ as used in a [55 FR 11201, Mar. 27, 1990. Redesignated at 61 certificate of insurance, surety bond, FR 54710, Oct. 21, 1996, as amended at 62 FR 49942, Sept. 24, 1997] and notice of cancellation, filed by or for a freight forwarder, include the § 387.413 Forms and procedure. freight forwarder and its fiduciary (as (a) Forms. Endorsements for policies defined at 49 CFR 387.319(a)) as of the of insurance, surety bonds, certificates moment of succession. of insurance, applications to qualify as (b) Span of security coverage. The cov- a self-insurer or for approval of other erage furnished for a fiduciary shall securities or agreements, and notices not apply after the effective date of of cancellation must be in the form other insurance or security, filed with prescribed at 49 CFR part 387, subpart and accepted by the FMCSA for such fi- C. duciary. After the coverage shall have (b) Procedure. Certificates of insur- been in effect 30 days, it may be can- ance, surety bonds, and notices of cancelled or withdrawn within the suc- cellation must be filed with the ceeding 30 days by the insurer, the in- FMCSA in triplicate. sured, the surety, or the principal 10 (c) Names. Certificates of insurance days after the FMCSA receives written and surety bonds shall be issued in the notice. After such coverage has been in full name (including any trade name) effect 60 days, it may be cancelled or of the individual, partnership (all part- withdrawn only in accordance with ners named), corporation, or other per- § 387.413(d). son holding or to be issued the permit. (d) Cancellation. Except as provided in [55 FR 11201, Mar. 27, 1990. Redesignated at 61 paragraph (e) of this section, certifi- FR 54710, Oct. 21, 1996, as amended at 62 FR cates of insurance, surety bonds, and 49942, Sept. 24, 1997] other securities and agreements shall not be cancelled or withdrawn until 30 § 387.419 Electronic filing of surety bonds, certificates of insurance and days after the FMCSA receives written cancellations. notice from the insurance company, surety, freight forwarder, or other Insurers may, at their option and in party, as the case may be. accordance with the requirements and (e) Termination by replacement. Cer- procedures set forth at 49 CFR 387.323, tificates of insurance or surety bonds file certificates of insurance, surety may be replaced by other certificates bonds, and other securities and agree- of insurance, surety bonds, or other se- ments electronically. curity, and the liability of the retiring insurer or surety shall be considered as [60 FR 16811, Apr. 3, 1995, as amended at 62 FR 49942, Sept. 24, 1997] having terminated as of the replace-

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PART 388—COOPERATIVE eral Motor Carrier Safety Administra- AGREEMENTS WITH STATES tion in the course of his/her official duties of investigation, inspection, or ex- Sec. amination of the property, equipment, 388.1 Eligibility. and records of a motor carrier or oth- 388.2 Extent of acceptance. ers, pursuant to 49 U.S.C. 504(c), and 388.3 Cancellation. that is believed to be a violation of any 388.4 Exchange of information. law or regulation of the State per- 388.5 Requests for assistance. taining to unsafe motor carrier oper- 388.6 Joint investigation, inspection, or ex- ations and practices, shall be commu- amination. nicated to the appropriate State au- 388.7 Joint administrative activities related to enforcement of safety and hazardous thority by an official of the Federal materials laws and regulations. Motor Carrier Safety Administration. 388.8 Supplemental agreements. (b) State furnishing information to Fed- eral Motor Carrier Safety Administration. AUTHORITY: 49 U.S.C. 113 and 502; 49 CFR 1.73. Information that comes to the attention of a duly authorized agent of the SOURCE: 33 FR 19725, Dec. 25, 1968, unless State in the course of his/her official otherwise noted. duties of investigation, inspection, or EDITORIAL NOTE: Nomenclature changes to examination of the property, equip- part 388 appear at 66 FR 49873, Oct. 1, 2001. ment, and records of a motor carrier or others, and that is believed to be a vio- § 388.1 Eligibility. lation of any provision of the safety or Any State may agree with the Fed- hazardous materials laws of the United eral Motor Carrier Safety Administra- States concerning highway transpor- tion to enforce the safety laws and reg- tation or the regulations of the Federal ulations of said State and the United Motor Carrier Safety Administration States concerning motor carrier trans- thereunder, shall be communicated to portation by filing with the Adminis- the Regional Director of Motor Car- trator at Washington, DC 20590, a writ- riers. ten acceptance of the terms herein. [51 FR 12621, Apr. 14, 1986]

§ 388.2 Extent of acceptance. § 388.5 Requests for assistance. The written acceptance may be in (a) State request for Federal Motor Car- letter form, signed by competent au- rier Safety Administration assistance. thority of said State charged with reg- Upon written request of the appro- ulations of motor carrier saftey and priate State authority, the officials of hazardous materials transportation the Federal Motor Carrier Safety Ad- and shall specify the terms herein per- ministration for that State shall, as taining to the obligations of a State in time, personnel, and funds permit, ob- which said State will participate. To tain evidence for use by said State in the extent that a State agrees to par- the enforcement of its laws and regula- ticipate in the terms herein, officials of tions concerning unsafe motor carrier the Federal Motor Carrier Safety Ad- operations. Evidence obtained in this ministration will reciprocate. manner shall be transmitted to the appropriate State authority together § 388.3 Cancellation. with the name and address of an agent Cancellation or withdrawal, in whole or employee, if any, having knowledge or in part, from any agreement made of the facts, who shall be made avail- under this chapter may be effected by able when necessary to testify as a wit- written notice from either party indi- ness in an enforcement proceeding or cating the effective date of said can- other action. cellation or withdrawal. (b) Federal Motor Carrier Safety Ad- ministration request for State assistance. § 388.4 Exchange of information. Upon written request from a Regional (a) Federal Motor Carrier Safety Ad- Director of Motor Carriers, the appro- ministration furnishing information to priate State authority, shall, as time, State. Information that comes to the personnel, and funds permit, obtain attention of an employee of the Fed- evidence in the State for use by the

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Federal Motor Carrier Safety Adminis- extent of the authority and capabilities tration in its enforcement of the safety of the respective agencies to enforce and hazardous materials laws and regu- the safety and hazardous materials lations of the United States concerning laws and regulations of the State or of highway transportation. Evidence ob- the United States concerning motor tained in this manner shall be trans- carrier transportation. The Federal mitted to the Regional Director of Motor Carrier Safety Administration Motor Carriers, together with the and the State (or appropriate State au- name and address of an agent or em- thority) shall use their best efforts to ployee, if any, having knowledge of the inform each other of changes in their facts, who shall be made available rules and regulations and cooperate when necessary to testify as a witness with and assist each other in con- in an enforcement proceeding or other ducting training schools for Federal action. and State enforcement officials en- [33 FR 19725, Dec. 25, 1968, as amended at 51 gaged in such duties. FR 12621, Apr. 14, 1986; 60 FR 38743, July 28, [33 FR 19725, Dec. 25, 1968, as amended at 51 1995] FR 12621, Apr. 14, 1986]

§ 388.6 Joint investigation, inspection, § 388.8 Supplemental agreements. or examination. Upon agreement by the Regional Di- The terms specified in this part may rector of Motor Carriers and the appro- be supplemented from time to time by priate State authority, there will be specific agreement between the Federal conducted a joint investigation, inspec- Motor Carrier Safety Administration tion, or examination of the property, and the appropriate State authority in equipment, or records of motor carriers order to further implement the provi- or others, for the enforcement of the sions of 49 U.S.C. 502. safety and hazardous materials laws [51 FR 12621, Apr. 14, 1986] and regulations of the United States and the State concerning highway PART 389—RULEMAKING PROCE- transportation. The said Regional Di- rector of Motor Carriers and the appro- DURES—FEDERAL MOTOR CAR- priate State authority shall decide as RIER SAFETY REGULATIONS to the location and time, the objectives sought, and the identity of the person Subpart A—General who will supervise the joint effort and Sec. make the necessary decisions. Any 389.1 Applicability. agent or employee of either agency 389.3 Definitions. who has personal knowledge of perti- 389.5 Regulatory docket. nent facts shall be made available 389.7 Records. when necessary to testify as a witness in an enforcement proceeding or other Subpart B—Procedures for Adoption of action. Rules [33 FR 19725, Dec. 25, 1968, as amended at 51 389.11 General. FR 12621, Apr. 14, 1986] 389.13 Initiation of rule making. 389.15 Contents of notices of proposed rule § 388.7 Joint administrative activities making. related to enforcement of safety 389.17 Participation by interested persons. and hazardous materials laws and 389.19 Petitions for extension of time to regulations. comment. To facilitate the interchange of in- 389.21 Contents of written comments. formation and evidence, and the con- 389.23 Consideration of comments received. duct of joint investigation and admin- 389.25 Additional rule making proceedings. 389.27 Hearings. istrative action, the Regional Director 389.29 Adoption of final rules. of Motor Carriers and the appropriate 389.31 Petitions for rule making. State authority shall, when warranted, 389.33 Processing of petition. schedule joint conferences of staff 389.35 Petitions for reconsideration. members of both agencies. Information 389.37 Proceedings on petitions for reconsid- shall be exchanged as to the nature and eration.

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AUTHORITY: 49 U.S.C. 113, 501 et seq., 31101 et tions of the Secretary of Transpor- seq., 31138, 31139, 31301 et seq., and 31502; 42 tation (part 7 of this title; 32 FR 9284 et U.S.C. 4917; and 49 CFR 1.73. seq.). SOURCE: 35 FR 9209, June 12, 1970, unless [35 FR 9209, June 12, 1970, as amended at 53 otherwise noted. FR 2036, Jan. 26, 1988] EDITORIAL NOTE: Nomenclature changes to part 389 appear at 66 FR 49873, Oct. 1, 2001. Subpart B—Procedures for Adoption of Rules Subpart A—General § 389.11 General. § 389.1 Applicability. Unless the Administrator, for good This part prescribes rulemaking pro- cause, finds a notice is impractical, un- cedures that apply to the issuance, necessary, or contrary to the public in- amendment and revocation of rules terest, and incorporates such a finding under an Act. and a brief statement of the reasons for [62 FR 37152, July 11, 1997] it in the rule, a notice of proposed rulemaking must be issued, and interested § 389.3 Definitions. persons are invited to participate in Act means statutes granting the Sec- the rulemaking proceedings involving retary authority to regulate motor car- rules under an Act. rier safety. [62 FR 37152, July 11, 1997] Administrator means the Federal Motor Carrier Safety Administrator. § 389.13 Initiation of rule making. [62 FR 37152, July 11, 1997] The Administrator initiates rule making on his/her own motion. How- § 389.5 Regulatory docket. ever, in so doing, he/she may, in his/her (a) Information and data deemed rel- discretion, consider the recommenda- evant by the Administrator relating to tions of his/her staff or other agencies rule making actions, including notices of the United States or of other inter- of proposed rule making; comments re- ested persons. ceived in response to notices; petitions [35 FR 9209, June 12, 1970, as amended at 53 for rule making and reconsideration; FR 2036, Jan. 26, 1988] denials of petitions for rule making and reconsideration; records of addi- § 389.15 Contents of notices of pro- tional rule making proceedings under posed rule making. § 389.25; and final rules are maintained (a) Each notice of proposed rule mak- at Headquarters, Federal Motor Carrier ing is published in the FEDERAL REG- Safety Administration, Nassif Build- ISTER, unless all persons subject to it ing, 400 Seventh Street, SW., Wash- are named and are personally served ington, DC 20590. with a copy of it. (b) Any person may examine dock- (b) Each notice, whether published in eted material, at any time during reg- the FEDERAL REGISTER or personally ular business hours after the docket is served, includes: established, except material ordered (1) A statement of the time, place, withheld from the public under section and nature of the proposed rule making 552(b) of title 5 of the United States proceeding; Code, and may obtain a copy of it upon (2) A reference to the authority under payment of a fee. which it is issued; [35 FR 9209, June 12, 1970, as amended at 53 (3) A description of the subjects and FR 2036, Jan. 26, 1988] issues involved or the substance and terms of the proposed rule; § 389.7 Records. (4) A statement of the time within Records of the Administrator relat- which written comments must be sub- ing to rule making proceedings are mitted; and available for inspection as provided in (5) A statement of how and to what section 552(b) of title 5 of the United extent interested persons may partici- States Code and part 7 of the regula- pate in the proceeding.

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§ 389.17 Participation by interested he/she finds necessary or desirable. or persons. example, interested persons may be in- (a) Any interested person may par- vited to make oral arguments, to participate in rule making proceedings by ticipate in conferences between the Ad- submitting comments in writing con- ministrator or his/her representative at taining information, views, or argu- which minutes of the conference are ments. kept, to appear at informal hearings presided over by officials designated by (b) In his/her discretion, the Adminis- the Administrator at which a tran- trator may invite any interested per- script or minutes are kept, or partici- son to participate in the rule making pate in any other proceeding to assure procedures described in § 389.25. informed administrative action and to [35 FR 9209, June 12, 1970, as amended at 53 protect the public interest. FR 2036, Jan. 26, 1988] [35 FR 9209, June 12, 1970, as amended at 53 § 389.19 Petitions for extension of time FR 2036, Jan. 26, 1988] to comment. § 389.27 Hearings. A petition for extension of the time (a) Sections 556 and 557 of title 5, to submit comments must be received United States Code, do not apply to in duplicate not later than three (3) hearings held under this part. Unless days before expiration of the time stat- otherwise specified, hearings held ed in the notice. The filing of the peti- under this part are informal, non- tion does not automatically extend the adversary, fact-finding procedures at time for petitioner’s comments. Such a which there are no formal pleadings or petition is granted only if the peti- adverse parties. Any rule issued in a tioner shows good cause for the exten- case in which an informal hearing is sion, and if the extension is consistent held is not necessarily based exclu- with the public interest. If an exten- sively on the record of the hearing. sion is granted, it is granted to all per- (b) The Administrator designates a sons, and it is published in the representative to conduct any hearing FEDERAL REGISTER. held under this part. The Chief Counsel § 389.21 Contents of written comments. of the Federal Motor Carrier Safety Administration designates a member of All written comments must be in his/her staff to serve as legal officer at English and submitted in five (5) leg- the hearing. ible copies, unless the number of copies is specified in the notice. Any inter- [35 FR 9209, June 12, 1970, as amended at 53 ested person must submit as part of FR 2036, Jan. 26, 1988] his/her written comments all material § 389.29 Adoption of final rules. that he/she considers relevant to any statement of fact made by him/her. In- Final rules are prepared by rep- corporation of material by reference is resentatives of the office concerned to be avoided. However, if such incor- and the Office of the Chief Counsel. The poration is necessary, the incorporated rule is then submitted to the Adminis- material shall be identified with re- trator for his/her consideration. If the spect to document and page. Administrator adopts the rule, it is published in the FEDERAL REGISTER, § 389.23 Consideration of comments re- unless all persons subject to it are ceived. named and are personally served with a All timely comments are considered copy of it. before final action is taken on a rule [35 FR 9209, June 12, 1970, as amended at 53 making proposal. Late filed comments FR 2036, Jan. 26, 1988] may be considered as far as practicable. § 389.31 Petitions for rule making. (a) Any interested person may peti- § 389.25 Additional rule making pro- tion the Administrator to establish, ceedings. amend, or repeal a rule. The Administrator may initiate any (b) Each petition filed under this sec- further rule making proceedings that tion must:

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(1) Be submitted in duplicate to the statement of the complaint and an ex- Administrator, Federal Motor Carrier planation as to why compliance with Safety Administration, 400 Seventh the rule is not practicable, is unreason- Street, SW., Washington, DC 20590; able, or is not in the public interest. (2) Set forth the text or substance of (b) If the petitioner requests the con- the rule or amendment proposed, or sideration of additional facts, he/she specify the rule that the petitioner must state the reason they were not seeks to have repealed, as the case may presented to the Administrator within be; the prescribed time. (3) Explain the interest of the peti- (c) The Administrator does not con- tioner in the action requested; sider repetitious petitions. (4) Contain any information and ar- (d) Unless the Administrator other- guments available to the petitioner to wise provides, the filing of a petition support the action sought. under this section does not stay the effectiveness of the rule. [35 FR 9209, June 12, 1970, as amended at 45 FR 46424, July 10, 1980; 53 FR 2036, Jan. 26, [35 FR 9209, June 12, 1970, as amended at 53 1988] FR 2036, Jan. 26, 1988]

§ 389.33 Processing of petition. § 389.37 Proceedings on petitions for reconsideration. (a) Unless the Administrator otherwise specifies, no public hearing, argu- The Administrator may grant or ment, or other proceeding is held di- deny, in whole or in part, any petition rectly on a petition before its disposi- for reconsideration without further tion under this section. proceedings. In the event he/she deter- (b) Grants. If the Administrator de- mines to reconsider any rule, he/she termines that the petition contains may issue a final decision on reconsid- adequate justification, he/she initiates eration without further proceedings, or rule making action under this Subpart he/she may provide such opportunity to B. submit comment or information and (c) Denials. If the Administrator de- data as he/she deems appropriate. termines that the petition does not jus- Whenever the Administrator deter- tify rule making, he/she denies the pe- mines that a petition should be granted tition. or denied, he/she prepares a notice of (d) Notification. Whenever the Admin- the grant or denial of a petition for re- istrator determines that a petition consideration, for issuance to the peti- should be granted or denied, the Office tioner, and issues it to the petitioner. of the Chief Counsel prepares a notice The Administrator may consolidate pe- of that grant or denial for issuance to titions relating to the same rule. the petitioner, and the Administrator [35 FR 9209, June 12, 1970, as amended at 53 issues it to the petitioner. FR 2036, Jan. 26, 1988] [35 FR 9209, June 12, 1970, as amended at 53 FR 2036, Jan. 26, 1988] PART 390—FEDERAL MOTOR CAR- RIER SAFETY REGULATIONS; GEN- § 389.35 Petitions for reconsideration. ERAL (a) Any interested person may petition the Administrator for reconsider- Subpart A—General Applicability and ation of any rule issued under this Definitions part. The petition must be in English Sec. and submitted in five (5) legible copies 390.1 Purpose. to the Administrator, Federal Motor 390.3 General applicability. Carrier Safety Administration, 400 Sev- 390.5 Definitions. enth Street, SW., Washington, DC 390.7 Rules of construction. 20590, and received not later than thirty (30) days after publication of the Subpart B—General Requirements and rule in the FEDERAL REGISTER. Peti- Information tions filed after that time will be con- 390.9 State and local laws, effect on. sidered as petitions filed under § 389.31. 390.11 Motor carrier to require observance The petition must contain a brief of driver regulations.

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390.13 Aiding or abetting violations. (c) The rules in Part 387, Minimum 390.15 Assistance in investigations and spe- Levels of Financial Responsibility for cial studies. Motor Carriers, are applicable to motor 390.16 [Reserved] 390.17 Additional equipment and acces- carriers as provided in § 387.3 or 387.27 sories. of this subchapter. 390.19 Motor carrier identification report. (d) Additional requirements. Nothing in 390.21 Marking of CMVs. subchapter B of this chapter shall be 390.23 Relief from regulations. construed to prohibit an employer from 390.25 Extension of relief from regulations— requring and enforcing more stringent emergencies. 390.27 Locations of motor carrier safety requirements relating to safety of oper- service centers. ation and employee safety and health. 390.29 Location of records or documents. (e) Knowledge of and compliance 390.31 Copies of records or documents. with the regulations. 390.33 Commercial motor vehicles used for (1) Every employer shall be knowl- purposes other than defined. edgeable of and comply with all regula- 390.35 Certificates, reports, and records: Falsification, reproduction, or alter- tions contained in this subchapter ation. which are applicable to that motor car- 390.37 Violation and penalty. rier’s operations. (2) Every driver and employee shall Subpart C [Reserved] be instructed regarding, and shall comply with, all applicable regulations AUTHORITY: 49 U.S.C. 13301, 13902, 31132, contained in this subchapter. 31133, 31136, 31502, and 31504; sec. 204, Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 701 note); (3) All motor vehicle equipment and sec. 217, Pub. L. 106–159, 113 Stat. 1748, 1767; accessories required by this subchapter and 49 CFR 1.73. shall be maintained in compliance with all applicable performance and design SOURCE: 53 FR 18052, May 19, 1988, unless otherwise noted. criteria set forth in this subchapter. (f) Exceptions. Unless otherwise spe- EDITORIAL NOTE: Nomenclature changes to part 390 appear at 66 FR 49873, Oct. 1, 2001. cifically provided, the rules in this subchapter do not apply to— Subpart A—General Applicability (1) All school bus operations as defined in § 390.5; and Definitions (2) Transportation performed by the § 390.1 Purpose. Federal government, a State, or any political subdivision of a State, or an This part establishes general applica- agency established under a compact be- bility, definitions, general require- tween States that has been approved ments and information as they pertain by the Congress of the United States; to persons subject to this chapter. (3) The occasional transportation of § 390.3 General applicability. personal property by individuals not for compensation nor in the further- (a) The rules in subchapter B of this chapter are applicable to all employ- ance of a commercial enterprise; ers, employees, and commercial motor (4) The transportation of human vehicles, which transport property or corpses or sick and injured persons; passengers in interstate commerce. (5) The operation of fire trucks and (b) The rules in Part 383, Commercial rescue vehicles while involved in emer- Driver’s License Standards; Require- gency and related operations; ments and Penalties, are applicable to (6) The operation of commercial every person who operates a commer- motor vehicles designed or used to cial motor vehicle, as defined in § 383.5 transport between 9 to 15 passengers of this subchapter, in interstate or (including the driver). However, motor intrastate commerce and to all em- carriers operating these vehicles for ployers of such persons. compensation are required to comply

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with 49 CFR 385.21, Motor carrier iden- feet collectively on both sides of the tification report, 49 CFR 390.15, Assist- highway. ance in investigations and special stud- Charter transportation of passengers ies, and 49 CFR 390.21, Marking of com- means transportation, using a bus, of a mercial motor vehicles (except group of persons who pursuant to a § 390.21(b)(1)). common purpose, under a single con- [53 FR 18052, May 19, 1988, as amended at 54 tract, at a fixed charge for the motor FR 12202, Mar. 24, 1989; 58 FR 33776, June 21, vehicle, have acquired the exclusive 1993; 59 FR 8752, Feb. 23, 1994; 59 FR 67554, use of the motor vehicle to travel to- Dec. 29, 1994; 62 FR 1296, Jan. 9, 1997; 63 FR gether under an itinerary either speci- 33276, June 18, 1998; 64 FR 48516, Sept. 3, 1999; fied in advance or modified after hav- 66 FR 2766, Jan. 11, 2001] ing left the place of origin. § 390.5 Definitions. Commercial motor vehicle means any self-propelled or towed motor vehicle Unless specifically defined elsewhere, used on a highway in interstate com- in this subchapter: merce to transport passengers or prop- Accident means— erty when the vehicle— (1) Except as provided in paragraph (1) Has a gross vehicle weight rating (2) of this definition, an occurrence in- or gross combination weight rating, or volving a commercial motor vehicle operating on a highway in interstate or gross vehicle weight or gross combina- intrastate commerce which results in: tion weight, of 4,536 kg (10,001 pounds) (i) A fatality; or more, whichever is greater; or (ii) Bodily injury to a person who, as (2) Is designed or used to transport a result of the injury, immediately re- more than 8 passengers (including the ceives medical treatment away from driver) for compensation; or the scene of the accident; or (3) Is designed or used to transport (iii) One or more motor vehicles in- more than 15 passengers, including the curring disabling damage as a result of driver, and is not used to transport pas- the accident, requiring the motor vehi- sengers for compensation; or cle(s) to be transported away from the (4) Is used in transporting material scene by a tow truck or other motor found by the Secretary of Transpor- vehicle. tation to be hazardous under 49 U.S.C. (2) The term accident does not in- 5103 and transported in a quantity re- clude: quiring placarding under regulations (i) An occurrence involving only prescribed by the Secretary under 49 boarding and alighting from a sta- CFR, subtitle B, chapter I, subchapter tionary motor vehicle; or C. (ii) An occurrence involving only the Conviction means an unvacated adju- loading or unloading of cargo. dication of guilt, or a determination Alcohol concentration (AC) means the that a person has violated or failed to concentration of alcohol in a person’s comply with the law in a court of origi- blood or breath. When expressed as a nal jurisdiction or by an authorized ad- percentage it means grams of alcohol ministrative tribunal, an unvacated per 100 milliliters of blood or grams of forfeiture of bail or collateral depos- alcohol per 210 liters of breath. ited to secure the person’s appearance Bus means any motor vehicle de- in court, a plea of guilty or nolo signed, constructed, and or used for the contendere accepted by the court, the transportation of passengers, including payment of a fine or court cost, or vio- taxicabs. lation of a condition of release without Business district means the territory bail, regardless of whether or not the contiguous to and including a highway penalty is rebated, suspended, or pro- when within any 600 feet along such highway there are buildings in use for bated. business or industrial purposes, includ- Direct assistance means transpor- ing but not limited to hotels, banks, or tation and other relief services pro- office buildings which occupy at least vided by a motor carrier or its driver(s) 300 feet of frontage on one side or 300 incident to the immediate restoration

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of essential services (such as, elec- which interrupts the delivery of essen- tricity, medial care, sewer, water, tele- tial services (such as, electricity, med- communications, and telecommuni- ical care, sewer, water, telecommunication transmissions) or essential sup- cations, and telecommunication trans- plies (such as, food and fuel). It does missions) or essential supplies (such as, not include transportation related to food and fuel) or otherwise imme- long-term rehabilitation of damaged diately threatens human life or public physical infrastructure or routine com- welfare, provided such hurricane, tor- mercial deliveries after the initial nado, or other event results in: threat to life and property has passed. (1) A declaration of an emergency by Disabling damage means damage the President of the United States, the which precludes departure of a motor Governor of a State, or their author- vehicle from the scene of the accident ized representatives having authority in its usual manner in daylight after to declare emergencies; by the FMCSA simple repairs. Field Administrator for the geo- (1) Inclusions. Damage to motor vehi- graphical area in which the occurrence cles that could have been driven, but happens; or by other Federal, State or would have been further damaged if so local government officials having au- driven. thority to declare emergencies, or (2) Exclusions. (i) Damage which can be remedied (2) A request by a police officer for temporarily at the scene of the acci- tow trucks to move wrecked or dis- dent without special tools or parts. abled motor vehicles. (ii) Tire disablement without other Emergency relief means an operation damage even if no spare tire is avail- in which a motor carrier or driver of a able. commercial motor vehicle is providing (iii) Headlamp or taillight damage. direct assistance to supplement State (iv) Damage to turn signals, horn, or and local efforts and capabilities to windshield wipers which makes them save lives or property or to protect inoperative. public health and safety as a result of Driveaway-towaway operation means an emergency as defined in this sec- any operation in which a motor vehicle tion. constitutes the commodity being Employee means any individual, other transported and one or more set of than an employer, who is employed by wheels of the motor vehicle being an employer and who in the course of transported are on the surface of the his or her employment directly affects roadway during transportation. commercial motor vehicle safety. Such Driver means any person who oper- term includes a driver of a commercial ates any commercial motor vehicle. motor vehicle (including an inde- Driving a commercial motor vehicle pendent contractor while in the course while under the influence of alcohol of operating a commercial motor vehi- means committing any one or more of cle), a mechanic, and a freight handler. the following acts in a CMV: Driving a CMV while the person’s alcohol con- Such term does not include an em- centration is 0.04 or more; driving ployee of the United States, any State, under the influence of alcohol, as pre- any political subdivision of a State, or scribed by State law; or refusal to un- any agency established under a com- dergo such testing as is required by pact between States and approved by any State or jurisdiction in the en- the Congress of the United States who forcement of Table 1 to § 383.51 or is acting within the course of such em- § 392.5(a)(2) of this subchapter. ployment. Emergency means any hurricane, tor- Employer means any person engaged nado, storm (e.g. thunderstorm, snow- in a business affecting interstate com- storm, icestorm, blizzard, sandstorm, merce who owns or leases a commer- etc.), high water, wind-driven water, cial motor vehicle in connection with tidal wave, tsunami, earthquake, vol- that business, or assigns employees to canic eruption, mud slide, drought, for- operate it, but such terms does not in- est fire, explosion, blackout or other clude the United States, any State, any occurrence, natural or man-made, political subdivision of a State, or an

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agency established under a compact be- tration, an agency within the Depart- tween States approved by the Congress ment of Transportation. of the United States. For-hire motor carrier means a person Exempt intracity zone means the geo- engaged in the transportation of goods graphic area of a municipality or the or passengers for compensation. commercial zone of that municipality Gross combination weight rating described in appendix F to subchapter (GCWR) means the value specified by B of this chapter. The term ‘‘exempt the manufacturer as the loaded weight intracity zone’’ does not include any of a combination (articulated) motor municipality or commercial zone in vehicle. In the absence of a value speci- the State of Hawaii. For purposes of fied by the manufacturer, GCWR will § 391.62, a driver may be considered to be determined by adding the GVWR of operate a commercial motor vehicle the power unit and the total weight of wholly within an exempt intracity zone the towed unit and any load thereon. notwithstanding any common control, Gross vehicle weight rating (GVWR) management, or arrangement for a means the value specified by the manu- continuous carriage or shipment to or facturer as the loaded weight of a sin- from a point without such zone. gle motor vehicle. Exempt motor carrier means a person Hazardous material means a substance engaged in transportation exempt from or material which has been determined economic regulation by the Federal by the Secretary of Transportation to Motor Carrier Safety Administration be capable of posing an unreasonable (FMCSA) under 49 U.S.C. 13506. risk to health, safety, and property ‘‘Exempt motor carriers’’ are subject when transported in commerce, and to the safety regulations set forth in which has been so designated. this subchapter. Hazardous substance means a mate- Farm vehicle driver means a person rial, and its mixtures or solutions, that who drives only a commercial motor is identified in the appendix to § 172.101, vehicle that is— List of Hazardous Substances and Re- (a) Controlled and operated by a portable Quantities, of this title when farmer as a private motor carrier of offered for transportation in one pack- property; age, or in one transport motor vehicle (b) Being used to transport either— if not packaged, and when the quantity (1) Agricultural products, or of the material therein equals or ex- (2) Farm machinery, farm supplies, ceeds the reportable quantity (RQ). or both, to or from a farm; This definition does not apply to petro- (c) Not being used in the operation of leum products that are lubricants or a for-hire motor carrier; fuels, or to mixtures or solutions of (d) Not carrying hazardous materials hazardous substances if in a concentra- of a type or quantity that requires the tion less than that shown in the table commercial motor vehicle to be plac- in § 171.8 of this title, based on the re- arded in accordance with § 177.823 of portable quantity (RQ) specified for the this subtitle; and materials listed in the appendix to (e) Being used within 150 air-miles of § 172.101. the farmer’s farm. Hazardous waste means any material Farmer means any person who oper- that is subject to the hazardous waste ates a farm or is directly involved in manifest requirements of the EPA the cultivation of land, crops, or live- specified in 40 CFR part 262 or would be stock which— subject to these requirements absent (a) Are owned by that person; or an interim authorization to a State (b) Are under the direct control of under 40 CFR part 123, subpart F. that person. Highway means any road, street, or Fatality means any injury which re- way, whether on public or private prop- sults in the death of a person at the erty, open to public travel. ‘‘Open to time of the motor vehicle accident or public travel’’ means that the road sec- within 30 days of the accident. tion is available, except during sched- Federal Motor Carrier Safety Adminis- uled periods, extreme weather or emer- trator means the chief executive of the gency conditions, passable by four- Federal Motor Carrier Safety Adminis- wheel standard passenger cars, and

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open to the general public for use with- transportation similar to street-rail- out restrictive gates, prohibitive signs, way service. or regulation other than restrictions Multiple-employer driver means a driv- based on size, weight, or class of reg- er, who in any period of 7 consecutive istration. Toll plazas of public toll days, is employed or used as a driver by roads are not considered restrictive more than one motor carrier. gates. Operator — See driver. Interstate commerce means trade, traf- Other terms — Any other term used in fic, or transportation in the United this subchapter is used in its com- States— monly accepted meaning, except where (1) Between a place in a State and a such other term has been defined else- place outside of such State (including a where in this subchapter. In that place outside of the United States); event, the definition therein given (2) Between two places in a State shall apply. through another State or a place out- Out-of-service order means a declara- side of the United States; or tion by an authorized enforcement offi- (3) Between two places in a State as cer of a Federal, State, Canadian, part of trade, traffic, or transportation Mexican, or local jurisdiction that a originating or terminating outside the driver, a commercial motor vehicle, or State or the United States. a motor carrier operation, is out-of- Intrastate commerce means any trade, service pursuant to §§ 386.72, 392.5, traffic, or transportation in any State 395.13, 396.9, or compatible laws, or the which is not described in the term ‘‘interstate commerce.’’ North American Uniform Out-of-Serv- ice Criteria. Medical examiner means a person who is licensed, certified, and/or registered, Person means any individual, part- in accordance with applicable State nership, association, corporation, busi- laws and regulations, to perform phys- ness trust, or any other organized ical examinations. The term includes group of individuals. but is not limited to, doctors of medi- Principal place of business means the cine, doctors of osteopathy, physician single location designated by the assistants, advanced practice nurses, motor carrier, normally its head- and doctors of chiropractic. quarters, for purposes of identification Motor carrier means a for-hire motor under this subchapter. The motor car- carrier or a private motor carrier. The rier must make records required by term includes a motor carrier’s agents, parts 382, 387, 390, 391, 395, 396, and 397 officers and representatives as well as of this subchapter available for inspec- employees responsible for hiring, su- tion at this location within 48 hours pervising, training, assigning, or dis- (Saturdays, Sundays, and Federal holi- patching of drivers and employees con- days excluded) after a request has been cerned with the installation, inspec- made by a special agent or authorized tion, and maintenance of motor vehicle representative of the Federal Motor equipment and/or accessories. For pur- Carrier Safety Administration. poses of subchapter B, this definition Private motor carrier means a person includes the terms employer, and exempt who provides transportation of prop- motor carrier. erty or passengers, by commercial Motor vehicle means any vehicle, ma- motor vehicle, and is not a for-hire chine, tractor, trailer, or semitrailer motor carrier. propelled or drawn by mechanical Private motor carrier of passengers power and used upon the highways in (business) means a private motor car- the transportation of passengers or rier engaged in the interstate transpor- property, or any combination thereof tation of passengers which is provided determined by the Federal Motor Car- in the furtherance of a commercial en- rier Safety Administration, but does terprise and is not available to the pub- not include any vehicle, locomotive, or lic at large. car operated exclusively on a rail or Private motor carrier of passengers rails, or a trolley bus operated by elec- (nonbusiness) means private motor car- tric power derived from a fixed over- rier involved in the interstate trans- head wire, furnishing local passenger portation of passengers that does not

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otherwise meet the definition of a pri- commercial motor vehicle on an inter- vate motor carrier of passengers mittent, casual, or occasional basis. (business). Special agent See appendix B to sub- Radar detector means any device or chapter B — Special agents. mechanism to detect the emission of State means a State of the United radio microwaves, laser beams or any States and the District of Columbia other future speed measurement tech- and includes a political subdivision of a nology employed by enforcement per- State. sonnel to measure the speed of com- Trailer includes: mercial motor vehicles upon public (a) Full trailer means any motor vehi- roads and highways for enforcement cle other than a pole trailer which is purposes. Excluded from this definition designed to be drawn by another motor are radar detection devices that meet vehicle and so constructed that no part both of the following requirements: of its weight, except for the towing de- (1) Transported outside the driver’s vice, rests upon the self-propelled tow- compartment of the commercial motor ing motor vehicle. A semitrailer vehicle. For this purpose, the driver’s equipped with an auxiliary front axle compartment of a passenger-carrying (converter dolly) shall be considered a CMV shall include all space designed to full trailer. accommodate both the driver and the (b) Pole trailer means any motor vehi- passengers; and cle which is designed to be drawn by (2) Completely inaccessible to, inop- another motor vehicle and attached to erable by, and imperceptible to the the towing motor vehicle by means of a driver while operating the commercial ‘‘reach’’ or ‘‘pole,’’ or by being motor vehicle. ‘‘boomed’’ or otherwise secured to the Regional Director of Motor Carriers towing motor vehicle, for transporting means the Field Administrator, Fed- long or irregularly shaped loads such eral Motor Carrier Safety Administra- as poles, pipes, or structural members, tion, for a given geographical area of which generally are capable of sus- the United States. taining themselves as beams between Residential district means the terri- the supporting connections. tory adjacent to and including a high- (c) Semitrailer means any motor vehi- way which is not a business district cle, other than a pole trailer, which is and for a distance of 300 feet or more designed to be drawn by another motor along the highway is primarily im- vehicle and is constructed so that some proved with residences. part of its weight rests upon the self- propelled towing motor vehicle. School bus means a passenger motor vehicle which is designed or used to Truck means any self-propelled com- carry more than 10 passengers in addi- mercial motor vehicle except a truck tion to the driver, and which the Sec- tractor, designed and/or used for the retary determines is likely to be sig- transportation of property. nificantly used for the purpose of Truck tractor means a self-propelled transporting preprimary, primary, or commercial motor vehicle designed secondary school students to such and/or used primarily for drawing other schools from home or from such vehicles. schools to home. United States means the 50 States and School bus operation means the use of the District of Columbia. a school bus to transport only school [53 FR 18052, May 19, 1988] children and/or school personnel from EDITORIAL NOTE: For FEDERAL REGISTER ci- home to school and from school to tations affecting § 390.5, see the List of CFR home. Sections Affected, which appears in the Secretary means the Secretary of Finding Aids section of the printed volume Transportation. and on GPO Access. Single-employer driver means a driver who, in any period of 7 consecutive § 390.7 Rules of construction. days, is employed or used as a driver (a) In part 325 of subchapter A and in solely by a single motor carrier. This this subchapter, unless the context re- term includes a driver who operates a quires otherwise:

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(1) Words imparting the singular in- § 390.15 Assistance in investigations clude the plural; and special studies. (2) Words imparting the plural in- (a) A motor carrier shall make all clude the singular; records and information pertaining to (3) Words imparting the present tense an accident available to an authorized include the future tense. representative or special agent of the (b) In this subchapter the word— Federal Motor Carrier Safety Adminis- (1) Officer includes any person au- tration upon request or as part of any thorized by law to perform the duties inquiry within such time as the request of the office; or inquiry may specify. A motor carrier shall give an authorized represent- (2) Writing includes printing and ative of the Federal Motor Carrier typewriting; Safety Administration all reasonable (3) Shall is used in an imperative assistance in the investigation of any sense; accident including providing a full, (4) Must is used in an imperative true and correct answer to any ques- sense; tion of the inquiry. (5) Should is used in a recommenda- (b) Motor carriers shall maintain for tory sense; a period of one year after an accident (6) May is used in a permissive sense; occurs, an accident register containing and at least the following information: (7) Includes is used as a word of inclu- (1) A list of accidents containing for sion, not limitation. each accident: (i) Date of accident, [53 FR 18052, May 19, 1988, as amended at 60 (ii) City or town in which or most FR 38744, July 28, 1995] near where the accident occurred and the State in which the accident oc- Subpart B—General Requirements curred, and Information (iii) Driver name, (iv) Number of injuries, § 390.9 State and local laws, effect on. (v) Number of fatalities, and (vi) Whether hazardous materials, Except as otherwise specifically indi- other than fuel spilled from the fuel cated, subchapter B of this chapter is tanks of motor vehicles involved in the not intended to preclude States or sub- accident, were released. divisions thereof from establishing or (2) Copies of all accident reports re- enforcing State or local laws relating quired by State or other governmental to safety, the compliance with which entities or insurers. would not prevent full compliance with (Approved by the Office of Management and these regulations by the person subject Budget under control number 2125–0526) thereto. [58 FR 6729, February 2, 1993, as amended at 60 FR 38744, July 28, 1995; 60 FR 44441, Aug. 28, § 390.11 Motor carrier to require ob- 1995] servance of driver regulations. Whenever in part 325 of subchapter A § 390.16 [Reserved] or in this subchapter a duty is pre- § 390.17 Additional equipment and ac- scribed for a driver or a prohibition is cessories. imposed upon the driver, it shall be the Nothing in this subchapter shall be duty of the motor carrier to require ob- construed to prohibit the use of addi- servance of such duty or prohibition. If tional equipment and accessories, not the motor carrier is a driver, the driver inconsistent with or prohibited by this shall likewise be bound. subchapter, provided such equipment and accessories do not decrease the § 390.13 Aiding or abetting violations. safety of operation of the commercial No person shall aid, abet, encourage, motor vehicles on which they are used. or require a motor carrier or its em- [53 FR 18052, May 19, 1988, as amended at 60 ployees to violate the rules of this FR 38744, July 28, 1995. Redesignated at 65 FR chapter. 35296, June 2, 2000]

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§ 390.19 Motor carrier identification (d) Only the legal name or a single report. trade name of the motor carrier may (a) Each motor carrier that conducts be used on the motor carrier identifica- operations in interstate commerce tion report (Form MCS–150). must file a Motor Carrier Identifica- (e) A motor carrier that fails to file a tion Report, Form MCS–150 at the fol- Motor Carrier Identification Report, lowing times: Form MCS–150, or furnishes misleading information or makes false statements (1) Before it begins operations; and upon Form MCS–150, is subject to the (2) Every 24 months, according to the penalties prescribed in 49 U.S.C. following schedule: 521(b)(2)(B). USDOT Number (f) Upon receipt and processing of the ending in Must file by last day of; Motor Carrier Identification Report, 1 ...... January Form MCS–150, the FMCSA will issue 2 ...... February the motor carrier an identification 3 ...... March number (USDOT number). The motor 4 ...... April carrier must display the number on 5 ...... May each self-propelled CMV, as defined in 6 ...... June 7 ...... July § 390.5, along with the additional infor- 8 ...... August mation required by § 390.21. 9 ...... September (g) A motor carrier that registers its 0 ...... October vehicles in a State that participates in the Performance and Registration In- (3) If the next-to-last digit of its formation Systems Management USDOT number is odd, the motor car- (PRISM) program (authorized under rier shall file its update in every odd- section 4004 of the Transportation Eq- numbered calendar year. If the next-to- uity Act for the 21st Century [(Public last digit of the USDOT number is Law 105–178, 112 Stat. 107]) is exempt even, the motor carrier shall file its from the requirements of this section, update in every even-numbered cal- provided it files all the required infor- endar year. mation with the appropriate State of- (b) The Motor Carrier Information fice. Report, Form MCS–150, with complete instructions, is available from the [Approved by the Office of Management and FMCSA’s web site at: http:// Budget under control number 2126–0013] www.fmcsa.dot.gov (keyword ‘‘MCS– [65 FR 35296, June 2, 2000, as amended at 65 150’’), from all FMCSA Service Centers FR 70514, Nov. 24, 2000; 67 FR 9416, Mar. 1, and Division offices nationwide, or by 2002] calling 1–800–832–5660. (c) The completed Motor Carrier § 390.21 Marking of CMVs. Identification Report, Form MCS–150, (a) General. Every self-propelled shall be filed with the FMCSA’s Office CMV, as defined in § 390.5, subject to of Data Analysis and Information Sys- subchapter B of this chapter must be tems. marked as specified in paragraphs (b), (1) The form may be filed electroni- (c), and (d) of this section. cally according to the instructions at (b) Nature of marking. The marking the agency’s web site, or it may be sent must display the following informa- to Federal Motor Carrier Safety Ad- tion: ministration, Data Analysis and Infor- (1) The legal name or a single trade mation Systems, MC-RIS, 400 Seventh name of the motor carrier operating Street, SW, Washington, DC 20590. the self-propelled CMV, as listed on the (2) A for-hire motor carrier should motor carrier identification report submit the Form MCS–150 along with (Form MCS–150) and submitted in ac- its application for operating authority cordance with § 390.19. (Form OP–1 or OP–2) to the appropriate (2) The motor carrier identification address referenced on that form, or number issued by the FMCSA, preceded may submit it electronically or by by the letters ‘‘USDOT’’. mail separately to the address men- (3) If the name of any person other tioned in this section. than the operating carrier appears on

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the CMV, the name of the operating excess of 30 calendar days meets the re- carrier must be followed by the infor- quirements of this section if: mation required by paragraphs (b)(1), (1) The CMV is marked in accordance and (2) of this section, and be preceded with the provisions of paragraphs (b) by the words ‘‘operated by.’’ through (d) of this section; or (4) Other identifying information (2) The CMV is marked as set forth in may be displayed on the vehicle if it is paragraph (e)(2)(i) through (iv) of this not inconsistent with the information section: required by this paragraph. (i) The legal name or a single trade (5) Each motor carrier shall meet the name of the lessor is displayed in ac- following requirements pertaining to cordance with paragraphs (c) and (d) of its operation: this section. (i) All CMVs that are part of a motor (ii) The lessor’s identification num- carrier’s existing fleet on July 3, 2000, ber preceded by the letters ‘‘USDOT’’ is and which are marked with an ICCMC displayed in accordance with para- number must come into compliance graphs (c) and (d) of this section; and with paragraph (b)(2) of this section by (iii) The rental agreement entered July 3, 2002. into by the lessor and the renting (ii) All CMVs that are part of a motor motor carrier conspicuously contains carrier’s existing fleet on July 3, 2000, the following information: and which are not marked with the (A) The name and complete physical legal name or a single trade name on address of the principal place of busi- both sides of their CMVs, as shown on ness of the renting motor carrier; the Motor Carrier Identification Re- (B) The identification number issued port, Form MCS–150, must come into the renting motor carrier by the compliance with paragraph (b)(1) of FMCSA, preceded by the letters this section by July 5, 2005. ‘‘USDOT,’’ if the motor carrier has been issued such a number. In lieu of (iii) All CMVs added to a motor car- the identification number required in rier’s fleet on or after July 3, 2000, this paragraph, the following may be must meet the requirements of this shown in the rental agreement: section before being put into service ( ) Information which indicates and operating on public ways. 1 whether the motor carrier is engaged (c) Size, shape, location, and color of in ‘‘interstate’’ or ‘‘intrastate’’ com- marking. The marking must— merce; and (1) Appear on both sides of the self- (2) Information which indicates propelled CMV; whether the renting motor carrier is (2) Be in letters that contrast sharply transporting hazardous materials in in color with the background on which the rented CMV; the letters are placed; (C) The sentence: ‘‘This lessor co- (3) Be readily legible, during daylight operates with all Federal, State, and hours, from a distance of 50 feet (15.24 local law enforcement officials nation- meters) while the CMV is stationary; wide to provide the identity of cus- and tomers who operate this rental CMV’’; (4) Be kept and maintained in a man- and ner that retains the legibility required (iv) The rental agreement entered by paragraph (c)(3) of this section. into by the lessor and the renting (d) Construction and durability. The motor carrier is carried on the rental marking may be painted on the CMV or CMV during the full term of the rental may consist of a removable device, if agreement. See the leasing regulations that device meets the identification at 49 CFR 376 for information that and legibility requirements of para- should be included in all leasing docu- graph (c) of this section, and such ments. marking must be maintained as re- (f) Driveaway services. In driveaway quired by paragraph (c)(4) of this sec- services, a removable device may be af- tion. fixed on both sides or at the rear of a (e) Rented CMVs. A motor carrier op- single driven vehicle. In a combination erating a self-propelled CMV under a driveaway operation, the device may be rental agreement having a term not in affixed on both sides of any one unit or

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at the rear of the last unit. The remov- by a Federal, State or local police offi- able device must display the legal cer for tow trucks to move wrecked or name or a single trade name of the disabled motor vehicles. motor carrier and the motor carrier’s (ii) This exemption shall not exceed USDOT number. the length of the motor carrier’s or [65 FR 35296, June 2, 2000] driver’s direct assistance in providing emergency relief, or 24 hours from the § 390.23 Relief from regulations. time of the initial request for assistance by the Federal, State or local po- (a) Parts 390 through 399 of this chapter shall not apply to any motor car- lice officer, whichever is less. rier or driver operating a commercial (b) Upon termination of direct assist- motor vehicle to provide emergency re- ance to the regional or local emer- lief during an emergency, subject to gency relief effort, the motor carrier or the following time limits: driver is subject to the requirements of (1) Regional emergencies. (i) The ex- parts 390 through 399 of this chapter, emption provided by paragraph (a)(1) of with the following exception: A driver this section is effective only when: may return empty to the motor car- (A) An emergency has been declared rier’s terminal or the driver’s normal by the President of the United States, work reporting location without com- the Governor of a State, or their au- plying with parts 390 through 399 of thorized representatives having au- this chapter. However, a driver who in- thority to declare emergencies; or forms the motor carrier that he or she (B) The FMCSA Field Administrator needs immediate rest shall be per- has declared that a regional emergency mitted at least 8 consecutive hours off exists which justifies an exemption duty before the driver is required to re- from parts 390 through 399 of this chap- turn to such terminal or location. Hav- ter. ing returned to the terminal or other (ii) Except as provided in § 390.25, this location, the driver must be relieved of exemption shall not exceed the dura- all duty and responsibilities. Direct as- tion of the motor carrier’s or driver’s sistance terminates when a driver or direct assistance in providing emer- commercial motor vehicle is used in gency relief, or 30 days from the date of interstate commerce to transport the initial declaration of the emer- cargo not destined for the emergency gency or the exemption from the regu- relief effort, or when the motor carrier lations by the FMCSA Field Adminis- dispatches such driver or commercial trator, whichever is less. motor vehicle to another location to (2) Local emergencies. (i) The exemp- begin operations in commerce. tion provided by paragraph (a)(2) of (c) When the driver has been relieved this section is effective only when: of all duty and responsibilities upon (A) An emergency has been declared termination of direct assistance to a by a Federal, State or local govern- regional or local emergency relief ef- ment official having authority to de- fort, no motor carrier shall permit or clare an emergency; or require any driver used by it to drive (B) The FMCSA Field Administrator nor shall any such driver drive in com- has declared that a local emergency ex- merce until: ists which justifies an exemption from (1) The driver has met the require- parts 390 through 399 of this chapter. ments of § 395.3(a) of this chapter; and (ii) This exemption shall not exceed (2) The driver has had at least 24 con- the duration of the motor carrier’s or secutive hours off-duty when: driver’s direct assistance in providing (A) The driver has been on duty for emergency relief, or 5 days from the more than 60 hours in any 7 consecu- date of the initial declaration of the tive days at the time the driver is re- emergency or the exemption from the lieved of all duty if the employing regulations by the FMCSA Field Ad- motor carrier does not operate every ministrator, whichever is less. day in the week, or (3) Tow trucks responding to emer- (B) The driver has been on duty for gencies. (i) The exemption provided by more than 70 hours in any 8 consecu- paragraph (a)(3) of this section is effective days at the time the driver is re- tive only when a request has been made lieved of all duty if the employing

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motor carrier operates every day in the carrier’s principal place of business is week. located before the expiration of the 30- day period. The motor carrier or driver [57 FR 33647, July 30, 1992, as amended at 60 FR 38744, July 28, 1995] shall give full details of the additional relief requested. The FMCSA Field Ad- § 390.25 Extension of relief from regu- ministrator shall determine if such re- lations—emergencies. lief is necessary taking into account The FMCSA Field Administrator both the severity of the ongoing emer- may extend the 30-day time period of gency and the nature of the relief serv- the exemption contained in ices to be provided by the carrier or § 390.23(a)(1), but not the 5-day time pe- driver. If the FMCSA Field Adminis- riod contained in § 390.23(a)(2) or the 24- trator approves an extension of the ex- hour period contained in § 390.23(a)(3). emption, he or she shall establish a Any motor carrier or driver seeking to new time limit and place on the motor extend the 30-day limit shall obtain ap- carrier or driver any other restrictions proval from the FMCSA Field Adminis- deemed necessary. trator in the region in which the motor [57 FR 33647, July 30, 1992]

§ 390.27 Locations of motor carrier safety service centers.

Service center Territory included Location of office

Eastern ...... CT, DC, DE, MA, MD, ME, NJ, NH, NY, PA, PR, City Crescent Building, #10 South Howard Street, RI, VA, VT, WV. Suite 4000, Baltimore, MD 21201Ð2819. Midwestern ...... IA, IL, IN, KS, MI, MO, MN, NE, OH, WI ...... 19900 Governors Drive, Suite 210, Olympia Fields, IL 60461Ð1021. Southern ...... AL, AR, FL, GA, KY, LA, MS, NC, NM, OK, SC, 61 Forsyth Street, SW, Suite 17T75, Atlanta, GA TN, TX. 30303Ð3104. Western ...... American Samoa, AK, AZ, CA, CO, Guam, HI, ID, 201 Mission Street, Suite 2100, San Francisco, CA Mariana Islands, MT, ND, NV, OR, SD, UT, WA, 94105Ð1838. WY.

[65 FR 35297, June 2, 2000]

§ 390.29 Location of records or docu- cluded from the computation of the 48- ments. hour period of time. (a) A motor carrier with multiple of- [63 FR 33276, June 18, 1998] fices or terminals may maintain the records and documents required by this § 390.31 Copies of records or docu- subchapter at its principal place of ments. business, a regional office, or driver (a) All records and documents re- work-reporting location unless other- quired to be maintained under this sub- wise specified in this subchapter. chapter must be preserved in their (b) All records and documents re- original form for the periods specified, quired by this subchapter which are unless the records and documents are maintained at a regional office or driv- suitably photographed and the micro- er work-reporting location shall be film is retained in lieu of the original made available for inspection upon re- record for the required retention pe- quest by a special agent or authorized riod. representative of the Federal Motor (b) To be acceptable in lieu of origi- Carrier Safety Administration at the nal records, photographic copies of motor carrier’s principal place of busi- records must meet the following min- ness or other location specified by the imum requirements: agent or representative within 48 hours (1) Photographic copies shall be no after a request is made. Saturdays, less readily accessible than the origi- Sundays, and Federal holidays are ex- nal record or document as normally filed or preserved would be and suitable means or facilities shall be available to

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locate, identify, read, and reproduce by a bus, the regulations pertaining to such photographic copies. buses and to the transportation of pas- (2) Any significant characteristic, sengers shall apply to that commercial feature or other attribute of the origi- motor vehicle. nal record or document, which photog- [53 FR 18052, May 19, 1988, as amended at 60 raphy in black and white will not pre- FR 38744, July 28, 1995] serve, shall be clearly indicated before the photograph is made. § 390.35 Certificates, reports, and (3) The reverse side of printed forms records: Falsification, reproduction, need not be copied if nothing has been or alteration. added to the printed matter common to No motor carrier, its agents, officers, all such forms, but an identified speci- representatives, or employees shall men of each form shall be on the film make or cause to make— for reference. (a) A fraudulent or intentionally (4) Film used for photographing cop- false statement on any application, ies shall be of permanent record-type certificate, report, or record required meeting in all respects the minimum by part 325 of subchapter A or this sub- specifications of the National Bureau chapter; of Standards, and all processes rec- (b) A fraudulent or intentionally ommended by the manufacturer shall false entry on any application, certifi- be observed to protect it from deterio- cate, report, or record required to be ration or accidental destruction. used, completed, or retained, to comply (5) Each roll of film shall include a with any requirement of this sub- microfilm of a certificate or certifi- chapter or part 325 of subchapter A; or cates stating that the photographs are (c) A reproduction, for fraudulent direct or facsimile reproductions of the purposes, of any application, certifi- original records. Such certificate(s) cate, report, or record required by this shall be executed by a person or per- subchapter or part 325 of subchapter A. sons having personal knowledge of the material covered thereby. § 390.37 Violation and penalty. (c) All records and documents re- Any person who violates the rules set quired to be maintained under this sub- forth in this subchapter or part 325 of chapter may be destroyed after they subchapter A may be subject to civil or have been suitably photographed for criminal penalties. preservation. (d) Exception. All records except those Subpart C [Reserved] requiring a signature may be maintained through the use of computer technology provided the motor carrier PART 391—QUALIFICATIONS OF can produce, upon demand, a computer DRIVERS printout of the required data. Subpart A—General § 390.33 Commercial motor vehicles used for purposes other than de- Sec. fined. 391.1 Scope of the rules in this part; additional qualifications; duties of carrier- Whenever a commercial motor vehi- drivers. cle of one type is used to perform the 391.2 General exemptions. functions normally performed by a commercial motor vehicle of another Subpart B—Qualification and type, the requirements of this sub- Disqualification of Drivers chapter and part 325 of subchapter A 391.11 General qualifications of drivers. shall apply to the commercial motor 391.13 Responsibilities of drivers. vehicle and to its operation in the 391.15 Disqualification of drivers. same manner as though the commercial motor vehicle were actually a Subpart C—Background and Character commercial motor vehicle of the latter 391.21 Application for employment. type. Example: If a commercial motor 391.23 Investigation and inquiries. vehicle other than a bus is used to per- 391.25 Annual inquiry and review of driving form the functions normally performed record.

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391.27 Record of violations. respect to the qualifications of their drivers. Subpart D—Tests (b) A motor carrier who employs 391.31 Road test. himself/herself as a driver must comply 391.33 Equivalent of road test. with both the rules in this part that apply to motor carriers and the rules Subpart E—Physical Qualifications and in this part that apply to drivers. Examinations [35 FR 6460, Apr. 22, 1970, as amended at 53 391.41 Physical qualifications for drivers. FR 18057, May 19, 1988; 60 FR 38744, July 28, 391.43 Medical examination; certificate of 1995] physical examination. 391.45 Persons who must be medically exam- § 391.2 General exemptions. ined and certified. (a) Farm custom operation. The rules 391.47 Resolution of conflicts of medical evaluation. in this part do not apply to a driver 391.49 Alternative physical qualification who drives a commercial motor vehicle standards for the loss or impairment of controlled and operated by a person en- limbs. gaged in custom-harvesting operations, if the commercial motor vehicle is used Subpart F—Files and Records to— 391.51 General requirements for driver qual- (1) Transport farm machinery, sup- ification files. plies, or both, to or from a farm for custom-harvesting operations on a Subpart G—Limited Exemptions farm; or (2) Transport custom-harvested crops 391.61 Drivers who were regularly employed before January 1, 1971. to storage or market. 391.62 Limited exemptions for intra-city (b) Apiarian industries. The rules in zone drivers. this part do not apply to a driver who 391.63 Multiple-employer drivers. is operating a commercial motor vehi- 391.64 Grandfathering for certain drivers cle controlled and operated by a bee- participating in vision and diabetes waiv- keeper engaged in the seasonal trans- er study programs. portation of bees. 391.65 Drivers furnished by other motor car- (c) Certain farm vehicle drivers. The riers. 391.67 Farm vehicle drivers of articulated rules in this part do not apply to a commercial motor vehicles. farm vehicle driver except a farm vehi- 391.68 Private motor carrier of passengers cle driver who drives an articulated (nonbusiness). (combination) commercial motor vehi- 391.69 Private motor carrier of passengers cle, as defined in § 390.5. (For limited (business). exemptions for farm vehicle drivers of 391.71 [Reserved] articulated commercial motor vehicles, AUTHORITY: 49 U.S.C. 322, 504, 31133, 31136, see § 391.67.) and 31502; and 49 CFR 1.73. [36 FR 24219, Dec. 22, 1971, as amended at 37 SOURCE: 35 FR 6460, Apr. 22, 1970, unless FR 26112, Dec. 8, 1972; 54 FR 12202, Mar. 24, otherwise noted. 1989; 60 FR 38745, July 28, 1995; 61 FR 13346, Mar. 26, 1996; 61 FR 17253, Apr. 19, 1996] EDITORIAL NOTE: Nomenclature changes to part 391 appear at 66 FR 49873, Oct. 1, 2001. Subpart B—Qualification and Subpart A—General Disqualification of Drivers

§ 391.1 Scope of the rules in this part; § 391.11 General qualifications of driv- additional qualifications; duties of ers. carrier-drivers. (a) A person shall not drive a com- (a) The rules in this part establish mercial motor vehicle unless he/she is minimum qualifications for persons qualified to drive a commercial motor who drive commercial motor vehicles vehicle. Except as provided in § 391.63, a as, for, or on behalf of motor carriers. motor carrier shall not require or per- The rules in this part also establish mit a person to drive a commercial minimum duties of motor carriers with motor vehicle unless that person is

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qualified to drive a commercial motor baggage in a passenger-carrying com- vehicle. mercial motor vehicle) has been prop- (b) Except as provided in subpart G of erly located, distributed, and secured this part, a person is qualified to drive in or on the commercial motor vehicle a motor vehicle if he/she— he/she drives; (1) Is at least 21 years old; (b) Is familiar with methods and pro- (2) Can read and speak the English cedures for securing cargo in or on the language sufficiently to converse with commercial motor vehicle he/she the general public, to understand high- drives. way traffic signs and signals in the English language, to respond to official [63 FR 33277, June 18, 1998] inquiries, and to make entries on reports and records; § 391.15 Disqualification of drivers. (3) Can, by reason of experience, (a) General. A driver who is disquali- training, or both, safely operate the fied shall not drive a commercial type of commercial motor vehicle he/ motor vehicle. A motor carrier shall she drives; not require or permit a driver who is (4) Is physically qualified to drive a disqualified to drive a commercial commercial motor vehicle in accord- motor vehicle. ance with subpart E—Physical Quali- (b) Disqualification for loss of driving fications and Examinations of this privileges. (1) A driver is disqualified for part; the duration of the driver’s loss of his/ (5) Has a currently valid commercial her privilege to operate a commercial motor vehicle operator’s license issued motor vehicle on public highways, ei- only by one State or jurisdiction; ther temporarily or permanently, by (6) Has prepared and furnished the reason of the revocation, suspension, motor carrier that employs him/her withdrawal, or denial of an operator’s with the list of violations or the cer- license, permit, or privilege, until that tificate as required by § 391.27; operator’s license, permit, or privilege (7) Is not disqualified to drive a com- is restored by the authority that re- mercial motor vehicle under the rules voked, suspended, withdrew, or denied in § 391.15; and it. (8) Has successfully completed a driv- (2) A driver who receives a notice er’s road test and has been issued a cer- that his/her license, permit, or privi- tificate of driver’s road test in accord- lege to operate a commercial motor ve- ance with § 391.31, or has presented an hicle has been revoked, suspended, or operator’s license or a certificate of withdrawn shall notify the motor car- road test which the motor carrier that rier that employs him/her of the con- employs him/her has accepted as equiv- tents of the notice before the end of the alent to a road test in accordance with business day following the day the § 391.33. driver received it. [35 FR 6460, Apr. 22, 1970, as amended at 35 (c) Disqualification for criminal and FR 17420, Nov. 13, 1970; 35 FR 19181, Dec. 18, other offenses— (1) General rule. A driver 1970; 36 FR 222, Jan. 7, 1971, 36 FR 24220, Dec. who is convicted of (or forfeits bond or 22, 1971; 45 FR 46424, July 10, 1980; 52 FR 20589, collateral upon a charge of) a disquali- June 1, 1987; 59 FR 60323, Nov. 23, 1994; 60 FR 38744, 38745, July 28, 1995; 63 FR 33276, June fying offense specified in paragraph 18, 1998] (c)(2) of this section is disqualified for the period of time specified in para- § 391.13 Responsibilities of drivers. graph (c)(3) of this section, if— In order to comply with the require- (i) The offense was committed during ments of § 392.9(a) and § 393.9 of this on-duty time as defined in § 395.2(a) of subchapter, a motor carrier shall not this subchapter or as otherwise speci- require or permit a person to drive a fied; and commercial motor vehicle unless the (ii) The driver is employed by a person— motor carrier or is engaged in activi- (a) Can, by reason of experience, ties that are in furtherance of a com- training, or both, determine whether mercial enterprise in interstate, intra- the cargo he/she transports (including state, or foreign commerce;

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(2) Disqualifying offenses. The fol- qualify him/her under the rules in this lowing offenses are disqualifying of- section. fenses: (d) Disqualification for violation of out- (i) Driving a commercial motor vehi- of-service orders—(1) General rule. A cle while under the influence of alco- driver who is convicted of violating an hol. This shall include: out-of-service order is disqualified for (A) Driving a commercial motor ve- the period of time specified in para- hicle while the person’s alcohol con- graph (d)(2) of this section. centration is 0.04 percent or more; (2) Duration of disqualification for vio- (B) Driving under the influence of al- lation of out-of-service orders—(i) First cohol, as prescribed by State law; or violation. A driver is disqualified for (C) Refusal to undergo such testing not less than 90 days nor more than one as is required by any State or jurisdic- year if the driver is convicted of a first tion in the enforcement of violation of an out-of-service order. § 391.15(c)(2)(i) (A) or (B), or § 392.5(a)(2). (ii) Second violation. A driver is dis- (ii) Driving a commercial motor vehi- qualified for not less than one year nor cle under the influence of a 21 CFR more than five years if, during any 10- 1308.11 Schedule I identified controlled year period, the driver is convicted of substance, an amphetamine, a narcotic two violations of out-of-service orders drug, a formulation of an amphet- in separate incidents. amine, or a derivative of a narcotic (iii) Third or subsequent violation. A drug; driver is disqualified for not less than three years nor more than five years if, (iii) Transportation, possession, or during any 10-year period, the driver is unlawful use of a 21 CFR 1308.11 convicted of three or more violations Schedule I identified controlled sub- of out-of-service orders in separate instance, amphetamines, narcotic drugs, cidents. formulations of an amphetamine, or (iv) Special rule for hazardous materials derivatives of narcotic drugs while the and passenger offenses. A driver is dis- driver is on duty, as the term on-duty qualified for a period of not less than time is defined in § 395.2 of this sub- 180 days nor more than two years if the chapter; driver is convicted of a first violation (iv) Leaving the scene of an accident of an out-of-service order while trans- while operating a commercial motor porting hazardous materials required vehicle; or to be placarded under the Hazardous (v) A felony involving the use of a Materials Transportation Act (49 commercial motor vehicle. U.S.C. 5101 et seq.), or while operating (3) Duration of disqualification—(i) commercial motor vehicles designed to First offenders. A driver is disqualified transport more than 15 passengers, infor 1 year after the date of conviction cluding the driver. A driver is disquali- or forfeiture of bond or collateral if, fied for a period of not less than three during the 3 years preceding that date, years nor more than five years if, dur- the driver was not convicted of, or did ing any 10-year period, the driver is not forfeit bond or collateral upon a convicted of any subsequent violations charge of an offense that would dis- of out-of-service orders, in separate in- qualify the driver under the rules of cidents, while transporting hazardous this section. Exemption. The period of materials required to be placarded disqualification is 6 months if the con- under the Hazardous Materials Trans- viction or forfeiture of bond or collat- portation Act, or while operating com- eral soley concerned the transportation mercial motor vehicles designed to or possession of substances named in transport more than 15 passengers, in- paragraph (c)(2)(iii) of this section. cluding the driver. (ii) Subsequent offenders. A driver is disqualified for 3 years after the date of [37 FR 24902, Nov. 23, 1972, as amended at 49 his/her conviction or forfeiture of bond FR 44215, Nov. 5, 1984; 51 FR 8200, Mar. 10, 1986; 53 FR 18057, May 19, 1988; 53 FR 39051, or collateral if, during the 3 years pre- Oct. 4, 1988; 54 FR 40788, Oct. 3, 1989; 59 FR ceding that date, he/she was convicted 26028, May 18, 1994; 60 FR 38744, 38745, July 28, of, or forfeited bond or collateral upon 1995; 62 FR 37152, July 11, 1997; 63 FR 33277, a charge of, an offense that would dis- June 18, 1998]

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Subpart C—Background and license, permit, or privilege to operate Character a motor vehicle that has been issued to the applicant, or a statement that no § 391.21 Application for employment. such denial, revocation, or suspension (a) Except as provided in subpart G of has occurred; (10) A list of the names and addresses this part, a person shall not drive a of the applicant’s employers during the commercial motor vehicle unless he/ 3 years preceding the date the applica- she has completed and furnished the tion is submitted, together with the motor carrier that employs him/her dates he/she was employed by, and his/ with an application for employment her reason for leaving the employ of, that meets the requirements of para- each employer; graph (b) of this section. (11) For those drivers applying to op- (b) The application for employment erate a commercial motor vehicle as shall be made on a form furnished by defined by Part 383 of this subchapter, the motor carrier. Each application a list of the names and addresses of the form must be completed by the appli- applicant’s employers during the 7-year cant, must be signed by him/her, and must contain the following informa- period preceding the 3 years contained tion: in paragraph (b)(10) of this section for (1) The name and address of the em- which the applicant was an operator of ploying motor carrier; a commercial motor vehicle, together (2) The applicant’s name, address, with the dates of employment and the date of birth, and social security num- reasons for leaving such employment; ber; and (3) The addresses at which the appli- (12) The following certification and cant has resided during the 3 years pre- signature line, which must appear at ceding the date on which the applica- the end of the application form and be tion is submitted; signed by the applicant: (4) The date on which the application This certifies that this application was is submitted; completed by me, and that all entries on it (5) The issuing State, number, and and information in it are true and complete expiration date of each unexpired com- to the best of my knowledge. mercial motor vehicle operator’s li- ——————————————————————— (Date) cense or permit that has been issued to ——————————————————————— the applicant; (Applicant’s signature) (6) The nature and extent of the applicant’s experience in the operation of (c) A motor carrier may require an motor vehicles, including the type of applicant to provide information in ad- equipment (such as buses, trucks, dition to the information required by truck tractors, semitrailers, full trail- paragraph (b) of this section on the ap- ers, and pole trailers) which he/she has plication form. operated; (d) Before an application is sub- (7) A list of all motor vehicle acci- mitted, the motor carrier shall inform dents in which the applicant was in- the applicant that the information he/ volved during the 3 years preceding the she provides in accordance with para- date the application is submitted, graph (b) (10) of this section may be specifying the date and nature of each used, and the applicant’s prior employ- accident and any fatalities or personal ers may be contacted, for the purpose injuries it caused; of investigating the applicant’s back- (8) A list of all violations of motor ground as required by § 391.23. vehicle laws or ordinances (other than [35 FR 6460, Apr. 22, 1970, as amended at 35 violations involving only parking) of FR 17420, Nov. 13, 1970; 52 FR 20589, June 1, which the applicant was convicted or 1987; 60 FR 38744, July 28, 1995] forfeited bond or collateral during the 3 years preceding the date the applica- § 391.23 Investigation and inquiries. tion is submitted; (a) Except as provided in subpart G of (9) A statement setting forth in de- this part, each motor carrier shall tail the facts and circumstances of any make the following investigations and denial, revocation, or suspension of any inquiries with respect to each driver it

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employs, other than a person who has (b) Except as provided in subpart G of been a regularly employed driver of the this part, each motor carrier shall, at motor carrier for a continuous period least once every 12 months, review the which began before January 1, 1971: driving record of each driver it em- (1) An inquiry into the driver’s driv- ploys to determine whether that driver ing record during the preceding 3 years meets minimum requirements for safe to the appropriate agency of every driving or is disqualified to drive a State in which the driver held a motor commercial motor vehicle pursuant to vehicle operator’s license or permit § 391.15. during those 3 years; and (1) The motor carrier must consider (2) An investigation of the driver’s any evidence that the driver has vio- employment record during the pre- lated any applicable Federal Motor ceding 3 years. Carrier Safety Regulations in this sub- (b) The inquiry to State agencies re- chapter or Hazardous Materials Regu- quired by paragraph (a)(1) of this sec- lations (49 CFR chapter I, subchapter tion must be made within 30 days of C). the date the driver’s employment be- (2) The motor carrier must consider gins and shall be made in the form and the driver’s accident record and any manner those agencies prescribe. A evidence that the driver has violated copy of the response by each State laws governing the operation of motor agency, showing the driver’s driving vehicles, and must give great weight to record or certifying that no driving violations, such as speeding, reckless record exists for that driver, shall be driving, and operating while under the retained in the carrier’s files as part of influence of alcohol or drugs, that indi- the driver’s qualification file. cate that the driver has exhibited a dis- (c) The investigation of the driver’s regard for the safety of the public. employment record required by para- (c) Recordkeeping. (1) A copy of the graph (a)(2) of this section must be response from each State agency to the made within 30 days of the date his/her inquiry required by paragraph (a) of employment begins. The investigation this section shall be maintained in the may consist of personal interviews, driver’s qualification file. telephone interviews, letters, or any (2) A note, including the name of the other method of obtaining information person who performed the review of the that the carrier deems appropriate. driving record required by paragraph Each motor carrier must make a writ- (b) of this section and the date of such ten record with respect to each past review, shall be maintained in the driv- employer who was contacted. The er’s qualification file. record must include the past employer’s name and address, the date he/she [63 FR 33277, June 18, 1998] was contacted, and his/her comments with respect to the driver. The record § 391.27 Record of violations. shall be retained in the motor carrier’s (a) Except as provided in subpart G of files as part of the driver’s qualifica- this part, each motor carrier shall, at tion file. least once every 12 months, require [35 FR 6460, Apr. 22, 1970, as amended at 35 each driver it employs to prepare and FR 17420, Nov. 13, 1970] furnish it with a list of all violations of motor vehicle traffic laws and ordi- § 391.25 Annual inquiry and review of nances (other than violations involving driving record. only parking) of which the driver has (a) Except as provided in subpart G of been convicted or on account of which this part, each motor carrier shall, at he/she has forfeited bond or collateral least once every 12 months, make an during the preceding 12 months. inquiry into the driving record of each (b) Each driver shall furnish the list driver it employs, covering at least the required in accordance with paragraph preceding 12 months, to the appro- (a) of this section. If the driver has not priate agency of every State in which been convicted of, or forfeited bond or the driver held a commercial motor ve- collateral on account of, any violation hicle operator’s license or permit dur- which must be listed, he/she shall so ing the time period. certify.

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(c) The form of the driver’s list or (c) The road test must be of sufficient certification shall be prescribed by the duration to enable the person who motor carrier. The following form may gives it to evaluate the skill of the per- be used to comply with this section: son who takes it at handling the commercial motor vehicle, and associated DRIVER’S CERTIFICATION equipment, that the motor carriers in- I certify that the following is a true and tends to assign to him/her. As a min- complete list of traffic violations (other than imum, the person who takes the test parking violations) for which I have been convicted or forfeited bond or collateral dur- must be tested, while operating the ing the past 12 months. type of commercial motor vehicle the Date of conviction Offense motor carrier intends to assign him/ Location Type of motor vehicle operated her, on his/her skill at performing each If no violations are listed above, I certify of the following operations: that I have not been convicted or forfeited (1) The pretrip inspection required by bond or collateral on account of any viola- § 392.7 of this subchapter; tion required to be listed during the past 12 (2) Coupling and uncoupling of com- months. bination units, if the equipment he/she (Date of certification) (Driver’s signature) may drive includes combination units; (Motor carrier’s name) (3) Placing the commercial motor vehicle in operation; (Motor carrier’s address) (4) Use of the commercial motor ve- (Reviewed by: Signature) (Title) hicle’s controls and emergency equip- (d) The motor carrier shall retain the ment; list or certificate required by this sec- (5) Operating the commercial motor tion, or a copy of it, in its files as part vehicle in traffic and while passing of the driver’s qualification file. other motor vehicles; (e) Drivers who have provided infor- (6) Turning the commercial motor mation required by § 383.31 of this sub- vehicle; chapter need not repeat that informa- (7) Braking, and slowing the commer- tion in the annual list of violations re- cial motor vehicle by means other than quired by this section. braking; and [35 FR 6460, Apr. 22, 1970, as amended at 35 (8) Backing and parking the commer- FR 17420, Nov. 13, 1970; 52 FR 20589, June 1, cial motor vehicle. 1987; 60 FR 38745, July 28, 1995] (d) The motor carrier shall provide a road test form on which the person who Subpart D—Tests gives the test shall rate the performance of the person who takes it at each § 391.31 Road test. operation or activity which is a part of (a) Except as provided in subpart G, a the test. After he/she completes the person shall not drive a commercial form, the person who gave the test motor vehicle unless he/she has first shall sign it. successfully completed a road test and (e) If the road test is successfully has been issued a certificate of driver’s completed, the person who gave it shall road test in accordance with this sec- complete a certificate of driver’s road tion. test in substantially the form pre- (b) The road test shall be given by scribed in paragraph (f) of this section. the motor carrier or a person des- (f) The form for the certificate of ignated by it. However, a driver who is driver’s road test is substantially as a motor carrier must be given the test follows: by a person other than himself/herself. The test shall be given by a person who CERTIFICATION OF ROAD TEST is competent to evaluate and deter- Driver’s name llllllllllllllll mine whether the person who takes the Social Security No lllllllllllll test has demonstrated that he/she is Operator’s or Chauffeur’s License No llll capable of operating the commercial State llllllllllllllllllll motor vehicle, and associated equip- Type of power unit llllll Type of trail- ment, that the motor carrier intends to er(s) llllllllllllllllllll assign him/her. If passenger carrier, type of bus llllll

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This is to certify that the above-named (c) A motor carrier may require any driver was given a road test under my super- person who presents a license or cer- vision on llllll, 20ll, consisting of tificate as equivalent to the road test approximately lll miles of driving. to take a road test or any other test of It is my considered opinion that this driver his/her driving skill as a condition to possesses sufficient driving skill to operate safely the type of commercial motor vehicle his/her employment as a driver. listed above. [35 FR 6460, Apr. 22, 1970, as amended at 60 FR 38744, July 28, 1995; 63 FR 33277, June 18, (Signature of examiner) 1998]

(Title) Subpart E—Physical Qualifications (Organization and address of examiner) and Examinations (g) A copy of the certificate required § 391.41 Physical qualifications for by paragraph (e) of this section shall be drivers. given to the person who was examined. (a) A person shall not drive a com- The motor carrier shall retain in the mercial motor vehicle unless he/she is driver qualification file of the person physically qualified to do so and, ex- who was examined— cept as provided in § 391.67, has on his/ (1) The original of the signed road her person the original, or a photo- test form required by paragraph (d) of graphic copy, of a medical examiner’s this section; and certificate that he/she is physically (2) The original, or a copy of, the cer- qualified to drive a commercial motor tificate required by paragraph (e) of vehicle. this section. (b) A person is physically qualified to drive a commercial motor vehicle if [35 FR 6460, Apr. 22, 1970, as amended at 36 that person— FR 223, Jan. 7, 1971; 59 FR 8752, Feb. 23, 1994; 60 FR 38744, July 28, 1995] (1) Has no loss of a foot, a leg, a hand, or an arm, or has been granted a skill § 391.33 Equivalent of road test. performance evaluation certificate pursuant to § 391.49; (a) In place of, and as equivalent to, (2) Has no impairment of: the road test required by § 391.31, a per- (i) A hand or finger which interferes son who seeks to drive a commercial with prehension or power grasping; or motor vehicle may present, and a (ii) An arm, foot, or leg which inter- motor carrier may accept— feres with the ability to perform nor- (1) A valid Commercial Driver’s Li- mal tasks associated with operating a cense as defined in § 383.5 of this sub- commercial motor vehicle; or any chapter, but not including double/triple other significant limb defect or limita- trailer or tank vehicle endorsements, tion which interferes with the ability which has been issued to him/her to op- to perform normal tasks associated erate specific categories of commercial with operating a commercial motor ve- motor vehicles and which, under the hicle; or has been granted a skill per- laws of that State, licenses him/her formance evaluation certificate pursu- after successful completion of a road ant to § 391.49. test in a commercial motor vehicle of (3) Has no established medical his- the type the motor carrier intends to tory or clinical diagnosis of diabetes assign to him/her; or mellitus currently requiring insulin for (2) A copy of a valid certificate of control; driver’s road test issued to him/her (4) Has no current clinical diagnosis pursuant to § 391.31 within the pre- of myocardial infarction, angina pec- ceding 3 years. toris, coronary insufficiency, throm- (b) If a driver presents, and a motor bosis, or any other cardiovascular dis- carrier accepts, a license or certificate ease of a variety known to be accom- as equivalent to the road test, the panied by syncope, dyspnea, collapse, motor carrier shall retain a legible or congestive cardiac failure. copy of the license or certificate in its (5) Has no established medical his- files as part of the driver’s qualifica- tory or clinical diagnosis of a res- tion file. piratory dysfunction likely to interfere

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with his/her ability to control and (A) Is familiar with the driver’s med- drive a commercial motor vehicle safe- ical history and assigned duties; and ly; (B) Has advised the driver that the (6) Has no current clinical diagnosis prescribed substance or drug will not of high blood pressure likely to inter- adversely affect the driver’s ability to fere with his/her ability to operate a safely operate a commercial motor ve- commercial motor vehicle safely; hicle; and (7) Has no established medical his- (13) Has no current clinical diagnosis tory or clinical diagnosis of rheumatic, of alcoholism. arthritic, orthopedic, muscular, neuro- muscular, or vascular disease which [35 FR 6460, Apr. 22, 1970, as amended at 35 interferes with his/her ability to con- FR 17420, Nov. 13, 1970; 36 FR 223, Jan. 7, 1971; 36 FR 12857, July 8, 1971; 43 FR 56900, Dec. 5, trol and operate a commercial motor 1978; 55 FR 3554, Feb. 1, 1990; 60 FR 38744, July vehicle safely; 28, 1995; 62 FR 37152, July 11, 1997; 65 FR 59369, (8) Has no established medical his- Oct. 5, 2000] tory or clinical diagnosis of epilepsy or any other condition which is likely to § 391.43 Medical examination; certifi- cause loss of consciousness or any loss cate of physical examination. of ability to control a commercial (a) Except as provided by paragraph motor vehicle; (b) of this section, the medical exam- (9) Has no mental, nervous, organic, ination shall be performed by a li- or functional disease or psychiatric dis- censed medical examiner as defined in order likely to interfere with his/her § 390.5 of this subchapter. ability to drive a commercial motor (b) A licensed optometrist may per- vehicle safely; form so much of the medical examina- (10) Has distant visual acuity of at tion as pertains to visual acuity, field least 20/40 (Snellen) in each eye with- of vision, and the ability to recognize out corrective lenses or visual acuity colors as specified in paragraph (10) of separately corrected to 20/40 (Snellen) § 391.41(b). or better with corrective lenses, dis- (c) Medical examiners shall: tant binocular acuity of at least 20/40 (1) Be knowledgeable of the specific (Snellen) in both eyes with or without physical and mental demands associ- corrective lenses, field of vision of at ated with operating a commercial least 70° in the horizontal Meridian in motor vehicle and the requirements of each eye, and the ability to recognize the colors of traffic signals and devices this subpart, including the medical ad- showing standard red, green, and visory criteria prepared by the FMCSA amber; as guidelines to aid the medical examiner in making the qualification deter- (11) First perceives a forced whispered voice in the better ear at not less mination; and than 5 feet with or without the use of (2) Be proficient in the use of and use a hearing aid or, if tested by use of an the medical protocols necessary to ade- audiometric device, does not have an quately perform the medical examina- average hearing loss in the better ear tion required by this section. greater than 40 decibels at 500 Hz, 1,000 (d) Any driver authorized to operate Hz, and 2,000 Hz with or without a hear- a commercial motor vehicle within an ing aid when the audiometric device is exempt intracity zone pursuant to calibrated to American National § 391.62 of this part shall furnish the ex- Standard (formerly ASA Standard) amining medical examiner with a copy Z24.5—1951. of the medical findings that led to the (12)(i) Does not use a controlled sub- issuance of the first certificate of med- stance identified in 21 CFR 1308.11 ical examination which allowed the Schedule I, an amphetamine, a nar- driver to operate a commercial motor cotic, or any other habit-forming drug. vehicle wholly within an exempt intra- (ii) Exception. A driver may use such city zone. a substance or drug, if the substance or (e) Any driver operating under a lim- drug is prescribed by a licensed med- ited exemption authorized by § 391.64 ical practitioner who: shall furnish the medical examiner

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with a copy of the annual medical find- standard Snellen test. If the driver wears ings of the endocrinologist, ophthal- corrective lenses for driving, these should be mologist or optometrist, as required worn while driver’s visual acuity is being under that section. If the medical ex- tested. If contact lenses are worn, there should be sufficient evidence of good toler- aminer finds the driver qualified under ance of and adaptation to their use. Indicate the limited exemption in § 391.64, such the driver’s need to wear corrective lenses to fact shall be noted on the Medical Ex- meet the vision standard on the Medical Ex- aminer’s Certificate. aminer’s Certificate by checking the box, (f) The medical examination shall be ‘‘Qualified only when wearing corrective performed, and its results shall be re- lenses.’’ In recording distance vision use 20 corded, substantially in accordance feet as normal. Report all vision as a frac- with the following instructions and ex- tion with 20 as the numerator and the smallest type read at 20 feet as the denominator. amination form. Existing forms may be Monocular drivers are not qualified to oper- used until current printed supplies are ate commercial motor vehicles in interstate depleted or until November 6, 2001, commerce. whichever occurs first. Ears. Note evidence of any ear disease, symptoms of aural vertigo, or Meniere’s Syn- INSTRUCTIONS FOR PERFORMING AND drome. When recording hearing, record dis- RECORDING PHYSICAL EXAMINATIONS tance from patient at which a forced whispered voice can first be heard. For the whis- The medical examiner must be familiar pered voice test, the individual should be with 49 CFR 391.41, Physical qualifications stationed at least 5 feet from the examiner for drivers, and should review these instruc- with the ear being tested turned toward the tions before performing the physical exam- examiner. The other ear is covered. Using ination. Answer each question ‘‘yes’’ or ‘‘no’’ the breath which remains after a normal ex- and record numerical readings where indi- piration, the examiner whispers words or cated on the physical examination form. random numbers such as 66, 18, 23, etc. The The medical examiner must be aware of examiner should not use only sibilants (s- the rigorous physical, mental, and emotional sounding test materials). The opposite ear demands placed on the driver of a commer- should be tested in the same manner. If the cial motor vehicle. In the interest of public individual fails the whispered voice test, the safety, the medical examiner is required to audiometric test should be administered. For certify that the driver does not have any the audiometric test, record decibel loss at physical, mental, or organic condition that 500 Hz, 1,000 Hz, and 2,000 Hz. Average the might affect the driver’s ability to operate a decibel loss at 500 Hz, 1,000 Hz and 2,000 Hz commercial motor vehicle safely. and record as described on the form. If the General information. The purpose of this individual fails the audiometric test and the history and physical examination is to de- whispered voice test has not been adminis- tect the presence of physical, mental, or or- tered, the whispered voice test should be per- ganic conditions of such a character and ex- formed to determine if the standard applica- tent as to affect the driver’s ability to oper- ble to that test can be met. ate a commercial motor vehicle safely. The Throat. Note any irremediable deformities examination should be conducted carefully likely to interfere with breathing or swal- and should at least include all of the infor- lowing. mation requested in the following form. His- Heart. Note murmurs and arrhythmias, and tory of certain conditions may be cause for any history of an enlarged heart, congestive rejection. Indicate the need for further test- heart failure, or cardiovascular disease that ing and/or require evaluation by a specialist. is accompanied by syncope, dyspnea, or col- Conditions may be recorded which do not, lapse. Indicate onset date, diagnosis, medica- because of their character or degree, indicate tion, and any current limitation. An electro- that certification of physical fitness should cardiogram is required when findings so indi- be denied. However, these conditions should cate. be discussed with the driver and he/she Blood pressure (BP). If a driver has hyper- should be advised to take the necessary steps tension and/or is being medicated for hyper- to insure correction, particularly of those tension, he or she should be recertified more conditions which, if neglected, might affect frequently. An individual diagnosed with the driver’s ability to drive safely. mild hypertension (initial BP is greater than General appearance and development. Note 160/90 but below 181/105) should be certified marked overweight. Note any postural defor one 3-month period and should be recer- fect, perceptible limp, tremor, or other con- tified on an annual basis thereafter if his or ditions that might be caused by alcoholism, her BP is reduced. An individual diagnosed thyroid intoxication or other illnesses. with moderate to severe hypertension Head-eyes. When other than the Snellen (initial BP is greater than 180/104) should not chart is used, the results of such test must be certified until the BP has been reduced to be expressed in values comparable to the the mild range (below 181/105). At that time,

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a 3-month certification can be issued. Once cate additional testing and evaluation the driver has reduced his or her BP to below should be conducted. 161/91, he or she should be recertified every 6 Extremities. Carefully examine upper and months thereafter. lower extremities and note any loss or im- Lungs. Note abnormal chest wall expan- pairment of leg, foot, toe, arm, hand, or fin- sion, respiratory rate, breath sounds includ- ger. Note any deformities, atrophy, paral- ing wheezes or alveolar rales, impaired res- ysis, partial paralysis, clubbing, edema, or piratory function, dyspnea, or cyanosis. Ab- hypotonia. If a hand or finger deformity ex- normal finds on physical exam may require ists, determine whether prehension and further testing such as pulmonary tests and/ power grasp are sufficient to enable the driv- or x-ray of chest. er to maintain steering wheel grip and to Abdomen and Viscera. Note enlarged liver, control other vehicle equipment during rou- enlarged spleen, abnormal masses, bruits, tine and emergency driving operations. If a hernia, and significant abdominal wall mus- foot or leg deformity exists, determine cle weakness and tenderness. If the diagnosis whether sufficient mobility and strength suggests that the condition might interfere exist to enable the driver to operate pedals with the control and safe operation of a com- properly. In the case of any loss or impair- mercial motor vehicle, further testing and ment to an extremity which may interfere evaluation is required. with the driver’s ability to operate a com- Genital-urinary and rectal examination. A mercial motor vehicle safely, the medical ex- urinalysis is required. Protein, blood or aminer should state on the medical certifi- sugar in the urine may be an indication for cate ‘‘medically unqualified unless accom- further testing to rule out any underlying panied by a Skill Performance Evaluation medical problems. Note hernias. A condition Certificate.’’ The driver must then apply to causing discomfort should be evaluated to the Field Service Center of the FMCSA, for determine the extent to which the condition might interfere with the control and safe op- the State in which the driver has legal resi- eration of a commercial motor vehicle. dence, for a Skill Performance Evaluation Neurological. Note impaired equilibrium, Certificate under § 391.49. coordination, or speech pattern; paresthesia; Laboratory and Other Testing. Other test(s) asymmetric deep tendon reflexes; sensory or may be indicated based upon the medical positional abnormalities; abnormal patellar history or findings of the physical examina- and Babinski’s reflexes; ataxia. Abnormal tion. neurological responses may be an indication Diabetes. If insulin is necessary to control for further testing to rule out an underlying a diabetic driver’s condition, the driver is medical condition. Any neurological condi- not qualified to operate a commercial motor tion should be evaluated for the nature and vehicle in interstate commerce. If mild dia- severity of the condition, the degree of limi- betes is present and it is controlled by use of tation present, the likelihood of progressive an oral hypoglycemic drug and/or diet and limitation, and the potential for sudden in- exercise, it should not be considered dis- capacitation. In instances where the medical qualifying. However, the driver must remain examiner has determined that more frequent under adequate medical supervision. monitoring of a condition is appropriate, a Upon completion of the examination, the certificate for a shorter period should be medical examiner must date and sign the issued. form, provide his/her full name, office ad- Spine, musculoskeletal. Previous surgery, dress and telephone number. The completed deformities, limitation of motion, and ten- medical examination form shall be retained derness should be noted. Findings may indi- on file at the office of the medical examiner.

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(g) If the medical examiner finds that was examined and one copy to the the person he/she examined is phys- motor carrier that employs him/her. ically qualified to drive a commercial (h) The medical examiner’s certifi- motor vehicle in accordance with cate shall be substantially in accord- § 391.41(b), the medical examiner shall ance with the following form. Existing complete a certificate in the form pre- forms may be used until current print- scribed in paragraph (h) of this section ed supplies are depleted or until No- and furnish one copy to the person who vember 6, 2001, whichever occurs first.

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[35 FR 6460, Apr. 22, 1970] Finding Aids section of the printed volume and on GPO Access. EDITORIAL NOTE: For FEDERAL REGISTER ci- tations affecting § 391.43, see the List of CFR Sections Affected, which appears in the

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§ 391.45 Persons who must be medi- (i) In cases where the driver refuses cally examined and certified. to agree on a specialist and the appli- Except as provided in § 391.67, the fol- cant is the motor carrier, the applicant lowing persons must be medically ex- must submit a statement of his/her amined and certified in accordance agreement to submit the matter to an with § 391.43 as physically qualified to impartial medical specialist in the operate a commercial motor vehicle: field, proof that he/she has requested (a) Any person who has not been the driver to submit to the medical medically examined and certified as specialist, and the response, if any, of physically qualified to operate a com- the driver to his/her request. mercial motor vehicle; (ii) In cases where the motor carrier refuses to agree on a medical spe- (b)(1) Any driver who has not been cialist, the driver must submit an opin- medically examined and certified as ion and test results of an impartial qualified to operate a commercial medical specialist, proof that he/she motor vehicle during the preceding 24 has requested the motor carrier to months; or agree to submit the matter to the med- (2) Any driver authorized to operate a ical specialist and the response, if any, commercial motor vehicle only with an of the motor carrier to his/her request. exempt intracity zone pursuant to (4) The applicant must include a § 391.62, or only by operation of the ex- statement explaining in detail why the emption in § 391.64, if such driver has decision of the medical specialist iden- not been medically examined and certified in paragraph (b)(3) of this sec- tified as qualified to drive in such zone tion, is unacceptable. during the preceding 12 months; and (5) The applicant must submit proof (c) Any driver whose ability to per- that the medical specialist mentioned form his/her normal duties has been in paragraph (b)(3) of this section was impaired by a physical or mental in- provided, prior to his/her determina- jury or disease. tion, the medical history of the driver [35 FR 6460, Apr. 22, 1970, as amended at 36 and an agreed-upon statement of the FR 223, Jan. 7, 1971; 54 FR 12202, Mar. 24, 1989; work the driver performs. 61 FR 13347, Mar. 26, 1996] (6) The applicant must submit the medical history and statement of work § 391.47 Resolution of conflicts of med- provided to the medical specialist ical evaluation. under paragraph (b)(5) of this section. (a) Applications. Applications for de- (7) The applicant must submit all termination of a driver’s medical quali- medical records and statements of the fications under standards in this part physicians who have given opinions on will only be accepted if they conform the driver’s qualifications. to the requirements of this section. (8) The applicant must submit a de- (b) Content. Applications will be ac- scription and a copy of all written and cepted for consideration only if the fol- documentary evidence upon which the lowing conditions are met. party making application relies in the (1) The application must contain the form set out in 49 CFR 386.37. name and address of the driver, motor (9) The application must be accom- carrier, and all physicians involved in panied by a statement of the driver the proceeding. that he/she intends to drive in inter- (2) The applicant must submit proof state commerce not subject to the that there is a disagreement between commercial zone exemption or a state- the physician for the driver and the ment of the carrier that he/she has physician for the motor carrier con- used or intends to use the driver for cerning the driver’s qualifications. such work. (3) The applicant must submit a copy (10) The applicant must submit three of an opinion and report including re- copies of the application and all sults of all tests of an impartial med- records. ical specialist in the field in which the (c) Information. The Director, Office medical conflict arose. The specialist of Bus and Truck Standards and Oper- should be one agreed to by the motor ations (MC–PSD) may request further carrier and the driver. information from the applicant if he/

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she determines that a decision cannot § 391.49 Alternative physical qualifica- be made on the evidence submitted. If tion standards for the loss or im- the applicant fails to submit the infor- pairment of limbs. mation requested, the Director may (a) A person who is not physically refuse to issue a determination. qualified to drive under § 391.41(b)(1) or (d)(1) Action. Upon receiving a satis- (b)(2) and who is otherwise qualified to factory application the Director, Office drive a commercial motor vehicle, may of Bus and Truck Standards and Oper- drive a commercial motor vehicle, if ations (MC–PSD) shall notify the par- the State Director, FMCSA, has grant- ties (the driver, motor carrier, or any ed a Skill Performance Evaluation other interested party) that the appli- (SPE) Certificate to that person. cation has been accepted and that a de- (b) SPE certificate.—(1) Application. A termination will be made. A copy of all letter of application for an SPE certifi- evidence received shall be attached to cate may be submitted jointly by the the notice. person (driver applicant) who seeks an (2) Reply. Any party may submit a SPE certificate and by the motor car- reply to the notification within 15 days rier that will employ the driver appli- after service. Such reply must be ac- cant, if the application is accepted. companied by all evidence the party (2) Application address. The applica- wants the Director, Office of Bus and tion must be addressed to the applica- Truck Standards and Operations (MC– ble field service center, FMCSA, for the PSD) to consider in making his/her de- State in which the co-applicant motor termination. Evidence submitted carrier’s principal place of business is should include all medical records and located. The address of each, and the test results upon which the party re- States serviced, are listed in § 390.27 of lies. this chapter. (3) Parties. A party for the purposes of (3) Exception. A letter of application this section includes the motor carrier for an SPE certificate may be sub- and the driver, or anyone else submit- mitted unilaterally by a driver appli- ting an application. cant. The application must be ad- (e) Petitions to review, burden of proof. dressed to the field service center, The driver or motor carrier may peti- FMCSA, for the State in which the tion to review the Director’s deter- driver has legal residence. The driver mination. Such petition must be sub- applicant must comply with all the requirements of paragraph (c) of this sec- mitted in accordance with § 386.13(a) of tion except those in (c)(1)(i) and (iii). this chapter. The burden of proof in The driver applicant shall respond to such a proceeding is on the petitioner. the requirements of paragraphs (c)(2)(i) (f) Status of driver. Once an applica- to (v) of this section, if the information tion is submitted to the Director, Of- is known. fice of Bus and Truck Standards and (c) A letter of application for an SPE Operations (MC–PSD), the driver shall certificate shall contain: be deemed disqualified until such time (1) Identification of the applicant(s): as the Director, Office of Bus and (i) Name and complete address of the Truck Standards and Operations (MC– motor carrier coapplicant; PSD) makes a determination, or until (ii) Name and complete address of the the Director, Office of Bus and Truck driver applicant; Standards and Operations (MC–PSD) (iii) The U.S. DOT Motor Carrier orders otherwise. Identification Number, if known; and (49 U.S.C. 304, 322; 18 U.S.C. 831–835; Pub. L. (iv) A description of the driver appli- 93–633, 88 Stat. 8156 (49 U.S.C. 1801, et seq.); 49 cant’s limb impairment for which SPE CFR 1.48, 301.60) certificate is requested. [42 FR 18081, Apr. 5, 1977, as amended at 42 (2) Description of the type of oper- FR 53966, Oct. 4, 1977; 60 FR 38746, July 28, ation the driver will be employed to 1995] perform:

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(i) State(s) in which the driver will (ii) Motor carrier official’s signature operate for the motor carrier co- (if application has a coapplicant), title, applicant (if more than 10 States, des- and date signed. Depending upon the ignate general geographic area only); motor carrier’s organizational struc- (ii) Average period of time the driver ture (corporation, partnership, or pro- will be driving and/or on duty, per day; prietorship), the signer of the applica- (iii) Type of commodities or cargo to tion shall be an officer, partner, or the be transported; proprietor. (iv) Type of driver operation (i.e., (d) The letter of application for an sleeper team, relay, owner operator, SPE certificate shall be accompanied etc.); and by: (v) Number of years experience oper- (1) A copy of the results of the med- ating the type of commercial motor ve- ical examination performed pursuant hicle(s) requested in the letter of appli- to § 391.43; cation and total years of experience op- (2) A copy of the medical certificate erating all types of commercial motor completed pursuant to § 391.43(h); vehicles. (3) A medical evaluation summary (3) Description of the commercial completed by either a board qualified motor vehicle(s) the driver applicant or board certified physiatrist (doctor of intends to drive: physical medicine) or orthopedic sur- (i) Truck, truck tractor, or bus make, geon. The coapplicant motor carrier or model, and year (if known); the driver applicant shall provide the (ii) Drive train; physiatrist or orthopedic surgeon with (A) Transmission type (automatic or a description of the job-related tasks manual—if manual, designate number the driver applicant will be required to of forward speeds); perform; (B) Auxiliary transmission (if any) (i) The medical evaluation summary and number of forward speeds; and for a driver applicant disqualified (C) Rear axle (designate single speed, under § 391.41(b)(1) shall include: 2 speed, or 3 speed). (iii) Type of brake system; (A) An assessment of the functional capabilities of the driver as they relate (iv) Steering, manual or power assisted; to the ability of the driver to perform normal tasks associated with operating (v) Description of type of trailer(s) (i.e., van, flatbed, cargo tank, drop a commercial motor vehicle; and frame, lowboy, or pole); (B) A statement by the examiner (vi) Number of semitrailers or full that the applicant is capable of dem- trailers to be towed at one time; onstrating precision prehension (e.g., (vii) For commercial motor vehicles manipulating knobs and switches) and designed to transport passengers, indi- power grasp prehension (e.g., holding cate the seating capacity of commer- and maneuvering the steering wheel) cial motor vehicle; and with each upper limb separately. This (viii) Description of any modifica- requirement does not apply to an indi- tion(s) made to the commercial motor vidual who was granted a waiver, ab- vehicle for the driver applicant; attach sent a prosthetic device, prior to the photograph(s) where applicable. publication of this amendment. (4) Otherwise qualified: (ii) The medical evaluation summary (i) The coapplicant motor carrier for a driver applicant disqualified must certify that the driver applicant under § 391.41(b)(2) shall include: is otherwise qualified under the regula- (A) An explanation as to how and tions of this part; why the impairment interferes with (ii) In the case of a unilateral appli- the ability of the applicant to perform cation, the driver applicant must cer- normal tasks associated with operating tify that he/she is otherwise qualified a commercial motor vehicle; under the regulations of this part. (B) An assessment and medical opin- (5) Signature of applicant(s): ion of whether the condition will likely (i) Driver applicant’s signature and remain medically stable over the life- date signed; time of the driver applicant; and

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(C) A statement by the examiner that (i) A motor carrier who is a co- the applicant is capable of dem- applicant must file the required docu- onstrating precision prehension (e.g., ments with the Medical Program Spe- manipulating knobs and switches) and cialist, FMCSA for the State in which power grasp prehension (e.g., holding the carrier’s principal place of business and maneuvering the steering wheel) is located; or with each upper limb separately. This (ii) A motor carrier who employs a requirement does not apply to an indi- driver who has been issued a unilateral vidual who was granted an SPE certifi- SPE certificate must file the required cate, absent an orthotic device, prior documents with the Medical Program to the publication of this amendment. Specialist, FMCSA service center, for (4) A description of the driver appli- the State in which the driver has legal cant’s prosthetic or orthotic device residence. worn, if any; (2) Evaluate the driver with a road (5) Road test: test using the trailer the motor carrier (i) A copy of the driver applicant’s intends the driver to transport or, in road test administered by the motor lieu of, accept a certificate of a trailer carrier coapplicant and the certificate road test from another motor carrier if issued pursuant to § 391.31(b) through the trailer type(s) is similar, or accept (g); or the trailer road test done during the (ii) A unilateral applicant shall be re- Skill Performance Evaluation if it is a sponsible for having a road test admin- similar trailer type(s) to that of the istered by a motor carrier or a person prospective motor carrier. Job tasks, who is competent to administer the as stated in paragraph (e)(3) of this sec- test and evaluate its results. tion, are not evaluated in the Skill (6) Application for employment: Performance Evaluation; (i) A copy of the driver applicant’s (3) Evaluate the driver for those non- application for employment completed driving safety related job tasks associ- pursuant to § 391.21; or ated with whatever type of trailer(s) (ii) A unilateral applicant shall be re- will be used and any other nondriving sponsible for submitting a copy of the safety related or job related tasks last commercial driving position’s em- unique to the operations of the employ- ployment application he/she held. If ing motor carrier; and not previously employed as a commer- (4) Use the driver to operate the type cial driver, so state. of commercial motor vehicle defined in (7) A copy of the driver applicant’s the SPE certificate only when the driv- SPE certificate of certain physical de- er is in compliance with the conditions fects issued by the individual State(s), and limitations of the SPE certificate. where applicable; and (f) The driver shall supply each em- (8) A copy of the driver applicant’s ploying motor carrier with a copy of State Motor Vehicle Driving Record for the SPE certificate. the past 3 years from each State in (g) The State Director, FMCSA, may which a motor vehicle driver’s license require the driver applicant to dem- or permit has been obtained. onstrate his or her ability to safely op- (e) Agreement. A motor carrier that erate the commercial motor vehicle(s) employs a driver with an SPE certifi- the driver intends to drive to an agent cate agrees to: of the State Director, FMCSA. The (1) File promptly (within 30 days of SPE certificate form will identify the the involved incident) with the Medical power unit (bus, truck, truck tractor) Program Specialist, FMCSA service for which the SPE certificate has been center, such documents and informa- granted. The SPE certificate forms will tion as may be required about driving also identify the trailer type used in activities, accidents, arrests, license the Skill Performance Evaluation; suspensions, revocations, or with- however, the SPE certificate is not drawals, and convictions which involve limited to that specific trailer type. A the driver applicant. This applies driver may use the SPE certificate whether the driver’s SPE certificate is with other trailer types if a successful a unilateral one or has a coapplicant trailer road test is completed in ac- motor carrier; cordance with paragraph (e)(2) of this

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section. Job tasks, as stated in para- riod of time the current SPE certifi- graph (e)(3) of this section, are not cate has been in effect; evaluated during the Skill Perform- (10) Notification of any change in the ance Evaluation. type of tractor the driver will operate; (h) The State Director, FMCSA, may (11) Driver’s signature and date deny the application for SPE certifi- signed; and cate or may grant it totally or in part (12) Motor carrier coapplicant’s sig- and issue the SPE certificate subject to nature and date signed. such terms, conditions, and limitations (j)(1) Upon granting an SPE certifi- as deemed consistent with the public cate, the State Director, FMCSA, will interest. The SPE certificate is valid notify the driver applicant and co-ap- for a period not to exceed 2 years from plicant motor carrier (if applicable) by date of issue, and may be renewed 30 letter. The terms, conditions, and limi- days prior to the expiration date. tations of the SPE certificate will be (i) The SPE certificate renewal appli- set forth. A motor carrier shall main- cation shall be submitted to the Med- tain a copy of the SPE certificate in its ical Program Specialist, FMCSA serv- driver qualification file. A copy of the ice center, for the State in which the SPE certificate shall be retained in the driver has legal residence, if the SPE motor carrier’s file for a period of 3 certificate was issued unilaterally. If years after the driver’s employment is the SPE certificate has a coapplicant, terminated. The driver applicant shall then the renewal application is sub- have the SPE certificate (or a legible mitted to the Medical Program Spe- copy) in his/her possession whenever on cialist, FMCSA field service center, for duty. the State in which the coapplicant (2) Upon successful completion of the motor carrier’s principal place of busi- skill performance evaluation, the State ness is located. The SPE certificate re- Director, FMCSA, for the State where newal application shall contain the fol- the driver applicant has legal resi- lowing: dence, must notify the driver by letter (1) Name and complete address of and enclose an SPE certificate substan- motor carrier currently employing the tially in the following form: applicant; (2) Name and complete address of the Skill Performance Evaluation Certificate driver; Name of Issuing Agency: llllllllll (3) Effective date of the current SPE Agency Address: llllllllllllll certificate; Telephone Number: ( ) lllllllllll (4) Expiration date of the current Issued Under 49 CFR 391.49, subchapter B of SPE certificate; the Federal Motor Carrier Safety Regula- (5) Total miles driven under the cur- tions rent SPE certificate; Driver’s Name: lllllllllllllll (6) Number of accidents incurred Effective Date: lllllllllllllll while driving under the current SPE SSN: lllllllllllllllllllll certificate, including date of the acci- DOB: llllllllllllllllllll dent(s), number of fatalities, number of Expiration Date: llllllllllllll injuries, and the estimated dollar Address: lllllllllllllllllll amount of property damage; llllllllllllllllllllllll (7) A current medical examination llllllllllllllllllllllll Driver Disability: llllllllllllll report; Check One:lNewlRenewal (8) A medical evaluation summary Driver’s License:lllll lllllllll pursuant to paragraph (d)(3) of this sec- (State) (Number) tion, if an unstable medical condition In accordance with 49 CFR 391.49, sub- exists. All handicapped conditions clas- chapter B of the Federal Motor Carrier Safe- sified under § 391.41(b)(1) are considered ty Regulations (FMCSRs), the driver appli- unstable. Refer to paragraph (d)(3)(ii) cation for a skill performance evaluation of this section for the condition under (SPE) certificate is hereby granted authorizing the above-named driver to operate in § 391.41(b)(2) which may be considered interstate or foreign commerce under the medically stable. provisions set forth below. This certificate is (9) A copy of driver’s current State granted for the period shown above, not to motor vehicle driving record for the pe- exceed 2 years, subject to periodic review as

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may be found necessary. This certificate by this section by either the applicant may be renewed upon submission of a re- or motor carrier is prohibited. newal application. Continuation of this certificate is dependent upon strict adherence [65 FR 25287, May 1, 2000, as amended at 65 by the above-named driver to the provisions FR 59380, Oct. 5, 2000] set forth below and compliance with the FMCSRs. Any failure to comply with provi- Subpart F—Files and Records sions herein may be cause for cancellation. CONDITIONS: As a condition of this cer- § 391.51 General requirements for tificate, reports of all accidents, arrests, sus- driver qualification files. pensions, revocations, withdrawals of driver licenses or permits, and convictions involv- (a) Each motor carrier shall maintain ing the above-named driver shall be reported a driver qualification file for each driv- in writing to the Issuing Agency by the EM- er it employs. A driver’s qualification PLOYING MOTOR CARRIER within 30 days file may be combined with his/her per- after occurrence. sonnel file. LIMITATIONS: 1. Vehicle Type (power unit):* lllllll (b) The qualification file for a driver 2. Vehicle modification(s): lllllllll must include: llllllllllllllllllllllll (1) The driver’s application for em- 3. Prosthetic or Orthotic device(s) (Required ployment completed in accordance to be Worn While Driving): llllllll with § 391.21; llllllllllllllllllllllll (2) A written record with respect to 4. Additional Provision(s): lllllllll each past employer who was contacted llllllllllllllllllllllll and a copy of the response by each NOTICE: To all MOTOR CARRIERS em- State agency, pursuant to § 391.23 in- ploying a driver with an SPE certificate. volving investigation and inquiries; This certificate is granted for the operation (3) The certificate of driver’s road of the power unit only. It is the responsibility test issued to the driver pursuant to of the employing motor carrier to evaluate the driver with a road test using the trailer § 391.31(e), or a copy of the license or type(s) the motor carrier intends the driver certificate which the motor carrier ac- to transport, or in lieu of, accept the trailer cepted as equivalent to the driver’s road test done during the SPE if it is a simi- road test pursuant to § 391.33; lar trailer type(s) to that of the prospective (4) The response of each State agency motor carrier. Also, it is the responsibility to the annual driver record inquiry re- of the employing motor carrier to evaluate quired by § 391.25(a); the driver for those non-driving safety-related job tasks associated with the type of (5) A note relating to the annual re- trailer(s) utilized, as well as, any other non- view of the driver’s driving record as driving safety-related or job-related tasks required by § 391.25(c)(2); unique to the operations of the employing (6) A list or certificate relating to motor carrier. violations of motor vehicle laws and The SPE of the above named driver was ordinances required by § 391.27; given by a Skill Performance Evaluation (7) The medical examiner’s certifi- Program Specialist. It was successfully com- cate of his/her physical qualification to pleted utilizing the above named power unit and llllllll(trailer, if applicable) drive a commercial motor vehicle as The tractor or truck had a llllllll required by § 391.43(f) or a legible photo- transmission. graphic copy of the certificate; and Please read the NOTICE paragraph above. (8) A letter from the Field Adminis- Name: llllllllllllllllllll trator, Division Administrator, or Signature: llllllllllllllllll State Director granting a waiver of a Title: llllllllllllllllllll physical disqualification, if a waiver Date: llllllllllllllllllll was issued under § 391.49. (k) The State Director, FMCSA, may (c) Except as provided in paragraph revoke an SPE certificate after the (d) of this section, each driver’s quali- person to whom it was issued is given fication file shall be retained for as notice of the proposed revocation and long as a driver is employed by that has been allowed a reasonable oppor- motor carrier and for three years tunity to appeal. thereafter. (l) Falsifying information in the let- (d) The following records may be re- ter of application, the renewal applica- moved from a driver’s qualification file tion, or falsifying information required three years after the date of execution:

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(1) The response of each State agency under regulations issued by the Sec- to the annual driver record inquiry re- retary under 49 U.S.C. chapter 51.; and quired by § 391.25(a); (e) Has a medical or physical condi- (2) The note relating to the annual tion which: review of the driver’s driving record as (1) Would have prevented such person required by § 391.25(c)(2); from operating a commercial motor ve- (3) The list or certificate relating to hicle under the Federal Motor Carrier violations of motor vehicle laws and Safety Regulations contained in this ordinances required by § 391.27; subchapter; (4) The medical examiner’s certifi- (2) Existed on July 1, 1988, or at the cate of the driver’s physical qualifica- time of the first required physical ex- tion to drive a commercial motor vehi- amination after that date; and cle or the photographic copy of the certificate as required by § 391.43(f); and (3) The examining physician has de- (5) The letter issued under § 391.49 termined this condition has not sub- granting a waiver of a physical dis- stantially worsened since July 1, 1988, qualification. or at the time of the first required physical examination after that date. (Approved by the Office of Management and Budget under control number 2125–0065) [61 FR 13346, Mar. 26, 1996; 61 FR 17253, Apr. 19, 1996] [63 FR 33277, June 18, 1998] § 391.63 Multiple-employer drivers. Subpart G—Limited Exemptions (a) If a motor carrier employs a per- § 391.61 Drivers who were regularly son as a multiple-employer driver (as employed before January 1, 1971. defined in § 390.5 of this subchapter), the motor carrier shall comply with all The provisions of § 391.21 (relating to requirements of this part, except that applications for employment), § 391.23 (relating to investigations and inquir- the motor carrier need not— ies), and § 391.33 (relating to road tests) (1) Require the person to furnish an do not apply to a driver who has been application for employment in accord- a single-employer driver (as defined in ance with § 391.21; § 390.5 of this subchapter) of a motor (2) Make the investigations and in- carrier for a continuous period which quiries specified in § 391.23 with respect began before January 1, 1971, as long as to that person; he/she continues to be a single-em- (3) Perform the annual driving record ployer driver of that motor carrier. inquiry required by § 391.25(a); [63 FR 33278, June 18, 1998] (4) Perform the annual review of the person’s driving record required by § 391.62 Limited exemptions for intra- § 391.25(b); or city zone drivers. (5) Require the person to furnish a The provisions of §§ 391.11(b)(1) and record of violations or a certificate in 391.41(b)(1) through (b)(11) do not apply accordance with § 391.27. to a person who: (b) Before a motor carrier permits a (a) Was otherwise qualified to oper- multiple-employer driver to drive a ate and operated a commercial motor commercial motor vehicle, the motor vehicle in a municipality or exempt in- carrier must obtain his/her name, his/ tracity zone thereof throughout the her social security number, and the one-year period ending November 18, identification number, type and issuing 1988; State of his/her commercial motor ve- (b) Meets all the other requirements hicle operator’s license. The motor car- of this section; rier must maintain this information (c) Operates wholly within the ex- for three years after employment of empt intracity zone (as defined in 49 the multiple-employer driver ceases. CFR 390.5); (d) Does not operate a vehicle used in (Approved by the Office of Management and the transportation of hazardous mate- Budget under control number 2125–0081) rials in a quantity requiring placarding [63 FR 33278, June 18, 1998]

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§ 391.64 Grandfathering for certain (b) The provisions of § 391.41(b)(10) do drivers participating in vision and not apply to a driver who was a partici- diabetes waiver study programs. pant in good standing on March 31, (a) The provisions of § 391.41(b)(3) do 1996, in a waiver study program con- not apply to a driver who was a partici- cerning the operation of commercial pant in good standing on March 31, motor vehicles by drivers with visual 1996, in a waiver study program con- impairment in one eye; provided: cerning the operation of commercial (1) The driver is physically examined motor vehicles by insulin-controlled every year, including an examination diabetic drivers; provided: by an ophthalmologist or optometrist (1) The driver is physically examined attesting to the fact that the driver: every year, including an examination (i) Is otherwise qualified under by a board-certified/eligible § 391.41; and endocrinologist attesting to the fact (ii) Continues to measure at least 20/ that the driver is: 40 (Snellen) in the better eye. (i) Otherwise qualified under § 391.41; (2) The driver provides a copy of the (ii) Free of insulin reactions (an indi- ophthalmologist or optometrist report vidual is free of insulin reactions if to the medical examiner at the time of that individual does not have severe the annual medical examination. hypoglycemia or hypoglycemia (3) The driver provides a copy of the unawareness, and has less than one annual medical certification to the em- documented, symptomatic hypo- ployer for retention in the driver’s glycemic reaction per month); qualification file and retains a copy of (iii) Able to and has demonstrated the certification on his/her person willingness to properly monitor and while driving for presentation to a duly manage his/her diabetes; and authorized federal, state or local en- (iv) Not likely to suffer any diminu- forcement official. tion in driving ability due to his/her di- [61 FR 13346, Mar. 26, 1996] abetic condition. (2) The driver agrees to and complies § 391.65 Drivers furnished by other with the following conditions: motor carriers. (i) A source of rapidly absorbable glu- (a) A motor carrier may employ a cose shalll be carried at all times while driver who is not a regularly employed driving; driver of that motor carrier without (ii) Blood glucose levels shall be self- complying with the generally applica- monitored one hour prior to driving ble driver qualification file require- and at least once every four hours ments in this part, if— while driving or on duty prior to driv- (1) The driver is regularly employed ing using a portable glucose moni- by another motor carrier; and toring device equipped with a comput- (2) The motor carrier which regularly erized memory; employs the driver certifies that the (iii) Submit blood glucose logs to the driver is fully qualified to drive a com- endocrinologist or medical examiner at mercial motor vehicle in a written the annual examination or when other- statement which— wise directed by an authorized agent of (i) Is signed and dated by an officer the FMCSA; or authorized employee of the regu- (iv) Provide a copy of the larly employing carrier; endocrinologist’s report to the medical (ii) Contains the driver’s name and examiner at the time of the annual signature; medical examination; and (iii) Certifies that the driver has been (v) Provide a copy of the annual med- regularly employed as defined in § 390.5; ical certification to the employer for (iv) Certifies that the driver is fully retention in the driver’s qualification qualified to drive a commercial motor file and retain a copy of the certifi- vehicle under the rules in part 391 of cation on his/her person while driving the Federal Motor Carrier Safety Regu- for presentation to a duly authorized lations; Federal, State or local enforcement of- (v) States the expiration date of the ficial. driver’s medical examiner’s certificate;

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(vi) Specifies an expiration date for § 391.67 Farm vehicle drivers of articu- the certificate, which shall be not lated commercial motor vehicles. longer than 2 years or, if earlier, the The following rules in this part do expiration date of the driver’s current not apply to a farm vehicle driver (as medical examiner’s certificate; and defined in § 390.5 of this subchapter) (vii) After April 1, 1977, is substan- who is 18 years of age or older and who tially in accordance with the following drives an articulated commercial form: motor vehicle: (a) Section 391.11(b)(1), (b)(6) and (Name of driver) (b)(8) (relating to general qualifica- ——————————————————————— tions of drivers); (SS No.) (b) Subpart C (relating to disclosure of, investigation into, and inquiries (Signature of driver) about the background, character, and I certify that the above named driver, as driving record of drivers); defined in § 391.3(c) is regularly driving a (c) Subpart D (relating to road tests); commercial motor vehicle operated by the and below named carrier and is fully qualified under part 391, Federal Motor Carrier Safety (d) Subpart F (relating to mainte- Regulations. His/her current medical exam- nance of files and records). iner’s certificate expires on llll (Date) [63 FR 33278, June 18, 1998] This certificate expires: § 391.68 Private motor carrier of passengers (nonbusiness). (Date not later than expiration date of The following rules in this part do medical certificate) not apply to a private motor carrier of Issued on llll (date) passengers (nonbusiness) and its driv- Issued by llllllllll ers: (Name of carrier) (a) Section 391.11(b)(1), (b)(6) and (b)(8) (relating to general qualifica- (Address) tions of drivers); (b) Subpart C (relating to disclosure (Signature) of, investigation into, and inquiries about the background, character, and (Title) driving record of, drivers); (b) A motor carrier that obtains a (c) So much of §§ 391.41 and 391.45 as certificate in accordance with para- require a driver to be medically exam- graph (a)(2) of this section shall: ined and to have a medical examiner’s (1) Contact the motor carrier which certificate on his/her person; and certified the driver’s qualifications (d) Subpart F (relating to mainte- under this section to verify the valid- nance of files and records). ity of the certificate. This contact may be made in person, by telephone, or by [63 FR 33278, June 18, 1998] letter. § 391.69 Private motor carrier of pas- (2) Retain a copy of that certificate sengers (business). in its files for three years. (c) A motor carrier which certifies a The provisions of § 391.21 (relating to driver’s qualifications under this sec- applications for employment), § 391.23 tion shall be responsible for the accu- (relating to investigations and inquir- racy of the certificate. The certificate ies), and § 391.31 (relating to road tests) is no longer valid if the driver leaves do not apply to a driver who was a sin- the employment of the motor carrier gle-employer driver (as defined in which issued the certificate or is no § 390.5 of this subchapter) of a private longer qualified under the rules in this motor carrier of passengers (business) part. as of July 1, 1994, so long as the driver continues to be a single-employer driv- [41 FR 36656, Aug. 31, 1976, as amended at 53 er of that motor carrier. FR 18057, May 19, 1988; 60 FR 38745, July 28, 1995; 63 FR 33278, June 18, 1998] [63 FR 33278, June 18, 1998]

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§ 391.71 [Reserved] 392.63 Towing or pushing loaded buses. 392.64 Riding within closed commercial motor vehicles without proper exits. PART 392—DRIVING OF 392.65 [Reserved] COMMERCIAL MOTOR VEHICLES 392.66 Carbon monoxide; use of commercial motor vehicle when detected. Subpart A—General 392.67 Heater, flame-producing; on commercial motor vehicle in motion. Sec. 392.68–392.69 [Reserved] 392.1 Scope of the rules in this part. 392.71 Radar detectors; use and/or posses- 392.2 Applicable operating rules. sion. 392.3 Ill or fatigued operator. 392.4 Drugs and other substances. AUTHORITY: 49 U.S.C. 13902, 31136, 31502; and 392.5 Alcohol prohibition. 49 CFR 1.73. 392.6 Schedules to conform with speed lim- SOURCE: 33 FR 19732, Dec. 25, 1968, unless its. otherwise noted. 392.7 Equipment, inspection and use. 392.8 Emergency equipment, inspection, and EDITORIAL NOTE: Nomenclature changes to use. part 392 appear at 66 FR 49874, Oct. 1, 2001. 392.9 Safe loading. 392.9a Operating authority. Subpart A—General Subpart B—Driving of Commercial Motor § 392.1 Scope of the rules in this part. Vehicles Every motor carrier, its officers, 392.10 Railroad grade crossings; stopping re- agents, representatives, and employees quired. responsible for the management, main- 392.11 Railroad grade crossings; slowing down required. tenance, operation, or driving of com- 392.12–392.13 [Reserved] mercial motor vehicles, or the hiring, 392.14 Hazardous conditions; extreme cau- supervising, training, assigning, or dis- tion. patching of drivers, shall be instructed 392.15 [Reserved] in and comply with the rules in this 392.16 Use of seat belts. part. 392.18 [Reserved] [53 FR 18057, May 19, 1988, as amended at 60 Subpart C—Stopped Commercial Motor FR 38746, July 28, 1995] Vehicles § 392.2 Applicable operating rules. 392.20–392.21 [Reserved] 392.22 Emergency signals; stopped commer- Every commercial motor vehicle cial motor vehicles. must be operated in accordance with 392.24 Emergency signals; flame-producing. the laws, ordinances, and regulations 392.25 Flame producing devices. of the jurisdiction in which it is being operated. However, if a regulation of Subpart D—Use of Lighted Lamps and the Federal Motor Carrier Safety Ad- Reflectors ministration imposes a higher standard 392.30–392.32 [Reserved] of care than that law, ordinance or reg- 392.33 Obscured lamps or reflectors. ulation, the Federal Motor Carrier Safety Administration regulation must Subpart E—License Revocation; Duties of be complied with. Driver [35 FR 7800, May 21, 1970, as amended at 60 392.40–392.41 [Reserved] FR 38746, July 28, 1995]

Subpart F—Fueling Precautions § 392.3 Ill or fatigued operator. 392.50 Ignition of fuel; prevention. No driver shall operate a commercial 392.51 Reserve fuel; materials of trade. motor vehicle, and a motor carrier 392.52 [Reserved] shall not require or permit a driver to operate a commercial motor vehicle, Subpart G—Prohibited Practices while the driver’s ability or alertness is 392.60 Unauthorized persons not to be trans- so impaired, or so likely to become imported. paired, through fatigue, illness, or any 392.61 [Reserved] other cause, as to make it unsafe for 392.62 Safe operation, buses. him/her to begin or continue to operate

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the commercial motor vehicle. How- ence of alcohol, while on duty, or oper- ever, in a case of grave emergency ating, or in physical control of a com- where the hazard to occupants of the mercial motor vehicle; or commercial motor vehicle or other (3) Be on duty or operate a commer- users of the highway would be in- cial motor vehicle while the driver pos- creased by compliance with this sec- sesses wine of not less than one-half of tion, the driver may continue to oper- one per centum of alcohol by volume, ate the commercial motor vehicle to beer as defined in 26 U.S.C. 5052(a), of the nearest place at which that hazard the Internal Revenue Code of 1954, and is removed. distilled spirits as defined in section 5002(a)(8), of such Code. However, this [35 FR 7800, May 21, 1970, as amended at 60 FR 38746, July 28, 1995] does not apply to possession of wine, beer, or distilled spirits which are: § 392.4 Drugs and other substances. (i) Manifested and transported as part of a shipment; or (a) No driver shall be on duty and (ii) Possessed or used by bus pas- possess, be under the influence of, or sengers. use, any of the following drugs or other (b) No motor carrier shall require or substances: permit a driver to— (1) Any 21 CFR 1308.11 Schedule I sub- (1) Violate any provision of para- stance; graph (a) of this section; or (2) An amphetamine or any formula- (2) Be on duty or operate a commer- tion thereof (including, but not lim- cial motor vehicle if, by the driver’s ited, to ‘‘pep pills,’’ and ‘‘bennies’’); general appearance or conduct or by (3) A narcotic drug or any derivative other substantiating evidence, the thereof; or driver appears to have used alcohol (4) Any other substance, to a degree within the preceding four hours. which renders the driver incapable of (c) Any driver who is found to be in safely operating a motor vehicle. violation of the provisons of paragraph (b) No motor carrier shall require or (a) or (b) of this section shall be placed permit a driver to violate paragraph (a) out-of-service immediately for a period of this section. of 24 hours. (c) Paragraphs (a) (2), (3), and (4) do (1) The 24-hour out-of-service period not apply to the possession or use of a will commence upon issuance of an substance administered to a driver by out-of-service order. or under the instructions of a licensed (2) No driver shall violate the terms medical practitioner, as defined in of an out-of-service order issued under § 382.107 of this subchapter, who has ad- this section. vised the driver that the substance will (d) Any driver who is issued an out- not affect the driver’s ability to safely of-service order under this section operate a motor vehicle. shall: (d) As used in this section, (1) Report such issuance to his/her ‘‘possession’’ does not include posses- employer within 24 hours; and sion of a substance which is manifested (2) Report such issuance to a State and transported as part of a shipment. official, designated by the State which [61 FR 9567, Mar. 8, 1996, as amended at 62 FR issued his/her driver’s license, within 30 37153, July 11, 1997] days unless the driver chooses to request a review of the order. In this § 392.5 Alcohol prohibition. case, the driver shall report the order (a) No driver shall— to the State official within 30 days of (1) Use alcohol, as defined in § 382.107 an affirmation of the order by either of this subchapter, or be under the in- the Division Administrator or State fluence of alcohol, within 4 hours be- Director for the geographical area or fore going on duty or operating, or hav- the Administrator. ing physical control of, a commercial (e) Any driver who is subject to an motor vehicle; or out-of-service order under this section (2) Use alcohol, be under the influ- may petition for review of that order ence of alcohol, or have any measured by submitting a petition for review in alcohol concentration or detected pres- writing within 10 days of the issuance

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of the order to the Division Adminis- use of such equipment when and as trator or State Director for the geo- needed. graphical area in which the order was issued. The Division Administrator or [49 FR 38290, Sept. 28, 1984, as amended at 60 FR 38746, July 28, 1995] State Director may affirm or reverse the order. Any driver adversely af- § 392.9 Safe loading. fected by such order of the Regional Director of Motor Carriers may peti- (a) General. No person shall drive a tion the Administrator for review in commercial motor vehicle and a motor accordance with 49 CFR 386.13. carrier shall not require or permit a person to drive a commercial motor ve- (49 U.S.C. 304, 1655; 49 CFR 1.48(b) and 301.60) hicle unless— [47 FR 47837, Oct. 28, 1982, as amended at 52 (1) The commercial motor vehicle’s FR 27201, July 20, 1987; 59 FR 7515, Feb. 15, cargo is properly distributed and ade- 1994; 61 FR 9567, Mar. 8, 1996] quately secured as specified in § 392.6 Schedules to conform with §§ 393.100–393.106 of this subchapter. speed limits. (2) The commercial motor vehicle’s No motor carrier shall schedule a run tailgate, tailboard, doors, tarpaulins, nor permit nor require the operation of its spare tire and other equipment used any commercial motor vehicle between in its operation, and the means of fas- points in such period of time as would tening the commercial motor vehicle’s necessitate the commercial motor ve- cargo are secured; and hicle being operated at speeds greater (3) The commercial motor vehicle’s than those prescribed by the jurisdic- cargo or any other object does not ob- tions in or through which the commer- scure the driver’s view ahead or to the cial motor vehicle is being operated. right or left sides, interfere with the [33 FR 19732, Dec. 25, 1968, as amended at 60 free movement of his/her arms or legs, FR 38746, July 28, 1995] prevent his/her free and ready access to accessories required for emergencies, § 392.7 Equipment, inspection and use. or prevent the free and ready exit of No commercial motor vehicle shall any person from the commercial motor be driven unless the driver is satisfied vehicle’s cab or driver’s compartment. that the following parts and acces- (b) Drivers of trucks and truck tractors. sories are in good working order, nor Except as provided in paragraph (b)(4) shall any driver fail to use or make use of this section, the driver of a truck or of such parts and accessories when and truck tractor must— as needed: (1) Assure himself/herself that the Service brakes, including trailer brake con- provisions of paragraph (a) of this sec- nections. tion have been complied with before he/ Parking (hand) brake. she drives that commercial motor vehi- Steering mechanism. cle; Lighting devices and reflectors. (2) Examine the commercial motor Tires. vehicle’s cargo and its load-securing Horn. devices within the first 25 miles after Windshield wiper or wipers. Rear-vision mirror or mirrors. beginning a trip and cause any adjust- Coupling devices. ments to be made to the cargo or load- securing devices (other than steel [33 FR 19732, Dec. 25, 1968, as amended at 60 FR 38746, July 28, 1995] strapping) as may be necessary to maintain the security of the commer- § 392.8 Emergency equipment, inspec- cial motor vehicle’s load; and tion and use. (3) Reexamine the commercial motor No commercial motor vehicle shall vehicle’s cargo and its load-securing be driven unless the driver thereof is devices periodically during the course satisfied that the emergency equip- of transportation and cause any adjustment required by § 393.95 of this sub- ments to be made to the cargo or load- chapter is in place and ready for use; securing devices (other than steel nor shall any driver fail to use or make strapping) as may be necessary to

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maintain the security of the commer- (2) Inspect the cargo and the devices used cial motor vehicle’s load. A periodic re- to secure the cargo within the first 50 miles examination and any necessary adjust- after beginning a trip and cause any adjustments must be made— ments to be made to the cargo or load securement devices as necessary, including (i) When the driver makes a change adding more securement devices, to ensure of his/her duty status; or that cargo cannot shift on or within, or fall (ii) After the commercial motor vehi- from the commercial motor vehicle; and cle has been driven for 3 hours; or (3) Reexamine the commercial motor vehi- (iii) After the commercial motor ve- cle’s cargo and its load securement devices hicle has been driven for 150 miles, during the course of transportation and whichever occurs first. make any necessary adjustment to the cargo (4) The rules in this paragraph do not or load securement devices, including adding apply to the driver of a sealed commer- more securement devices, to ensure that cial motor vehicle who has been or- cargo cannot shift on or within, or fall from, the commercial motor vehicle. Reexamina- dered not to open it to inspect its cargo tion and any necessary adjustments must be or to the driver of a commercial motor made whenever — vehicle that has been loaded in a man- (i) The driver makes a change of his/her ner that makes inspection of its cargo duty status; or impracticable. (ii) The commercial motor vehicle has been driven for 3 hours; or [36 FR 18863, Sept. 23, 1971, as amended at 37 FR 12642, June 27, 1972; 38 FR 23522, Aug. 31, (iii) The commercial motor vehicle has 1973; 60 FR 38746, July 28, 1995; 63 FR 33278, been driven for 150 miles, whichever occurs June 18, 1998] first. (4) The rules in this paragraph (b) do not EFFECTIVE DATE NOTE: At 67 FR 61224, apply to the driver of a sealed commercial Sept. 27, 2002, § 392.9 was revised effective De- motor vehicle who has been ordered not to cember 26, 2002. For the convenience of the open it to inspect its cargo or to the driver user, the revised text is set forth as follows. of a commercial motor vehicle that has been loaded in a manner that makes inspection of § 392.9 Inspection of cargo, cargo securement devices and systems. its cargo impracticable. (a) General. A driver may not operate a § 392.9a Operating authority. commercial motor vehicle and a motor carrier may not require or permit a driver to (a) Registration required. A motor ve- operate a commercial motor vehicle unless— hicle providing transportation requir- (1) The commercial motor vehicle’s cargo ing registration under 49 U.S.C. 13902 is properly distributed and adequately se- may not be operated without the re- cured as specified in §§ 393.100 through 393.142 quired registration or operated beyond of this subchapter. (2) The commercial motor vehicle’s tail- the scope of its registration. gate, tailboard, doors, tarpaulins, spare tire (b) Penalties. Every motor vehicle and other equipment used in its operation, providing transportation requiring reg- and the means of fastening the commercial istration under 49 U.S.C. 13902 shall be motor vehicle’s cargo, are secured; and ordered out-of-service if determined to (3) The commercial motor vehicle’s cargo be operating without registration or or any other object does not obscure the beyond the scope of its registration. In driver’s view ahead or to the right or left sides (except for drivers of self-steer dollies), addition, the motor carrier may be sub- interfere with the free movement of his/her ject to penalties in accordance with 49 arms or legs, prevent his/her free and ready U.S.C. 14901. access to accessories required for emer- (c) Administrative Review. Upon the gencies, or prevent the free and ready exit of issuance of the out-of-service order any person from the commercial motor vehi- under paragraph (b) of this section, the cle’s cab or driver’s compartment. (b) Drivers of trucks and truck tractors. Ex- driver shall comply immediately with cept as provided in paragraph (b)(4) of this such order. Opportunity for review section, the driver of a truck or truck trac- shall be provided in accordance with tor must— section 554 of title 5, United States (1) Assure himself/herself that the provi- Code not later than 10 days after sions of paragraph (a) of this section have issuance of such order. been complied with before he/she drives that commercial motor vehicle; [67 FR 55165, Aug. 28, 2002]

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Subpart B—Driving of Commercial Transportation, Parts 107 through 180 Motor Vehicles of this title. (5) Every cargo tank motor vehicle § 392.10 Railroad grade crossings; transporting a commodity which at the stopping required. time of loading has a temperature (a) Except as provided in paragraph above its flashpoint as determined by (b) of this section, the driver of a com- § 173.120 of this title. mercial motor vehicle specified in (6) Every cargo tank motor vehicle, paragraphs (a) (1) through (6) of this whether loaded or empty, transporting section shall not cross a railroad track any commodity under exemption in ac- or tracks at grade unless he/she first: cordance with the provisions of subpart Stops the commercial motor vehicle B of part 107 of this title. within 50 feet of, and not closer than 15 (b) A stop need not be made at: feet to, the tracks; thereafter listens (1) A streetcar crossing, or railroad and looks in each direction along the tracks used exclusively for industrial tracks for an approaching train; and switching purposes, within a business ascertains that no train is approach- district, as defined in § 390.5 of this ing. When it is safe to do so, the driver chapter. may drive the commercial motor vehi- (2) A railroad grade crossing when a cle across the tracks in a gear that per- police officer or crossing flagman di- mits the commercial motor vehicle to rects traffic to proceed, complete the crossing without a (3) A railroad grade crossing con- change of gears. The driver must not trolled by a functioning highway traf- shift gears while crossing the tracks. fic signal transmitting a green indica- (1) Every bus transporting pas- tion which, under local law, permits sengers, the commercial motor vehicle to pro- (2) Every commercial motor vehicle ceed across the railroad tracks without transporting any quantity of a Division slowing or stopping. 2.3 chlorine. (4) An abandoned railroad grade (3) Every commercial motor vehicle crossing which is marked with a sign which, in accordance with the regula- indicating that the rail line is aban- tions of the Department of Transpor- doned, tation, is required to be marked or (5) An industrial or spur line railroad placarded with one of the following grade crossing marked with a sign classifications: reading ‘‘Exempt.’’ Such ‘‘Exempt’’ (i) Division 1.1 signs shall be erected only by or with (ii) Division 1.2, or Division 1.3 the consent of the appropriate State or (iii) Division 2.3 Poison gas local authority. (iv) Division 4.3 (Sec. 12, 80 Stat. 931; 49 U.S.C. 1651 note; 49 (v) Class 7 U.S.C. 304, 1655; 49 CFR 1.48(b) and 301.60) (vi) Class 3 Flammable (vii) Division 5.1 [33 FR 19732, Dec. 25, 1968, as amended at 35 (viii) Division 2.2 FR 7801, May 21, 1970; 38 FR 1589, Jan. 16, 1973; 40 FR 44555, Sept. 29, 1975; 45 FR 46424, (ix) Division 2.3 Chlorine July 10, 1980; 47 FR 47837, Oct. 28, 1982; 59 FR (x) Division 6.1 Poison 63924, Dec. 12, 1994; 60 FR 38746, 38747, July 28, (xi) Division 2.2 Oxygen 1995] (xii) Division 2.1 (xiii) Class 3 Combustible liquid § 392.11 Railroad grade crossings; (xiv) Division 4.1 slowing down required. (xv) Division 5.1 Every commercial motor vehicle (xvi) Division 5.2 other than those listed in § 392.10 shall, (xvii) Class 8 upon approaching a railroad grade (xviii) Division 1.4 crossing, be driven at a rate of speed (4) Every cargo tank motor vehicle, which will permit said commercial whether loaded or empty, used for the motor vehicle to be stopped before transportation of any hazardous mate- reaching the nearest rail of such cross- rial as defined in the Hazardous Mate- ing and shall not be driven upon or rials Regulations of the Department of over such crossing until due caution

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has been taken to ascertain that the diately activate the vehicular hazard course is clear. warning signal flashers and continue [33 FR 19732, Dec. 25, 1968, as amended at 60 the flashing until the driver places the FR 38747, July 28, 1995] warning devices required by paragraph (b) of this section. The flashing signals §§ 392.12–392.13 [Reserved] shall be used during the time the warning devices are picked up for storage § 392.14 Hazardous conditions; ex- before movement of the commercial treme caution. motor vehicle. The flashing lights may Extreme caution in the operation of be used at other times while a commer- a commercial motor vehicle shall be cial motor vehicle is stopped in addi- exercised when hazardous conditions, tion to, but not in lieu of, the warning such as those caused by snow, ice, devices required by paragraph (b) of sleet, fog, mist, rain, dust, or smoke, this section. adversely affect visibility or traction. Speed shall be reduced when such con- (b) Placement of warning devices—(1) ditions exist. If conditions become suf- General rule. Except as provided in ficiently dangerous, the operation of paragraph (b)(2) of this section, when- the commercial motor vehicle shall be ever a commercial motor vehicle is discontinued and shall not be resumed stopped upon the traveled portion or until the commercial motor vehicle the shoulder of a highway for any can be safely operated. Whenever com- cause other than necessary traffic pliance with the foregoing provisions of stops, the driver shall, as soon as pos- this rule increases hazard to pas- sible, but in any event within 10 min- sengers, the commercial motor vehicle utes, place the warning devices re- may be operated to the nearest point quired by § 393.95 of this subchapter, in at which the safety of passengers is as- the following manner: sured. (i) One on the traffic side of and 4 [33 FR 19732, Dec. 25, 1968, as amended at 60 paces (approximately 3 meters or 10 FR 38747, July 28, 1995] feet) from the stopped commercial motor vehicle in the direction of ap- § 392.15 [Reserved] proaching traffic; (ii) One at 40 paces (approximately 30 § 392.16 Use of seat belts. meters or 100 feet) from the stopped A commercial motor vehicle which commercial motor vehicle in the cen- has a seat belt assembly installed at ter of the traffic lane or shoulder occu- the driver’s seat shall not be driven un- pied by the commercial motor vehicle less the driver has properly restrained and in the direction of approaching himself/herself with the seat belt as- traffic; and sembly. (iii) One at 40 paces (approximately [35 FR 10860, July 3, 1970, as amended at 60 30 meters or 100 feet) from the stopped FR 38747, July 28, 1995] commercial motor vehicle in the cen- § 392.18 [Reserved] ter of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from ap- Subpart C—Stopped Commercial proaching traffic. Motor Vehicles (2) Special rules—(i) Fusees and liquid- §§ 392.20–392.21 [Reserved] burning flares. The driver of a commercial motor vehicle equipped with only § 392.22 Emergency signals; stopped fusees or liquid-burning flares shall commercial motor vehicles. place a lighted fusee or liquid-burning (a) Hazard warning signal flashers. flare at each of the locations specified Whenever a commercial motor vehicle in paragraph (b)(1) of this section. is stopped upon the traveled portion of There shall be at least one lighted a highway or the shoulder of a highway fusee or liquid-burning flare at each of for any cause other than necessary the prescribed locations, as long as the traffic stops, the driver of the stopped commercial motor vehicle is stopped. commercial motor vehicle shall imme- Before the stopped commercial motor

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vehicle is moved, the driver shall ex- or combustible liquid or gas seeps or tinguish and remove each fusee or liq- leaks from a fuel container or a com- uid-burning flare. mercial motor vehicle stopped upon a (ii) Daylight hours. Except as provided highway, no emergency warning signal in paragraph (b)(2)(iii) of this section, producing a flame shall be lighted or during the period lighted lamps are not placed except at such a distance from required, three bidirectional reflective any such liquid or gas as will assure triangles, or three lighted fusees or liq- the prevention of a fire or explosion. uid-burning flares shall be placed as [37 FR 17175, Aug. 25, 1972, as amended at 40 specified in paragraph (b)(1) of this sec- FR 10685, Mar. 7, 1975; 47 FR 47837, Oct. 28, tion within a time of 10 minutes. In the 1982; 48 FR 57139, Dec. 23, 1983; 59 FR 34711, event the driver elects to use only July 6, 1994; 60 FR 38747, July 28, 1995; 63 FR fusees or liquid-burning flares in lieu of 33279, June 18, 1998] bidirectional reflective triangles or red flags, the driver must ensure that at § 392.24 Emergency signals; flame-pro- least one fusee or liquid-burning flare ducing. remains lighted at each of the pre- No driver shall attach or permit any scribed locations as long as the com- person to attach a lighted fusee or mercial motor vehicle is stopped or other flame-producing emergency sig- parked. nal to any part of a commercial motor (iii) Business or residential districts. vehicle. The placement of warning devices is not required within the business or res- [33 FR 19732, Dec. 25, 1968, as amended at 60 idential district of a municipality, ex- FR 38747, July 28, 1995] cept during the time lighted lamps are § 392.25 Flame producing devices. required and when street or highway lighting is insufficient to make a com- No driver shall use or permit the use mercial motor vehicle clearly of any flame-producing emergency sig- discernable at a distance of 500 feet to nal for protecting any commercial persons on the highway. motor vehicle transporting Division (iv) Hills, curves, and obstructions. If a 1.1, Division 1.2, or Division 1.3 explo- commercial motor vehicle is stopped sives; any cargo tank motor vehicle within 500 feet of a curve, crest of a used for the transportation of any hill, or other obstruction to view, the Class 3 or Division 2.1, whether loaded driver shall place the warning signal or empty; or any commercial motor ve- required by paragraph (b)(1) of this sec- hicle using compressed gas as a motor tion in the direction of the obstruction fuel. In lieu thereof, emergency reflec- to view a distance of 100 feet to 500 feet tive triangles, red electric lanterns, or from the stopped commercial motor ve- red emergency reflectors shall be used, hicle so as to afford ample warning to the placement of which shall be in the other users of the highway. same manner as prescribed in (v) Divided or one-way roads. If a com- § 392.22(b). mercial motor vehicle is stopped upon [59 FR 63925, Dec. 12, 1994, as amended at 60 the traveled portion or the shoulder of FR 38747, July 28, 1995] a divided or one-way highway, the driver shall place the warning devices re- Subpart D—Use of Lighted Lamps quired by paragraph (b)(1) of this section, one warning device at a distance and Reflectors of 200 feet and one warning device at a §§ 392.30–392.32 [Reserved] distance of 100 feet in a direction toward approaching traffic in the center § 392.33 Obscured lamps or reflectors. of the lane or shoulder occupied by the commercial motor vehicle. He/she shall No commercial motor vehicle shall place one warning device at the traffic be driven when any of the required side of the commercial motor vehicle lamps or reflectors are obscured by the within 10 feet of the rear of the com- tailboard, by any part of the load, by mercial motor vehicle. dirt, or otherwise. (vi) Leaking, flammable material. If [33 FR 19732, Dec. 25, 1968, as amended at 60 gasoline or any other flammable liquid, FR 38747, July 28, 1995]

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Subpart E—License Revocation; uefied petroleum gas, butane, propane, Duties of Driver liquefied natural gas, and methane). [63 FR 33279, June 18, 1998] §§ 392.40–392.41 [Reserved] § 392.52 [Reserved] Subpart F—Fueling Precautions Subpart G—Prohibited Practices § 392.50 Ignition of fuel; prevention. No driver or any employee of a motor § 392.60 Unauthorized persons not to be transported. carrier shall: (a) Fuel a commercial motor vehicle (a) Unless specifically authorized in with the engine running, except when writing to do so by the motor carrier it is necessary to run the engine to fuel under whose authority the commercial the commercial motor vehicle; motor vehicle is being operated, no (b) Smoke or expose any open flame driver shall transport any person or in the vicinity of a commercial motor permit any person to be transported on vehicle being fueled; any commercial motor vehicle other (c) Fuel a commercial motor vehicle than a bus. When such authorization is unless the nozzle of the fuel hose is issued, it shall state the name of the continuously in contact with the in- person to be transported, the points take pipe of the fuel tank; where the transportation is to begin and end, and the date upon which such (d) Permit, insofar as practicable, authority expires. No written author- any other person to engage in such ac- ization, however, shall be necessary for tivities as would be likely to result in the transportation of: fire or explosion. (1) Employees or other persons as- [33 FR 19732, Dec. 25, 1968, as amended at 60 signed to a commercial motor vehicle FR 38747, July 28, 1995] by a motor carrier; (2) Any person transported when aid § 392.51 Reserve fuel; materials of is being rendered in case of an accident trade. or other emergency; Small amounts of fuel for the oper- (3) An attendant delegated to care for ation or maintenance of a commercial livestock. motor vehicle (including its auxiliary (b) This section shall not apply to the equipment) may be designated as mate- operation of commercial motor vehi- rials of trade (see 49 CFR 171.8). cles controlled and operated by any (a) The aggregate gross weight of all farmer and used in the transportation materials of trade on a motor vehicle of agricultural commodities or prod- may not exceed 200 kg (440 pounds). ucts thereof from his/her farm or in the (b) Packaging for gasoline must be transportation of supplies to his/her made of metal or plastic and conform farm. to requirements of 49 CFR Parts 171, [60 FR 38747, July 28, 1995] 172, 173, and 178 or requirements of the Occupational Safety and Health Ad- § 392.61 [Reserved] ministration contained in 29 CFR 1910.106. § 392.62 Safe operation, buses. (c) For Packing Group II (including No person shall drive a bus and a gasoline), Packing Group III (including motor carrier shall not require or per- aviation fuel and fuel oil), or ORM–D, mit a person to drive a bus unless— the material is limited to 30 kg (66 (a) All standees on the bus are rear- pounds) or 30 L (8 gallons). ward of the standee line or other means (d) For diesel fuel, the capacity of the prescribed in § 393.90 of this subchapter; package is limited to 450 L (119 gal- (b) All aisle seats in the bus conform lons). to the requirements of § 393.91 of this (e) A Division 2.1 material in a cyl- subchapter; and inder is limited to a gross weight of 100 (c) Baggage or freight on the bus is kg (220 pounds). (A Division 2.1 mate- stowed and secured in a manner which rial is a flammable gas, including liq- assures—

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(1) Unrestricted freedom of move- produce a hazard to the occupants by ment to the driver and his proper oper- reason of carbon monoxide. ation of the bus; (b) [Reserved] (2) Unobstructed access to all exits by any occupant of the bus; and [60 FR 38747, July 28, 1995] (3) Protection of occupants of the bus § 392.67 Heater, flame-producing; on against injury resulting from the fall- commercial motor vehicle in mo- ing or displacement of articles trans- tion. ported in the bus. No open flame heater used in the [63 FR 33278, June 18, 1998] loading or unloading of the commodity transported shall be in operation while § 392.63 Towing or pushing loaded the commercial motor vehicle is in mo- buses. tion. No disabled bus with passengers aboard shall be towed or pushed; nor [33 FR 19732, Dec. 25, 1968, as amended at 60 shall any person use or permit to be FR 38747, July 28, 1995] used a bus with passengers aboard for §§ 392.68–392.69 [Reserved] the purpose of towing or pushing any disabled motor vehicle, except in such § 392.71 Radar detectors; use and/or circumstances where the hazard to pas- possession. sengers would be increased by observ- (a) No driver shall use a radar detec- ance of the foregoing provisions of this section, and then only in traveling to tor in a commercial motor vehicle, or the nearest point where the safety of operate a commercial motor vehicle the passengers is assured. that is equipped with or contains any radar detector. [33 FR 19732, Dec. 25, 1968, as amended at 60 (b) No motor carrier shall require or FR 38747, July 28, 1995] permit a driver to violate paragraph (a) of this section. § 392.64 Riding within closed commercial motor vehicles without proper [58 FR 67375, Dec. 21, 1993] exits. No person shall ride within the closed PART 393—PARTS AND ACCES- body of any commercial motor vehicle SORIES NECESSARY FOR SAFE unless there are means on the inside OPERATION thereof of obtaining exit. Said means shall be in such condition as to permit ready operation by the occupant. Subpart A—General [33 FR 19732, Dec. 25, 1968, as amended at 60 Sec. FR 38747, July 28, 1995] 393.1 Scope of the rules of this part. 393.3 Additional equipment and accessories. § 392.65 [Reserved] 393.5 Definitions. 393.7 Matter incorporated by reference. § 392.66 Carbon monoxide; use of commercial motor vehicle when de- Subpart B—Lighting Devices, Reflectors, tected. and Electrical Equipment (a) No person shall dispatch or drive 393.9 Lamps operable. any commercial motor vehicle or per- 393.11 Lighting devices and reflectors. mit any passengers thereon, when the 393.13 Retroreflective sheeting and reflex following conditions are known to reflectors, requirements for semitrailers exist, until such conditions have been and trailers manufactured before Decem- remedied or repaired: ber 1, 1993. (1) Where an occupant has been af- 393.17 Lamps and reflectors—combinations fected by carbon monoxide; in driveaway-towaway operation. (2) Where carbon monoxide has been 393.19 Requirements for turn signaling systems. detected in the interior of the commer- 393.20 Clearance lamps to indicate extreme cial motor vehicle; width and height. (3) When a mechanical condition of 393.22 Combination of lighting devices and the commercial motor vehicle is dis- reflectors. covered which would be likely to 393.23 Lighting devices to be electric.

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393.24 Requirements for head lamps and 393.85 [Reserved] auxiliary road lighting lamps. 393.86 Rear impact guards and rear end pro- 393.25 Requirements for lamps other than tection. head lamps. 393.87 Flags on projecting loads. 393.26 Requirements for reflectors. 393.88 Television receivers. 393.27 Wiring specifications. 393.89 Buses, driveshaft protection. 393.28 Wiring to be protected. 393.90 Buses, standee line or bar. 393.29 Grounds. 393.91 Buses, aisle seats prohibited. 393.30 Battery installation. 393.92 Buses, marking emergency doors. 393.31 Overload protective devices. 393.93 Seats, seat belt assemblies, and seat 393.32 Detachable electrical connections. belt assembly anchorages. 393.33 Wiring, installation. 393.94 Vehicle interior noise levels.

Subpart C—Brakes Subpart H—Emergency Equipment 393.40 Required brake systems. 393.95 Emergency equipment on all power 393.41 Parking brake system. units. 393.42 Brakes required on all wheels. 393.43 Breakaway and emergency braking. Subpart I—Protection Against Shifting or 393.44 Front brake lines, protection. Falling Cargo 393.45 Brake tubing and hose, adequacy. 393.46 Brake tubing and hose connections. 393.100 General rules for protection against 393.47 Brake lining. shifting or falling cargo. 393.48 Brakes to be operative. 393.102 Securement systems. 393.49 Single valve to operate all brakes. 393.104 Blocking and bracing. 393.50 Reservoirs required. 393.106 Front-end structure. 393.51 Warning devices and gauges. 393.52 Brake performance. Subpart J—Frames, Cab and Body Com- 393.53 Automatic brake adjusters and brake ponents, Wheels, Steering, and Sus- adjustment indicators. 393.55 Antilock brake systems. pension Systems 393.201 Frames. Subpart D—Glazing and Window 393.203 Cab and body components. Construction 393.205 Wheels. 393.207 Suspension systems. 393.60 Glazing in specified openings. 393.209 Steering wheel systems. 393.61 Window construction. 393.62 Window obstructions. AUTHORITY: Sec. 1041(b) of Public Law 102– 393.63 Windows, markings. 240, 105 Stat. 1914, 49 U.S.C. 31136, and 31502; 49 CFR 1.73. Subpart E—Fuel Systems EFFECTIVE DATE NOTE: At 67 FR 51777, Aug. 393.65 All fuel systems. 9, 2002, the authority citation for part 393 393.67 Liquid fuel tanks. was revised, effective Feb. 5, 2002. At 67 FR 393.69 Liquefied petroleum gas systems. 53048, Aug. 14, 2002, the effective date was corrected to Feb. 5, 2003. For the convenience Subpart F—Coupling Devices and Towing of the user, the revised text is set forth as Methods follows: AUTHORITY: 49 U.S.C. 322, 31136, and 31502; 393.70 Coupling devices and towing methods, Section 1041(b) of Pub. L. 102–240, 105 Stat. except for driveaway-towaway oper- 1914, 1993 (1991); and 49 CFR 1.73. ations. SOURCE: 33 FR 19735, Dec. 25, 1968, unless 393.71 Coupling devices and towing methods, otherwise noted. driveaway-towaway operations. EDITORIAL NOTE: Nomenclature changes to Subpart G—Miscellaneous Parts and part 393 appear at 66 FR 49874, Oct. 1, 2001. Accessories 393.75 Tires. Subpart A—General 393.76 Sleeper berths. 393.77 Heaters. SOURCE: 53 FR 49384, Dec. 7, 1988, unless 393.78 Windshield wipers. otherwise noted. 393.79 Defrosting device. 393.80 Rear-vision mirrors. § 393.1 Scope of the rules of this part. 393.81 Horn. 393.82 Speedometer. Every employer and employee shall 393.83 Exhaust systems. comply and be conversant with the re- 393.84 Floors. quirements and specifications of this

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part. No employer shall operate a com- the medium (fluid or vacuum) used to mercial motor vehicle, or cause or per- apply the motor vehicle’s brakes. mit it to be operated, unless it is Bus. A vehicle designed to carry more equipped in accordance with the re- than 15 passengers, including the driv- quirements and specifications of this er. part. Chassis. The load-supporting frame in a truck or trailer, exclusive of any ap- [54 FR 48617, Nov. 24, 1989] purtenances which might be added to § 393.3 Additional equipment and ac- accommodate cargo. cessories. Clearance lamp. A lamp used on the front and the rear of a motor vehicle to Nothing contained in this subchapter indicate its overall width and height. shall be construed to prohibit the use Container chassis. A semitrailer of of additional equipment and acces- skeleton construction limited to a bot- sories, not inconsistent with or prohib- tom frame, one or more axles, specially ited by this subchapter, provided such built and fitted with locking devices equipment and accessories do not defor the transport of cargo containers, crease the safety of operation of the so that when the chassis and container motor vehicles on which they are used. are assembled, the units serve the same function as an over the road trailer. § 393.5 Definitions. Converter dolly. A motor vehicle con- As used in this part, the following sisting of a chassis equipped with one words and terms are construed to or more axles, a fifth wheel and/or mean: equivalent mechanism, and drawbar, Agricultural commodity trailer. A trail- the attachment of which converts a er that is designed to transport bulk semitrailer to a full trailer. agricultural commodities in off-road Curb weight. The weight of a motor harvesting sites and to a processing vehicle with standard equipment, max- plant or storage location, as evidenced imum capacity of fuel, oil, and coolant; by skeletal construction that accom- and, if so equipped, air conditioning modates harvest containers, a max- and additional weight of optional en- imum length of 28 feet, and an arrange- gine. Curb weight does not include the ment of air control lines and reservoirs driver. that minimizes damage in field oper- Emergency brake system. A mechanism ations. designed to stop a vehicle after a single Antilock Brake System or ABS means a failure occurs in the service brake sys- portion of a service brake system that tem of a part designed to contain com- automatically controls the degree of pressed air or brake fluid or vacuum rotational wheel slip during braking (except failure of a common valve, by: manifold brake fluid housing or brake (1) Sensing the rate of angular rota- chamber housing). tion of the wheels; Fifth wheel. A device mounted on a (2) Transmitting signals regarding truck tractor or similar towing vehicle the rate of wheel angular rotation to (e.g., converter dolly) which interfaces one or more controlling devices which with and couples to the upper coupler interpret those signals and generate re- assembly of a semitrailer. sponsive controlling output signals; Fuel tank fitting. Any removable de- and vice affixed to an opening in the fuel (3) Transmitting those controlling tank with the exception of the filler signals to one or more modulators cap. which adjust brake actuating forces in Grommet. A device that serves as a response to those signals. support and protection to that which Brake. An energy conversion mecha- passes through it. nism used to stop, or hold a vehicle Hazard warning signal. Lamps that stationary. flash simultaneously to the front and Brake tubing/hose. Metallic brake tub- rear, on both the right and left sides of ing, nonmetallic brake tubing and a commercial motor vehicle, to indi- brake hose are conduits or lines used in cate to an approaching driver the pres- a brake system to transmit or contain ence of a vehicular hazard.

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Head lamps. Lamps used to provide Manufactured home means a struc- general illumination ahead of a motor ture, transportable in one or more sec- vehicle. tions, which in the traveling mode, is Heater. Any device or assembly of de- eight body feet or more in width or vices or appliances used to heat the in- forty body feet or more in length, or, terior of any motor vehicle. This in- when erected on site, is three hundred cludes a catalytic heater which must twenty or more square feet, and which meet the requirements of § 177.834(1) of is built on a permanent chassis and de- this title when flammable liquid or gas signed to be used as a dwelling with or is transported. without a permanent foundation when Heavy hauler trailer. A trailer with connected to the required utilities, and one or more of the following character- includes the plumbing, heating, air- istics: conditioning, and electrical systems (1) Its brake lines are designed to contained therein. Calculations used to adapt to separation or extension of the determine the number of square feet in vehicle frame; or a structure will be based on the struc- (2) Its body consists only of a plat- ture’s exterior dimensions measured at form whose primary cargo-carrying the largest horizontal projections when surface is not more than 40 inches erected on site. These dimensions will above the ground in an unloaded condi- include all expandable rooms, cabinets, tion, except that it may include sides and other projections containing inte- that are designed to be easily remov- rior space, but do not include bay win- able and a permanent ‘‘front-end struc- dows. This term includes all structures ture’’ as that term is used in Section which meet the above requirements ex- 393.106 of this title. cept the size requirements and with re- Identification lamps. Lamps used to spect to which the manufacturer volun- identify certain types of commercial tarily files a certification pursuant to motor vehicles. 24 CFR 3282.13 and complies with the Lamp. A device used to produce arti- standards set forth in 24 CFR part 3280. ficial light. Parking brake system. A brake system Length of a manufactured home. The used to hold a vehicle stationary. largest exterior length in the traveling Play. Any free movement of compo- mode, including any projections which nents. contain interior space. Length does not Pulpwood trailer. A trailer or include bay windows, roof projections, semitrailer that is designed exclusively overhangs, or eaves under which there for harvesting logs or pulpwood and is no interior space, nor does it include constructed with a skeletal frame with drawbars, couplings or hitches. no means for attachment of a solid bed, License plate lamp. A lamp used to il- body, or container. luminate the license plate on the rear Rear extremity. The rearmost point on of a motor vehicle. a motor vehicle that falls above a hori- Low chassis vehicle. (1) A trailer or zontal plane located 560 mm (22 inches) semitrailer manufactured on or after above the ground and below a hori- January 26, 1998, having a chassis zontal plane located 1,900 mm (75 which extends behind the rearmost inches) above the ground when the point of the rearmost tires and which motor vehicle is stopped on level has a lower rear surface that meets the ground; unloaded; its fuel tanks are guard width, height, and rear surface full; the tires (and air suspension, if so requirements of § 571.224 in effect on equipped) are inflated in accordance the date of manufacture, or a subse- with the manufacturer’s recommenda- quent edition. tions; and the motor vehicle’s cargo (2) A motor vehicle, not described by doors, tailgate, or other permanent paragraph (1) of this definition, having structures are positioned as they nor- a chassis which extends behind the mally are when the vehicle is in mo- rearmost point of the rearmost tires tion. Nonstructural protrusions such as and which has a lower rear surface that taillamps, rubber bumpers, hinges and meets the guard configuration require- latches are excluded from the deter- ments of § 393.86(b)(1). mination of the rearmost point.

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Reflective material. A material con- indicate the approximate middle of a forming to Federal Specification L–S– trailer 30 feet or more in length. 300, ‘‘Sheeting and Tape, Reflective; Side marker lamps. Lamps used on Non-exposed Lens, Adhesive Backing,’’ each side of a trailer to indicate its (September 7, 1965) meeting the per- overall length. formance standard in either Table 1 or Special purpose vehicle. (1) A trailer or Table 1A of SAE Standard J594f, semitrailer manufactured on or after ‘‘Reflex Reflectors’’ (January, 1977). January 26, 1998, having work-per- Reflex reflector. A device which is used forming equipment that, while the on a vehicle to give an indication to an motor vehicle is in transit, resides in approaching driver by reflected lighted or moves through the area that could from the lamps on the approaching ve- be occupied by the horizontal member hicle. of the rear impact guard, as defined by Saddle-mount. A device, designed and the guard width, height and rear sur- constructed as to be readily demount- face requirements of § 571.224 able, used in driveaway-towaway oper- (paragraphs S5.1.1 through S5.1.3), in ations to perform the functions of a effect on the date of manufacture, or a conventional fifth wheel: subsequent edition. (1) Upper-half. Upper-half of a (2) A motor vehicle, not described by ‘‘saddle-mount’’ means that part of the paragraph (1) of this definition, having device which is securely attached to work-performing equipment that, the towed vehicle and maintains a while the motor vehicle is in transit, fixed position relative thereto, but does resides in or moves through the area not include the ‘‘king-pin;’’ that could be occupied by the hori- (2) Lower-half. Lower-half of a zontal member of the rear impact ‘‘saddle-mount’’ means that part of the guard, as defined by the guard width, device which is securely attached to height and rear surface requirements of the towing vehicle and maintains a § 393.86(b)(1). fixed position relative thereto but does Steering wheel lash. The condition in not include the ‘‘king-pin;’’ and which the steering wheel may be (3) King-pin. King-pin means that de- turned through some part of a revolu- vice which is used to connect the tion without associated movement of ‘‘upper-half’’ to the ‘‘lower-half’’ in the front wheels. such manner as to permit relative Stop lamps. Lamps shown to the rear movement in a horizontal plane be- of a motor vehicle to indicate that the tween the towed and towing vehicles. service brake system is engaged. Service brake system. A primary brake Tail lamps. Lamps used to designate system used for slowing and stopping a the rear of a motor vehicle. vehicle. Turn signals. Lamps used to indicate Side extremity. The outermost point a change in direction by emitting a on a side of the motor vehicle that is flashing light on the side of a motor ve- above a horizontal plane located 560 hicle towards which a turn will be mm (22 inches) above the ground, below made. a horizontal plane located 1,900 mm (75 Upper coupler assembly. A structure inches) above the ground, and between consisting of an upper coupler plate, a transverse vertical plane tangent to king-pin and supporting framework the rear extremity of the vehicle and a which interfaces with and couples to a transverse vertical plane located 305 fifth wheel. mm (12 inches) forward of that plane Upper coupler plate. A plate structure when the vehicle is unloaded; its fuel through which the king-pin neck and tanks are full; and the tires (and air collar extend. The bottom surface of suspension, if so equipped) are inflated the plate contacts the fifth wheel when in accordance with the manufacturer’s coupled. recommendations. Non-structural pro- Wheels back vehicle. (1) A trailer or trusions such as taillights, hinges and semitrailer manufactured on or after latches are excluded from the deter- January 26, 1998, whose rearmost axle mination of the outermost point. is permanently fixed and is located Side marker lamp (Intermediate). A such that the rearmost surface of the lamp shown to the side of a trailer to tires (of the size recommended by the

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vehicle manufacturer for the rear axle) an article of cargo to prevent horizontal is not more than 305 mm (12 inches) movement of the article of cargo. forward of the transverse vertical plane Bracing. A structure, device, or another tangent to the rear extremity of the substantial article placed against an article vehicle. of cargo to prevent it from tipping, that may (2) A motor vehicle, not described by also prevent it from shifting. paragraph (1) of this definition, whose rearmost axle is permanently fixed and * * * * * is located such that the rearmost sur- Dunnage. All loose materials used to sup- face of the tires (of the size rec- port and protect cargo. ommended by the vehicle manufac- Dunnage bag. An inflatable bag intended to turer for the rear axle) is not more fill otherwise empty space between articles than 610 mm (24 inches) forward of the of cargo, or between articles of cargo and the transverse vertical plane tangent to wall of the vehicle. the rear extremity of the vehicle. Width of a manufactured home. The * * * * * largest exterior width in the traveling mode, including any projections which Edge protector. A device placed on the ex- contain interior space. Width does not posed edge of an article to distribute tiedown include bay windows, roof projections, forces over a larger area of cargo than the tiedown itself, to protect the tie-down and/or overhangs, or eaves under which there cargo from damage, and to allow the tiedown is no interior space. to slide freely when being tensioned. [53 FR 49384, Dec. 7, 1988, as amended at 63 FR 8339, Feb. 18, 1998; 63 FR 24465, May 4, * * * * * 1998; 64 FR 47707, Sept. 1, 1999] Frame vehicle. A vehicle with skeletal EFFECTIVE DATE NOTE: At 67 FR 61224, structure fitted with one or more bunk units Sept. 27, 2002, 24 definitions were added to for transporting logs. A bunk unit consists of § 393.5 effective December 26, 2002. For the U-shaped front and rear bunks that together convenience of the user, the added defini- cradle logs. The bunks are welded, gusseted tions are set forth as follows. or otherwise firmly fastened to the vehicle’s § 393.5 Definitions. main beams, and are an integral part of the vehicle. Friction mat. A device placed between the * * * * * deck of a vehicle and article of cargo, or be- Aggregate working load limit. The summa- tween articles of cargo, intended to provide tion of the working load limits or restrain- greater friction than exists naturally being capacity of all devices used to secure an tween these surfaces. article of cargo on a vehicle. * * * * * * * * * * g. The acceleration due to gravity, 32.2 ft/ Anchor point. Part of the structure, fitting sec2 (9.823 m/sec2). or attachment on a vehicle or article of cargo to which a tiedown is attached. * * * * * * * * * * Hook-lift container. A specialized container, primarily used to contain and transport ma- Article of cargo. A unit of cargo, other than terials in the waste, recycling, construction/ a liquid, gas, or aggregate that lacks phys- demolition and scrap industries, which is ical structure (e.g., grain, gravel, etc.) in- used in conjunction with specialized vehi- cluding articles grouped together so that they can be handled as a single unit or unit- cles, in which the container is loaded and un- ized by wrapping, strapping, banding or edge loaded onto a tilt frame body by an articu- protection device(s). lating hook-arm.

* * * * * * * * * * Bell pipe concrete. Pipe whose flanged end is Integral securement system. A system on cer- of larger diameter than its barrel. tain roll-on/roll-off containers and hook-lift Blocking. A structure, device or another containers and their related transport vehi- substantial article placed against or around cles in which compatible front and rear hold

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down devices are mated to provide secure- Well. The depression formed between two ment of the complete vehicle and its articles cylindrical articles of cargo when they are of cargo. laid with their eyes horizontal and parallel against each other. * * * * * * * * * * Longwood. All logs that are not shortwood, i.e., are over 4.9 m (16 feet) long. Such logs Working load limit (WLL). The maximum are usually described as long logs or load that may be applied to a component of treelength. a cargo securement system during normal service, usually assigned by the manufacturer of the component. * * * * * Rail vehicle. A vehicle whose skeletal struc- § 393.7 Matter incorporated by ref- ture is fitted with stakes at the front and erence. rear to contain logs loaded crosswise. (a) Incorporation by reference. Part 393 includes references to certain matter * * * * * or materials. The text of the materials Shoring bar. A device placed transversely is not included in the regulations con- between the walls of a vehicle and cargo to tained in part 393. The materials are prevent cargo from tipping or shifting. hereby made a part of the regulations Shortwood. All logs typically up to 4.9 m (16 in part 393. The Director of the Federal feet) long. Such logs are often described as Register has approved the materials in- cut-up logs, cut-to-length logs, bolts or pulp- corporated by reference in accordance wood. Shortwood may be loaded lengthwise with 5 U.S.C. 552(a) and 1 CFR part 51. or crosswise, though that loaded crosswise is For materials subject to change, only usually no more than 2.6 m (102 inches) long. the specific version approved by the Di- rector of the Federal Register and spec- * * * * * ified in the regulation are incor- Sided vehicle. A vehicle whose cargo com- porated. Material is incorporated as it partment is enclosed on all four sides by exists on the date of the approval and walls of sufficient strength to contain arti- a notice of any change in these mate- cles of cargo, where the walls may include rials will be published in the FEDERAL latched openings for loading and unloading, REGISTER. and includes vans, dump bodies, and a sided (b) Availability. The materials incor- intermodal container carried by a vehicle. porated by reference are available as follows: * * * * * (1) Standards of the Underwriters Tiedown. A combination of securing devices Laboratories, Inc. Information and cop- which forms an assembly that attaches arti- ies may be obtained by writing to: Un- cles of cargo to, or restrains articles of cargo derwriters Laboratories, Inc., 333 on, a vehicle or trailer, and is attached to Pfingsten Road, Northbrook, Illinois anchor point(s). 60062. Tractor-pole trailer. A combination vehicle that carries logs lengthwise so that they (2) Specifications of the American form the body of the vehicle. The logs are Society for Testing and Materials. In- supported by a bunk located on the rear of formation and copies may be obtained the tractor, and another bunk on the skel- by writing to: American Society for etal trailer. The tractor bunk may rotate Testing and Materials, 1916 Race about a vertical axis, and the trailer may Street, Philadelphia, Pennsylvania have a fixed, scoping, or cabled reach, or 19103. other mechanical freedom, to allow it to (3) Specifications of the National As- turn. sociation of Chain Manufacturers. In- formation and copies may be obtained * * * * * by writing to: National Association of Void filler. Material used to fill a space be- Chain Manufacturers, P.O. Box 3143, tween articles of cargo and the structure of York, Pennsylvania 17402–0143. the vehicle that has sufficient strength to (4) Specifications of the Web Sling prevent movement of the articles of cargo. and Tiedown Association. Information and copies may be obtained by writing * * * * * to: Web Sling and Tiedown Association,

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Inc., 710 East Ogden Avenue, suite 113, February 1998, incorporation by reference ap- Naperville, Illinois 60563. proved for § 393.104(e). (5) Manuals of the Wire Rope Tech- (3) Welded Steel Chain Specifications, Na- nical Board. Information and copies tional Association of Chain Manufacturers, November 15, 1999, incorporation by ref- may be obtained by writing to: Wire erence approved for § 393.104(e). Rope Technical Committee, P.O. Box (4) Recommended Standard Specification 849, Stevensville, Maryland 21666. for Synthetic Web Tiedowns, Web Sling and (6) Standards of the Cordage Insti- Tiedown Association, WSTDA–T1, 1998, in- tute. Information and copies may be corporation by reference approved for obtained by writing to: Cordage Insti- § 393.104(e). tute, 350 Lincoln Street, No. 115, (5) Wire Rope Users Manual, 2nd Edition, Hingham, Massachusetts 02043. Wire Rope Technical Board November 1985, incorporation by reference approved for (7)–(9) [Reserved] § 393.104(e). (10) All of the materials incorporated (6) Cordage Institute rope standards ap- by reference are available for inspec- proved for incorporation into § 393.104(e): tion at: (i) PETRS–2, Polyester Fiber Rope, 3- (i) The Department of Transportation Strand and 8-Strand Constructions, January Library, 400 Seventh Street, SW., 1993; Washington, DC 20590 in room 2200. (ii) PPRS–2, Polypropylene Fiber Rope, 3- Strand and 8-Strand Constructions, August These documents are also available for 1992; inspection and copying as provided in (iii) CRS–1, Polyester/Polypropylene Com- 49 CFR part 7, appendix D; and posite Rope Specifications, Three-Strand and (ii) The Office of the Federal Reg- Eight-Strand Standard Construction, May ister, 800 North Capitol Street, NW., 1979; suite 700, Washington, DC. (iv) NRS–1, Nylon Rope Specifications, Three-Strand and Eight-Strand Standard [59 FR 34712, July 6, 1994, as amended at 59 Construction, May 1979; and FR 34718, July 6, 1994] (v) C–1, Double Braided Nylon Rope Speci- EFFECTIVE DATE NOTE: At 67 FR 61225, fications DBN, January 1984. Sept. 27, 2002 § 393.7 was revised effective De- (c) Availability. The materials incorporated cember 26, 2002. For the convenience of the by reference are available as follows: user, the revised text is set forth as follows. (1) Standards of the Underwriters Labora- tories, Inc. Information and copies may be § 393.7 Matter incorporated by reference. obtained by writing to: Underwriters Labora- (a) Incorporation by reference. Part 393 in- tories, Inc., 333 Pfingsten Road, Northbrook, cludes references to certain matter or mate- Illinois 60062. rials, as listed in paragraph (b) of this sec- (2) Specifications of the American Society tion. The text of the materials is not infor Testing and Materials. Information and cluded in the regulations contained in part copies may be obtained by writing to: Amer- 393. The materials are hereby made a part of ican Society for Testing and Materials, 100 the regulations in part 393. The Director of Barr Harbor Drive, West Conshohocken, the Federal Register has approved the mate- Pennsylvania 19428–2959. rials incorporated by reference in accordance (3) Specifications of the National Associa- with 5 U.S.C. 552(a) and 1 CFR part 51. For tion of Chain Manufacturers. Information materials subject to change, only the spe- and copies may be obtained by writing to: cific version approved by the Director of the National Association of Chain Manufactur- Federal Register and specified in the regula- ers, P.O. Box 22681, Lehigh Valley, Pennsyl- tion are incorporated. Material is incor- vania 18002–2681. porated as it exists on the date of the ap- (4) Specifications of the Web Sling and Tie- proval and a notice of any change in these down Association. Information and copies materials will be published in the FEDERAL may be obtained by writing to: Web Sling REGISTER. and Tiedown Association, Inc., 5024–R Camp- (b) Matter or materials referenced in part 393. bell Boulevard, Baltimore, Maryland 21236– The matter or materials listed in this para- 5974. graph are incorporated by reference in the (5) Manuals of the Wire Rope Technical corresponding sections noted. Board. Information and copies may be ob- (1) Highway Emergency Signals, Fourth tained by writing to: Wire Rope Technical Edition, Underwriters Laboratories, Inc., UL Committee, P.O. Box 849, Stevensville, Mary- No. 912, July 30, 1979, (with an amendment land 21666. dated November 9, 1981), incorporation by (6) Standards of the Cordage Institute. In- reference approved for § 393.95(j). formation and copies may be obtained by (2) Standard Specification for Strapping, writing to: Cordage Institute, 350 Lincoln Flat Steel and Seals, American Society for Street, # 115, Hingham, Massachusetts 02043. Testing and Materials (ASTM), D3953–97, (7)–(9) [Reserved].

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(10) All of the materials incorporated by § 393.11 Lighting devices and reflec- reference are available for inspection at: tors. (i) The Federal Motor Carrier Safety Ad- ministration, Office of Bus and Truck Stand- The following Table 1 sets forth the ards and Operations, 400 Seventh Street, required color, position, and required SW., Washington, DC 20590; and lighting devices by type of commercial (ii) The Office of the Federal Register, 800 motor vehicle. Diagrams illustrating North Capitol Street, NW, Suite 700, Wash- ington, DC. the locations of lighting devices and reflectors, by type and size of commer- Subpart B—Lighting Devices, Re- cial motor vehicle, are shown imme- flectors, and Electrical Equip- diately following Table 1. All lighting devices on motor vehicles placed in op- ment eration after March 7, 1989, must meet § 393.9 Lamps operable. the requirements of 49 CFR 571.108 in effect at the time of manufacture of All lamps required by this subpart the vehicle. Motor vehicles placed in shall be capable of being operated at all times. operation on or before March 7, 1989, must meet either the requirements of (49 U.S.C. 304, 1655; 49 CFR 1.48(b) and 301.60) this subchapter or part 571 of this title [47 FR 47837, Oct. 28, 1982] in effect at the time of manufacture.

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54. as practicable to the top of the vehicle with lamp centers spaced not less than 6 inches or more than 12 inches apart. 83. 15 and 72. 15 and 72. practicable. practicable. and 60. and 60. rear of trailer, not more than 60. tween 15 and 83. Height above road surface in ter of the lamp at curb weight inches measured from the cen- Not less than 22 nor more All three on same level as close Not less than 15 nor more Both on the same level between Both on the same level between Both on same level as high Both on same level as high Not less than 15 ...... A, B, D, F, G Between 15 and 60 ...... A, B, D, F, G Both on same level, between 15 No requirements ...... A, B, C, D, F, G Both on the same level, be-

′ f in ′ QUIPMENT E eight, an IGHTING L EHICLE V equal number at each side of the vertical centerline as far apart practicable. the vehicle or vertical centerline of the cab where different from centerline of the vehicle. terline at the same height and as far apart as practicable. centerline at the same height and as far apart as practicable. centerline at the same height and as far apart as practicable. terline to indicate width. terline to indicate overall width. rear side marker lamps, if over 30 in length. rear side reflectors if over 30 length. line, as far apart practicable. top or sides. centerline as far apart practicable. One on each side of the vertical cen- One on each side of the vertical cen- At or near midpoint between front and At or near midpoint between front and As far to the rear as practicable ...... Both on same level, between 15 As far to the front as practicable ...... Between 15 and 60 ...... To illuminate the license plate from A, B, C, D, F, G As far to the front as practicable ...... Not less than 15 ...... As far to the rear as practicable ...... A, B, C, D, F Not less than 15 and on the OMMERCIAL C side of front. side of rear. side. side. side (rear). side (front). plate. side. side. Rear ...... One lamp on each side of the vertical EQUIRED R — 1 Red. ABLE T 2 ...... Amber ...... Front Near or At One on each side of the vertical cen- 2 ...... Amber ...... One on each 2 ...... Red ...... 2 ...... Rear ...... Red ...... One on each side of vertical center- One on each 1 ...... White ...... At rear license 2 ...... Red ...... One on each 2 ...... Amber or 2 ...... Red ...... One on each Item on the vehicle Quantity Color Location Position & 12. 10, & 15. #5, 6, & 8. #4. note #11. notes #4 & 8. 12. Headlamps ...... LeastAt .... 2 White ...... Front ...... Turn Signal (Front) See Footnotes #2 On the front at same h #1Footnote (Front) Lamp Identification 3 ...... Amber ...... Front ...... Mounted on the vertical centerline o Tail Lamp See Footnotes #5 & 11 ...... 2 ...... RedStop Lamp See Footnotes #5 & 13 ...... Rear 2 ...... One lamp Red each ...... Clearance Lamps See Footnotes #9, side of the Rear vertical ...... One lamp each side of the vertical Side Marker Lamp, Intermediate ...... 2 ...... AmberReflex Reflector Intermediate (Side) ...... One on each 2 ...... AmberReflex Reflector (Rear) See Footnotes ...... One on each Reflex Reflector (Rear Side) Footnote Reflex Reflector (Front Side) ...... 2 ...... License Plate Lamp Rear See Foot- Amber ...... One on each Side Marker Lamp (Front) ...... 2 ...... Side Marker Lamp (Rear) See Foot- Amber ...... One on each Turn Signal (Rear) See Footnotes #5 &

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Footnote—1 Any motor vehicle transporting a load Identification lamps may be mounted on which extends more than 4 inches beyond the the vertical centerline of the cab where dif- width of the motor vehicle, or having projec- ferent from the centerline of the vehicle, ex- tions beyond the rear of such vehicles, shall cept where the cab is not more than 42 be equipped with the following lamps in ad- inches wide at the front roofline, then a sin- dition to other required lamps, have the gle lamp at the center of the cab shall be loads marked deemed to comply with the requirements for Loads projecting more than 4 inches be- identification lamps. No part of the identi- yond sides of motor vehicles: fication lamps or their mountings may ex- (1) The foremost edge of the projecting tend below the top of the vehicle windshield. load at its outermost extremity shall be Footnote—2 marked with an amber lamp visible from the Unless the turn signals on the front are so front and both sides. constructed (double-faced) and located as to (2) The rearmost edge of the projecting be visible to passing drivers, two turn signals load at its outermost extremity shall be are required on the rear of the truck tractor, marked with a red lamp visible from the rear one at each side as far apart as practicable. and side. (3) If any portion of the projecting load ex- Footnote—3 tends beyond both the foremost and rear- The identification lamps need not be visi- most edge, it shall be marked with an amber ble or lighted if obscured by a vehicle in the lamp visible from the front, both sides, and same combination. rear. Footnote—4 (4) If the protecting load does not measure Any semitrailer or full trailer vehicles more than 3 feet from front to rear, it shall manufactured on and after March 1, 1979, be marked with an amber lamp visible from shall be equipped with rear side-marker the front, both sides, and rear, except that if lamps at a height of not less than 15 inches the projection is located at or near the rear (381 mm) nor more than 60 inches (1524 mm) it shall be marked by a red lamp visible from above the road surface, as measured from the front, side, and rear. center of the lamp on the vehicle at curb Footnote—10 weight. The rear side marker lamps shall be Projections beyond rear of motor vehicles. visible in the vehicle’s rearview mirrors Motor vehicles transporting loads which ex- when the trailer is tracking straight. tend more than 4 feet beyond the rear of the Footnote—5 motor vehicle, or which have these For purposes of these regulations, each tailboards or tailgates extending more than 4 converter dolly shall be equipped with one feet beyond the body, shall have projections stop lamp, one tail lamp, and two reflectors marked as follows: on the rear at each side when towed singly (1) On each side of the projecting load, one by another vehicle. Each converter dolly red lamp, visible from the side, located so as shall be equipped with turn signals at the to indicate maximum overhang. rear if the converter dolly obscures the turn (2) On the rear of the projecting load, two signals at the rear of the towing vehicle red lamps, visible from the rear, one at each when towed singly by another vehicle. side; and two red reflectors visible from the Footnote—6 rear, one at each side, located so as to indi- Pole trailers will have two reflectors, one cate maximum width. on each side, placed to indicate extreme Footnote—11 width of the trailer. To be illuminated when tractor headlamps Footnote—7 are illuminated. Pole trailers may have three identification Footnote—12 lamps mounted on the vertical centerline of Every bus, truck, and truck tractor shall the rear of the cab of the truck tractor draw- be equipped with a signaling system that, in ing the pole trailer, and higher than the load addition to signaling turning movements, being transported, in lieu of the three identi- shall have a switch or combination of fication lamps mounted on the rear vertical switches that will cause the two front turn centerline of the trailer. signals and the two rear signals to flash si- Footnote—8 multaneously as a vehicular traffic signal Pole trailers shall have on the rearmost warning, required by § 392–22(a). The system support for the load, one combination mark- shall be capable of flashing simultaneously er lamp or two single lamps showing amber with the ignition of the vehicle on or off. to the front and red to the rear and side, Footnote—13 mounted on each side to indicate maximum To be actuated upon application of service width of the pole trailer; and one red reflec- brakes. tor on each side of the rearmost support for Footnote—14 the load. Backup lamp required to operate when bus, Footnote—9 truck, or truck tractor is in reverse.

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Footnote—15 rear clearance lamps need not meet the re- When the rear identification lamps are quirement that they be located as close as mounted at the extreme height of a vehicle, practicable to the top of the vehicle.

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LEGEND (USED IN ILLUSTRATIONS) 18. Tail lamps. Rear (2)-Red 19. Parking lamps. Front 2-Amber or White 1. Headlamps (2)-White (4 optional) 2. Side-marker lamps. Front (2)-Amber [53 FR 49385, Dec. 7, 1988] 3. Side reflectors. Front (2)-Amber 4. Turn-signal lamps. Front (2)-Amber § 393.13 Retroreflective sheeting and 4a. Turn-signal lamps. Front (2)-Amber reflex reflectors, requirements for (Optional location) semitrailers and trailers manufac- 5. Identification lamps. Front (3)-Amber tured before December 1, 1993. 5a. Identification lamps. Front (3)-Amber (Optional location) (a) Applicability. All trailers and 6. Clearance lamps. Front (2)-Amber semitrailers manufactured prior to De- 7. Side-marker lamps. Rear (2)-Red cember 1, 1993, which have an overall 8. Side-reflectors. Rear (2)-Red width of 2,032 mm (80 inches) or more 9. Identification lamps. Rear (3)-Red and a gross vehicle weight rating of 10. Clearance lamps. Rear (2)-Red 4,536 kg (10,001 pounds) or more, except 11. Reflectors Rear (2)-Red trailers that are manufactured exclu- 12. Stop lamps. Rear (2)-Red 13. License plate lamp. Rear (1)-White sively for use as offices or dwellings, 14. Backup lamp. Rear (1)-White (location op- pole trailers (as defined in § 390.5 of this tional provided optional requirements are subchapter), and trailers transported in met) a driveaway-towaway operation, must 15. Side-marker lamps. Intermediate (2)- be equipped with retroreflective sheet- Amber (if vehicle is 30’ or more overall ing or an array of reflex reflectors that length) 16. Side reflectors. Intermediate (2)-Amber meet the requirements of this section. (if vehicle is 30’ or more overall length) Motor carriers operating trailers, other 17. Turn signal lamps. Rear (2)-Amber or Red than container chassis (as defined in

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§ 393.5), have until June 1, 2001, to com- the road surface when measured with ply with the requirements of this sec- the trailer empty or unladen, or as tion. Motor carriers operating con- close as practicable to this area. If nec- tainer chassis have until December 1, essary to clear rivet heads or other 2001, to comply with the requirements similar obstructions, 50 mm (2 inches) of this section. wide retroreflective sheeting may be (b) Retroreflective sheeting and reflex separated into two 25 mm (1 inch) wide reflectors. Motor carriers are encour- strips of the same length and color, aged to retrofit their trailers with a separated by a space of not more than conspicuity system that meets all of 25 mm (1 inch). the requirements applicable to trailers (2) Lower rear area. The rear of each manufactured on or after December 1, trailer and semitrailer must be 1993, including the use of equipped with retroreflective sheeting. retroreflective sheeting or reflex re- Each strip of retroreflective sheeting flectors in a red and white pattern (see shall be positioned as horizontally as Federal Motor Vehicle Safety Standard practicable, extending across the full No. 108 (49 CFR 571.108), S5.7, width of the trailer, beginning and end- Conspicuity systems). Motor carriers ing as close to the extreme edges as which do not retrofit their trailers to practicable. The centerline for each of meet the requirements of FMVSS No. the strips of retroreflective sheeting 108, for example by using an alter- shall be between 375 mm (15 inches) and native color pattern, must comply with 1,525 mm (60 inches) above the road sur- the remainder of this paragraph and face when measured with the trailer with paragraph (c) or (d) of this sec- empty or unladen, or as close as prac- tion. Retroreflective sheeting or reflex ticable to this area. reflectors in colors or color combinations other than red and white may be (3) Upper rear area. Two pairs of white used on the sides or lower rear area of strips of retroreflective sheeting, each the semitrailer or trailer until June 1, pair consisting of strips 300 mm (12 2009. The alternate color or color com- inches) long, must be positioned hori- bination must be uniform along the zontally and vertically on the right sides and lower rear area of the trailer. and left upper corners of the rear of the The retroreflective sheeting or reflex body of each trailer and semitrailer, as reflectors on the upper rear area of the close as practicable to the top of the trailer must be white and conform to trailer and as far apart as practicable. the requirements of FMVSS No. 108 If the perimeter of the body, as viewed (S5.7). Red retroreflective sheeting or from the rear, is not square or rectan- reflex reflectors shall not be used along gular, the strips may be applied along the sides of the trailer unless it is used the perimeter, as close as practicable as part of a red and white pattern. to the uppermost and outermost areas Retroreflective sheeting shall have a of the rear of the body on the left and width of at least 50 mm (2 inches). right sides. (c) Locations for retroreflective sheet- (d) Locations for reflex reflectors.—(1) ing—(1) Sides. Retroreflective sheeting Sides. Reflex reflectors shall be applied shall be applied to each side of the to each side of the trailer or trailer or semitrailer. Each strip of semitrailer. Each array of reflex reflec- retroreflective sheeting shall be posi- tors shall be positioned as horizontally tioned as horizontally as practicable, as practicable, beginning and ending as beginning and ending as close to the close to the front and rear as prac- front and rear as practicable. The strip ticable. The array need not be contin- need not be continuous but the sum of uous but the sum of the length of all of the length of all of the segments shall the array segments shall be at least be at least half of the length of the half of the length of the trailer and the trailer and the spaces between the seg- spaces between the segments of the ments of the strip shall be distributed strip shall be distributed as evenly as as evenly as practicable. The center- practicable. The centerline for each line for each strip of retroreflective array of reflex reflectors shall be be- sheeting shall be between 375 mm (15 tween 375 mm (15 inches) and 1,525 mm inches) and 1,525 mm (60 inches) above (60 inches) above the road surface when

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measured with the trailer empty or un- (a) The towing vehicle must be laden, or as close as practicable to this equipped as follows: area. The center of each reflector shall (1) On the front, there must be at not be more than 100 mm (4 inches) least two headlamps, an equal number from the center of each adjacent reflec- at each side, two turn signals, one at tor in the segment of the array. If re- each side, and two clearance lamps, one flex reflectors are arranged in an alter- at each side. nating color pattern, the length of re- (2) On each side, there must be at flectors of the first color shall be as least one side-marker lamp, located close as practicable to the length of the near the front of the vehicle. reflectors of the second color. (3) On the rear, there must be at least (2) Lower rear area. The rear of each two tail lamps, one at each side, and trailer and semitrailer must be two stop lamps, one at each side. equipped with reflex reflectors. Each array of reflex reflectors shall be posi- (b) Except as provided in paragraph tioned as horizontally as practicable, (c) of this section, the rearmost towed extending across the full width of the vehicle of the combination (including trailer, beginning and ending as close the towed vehicle or a tow-bar com- to the extreme edges as practicable. bination, the towed vehicle of a single The centerline for each array of reflex saddle-mount combination, and the reflectors shall be between 375 mm (15 rearmost towed vehicle of a double or inches) and 1,525 mm (60 inches) above triple saddle-mount combination) or, the road surface when measured with in the case of a vehicle full-mounted on the trailer empty or unladen, or as a saddle-mount vehicle, either the full- close as practicable to this area. The mounted vehicle or the rearmost sad- center of each reflector shall not be dle-mounted vehicle must be equipped more than 100 mm (4 inches) from the as follows: center of each adjacent reflector in the (1) On each side, there must be at segment of the array. least one side-marker lamp, located (3) Upper rear area. Two pairs of white near the rear of the vehicle. reflex reflector arrays, each pair at (2) On the rear, there must be at least least 300 mm (12 inches) long, must be two tail lamps, two stop lamps, two positioned horizontally and vertically turn signals, two clearance lamps, and on the right and left upper corners of two reflectors, one of each type at each the rear of the body of each trailer and side. In addition, if any vehicle in the semitrailer, as close as practicable to combination is 80 inches or more in the top of the trailer and as far apart overall width, there must be three as practicable. If the perimeter of the identification lamps on the rear. body, as viewed from the rear, is not (c) If the towed vehicle in a combina- square or rectangular, the arrays may tion is a mobile structure trailer, it be applied along the perimeter, as close must be equipped in accordance with as practicable to the uppermost and the following lighting devices. For the outermost areas of the rear of the body purposes of this part, mobile structure on the left and right sides. The center trailer means a trailer that has a roof of each reflector shall not be more than and walls, is at least 10 feet wide, and 100 mm (4 inches) from the center of can be used off road for dwelling or each adjacent reflector in the segment commercial purposes. of the array. (1) When the vehicle is operated in accordance with the terms of a special [64 FR 15605, Mar. 31, 1999, as amended at 66 FR 30339, June 6, 2001] permit prohibiting operation during the times when lighted lamps are re- § 393.17 Lamps and reflectors—com- quired under § 392.30, it must have on binations in driveaway-towaway the rear— operation. (i) Two stop lamps, one on each side A combination of motor vehicles en- of the vertical centerline, at the same gaged in driveaway-towaway operation height, and as far apart as practicable; must be equipped with operative lamps (ii) Two tail lamps, one on each side and reflectors conforming to the rules of the vertical centerline, at the same in this section. height, and as far apart as practicable;

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(iii) Two red reflex reflectors, one on (d) An intermediate towed vehicle in each side of the vertical centerline, at a combination consisting of more than the same height, and as far apart as two vehicles (including the first saddle- practicable; and mounted vehicle of a double saddle- (iv) Two turn signal lamps, one on mount combination and the first and each side of the vertical centerline, at second saddle-mount vehicles of a tri- the same height, and as far apart as ple saddle-mount combination) must practicable. have one side-marker lamp on each (2) At all other times, the vehicle side, located near the rear of the vehi- must be equipped as specified in para- cle. graph (b) of this section.

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(49 U.S.C. 304, 1655; 49 CFR 1.48(b) and 301.60)

[40 FR 36126, Aug. 19, 1975, as amended at 47 FR 47837, Oct. 28, 1982]

§ 393.19 Requirements for turn sig- § 393.20 Clearance lamps to indicate naling systems. extreme width and height. (a) Every bus, truck, or truck tractor Clearance lamps shall be mounted so shall be equipped with a signaling sys- as to indicate the extreme width of the tem that in addition to signaling turn- motor vehicle (not including mirrors) ing movements shall have a switch or and as near the top thereof as prac- combination of switches that will ticable: Provided, That when rear iden- cause the two front turn signals and tification lamps are mounted at the ex- the two rear turn signals to flash si- treme height of the vehicle, rear clear- multaneously as a vehicular traffic ance lamps may be mounted at op- hazard warning as required by § 392.22 tional height: And provided further, with the ignition on or off. That when mounting of front clearance (b) Every semitrailer and full trailer lamps at the highest point of a trailer shall be equipped so as to have the two results in such lamps failing to mark rear turn signals to flash simulta- the extreme width of the trailer, such neously with the two front turn signals lamps may be mounted at optional of the towing vehicle as a vehicular height but must indicate the extreme width of the trailer. Clearance lamps traffic hazard warning as required by on truck tractors shall be so located as § 392.22(a). to indicate the extreme width of the [53 FR 49397, Dec. 7, 1988] truck tractor cab.

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Diagram to illustrate § 393.20 for mounting of (1) Each required lighting device and front clearance lamps on truck tractors reflector conforms to the applicable with sleeper cabs.) rules in this part; and (2) Neither the mounting nor the use of a nonrequired lighting device or reflector impairs the effectiveness of a required lighting device or reflector or causes that device or reflector to be inconsistent with the applicable rules in this part. (b) Prohibited combinations. (1) A turn signal lamp must not be combined optically with either a head lamp or other lighting device or combination of light- [33 FR 19735, Dec. 25, 1968, as amended at 34 ing devices that produces a greater in- FR 6851, Apr. 24, 1969] tensity of light than the turn signal lamp. § 393.22 Combination of lighting de- (2) A turn signal lamp must not be vices and reflectors. combined optically with a stop lamp (a) Permitted combinations. Except as unless the stop lamp function is always provided in paragraph (b) of this sec- deactivated when the turn signal function, two or more lighting devices and tion is activated. reflectors (whether or not required by the rules in this part) may be combined optically if—

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(3) A clearance lamp must not be (d) Aiming and intensity. Head lamps combined optically with a tail lamp or shall be constructed and installed so as identification lamp. to provide adequate and reliable illumination and shall conform to the ap- [39 FR 26908, July 24, 1974] propriate specification set forth in the SAE Standards 1 for ‘‘Electric Head § 393.23 Lighting devices to be electric. Lamps for Motor Vehicles’’ or ‘‘Sealed- Lighting devices shall be electric, ex- Beam Head Lamp Units for Motor Ve- cept that red liquid-burning lanterns hicles.’’ may be used on the end of loads in the [33 FR 19735, Dec. 25, 1968, as amended at 41 nature of poles, pipes, and ladders pro- FR 53031, Dec. 3, 1976; 53 FR 49397, Dec. 7, jecting to the rear of the motor vehi- 1988] cle. § 393.25 Requirements for lamps other § 393.24 Requirements for head lamps than head lamps. and auxiliary road lighting lamps. (a) Mounting. All lamps shall be per- (a) Mounting. Head lamps and auxil- manently and securely mounted in iary road lighting lamps shall be workmanlike manner on a permanent mounted so that the beams are readily part of the motor vehicle, except that adjustable, both vertically and hori- temporary lamps on motor vehicles zontally, and the mounting shall be being transported in driveaway- such that the aim is not readily dis- towaway operations and temporary turbed by ordinary conditions of serv- electric lamps on projecting loads need ice. not be permanently mounted nor (b) Head lamps required. Every bus, mounted on a permanent part of the truck, and truck tractor shall be vehicle. The requirement for three equipped with a headlighting system identification lamps on the centerline composed of at least two head lamps, of a vehicle will be met as to location not including fog or other auxiliary by one lamp on the centerline, with the lamps, with an equal number on each other two at right and left. All tem- side of the vehicle. The headlighting porary lamps must be firmly attached. system shall provide an upper and (b) Visibility. All required exterior lower distribution of light, selectable lamps shall be so mounted as to be ca- at the driver’s will. pable of being seen at all distances be- (c) Fog, adverse-weather, and auxiliary tween 500 feet and 50 feet under clear road-lighting lamps. For the purposes of atmospheric conditions during the this section, fog, adverse-weather, and time lamps are required to be lighted. The light from front clearance and auxiliary road lighting lamps, when in- front identification lamps shall be visi- stalled, are considered to be a part of ble to the front, that from sidemarker the headlighting system. Such lamps lamps to the side, that from rear clear- may be used in lieu of head lamps ance, rear identification, and tail under conditions making their use ad- lamps to the rear, and that from pro- visable if there be at least one such jecting loadmarker lamps from those lamp conforming to the appropriate directions required by § 393.11. This SAE Standard 1 for such lamps on each shall not be construed to apply to side of the vehicle. lamps on one unit which are obscured by another unit of a combination of ve- 1 Wherever reference is made in these regu- hicles. lations to SAE Standards or SAE Rec- (c) Specifications. All required lamps ommended Practices, they shall be: (a) As found in the 1985 edition of the SAE except those already installed on vehi- Handbook with respect to parts and acces- cles tendered for transportation in sories other than lighting devices and reflectors. (2) Lighting devices and reflectors on (b) When reference is made in these regula- motor vehicles manufactured on and after tions to SAE Standards or SAE Rec- March 7, 1990, shall conform to FMVSS ommended Practices, they shall be as found 571.108 (49 CFR 571.108) in effect at the time in the 1985 edition of the SAE Handbook: of manufacture of the vehicle. Should a con- (1) With respect to parts and accessories flict arise between FMVSS 571.108 and a SAE other than lighting devices and reflectors: Standard, FMVSS 571.108 will prevail.

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driveaway and towaway operations (5) Combination lamps shall be shall conform to appropriate require- marked with the manufacturer’s or ments of the SAE Standards and/or supplier’s name or trade name and Recommended Practices 1 as indicated shall be marked ‘‘SAE’’ followed by the below, except that the minimum re- appropriate letters indicating the indi- quired marking of lamps conforming to vidual lamps combined. The letter ‘‘A’’, the 1985 requirements shall be as speci- as specified in § 393.26(c), may be in- fied in paragraph (d) of this section. cluded to certify that a reflector in the Projecting load marker lamps shall combination conforms to the require- conform to the requirements for clear- ments appropriate to such marking. If ance, side-marker, and identification the letter ‘‘I’’ follows the letter ‘‘A’’ lamps. Turn signals shall conform to immediately the two letters shall be the requirements for class A, Type I deemed to refer to a turn signal unit, turn signals, provided. as specified in paragraph (d)(2) of this (1) Lamps on vehicles made before section. Combination clearance and July 1, 1961, excepting replacement side marker lamps may be marked lamps as specified in paragraph (c)(2) of ‘‘SAE–PC’’. this section, shall conform to the 1952 (e) Lighting devices to be steady-burn- requirements. ing. All exterior lighting devices shall (2) Lamps on vehicles made on and be of the steady-burning type except after July 1, 1961, and replacement turn signals on any vehicle, stop lamps lamps installed on and after December when used as turn signals, warning 31, 1961, shall conform to the 1985 re- lamps on school buses when operating quirements. as such, and warning lamps on emer- (3) Lamps temporarily attached to gency and service vehicles authorized vehicles transported in driveaway and towaway operations on and after De- by State or local authorities, and ex- cember 31, 1961, shall conform to the cept that lamps combined into the 1985 requirements. same shell or housing with any turn (d) Certification and markings. All signal may be turned off by the same lamps required to conform to the re- switch that turns the signal on for quirements of the SAE Standards 1 flashing and turned on again when the shall be certified by the manufacturer turn signal as such is turned off. This or supplier that they do so conform, by paragraph shall not be construed to markings indicated below. The mark- prohibit the use of vehicular hazard ings in each case shall be visible when warning signal flashers as required by the lamp is in place on the vehicle. § 392.22 or permitted by § 392.18. (1) Stop lamps shall be marked with (f) Stop lamp operation. All stop lamps the manufacturer’s or supplier’s name on each motor vehicle or combination or trade name and shall be marked of motor vehicles shall be actuated ‘‘SAE–S’’. upon application of any of the service (2) Turn signal units shall be marked brakes, except that such actuation is with the manufacturer’s or supplier’s not required upon activation of the name or trade name and shall be emergency feature of trailer brakes by marked ‘‘SAE–AI’’ or ‘‘SAE–I’’. means of either manual or automatic (3) Tail lamps shall be marked with control on the towing vehicle, and ex- the manufacturer’s or supplier’s name cept that stop lamps on a towing vehi- or trade name and shall be marked cle need not be actuated when service ‘‘SAE–T’’. brakes are applied to the towed vehi- (4) Clearance, side marker, identifica- cles or vehicles only, and except that tion, and projecting load-marker no stop lamp need be actuated as such lamps, except combination lamps, shall when it is in use as a turn signal or be marked with the manufacturer’s or when it is turned off by the turn signal supplier’s name or trade name and switch as provided in paragraph (e) of shall be marked ‘‘SAE’’ or ‘‘SAE–P’’. this section. [33 FR 19735, Dec. 25, 1968, as amended at 48 1 See footnote 1 to § 393.24(c). FR 57139, Dec. 28, 1983; 53 FR 49397, Dec. 7, 1 See footnote 1 to § 393.24(c). 1988; 61 FR 1843, Jan. 24, 1996]

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§ 393.26 Requirements for reflectors. (2) Designs do not tend to distort the length and/or width of the motor vehi- (a) Mounting. All required reflectors cle. shall be mounted upon the motor vehi- (3) Such surfaces shall be at least 3 cle at a height not less than 15 inches inches from any required lamp or re- nor more than 60 inches above the flector unless of the same color as such ground on which the motor vehicle lamp or reflector. stands, except that reflectors shall be (4) No red color shall be used on the mounted as high as practicable on front of any motor vehicle, except for motor vehicles which are so con- display of markings or placards re- structed as to make compliance with quired by § 177.823 of this title. the 15-inch requirement impractical. (5) Retroreflective license plates re- They shall be so installed as to perform quired by State or local authorities their function adequately and reliably, may be used. and except for temporary reflectors required for vehicles in driveaway- [33 FR 19735, Dec. 25, 1968, as amended at 35 towaway operations, or on projecting FR 3167, Feb. 19, 1970; 53 FR 49397, Dec. 7, loads, all reflectors shall be perma- 1988] nently and securely mounted in § 393.27 Wiring specifications. workmanlike manner so as to provide the maximum of stability and the min- (a) Wiring for both low voltage imum likelihood of damage. Required (tension) and high voltage (tension) reflectors otherwise properly mounted circuits shall be constructed and in- may be securely installed on flexible stalled so as to meet design require- strapping or belting provided that ments. Wiring shall meet or exceed, under conditions of normal operation both mechanically and electrically, the following SAE Standards as found in they reflect light in the required direc- the 1985 edition of the SAE Handbook: tions. Required temporary reflectors (1) Commercial vehicle engine igni- mounted on motor vehicles during the tion systems-SAE J557-High Tension time they are in transit in any Ignition Cable. driveaway-towaway operation must be (2) Commercial vehicle battery cable- firmly attached. SAE J1127-Jan 80-Battery Cable. (b) Specifications. All required reflec- (3) Other commercial vehicle wiring- tors except those installed on vehicles SAE J1128-Low Tension Primary Cable. tendered for transportation in (b) The source of power and the elec- driveaway and towaway operations trical wiring shall be of such size and shall comply with FMVSS 571.108 (49 characteristics as to provide the nec- CFR 571.108) in effect at the time the essary voltage as the design requires to vehicle was manufactured or the cur- comply with FMVSS 571.108. rent FMVSS 571.108 requirements. (c) Lamps shall be properly grounded. (c) Certification and markings. All reflectors required to conform to the NOTE: This shall not prohibit the use of the specifications in paragraph (b) shall be frame or other metal parts of a motor vehi- certified by the manufacturer or sup- cle as a return ground system provided truck-tractor semitrailer/full trailer com- plier that they do so conform, by binations are electrically connected. marking with the manufacturer’s or supplier’s name or trade name and the [53 FR 49397, Dec. 7, 1988] letters ‘‘SAE-A’’. The marking in each case shall be visible when the reflector § 393.28 Wiring to be protected. is in place on the vehicle. (a) The wiring shall— (d) Retroreflective surfaces. (1) Be so installed that connections Retroreflective surfaces other than re- are protected from weather, abrasion, quired reflectors may be used, pro- road splash, grease, oil, fuel and chaf- vided: ing; (1) Designs do not resemble traffic (2) Be grouped together, when pos- control signs, lights, or devices, except sible, and protected by nonconductive that straight edge striping resembling tape, braid, or other covering capable a barricade pattern may be used. of withstanding severe abrasion or

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shall be protected by being enclosed in § 393.31 Overload protective devices. a sheath or tube; (a) The current to all low tension cir- (3) Be properly supported in a manner cuits shall pass through overload pro- to prevent chafing; tective devices except that this re- (4) Not be so located as to be likely quirement shall not be applicable to to be charred, overheated, or enmeshed battery-to-starting motor or battery- in moving parts; to-generator circuits, ignition and en- (5) Not have terminals or splices lo- gine control circuits, horn circuits, cated above the fuel tank except for electrically-operated fuel pump cir- the fuel sender wiring and terminal; cuits, or electric brake circuits. and (b) Trucks, truck-tractors, and buses (6) Be protected when passing meeting the definition of a commercial through holes in metal by a grommet, motor vehicle and manufactured after or other means, or the wiring shall be June 30, 1953 shall have protective de- encased in a protective covering. vices for electrical circuits arranged so (b) The complete wiring system in- that: cluding lamps, junction boxes, recep- (1) The headlamp circuit or circuits tacle boxes, conduit and fittings must shall not be affected by a short circuit be weather resistant. in any other lighting circuits on the (c) Harness connections shall be ac- motor vehicle; or complished by a mechanical means. (2) The protective device shall be an automatic reset overload circuit break- [53 FR 49397, Dec. 7, 1988] er if the headlight circuit is protected in common with other circuits. § 393.29 Grounds. [33 FR 19735, Dec. 25, 1968, as amended at 53 The battery ground and trailer re- FR 49397, Dec. 7, 1988] turn ground connections on a grounded system shall be readily accessible. The § 393.32 Detachable electrical connec- contact surfaces of electrical connections. tions shall be clean and free of oxide, Electrical wiring between towing and paint, or other nonconductive coating. towed vehicles shall be contained in a cable or cables or entirely within an- § 393.30 Battery installation. other substantially constructed protec- Every storage battery on every vehi- tive device. All such electrical wiring cle, unless located in the engine com- shall be mechanically and electrically partment, shall be covered by a fixed adequate and free of short or open cir- part of the motor vehicle or protected cuits. Suitable provision shall be made by a removable cover or enclosure. Re- in every such detachable connection to movable covers or enclosures shall be afford reasonable assurance against substantial and shall be securely connection in an incorrect manner or latched or fastened. The storage bat- accidental disconnection. Detachable tery compartment and adjacent metal connections made by twisting together parts which might corrode by reason of wires from the towed and towing units battery leakage shall be painted or are prohibited. Precaution shall be coated with an acid-resisting paint or taken to provide sufficient slack in the coating and shall have openings to pro- connecting wire or cable to accommo- vide ample battery ventilation and date without damage all normal mo- drainage. Wherever the cable to the tions of the parts to which they are at- starting motor passes through a metal tached. compartment, the cable shall be protected against grounding by an acid § 393.33 Wiring, installation. and waterproof insulating bushing. Electrical wiring shall be systemati- Wherever a battery and a fuel tank are cally arranged and installed in a both placed under the driver’s seat, workmanlike manner. All detachable they shall be partitioned from each wiring, except temporary wiring con- other, and each compartment shall be nections for driveaway-towaway oper- provided with an independent cover, ations, shall be attached to posts or ventilation, and drainage. terminals by means of suitable cable

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terminals which conform to the SAE tems (except the service brake actu- Standard 1 for ‘‘Cable Terminals’’ or by ation pedal or valve)— cable terminals which are mechani- (i) The vehicle will have operative cally and electrically at least equal to brakes; and such terminals. The number of wires (ii) In the case of a vehicle manufac- attached to any post shall be limited to tured on or after July 1, 1973, the vehi- the number which such post was de- cle will have operative brakes capable signed to accommodate. The presence of performing as specified in § 393.52(b). of bare, loose, dangling, chafing, or (2) A motor vehicle to which the poorly connected wires is prohibited. emergency brake system requirements of Federal Motor Vehicle Safety Stand- Subpart C—Brakes ard No. 105 (§ 571.105 of this title) applied at the time of its manufacture § 393.40 Required brake systems. conforms to the requirements of para- (a) General. A bus, truck, truck trac- graph (c)(1) of this section if— tor, or a combination of motor vehicles (i) It is maintained in conformity must have brakes adequate to control with the emergency brake require- the movement of, and to stop and hold, ments of Standard No. 105 in effect on the vehicle or combination of vehicles. the date of its manufacture; and (b) Specific systems required. (1) A bus, (ii) It is capable of performing as truck, truck tractor, or combination of specified in § 393.52(b), except upon motor vehicles must have— structural failure of its brake master (i) A service brake system that con- cylinder body or effectiveness indicator forms to the requirements of § 393.52; body. and (3) A bus conforms to the require- (ii) A parking brake system that con- ments of paragraph (c)(1) of this sec- forms to the requirements of § 393.41. tion if it meets the requirements of (2) A bus, truck, truck tractor, or a § 393.44 and is capable of performing as combination of motor vehicles manu- specified in § 393.52(b). factured on or after July 1, 1973, must [36 FR 20297, Oct. 20, 1971, as amended at 37 have an emergency brake system that FR 5251, Mar. 11, 1972] conforms to the requirements of § 393.52(b) and consists of either— § 393.41 Parking brake system. (i) Emergency features of the service (a) Every commercial motor vehicle brake system; or manufactured on and after March 7, (ii) A system separate from the serv- 1990, except an agricultural commodity ice brake system. trailer, converter dolly, heavy hauler A control by which the driver applies or pulpwood trailer, shall at all times the emergency brake system must be be equipped with a parking brake sys- located so that the driver can readily tem adequate to hold the vehicle or operate it when he/she is properly re- combination under any condition of strained by any seat belt assembly pro- loading as required by FMVSS 571.121. vided for his/her use. The control for An agricultural commodity trailer, applying the emergency brake system heavy hauler or pulpwood trailer shall may be combined with either the con- carry sufficient chocking blocks to pre- trol for applying the service brake sys- vent movement when parked. tem or the control for applying the (b) The parking brake system shall at parking brake system. However, all all times be capable of being applied in three controls may not be combined. conformance with the requirements of (c) Interconnected systems. (1) If the paragraph (a) of the section by either brake systems specified in paragraph the driver’s muscular effort, or by (b) of this section are interconnected in spring action, or by other energy, pro- any way, they must be designed, con- vided, that if such other energy is de- structed, and maintained so that, upon pended on for application of the park- the failure of any part of the operating ing brake, then an accumulation of mechanism of one or more of the sys- such energy shall be isolated from any common source and used exclusively 1 See footnote 1 to § 393.24(c). for the operation of the parking brake.

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(c) The parking brake system shall be rofitted to meet the requirements of held in the applied position by energy this section within one year from Feb- other than fluid pressure, air pressure, ruary 26, 1987, if the brake components or electric energy. The parking brake have been removed. system shall be such that it cannot be (2) Any motor vehicle being towed in released unless adequate energy is a driveaway-towaway operation must available upon release of the parking have operative brakes as may be nec- brake to make immediate further ap- essary to ensure compliance with the plication with the required effective- performance requirements of § 393.52. ness. This paragraph is not applicable to any [34 FR 15418, Oct. 3, 1969, as amended at 53 FR motor vehicle towed by means of a 49398, Dec. 7, 1988] tow-bar when any other vehicle is full- mounted on such towed motor vehicle § 393.42 Brakes required on all wheels. or any combination of motor vehicles (a) Every commercial motor vehicle utilizing three or more saddle-mounts. shall be equipped with brakes acting on (See § 393.71(a)(3).) all wheels. (3) Any full trailer, any semitrailer, (b) Exception. (1) Trucks or truck tractors having three or more axles— or any pole trailer having a GVWR of (i) Need not have brakes on the front 3,000 pounds or less must be equipped wheels if the vehicle was manufactured with brakes if the weight of the towed before July 25, 1980; or vehicle resting on the towing vehicle (ii) Manufactured between July 24, exceeds 40 percent of the GVWR of the 1980, and October 27, 1986, must be ret- towing vehicle.

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[52 FR 2803, Jan. 27, 1987, as amended at 53 FR 49398, Dec. 7, 1988; 54 FR 48617, Nov. 24, 1989; 59 FR 25574, May 17, 1994; 61 FR 1843, Jan. 24, 1996]

§ 393.43 Breakaway and emergency per square inch nor higher than 45 braking. pounds per square inch. The other means shall be a manually controlled (a) Every motor vehicle, if used to device readily operable by a person tow a trailer equipped with brakes, seated in the driving seat. Its emer- shall be equipped with means for pro- gency position or method of operation viding that in case of breakaway of shall be clearly indicated. In no in- such trailer the service brakes on the stance may the manual means be so ar- towing vehicle will be sufficiently op- ranged as to permit its use to prevent erative to stop the towing vehicle. operation of the automatic means. The (b) Every truck or truck tractor automatic and manual means required equipped with air brakes, when used for by this section may be, but are not re- towing other vehicles equipped with air quired to be, separate. brakes, shall be equipped with two (c) Every truck tractor and truck means of activating the emergency fea- when used for towing other vehicles tures of the trailer brakes. One of these equipped with vacuum brakes, shall means shall operate automatically in have, in addition to the single control the event of reduction of the towing ve- required by § 393.49 to operate all hicle air supply to a fixed pressure brakes of the combination, a second which shall not be lower than 20 pounds manual control device which can be

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used to operate the brakes on the and continued functioning of the tub- towed vehicles in emergencies. Such ing or hose; second control shall be independent of (2) Be installed in a manner that in- brake air, hydraulic, and other pressures proper continued functioning of sure, and independent of other con- the tubing or hose; trols, unless the braking system be so (3) Be long and flexible enough to ac- arranged that failure of the pressure on commodate without damage all normal which the second control depends will motions of the parts to which it is at- cause the towed vehicle brakes to be tached; applied automatically. The second con- (4) Be suitably secured against chaf- trol is not required by this rule to pro- ing, kinking, or other mechanical dam- vide modulated or graduated braking. age; (d) Every trailer required to be (5) Be installed in a manner that pre- equipped with brakes shall be equipped vents it from contacting the vehicle’s with brakes of such character as to be exhaust system or any other source of applied automatically and promptly high temperatures; and upon breakaway from the towing vehi- (6) Conform to the applicable require- cle, and means shall be provided to ments of paragraph (b) or (c) of this maintain application of the brakes on section. In addition, all hose installed the trailer in such case for at least 15 on and after January 1, 1981, must con- minutes. form to those applicable subsections of (e) Air brake systems installed on FMVSS 106 (49 CFR 571.106). towed vehicles shall be so designed, by (b) Special requirements for metallic the use of ‘‘no-bleed-back’’ relay emer- brake tubing, nonmetallic brake tubing, gency valves or equivalent devices, coiled nonmetallic brake tubing and brake that the supply reservoir used to pro- hose. (1) Metallic brake tubing, non- vide air for brakes shall be safeguarded metallic brake tubing, coiled non- against backflow of air to the towing metallic brake tubing, and brake hose vehicle upon reduction of the towing installed on a commercial motor vehi- vehicle air pressure. cle on and after March 7, 1989, must (f) The requirements of paragraphs meet or exceed one of the following (b), (c), and (d) of this section shall not specifications set forth in the SAE be applicable to motor vehicles in Handbook, 1985 edition: driveaway-towaway operations. (i) Metallic Air Brake Tubing—SAE § 393.44 Front brake lines, protection. Recommended Practice J1149—Metallic Air Brake System Tubing and Pipe— On every bus, if equipped with air July 76. brakes, the braking system shall be so (ii) Nonmetallic Air Brake Tubing— constructed that in the event any SAE Recommended Practice J844— brake line to any of the front wheels is Nonmetallic Air Brake System Type broken, the driver can apply the brakes B—OCT 80. on the rear wheels despite such break- (iii) Air Brake Hose—SAE Rec- age. The means used to apply the ommended Practice J1402—Automotive brakes may be located forward of the Air Brake Hose and Hose Assemblies— driver’s seat as long as it can be oper- JUN 85. ated manually by the driver when the (iv) Hydraulic Brake Hose—SAE Rec- driver is properly restrained by any ommended Practice J1401 Road Vehi- seat belt assembly provided for use. cle-Hydraulic Brake Hose Assemblies Every bus shall meet this requirement for Use with Non-Petroleum Base Hy- or comply with the regulations in ef- draulic Fluid JUN 85. fect at the time of its manufacture. (v) Vacuum Brake Hose—SAE Rec- [53 FR 49400, Dec. 7, 1988] ommended Practice J1403 Vacuum Brake Hose JUN 85. § 393.45 Brake tubing and hose, ade- (2) Except as provided in paragraph quacy. (c) of this section, brake hose and (a) General requirements. Brake tubing brake tubing installed on a motor vehi- and brake hose must— cle before March 7, 1989, must conform (1) Be designed and constructed in a to 49 CFR 393.45 effective October 31, manner that insures proper, adequate, 1983.

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(c) Nonmetallic brake tubing. Coiled able assurance against accidental dis- nonmetallic brake tubing may be used connection; for connections between towed and (d) Have the vacuum brake engine towing vehicles or between the frame manifold connection at least three- of a towed vehicle and the unsprung eighths inch in diameter. subframe of an adjustable axle of that (e) If installed on a vehicle on or vehicle if— after January 1, 1981, meet require- (1) The coiled tubing has a straight ments under applicable subsections of segment (pigtail) at each end that is at FMVSS 106 (49 CFR 571.106). least 2 inches in length and is encased (f) Splices in tubing if installed on a in a spring guard or similar device vehicle after March 7, 1989, must use which prevents the tubing from fittings that meet the requirements of kinking at the fitting at which it is at- SAE Standard J512–OCT 80 Automotive tached to the vehicle; and Tube Fittings or for air brake systems (2) The spring guard or similar device SAE J246—March 81 Spherical and has at least 2 inches of closed coils or Flanged Sleeve (Compression) Tube similar surface at its interface with the Fittings as found in the SAE Handbook 1 fitting and extends at least 1 ⁄2 inches 1985 edition. into the coiled segment of the tubing from its straight segment. [33 FR 19735, Dec. 28, 1968, as amended at 44 (d) Brake tubing and brake hose, uses. FR 25457, May 1, 1979; 53 FR 49400, Dec. 7, Metallic and nonmetallic brake tubing 1988] is intended for use in areas of the brake system where relative movement in the § 393.47 Brake lining. line is not anticipated. Brake hose and The brake lining in every motor vehi- coiled nonmetallic brake tubing is in- cle shall be so constructed and intended for use in the brake system stalled as not to be subject to excessive where substantial relative movement fading and grabbing and shall be ade- in the line is anticipated or the hose/ quate in thickness, means of attach- coiled nonmetallic brake tubing is ex- ment, and physical characteristics to posed to potential tension or impact provide for safe and reliable stopping of such as between the frame and axle in the motor vehicle. a conventional type suspension system (axle attached to frame by suspension § 393.48 Brakes to be operative. system). Nonmetallic brake tubing (a) General rule. Except as provided in may be used through an articulation paragraphs (b) and (c) of this section, point provided movement is less than all brakes with which a motor vehicle 4.5 degrees in a vertical plane, and 7.4 is equipped must at all times be capa- degrees in a transverse horizontal ble of operating. plane. (b) Devices to reduce or remove front- (49 U.S.C. 304, 1655; 49 CFR 1.48(b) and 301.60) wheel braking effort. A motor vehicle may be equipped with a device to re- [38 FR 4333, Feb. 13, 1973, as amended at 44 duce the braking effort upon its front FR 25457, May 1, 1979; 45 FR 46424, July 10, 1980; 47 FR 47837, Oct. 28, 1982; 53 FR 49400, wheels or, in the case of a three-axle Dec. 7, 1988] truck or truck tractor manufactured before March 1, 1975, to remove the § 393.46 Brake tubing and hose con- braking effort upon its front wheels, if nections. that device conforms to, and is used in All connections for air, vacuum, or compliance with, the rules in para- hydraulic braking systems shall: graph (b) (1) or (2) of this section. (a) Be adequate in material and con- (1) Manually operated devices. A struction to insure proper continued manually operated device to reduce or functioning; remove the front-wheel braking effort (b) Be designed, constructed, and in- must not be— stalled so as to insure, when properly (i) Installed in a motor vehicle other connected, an attachment free of leaks, than a bus, truck, or truck tractor; or constrictions, or other defects; (ii) Installed in a bus, truck, or truck (c) Have suitable provision in every tractor manufactured after February detachable connection to afford reason- 28, 1975; or

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(iii) Used in the reduced mode except § 393.50 Reservoirs required. when the vehicle is operating under ad- (a) General. Every commercial motor verse conditions such as wet, snowy, or vehicle using air or vacuum for break- icy roads. ing shall be equipped with reserve ca- (2) Automatic devices. An automatic pacity or a reservoir sufficient to en- device to reduce the front-wheel brak- sure a full service brake application ing effort by up to 50 percent of the with the engine stopped without de- normal braking force, regardless of pleting the air pressure or vacuum whether or not antilock system failure below 70 percent of that pressure or de- has occurred on any axle, must not— gree of vacuum indicated by the gauge (i) Be operable by the driver except immediately before the brake applica- upon application of the control that action is made. For purposes of this sec- tivates the braking system; and tion, a full service brake application is (ii) Be operable when the pressure considered to be made when the service that transmits brake control applica- brake pedal is pushed to the limit of its tion force exceeds— travel. (A) 85 psig on air-mechanical braking (b) Safeguarding of air and vacuum. (1) systems; or Every bus, truck, and truck tractor, (B) 85 percent of the maximum sys- when equipped with air or vacuum res- tem pressure in the case of vehicles ervoirs and regardless of date of manu- utilizing other than compressed air. facture, shall have such reservoirs so (c) Towed vehicle. Paragraph (a) of safeguarded by a check valve or equiv- this section does not apply to— alent device that in the event of failure (1) A disabled vehicle being towed; or or leakage in its connection to the (2) A vehicle being towed in a source of compressed air or vacuum the driveaway-towaway operation which is air or vacuum supply in the reservoir exempt from the general rule of § 393.42 shall not be depleted by the leak or under paragraph (b) of that section. failure. (2) Means shall be provided to estab- (Sec. 204 of the Interstate Commerce Act, as amended (49 U.S.C. 304); sec. 6 of the Depart- lish the check valve to be in working ment of Transportation Act (49 U.S.C. 1655), order. On and after May 1, 1966, means and the delegations of authority by the Sec- other than loosening or disconnection retary of Transportation and the Federal of any connection between the source Highway Administrator at 49 CFR 1.48 and of compressed air or vacuum and the 301.60, respectively) check valve, and necessary tools for op- [39 FR 26907, July 24, 1974, as amended at 41 eration of such means, shall be pro- FR 29130, July 15, 1976; 41 FR 53031, Dec. 3, vided to prove that the check valve is 1976] in working order. The means shall be readily accessible either from the § 393.49 Single valve to operate all front, side, or rear of the vehicle, or brakes. from the driver’s compartment. Every motor vehicle, the date of (i) In air brake systems with one res- manufacture of which is subsequent to ervoir, the means shall be a cock, June 30, 1953, which is equipped with valve, plug, or equivalent device ar- power brakes, shall have the braking ranged to vent a cavity having free system so arranged that one applica- communication with the connection tion valve shall when applied operate between the check valve and the source all the service brakes on the motor ve- of compressed air or vacuum. hicle or combination of motor vehicles. (ii) Where air is delivered by a com- This requirement shall not be con- pressor into one tank or compartment strued to prohibit motor vehicles from (wet tank), and air for braking is taken being equipped with an additional directly from another tank or compart- valve to be used to operate the brakes ment (dry tank) only, with the re- on a trailer or trailers or as provided in quired check valve between the tanks § 393.44. This section shall not be appli- or compartments, a manually operated cable to driveaway-towaway operations drain cock on the first (wet) tank or unless the brakes on such operations compartment will serve as a means are designed to be operated by a single herein required if it conforms to the re- valve. quirements herein.

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(iii) In vacuum systems stopping the audible or visible continuous warning engine will serve as the required to the driver whenever the pressure of means, the system remaining evacu- the compressed air in the braking sys- ated as indicated by the vacuum gauge. tem is below a specified pressure, which must be at least one-half of the [33 FR 19735, Dec. 25, 1968, as amended at 53 FR 49400, Dec. 7, 1988] compressor governor cutout pressure. (2) The vehicle must have a pressure § 393.51 Warning devices and gauges. gauge which indicates to the driver the (a) General. In the manner and to the pressure in pounds per square inch extent specified in paragraphs (b), (c), available for braking. (d) A vehicle (d), and (e) of this section, a bus, truck, Vacuum brakes. (regardless of the date it was manufac- or truck tractor must be equipped with tured) having service brakes activated a signal that provides a warning to the by vacuum or a vehicle towing a vehi- driver when a failure occurs in the ve- cle having service brakes activated by hicle’s service brake system. (b) Hydraulic brakes. A vehicle manu- vacuum must be equipped with— (1) A device that provides a readily factured on or after July 1, 1973, and audible or visible continuous warning having service brakes activated by hy- to the driver whenever the vacuum in draulic fluid must be equipped with a the vehicle’s supply reservoir is less warning signal that performs as follows: than 8 inches of mercury; and (1) If Federal Motor Vehicle Safety (2) A vacuum gauge which indicates Standard No. 105 (§ 571.105 of this title) to the driver the vacuum in inches of was applicable to the vehicle at the mercury available for braking. time it was manufactured, the warning (e) Hydraulic brakes applied or assisted signal must conform to the require- by air or vacuum. A vehicle having a ments of that standard. braking system in which hydraulically (2) If Federal Motor Vehicle Safety activated service brakes are applied or Standard No. 105 (§ 571.105) was not ap- assisted by compressed air or vacuum plicable to the vehicle at the time it must be equipped with both a warning was manufactured, the warning signal signal that conforms to the require- must become operative, before or upon ments of paragraph (b) of this section application of the brakes in the event and a warning device that conforms to of a hydraulic-type complete failure of the requirements of either paragraph a partial system. The signal must be (c) or paragraph (d) of this section. readily audible or visible to the driver. (f) Maintenance. The warning signals, (c) Air brakes. A vehicle (regardless of devices, and gauges required by this the date it was manufactured) having section must be maintained in opera- service brakes activated by compressed tive condition. air (air-mechanical brakes) or a vehicle [37 FR 5251, Mar. 11, 1972, as amended at 53 towing a vehicle having service brakes FR 49400, Dec. 7, 1988] activated by compressed air (air-mechanical brakes) must be equipped, and § 393.52 Brake performance. perform, as follows: (a) Upon application of its service (1) The vehicle must have a low air brakes, a motor vehicle or combination pressure warning device that conforms of motor vehicles must under any con- to the requirements of either para- dition of loading in which it is found on graph (c)(1) (i) or (ii) of this section. a public highway, be capable of— (i) If Federal Motor Vehicle Safety (1) Developing a braking force at Standard No. 121 (§ 571.121 of this title) least equal to the percentage of its was applicable to the vehicle at the gross weight specified in the table in time it was manufactured, the warning paragraph (d) of this section; device must conform to the require- (2) Decelerating to a stop from 20 ments of that standard. miles per hour at not less than the rate (ii) If Federal Motor Vehicle Safety specified in the table in paragraph (d) Standard No. 121 (§ 571.121) was not ap- of this section; and plicable to the vehicle at the time it (3) Stopping from 20 miles per hour in was manufactured, the vehicle must a distance, measured from the point at have a device that provides a readily which movement of the service brake

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pedal or control begins, that is not fied in the table in paragraph (d) of this greater than the distance specified in section. the table in paragraph (d) of this sec- (c) Conformity to the stopping-dis- tion. tance requirements of paragraphs (a) (b) Upon application of its emergency and (b) of this section shall be deter- brake system and with no other brake mined under the following conditions: system applied, a motor vehicle or (1) Any test must be made with the combination of motor vehicles must, vehicle on a hard surface that is sub- under any condition of loading in stantially level, dry, smooth, and free which it is found on a public highway, of loose material. be capable of stopping from 20 miles (2) The vehicle must be in the center per hour in a distance, measured from of a 12-foot-wide lane when the test be- the point at which movement of the gins and must not deviate from that emergency brake control begins, that lane during the test. is not greater than the distance speci- (d) Vehicle brake performance table:

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VerDate 0ct<31>2002 08:18 Nov 29, 2002 Jkt 197203 PO 00000 Frm 01070 Fmt 8010 Sfmt 8010 Y:\SGML\197203T.XXX 197203T Federal Motor Carrier Safety Administration, DOT § 393.52 m.p.h. from initial braking dis- speed of 20 tance in feet brake systems Application and m.p.h. from initial braking dis- speed at 20 tance in feet Application and (column 4) is a definite measure of the ’’ per second Deceleration in feet per second Service brake systems Emergency ained is included in the figures column 4 but not in- ecause the deceleration is not sustained at same rate .5 14 40 90 tical brake testing are the maximum decelerations attained negligible for many passenger cars and greatest com- on and brake-force buildup. Also, other factors may cause in column 3 are divided by 32.2 feet per-second per-second, bulation because certain brake-testing devices utilize this fac- he braking controls and the point at which vehicle comes to vehicle. ious classes of vehicles. weight Braking force or combination of gross vehicle as a percentage ...... 43.4 14 35 85 ...... 43.5 14 35 85 Brake-system application and braking distance in feet ‘‘ ...... 52.8 17 25 66 ...... 65.2 21 20 54 s GVWR of 10,000 pounds or ’ s gross vehicle weight rating and the actual weight, respectively. ’ s GVWR of more than 10,000 pounds, except truck tractors. ’ s GVWR of 10,000 pounds or less ...... 52.8 17 25 66 ’ Type of motor vehicle refer to the manufacturer ’’ GVW ‘‘ and ’’ GVWR ‘‘ less ...... sis ...... chassis; vehicles built on a truck or bus chassis and having manufacturer Combinations of a 2-axle towing vehicle and trailer having GVWR 3,000 pounds or less. All combinations of 2 or less vehicles in driveaway towaway operation ...... (1) Vehicles with a seating capacity of 10 persons or less, including driver, and built on passenger car chas- (2) Vehicles with a seating capacity of more than 10 persons, including driver, and built on passenger car (3) All other passenger-carrying vehicles ...... (1) Single unit vehicles having a manufacturer (2) Single unit vehicles having a manufacturer (3) All other property-carrying vehicles and combinations of ...... 43 Notes: (a) There is a definite mathematical relationship between the figures in columns 2 and 3. If decelerations set forth (b) The decelerations specified in column 3 are an indication of the effectiveness basic brakes, and as measured prac (c) The distances in column 4 and the decelerations 3 are not directly related. (d) The distance traveled during the period of brake-system application and brake-force buildup varies with vehicle type, being (e) The terms A. Passenger-carrying vehicles: B. Property-carrying vehicles: the figures in column 2 will be obtained. (For example, 21 divided by 32.2 equals 65.2 percent.) Column is included ta tor. at some time during the stop. These decelerations as measured in brake tests cannot be used to compute values column 4 b over the entire period of stop. The deceleration increases from zero to a maximum during brake-system applicati the deceleration to decrease after reaching a maximum. The added distance that results because maximum is not sust dicated by the usual brake-testing devices for checking deceleration. overall effectiveness of the braking system, being distance traveled between point at which driver starts to move t rest. It includes distance traveled while the brakes are being applied and retarding binations of commercial vehicles. This fact accounts for the variation from 20 to 40 feet in values column 4 var

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[36 FR 20298, Oct. 20, 1971, as amended at 37 FR 5251, Mar. 11, 1972; 37 FR 11336, June 7, 1972]

EFFECTIVE DATE NOTE: At 67 FR 51777, Aug. GVWR or GVW greater than 4,536 kg (10,000 9, 2002, § 393.52 was amended by revising para- pounds), graphs (a)(3) and (d), and adding paragraph (4) Developing only the braking force spec- (a)(4), effective Feb. 5, 2002. At 67 FR 53048, ified in paragraph (a)(1) of this section and Aug. 14, 2002, the effective date was corrected the stopping distance specified in paragraph to Feb. 5, 2003. For the convenience of the (a)(3) of this section, if braking force is user, the revised text is set forth as follows: measured by a performance-based brake test- er which meets the requirements of func- § 393.52 Brake performance. tional specifications for performance-based brake testers for commercial motor vehicles, (a) * * * where braking force is the sum of the brak- (3) Stopping from 20 miles per hour in a ing force at each wheel of the vehicle or ve- distance, measured from the point at which hicle combination as a percentage of gross movement of the service brake pedal or con- vehicle or combination weight. trol begins, that is not greater than the distance specified in the table in paragraph (d) of this section; or, for motor vehicles or * * * * * motor vehicle combinations that have a (d) Vehicle brake performance table:

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VerDate 0ct<31>2002 08:18 Nov 29, 2002 Jkt 197203 PO 00000 Frm 01072 Fmt 8010 Sfmt 8003 Y:\SGML\197203T.XXX 197203T Federal Motor Carrier Safety Administration, DOT § 393.52 mph from initial braking dis- speed of 20 tance in feet brake systems Application and mph from initial braking dis- speed at 20 tance in feet Application and (column 4) is a definite measure of the ’’ per second Deceleration in feet per second Service brake systems Emergency ained is included in the figures column 4 but not in- ecause the deceleration is not sustained at same rate .5 14 40 90 tical brake testing are the maximum decelerations attained on and brake-force buildup. Also, other factors may cause negligible for many passenger cars and greatest com- in column 3 are divided by 32.2 feet per-second per-second, bulation because certain brake testing devices utilize this fac- he braking controls and the point at which vehicle comes to vehicle. ious classes of vehicles. weight Braking force or combination of gross vehicle as a percentage ...... 53.5 14 35 85 ...... 43.5 14 35 85 Brake-system application and braking distance in feet ‘‘ ...... 52.8 17 25 66 ...... 65.2 21 20 54 s GVWR of 10,000 pounds or ’ s gross vehicle weight rating and the actual weight, respectively. ’ s GVWR of more than 10,000 pounds, except truck tractors. ’ s GVWR of 10,000 pounds or less ...... 52.8 17 25 66 ’ Type of motor vehicle refer to the manufacturer ’’ GVW ‘‘ and ’’ GVWR ‘‘ less ...... sis ...... chassis; vehicles built on a truck or bus chassis and having manufacturer Combinations of a 2-axle towing vehicle and trailer having GVWR 3,000 pounds or less. All combinations of 2 or less vehicles in drive-away tow-away operation ...... (1) Vehicles with a seating capacity of 10 persons or less, including driver, and built on passenger car chas- (2) Vehicles with a seating capacity of more than 10 persons, including driver, and built on passenger car (3) All other passenger-carrying vehicles ...... (1) Single unit vehicles having a manufacturer (2) Single unit vehicles having a manufacturer (3) All other property-carrying vehicles and combinations of ...... 43 Notes: (a) There is a definite mathematical relationship between the figures in columns 2 and 3. If decelerations set forth (b) The decelerations specified in column 3 are an indication of the effectiveness basic brakes, and as measured prac (c) The distances in column 4 and the decelerations 3 are not directly related. (d) The distance traveled during the period of brake-system application and brake-force buildup varies with vehicle type, being (e) The terms A. Passenger-carrying vehicles: B. Property-carrying vehicles: the figures in column 2 will be obtained. (For example, 21 divided by 32.2 equals 65.2 percent.) Column is included ta tor. at some time during the stop. These decelerations as measured in brake tests cannot be used to compute values column 4 b over the entire period of stop. The deceleration increases from zero to a maximum during brake system applicati the deceleration to decrease after reaching a maximum. The added distance that results because maximum is not sust dicated by the usual brake-testing devices for checking deceleration. overall effectiveness of the braking system, being distance traveled between point at which driver starts to move t rest. It includes distance traveled while the brakes are being applied and retarding binations of commercial vehicles. This fact accounts for the variation from 20 to 40 feet in values column 4 var

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§ 393.53 Automatic brake adjusters (c) Air brake systems. (1) Each truck and brake adjustment indicators. tractor manufactured on or after (a) Automatic brake adjusters March 1, 1997 (except truck tractors en- (hydraulic brake systems). Each commer- gaged in driveaway-towaway oper- cial motor vehicle manufactured on or ations), shall be equipped with an after October 20, 1993, and equipped antilock brake system that meets the with a hydraulic brake system, shall requirements of FMVSS No. 121 (49 meet the automatic brake adjustment CFR 571.121, S5.1.6.1(b)). system requirements of Federal Motor (2) Each air braked commercial Vehicle Safety Standard No. 105 (49 motor vehicle other than a truck trac- CFR 571.105, S5.1) applicable to the ve- tor, manufactured on or after March 1, hicle at the time it was manufactured. 1998 (except commercial motor vehicles (b) Automatic brake adjusters (air brake engaged in driveaway-towaway oper- systems). Each commercial motor vehi- ations), shall be equipped with an cle manufactured on or after October antilock brake system that meets the 20, 1994, and equipped with an air brake requirements of FMVSS No. 121 (49 system shall meet the automatic brake CFR 571.121, S5.1.6.1(a) for trucks and adjustment system requirements of buses, S5.2.3 for semitrailers, converter Federal Motor Vehicle Safety Standard dollies and full trailers). No. 121 (49 CFR 571.121, S5.1.8) applica- (d) ABS malfunction circuits and sig- ble to the vehicle at the time it was nals for air braked vehicles. (1) Each manufactured. truck tractor manufactured on or after (c) Brake adjustment indicator (air March 1, 1997, and each single-unit air brake systems). On each commercial braked vehicle manufactured on or motor vehicle manufactured on or after after March 1, 1998, subject to the re- October 20, 1994, and equipped with an quirements of paragraph (c) of this sec- air brake system which contains an ex- tion, shall be equipped with an elec- ternal automatic adjustment mecha- trical circuit that is capable of sig- nism and an exposed pushrod, the con- naling a malfunction that affects the dition of service brake under-adjust- generation or transmission of response ment shall be displayed by a brake ad- or control signals to the vehicle’s justment indicator conforming to the antilock brake system (49 CFR 571.121, requirements of Federal Motor Vehicle S5.1.6.2(a)). Safety Standard No. 121 (49 CFR 571.121, (2) Each truck tractor manufactured S5.1.8) applicable to the vehicle at the on or after March 1, 2001, and each sin- time it was manufactured. gle-unit vehicle that is equipped to tow another air-braked vehicle, subject to [60 FR 46245, Sept. 6, 1995] the requirements of paragraph (c) of this section, shall be equipped with an § 393.55 Antilock brake systems. electrical circuit that is capable of (a) Hydraulic brake systems. Each transmitting a malfunction signal from truck and bus manufactured on or after the antilock brake system(s) on the March 1, 1999 (except trucks and buses towed vehicle(s) to the trailer ABS engaged in driveaway-towaway oper- malfunction lamp in the cab of the ations), and equipped with a hydraulic towing vehicle, and shall have the brake system, shall be equipped with means for connection of the electrical an antilock brake system that meets circuit to the towed vehicle. The ABS the requirements of Federal Motor Ve- malfunction circuit and signal shall hicle Safety Standard (FMVSS) No. 105 meet the requirements of FMVSS No. (49 CFR 571.105, S5.5). 121 (49 CFR 571.121, S5.1.6.2(b)). (b) ABS malfunction indicators for hy- (3) Each semitrailer, trailer con- draulic braked vehicles. Each hydraulic verter dolly, and full trailer manufac- braked vehicle subject to the require- tured on or after March 1, 2001, and ments of paragraph (a) of this section subject to the requirements of para- shall be equipped with an ABS mal- graph (c)(2) of this section, shall be function indicator system that meets equipped with an electrical circuit that the requirements of FMVSS No. 105 (49 is capable of signaling a malfunction in CFR 571.105, S5.3). the trailer’s antilock brake system,

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and shall have the means for connec- windshield or windshield panel. tion of this ABS malfunction circuit to Exceptions: the towing vehicle. In addition, each (1) Coloring or tinting which meets trailer manufactured on or after March the requirements of paragraph (d) of 1, 2001, subject to the requirements of this section; paragraph (c)(2) of this section, that is (2) Any crack that is not intersected designed to tow another air-brake by any other cracks; equipped trailer shall be capable of (3) Any damaged area which can be transmitting a malfunction signal from covered by a disc 19 mm (3⁄4 inch) in di- the antilock brake system(s) of the ameter if not closer than 76 mm (3 trailer(s) it tows to the vehicle in front inches) to any other similarly damaged of the trailer. The ABS malfunction area. circuit and signal shall meet the re- (d) Coloring or tinting of windshields quirements of FMVSS No. 121 (49 CFR and windows. Coloring or tinting of 571.121, S5.2.3.2). windshields and the windows to the im- (e) Exterior ABS malfunction indicator mediate right and left of the driver is lamps for trailers. Each trailer allowed, provided the parallel luminous (including a trailer converter dolly) transmittance through the colored or manufactured on or after March 1, 1998 tinted glazing is not less than 70 per- and before March 1, 2009, and subject to cent of the light at normal incidence in the requirements of paragraph (c)(2) of those portions of the windshield or this section, shall be equipped with an windows which are marked as having a ABS malfunction indicator lamp which parallel luminous transmittance of not meets the requirements of FMVSS No. less than 70 percent. The transmittance 121 (49 CFR 571.121, S5.2.3.3). restriction does not apply to other windows on the commercial motor vehicle. [63 FR 24465, May 4, 1998] (e) Prohibition on obstructions to the driver’s field of view—(1) Devices mounted Subpart D—Glazing and Window at the top of the windshield. Antennas, Construction transponders, and similar devices must not be mounted more than 152 mm (6 § 393.60 Glazing in specified openings. inches) below the upper edge of the (a) Glazing material. Glazing material windshield. These devices must be lo- used in windshields, windows, and cated outside the area swept by the doors on a motor vehicle manufactured windshield wipers, and outside the on or after December 25, 1968, shall at a driver’s sight lines to the road and minimum meet the requirements of highway signs and signals. (2) Decals and stickers mounted on the Federal Motor Vehicle Safety Standard windshield. Commercial Vehicle Safety (FMVSS) No. 205 in effect on the date Alliance (CVSA) inspection decals, and of manufacture of the motor vehicle. stickers and/or decals required under The glazing material shall be marked Federal or State laws may be placed at in accordance with FMVSS No. 205 (49 the bottom or sides of the windshield CFR 571.205, S6). provided such decals or stickers do not (b) Windshields required. Each bus, extend more than 115 mm (41⁄2 inches) truck and truck-tractor shall be from the bottom of the windshield and equipped with a windshield. Each wind- are located outside the area swept by shield or portion of a multi-piece wind- the windshield wipers, and outside the shield shall be mounted using the full driver’s sight lines to the road and periphery of the glazing material. highway signs or signals. (c) Windshield condition. With the exception of the conditions listed in para- [63 FR 1387, Jan. 9, 1998] graphs (c)(1), (c)(2), and (c)(3) of this section, each windshield shall be free of § 393.61 Window construction. discoloration or damage in the area ex- (a) Windows in trucks and truck trac- tending upward from the height of the tors. Every truck and truck tractor, ex- top of the steering wheel (excluding a cept vehicles engaged in armored car 51 mm (2 inch) border at the top of the service, shall have, in addition to the windshield) and extending from a 25 area provided by the windshield, at mm (1 inch) border at each side of the least one window on each side of the

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driver’s compartment, which window more than 10 persons shall have emer- shall have sufficient area to contain ei- gency exits in conformity with Federal ther an ellipse having a major axis of Motor Vehicle Safety Standard No. 217, 18 inches and a minor axis of 13 inches part 571 of this title. or an opening containing 200 square (3) A bus manufactured before Sep- inches formed by a rectangle 13 inches tember 1, 1973, may conform to Federal by 173⁄4 inches with corner arcs of 6- Motor Vehicle Safety Standard No. 217, inch maximum radius. The major axis part 571 of this title, in lieu of con- of the ellipse and the long axis of the forming to paragraph (b)(1) of this sec- rectangle shall not make an angle of tion. more than 45 degrees with the surface (c) Push-out window requirements. (1) on which the unladen vehicle stands; Except as provided in paragraph (c)(3) however, if the cab is designed with a of this section, every glazed opening in folding door or doors or with clear a bus manufactured before September openings where doors or windows are 1, 1973, and having a seating capacity of customarily located, then no windows more than eight persons, used to sat- shall be required in such locations. isfy the requirements of paragraph (b) Bus windows. (1) Except as pro- (b)(1) of this section, if not glazed with vided in paragraph (b)(3) of this section laminated safety glass, shall have a a bus manufactured before September frame or sash so designed, constructed, 1, 1973, having a seating capacity of and maintained that it will yield out- more than eight persons shall have, in wardly to provide the required free addition to the area provided by the opening when subjected to the drop windshield, adequate means of escape test specified in Test 25 of the Amer- for passengers through windows. The ican Standard Safety Code referred to adequacy of such means shall be deter- in § 393.60. The height of drop required mined in accordance with the following to open such push-out windows shall standards: For each seated passenger not exceed the height of drop required space provided, inclusive of the driver to break the glass in the same window there shall be at least 67 square inches when glazed with the type of laminated of glazing if such glazing is not con- glass specified in Test 25 of the Code. tained in a push-out window; or at The sash for such windows shall be con- least 67 square inches of free opening structed of such material and be of resulting from opening of a push-out such design and construction as to be type window. No area shall be included continuously capable of complying in this minimum prescribed area unless with the above requirement. it will provide an unobstructed opening (2) On a bus manufactured on and sufficient to contain an ellipse having after September 1, 1973, having a seat- a major axis of 18 inches and a minor ing capacity of more than 10 persons, axis of 13 inches or an opening con- each push-out window shall conform to taining 200 square inches formed by a Federal Motor Vehicle Safety Standard No. 217, (§ 571.217) of this title. rectangle 13 inches by 173⁄4 inches with corner arcs of 6-inch maximum radius. (3) A bus manufactured before Sep- The major axis of the elipse and the tember 1, 1973, may conform to Federal long axis of the rectangle shall make Motor Vehicle Safety Standard No. 217 an angle of not more than 45° with the (§ 571.217) of this title, in lieu of con- surface on which the unladen vehicle forming to paragraph (c)(1) of this sec- stands. The area shall be measured ei- tion. ther by removal of the glazing if not of [33 FR 19735, Dec. 25, 1968, as amended at 37 the push-out type or of the movable FR 11677, June 10, 1972] sash if of the push-out type, and it shall be either glazed with laminated § 393.62 Window obstructions. safety glass or comply with paragraph Windows, if otherwise capable of (c) of this section. No less than 40 per- complying with § 393.61 (a) and (b), shall cent of such prescribed glazing or open- not be obstructed by bars or other such ing shall be on one side of any bus. means located either inside or outside (2) A bus, including a school bus, such windows such as would hinder the manufactured on and after September escape of occupants unless such bars or 1, 1973, having a seating capacity of other such means are so constructed as

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to provide a clear opening, at least (3) Fuel spilled vertically from a fuel equal to the opening provided by the tank while it is being filled will not window to which it is adjacent, when contact any part of the exhaust or elec- subjected to the same test specified in trical systems of the vehicle, except § 393.61(c). The point of application of the fuel level indicator assembly; such test force shall be such as will be (4) Fill pipe openings are located out- most likely to result in the removal of side the vehicle’s passenger compart- the obstruction. ment and its cargo compartment; § 393.63 Windows, markings. (5) A fuel line does not extend between a towed vehicle and the vehicle (a) On a bus manufactured before that is towing it while the combination September 1, 1973, each bus push-out of vehicles is in motion; and window and any other bus escape win- (6) No part of the fuel system of a bus dow glazed with laminated safety glass manufactured on or after January 1, required in § 393.61 shall be identified as such by clearly legible and visible 1973, is located within or above the pas- signs, lettering, or decalcomania. Such senger compartment. marking shall include appropriate (c) Fuel tank installation. Each fuel wording to indicate that it is an escape tank must be securely attached to the window and also the method to be used motor vehicle in a workmanlike man- for obtaining emergency exit. ner. (b) On a bus manufactured on and (d) Gravity or syphon feed prohibited. A after September 1, 1973, emergency fuel system must not supply fuel by exits required in § 393.61 shall be gravity or syphon feed directly to the marked to conform to Federal Motor carburetor or injector. Vehicle Safety Standard No. 217 (e) Selection control valve location. If a (§ 571.217), of this title. fuel system includes a selection con- (c) A bus manufactured before Sep- trol valve which is operable by the tember 1, 1973, may mark emergency driver to regulate the flow of fuel from exits to conform to Federal Motor Ve- two or more fuel tanks, the valve must hicle Safety Standard No. 217 (§ 571.217), be installed so that either— of this title in lieu of conforming to (1) The driver may operate it while paragraph (a) of this section. watching the roadway and without [37 FR 11678, June 10, 1972] leaving his/her driving position; or (2) The driver must stop the vehicle Subpart E—Fuel Systems and leave his/her seat in order to operate the valve. AUTHORITY: Sec. 204, Interstate Commerce (f) Fuel lines. A fuel line which is not Act, as amended, 49 U.S.C. 304; sec. 6, Depart- completely enclosed in a protective ment of Transportation Act, 49 U.S.C. 1655; housing must not extend more than 2 delegation of authority at 49 CFR 1.48 and inches below the fuel tank or its sump. 389.4. Diesel fuel crossover, return, and with- § 393.65 All fuel systems. drawal lines which extend below the bottom of the tank or sump must be (a) Application of the rules in this sec- protected against damage from impact. tion. The rules in this section apply to Every fuel line must be— systems for containing and supplying (1) Long enough and flexible enough fuel for the operation of motor vehicles to accommodate normal movements of or for the operation of auxiliary equipment installed on, or used in connec- the parts to which it is attached with- tion with, motor vehicles. out incurring damage; and (b) Location. Each fuel system must (2) Secured against chafing, kinking, be located on the motor vehicle so or other causes of mechanical damage. that— (g) Excess flow valve. When pressure (1) No part of the system extends be- devices are used to force fuel from a yond the widest part of the vehicle; fuel tank, a device which prevents the (2) No part of a fuel tank is forward flow of fuel from the fuel tank if the of the front axle of a power unit;

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fuel feed line is broken must be in- tudinal centerline of the truck and tan- stalled in the fuel system. gent to the outboard side of a front tire [36 FR 15445, Aug. 14, 1971, as amended at 37 in a straight ahead position. In deter- FR 4341, Mar. 2, 1972; 37 FR 28752, Dec. 29, mining whether a fuel tank on a truck 1972] or truck tractor is side-mounted, the fill pipe is not considered a part of the § 393.67 Liquid fuel tanks. tank. (a) Application of the rules in this sec- (c) Construction of liquid fuel tanks— tion. (1) A liquid fuel tank manufac- (1) Joints. Joints of a fuel tank body tured on or after January 1, 1973, and a must be closed by arc-, gas-, seam-, or side-mounted gasoline tank must con- spot-welding, by brazing, by silver sol- form to all the rules in this section. dering, or by techniques which provide (2) A diesel fuel tank manufactured heat resistance and mechanical secure- before January 1, 1973, and mounted on ment at least equal to those specifi- a bus must conform to the rules in cally named. Joints must not be closed paragraphs (c)(7)(iii) and (d)(2) of this solely by crimping or by soldering with section. a lead-based or other soft solder. (3) A diesel fuel tank manufactured (2) Fittings. The fuel tank body must before January 1, 1973, and mounted on have flanges or spuds suitable for the a vehicle other than a bus must con- installation of all fittings. form to the rules in paragraph (3) Threads. The threads of all fittings (c)(7)(iii) of this section. must be Dryseal American Standard (4) A gasoline tank, other than a Taper Pipe Thread or Dryseal SAE side-mounted gasoline tank, manufac- Short Taper Pipe Thread, specified in tured before January 1, 1973, and Society of Automotive Engineers mounted on a bus must conform to the Standard J476, as contained in the 1971 rules in paragraphs (c) (1) through (10) edition of the ‘‘SAE Handbook,’’ except and (d)(2) of this section. that straight (nontapered) threads may (5) A gasoline tank, other than a be used on fittings having integral side-mounted gasoline tank, manufac- flanges and using gaskets for sealing. tured before January 1, 1973, and At least four full threads must be in mounted on a vehicle other than a bus engagement in each fitting. must conform to the rules in para- (4) Drains and bottom fittings. (i) graphs (c) (1) through (10), inclusive, of Drains or other bottom fittings must this section. not extend more than three-fourths of (6) Private motor carrier of pas- an inch below the lowest part of the sengers. Motor carriers engaged in the fuel tank or sump. private transportation of passengers (ii) Drains or other bottom fittings may continue to operate a commercial must be protected against damage from motor vehicle which was not subject to impact. this section or 49 CFR 571.301 at the (iii) If a fuel tank has drains the time of its manufacture, provided the drain fittings must permit substan- fuel tank of such vehicle is maintained tially complete drainage of the tank. to the original manufacturer’s standards. (iv) Drains or other bottom fittings (b) Definitions. As used in this sec- must be installed in a flange or spud tion— designed to accommodate it. (1) The term liquid fuel tank means a (5) Fuel withdrawal fittings. Except for fuel tank designed to contain a fuel diesel fuel tanks, the fittings through that is liquid at normal atmospheric which fuel is withdrawn from a fuel pressures and temperatures. tank must be located above the normal (2) A side-mounted fuel tank is a liq- level of fuel in the tank when the tank uid fuel tank which— is full. (i) If mounted on a truck tractor, ex- (6) [Reserved] tends outboard of the vehicle frame (7) Fill pipe. (i) Each fill pipe must be and outside of the plan view outline of designed and constructed to minimize the cab; or the risk of fuel spillage during fueling (ii) If mounted on a truck, extends operations and when the vehicle is in- outboard of a line parallel to the longi- volved in a crash.

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(ii) The fill pipe and vents of a fuel (1) Safety venting system test—(i) tank having a capacity of more than 25 Procedure. Fill the tank three-fourths gallons of fuel must permit filling the full with fuel, seal the fuel feed outlet, tank with fuel at a rate of at least 20 and invert the tank. When the fuel gallons per minute without fuel spill- temperature is between 50 °F. and 80 age. °F., apply an enveloping flame to the (iii) Each fill pipe must be fitted with tank so that the temperature of the a cap that can be fastened securely fuel rises at a rate of not less than 6 °F. over the opening in the fill pipe. Screw and not more than 8 °F. per minute. threads or a bayonet-type joint are (ii) Required performance. The safety methods of conforming to the require- venting system required by paragraph ments of this subdivision. (c)(8) of this section must activate be- (8) Safety venting system. A liquid fuel fore the internal pressure in the tank exceeds 50 pounds per square inch, tank with a capacity of more than 25 gauge, and the internal pressure must gallons of fuel must have a venting sys- not thereafter exceed the pressure at tem which, in the event the tank is which the system activated by more subjected to fire, will prevent internal than five pounds per square inch de- tank pressure from rupturing the spite any further increase in the tem- tank’s body, seams, or bottom opening perature of the fuel. (if any). (2) Leakage test—(i) Procedure. Fill (9) Pressure resistance. The body and the tank to capacity with fuel having a fittings of a liquid fuel tank with a ca- temperature between 50 °F. and 80 °F. pacity of more than 25 gallons of fuel With the fill-pipe cap installed, turn must be capable of withstanding an in- the tank through an angle of 150° in ternal hydrostatic pressure equal to 150 any direction about any axis from its percent of the maximum internal pres- normal position. sure reached in the tank during the (ii) Required performance. Neither the safety venting systems test specified in tank nor any fitting may leak more paragraph (d)(1) of this section. than a total of one ounce by weight of (10) Air vent. Each fuel tank must be fuel per minute in any position the equipped with a nonspill air vent (such tank assumes during the test. as a ball check). The air vent may be (e) Side-mounted liquid fuel tank tests. combined with the fill-pipe cap or safe- Each side-mounted liquid fuel tank ty vent, or it may be a separate unit must be capable of passing the tests installed on the fuel tank. specified in paragraphs (e) (1) and (2) of (11) Markings. If the body of a fuel this section and the tests specified in tank is readily visible when the tank is paragraphs (d) (1) and (2) of this sec- installed on the vehicle, the tank must tion. 1 be plainly marked with its liquid ca- (1) Drop test—(i) Procedure. Fill the pacity. The tank must also be plainly tank with a quantity of water having a marked with a warning against filling weight equal to the weight of the max- it to more than 95 percent of its liquid imum fuel load of the tank and drop capacity. the tank 30 feet onto an unyielding sur- (12) Overfill restriction. A liquid fuel face so that it lands squarely on one tank manufactured on or after January corner. 1, 1973, must be designed and con- (ii) Required performance. Neither the structed so that— tank nor any fitting may leak more (i) The tank cannot be filled, in a than a total of 1 ounce by weight of normal filling operation, with a quan- water per minute. (2) Fill-pipe test—(i) Procedure. Fill tity of fuel that exceeds 95 percent of the tank with a quantity of water hav- the tank’s liquid capacity; and ing a weight equal to the weight of the (ii) When the tank is filled, normal maximum fuel load of the tank and expansion of the fuel will not cause fuel spillage. 1 The specified tests are a measure of per- (d) Liquid fuel tank tests. Each liquid formance only. Manufacturers and carriers fuel tank must be capable of passing may use any alternative procedures which the tests specified in paragraphs (d) (1) assure that their equipment meets the re- and (2) of this section. 1 quired performance criteria.

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drop the tank 10 feet onto an tion, Battery March Park, Quincy, MA unyielding surface so that it lands 02269, as follows: squarely on its fill-pipe. (1) A fuel system installed before De- (ii) Required performance. Neither the cember 31, 1962, must conform to the tank nor any fitting may leak more 1951 edition of the Standards. than a total of 1 ounce by weight of (2) A fuel system installed on or after water per minute. December 31, 1962, and before January (f) Certification and markings. Each 1, 1973, must conform to Division IV of liquid fuel tank shall be legibly and the June 1959 edition of the Standards. permanently marked by the manufac- (3) A fuel system installed on or after turer with the following minimum in- January 1, 1973, and providing fuel for formation: propulsion of the motor vehicle must (1) The month and year of manufac- conform to Division IV of the 1969 edi- ture, tion of the Standards. (2) The manufacturer’s name on (4) A fuel system installed on or after tanks manufactured on and after July January 1, 1973, and providing fuel for 1, 1988, and means of identifying the fa- the operation of auxiliary equipment cility at which the tank was manufac- must conform to Division VII of the tured, and 1969 edition of the Standards. (3) A certificate that it conforms to (b) When the rules in this section re- the rules in this section applicable to quire a fuel system to conform to a the tank. The certificate must be in specific edition of the Standards, the the form set forth in either of the fol- fuel system may conform to the appli- lowing: cable provisions in a later edition of (i) If a tank conforms to all rules in the Standards specified in this section. this section pertaining to side-mounted (c) The tank of a fuel system must be fuel tanks: ‘‘Meets all FMCSA side- marked to indicate that the system mounted tank requirements.’’ conforms to the Standards. (ii) If a tank conforms to all rules in this section pertaining to tanks which [36 FR 15445, Aug. 14, 1971, as amended at 37 are not side-mounted fuel tanks: FR 4342, Mar. 2, 1972; 41 FR 53031, Dec. 3, 1976; ‘‘Meets all FMCSA requirements for 53 FR 49400, Dec. 7, 1988] non-side-mounted fuel tanks.’’ (iii) The form of certificate specified Subpart F—Coupling Devices and in paragraph (f)(3) (i) or (ii) of this sec- Towing Methods tion may be used on a liquid fuel tank manufactured before July 11, 1973, but § 393.70 Coupling devices and towing it is not mandatory for liquid fuel methods, except for driveaway- tanks manufactured before March 7, towaway operations. 1989. The form of certification manu- (a) Tracking. When two or more vehi- factured on or before March 7, 1989, cles are operated in combination, the must meet the requirements in effect coupling devices connecting the vehi- at the time of manufacture. cles shall be designed, constructed, and [36 FR 15445, Aug. 14, 1971, as amended at 37 installed, and the vehicles shall be de- FR 4341, Mar. 2, 1972; 37 FR 28753, Dec. 29, signed and constructed, so that when 1972; 45 FR 46424, July 10, 1980; 53 FR 49400, the combination is operated in a Dec. 7, 1988; 59 FR 8753, Feb. 23, 1994] straight line on a level, smooth, paved surface, the path of the towed vehicle § 393.69 Liquefied petroleum gas sys- will not deviate more than 3 inches to tems. either side of the path of the vehicle (a) A fuel system that uses liquefied that tows it. petroleum gas as a fuel for the oper- (b) Fifth wheel assemblies—(1) ation of a motor vehicle or for the op- Mounting—(i) Lower half. The lower eration of auxiliary equipment in- half of a fifth wheel mounted on a stalled on, or used in connection with, truck tractor or converter dolly must a motor vehicle must conform to the be secured to the frame of that vehicle ‘‘Standards for the Storage and Han- with properly designed brackets, dling of Liquefied Petroleum Gases’’ of mounting plates or angles and properly the National Fire Protection Associa- tightened bolts of adequate size and

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grade, or devices that provide equiva- (3) Provide for adequate articulation lent security. The installation shall at the connection without excessive not cause cracking, warping, or defor- slack at that location; and mation of the frame. The installation (4) Be provided with a locking device must include a device for positively that prevents accidental separation of preventing the lower half of the fifth the towed and towing vehicles. The wheel from shifting on the frame to mounting of the trailer hitch (pintle which it is attached. hook or equivalent mechanism) on the (ii) Upper half. The upper half of a towing vehicle must include reinforce- fifth wheel must be fastened to the ment or bracing of the frame sufficient motor vehicle with at least the same to produce strength and rigidity of the security required for the installation of frame to prevent its undue distortion. (d) Safety devices in case of tow-bar the lower half on a truck tractor or failure or disconnection. Every full trail- converter dolly. er and every converter dolly used to (2) Locking. Every fifth wheel assem- convert a semitrailer to a full trailer bly must have a locking mechanism. must be coupled to the frame, or an ex- The locking mechanism, and any tension of the frame, of the motor vehi- adapter used in conjunction with it, cle which tows it with one or more must prevent separation of the upper safety devices to prevent the towed ve- and lower halves of the fifth wheel as- hicle from breaking loose in the event sembly unless a positive manual re- the tow-bar fails or becomes discon- lease is activated. The release may be nected. The safety device must meet located so that the driver can operate the following requirements: it from the cab. If a motor vehicle has (1) The safety device must not be at- a fifth wheel designed and constructed tached to the pintle hook or any other to be readily separable, the fifth wheel device on the towing vehicle to which locking devices shall apply automati- the tow-bar is attached. However, if cally on coupling. the pintle hook or other device was (3) Location. The lower half of a fifth manufactured prior to July 1, 1973, the wheel shall be located so that, regard- safety device may be attached to the less of the condition of loading, the re- towing vehicle at a place on a pintle lationship between the kingpin and the hook forging or casting if that place is rear axle or axles of the towing motor independent of the pintle hook. vehicle will properly distribute the (2) The safety device must have no gross weight of both the towed and more slack than is necessary to permit towing vehicles on the axles of those the vehicles to be turned properly. vehicles, will not unduly interfere with (3) The safety device, and the means the steering, braking, and other ma- of attaching it to the vehicles, must neuvering of the towing vehicle, and have an ultimate strength of not less will not otherwise contribute to unsafe than the gross weight of the vehicle or vehicles being towed. operation of the vehicles comprising (4) The safety device must be con- the combination. The upper half of a nected to the towed and towing vehi- fifth wheel shall be located so that the cles and to the tow-bar in a manner weight of the vehicles is properly dis- which prevents the tow-bar from drop- tributed on their axles and the com- ping to the ground in the event it fails bination of vehicles will operate safely or becomes disconnected. during normal operation. (5) Except as provided in paragraph (c) Towing of full trailers. A full trail- (d)(6) of this section, if the safety de- er must be equipped with a tow-bar and vice consists of safety chains or cables, a means of attaching the tow-bar to the towed vehicle must be equipped the towing and towed vehicles. The with either two safety chains or cables tow-bar and the means of attaching it or with a bridle arrangement of a sin- must— gle chain or cable attached to its frame (1) Be structurally adequate for the or axle at two points as far apart as the weight being drawn; configuration of the frame or axle per- (2) Be properly and securely mount- mits. The safety chains or cables shall ed; be either two separate pieces, each

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equipped with a hook or other means § 393.71 Coupling devices and towing for attachment to the towing vehicle, methods, driveaway-towaway oper- or a single piece leading along each ations. side of the tow-bar from the two points (a) Number in combination. (1) No more of attachment on the towed vehicle and than three saddle-mounts may be used arranged into a bridle with a single in any combination. means of attachment to be connected (2) No more than one tow-bar may be to the towing vehicle. When a single used in any combination. length of cable is used, a thimble and (3) When motor vehicles are towed by twin-base cable clamps shall be used to means of triple saddle-mounts, the form the forward bridle eye. The hook towed vehicles shall have brakes acting or other means of attachment to the on all wheels which are in contact with towing vehicle shall be secured to the the roadway. chains or cables in a fixed position. (b) Carrying vehicles on towing vehicle. (6) If the towed vehicle is a converter (1) When adequately and securely at- dolly with a solid tongue and without a tached by means equivalent in security hinged tow-bar or other swivel between to that provided in paragraph (j)(2) of the fifth wheel mounting and the at- this section, a motor vehicle or motor tachment point of the tongue eye or vehicles may be full-mounted on the other hitch device— structure of a towing vehicle engaged (i) Safety chains or cables, when used in any driveaway-towaway operation. as the safety device for that vehicle, (2) No motor vehicle or motor vehi- may consist of either two chains or ca- cles may be full-mounted on a towing bles or a single chain or cable used vehicle unless the relationship of such alone; full-mounted vehicles to the rear axle (ii) A single safety device, including or axles results in proper distribution a single chain or cable used alone as of the total gross weight of the vehicles the safety device, must be in line with and does not unduly interfere with the the centerline of the trailer tongue; steering, braking, or maneuvering of and the towing vehicle, or otherwise con- (iii) The device may be attached to tribute to the unsafe operation of the the converter dolly at any point to the vehicles comprising the combination. rear of the attachment point of the (c) Carrying vehicles on towed vehicles. tongue eye or other hitch device. (1) When adequately and securely at- (7) Safety devices other than safety tached by means equivalent in security chains or cables must provide strength, to that provided in paragraph (j)(2) of security of attachment, and directional this section, a motor vehicle or motor stability equal to, or greater than, vehicles may be full-mounted on the safety chains or cables installed in ac- structure of towed vehicles engaged in cordance with paragraphs (d) (5) and (6) any driveaway-towaway operation. of this section. (2) No motor vehicle shall be full- (8) When two safety devices, includ- mounted on a motor vehicle towed by ing two safety chains or cables, are means of a tow-bar unless the towed used and are attached to the towing ve- vehicle is equipped with brakes and is hicle at separate points, the points of provided with means for effective ap- attachment on the towing vehicle shall plication of brakes acting on all wheels be located equally distant from, and on and is towed on its own wheels. opposite sides of, the centerline of the (3) No motor vehicle or motor vehi- towing vehicle. Where two chains or cles shall be full-mounted on a motor cables are attached to the same point vehicle towed by means of a saddle- on the towing vehicle, and where a bri- mount unless the center line of the dle or a single chain or cable is used, kingpin or equivalent means of attach- the point of attachment must be on the ment of such towed vehicle shall be so longitudinal centerline of the towing located on the towing vehicle that the vehicle. A single safety device, other relationship to the rear axle or axles than a chain or cable, must also be at- results in proper distribution of the tached to the towing vehicle at a point total gross weight of the vehicles and on its longitudinal centerline. does not unduly interfere with the [37 FR 21439, Oct. 11, 1972] steering, braking, or maneuvering of

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the towing vehicle or otherwise con- (1) Tow-bars, structural adequacy and tribute to the unsafe operation of vehi- mounting. Every tow-bar shall be struc- cles comprising the combination; and turally adequate and properly installed unless a perpendicular to the ground and maintained. To insure that it is from the center of gravity of the full- structurally adequate, it must, at mounted vehicles lies forward of the least, meet the requirements of the fol- center line of the rear axle of the sad- lowing table: dle-mounted vehicle. Longitudinal strength in tension and (4) If a motor vehicle towed by means compression 2 of a double saddle-mount has any vehi- New tow- Strength cle full-mounted on it, such saddle- Gross weight of bars ac- as a beam mounted vehicle shall at all times towed vehicle quired and (in any di- (pounds) 1 All tow- used by a rection while so loaded have effective brakes bars motor car- con- rier after centrated acting on those wheels which are in Sept. 30, load at contact with the roadway. 1948 center) 2,3 (d) Bumper tow-bars on heavy vehicles Pounds prohibited. Tow-bars of the type which depend upon the bumpers as a means of Less than 5,000 ...... 3,000 6,500 3,000 transmitting forces between the vehi- 5,000 and over ...... Less than 10,000 ..... 6,000 (1 ) (1 ) cles shall not be used to tow a motor 10,000 and over ...... vehicle weighing more than 5,000 Less than 15,000 ..... 9,000 (1 ) (1 ) pounds. 1 The required strength of tow-bars for towed vehicles of (e) Front wheels of saddle-mounted ve- 15,000 pounds and over gross weight and of new tow-bars acquired and used after Sept. 30, 1948, for towed vehicles of hicles restrained. A motor vehicle towed 5,000 pounds and over gross weight shall be computed by by means of a saddle-mount shall have means of the following formulae: Longitudinal strength=gross weight of towed vehicle x 1.3. Strength as a beam=gross the motion of the front wheels re- weight of towed vehicle x 0.6. strained if under any condition of turn- 2 In testing, the whole unit shall be tested with all clamps, joints, and pins so mounted and fastened as to approximate ing of such wheels they will project be- conditions of actual operation. yond the widest part of either the 3 This test shall be applicable only to tow-bars which are, in normal operation, subjected to a bending movement such as towed or towing vehicle. tow-bars for house trailers. (f) Vehicles to be towed in forward posi- (2) Tow-bars, jointed. The tow-bar tion. Unless the steering mechanism is shall be so constructed as to freely per- adequately locked in a straight-for- mit motion in both horizontal and ward position, all motor vehicles towed vertical planes between the towed and by means of a saddle-mount shall be towing vehicles. The means used to towed with the front end mounted on provide the motion shall be such as to the towing vehicle. prohibit the transmission of stresses (g) Means required for towing. (1) No under normal operation between the motor vehicle or motor vehicles shall towed and towing vehicles, except be towed in driveaway-towaway oper- along the longitudinal axis of the ations by means other than tow-bar or tongue or tongues. saddle-mount connections which shall (3) Tow-bar fastenings. The means meet the requirements of this section. used to transmit the stresses to the (2) For the purpose of the regulations chassis or frames of the towed and tow- of this part: ing vehicles may be either temporary (i) Coupling devices such as those structures or bumpers or other integral used for towing house trailers and em- parts of the vehicles: Provided, however, ploying ball and socket connections That the means used shall be so con- shall be considered as tow-bars. structed, installed, and maintained (ii) Motor vehicles or parts of motor that when tested as an assembly, fail- vehicles adequately, securely, and rig- ure in such members shall not occur idly attached by devices meeting the when the weakest new tow-bar which is requirements of paragraph (n) of this permissible under paragraph (h)(1) of section shall be considered as one vehi- this section is subjected to the tests cle in any position in any combination. given therein. (h) Requirements for tow-bars. Tow- (4) Means of adjusting length. On tow- bars shall comply with the following bars, adjustable as to length, the requirements: means used to make such adjustment

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shall fit tightly and not result in any (name of manufacturer) slackness or permit the tow-bar to bend. With the tow-bar supported rig- Tow-bar certification manufactured be- idly at both ends and with a load of 50 fore the effective date of this regula- pounds at the center, the sag, meas- tion must meet requirements in effect ured at the center, in any direction at the time of manufacture. shall not exceed 0.25 inch under any (10) Safety devices in case of tow-bar condition of adjustment as to length. failure or disconnection. (i) The towed (5) Method of clamping. Adequate vehicle shall be connected to the tow- means shall be provided for securely ing vehicle by a safety device to pre- fastening the tow-bar to the towed and vent the towed vehicle from breaking towing vehicles. loose in the event the tow-bar fails or (6) Tow-bar connection to steering becomes disconnected. When safety mechanism. The tow-bar shall be pro- chains or cables are used as the safety vided with suitable means of attach- device for that vehicle, at least two ment to and actuation of the steering safety chains or cables meeting the re- mechanism, if any, of the towed vehi- quirements of paragraph (h)(10)(ii) of cle. The attachment shall provide for this section shall be used. The tensile sufficient angularity of movement of strength of the safety device and the the front wheels of the towed vehicle so means of attachment to the vehicles that it may follow substantially in the shall be at least equivalent to the cor- path of the towing vehicle without responding longitudinal strength for cramping the tow-bar. The tow-bar tow-bars required in the table of para- shall be provided with suitable joints graph (h)(1) of this section. If safety to permit such movement. chains or cables are used as the safety (7) Tracking. The tow-bar shall be so device, the required strength shall be designed, constructed, maintained, and the combined strength of the combina- mounted as to cause the towed vehicle tion of chains and cables. to follow substantially in the path of (ii) If chains or cables are used as the the towing vehicle. Tow-bars of such safety device, they shall be crossed and design on in our condition as to permit attached to the vehicles near the the towed vehicle to deviate more than points of bumper attachments to the 3 inches to either side of the path of a chassis of the vehicles. The length of towing vehicle moving in a straight chain used shall be no more than nec- line as measured from the center of the essary to permit free turning of the ve- towing vehicle are prohibited. hicles. The chains shall be attached to (8) Passenger car-trailer type couplings. the tow-bar at the point of crossing or Trailer couplings used for driveaway- as close to that point as is practicable. towaway operations of passenger car (iii) A safety device other than safety trailers shall conform to Society of chains or cables must provide strength, Automotive Engineers Standard No. security of attachment, and directional J684c, ‘‘Trailer Couplings and Hitches— stability equal to, or greater than, that 1 Automotive Type,’’ July 1970. provided by safety chains or cables in- (9) Marking tow-bars. Every tow-bar stalled in accordance with paragraph acquired and used in driveaway- (h)(10)(ii) of this section. A safety de- towaway operations by a motor carrier vice other than safety chains or cables shall be plainly marked with the fol- must be designed, constructed, and in- lowing certification of the manufac- stalled so that, if the tow-bar fails or turer thereof (or words of equivalent becomes disconnected, the tow-bar will meaning): not drop to the ground. This tow-bar complies with the require- (i) [Reserved] ments of the Federal Motor Carrier Safety (j) Requirements for upper-half of sad- Administration for (maximum gross weight dle-mounts. The upper-half of any sad- for which tow-bar is manufactured) vehicles. Allowable Maximum Gross Weight lllll dle-mount shall comply with the fol- Manufactured llllllllllllllll lowing requirements: (month and year) (1) Upper-half connection to towed ve- by llllllllllllllllllllll hicle. The upper-half shall be securely attached to the frame or axle of the 1 See footnote 1 to § 393.24(c). towed vehicle by means of U-bolts or

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other means providing at least equiva- one-half inch. The distance between lent security. the most widely separated points of (2) U-bolts or other attachments. U- support between the upper-half and the bolts used to attach the upper half to towed vehicle shall be at least 9 inches. the towed vehicle shall be made of (5) Lateral movement of towed vehicle. steel rod, free of defects, so shaped as (i) Towed vehicles having a straight to avoid at any point a radius of less axle or an axle having a drop of less than 1 inch: Provided, however, That a than 3 inches, unless the saddle-mount lesser radius may be utilized if the U- is constructed in accordance with para- bolt is so fabricated as not to cause more than 5 percent reduction in cross- graph (m)(2) of this section, shall be se- sectional area at points of curvature, curely fastened by means of chains or in which latter event the minimum ra- cables to the upper-half so as to insure dius shall be one-sixteenth inch. U- against relative lateral motion be- bolts shall have a diameter not less tween the towed vehicle and the upper- than required by the following table: half. The chains or cables shall be at least 3⁄16-inch diameter and secured by DIAMETER OF U-BOLTS IN INCHES bolts of at least equal diameter.

Double or triple saddle-mount (ii) Towed vehicles with an axle with Weight in pounds of a drop of 3 inches or more, or con- heaviest towed vehi- Front Middle Rear Single nected by a saddle-mount constructed cle mount or front mount saddle- mount mount 1 in accordance with paragraph (m)(2) of Up to 5,000 ...... 0.625 0.5625 0.500 0.500 this section, need not be restrained by 5,000 and over ...... 0.6875 0.625 0.5625 0.5625 chains or cables provided that the 1 The total weight of all the vehicles being towed shall gov- upper-half is so designed as to provide ern. If other devices are used to accomplish the same pur- against such relative motion. poses as U-bolts they shall have at least equivalent strength of U-bolts made of mild steel. Cast iron shall not be used for (iii) Chains or cables shall not be re- clamps or any other holding devices. quired if the upper-half is so designed (3) U-bolts and points of support, loca- as positively to provide against lateral tion. The distance between the most movement of the axle. widely separated U-bolts shall not be (k) Requirements for lower half of sad- less than 9 inches. The distance be- dle-mounts. The lower half of any sad- tween the widely separated points dle-mount shall comply with the fol- where the upper-half supports the lowing requirements: towed vehicle shall not be less than 9 (1) U-bolts or other attachments. U- inches, except that saddle-mounts em- bolts used to attach the lower half to ploying ball and socket joints shall employ a device which clamps the axle of the towing vehicle shall be made of the towed vehicle throughout a length steel rod, free of defects, so shaped as of not less than 5 inches. to avoid at any point a radius of less (4) Cradle-type upper-halves, specifica- than 1 inch: Provided, however, That a tions. Upper-halves of the cradle-type lesser radius may be utilized if the U- using vertical members to restrain the bolt is so fabricated as not to cause towed vehicle from relative movement more than 5 percent reduction in cross- in the direction of motion of the vehi- sectional area at points of curvature, cles shall be substantially constructed in which latter event the minimum ra- and adequate for the purpose. Such cra- dius shall be one-sixteenth inch. U- dle-mounts shall be equipped with at bolts shall have a total cross-sectional least one bolt or equivalent means to area not less than as required by the provide against relative vertical move- following table: ment between the upper-half and the towed vehicle. Bolts, if used, shall be at TOTAL CROSS-SECTIONAL AREA OF U-BOLTS IN least one-half inch in diameter. De- SQUARE INCHES vices using equivalent means shall have at least equivalent strength. The Double or triple saddle-mount Weight in pounds of means used to provide against relative heaviest towed vehi- Front Middle Rear Single vertical motion between the upper-half cle mount or front mount saddle- mount mount 1 and the towed vehicle shall be such as not to permit a relative motion of over Up to 5,000 ...... 1.2 1.0 0.8 0.8

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TOTAL CROSS-SECTIONAL AREA OF U-BOLTS IN (iii) Under no condition shall the SQUARE INCHES—Continued highest point of support of the towed vehicle by the upper-half be more than Double or triple saddle-mount Weight in pounds of 24 inches, measured vertically, above heaviest towed vehi- Front Middle Rear Single the top of the frame of the towing vehicle mount or front mount saddle- mount mount 1 cle, measured at the point where the lower-half rests on the towing vehicle. 5,000 and over ...... 1.4 1.2 1.0 1.0 (4) Wood blocks. (i) Hardwood blocks 1 The total weight of all the vehicles being towed shall gov- of good quality may be used to build up ern. If other devices are used to accomplish the same pur- the height of the front end of the towed poses as U-bolts they shall have at least equivalent strength of U-bolts made of mild steel. Cast iron shall not be used for vehicle, provided that the total height clamps or any other holding devices. of such wood blocks shall not exceed 8 (2) Shifting. Adequate provision shall inches and not over two separate pieces be made by design and installation to are placed upon each other to obtain provide against relative movement be- such height; however, hardwood blocks, tween the lower-half and the towing not over 4 in number, to a total height vehicle especially during periods of not to exceed 14 inches, may be used if rapid acceleration and deceleration. To the total cross-sectional area of the U- insure against shifting, designs of the bolts used to attach the lower-half of tripod type shall be equipped with ade- the towing vehicle is at least 50 percent quate and securely fastened hold-back greater than that required by the table chains or similar devices. contained in paragraph (k)(1) of this section, or, if other devices are used in (3) Swaying. (i) Adequate provision lieu of U-bolts, they shall provide for shall be made by design and installa- as great a resistance to bending as is tion to provide against swaying or lat- provided by the larger U-bolts above eral movement of the towed vehicle prescribed. relative to the towing vehicle. To in- (ii) Hardwood blocks must be at least sure against swaying, lower-halves de- 4 inches in width and the surfaces be- signed with cross-members attached to tween blocks or block and lower-half or but separable from vertical members block and upper-half shall be planed shall have such cross-members fastened and so installed and maintained as to to the vertical members by at least two minimize any tendency of the towed bolts on each side. Such bolts shall be vehicle to sway or rock. of at least equivalent cross-sectional (5) Cross-member, general requirements. area as those required for U-bolts for The cross-member, which is that part the corresponding saddle-mount as of the lower-half used to distribute the given in the table in paragraph (k)(1) of weight of the towed vehicle equally to this section. The minimum distance each member of the frame of the tow- between the most widely separated ing vehicle, if used, shall be struc- points of support of the cross-member turally adequate and properly installed by the vertical member shall be three and maintained adequately to perform inches as measured in a direction par- this function. allel to the longitudinal axis of the (6) Cross-member, use of wood. No ma- towing vehicle. terials, other than suitable metals, (ii) The lower-half shall have a bear- shall be used as the cross-member, and ing surface on the frame of the towing wood may not be used structurally in vehicle of such dimensions that the any manner that will result in its pressure exerted by the lower-half upon being subject to tensile stresses. Wood the frame of the towing vehicle shall may be used in cross-members if sup- not exceed 200 pounds per square inch ported throughout its length by suit- under any conditions of static loading. able metal cross-members. Hardwood blocks or blocks of other (7) Lower half strength. The lower half suitable material, such as hard rubber, shall be capable of supporting the loads aluminum or brakelining, if used be- given in the following table. For the tween the lower half and the frame of purpose of test, the saddle-mount shall the towing vehicle shall be at least 1⁄2 be mounted as normally operated and inch thick, 3 inches wide, and a com- the load applied through the upper bined length of 6 inches. half:

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MINIMUM TEST LOAD IN POUNDS (l) Requirements for kingpins of saddle- mounts. The kingpin of any saddle- Double or triple saddle-mount Weight in pounds of mount shall comply with the following heaviest towed vehi- Front Middle Rear Single requirements: cle mount or front mount saddle- mount mount 1 (1) Kingpin size. (i) Kingpins shall be constructed of steel suitable for the Up to 5,000 ...... 15,000 10,000 5,000 5,000 5,000 and over ...... 30,000 20,000 10,000 10,000 purpose, free of defects, and having a diameter not less than required by the 1 The total weight of all the vehicles being towed shall govern. following table:

DIAMETER OF SOLID KINGPIN IN INCHES

Double or triple saddle-mount

Front mount Middle or front Rear mount Single saddle- Weight in pounds of heaviest towed vehicle mount mount 1

Mild 2 Mild 2 Mild 2 Mild steel H.T.S. steel H.T.S. steel H.T.S. steel H.T.S.

Up to 5,000 ...... 1.125 1.000 1.000 0.875 0.875 0.750 0.875 0.750 5,000 and over ...... 1.500 1.125 1.250 1.000 1.000 0.875 1.000 0.875 1 The total weight of all the vehicles being towed shall govern. 2 High-tensile steel is steel having a minimum ultimate strength of 65,000 pounds per square inch.

(ii) If a ball and socket joint is used (m) Additional requirements for saddle- in place of a kingpin, the diameter of mounts. Saddle-mounts shall comply the neck of the ball shall be at least with the following requirements: equal to the diameter of the cor- (1) Bearing surface between upper and responding solid kingpin given in the lower-halves. The upper and lower- above table. If hollow kingpins are halves shall be so constructed and con- used, the metallic cross-sectional area nected that the bearing surface be- shall be at least equal to the cross-sec- tween the two halves shall not be less tional area of the corresponding solid than 16 square inches under any condi- kingpin. tions of angularity between the towing (2) Kingpin fit. If a kingpin bushing is and towed vehicles: Provided, however, not used, the king-pin shall fit snugly That saddle-mounts using a ball and into the upper and lower-halves but socket joint shall have a ball of such shall not bind. Those portions of the dimension that the static bearing load upper or lower-halves in moving con- shall not exceed 800 pounds per square inch, based on the projected cross-sec- tact with the kingpin shall be smooth- tional area of the ball: And further pro- ly machined with no rough or sharp vided, That saddle-mounts having the edges. The bearing surface thus pro- upper-half supported by ball, taper, or vided shall not be less in depth than roller-bearings shall not have such the radius of the kingpin. bearings loaded beyond the limits pre- (3) Kingpin bushing on saddle-mounts. scribed for such bearings by the manu- The kingpin of all new saddle-mounts facturer thereof. The upper-half shall acquired and used shall be snugly en- rest evenly and smoothly upon the closed in a bushing at least along such lower-half and the contact surfaces length of the kingpin as may be in shall be lubricated and maintained so moving contact with either the upper that there shall be a minimum of fric- or lower-halves. The bearing surface tional resistance between the parts. thus provided shall not be less in depth (2) Saddle-mounts, angularity. All sad- than the radius of the kingpin. dle-mounts acquired and used shall (4) Kingpin to restrain vertical motion. provide for angularity between the The kingpin shall be so designed and towing and towed vehicles due to installed as to restrain the upper-half vertical curvatures of the highway. from moving in a vertical direction rel- Such means shall not depend upon ei- ative to the lower-half. ther the looseness or deformation of the parts of either the saddle-mount or

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the vehicles to provide for such angu- pled with another vehicle as defined in larity. paragraph (g)(2)(ii) of this section shall (3) Tracking. The saddle-mount shall be attached with U-bolts meeting the be so designed, constructed, main- requirements of paragraph (j)(2) of this tained, and installed that the towed ve- section. hicle or vehicles will follow substan- (2) Rear axle attachment. The rear axle tially in the path of the towing vehicle of one vehicle shall be coupled to the without swerving. Towed vehicles shall frame of the other vehicle by means of not deviate more than 3 inches to ei- a connecting device which when in ther side of the path of the towing ve- place forms a rectangle. The device hicle when moving in a straight line. shall be composed of two pieces, top (4) Prevention of frame bending. Where and bottom. The device shall be made necessary, provision shall be made to of 4-inch by 1⁄2-inch steel bar bent to prevent the bending of the frame of the shape and shall have the corners rein- towing vehicle by insertion of suitable forced with a plate at least 3 inches by blocks inside the frame channel to pre- 1⁄2 inch by 8 inches long. The device vent kinking. The saddle-mount shall shall be bolted together with 3⁄4-inch not be so located as to cause deforma- bolts and at least three shall be used tion of the frame by reason of canti- on each side. Wood may be used as lever action. spacers to keep the frames apart and it (5) Extension of frame. No saddle- shall be at least 4 inches square. mount shall be located at a point to the rear of the frame of a towing vehi- (Sec. 12, 80 Stat. 931; 49 U.S.C. 1651 note; sec- cle. tion 6 of the Department of Transportation (6) Nuts, secured. All nuts used on Act, 49 U.S.C. 1655, and the delegations of au- bolts, U-bolts, king-pins, or in any thority at 49 CFR 1.48 and 389.4) other part of the saddle-mount shall be [33 FR 19735, Dec. 25, 1968, as amended at 35 secured against accidental disconnec- FR 10907, July 7, 1970; 37 FR 21440, Oct. 11, tion by means of cotter-keys, lock- 1972; 53 FR 49400, Dec. 7, 1988] washers, double nuts, safety nuts, or equivalent means. Parts shall be so de- Subpart G—Miscellaneous Parts signed and installed that nuts shall be and Accessories fully engaged. (7) Inspection of all parts. The saddle- § 393.75 Tires. mount shall be so designed that it may (a) No motor vehicle shall be oper- be disassembled and each separate part ated on any tire that (1) has body ply inspected for worn, bent, cracked, bro- or belt material exposed through the ken, or missing parts. tread or sidewall, (2) has any tread or (8) Saddle-mounts, marking. Every new sidewall separation, (3) is flat or has an saddle-mount acquired and used in audible leak, or (4) has a cut to the ex- driveaway-towaway operations by a tent that the ply or belt material is ex- motor carrier shall have the upper-half posed. and the lower-half separately marked (b) Any tire on the front wheels of a with the following certification of the bus, truck, or truck tractor shall have manufacturer thereof (or words of a tread groove pattern depth of at least equivalent meaning). 4⁄32 of an inch when measured at any This saddle-mount complies with the re- point on a major tread groove. The quirements of the Federal Motor Carrier measurements shall not be made where Safety Administration for vehicles up to tie bars, humps, or fillets are located. 5,000 pounds (or over 5,000 pounds): (c) Except as provided in paragraph Manufactured llllllllllllllll (b) of this section, tires shall have a (Month and year) tread groove pattern depth of at least by llllllllllllllllllllll 2⁄32 of an inch when measured in a (Name of manufacturer) major tread groove. The measurement (n) Requirements for devices used to shall not be made where tie bars, connect motor vehicles or parts of motor humps or fillets are located. vehicles together to form one vehicle—(1) (d) No bus shall be operated with re- Front axle attachment. The front axle of grooved, recapped or retreaded tires on one motor vehicle intended to be cou- the front wheels.

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(e) No truck or truck tractor shall be tire which has a cold inflation pressure operated with regrooved tires on the less than that specified for the load front wheels which have a load car- being carried. rying capacity equal to or greater than (2) If the inflation pressure of the tire that of 8.25–20 8 ply-rating tires. has been increased by heat because of (f) Tire loading restrictions (except on the recent operation of the vehicle, the manufactured homes). No motor vehicle cold inflation pressure shall be esti- (except manufactured homes, which mated by subtracting the inflation are governed by paragraph (g) of this buildup factor shown in Table 1 from section) shall be operated with tires the measured inflation pressure. that carry a weight greater than that marked on the sidewall of the tire or, TABLE 1—INFLATION PRESSURE MEASUREMENT in the absence of such a marking, a CORRECTION FOR HEAT weight greater than that specified for Minimum inflation pressure buildup the tires in any of the publications of Average speed of any of the organizations listed in Fed- vehicle Tires with 1,814 kg Tires with over in the previous (4,000 lbs.) max- 1,814 kg (4,000 eral Motor Vehicle Safety Standard hour imum load rating lbs.) load rating No. 119 (49 CFR 571.119, S5.1(b)) unless: or less (1) The vehicle is being operated 66Ð88.5 km/hr 34.5 kPa (5 psi) ... 103.4 kPa (15 psi). under the terms of a special permit (41Ð55 mph). issued by the State; and (2) The vehicle is being operated at a [34 FR 9344, June 13, 1969, as amended at 40 reduced speed to compensate for the FR 44557, Sept. 29, 1975; 41 FR 36657, Aug. 31, tire loading in excess of the manufac- 1976; 44 FR 25455, May 1, 1979; 44 FR 47938, turer’s rated capacity for the tire. In Aug. 16, 1979; 53 FR 18057, May 19, 1988; 53 FR no case shall the speed exceed 80 km/hr 49401, Dec. 7, 1988; 63 FR 8339, Feb. 18, 1998; 65 (50 mph). FR 70220, Nov. 21, 2000; 66 FR 67694, Dec. 31, 2001] (g)(1) Tire loading restrictions for manufactured homes built before January 1, § 393.76 Sleeper berths. 2002. Manufactured homes that are la- (a) (1) A sleeper beled pursuant to 24 CFR Dimensions— Size. berth must be at least the following 3282.362(c)(2)(i) before January 1, 2002, size: must not be transported on tires that are loaded more than 18 percent over Length Width Height the load rating marked on the sidewall measured measured measured on center- on center- from high- of the tire or, in the absence of such a Date of installation line of lon- line of est point of marking, more than 18 percent over the on motor vehicle gitudinal transverse top of mat- axis axis tress load rating specified in any of the pub- (inches) (inches) (inches) 1 lications of any of the organizations listed in FMVSS No. 119 (49 CFR Before January 1, 1953 ...... 72 18 18 571.119, S5.1(b)). Manufactured homes After December 31, labeled before January 1, 2002, trans- 1952, and before ported on tires overloaded by 9 percent October 1, 1975 ... 75 21 21 After September 30, or more must not be operated at speeds 1975 ...... 75 24 24 exceeding 80 km/hr (50 mph). 1 In the case of a sleeper berth which utilizes an adjustable (2) Tire loading restrictions for manu- mechanical suspension system, the required clearance can be factured homes built on or after January measured when the suspension system is adjusted to the 1, 2002. Manufactured homes that are height to which it would settle when occupied by a driver. labeled pursuant to 24 CFR (2) Shape. A sleeper berth installed on 3282.362(c)(2)(i) on or after January 1, a motor vehicle on or after January 1, 2002, must not be transported on tires 1953 must be of generally rectangular loaded beyond the load rating marked shape, except that the horizontal cor- on the sidewall of the tire or, in the ab- ners and the roof corners may be sence of such a marking, the load rat- rounded to radii not exceeding 101⁄2 ing specified in any of the publications inches. of any of the organizations listed in (3) Access. A sleeper berth must be FMVSS No. 119 (49 CFR 571.119, S5.1(b)). constructed so that an occupant’s (h) Tire inflation pressure. (1) No ready entrance to, and exit from, the motor vehicle shall be operated on a sleeper berth is not unduly hindered.

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(b) Location. (1) A sleeper berth must (iv) A mattress filled with a fluid and not be installed in or on a semitrailer of sufficient thickness when filled to or a full trailer other than a house prevent ‘‘bottoming-out’’ when occu- trailer. pied while the vehicle is in motion. (2) A sleeper berth located within the (f) Ventilation. A sleeper berth must cargo space of a motor vehicle must be have louvers or other means of pro- securely compartmentalized from the viding adequate ventilation. A sleeper remainder of the cargo space. A sleeper berth must be reasonably tight against berth installed on or after January 1, dust and rain. 1953 must be located in the cab or im- (g) Protection against exhaust and fuel mediately adjacent to the cab and leaks and exhaust heat. A sleeper berth must be securely fixed with relation to must be located so that leaks in the ve- the cab. hicle’s exhaust system or fuel system (c) Exit from the berth. (1) Except as do not permit fuel, fuel system gases, provided in paragraph (c)(2) of this sec- or exhaust gases to enter the sleeper tion, there must be a direct and ready berth. A sleeper berth must be located means of exit from a sleeper berth into so that it will not be overheated or the driver’s seat or compartment. If damaged by reason of its proximity to the sleeper berth was installed on or the vehicle’s exhaust system. after January 1, 1963, the exit must be (h) Occupant restraint. A motor vehi- a doorway or opening at least 18 inches cle manufactured on or after July 1, high and 36 inches wide. If the sleeper 1971, and equipped with a sleeper berth berth was installed before January 1, must be equipped with a means of pre- 1963, the exit must have sufficient area venting ejection of the occupant of the to contain an ellipse having a major sleeper berth during deceleration of the axis of 24 inches and a minor axis of 16 vehicle. The restraint system must be inches. designed, installed, and maintained to (2) A sleeper berth installed before withstand a minimum total force of January 1, 1953 must either: 6,000 pounds applied toward the front of (i) Conform to the requirements of the vehicle and parallel to the longitu- paragraph (c)(1) of this section; or dinal axis of the vehicle. (ii) Have at least two exits, each of [39 FR 14711, Apr. 26, 1974; 39 FR 17233, May which is at least 18 inches high and 21 14, 1974, as amended at 53 FR 49401, Dec. 7, inches wide, located at opposite ends of 1988] the vehicle and useable by the occupant without the assistance of any § 393.77 Heaters. other person. On every motor vehicle, every heater (d) Communication with the driver. A shall comply with the following re- sleeper berth which is not located with- quirements: in the driver’s compartment and has no (a) Prohibited types of heaters. The indirect entrance into the driver’s com- stallation or use of the following types partment must be equipped with a of heaters is prohibited: means of communication between the (1) Exhaust heaters. Any type of ex- occupant and the driver. The means of haust heater in which the engine ex- communication may consist of a tele- haust gases are conducted into or phone, speaker tube, buzzer, pull cord, through any space occupied by persons or other mechanical or electrical de- or any heater which conducts engine vice. compartment air into any such space. (e) Equipment. A sleeper berth must (2) Unenclosed flame heaters. Any type be properly equipped for sleeping. Its of heater employing a flame which is equipment must include: not fully enclosed, except that such (1) Adequate bedclothing and blan- heaters are not prohibited when used kets; and for heating the cargo of tank motor ve- (2) Either: hicles. (i) Springs and a mattress; or (3) Heaters permitting fuel leakage. Any (ii) An innerspring mattress; or type of heater from the burner of which (iii) A cellular rubber or flexible there could be spillage or leakage of foam mattress at least four inches fuel upon the tilting or overturning of thick; or the vehicle in which it is mounted.

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(4) Heaters permitting air contamina- closure required by paragraph (c)(1) of tion. Any heater taking air, heated or this section, and the enclosure shall be to be heated, from the engine compart- securely fastened to the motor vehicle. ment or from direct contact with any (4) Relative motion between fuel tank portion of the exhaust system; or any and heater. When either in normal oper- heater taking air in ducts from the ation or in the event of overturn, there outside atmosphere to be conveyed is or is likely to be relative motion be- through the engine compartment, un- tween the fuel tank for a heater and less said ducts are so constructed and the heater, or between either of such installed as to prevent contamination units and the fuel lines between them, of the air so conveyed by exhaust or a suitable means shall be provided at engine compartment gases. the point of greatest relative motion so (5) Solid fuel heaters except wood char- as to allow this motion without caus- coal. Any stove or other heater employing failure of the fuel lines. ing solid fuel except wood charcoal. (5) Operating controls to be protected. (6) Portable heaters. Portable heaters On every bus designed to transport shall not be used in any space occupied more than 15 passengers, including the by persons except the cargo space of driver, means shall be provided to pre- motor vehicles which are being loaded vent unauthorized persons from tam- or unloaded. pering with the operating controls. (b) Heater specifications. All heaters Such means may include remote con- shall comply with the following speci- trol by the driver; installation of con- fications: trols at inaccessible places; control of (1) Heating elements, protection. Every adjustments by key or keys; enclosure heater shall be so located or protected of controls in a locked space, locking as to prevent contact therewith by oc- of controls, or other means of accom- cupants, unless the surface tempera- plishing this purpose. ture of the protecting grilles or of any (6) Heater hoses. Hoses for all hot exposed portions of the heaters, inclu- water and steam heater systems shall sive of exhaust stacks, pipes, or con- be specifically designed and conduits shall be lower than would cause structed for that purpose. contact burns. Adequate protection (7) Electrical apparatus. Every heater shall be afforded against igniting parts employing any electrical apparatus of the vehicle or burning occupants by shall be equipped with electrical con- direct radiation. Wood charcoal heaters ductors, switches, connectors, and shall be enclosed within a metal barrel, other electrical parts of ample current- carrying capacity to provide against drum, or similar protective enclosure overheating; any electric motor em- which enclosure shall be provided with ployed in any heater shall be of ade- a securely fastened cover. quate size and so located that it will (2) Moving parts, guards. Effective not be overheated; electrical circuits guards shall be provided for the protec- shall be provided with fuses and/or cir- tion of passengers or occupants against cuit breakers to provide against elec- injury by fans, belts, or any other mov- trical overloading; and all electrical ing parts. conductors employed in or leading to (3) Heaters, secured. Every heater and any heater shall be secured against every heater enclosure shall be se- dangling, chafing, and rubbing and curely fastened to the vehicle in a sub- shall have suitable protection against stantial manner so as to provide any other condition likely to produce against relative motion within the ve- short or open circuits. hicle during normal usage or in the event the vehicle overturns. Every NOTE: Electrical parts certified as proper heater shall be so designed, con- for use by Underwriters’ Laboratories, Inc., structed, and mounted as to minimize shall be deemed to comply with the fore- the likelihood of disassembly of any of going requirements. its parts, including exhaust stacks, (8) Storage battery caps. If a separate pipes, or conduits, upon overturn of the storage battery is located within the vehicle in or on which it is mounted. personnel or cargo space, such battery Wood charcoal heaters shall be secured shall be securely mounted and equipped against relative motion within the en- with nonspill filler caps.

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(9) Combustion heater exhaust construc- have fuel tanks therefor located out- tion. Every heater employing the com- side of and lower than the passenger bustion of oil, gas, liquefied petroleum space. When necessary, suitable protec- gas, or any other combustible material tion shall be afforded by shielding or shall be provided with substantial other means against the puncturing of means of conducting the products of any such tank or its connections by combustion to the outside of the vehi- flying stones or other objects. cle: Provided, however, That this re- (12) Heater, automatic fuel control. quirement shall not apply to heaters Gravity or siphon feed shall not be per- used solely to heat the cargo space of mitted for heaters using liquid fuels. motor vehicles where such motor vehi- Heaters using liquid fuels shall be cles or heaters are equipped with equipped with automatic means for means specifically designed and main- shutting off the fuel or for reducing tained so that the carbon monoxide such flow of fuel to the smallest prac- concentration will never exceed 0.2 per- ticable magnitude, in the event of cent in the cargo space. The exhaust overturn of the vehicle. Heaters using pipe, stack, or conduit if required shall liquefied petroleum gas as fuel shall be sufficiently substantial and so se- have the fuel line equipped with auto- cured as to provide reasonable assur- matic means at the source of supply for ance against leakage or discharge of shutting off the fuel in the event of products of combustion within the ve- separation, breakage, or disconnection hicle and, if necessary, shall be so insu- of any of the fuel lines between the lated as to make unlikely the burning supply source and the heater. or charring of parts of the vehicle by (13) ‘‘Tell-tale’’ indicators. Heaters radiation or by direct contact. The subject to paragraph (c)(14) of this sec- place of discharge of the products of tion and not provided with automatic combustion to the atmosphere and the controls shall be provided with ‘‘tell- means of discharge of such products tale’’ means to indicate to the driver shall be such as to minimize the likeli- that the heater is properly functioning. hood of their reentry into the vehicle This requirement shall not apply to under all operating conditions. heaters used solely for the cargo space (10) Combustion chamber construction. in semitrailers or full trailers. The design and construction of any (14) Shut-off control. Automatic combustion-type heater except cargo means, or manual means if the control space heaters permitted by the proviso is readily accessible to the driver with- of paragraph (c)(9) of this section and out moving from the driver’s seat, unenclosed flame heaters used for heat- shall be provided to shut off the fuel ing cargo of tank motor vehicles shall and electrical supply in case of failure be such as to provide against the leak- of the heater to function for any rea- age of products of combustion into air son, or in case the heater should func- to be heated and circulated. The mate- tion improperly or overheat. This re- rial employed in combustion chambers quirement shall not apply to wood shall be such as to provide against charcoal heaters or to heaters used leakage because of corrosion, oxida- solely to heat the contents of cargo tion, or other deterioration. Joints be- tank motor vehicles, but wood charcoal tween combustion chambers and the heaters must be provided with a con- air chambers with which they are in trolled method of regulating the flow thermal and mechanical contact shall of combustion air. be so designed and constructed as to (15) Certification required. Every com- prevent leakage between the chambers bustion-type heater, except wood char- and the materials employed in such coal heaters, the date of manufacture joints shall have melting points sub- of which is subsequent to December 31, stantially higher than the maximum 1952, and every wood charcoal heater, temperatures likely to be attained at the date of manufacture of which is the points of jointure. subsequent to September 1, 1953, shall (11) Heater fuel tank location. Every be marked plainly to indicate the type bus designed to transport more than 15 of service for which such heater is de- passengers, including the driver, with signed and with a certification by the heaters of the combustion type shall manufacturer that the heater meets

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the applicable requirements for such densation on the inside of the wind- use. For example, ‘‘Meets I.C.C. Bus shield, shall be equipped with a device Heater Requirements,’’ Meets I.C.C. or other means, not manually oper- Flue-Vented Cargo Space Heater Re- ated, for preventing or removing such quirements,’’ and after December 31, obstructions to the driver’s view: 1967, such certification shall read Provided, however, That this section ‘‘Meets FMCSA Bus Heater Require- shall not apply in driveaway-towaway ments,’’ ‘‘Meets FMCSA Flue-Vented operations when the driven vehicle is a Cargo Space Heater Requirements,’’ part of the shipment being delivered. etc. (i) Exception. The certification for a § 393.80 Rear-vision mirrors. catalytic heater which is used in trans- (a) Every bus, truck, and truck trac- porting flammable liquid or gas shall tor shall be equipped with two rear-vi- be as prescribed under § 177.834(1) of sion mirrors, one at each side, firmly this title. attached to the outside of the motor [33 FR 19735, Dec. 25, 1968, as amended at 40 vehicle, and so located as to reflect to FR 51198, Nov. 4, 1975; 53 FR 49401, Dec. 7, the driver a view of the highway to the 1988] rear, along both sides of the vehicle. All such regulated rear-vision mirrors § 393.78 Windshield wipers. and their replacements shall meet, as a (a) Every bus, truck, and truck trac- minimum, the requirements of FMVSS tor, having a windshield, shall be No. 111 (49 CFR 571.111) in force at the equipped with at least two automati- time the vehicle was manufactured. cally-operating windshield wiper (b) Exceptions. (1) Mirrors installed on blades, one on each side of the center- a vehicle manufactured prior to Janu- line of the windshield, for cleaning ary 1, 1981, may be continued in serv- rain, snow, or other moisture from the ice, provided that if the mirrors are re- windshield and which shall be in such placed they shall be replaced with mir- condition as to provide clear vision for rors meeting, as a minimum, the re- the driver, unless one such blade be so quirements of FMVSS No. 111 (49 CFR arranged as to clean an area of the 571.111) in force at the time the vehicle windshield extending to within 1 inch was manufactured. of the limit of vision through the wind- (2) Only one outside mirror shall be shield at each side: Provided, however, required, which shall be on the driver’s That in driveaway-towaway operations side, on trucks which are so con- this section shall apply only to the structed that the driver has a view to driven vehicle: And provided further, the rear by means of an interior mir- That one windshield wiper blade will ror. suffice under this section when such (3) In driveway-towaway operations, driven vehicle in driveaway-towaway the driven vehicle shall have at least operation constitutes part or all of the one mirror furnishing a clear view to property being transported and has no the rear. provision for two such blades. (b) Every bus, truck, and truck trac- [48 FR 57139, Dec. 28, 1983] tor, the date of manufacture of which is subsequent to June 30, 1953, which § 393.81 Horn. depends upon vacuum to operate the Every bus, truck, truck-tractor, and windshield wipers, shall be so con- every driven motor vehicle in drive- structed that the operation of the wip- away-towaway operations shall be ers will not be materially impaired by equipped with a horn and actuating change in the intake manifold pres- elements which shall be in such condi- sure. tion as to give an adequate and reliable warning signal. § 393.79 Defrosting device. Every bus, truck, and truck tractor § 393.82 Speedometer. having a windshield, when operating Every bus, truck, and truck-tractor under conditions such that ice, snow, shall be equipped with a speedometer or frost would be likely to collect on indicating vehicle speed in miles per the outside of the windshield or con- hour, which shall be operative with

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reasonable accuracy; however, this re- heat of the exhaust and relative mo- quirement shall not apply to any driv- tion between engine and chassis of a en vehicle which is part of a shipment vehicle. being delivered in a driveaway- [53 FR 49401, Dec. 7, 1988] towaway operation if such driven vehicle is equipped with an effective means § 393.84 Floors. of limiting its maximum speed to 45 miles per hour, nor to any towed vehi- The flooring in all motor vehicles cle. shall be substantially constructed, free of unnecessary holes and openings, and § 393.83 Exhaust systems. shall be maintained so as to minimize (a) Every motor vehicle having a de- the entrance of fumes, exhaust gases, vice (other than as part of its cargo) or fire. Floors shall not be permeated capable of expelling harmful combus- with oil or other substances likely to tion fumes shall have a system to di- cause injury to persons using the floor rect the discharge of such fumes. No as a traction surface. part shall be located where its location [53 FR 49401, Dec. 7, 1988] would likely result in burning, charring, or damaging the electrical wiring, § 393.85 [Reserved] the fuel supply, or any combustible part of the motor vehicle. § 393.86 Rear impact guards and rear (b) No exhaust system shall discharge end protection. to the atmosphere at a location imme- (a)(1) General requirements for trailers diately below the fuel tank or the fuel and semitrailers manufactured on or after tank filler pipe. January 26, 1998. Each trailer and (c) The exhaust system of a bus pow- semitrailer with a gross vehicle weight ered by a gasoline engine shall dis- rating of 4,536 kg (10,000 pounds) or charge to the atmosphere at or within more, and manufactured on or after 6 inches forward of the rearmost part January 26, 1998, must be equipped with of the bus. a rear impact guard that meets the re- (d) The exhaust system of a bus using quirements of Federal Motor Vehicle fuels other than gasoline shall dis- Safety Standard No. 223 (49 CFR charge to the atmosphere either: 571.223) in effect at the time the vehicle (1) At or within 15 inches forward of was manufactured. When the rear im- the rearmost part of the vehicle; or pact guard is installed on the trailer or (2) To the rear of all doors or win- semitrailer, the vehicle must, at a min- dows designed to be open, except win- imum, meet the requirements of dows designed to be opened solely as FMVSS No. 224 (49 CFR 571.224) in ef- emergency exits. fect at the time the vehicle was manu- (e) The exhaust system of every factured. The requirements of para- truck and truck tractor shall discharge graph (a) of this section do not apply to to the atmosphere at a location to the pole trailers (as defined in § 390.5 of this rear of the cab or, if the exhaust chapter); pulpwood trailers, low chassis projects above the cab, at a location vehicles, special purpose vehicles, near the rear of the cab. wheels back vehicles (as defined in (f) No part of the exhaust system § 393.5); and trailers towed in shall be temporarily repaired with driveaway-towaway operations (as de- wrap or patches. fined in § 390.5). (g) No part of the exhaust system (2) Impact guard width. The outermost shall leak or discharge at a point for- surfaces of the horizontal member of ward of or directly below the driver/ the guard must extend to within 100 sleeper compartment. The exhaust out- mm (4 inches) of the side extremities of let may discharge above the cab/sleeper the vehicle. The outermost surface of roofline. the horizontal member shall not extend (h) The exhaust system must be se- beyond the side extremity of the vehi- curely fastened to the vehicle. cle. (i) Exhaust systems may use hangers (3) Guard height. The vertical dis- which permit required movement due tance between the bottom edge of the to expansion and contraction caused by horizontal member of the guard and

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the ground shall not exceed 560 mm (22 hicle) and the ground is greater than inches) at any point across the full 76.2 cm (30 inches) when the motor ve- width of the member. Guards with hicle is empty, shall be equipped with a rounded corners may curve upward rear impact guard(s). The rear impact within 255 mm (10 inches) of the longi- guard(s) must be installed and main- tudinal vertical planes that are tan- tained in such a manner that: gent to the side extremities of the ve- (i) The vertical distance between the hicle. bottom of the guard(s) and the ground (4) Guard rear surface. At any height does not exceed 76.2 cm (30 inches) 560 mm (22 inches) or more above the when the motor vehicle is empty; ground, the rearmost surface of the (ii) The maximum lateral distance horizontal member of the guard must between the closest points between be within 305 mm (12 inches) of the rear guards, if more than one is used, does extremity of the vehicle. This para- not exceed 61 cm (24 inches); graph shall not be construed to pro- (iii) The outermost surfaces of the hibit the rear surface of the guard from horizontal member of the guard are no extending beyond the rear extremity of more than 45.7 cm (18 inches) from each the vehicle. Guards with rounded cor- side extremity of the motor vehicle; ners may curve forward within 255 mm (iv) The impact guard(s) are no more (10 inches) of the side extremity. than 61 cm (24 inches) forward of the (5) Cross-sectional vertical height. The rear extremity of the motor vehicle. horizontal member of each guard must (2) Construction and attachment. The have a cross sectional vertical height rear impact guard(s) must be substan- of at least 100 mm (3.94 inches) at any tially constructed and attached by point across the guard width. means of bolts, welding, or other com- (6) Certification and labeling require- parable means. ments for rear impact protection guards. (3) Vehicle components and structures Each rear impact guard used to satisfy that may be used to satisfy the require- the requirements of paragraph (a)(1) of ments of paragraph (g) of this section. this section must be permanently Low chassis vehicles, special purpose marked or labeled as required by vehicles, or wheels back vehicles con- FMVSS No. 223 (49 CFR 571.223, S5.3). structed and maintained so that the The label must be on the forward-fac- body, chassis, or other parts of the ve- ing surface of the horizontal member of hicle provide the rear end protection the guard, 305 mm (12 inches) inboard comparable to impact guard(s) con- of the right end of the guard. The cer- forming to the requirements of para- tification label must contain the fol- graph (b)(1) of this section shall be con- lowing information: sidered to be in compliance with those (i) The impact guard manufacturer’s requirements. name and address; [64 FR 47708, Sept. 1, 1999] (ii) The statement ‘‘Manufactured in ll’’ (inserting the month and year § 393.87 Flags on projecting loads. that the guard was manufactured); and, Any motor vehicle having a load or (iii) The letters ‘‘DOT’’, constituting vehicle component which extends be- a certification by the guard manufac- yond the sides more than 4 inches or turer that the guard conforms to all re- more than 4 feet beyond the rear shall quirements of FMVSS No. 223. have the extremities of the load (b)(1) Requirements for motor vehicles marked with a red flag, not less than 12 manufactured after December 31, 1952 inches square, at each point where a (except trailers or semitrailers manufac- lamp is required by Table 1, § 393.11. tured on or after January 26, 1998). Each motor vehicle manufactured after De- [53 FR 49401, Dec. 7, 1988] cember 31, 1952, (except truck tractors, pole trailers, pulpwood trailers, or ve- § 393.88 Television receivers. hicles in driveaway-towaway oper- Any motor vehicle equipped with a ations) in which the vertical distance television viewer, screen or other between the rear bottom edge of the means of visually receiving a television body (or the chassis assembly if the broadcast shall have the viewer or chassis is the rearmost part of the ve- screen located in the motor vehicle at

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a point to the rear of the back of the § 393.91 Buses, aisle seats prohibited. driver’s seat if such viewer or screen is No bus shall be equipped with aisle in the same compartment as the driver seats unless such seats are so designed and the viewer or screen shall be so lo- and installed as to automatically fold cated as not to be visible to the driver, and leave a clear aisle when they are while he/she is driving the motor vehi- unoccupied. No bus shall be operated if cle. The operating controls for the tele- any seat therein is not securely fas- vision receiver shall be so located that tened to the vehicle. the driver cannot operate them without leaving the driver’s seat. [53 FR 49402, Dec. 7, 1988]

§ 393.89 Buses, driveshaft protection. § 393.92 Buses, marking emergency doors. Any driveshaft extending lengthways Any bus equipped with an emergency under the floor of the passenger com- door shall have such door clearly partment of a bus shall be protected by marked in letters at least 1 inch in means of at least one guard or bracket height with the words ‘‘Emergency at that end of the shaft which is pro- Door’’ or ‘‘Emergency Exit.’’ Emer- vided with a sliding connection (spline gency doors shall also be identified by or other such device) to prevent the a red electric lamp readily visible to whipping of the shaft in the event of passengers which lamp shall be lighted failure thereof or of any of its compo- at all times when lamps are required to nent parts. A shaft contained within a be lighted by § 392.30. torque tube shall not require any such device. § 393.93 Seats, seat belt assemblies, and seat belt assembly anchorages. [33 FR 19735, Dec. 25, 1968, as amended at 53 FR 49402, Dec. 7, 1988] (a) Buses—(1) Buses manufactured on or after January 1, 1965, and before July § 393.90 Buses, standee line or bar. 1, 1971. After June 30, 1972, every bus manufactured on or after January 1, Except as provided below, every bus, 1965, and before July 1, 1971, must be which is designed and constructed so as equipped with a Type 1 or Type 2 seat to allow standees, shall be plainly belt assembly that conforms to Federal marked with a line of contrasting color Motor Vehicle Safety Standard No. 2091 at least 2 inches wide or equipped with (§ 571.209) installed at the driver’s seat some other means so as to indicate to and seat belt assembly anchorages that any person that he/she is prohibited conform to the location and geometric from occupying a space forward of a requirements of Federal Motor Vehicle perpendicular plane drawn through the Safety Standard No. 2101 (§ 571.210) for rear of the driver’s seat and perpen- that seat belt assembly. dicular to the longitudinal axis of the (2) Buses manufactured on or after July bus. Every bus shall have clearly post- 1, 1971. Every bus manufactured on or ed at or near the front, a sign with let- after July 1, 1971, must conform to the ters at least one-half inch high stating requirements of Federal Motor Vehicle that it is a violation of the Federal Safety Standard No. 208 1 (§ 571.208) Motor Carrier Safety Administration’s (relating to installation of seat belt as- regulations for a bus to be operated semblies) and Federal Motor Vehicle with persons occupying the prohibited Safety Standard No. 210 1 (§ 571.210) area. The requirements of this section (relating to installation of seat belt as- shall not apply to any bus being trans- sembly anchorages). ported in driveaway-towaway oper- (3) Buses manufactured on or after Jan- ation or to any level of the bus other uary 1, 1972. Every bus manufactured that the level in which the driver is lo- on or after January 1, 1972, must con- cated nor shall they be construed to form to the requirements of Federal prohibit any seated person from occupying permanent seats located in the 1 Individual copies of Federal Motor Vehi- prohibited area provided such seats are cle Safety Standards may be obtained from so located that persons sitting therein the National Highway Traffic Safety Admin- will not interfere with the driver’s safe istration. Nassif Building, 400 Seventh Street operation of the bus. SW., Washington, D.C. 20590.

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Motor Vehicle Safety Standard No. the date the vehicle is modified to con- 207 1 (§ 571.207) (relating to seating sys- form to the requirements of paragraph tems). (a) or (b) of this section, whichever is (b) Trucks and truck tractors—(1) later. Trucks and truck tractors manufactured (d) Trucks and truck tractors manu- on and after January 1, 1965, and before factured on or after January 1, 1965, July 1, 1971. Except as provided in para- and before July 1, 1971, and operated in graph (d) of this section, after June 30, the State of Hawaii, must comply with 1972, every truck and truck tractor the provisions of paragraph (b) of this manufactured on or after January 1, section on and after January 1, 1976. 1965, and before July 1, 1971, must be equipped with a Type 1 or Type 2 seat [35 FR 16839, Oct. 30, 1970, as amended at 39 belt assembly that conforms to Federal FR 32561, Sept. 9, 1974; 40 FR 32336, Aug. 1, 1975] Motor Vehicle Safety Standard No. 209 (§ 571.209) installed at the driver’s seat § 393.94 Vehicle interior noise levels. and at the right front outboard seat, if the vehicle has one, and seat belt as- (a) Application of the rule in this sec- sembly anchorages that conform to the tion. Except as provided in paragraph location and geometric requirements of (d) of this section, this section applies Federal Motor Vehicle Safety Standard to all motor vehicles manufactured on No. 210 (§ 571.210) for each seat belt as- and after October 1, 1974. On and after sembly that is required by this sub- April 1, 1975, this section applies to all paragraph. motor vehicles manufactured before (2) Trucks and truck tractors manufac- October 1, 1974. tured on or after July 1, 1971. Every (b) General rule. The interior sound truck and truck tractor manufactured level at the driver’s seating position of on or after July 1, 1971, except a truck a motor vehicle must not exceed 90 or truck tractor being transported in dB(A) when measured in accordance driveaway-towaway operation and hav- with paragraph (c) of this section. ing an incomplete vehicle seating and (c) Test procedure. 2 (1) Park the vehi- cab configuration, must conform to the cle at a location so that no large re- requirements of Federal Motor Vehicle flecting surfaces, such as other vehi- Safety Standard No. 208 1 (§ 571.208) cles, signboards, buildings, or hills, are (relating to installation of seat belt as- within 50 feet of the driver’s seating semblies) and Federal Motor Vehicle position. Safety Standard No. 210 1 (§ 571.210) (2) Close all vehicle doors, windows, (relating to installation of seat belt as- and vents. Turn off all power-operated sembly anchorages). accessories. (3) Trucks and truck tractors manufac- (3) Place the driver in his/her normal tured on or after January 1, 1972. Every seated position at the vehicle’s con- truck and truck tractor manufactured trols. Evacuate all occupants except on or after January 1, 1972, except a the driver and the person conducting truck or truck tractor being trans- the test. ported in driveaway-towaway oper- (4) Use a sound level meter which ation and having an incomplete vehicle meets the requirements of the Amer- seating and cab configuration, must ican National Standards Institute conform to the requirements of Federal Standard ANSI S1.4–1971 Specification Motor Vehicle Safety Standard No. for Sound Level Meters, for Type 2 Me- 207 1 (§ 571.207) (relating to seating sys- ters. Set the meter to the A-weighting tems). network, ‘‘fast’’ meter response. (c) Effective date of standards. When- (5) Locate the microphone, oriented ever paragraph (a) or (b) of this section vertically upward, 6 inches to the right requires conformity to a Federal Motor Vehicle Safety Standard, the vehicle or equipment must conform to the version 2 Standards of the American National of the Standard that is in effect on the Standards Institute are published by the American National Standards Institute. In- date the vehicle is manufactured or on formation and copies may be obtained by writing to the Institute at 1430 Broadway, 1 See footnote to § 393.93(a). New York, N.Y. 10018.

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of, in the same plane as, and directly in Subpart H—Emergency Equipment line with, the driver’s right ear. (6) With the vehicle’s transmission in § 393.95 Emergency equipment on all neutral gear, accelerate its engine to power units. either its maximum governed engine Except for a lightweight vehicle, speed, if it is equipped with an engine every bus, truck, truck-tractor, and governor, or its speed at its maximum every driven vehicle in driveaway- rated horsepower, if it is not equipped towaway operation must be equipped with an engine governor. Stabilize the as follows: engine at that speed. (a) Fire extinguisher. (1) Except as pro- (7) Observe the A-weighted sound vided in paragraph (a)(4) of this sec- level reading on the meter for the station, every power unit must be bilized engine speed condition. Record equipped with a fire extinguisher that that reading, if the reading has not is properly filled and located so that it been influenced by extraneous noise is readily accessible for use. The fire sources such as motor vehicles oper- extinguisher must be securely mounted ating on adjacent roadways. on the vehicle. The fire extinguisher (8) Return the vehicle’s engine speed must be designed, constructed, and to idle and repeat the procedures speci- maintained to permit visual deter- fied in paragraphs (c) (6) and (7) of this mination of whether it is fully charged. section until two maximum sound lev- The fire extinguisher must have an ex- els within 2 dB of each other are re- tinguishing agent that does not need corded. Numerically average those two protection from freezing. The fire ex- maximum sound level readings. tinguisher must not use a vaporizing (9) The average obtained in accord- liquid that gives off vapors more toxic ance with paragraph (c)(8) of this sec- than those produced by the substances tion is the vehicle’s interior sound shown as having a toxicity rating of 5 level at the driver’s seating position or 6 in the Underwriters’ Laboratories for the purpose of determining whether ‘‘Classification of Comparative Life 1 the vehicle conforms to the rule in Hazard of Gases and Vapors.’’ paragraph (b) of this section. However, (2)(i) Before July 1, 1971, a power unit a 2 dB tolerance over the sound level that is used to transport hazardous ma- limitation specified in that paragraph terials must be equipped with a fire ex- is permitted to allow for variations in tinguisher having an Underwriters’ 2 test conditions and variations in the Laboratories rating of 4 B:C or more. capabilities of meters. On and after July 1, 1971, a power unit that is used to transport hazardous ma- (10) If the motor vehicle’s engine ra- terials must be equipped with a fire ex- diator fan drive is equipped with a tinguisher having an Underwriters’ clutch or similar device that automati- Laboratories rating 2 of 10 B:C or more. cally either reduces the rotational (ii) Before January 1, 1973, a power speed of the fan or completely dis- unit that is not used to transport haz- engages the fan from its power source ardous materials must be equipped in response to reduced engine cooling with a fire extinguisher having an Un- loads the vehicle may be parked before derwriters’ Laboratories rating 2 of 4 testing with its engine running at high B:C or more. On and after January 1, idle or any other speed the operator 1973, a power unit that is not used to may choose, for sufficient time but not more than 10 minutes, to permit the engine radiator fan to automatically 1 Copies of the Classification can be obtained by writing to Underwriters’ Labora- disengage. tories, Inc., 205 East Ohio Street, Chicago, (d) Vehicles manufactured before Oc- Ill. 60611. tober 1, 1974, and operated wholly with- 2 Underwriters’ Laboratories ratings are in the State of Hawaii, need not com- given to fire entinguishers under the stand- ply with this section until April 1, 1976. ards of Underwriters’ Laboratories, Inc., 205 East Ohio Street, Chicago, Ill. 60611. Extin- [38 FR 30881, Nov. 8, 1973, as amended at 40 guishers must conform to the standards in FR 32336, Aug. 1, 1975; 41 FR 28268, July 9, effect on the date of manufacture or on Jan. 1976] 1, 1969, whichever is earlier.

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transport hazardous materials must be requirements of Federal Motor Vehicle equipped with either— Safety Standard No. 125, § 571.125 of this (A) A fire extinguisher having an Un- title. derwriters’ Laboratories rating 2 of 5 (2) Vehicles equipped with warning de- B:C or more; or vices on and after January 1, 1974. (i) (B) Two fire extinguishers, each of Three bidirectional emergency reflec- which has an Underwriters’ Labora- tive triangles that conform to the re- tories rating 2 of 4 B:C or more. quirements of Federal Motor Vehicle (iii) Each fire extinguisher required Safety Standard No. 125, § 571.125 of this by this subparagraph must be labeled title; or or marked with its Underwriters’ Lab- (ii) At least 6 fusees or 3 liquid-burn- oratories rating 2 and must meet the ing flares. The vehicle must have as requirements of paragraph (a)(1) of this many additional fusees or liquid-burn- section. ing flares as are necessary to satisfy (3) For purposes of this paragraph, a the requirements of § 392.22. power unit is used to transport haz- (3) Supplemental warning devices. ardous materials only if the power unit Other warning devices may be used in or a motor vehicle towed by the power addition to, but not in lieu of, the re- unit must be marked or placarded in quired warning devices, provided those accordance with § 177.823 of this title. warning devices do not decrease the ef- (4) This paragraph does not apply to fectiveness of the required warning de- the driven unit in a driveaway- vices. towaway operation. (g) Restrictions on the use of flame-pro- (b) [Reserved] ducing devices. Liquid-burning flares, (c) Spare fuses. At least one spare fuse fusees, oil lanterns, or any signal pro- or other overload protective device, if duced by a flame shall not be carried the devices used are not of a reset type, on any commercial motor vehicle for each kind and size used. In transporting Division 1.1, 1.2, 1.3 driveaway-towaway operations, spares (explosives) hazardous materials; any located on any one of the vehicles will cargo tank motor vehicle used for the be deemed adequate. transportation of Division 2.1 (d)–(e) [Reserved] (flammable gas) or Class 3 (flammable (f) Warning devices for stopped vehicles. liquid) hazardous materials whether Except as provided in paragraph (g) of loaded or empty; or any commercial this section, one of the following com- motor vehicle using compressed gas as binations of warning devices: a motor fuel. (1) Vehicles equipped with warning de- (h) Requirements for emergency reflec- vices before January 1, 1974. Warning de- tive triangles manufactured before Janu- vices specified below may be used until ary 1, 1974. (1) Each reflector shall be a replacements are necessary: collapsible equilateral triangle, with (i) Three liquid-burning emergency legs not less than 17 inches long and flares which satisfy the requirements not less than 2 inches wide. The front of SAE Standard J597, ‘‘Liquid Burning and back of the exposed leg surfaces Emergency Flares,’’ and three fusees shall be covered with red reflective ma- and two red flags; or terial not less than one half inch in (ii) Three electric emergency lan- width. The reflective surface, front and terns which satisfy the requirements of back, shall be approximately parallel. SAE Standard J596, ‘‘Electric Emer- When placed in position, one point of gency Lanterns,’’ and two red flags; or the triangle shall be upward. The area (iii) Three red emergency reflectors within the sides of the triangle shall be which satisfy the requirements of para- open. graph (i) of this section, and two red (2) Reflective material: The reflecting flags; or material covering the leg of the equi- (iv) Three red emergency reflective lateral triangle shall comply either triangles which satisfy the require- with: ments of paragraph (h) of this section; (i) The requirements for reflex-reflec- or tor elements made of red methyl-meth- (v) Three bidirectional emergency re- acrylate plastic material, meeting the flective triangles that conform to the color, sealing, minimum candle-power,

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wind test, vibration test, and corrosion each side, front and back. The reflect- resistance test of section 3 and 4 of ing elements, front and back, shall be Federal Specification RR–R–1185, dated approximately parallel. November 17, 1966, or (2) Reflecting elements to be Class A. (ii) The requirements for red reflec- Each reflecting element or surface tive sheeting of Federal Specification shall meet the requirement for a red L–S–300, dated September 7, 1965, ex- Class A reflector contained in the SAE cept that the aggregate candlepower of Recommended Practice 1 ‘‘Reflex Re- the assembled triangle, in one direc- flectors.’’ The aggregate candlepower tion, shall be not less than eight when output of all the reflecting elements or measured at 0.2° divergence angle and surface in one direction shall not be ¥4° incidence angle, and not less than less than 12 when tested in a perpen- 80 percent of the candlepower specified dicular position with observation at for 1 square foot of material at all one-third degree as specified in the other angles shown in Table II, Reflec- Photometric Test contained in the tive Intensity Values, of L–S–300. above-mentioned Recommended Prac- (3) Reflective surfaces alignment: Every tice. reflective triangle shall be so con- (3) Reflecting surfaces, protection. If structed that, when the triangle is the reflector or the reflecting elements properly placed, the reflective surfaces are so designed or constructed that the shall be in a plane perpendicular to the reflecting surfaces would be adversely plane of the roadway surface with a affected by dust, soot, or other foreign ± ° permissible tolerance of 10 . Reflec- matter or contacts with other parts of tive triangles which are collapsible the reflector or its container, then shall be provided with means for hold- such reflecting surfaces shall be ade- ing the reflective surfaces within the quately sealed within the body of the required tolerance. Such holding reflector. means shall be readily capable of ad- (4) Reflecting surfaces to be perpen- justment without the use of tools or dicular. Every reflector shall be so con- special equipment. structed that, when the reflector is (4) Reflectors mechanical adequacy: properly placed, every reflecting ele- Every reflective triangle shall be of ment or surface is in a plane perpen- such weight and dimensions as to re- dicular to the plane of the roadway main stationary when subjected to a 40 surface. Reflectors which are collaps- mile per hour wind when properly ible shall be provided with means for placed on any clean, dry paved road locking the reflector elements or sur- surface. The reflective triangle shall be faces in the required position; such so constructed as to withstand reason- locking means shall be readily capable able shocks without breakage. of adjustment without the use of tools (5) Reflectors, incorporation in holding or special equipment. device: Each set of reflective triangles shall be adequately protected by enclo- (5) Reflectors, mechanical adequacy. sure in a box, rack, or other adequate Every reflector shall be of such weight container specially designed and con- and dimensions as to remain sta- structed so that the reflectors may be tionary when subjected to a 40 mile per readily extracted for use. hour wind when properly placed on any (6) Certification: Every red emergency clean, dry, paved road surface. The re- reflective triangle designed and con- flector shall be so constructed as to structed to comply with these require- withstand reasonable shocks without ments shall be plainly marked with the breakage. certification of the manufacturer that (6) Reflectors, incorporation on holding it complies therewith. device. Each set of reflectors and the (i) Requirements for red emergency re- reflecting elements or surfaces incor- flectors. Each red emergency reflector porated therein shall be adequately shall conform in all respects to the fol- protected by enclosure in a box, rack, lowing requirements: or other adequate container specially (1) Reflecting elements required. Each designed and constructed so that the reflector shall be composed of at least two reflecting elements or surfaces on 1 See footnote 1 to § 393.24(c).

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reflectors may be readily extracted for rules in paragraph (b) of this section. use. In addition, each cargo-carrying motor (7) Certification. Every red emergency vehicle must conform to the applicable reflector designed and constructed to rules in §§ 393.102, 393.104, and 393.106. comply with these requirements shall (b) Basic protection components. Each be plainly marked with the certifi- cargo-carrying motor vehicle must be cation of the manufacturer that it equipped with devices providing protec- complies therewith. tion against shifting or falling cargo (j) Requirements for fusees and liquid- that meet the requirements of either burning flares. Each fusee shall be capa- paragraph (b) (1), (2), (3), or (4) of this ble of burning for 30 minutes, and each section. liquid-burning flare shall contain (1) Option A. The vehicle must have enough fuel to burn continuously for at sides, side-boards, or stakes, and a rear least 60 minutes. Fusees and liquid- endgate, endboard, or stakes. Those de- burning flares shall conform to the re- vices must be strong enough and high quirements of Underwriters Labora- enough to assure that cargo will not tories, Inc., UL No. 912, Highway Emer- shift upon, or fall from the vehicle. gency Signals, Fourth Edition, July 30, Those devices must have no aperture 1979, (with an amendment dated No- large enough to permit cargo in con- vember 9, 1981). (See § 393.7(b) for infor- tact with one or more of the devices to mation on the incorporation by ref- pass through it. erence and availability of this docu- (2) Option B. The vehicle must have ment.) Each fusee and liquid-burning at least one tiedown assembly that flare shall be marked with the UL sym- meets the requirements of § 393.102 for bol in accordance with the require- each 10 linear feet of lading or fraction ments of UL 912. thereof. (However, a pole trailer or an (k) Requirements for red flags. Red expandable trailer transporting metal flags shall be not less than 12 inches articles under the special rules in para- square, with standards adequate to graph (c) of this section is required maintain the flags in an upright posi- only to have two or more of those tie- tion. down assemblies at each end of the trailer.) In addition, the vehicle must (49 U.S.C. 304, 1655; 49 CFR 1.48(b) and 301.60) have as many additional tiedown as- [33 FR 19735, Dec. 25, 1968, as amended at 35 semblies meeting the requirements of FR 13019, Aug. 15, 1970; 35 FR 14619, Sept. 18, § 393.102 as are necessary to secure all 1970; 37 FR 17176, Aug. 25, 1972; 40 FR 10685, cargo being transported either by di- Mar. 7, 1975; 41 FR 53031, Dec. 3, 1976; 47 FR 47837, Oct. 28, 1982; 59 FR 34712, July 6, 1994] rect contact between the cargo and the tiedown assemblies or by dunnage EFFECTIVE DATE NOTE: At 67 FR 61225, which is in contact with the cargo and Sept. 27, 2002, in § 393.95, paragraph (j) was is secured by tiedown assemblies.1 amended by replacing the reference to ‘‘§ 393.7(b)’’ with ‘‘§ 393.7(c)’’ effective Decem- (3) Option C (for vehicles transporting ber 26, 2002. metal articles only). A vehicle transporting cargo which consists of metal Subpart I—Protection Against articles must conform to either the rules in paragraph (b) (1), (2), or (4) of Shifting or Falling Cargo this section, or the special rules for transportation of metal articles set SOURCE: 38 FR 23522, Aug. 31, 1973, unless forth in paragraph (c) of this section. otherwise noted. (4) Option D. The vehicle must have other means of protecting against § 393.100 General rules for protection against shifting or falling cargo. shifting or falling cargo which are similar to, and at least as effective as, (a) Application and scope of the rules in those specified in paragraph (b) (1), (2), this section. This section applies to or (3) of this section. trucks, truck tractors, semitrailers, full trailers, and pole trailers. Each of 1 Tiedown assemblies or dunnage in con- those motor vehicles must, when trans- tact with sufficient exterior (including top- porting cargo, be loaded and equipped most) pieces of the cargo and securely hold- to prevent the shifting or falling of the ing each interior or lower piece comply with cargo in the manner prescribed by the this requirement.

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(c) Special rules for metal articles—(1) forward motion and making an angle of Scope of the rules in this paragraph. The less than 45° with the horizontal when rules in this paragraph apply to a viewed from the side of the vehicle; motor vehicle transporting cargo con- (b) A tiedown assembly through the sisting of metal articles if that vehicle eye of each coil, restricting against does not conform to the rules in para- rearward motion and making an angle graph (b) (1), (2), or (4) of this section. of less than 45° with the horizontal (2) Application of other sections. A when viewed from the side of the vehi- motor vehicle transporting property cle; and consisting of metal articles must, re- (c) Timbers, having a nominal cross gardless of whether the rules in this paragraph apply to it, conform to the section of 4 x 4 inches or more and a rules in § 393.102 (relating to secure- length which is at least 75 percent of ment systems), § 393.104 (relating to the width of the coil or row of coils, blocking and bracing of cargo), and tightly placed against both the front § 393.106 (relating to front-end structure and rear sides of the coil or row of coils requirements). and restrained to prevent movement of (3) Coils. Whenever a motor carrier the coil or coils in the forward and transports one or more coils of metal rearward directions. which, individually or as a combina- (d) If coils are loaded to contact each tion banded together, weigh 5,000 other in the longitudinal direction and pounds or more, the coils shall be se- relative motion between coils, and be- cured in the following manner: tween coils and the vehicle, is pre- (i) Coils with eyes vertical: One or vented by tiedown assemblies and tim- more coils which are grouped and load- bers— ed side by side in a transverse or longi- (1) Only the foremost and rearmost tudinal row must be secured by— coils must be secured with timbers; and (a) A tiedown assembly against the (2) A single tiedown assembly, re- front of the coil or row of coils, restricting against forward motion, may straining against forward motion; (b) A tiedown assembly against the be used to secure any coil except the rear of the coil or row of coils, re- rearmost one, which must be restraining against rearward motion; and strained against rearward motion. (c) A tiedown assembly over the top of each coil or transverse row of coils, restraining against vertical motion. The same tiedown assembly shall not be used to comply with more than one of the requirements of paragraph (c)(3)(i) (a), (b), or (c) of this section.

(iii) Coils with eyes lengthwise: A coil or transverse row of coils having approximately equal outside diameters and loaded side by side or a longitudinal row of coils having approximately equal outside diameters and loaded end to end must be secured as (ii) Coils with eyes crosswise: Each coil follows: or transverse row of coils loaded side (a) The coil or coils must be re- by side and having approximately the strained against side-by-side and fore- same outside diameters must be se- and-aft movement by— cured by— (1) One or more tiedown assemblies (a) A tiedown assembly through the over the top of each coil or transverse eye of each coil, restricting against row; or

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(2) Two or more tiedown assemblies (4) Miscellaneous metal articles. Except through the eye of each coil or longitu- as provided in paragraph (c)(4)(iv) of dinal row; or this section, whenever a motor carrier (3) One or more tiedown assemblies, transports metal articles consisting of crossing from one side of the vehicle to cut-to-length bars, plates, rods, sheet the other, through the eye of each coil and tin mill products, billets, blooms, or longitudinal row of coils in a trans- ingots, slabs, structural shapes, or verse row. pipe, and other tubular products and (b) Timbers having nominal cross those articles, either individually or as section of 4 x 4 inches or more must be a combination of articles banded or tightly placed against the sides of each boxed together and handled as a single coil or against the outboard sides of unit, weigh more than 2,000 pounds, the each transverse row of coils which are article shall be secured in the following loaded side by side so that the timbers manner: restrain against side-to-side move- (i) A single article, a group of arti- ment. cles, or a combination of articles load- (c) If, in accordance with paragraph ed side by side across the width of the (c)(3)(iii)(a)(1) of this section, only one vehicle must be secured by at least one tiedown assembly over the top of each tiedown assembly over its top for at coil or transverse row of coils is used least every 8 feet of its length and at to restrain against side-to-side move- least two tiedown assemblies securing ment and fore-and-aft movement, tim- each individual article or combination bers having a nominal cross section of of articles banded or otherwise secured 2 x 4 inches or more and which are together and handled as a single unit. firmly secured to longitudinal blocking However, articles which individually must be tightly placed against the have a length of 8 feet or less and front and back of each coil, each longi- which are securely butted against each tudinal row of coils, and each trans- other in the fore-and-after direction verse row of coils in a manner which may be secured by metal angles se- restricts forward and rearward move- cured by tiedown assemblies, or they ment. may be secured by a timber having a nominal cross section of 4 x 4 inches or more placed longitudinally over the articles and secured by tiedown assemblies. Tiedown assemblies may not be located beyond the ends of the article which they secure. (ii) If articles are tiered and each tiered article rests securely on the one beneath it, the tier may be secured in the same manner as a single level of those articles is secured in accordance with the rules in this section. (iv) Timber which is used for block- (iii) Pole trailers must either comply ing must be sound lumber which is free with the requirements of paragraph of defects (such as knots or cracks) (c)(4) (i) and (ii) of this section or have that materially reduce its strength. at least two tiedown assemblies secur- (v) Timbers need not be used on vehi- ing the load to the forward bolster and cles which have depressions in the floor at least two tiedown assemblies secur- or are equipped with other restraining ing the load to the rear bolster. devices which perform the functions (iv) The rules in this paragraph do specified for timbers by the rules in not apply to special loads consisting of this section. machinery or fabricated structural (vi) As used in this section, the term items, such as beams, girders, and ‘‘nominal’’, when used to describe tim- trusses, which are fastened by special ber, means commercially dressed sizes methods. However, those loads must be generally designated by the dimensions securely and adequately fastened to indicated. the vehicle.

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(d) Special rule for special-purpose vehi- any direction must be at least 1/2 times cles. The rules in this section do not the weight of the article. With the ex- apply to a vehicle transporting one or ception of marking identification, more articles which, because of their tiedowns used must meet applicable size, shape, or weight, must be carried manufacturing standards listed in this on special-purpose vehicles or must be paragraph (b). fastened by special methods. However, (1) Steel strapping. Steel strapping any article carried on that vehicle used as a component of a tiedown as- must be securely and adequately fas- sembly must conform to the require- tened to the vehicle. ments of the 1991 edition of the Amer- (e) Special rule for intermodal cargo ican Society for Testing and Materials’ containers. Containers designed for the Standard Specification for Strapping, transportation of containerized, inter- Flat Steel and Seals, ASTM D3953–91. modal cargo and having integral se- Steel strapping which is not marked by curement devices must be fastened to the manufacturer with a working load the chassis of the motor vehicle with limit, shall be considered to have a securement devices that prevent them working load limit equal to 1/4 of the from being unintentionally unfastened. breaking strength listed in ASTM The securement devices must restrain D3953–91. (See § 393.7(b) for information the container from moving more than on the incorporation by reference and one-half inch forward, more than one- availability of this document.) Steel half inch aft, more than one-half inch strapping that is one inch wide or to the right, more than one-half inch wider must have at least two pairs of to the left, or more than one inch crimps in each seal and when an end- vertically when the container is sub- over-end lap joint is formed, it must be jected to the following accelerations sealed with at least two seals. relative to the vehicle: (2) Chain. Chain used as a component of a tiedown assembly must conform to Direction of force relative to longitudinal axis of Accelera- vehicle tion in G’s the requirements of the June 15, 1990, edition of the National Association of Downward ...... 1.70 Chain Manufacturers’ Welded Steel Upward ...... 0.50 Lateral ...... 0.30 Chain Specifications applicable to all Longitudinal ...... 1.80 types of chain. (See § 393.7(b) for information on the incorporation by ref- (f) Effective date. This section is effec- erence and availability of this docu- tive on October 1, 1973. ment.) (3) Webbing. Webbing used as a com- § 393.102 Securement systems. ponent of a tiedown assembly must (a) Application and scope of the rules in conform to the requirements of the 1991 this section. The rules in this section edition of the Web Sling and Tiedown apply to tiedown assemblies (including Association’s Recommended Standard chains, cables, steel straps, and fiber Specification for Synthetic Webbing webbing), other securement devices, Tiedowns. (See § 393.7(b) for informa- and attachment or fastening devices tion on the incorporation by reference used in conjunction therewith, which and availability of this document.) are used to secure cargo to motor vehi- (4) Wire rope. Wire rope used as a cles in transit. All devices which are component of a tiedown assembly must used to secure cargo to a motor vehicle conform to the requirements of the No- in transit under the rules in this sub- vember 1985 second edition of the Wire part must conform to the requirements Rope Technical Board’s Wire Rope of this section. Users Manual. Wire rope which is not (b) Tiedown assemblies. Except for in- marked by the manufacturer with a tegral securement devices of con- working load limit, shall be considered tainers designed for the transportation to have a working load limit equal to of containerized, intermodal cargo 1⁄4 of the nominal strength listed in the which conform to the rules in Wire Rope Users Manual. (See § 393.7(b) § 393.100(e), the aggregate working load for information on the incorporation limit of the tiedown assemblies used to by reference and availability of this secure an article against movement in document.)

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(5) Cordage. Cordage used as a compo- (6) Tables of working load limits. The nent of a tiedown assembly, must con- working load limits listed in the tables form to the applicable Cordage Insti- in this paragraph are to be used when tute rope standards listed below: the tiedown material is not marked by PETRS–2, Polyester Fiber Rope, 3- the manufacturer with the working Strand and 8-Strand Constructions, load limit. Tiedown materials which January, 1993; PPRS–2, Polypropylene are marked by the manufacturer with Fiber Rope, 3-Strand and 8-Strand Con- working load limits which differ from structions, August, 1992; CRS–1, Poly- the table, shall be considered to have a ester/Polypropylene Composite Rope working load limit equal to the value Specifications, Three- and Eight- Strand Standard Construction, May for which they are marked. Synthetic 1979; NRS–1, Nylon Rope Specifica- cordage (e.g., nylon, polypropylene, tions, Three- and Eight-Strand Stand- polyester) which is not marked or la- ard Construction, May 1979; C1, Double beled to enable identification of its Braided Nylon Rope Specifications, composition or working load limit DBN-January 1984. (See § 393.7(b) for in- shall be considered to have a working formation on the incorporation by ref- load limit equal to that for poly- erence and availability of these docu- propylene fiber rope. ments.)

TABLES TO ¤ 393.102(B)(6)—WORKING LOAD LIMITS (WLL) [Chain WLL in pounds (kg)]

Grade 3 proof Grade 7 Size inch (mm) coil Grade 4 high test transport Grade 8 alloy

1⁄4 (7) ...... 1300 (590) 2600 (1180) 3150 (1430) 3500 (1590) 5⁄16 (8) ...... 1900 (860) 3900 (1770) 4700 (2130) 5100 (2310) 3⁄8 (10) ...... 2650 (1200) 5400 (2450) 6600 (2990) 7100 (3220) 7⁄16 (11) ...... 3500 (1590) 5800 (2630) 8750 (3970) ...... 1⁄2 (13) ...... 4500 (2040) 9200 (4170) 11300 (5130) 12000 (5440) 5⁄8 (16) ...... 6900 (3130) 11500 (5220) 15800 (7170) 18100 (8210) Chain Mark ...... PC HT ...... T Examples ...... 3 4 7 8 30 40 70 80 Synthetic Webbing WLL

Width inch (mm) WLL pounds (kg)

1-3⁄4 (45) ...... 1750 (790) 2 (50) ...... 2000 (910) 3 (75) ...... 3000 (1360) 4 (100) ...... 4000 (1810) Wire Rope (6 X 37, Fiber Core) WLL