[Federal Register Volume 62, Number 65 (Friday, April 4, 1997)]
[Rules and Regulations]
[Pages 16370-16431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8406]



[[Page 16369]]

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Part III





Department of Transportation





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Federal Highway Administration



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49 CFR Chapter III



Regulatory Guidance for the Federal Motor Carrier Safety Regulations; 
Rule

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

[[Page 16370]]



DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Chapter III


Regulatory Guidance for the Federal Motor Carrier Safety 
Regulations

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Regulatory guidance.

-----------------------------------------------------------------------

SUMMARY: This document presents interpretive guidance material for the 
Federal Motor Carrier Safety Regulations (FMCSRs) now contained in the 
FHWA's Motor Carrier Regulation Information System (MCREGIS). The FHWA 
has consolidated previously issued interpretations and regulatory 
guidance materials and developed concise interpretive guidance in 
question and answer form for each part of the FMCSRs. These questions 
and answers are generally applicable to drivers, commercial motor 
vehicles, and motor carrier operations on a national basis. All prior 
interpretations and regulatory guidance of the FMCSRs issued previously 
in the Federal Register, as well as FHWA memoranda and letters, may no 
longer be relied upon as authoritative insofar as they are inconsistent 
with the guidance published today. Many of the interpretations of the 
FMCSRs published on November 23, 1977, and the interpretations of the 
Inspection, Repair, and Maintenance regulations published on July 10, 
1980, have been revised. These revisions are reflected in the new 
questions and answers. This document also includes regulatory guidance 
issued since November 17, 1993, when the agency last published a 
collection of such guidance. Future regulatory guidance will be issued 
within the MCREGIS which will be kept current in the FHWA's Office of 
Motor Carrier Standards. The MCREGIS will be updated periodically and 
published in the Federal Register so that interested parties may have 
ready reference to official interpretations and guidance regarding the 
FMCSRs. This guidance will provide the motor carrier industry with a 
clearer understanding of the applicability of many of the requirements 
contained in the FMCSRs in particular situations.

EFFECTIVE DATE: May 4, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. Neill L. Thomas or Mr. Nathan C. 
Root, Office of Motor Carrier Standards, (202) 366-1790, or Mr. Charles 
E. Medalen, Office of the Chief Counsel, (202) 366-1354, Federal 
Highway Administration, Department of Transportation, 400 Seventh 
Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 
4:15 p.m., e.t., Monday through Friday, except Federal legal holidays.

SUPPLEMENTARY INFORMATION: This document is an update of the notice of 
regulatory guidance for the FMCSRs issued by the FHWA November 17, 1993 
(58 FR 60734). This notice contains previously issued, revised, and new 
regulatory guidance pertaining to Title 49, Code of Federal Regulations 
(CFR), Parts 40, 325, 382, 383, 384, 386, 387, 390 to 393, 395 to 397, 
and 399 of the FMCSRs. In some instances, old regulatory guidance has 
been removed. The information published in this document supersedes all 
previously issued interpretations and regulatory guidance, to the 
extent they are inconsistent with the guidance published today, 
including that published on November 23, 1977, at 42 FR 60078, and on 
July 10, 1980, at 45 FR 46425. To the maximum extent possible, all 
valid prior opinions have been incorporated into this document. This 
notice is consistent with the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121, March 29, 1996).
    The FHWA issued a final rule on March 8, 1996, which codified most 
of the regulatory guidance for CDL waivers under Sec. 383.3 (61 FR 
9546). Guidance concerning CDL waivers had been issued under 
Sec. 383.7. From the 1993 Regulatory Guidance notice for Sec. 383.7, 
only questions 7(a), 8, 9, 10, 16, 17, 21, and 22 still remain. These 
questions and guidance are now listed as guidance for Sec. 383.3, where 
the CDL waivers have been codified.
    Guidance for question 3 under Sec. 383.5 has been changed to 
reflect a more expansive version of the same guidance in existence 
prior to the November 1993 Notice. Guidance for question 2 under 
Sec. 383.93, as it appeared in the 1993 notice, has been revised to 
clarify the existing guidance. Guidance for question 1 under 
Sec. 390.31 has been expanded to include guidance derived from a Final 
Order issued by the Department (58 FR 62467). Guidance for question 1 
of Sec. 391.1 has been changed to remove a reference to part 391 
subpart H. Guidance for question 6 under Sec. 391.11 has been moved to 
Sec. 392.9. Guidance for question 2 under Sec. 391.27 has been removed: 
violations of size and weight laws are not considered violations of 
motor vehicle traffic laws. Question 1 for Sec. 391.41 has been changed 
for clarity. Guidance for question 1 under Sec. 391.43 has been 
expanded for greater clarity. Guidance for Sec. 392.62 has been moved 
to Sec. 391.41. Guidance for question 1 of Sec. 393.51, question 1 of 
Sec. 393.65, question 1 of Sec. 393.75, question 5 of Sec. 393.100, and 
question 1 of Sec. 393.106 have been amended for clarity. Guidance for 
question 1 under Sec. 393.95 has been incorporated into the regulations 
(58 FR 34708) and is therefore removed from this document. Guidance for 
Sec. 395.1 has been reordered to consecutively follow the paragraphs 
within the section. Question 15 under Sec. 395.2 was expanded by 
guidance issued June 11, 1995. Question 20 under Sec. 395.2 has been 
revised to reflect an interpretation previously issued August 15, 1991, 
treating the same issue in a more explicit manner. Question 1 under 
Sec. 397.1 has been changed to more accurately explain who must comply 
with part 397. The 1994 Regulatory Guidance booklet, which reprinted 
the interpretations issued in the Federal Register in 1993, is 
available in the public docket on this rulemaking for reference
    The FHWA issued an advance notice of proposed rulemaking on 
November 5, 1996 (61 FR 57252) concerning the hours of service 
regulations (49 CFR part 395). On page 57258 of the notice, the FHWA 
erroneously indicated that an interpretation which allowed CMVs to be 
driven from motels to restaurants in the vicinity as ``off-duty time'' 
had recently been rescinded. The FHWA intended to rescind recent 
interpretations that describe conditions under which a CMV may be used 
as a ``personal conveyance'' (issued August 10, 1995), and address the 
entire issue of personal conveyance through notice and comment 
rulemaking. Question 8 under Sec. 395.2 has been expanded by guidance 
issued November 18, 1996, and placed more appropriately under 
Sec. 395.8 (see Sec. 395.8, question 27). All prior interpretations of 
personal conveyance are invalid.
    Since 1993, new interpretive guidance has been issued for, or 
existing guidance has been removed from, the following sections:

49 CFR Part 40 Secs. 40.3, 40.21, 40.23, 40.25, 40.29, 40.31, 40.33, 
40.35, 40.39, 40.69, 40.81, 40.93, Special Topics--Requirements for 
Random Testing, Special Topics--Procedures for Handling and Processing 
a Split Specimen
49 CFR Part 382 Secs. 382.103, 382.105, 382.107, 382.109, 382.113, 
382.115, 382.204, 382.205, 382.213, 382.301, 382.303, 382.305, 382.307, 
382.401, 382.403, 382.405, 382.413, 382.501, 382.507, 382.601, 382.603, 
382.605, Subpart B--Prohibitions, Special Topics--Responsibility for 
Payment for Testing, Special Topics--

[[Page 16371]]

    Multiple Service Providers, Special Topics--Medical Examiners 
Acting as MRO, Special Topics--Biennial (Periodic) Testing Requirements
49 CFR Part 383 Secs. 383.3, 383.5, 383.7, 383.31, 383.71, 383.73, 
383.91, 383.93, Special Topics--International
49 CFR Part 384 Secs. 384.209, 384.211
49 CFR Part 387 Secs. 387.9, 387.15, 387.39
49 CFR Part 390 Secs. 390.3, 390.5, 390.15, Special Topics--Serious 
Pattern of Violations
49 CFR Part 391 Secs. 391.1, 391.11, 391.27, 391.41, 391.43, 391.49, 
391.51, 391.63
49 CFR Part 392 Secs. 392.5, 392.9, 392.62
49 CFR Part 393 Secs. 393.11, 393.42, 393.48, 393.51, 393.65, 393.75, 
393.89, 393.95, 393.100, 393.106, 393.201
49 CFR Part 395 Secs. 395.1, 395.2, 395.8, 395.13, 395.15
49 CFR Part 396 Secs. 396.11, 396.17, 396.23

    Additional guidance will continue to be published in future issues 
of the Federal Register. The FHWA will be modifying or removing 
numerous regulations as part of President Clinton's Regulatory Reform 
Initiative. Many of these changes will have an impact on the regulatory 
guidance in this document. These changes will be reflected in future 
issues of the Federal Register. Members of the motor carrier industry 
and other interested parties may access the guidance in this document 
through the FHWA's Electronic Bulletin Board System (FEBBS) using a 
microcomputer and modem. The FEBBS is a read-only facility. Access 
numbers for FEBBS are (202) 366-3764 for the Washington, DC area, or 
toll-free at (800) 337-3492. The system supports a variety of modem 
speeds up to 14,400 baud line speeds, and a variety of terminal types 
and protocols. Modems should be set to 8 data bits, full duplex, and no 
parity for optimal performance. Once a connection has been established, 
new users will have to go through a registration process. Instructions 
are given on the screen. FEBBS is mostly menu-drive and hot keys are 
indicated with ``< >'' enclosing the hot key. After logging on to FEBBS 
and arriving at the MAIN MENU, select  for Conference; then  for 
Motor Carrier; then either  again for MCREGIS Questions and Answers, 
or  for Information (more detailed help).
    For Technical Assistance to gain access to FEBBS, contact: FHWA 
Computer Help Desk, HMS-40, room 4401, 400 Seventh Street, SW, 
Washington, DC 20590 (202) 366-1120. Specific questions addressing any 
of the interpretive material published in this document may be directed 
to the contact persons listed above, the FHWA Regional Offices, or the 
FHWA Division Office in each State.
    For ease of reference, the following listing of acronyms used 
throughout this document is provided:

Appendix G--The Minimum Periodic Inspection Standards published as 
an appendix to the Federal Motor Carrier Safety Regulations
BAT--Breath Alcohol Technician
CDL--Commercial Driver's License
CDLIS--Commercial Driver's License Information System
CFR--Code of Federal Regulations
CMV--Commercial Motor Vehicle
CMVSA--Commercial Motor Vehicle Safety Act of 1986
COE--Cab-over-engine truck tractor
C/TPA--Consortium or Third-Party Administrator
CVSA--Commercial Vehicle Safety Alliance
DHHS-SAMHSA--Department of Health and Human Services, Substance 
Abuse Mental Health Services Administration
DOT--U.S. Department of Transportation
DVIR--Driver Vehicle Inspection Report
DWI--Driving While Intoxicated
EAP--Employee Assistance Program
EPA--U.S. Environmental Protection Agency
FHWA--Federal Highway Administration
FMCSRs--Federal Motor Carrier Safety Regulations
FMVSS--Federal Motor Vehicle Safety Standards (developed and issued 
by the National Highway Traffic Safety Administration)
FR--Federal Register
FRSI--Farm-Related Service Industries
GCWR--Gross Combination Weight Rating
GVW--Gross Vehicle Weight
GVWR--Gross Vehicle Weight Rating
HM--Hazardous Materials
HMRs--Hazardous Materials Regulations
HMTUSA--Hazardous Materials Transportation Uniform Safety Act of 
1990
ICC--Interstate Commerce Commission
Forms MCS-90 and MCS-90B--Endorsements for Motor Carrier Policies of 
Insurance for Public Liability Under Sections 29 and 30 of the Motor 
Carrier Act of 1980 issued by an insurer
MCSA--Motor Carrier Safety Act of 1984
MPH--Miles Per Hour
MRO--Medical Review Officer
NDR--National Driver Register
NHTSA--National Highway Traffic Safety Administration within DOT
RDMC--Regional Director of Motor Carriers
SAP--Substance Abuse Professional
SSN--Social Security Number
STAA--Surface Transportation Assistance Act of 1982
STT--Screening Test Technician
U.S.C.--United States Code

Table of Contents

Part 40--Procedures for Transportation Workplace Drug and Alcohol 
Testing Programs
Part 325--Compliance With Interstate Motor Carrier Noise Emission 
Standards
Part 382--Controlled Substances and Alcohol Use and Testing
Part 383--Commercial Driver's License Standards; Requirements and 
Penalties
Part 384--State Compliance With Commercial Driver's License Program
Part 386--Rules of Practice for Motor Carrier Safety and Hazardous 
Materials Proceedings
Part 387--Minimum Levels of Financial Responsibility for Motor 
Carriers
Part 390--Federal Motor Carrier Safety Regulations; General
Part 391--Qualifications of Drivers
Part 392--Driving of Motor Vehicles
Part 393--Parts and Accessories Necessary for Safe Operation
Part 395--Hours of Service of Drivers
Part 396--Inspection, Repair and Maintenance
Part 397--Transportation of Hazardous Materials; Driving and Parking 
Rules
Part 399--Employee Safety and Health Standards

Regulatory Guidance

Part 40--Procedures for Transportation Workplace Drug and Alcohol 
Testing Programs

Sections Interpreted

40.3  Definitions
40.21  The Drugs
40.23  Preparation for testing
40.25  Specimen collection procedures
40.29  Laboratory analysis procedures
40.31  Quality assurance and quality control
40.33  Reporting and review of results
40.35  Protection of employee records
40.39  Use Of DHHS-certified laboratories
40.69  Inability to provide an adequate amount of breath
40.81  Availability and disclosure of alcohol testing information 
about individual employees
40.93  The screening test technician
Special Topics--Requirements for random testing
Special Topics--Procedures for Handling and Processing a Split 
Specimen

Section 40.3  Definitions

    Question 1: May a Doctor of Chiropractic, holding a Certified 
Addiction Professional degree, serve as an MRO?
    Guidance: A Doctor of Chiropractic, holding a Certified Addiction 
Professional degree, is not considered to be a licensed medical doctor 
or doctor of osteopathy and, therefore, cannot serve as an MRO.
    Question 2: What are the qualifications and responsibilities of the 
MRO? Are MROs required to be certified?
    Guidance: Section 40.3 defines the qualifications for an MRO and 
Sec. 40.33 specifies the MRO's responsibilities. An MRO is defined as a 
licensed physician (medical doctor or doctor of osteopathy) responsible 
for receiving laboratory

[[Page 16372]]

results generated by an employer's drug testing program who has 
knowledge of substance abuse disorders and has appropriate medical 
training to interpret and evaluate an individual's confirmed positive 
test result together with his or her medical history and any other 
relevant biomedical information. An MRO is responsible for reviewing 
and interpreting confirmed positive test results obtained through the 
employer's testing program. The DOT does not require any certification 
of MROs at the present time. However, there are several national 
professional organizations which provide MRO certification.

Section 40.21  The Drugs

    Question 1: Is testing for additional drugs authorized? Must a 
separate specimen be obtained?
    Guidance: Under part 40, an employer must test for the following 
drugs: marijuana, cocaine, amphetamines, opiates, and phencyclidine. An 
employer may not test for any other substances under DOT authority. 
Part 40 does not, however, prohibit an employer from testing for other 
controlled substances as long as that testing is done under the 
authority of the employer.
    Employers in the transportation industry who establish a drug 
testing program that tests beyond the five drugs currently required by 
part 40 must also make clear to their employees what testing is 
required by DOT authority and what testing is required by the company. 
Additionally, employers must ensure that DOT urine specimens are 
collected in accordance with the provisions outlined in part 40 and 
that a separate specimen collection process including a separate act of 
urination is used to obtain specimens for company testing programs.
    Question 2: Should labs conduct tests for five (5) drugs even if 
the drug testing custody and control form fails to indicate what tests 
are to be performed?
    Guidance: Part 40 indicates that DOT agency drug testing programs 
require that employers test for marijuana, cocaine, opiates, 
amphetamines, and phencyclidine (Sec. 40.21). All DOT specimens, 
therefore, must be tested for the above five categories of drugs even 
if the accompanying drug testing custody and control form fails to 
indicate this.
    While the DOT does not view this type of collection site error as a 
fatal flaw, it nevertheless jeopardizes the integrity of the entire 
collection process and could lead to a challenge and subsequent third 
party review. These errors should be addressed with the site supervisor 
in the hope of preventing future mistakes.

Section 40.23  Preparation for Testing

    Question 1: On the testing of a split specimen, is it necessary to 
maintain anonymity of a person, at the laboratory level, when both the 
primary laboratory and the laboratory testing the split may have fees 
and could directly bill the employee?
    Guidance: Section 40.23(a) addresses mandatory use of the Federal 
Drug Testing Custody and Control Form in DOT urine collection and 
testing. This paragraph states, in part, that ``* * * personal 
identifying information on the donor (other than the social security 
number or other employee ID number) may not be provided to the 
laboratory.'' If circumstances arise in which the MRO orders a test of 
the split specimen, at the request of the employee, no additional 
identifying information on the employee may be provided to the 
laboratory that will be testing the split specimen. As directed by 
Sec. 40.33(f), ``* * * The MRO shall direct, in writing, the laboratory 
to provide the split specimen to another DHHS-certified laboratory for 
analysis.'' This request would reference only items contained on the 
face of the Drug Testing Custody and Control Form (e.g., Specimen 
Identification No., SSN or Employee ID No., Collection Date, etc.); the 
MRO would not specify the employee's name. Should a personal check 
(bearing the employee's name) accompany the request (e.g., a letter 
from the MRO), the MRO should not make any particular reference linking 
the split request with the person signing the check. In actuality, the 
primary laboratory will most likely bill the employer for the cost of 
sending the split specimen to the split laboratory; the split 
laboratory will normally require a cashier's check, money order, or an 
account to be set up (generally by the employer) prior to initiating 
processing.
    Question 2: In a case where an employee is providing a urine 
specimen and a breath test is conducted at the same time, may a 
laboratory receive both the Federal Drug Testing Custody and Control 
Form (with the specimens for testing) and the employer's copy of the 
Breath Alcohol Testing Form (with the test results) from the collection 
site?
    Guidance: The DOT provided clarification in its Guidance on the 
Role of Consortia and Third-Party Administrators in DOT Drug and 
Alcohol Testing Programs published on July 25, 1995 in the Federal 
Register which stated in part ``* * * MROs and BATs must send final 
individual test results directly to the actual employer as soon as the 
results are available * * * results may be maintained afterwards by the 
C/TPA * * * while there is no objection to the MRO or BAT transmitting 
results simultaneously both to the employer and to the C/TPA, it is not 
appropriate for the MRO or BAT to send the results only to the C/TPA, 
which subsequently retransmits them to the employer.''
    A laboratory, regardless of what type of arrangement it has with 
the employer, is prohibited from receiving the employer's copy of the 
Breath Alcohol Testing Form together with the Federal Drug Testing 
Custody and Control Form(s) which accompany the urine specimen. The 
breath testing form contains individual identifying information. The 
DOT rule specifically states that this information may not be provided 
to a laboratory.
    However, a laboratory functioning as a C/TPA may receive the 
employer's copies of the Federal Drug Testing Custody and Control Form 
and the employer's copy of the Breath Alcohol Testing Form from the 
collection site under the following conditions:
    a. The employer's copy of the Federal Drug Testing Custody and 
Control Form (Copy 7) must not be included with the laboratory copies 
(Copies 1 and 2) which accompany the urine specimen.
    b. The employer's copies of the Federal Drug Testing Custody and 
Control Form and the Breath Alcohol Testing Forms must not be received 
by the accession/receiving (testing) section of the laboratory.
    These procedures should prevent that portion of the laboratory 
which conducts the drug analysis from having access to the identity 
(from the alcohol testing form) of the donor.
    The DOT rule requires the BAT immediately to transmit the results 
to the employer, regardless of what procedures have been established 
for providing to the employer or the C/TPA, the employer's copy of the 
breath testing form.
    In all instances, it is the employer (not the C/TPA) who designates 
in writing to the BAT or the BAT's company, who the employer's agent is 
and the procedures that the employer wants the BAT to use for 
transmission of data and forms.
    Question 3: Is a specific MRO name required in Step 1 on the 
Federal Drug Testing Custody and Control Form, or may a clinic, 
hospital, health care organization, or MRO company name appear in the 
MRO Name and Address area?
    Guidance: The DOT has determined that a specific physician's name 
and address is required in Step 1 of the

[[Page 16373]]

Federal Drug Testing Custody and Control Form as opposed to only a 
generic clinic, health care organization, or company name. The name 
should be that of a responsible physician rather than an administrative 
staff member or other company official. However, a company name may 
appear as part of the address, provided it is followed by or includes 
the MRO's name. Collection sites send copies of the MRO's custody and 
control form to this address, and drug testing laboratories use it to 
submit laboratory results to the MRO. The use of the MRO name will 
preclude potential compromises of confidentiality. In many cases, where 
only the name of a clinic, hospital or company appears on the mailing 
address, the laboratory results are sent to the clinic or hospital and 
are either circulated through numerous departments or, in some cases, 
never reach the MRO.
    The physician named in Step 1 may be the MRO who will actually 
perform the verification review or the name of a physician within the 
practice (company), but not necessarily the one who will actually 
perform the verification (in those cases where there is more than one 
MRO working in that office or company).
    Question 4: Is the collector's signature required on the chain of 
custody section of drug testing custody and control form?
    Guidance: The collector's signature is required in both the 
``received by'' and the ``released by'' spaces in Step 6 of the drug 
testing custody and control form. Part 40 Appendix A specifies that the 
form shall provide both ``received by'' and ``released by'' entries of 
the collector's signature and printed names (see the instructions on 
the back of Appendix A, copy 7, Step 6. Combining these entries is not 
authorized by the rule.
    Question 5: May the drug testing custody and control form be used 
for non-DOT tests?
    Guidance: Employee drug testing conducted under local, State, or 
private authority must not be represented to the employee as being 
Federally mandated or required. The use of the custody and control form 
required under 49 CFR part 40 conveys that the testing is being 
conducted in accordance with applicable Federal regulations. A ``look-
alike'' form that deletes references to DOT, Part 40, and Federal 
requirements may be used for non-DOT testing.
    Question 6: Is collection of blood authorized? May blood specimens 
be supported by the drug testing custody and control form? May blood 
test results be used to take DOT-required administrative actions?
    Guidance: The collection of blood for alcohol or drug testing under 
DOT authority is not authorized. Therefore, while a company, under its 
own authority, may require a blood specimen to be collected and tested 
for drugs and/or alcohol under certain circumstances, it is not 
acceptable for the company-required blood specimen to be supported by 
the same custody and control form that accompanies a DOT-required urine 
specimen.
    If a urine specimen for a DOT reasonable suspicion test is rejected 
for testing at the laboratory, results from a blood specimen collected 
in accordance with a company policy could be used to take action 
against an employee depending upon the drug testing policy established 
by that company. Under no circumstances, however, may the results of 
the blood test be used to take administrative or disciplinary action 
against an employee using DOT authority, for the reasons cited above.
    Question 7: Is the collector required to sign or initial the 
shipping container label?
    Guidance: Sections 40.23(c) and 40.25(h) describe the requirements 
for packaging the specimen and custody and control form in preparation 
for shipment to the laboratory. Section 40.23(c) states that the 
shipping container must be sealed and initialed to prevent undetected 
tampering. Section 40.25(h) states that the collection site person 
shall sign and enter the date specimens were sealed in the shipping 
containers for shipment. The DOT has determined that initialing and 
dating the seal by the collection site person is sufficient to meet the 
intent of the regulation.
    Question 8: How and to whom are copies of drug testing custody and 
control forms distributed?
    Guidance: The historically acceptable procedures for handling the 
custody and control form have been as follows: Parts 1, 2, and 3 must 
accompany the urine specimen in a sealed shipping container to the 
laboratory; Part 3 (Split Specimen) must be retained by the laboratory 
in case the split specimen must be sent to a second laboratory; Part 4 
must be sent from the collection site directly to the physician (MRO); 
Part 5 is given to the donor at the collection site; Part 6 is retained 
by the collection site personnel; and Part 7 is provided to the 
employer representative. It is unacceptable for the MRO copy of the 
form to accompany the urine specimen to the laboratory. Clearly the 
intent of the regulation is for the urine specimen and Parts 1, 2, and 
3 of the Federal custody and control form to be sent directly from the 
collection site to the laboratory, and the MRO (Part 4) copy of the 
custody and control form to be sent directly to the physician. There is 
no need to maintain a chain of custody tracking the handling of the 
sealed shipping container. In fact, the August 19, 1994 Federal 
Register (59 FR 42996) expressly notes this fact in changes to 
Sec. 40.25 to clarify this point.
    Question 9: Should a specimen be rejected by a lab if the donor-
identifying information is erroneously provided?
    Guidance: The intent of the DOT procedures is to limit the amount 
of personal identifying information that is recorded on the specimen 
bottle and those copies of the drug testing custody and control form 
that accompany the specimen bottle to the laboratory. The rule only 
requires that a donor initial the specimen bottle label/seal and 
provide an SSN or employee identification number to be recorded on the 
laboratory copies of the drug testing custody and control form. The 
rule does not allow for additional personal information to be provided 
to the laboratory. In fact, the intent was to prevent the donor's 
identity from being routinely disclosed to the laboratory.
    It was never intended, however, that the inadvertent or erroneous 
disclosure of the donor's identity (i.e., name or signature) on the 
specimen bottle or laboratory copies of the drug testing custody and 
control form be a justification, in and of itself, for a laboratory to 
reject the specimen for testing or for an MRO to invalidate the test 
results. Furthermore, all accessioning procedures at laboratories 
certified by the DHHS-SAMHSA requires that specimens be identified by 
specimen identification number, donor identification number, and 
laboratory accession number only. Even though laboratory accessioning 
personnel may have access to a donor's name in these cases, the 
analytical personnel will not. Therefore, the donor's identity is still 
protected during the actual testing process.
    Question 10: Must the collector provide a real name on the 
collector certification section of drug testing custody and control 
form?
    Guidance: The intent of the DOT drug testing custody and control 
form is to provide complete documentation of the specimen collection 
process including the name of the collector and the location of the 
collection site. The collection site person who receives the urine 
specimen from the donor should be identified by name on the block 
specifying ``collector's name.'' Use of a ``code name,'' collector I.D. 
number, or

[[Page 16374]]

other substitution for the collector's name is not acceptable. The 
collector's name should be the same as that appearing on the 
identification each collector is required to make available to the 
donor, if so requested.

Section 40.25  Specimen Collection Procedures

    Question 1: Under what circumstances must an employee be observed 
while submitting a urine sample? Under what circumstances is 
observation an optional choice of the employer?
    Guidance: A direct-observation collection is mandatory only when 
the collection site person observes behavior clearly indicating an 
attempt to tamper or when the specimen temperature is outside the 
normal range and an oral body temperature reading is refused or is 
inconsistent with the specimen temperature.
    The collection site person would contact a higher-level supervisor, 
or a designated employer representative, to relay the circumstances 
which require the observed collection. The supervisor or representative 
would review the circumstances for compliance with Part 40 
requirements, and finding such, would approve in advance the decision 
to do the observed collection. The collection site person--of the same 
gender as the employee--would immediately conduct the observed 
collection.
    The employer has the discretion to require the employee to provide 
a specimen under direct-observation collection procedures for the 
return-to-duty test and any subsequent follow-up tests. The employer 
also has the authority to require an employee to provide a specimen 
under direct-observation procedures when the specific gravity and 
creatinine content of the employee's previous sample are below the 
regulatory standards. In the latter case, the MRO would receive the 
test results from the laboratory (i.e., positive, negative, or in the 
case where no immunoassay result is reported) along with information 
that the specimen had a specific gravity of less than 1.003 and 
creatinine concentration less than 0.2g/L. The MRO would inform the 
employer of the laboratory findings. The employer would make the 
decision to do a direct-observation collection on the employee on the 
next DOT test that the employee is required to take.
    It would be the employer's responsibility to notify the employee of 
the decision to exercise the option to do the collection(s) under the 
direct-observation procedure. The employer would authorize the 
collection site person to do the observed collection(s), as applicable. 
Directly observed collections are always performed by a collector of 
the same gender as the employee.
    Question 2: In a ``shy bladder'' situation, if the physician 
conducting the medical examination is not the MRO, may that physician 
report his/her conclusions directly to the employer? Also, if a company 
has a corporate or contract physician, may that physician perform the 
examination?
    Guidance: The rule does not preclude the MRO from performing this 
medical evaluation if the MRO has the expertise and is willing to 
conduct this evaluation. The DOT's requirement that the MRO review the 
results of the medical evaluation is related to the fact that the MRO 
may have additional information on the circumstances surrounding the 
attempt to provide the urine specimen, other pertinent information 
regarding the collection process, problems or lack of problems during 
previous collections, etc.
    All reporting to the employer regarding the final determination on 
the results of a urine specimen is accomplished by the MRO. This 
includes the findings and conclusions of the medical examination.
    If a company has a physician on the staff or has a contract 
physician, this individual may perform the medical examination if he/
she has the required expertise. The company should ensure that the MRO 
is informed of this arrangement and makes the referral to that 
particular physician. However, the requirement still exists to submit 
the findings of the evaluation to the MRO, who then reports his/her 
conclusions to the employer. A company may also designate its staff 
physician or contract physician as the MRO if that individual meets the 
regulatory criteria.
    Question 3: In a ``shy bladder'' scenario, may an employer require 
an individual to provide a specimen within three hours, and if the 
individual doesn't provide a specimen, is the inability considered to 
be a refusal?
    Guidance: The individual must provide the specimen within three 
hours. The inability to provide does not automatically mean that the 
individual being tested will be deemed to have refused testing. The 
required medical evaluation would produce the information which the MRO 
will use to draw final conclusions. If the finding by the MRO is that 
there was no legitimate medical reason for the individual's inability 
to provide the sufficient quantity of urine, then this finding 
constitutes a refusal. A refusal to provide a specimen has the same 
sanctions under the DOT rule as a positive test.
    Once it has been determined that the employee has violated a DOT 
rule (e.g., verified positive test, refusal), the employee must be 
immediately removed from performing any safety-sensitive duties. The 
employee may not again perform safety-sensitive duties until he or she 
has met the conditions of the applicable operating administration 
(e.g., Federal Highway Administration) rule for return to duty. The DOT 
rule does not address employer policies on subsequent personnel 
actions.
    Question 4: In a ``shy bladder'' scenario, does DOT consider a 
company's ordering the donor back to work prior to completion of the 
time and fluid intake period an obstruction of the collection process? 
Or, is the donor's failure to complete the collection, after having 
been compelled by the employer to leave the collection site, considered 
a refusal to test if no medical reason is provided for donor's failure 
to provide the required amount of urine?
    Guidance: A company's ordering the employee to return to work prior 
to the expiration of the time period, with no provisions for personal 
observation or for ensuring the employee's return to the collection 
site, appears to be in clear violation of DOT rules. The employer is 
not authorized to discontinue a test or to conduct a subsequent 
collection at a later time in lieu of a current collection. The 
employer could order the employee back to work while waiting for the 
three-hour period to elapse, but the employer must ensure that the 
employee drinks the prescribed amount of liquids, is under observation 
during the entire period of time, and returns to the collection site 
prior to the expiration of the three hours.
    It should be noted that because the donor was not afforded the full 
time period during which to provide a specimen, the donor's inability 
to provide the required amount of urine does not constitute a refusal 
to test but is the result of employer hindrance with the collection 
process. The MRO should advise the employer of its violation of 49 CFR 
part 40 and propose corrective action accordingly (i.e., establish 
correct policy). In addition, the MRO may report the violation to the 
appropriate DOT operating administration or may request that the DOT 
Drug Enforcement and Program Compliance office report the matter. The 
company is required to maintain, in accordance with the appropriate 
governing regulation, a record of this ``test'' for review by a DOT 
operating administration in the event of an audit.

[[Page 16375]]

    Question 5: Is a current and valid picture/photo identification 
required before a urine collection takes place or may a physical 
description verification by telephone by an employer representative 
suffice?
    Guidance: The rule does not address if the photo identification is 
current nor does it prohibit telephonic verification of identity. The 
intent of the rule was that if the employee did not have proper 
identification, an employer's representative would be on site to 
identify that employee. There is no requirement that the representative 
sign any type of form, although procedures should be established to 
ensure the true identity of the representative.
    If telephonic identification is used, specific procedures should be 
in place to ensure that the employer representative is fully identified 
to the collection site person and that reasonable procedures exist to 
ensure that the employer's representative can truly identify the 
employee. If the employee's identification cannot be established to the 
satisfaction of the collection site person (or based on the collection 
site protocol for identification), the collection should not be 
completed. Additionally, any identification procedure allowed under 
specific DOT operating administration's rules is also permissible.
    Exception: If the donor is self-employed and has no photo 
identification, the collector should notify the collection site 
supervisor and record in the remarks section that positive 
identification is not available. The donor must be asked to provide two 
items of identification bearing his/her signature. Proceed with the 
collection. When the donor signs the certification statement, compare 
the donor's signature with signatures on the identification presented. 
If the signatures appear consistent, continue the collection process. 
If the signature does not match signatures on the identification 
presented, make an additional note in remarks section stating that 
``signature identification is unconfirmed'' and continue the collection 
process.
    When this (self-employed) donor does not have appropriate 
identification this should not be considered a refusal. The collector 
should remember that his/her primary function is to obtain a specimen 
that can be tested for drugs under DOT rules. The collector should 
provide sufficient information in the remarks section to help the MRO 
make a determination regarding the merit of the collection process or 
for the employer to determine if there are systemic problems or other 
shortfalls in its policy/program.
    Question 6: May a urine specimen collection site be constructed to 
have two or more collectors or must each collection ``station'' be 
physically separated by a barrier or wall to ensure modesty and privacy 
of the donor?
    Guidance: In specifying privacy and security of the collection 
site, the DOT was concerned that the act of urination by a donor would 
have maximum privacy under most circumstances and that the specimen 
sample would be under sufficient security to prevent any allegation of 
tampering. Additionally, the regulatory requirement exists that the 
collection site person have only one donor under his/her supervision at 
any one time. In other words, one collection site person may not 
process the paperwork or collect a specimen from more than one donor at 
a time. There are collection sites, particularly at health clinics, 
that may have ``stations'' or booths which are partially partitioned 
from each other or from the rest of the clinic. The collection site 
person usually gathers relevant information from the donor at the 
booth, completes the necessary paperwork, and escorts the donor to a 
toilet area where the donor can provide a specimen in privacy.
    The rule does not permit unauthorized personnel in any part of the 
designated collection site where urine specimens are collected or 
stored. In the multiple booth situation, another collection site person 
would not be considered an unauthorized person. However, when other 
donors are present in a waiting area or another donor is being 
processed by another collection site person, the integrity of the 
specimen must be ensured. During the collection process, the collection 
site person must ensure that the specimen is under his or her direct 
control from the time the specimen is provided by the donor to the time 
it is sealed in the mailer. Additionally, regardless of the physical 
configuration of the collection site, there is the expectation that the 
donor will have some semblance of aural and visual privacy. For 
example, a donor may tell the collector that he/she is suffering from a 
particular illness, is on medication, or that he/she has an indwelling 
catheter, and wonder if this will impact on the test results. The donor 
should be able to make these statements without embarrassment or 
concern that another individual (i.e., another collector or donor) may 
overhear or see what the donor is providing to the collector.
    Question 7: May donors be required to remove all clothing, wear a 
hospital gown, or empty pockets?
    Guidance: The DOT's procedures for transportation workplace drug 
testing programs contained in Sec. 40.25(f)(4) states: ``The collection 
site person shall ask the individual to remove any unnecessary outer 
garments such as a coat or jacket that might conceal items or 
substances that could be used to tamper with or adulterate the 
individual's urine specimen. The collection site person shall ensure 
that all personal belongings such as a purse or briefcase remain with 
the outer garments. The individual may retain his or her wallet.'' 
(Emphasis added.)
    While it is clear that the rule does allow for collectors to 
request that donors remove unnecessary outer garments in order to 
ensure the integrity of the collection, the rule does not authorize 
collectors to require or request that donors remove other garments as 
well, e.g. shirts, blouses, pants, or skirts, thereby ensuring a 
modicum of privacy and reducing potential embarrassment. Additionally, 
donors may not be required or requested to wear hospital or examination 
gowns when providing a specimen.
    There is an exception to the above. The DOT has determined that if 
a urine specimen is being collected as part of a DOT-required physical 
examination (i.e., Sec. 391.43 Medical examination; certificate of 
physical examination) in which an individual is required to disrobe and 
wear a hospital or examination gown, the collection may be completed 
with the donor so attired.
    It should also be noted that if a collection site person, during 
the course of a collection procedure, notices an unusual indicator that 
an individual may attempt to tamper with or adulterate a specimen as 
evidenced by a bulging or overstuffed pocket for example, the collector 
may request that the donor empty his or her pockets, display the items, 
and explain the need for them during the collection. This procedure may 
be done only when there is a suspicion that an individual may be about 
to tamper with or adulterate a specimen. Otherwise, requiring donors to 
empty their pockets as a common practice is also prohibited under the 
current rules.
    Question 8: Please clarify donor identifying information 
requirements on the drug testing custody and control form.
    Guidance: In accordance with Sec. 40.25(f)(20), the donor/employee 
is required to initial the specimen bottle seal/label. The employee/
donor's identification number or SSN is to be

[[Page 16376]]

provided on the custody and control form and shall not be included on 
the specimen bottle seal/label. Other donor identification (i.e., name, 
signature) should not be provided on the copies of the custody and 
control form that accompany the specimen to the laboratory. However, 
disclosure of the donor's name/signature does not, in and of itself, 
require that the specimen be rejected for testing by the laboratory.
    Question 9: Is a consent form authorized?
    Guidance: Section 40.25(f)(22)(ii) states, ``When specified by DOT 
agency regulation or required by the collection site (other than an 
employer site) or by the laboratory, the employee may be required to 
sign a consent or release form authorizing the collection of the 
specimen, analysis of the specimen for designated controlled 
substances, and release of the results to the employer.'' The purpose 
of this statement is to allow collection sites or laboratories, of 
their own accord, or when required by a DOT agency regulation, to 
utilize consent or release of information forms for the collection, 
analysis, and release of specimen results to the employer. 
Sec. 40.25(f)(22)(ii) continues, ``The employee may not be required to 
waive liability with respect to negligence on the part of any person 
participating in the collection, handling, or analysis of the specimen 
or to indemnify any person for the negligence of others.'' The intent 
of this statement is to prevent anyone who participates in either the 
collection, handling, or analysis of the specimen from trying to 
require the employee to exempt them from liability arising from their 
actions. This pertains not only to collection site and laboratory 
personnel, but also to MROs, their staff, if applicable, and to the 
employer. Failure of an employee to sign the consent form does not 
equal a refusal to test and the test must proceed in all circumstances. 
The DOT also intends that this interpretation shall be followed for 
alcohol testing requirements.
    Question 10: Is the donor's presence required when the collector 
prepares a specimen for shipment?
    Guidance: The tamper-proof seal placed on the specimen bottle must 
be affixed in the presence of the donor, but the regulation is clear 
that the donor does not have to be present when the specimens are 
prepared for shipment to the laboratory. The collection site person is 
the only person required to sign or initial the seal on the shipment 
container. In fact, the rule allows the use of shipment containers that 
accommodate multiple specimen bottles. It would be impossible to have 
more than one donor witness the sealing of their specimen bottles in 
one shipment container when collectors are required by rule to deal 
with only one donor at a time.
    Question 11: In a post-accident situation requiring both a company 
test and a DOT test, which should be conducted first?
    Guidance: In a post-accident situation in which drug/alcohol 
testing is required under company authority or policy, and DOT-mandated 
tests are required, the DOT tests must be conducted first.
    Question 12: Please address the issue of low specific gravity/
creatinine.
    Guidance: Laboratory reports. The laboratory may report in the 
laboratory remarks section of the custody and control form that 
specific gravity is less than 1.003 and creatinine is less than 0.2 
grams per liter. Actual values of specific gravity and creatinine 
should not be reported.
    Medical Review Officer Interpretations MROs shall report the 
laboratory findings (positive, negative or not tested (canceled)) to 
the employer and that specific gravity and creatinine are below 1.003 
and 0.2 g/l, respectively.
    Employer Actions The employer shall not require the driver to 
submit to another specimen collection under FHWA authority. A dilute 
specimen does not constitute reasonable suspicion of controlled 
substance use. The employer may require the next specimen, required by 
DOT regulations, submitted by the driver to be collected under direct 
observation.
    Question 13: What should donors do if specimen collection 
procedures are not being followed?
    Guidance: Under DOT agency regulations, the employer is responsible 
for ensuring that specimens are collected in accordance with part 40. 
If the employees subject to DOT-mandated drug testing regulations 
believe that part 40 collection procedures are not being followed, they 
should so inform the employer. If the employer does not respond to the 
complaints and take appropriate corrective actions, the employees may 
seek resolution of their complaints through a DOT agency that has 
regulatory authority over the employer.
    Question 14: Is failure to check the temperature box on the drug 
testing custody and control form considered a fatal flaw?
    Guidance: In accordance with Sec. 40.29, the collector is to check 
the temperature of the specimen to ensure the integrity of the 
specimen. The fact that it was checked should be marked appropriately 
on the custody and control form. Inadvertently not marking the 
temperature-taken box, in and of itself, does not constitute a ``fatal 
flaw'' in the DOT chain of custody process.
    Question 15: What are the collection site requirements?
    Guidance: Section 40.25(a)-(b) outlines employer requirements for 
designating and maintaining the security of collection sites. To 
summarize the contents of this section, a collection site must at a 
minimum provide: (1) An enclosure where privacy for urination is 
possible; (2) A toilet for urination (unless a single use, disposable 
container is used with sufficient capacity to contain the entire void); 
(3) A source of water for washing hands; (4) A suitable writing surface 
for completing the required paperwork (custody and control form); and 
(5) Restricted access so that the site is secure during collection.
    Any facility, including a physician's office, that meets the 
minimum requirements may be used as a collection site for DOT-required 
drug tests. It is the employer's responsibility to not only designate 
and ensure that collection sites meet these minimum requirements, but 
also to ensure that collection site personnel at these locations are 
properly trained and/or qualified to collect urine specimens in 
accordance with the provisions outlined in 49 CFR part 40.
    Question 16: Are middle names required on the drug testing custody 
and control form?
    Guidance: Section 40.25(a) specifies that the custody and control 
form used to document DOT mandated drug testing shall provide space for 
collector, donor, and laboratory certifying scientist names and 
signatures. The regulation does not specify that a middle name or 
initial must be used. The intent of the regulation is to provide for 
the identification of the person(s) signing the certification 
statements. The use of supplemental instructions on the custody and 
control form (e.g. further defining name to include first, middle, 
last), does not impact on the security, identification, or integrity of 
the urine specimen and should not be used as a basis for invalidating 
the specimen results.

Section 40.29 Laboratory Analysis Procedures

    Question 1: May a laboratory provide ``one-stop shopping'' to an 
employer by including the services of a MRO or a list of MROs (which 
the laboratory does not employ) from which the employer or client could 
select a specific MRO?
    Guidance: Under current DOT interpretation of the rule, a 
laboratory

[[Page 16377]]

would be prohibited from supplying a limited list of MROs from which 
the employer would select individuals that would provide MRO services. 
In this circumstance, there is a clear financial advantage to the MROs 
who appear on the laboratory list, since this makes them among the 
candidates for use by that laboratory's clients. This advantage could 
readily be viewed as providing these MROs an incentive to maintain a 
good relationship with the laboratory, so as to ensure that they remain 
on the list, which is in their financial interest. The existence of 
this incentive could, in turn, call into question the objectivity and 
independence of the MROs in the review of the test results and the 
reporting to relevant officials of any potential errors in test results 
or procedures. The regulatory prohibition is not limited to actual, 
demonstrated conflict of interest. It includes matters that ``may be 
construed as a potential conflict of interest''. The DOT position is 
that the above described laboratory arrangement presents the appearance 
of a conflict of interest.
    Question 2: May a laboratory continue to submit monthly summary 
reports to the employer/consortia or is the laboratory limited to 
quarterly reports only?
    Guidance: The DOT changed the requirement for a monthly statistical 
report to a quarterly report to provide cost savings to the industry 
without substantially decreasing the effectiveness of the report. 
Although the original regulatory language appears to require reporting 
only on a quarterly basis, the intent of this change was to require, as 
a minimum, a quarterly report, but not to limit those employers or 
laboratories who desired monthly reports. Monthly reports may be 
generated provided the reports do not contain personal identifying 
information or other data from which it is reasonably likely that 
information about individuals' tests can be readily inferred. If a 
laboratory provides monthly reports, there is no requirement to 
additionally provide a quarterly aggregate report. Likewise, the 
regulatory requirement to prevent individual identifying information 
remains for both monthly and quarterly reports. If a report is withheld 
for this reason, the laboratory will notify the employer.
    Question 3: Explain the requirements for quarterly lab summaries.
    Guidance: Section 40.29(g)(6) requires each laboratory to ``provide 
the employer an aggregate quarterly statistical summary of urinalysis 
testing of the employer's employees. Laboratories may provide the 
report to a consortium provided the laboratory provides employer-
specific data and the consortium forwards the employer-specific data to 
the respective employers within 14 days of receipt of the laboratory 
report.''
    The above reference also contains the following information: 
``Quarterly reports shall not contain personal identifying information 
or other data from which it is reasonably likely that information about 
individuals' tests can be readily inferred. If necessary, in order to 
prevent disclosure of such data, the laboratory shall not send a report 
until data are sufficiently aggregated to make such an inference 
unlikely. In any quarter in which a report is withheld for this reason, 
or because no testing was conducted, the laboratory shall so inform the 
consortium/employer in writing.''
    As referred to above, the DOT has held that during a quarter in 
which there was ``no activity'' the laboratory is still required to 
inform the employer, in writing, of the negative activity. This 
provision is necessary to assist Federal auditors during inspections of 
employers that are required by an Operating Administration to conduct a 
drug testing program. Unless the auditor has a complete quarter-by-
quarter history and record of drug testing results from a laboratory, 
there is nothing to preclude an employer, for example, from destroying 
a quarterly summary that does contain a confirmed positive result and 
claim that there simply was no activity during the month. This, of 
course, would allow the company to continue to use that individual in a 
safety-sensitive function with no evidence that there was a confirmed 
positive drug test result. In effect, the negative lab report serves as 
an important check and balance used by auditors in their compliance and 
enforcement efforts.
    Question 4: May labs transmit results to an MRO by faxing Part 2 of 
drug testing custody and control form?
    Guidance: Laboratory test results may be provided to the MRO via 
facsimile transmission of the custody and control form. However, the 
``true copy'' of the custody and control form must also be sent to the 
MRO. The purpose of permitting facsimile transmission of the custody 
and control form is to facilitate a quicker administrative review of 
test results by the MRO. The MRO may complete verification of a 
negative result based on the facsimile of the custody and control form; 
however, the verification of a positive result cannot be completed 
until the ``true copy'' of the custody and control form bearing the 
original signature of the laboratory's certifying scientist is received 
by the MRO.
    Question 5: May a lab certifying scientist use a ``signature 
stamp''?
    Guidance: In accordance with Sec. 40.29(g)(5), ``in the case of a 
positive report for drug use [the drug testing custody and control form 
(part 2)], shall be signed (after the required certification block) by 
the individual responsible for day-to-day management of the drug 
testing laboratory or the individual responsible for attesting to the 
validity of the test reports.* * *''
    In accordance with Sec. 40.29(g)(1), ``Before any test result is 
reported (the results of initial tests, confirmatory tests, or quality 
control data), it shall be reviewed and the test certified as an 
accurate report by the responsible individual.'' The DOT's opinion is 
that negative reports must be reviewed and the test certified as an 
accurate report by the laboratory's responsible individual. This 
certification must be accomplished by a signature for positive test 
results while a signature stamp with initials for negative test results 
on the custody and control form may be used.
    Question 6: Does the regulation require lab ``batch reporting'' of 
drug test results?
    Guidance: The laboratory may report results to the MRO as soon as 
the results have been reviewed by the appropriate laboratory personnel. 
There is no requirement for ``batch reporting,'' or reporting 
simultaneously all results for specimens received in a given shipment. 
Nor does part 40 require ``batch reporting'' of results by the MRO to 
the employer. Batch reporting, which causes the transmission of 
negative results before positive results have been verified, may create 
a problem by leading an employer to make premature assumptions about a 
particular test result. However, the rule provides no authority for an 
employer to take any adverse action against an employee whose test 
result is pending. The differences in reporting time of test results 
may be due to a variety of circumstances including laboratory 
processing time, MRO administrative review processes for negatives, or 
the verification process for positives.
    Question 7: Is a lab required to send results directly to the MRO?
    Guidance: Yes. Section 40.29(g) requires confidentiality and 
limited access to laboratory test results, and the laboratory must send 
only to the MRO the original or a certified true copy of the drug 
testing custody and control form (Part 2). Furthermore, 
Sec. 40.33(b)(3) states: ``The role of the MRO is to review and 
interpret confirmed positive test results obtained through the 
employer's

[[Page 16378]]

testing program.'' Section 40.33(c)(2) states: ``The MRO shall contact 
the individual directly, on a confidential basis, to determine whether 
the employee wishes to discuss the test result. A staff person under 
the MRO's supervision may make the initial contact, and a medically 
licensed or certified staff person may gather information from the 
employee.''
    Given the above, it should be clear that the intent of the current 
regulations is that all laboratory test results be sent directly to the 
MRO. When the test result is positive, the MRO must make the 
verification determination; when the test result is negative, the MRO 
may delegate to a person under his/her direct supervision the 
administrative review of the negative results.
    Question 8: Does the regulation allow the MRO to disclose to the 
employer the drug(s) involved in a positive test?
    Guidance: Section 40.29(g)(3) requires MROs to report to employers 
whether the drug test was positive or negative. It also allows the MRO 
to report the drug(s) for which there was a positive test.

Section 40.31  Quality Assurance and Quality Control

    Question 1: Please explain the timing of blind performance test 
specimens.
    Guidance: Section 40.31(d) delineates employer and consortia blind 
performance test requirements. The intent of these requirements is to 
test the laboratory's ability to correctly identify positive and 
negative samples. These samples are to be unidentifiable as blind 
samples by the laboratory.
    The regulation does not specify the distribution or the timing of 
the submissions except to stipulate in Sec. 40.31(d)(2) that each 
``employer shall submit three blind performance test specimens for each 
100 employee specimens it submits, up to a maximum of 100 blind 
performance test specimens submitted per quarter.'' This is the basic 
requirement. The optimum program would be to evenly space the 
submission of blind samples throughout the period.

Section 40.33  Reporting and Review of Results

    Question 1: Does the MRO have to personally conduct the 
verification of a positive drug test result?
    Guidance: The DOT requirement that the MRO be a licensed physician 
with knowledge of substance abuse disorders (Sec. 40.33(b)(1)) 
indicates the importance that the DOT placed on this function. The 
regulatory requirement is that prior to making a final decision to 
verify a positive test result, the individual is given an opportunity 
to discuss the test result directly with the MRO. An appropriately 
medically trained staff person (e.g., a nurse with substance abuse 
training) may gather information from an employee about the employee's 
explanation for a positive result. In every case, however, the MRO must 
talk to the employee before making the decision to confirm a laboratory 
positive as a verified positive drug test result. No staff person may 
make this decision for the MRO.
    Question 2: Does the DOT drug testing rule permit the use of a 
second and different MRO to whom the results of the split specimen can 
be sent by the second laboratory?
    Guidance: There is no appropriate role for a second and different 
MRO to whom the results of the split specimen would be submitted. The 
DOT's interpretation is that this procedure is not permissible under 
the DOT rule.
    The laboratory results of the split specimen are for the presence 
of the drug or drug metabolite and the rule text does not authorize a 
``second'' verification process of the split results. Therefore, the 
use of a second MRO does not add to the overall verification process 
required by the rule. Additionally, if the split specimen fails to 
reconfirm or is not available for testing, it is the responsibility of 
the (original) MRO to cancel the test and provide notification of this 
cancellation to the appropriate parties. It would be inappropriate for 
the second MRO to cancel the test nor would the second MRO have the 
appropriate information to accomplish the cancellation notification.
    Question 3: If the MRO determines that a donor has a legitimate 
prescription for Marinol, would this be reported as a negative result? 
What if in the MRO's opinion, the use of the prescribed medication may 
compromise safety?
    Guidance: Section 40.33(a)(1) states in part, that `` * * * A 
positive test result does not automatically identify an employee/
applicant as having used drugs in violation of a DOT agency regulation. 
An individual with a detailed knowledge of possible alternate medical 
explanations is essential to the review of the results.'' The DOT's 
interpretation has been that if the MRO can determine that the donor 
has a legitimate prescription, the positive result would be ``down 
graded'' to a negative. This would apply to any legitimately prescribed 
drug, including Marinol. If the MRO determines that the use of that 
particular prescription/substance may compromise safety in the 
performance of a transportation related safety sensitive function 
(whether or not the substance is prescribed for the appropriate 
condition), the MRO should discuss this with the donor's (prescribing) 
physician. The donor's physician may decide to prescribe an alternate 
substance that may not have adverse effects on the donor's performance 
of his/her duties.
    Section 40.33(i) states in part, that ``(1) The MRO may disclose 
such [medical] information to the employer, a DOT agency * * * or a 
physician responsible for determining the medical qualification of the 
employee * * * if * * * (iii) * * * the information indicates that 
continued performance by the employee * * * could pose a significant 
safety risk. (2) Before obtaining medical information from the employee 
as part of the verification process, the MRO shall inform the employee 
that information may be disclosed to third parties as provided in this 
paragraph * * * ''. If after talking to the prescribing physician, the 
MRO still determines that a safety risk exists, he/she may inform the 
employer, DOT, or the employer's physician of the existence of a 
medical condition that could preclude the donor from performing a 
safety sensitive function. However, the MRO must ensure that he/she 
informed the employee prior to the verification process that this 
(medical) information may be provided to a third party.
    Question 4: Is there such a thing as an MRO management company or 
does the law specify that a single certified MRO review each lab result 
from tested employees and personally transmit the test results to the 
specific employer? Does the law require that the owner of an MRO 
management company be a physician? Do negative test results have to be 
handled by a physician MRO, or may the results be handled by the MRO 
management company administrators?
    Guidance: While part 40 makes no mention of an ``MRO management 
company'' the regulations do address the role of the C/TPA. The rules 
do not permit the C/TPA to receive drug testing results directly from 
either the laboratory or from the MRO. The laboratory results are 
reported directly to the MRO, and the MRO results are reported directly 
to the employer.
    Through interpretation of Sec. 40.33(a), the DOT has permitted the 
administrative review to be conducted by staff persons working under 
the direct supervision of the MRO. While allowing this delegation of 
MRO responsibility, the DOT never intended nor can it condone a 
practice which allows for MROs to appoint outside ``agents'' to perform 
this review. The

[[Page 16379]]

MRO should have a direct supervisory relationship with the reviewer and 
not simply have access to the ``process'' of the administrative review. 
Conversely, a C/TPA cannot contract for the MRO to review only positive 
drug test results, leaving the review or processing of negatives to the 
C/TPA.
    Question 5: May a C/TPA act as an agent of the MRO for the purpose 
of conducting administrative reviews of all negative urine drug test 
results and receive drug testing results directly from the laboratory?
    Guidance: No. The DOT never intended nor can it condone a practice 
which allows MROs to appoint outside agents to conduct such reviews. 
Additionally, Sec. 40.29(g) requires that all drug test results be 
transmitted by the laboratory directly to the MRO. Transmission to the 
MRO means to the MRO's place of business and not to a subsidiary or 
contractor for the MRO. There is also the requirement that, regardless 
of what forms/records a consortium or third party administrator 
maintains for an employer, notification of all positive results will be 
performed by the MRO and not through or by anyone else.
    Question 6: What are the MRO's review requirements during the 
verification process when the MRO copy of the custody and control form 
is not available?
    Guidance: The MRO may complete the verification process if the 
MRO's copy of the custody and control form is not available for review. 
The MRO needs to review a copy of the chain of custody which contains 
the employee's signature. A copy may be obtained from the employee, the 
collector, or the employer. These copies have the employee's signature.
    The preamble to part 40 (Medical Officer Issues) published on 
December 1, 1989 requires the MRO not to declare a verified positive 
result until he or she receives the hard copy of the original chain of 
custody form from the laboratory. This is because, prior to determining 
that the test is a verified positive, the MRO verifies the identifying 
information and the facial completeness of the chain of custody (i.e., 
determines that, on the face of the document, all the sign-offs are in 
the right places).
    Question 7: Does the MRO have to verify each drug when the 
laboratory reports a multiple positive drug test results for the same 
individual under the DOT drug and alcohol rule?
    Guidance: Section 40.33(a) states ``Medical review officer shall 
review confirmed positive results.'' The DOT drug rule requires 
analysis of urine for five drugs. Multiple drug positive results for 
the same specimen (donor) require the MRO to verify each reported drug 
to determine if there is a medical explanation for each positive 
result. Additionally, the DOT drug and alcohol management information 
system requests information on multiple drug results (for each 
individual). The intent is to capture this information.
    However, in the preemployment process, it would appear that with 
the employer's consent, the MRO may report a verified positive result 
for one drug out of several laboratory positive results (for one 
individual) without continuing to seek verification for the other drugs 
reported by the laboratory. The MRO may need to use his/her 
professional judgement to determine if verification of the other drugs 
may be accomplished expeditiously. Regardless of the number of drugs 
that are reported as verified for one individual, that individual 
cannot perform safety-sensitive work until he/she provides a urine 
specimen that is negative.
    In the case where the MRO verifies and reports only one drug, the 
other drugs should not be reported to the employer if they have not 
been verified. The MRO may document these unverified positive results 
in his/her records as unverified and unreported results.
    Question 8: Is a company obligated to pay for the processing of a 
split urine specimen when the primary specimen is positive? Does a 
company have to pay for testing the split specimen if it was a pre-
employment test?
    Guidance: The split sample procedure is a statutory requirement of 
the Omnibus Transportation Employee Testing Act of 1991 for employers 
in the aviation, highway, rail, and transit industries, as well as the 
DOT rules. Section 40.3 states, in part: ``Employee. An individual 
designated in a DOT agency regulation as subject to drug testing and/or 
alcohol testing. As used in this part ``employee'' includes an 
applicant for employment.'' And Sec. 40.33(f) states, in part: ``If the 
employee requests an analysis of the split specimen within 72 hours of 
having been informed of a verified positive test, the MRO shall direct, 
in writing, the laboratory to provided the split specimen to another 
DHHS-certified laboratory for analysis.'' In other words, if the 
applicant or employee makes the request within this time period, the 
split specimen must be tested. This is true of all types of tests, 
including pre-employment.
    The employer is responsible for ensuring that the test occurs, 
including taking responsibility for paying for it. The employer may 
arrange with the applicant or employee for reimbursement, but in no 
case does the refusal by the applicant or employee to contribute to the 
cost of the test excuse the employer from ensuring that the test takes 
place. A previous agreement negotiated between the employee and 
employer or a labor-management agreement that specifies payment 
arrangements, could dictate the ultimate payment source.
    The split specimen testing process, initiated by the MRO's written 
request, should not be delayed while awaiting payment to come from the 
applicant or employee. If there is a dispute, the fall-back position 
would be for the employer to be billed (by either the primary 
laboratory for sending the split specimen, or the receiving laboratory 
for testing the split specimen) and then for the employer to settle the 
matter after-the-fact with the applicant or employee.
    Question 9: When may the MRO notify an employer of a positive drug 
test result?
    Guidance: The MRO may not notify the employer of a positive test 
until he/she has verified the test as positive. Verification requires 
that the MRO review the chain of custody documentation, contact the 
employee, review any documentation of a legitimate medical explanation 
for a positive test, and determine that the positive resulted from 
unauthorized use of a controlled substance. The MRO is not required to 
delay verification pending the outcome of the reanalysis or the split 
specimen. Only upon verification shall the MRO notify the employer of 
the positive result, and the employer shall then remove the employee 
from the safety-sensitive duties/position. Once having received notice 
of a verified positive result from the MRO, the employer shall not 
delay removal of the employee from safety-sensitive duties pending the 
outcome of the reanalysis or the split specimen.
    Question 10: Must the MRO report to employers be in writing
    Guidance: Part 40 does not require the MRO to provide written 
notification to employers of verified drug test results. The FHWA, 
however, does require MROs to forward a signed, written notification to 
the employer within three business days of the completion of the MRO's 
review for both positive and negative results. A legible photocopy of 
the fourth copy of the Federal Drug Testing Custody and Control Form 
required by part 40 appendix A may be used to make the signed, written 
notification to the employer for all test results (positive, negative, 
canceled, etc.), provided that the controlled

[[Page 16380]]

substance(s) verified as positive, and the MRO's signature, shall be 
legibly noted in the remarks section of step 8 of the form completed by 
the MRO.
    Question 11: May an MRO use part 2 of drug testing custody and 
control form to report negative results?
    Guidance: No. The MRO should not provide the employer with a copy 
of the custody and control form bearing the results from the 
laboratory. Often, positive results reported by the laboratory are 
determined by the MRO to be explained by authorized medical use of a 
substance, and thus are verified and reported negative. Employers are 
not permitted to have the laboratory information, only the MRO's 
determination.
    Question 12: Please explain an MRO's review of negative results.
    Guidance: The duties of the MRO with respect to reviewing negative 
urine drug test results are strictly administrative, but must include a 
review of the drug testing custody and control form prior to releasing 
the results to the employer. This is necessary to substantiate that the 
reported negative result is correctly identified with the donor and to 
ensure that the form is complete and sufficient on its face 
(Sec. 40.33(a) (1-2)). While the DOT, through interpretation, has 
permitted the administrative review to be conducted by a staff person 
working under the direct supervision of the MRO, the requirement to 
conduct the review in accordance with current regulations remains in 
effect.
    Question 13: Please explain MRO verification of opiate positives.
    Guidance: The MRO verification process of any positive laboratory 
report requires several specific actions. These include a review of the 
drug testing custody and control form for completeness and accuracy, 
notifying and providing the donor an opportunity to discuss the 
results, reviewing the donor's medical history and medical records, and 
investigating other biomedical factors that may account for the 
positive result.
    The above actions are especially important when the MRO is 
confronted with an opiate positive, as the result may be caused by the 
use of a legally prescribed medication or an ingested substance, such 
as poppy seeds. Using the above steps as a guide, the MRO first ensures 
that the drug testing custody and control form is complete and accurate 
on its face. Next, the MRO notifies the donor of the positive test 
result and offers the individual an opportunity to discuss the results. 
If the donor expressly declines the opportunity to discuss the test 
results, or fails to contact the MRO within five days after being 
notified by a designated employer representative to do so, the MRO may 
verify the laboratory test result as a positive. This includes results 
that are positive for opiates.
    If the donor accepts the opportunity to discuss the results with 
the MRO, the MRO must review any medical records provided by the donor 
to determine if the opiate positive resulted from a legally prescribed 
medication. If the donor is unable to produce medical evidence and 
admits to unauthorized use of an opiate, the MRO should verify the 
result as a positive. However, if the donor is unable to produce 
medical evidence, denies unauthorized use of an opiate, or denies using 
another individual's medication, the MRO must determine that there is 
clinical evidence--in addition to the urine test--of unauthorized use 
of any opium, opiate, or opium derivative before verifying the test 
result as positive. Examples of clinical evidence include recent needle 
tracks or behavioral or psychological signs of acute opiate 
intoxication or withdrawal. If a laboratory confirms the presence of 6-
acetylmorphine (6-AM) through a GC/MS test, no clinical evidence is 
necessary, since 6-AM is a direct deacetylated metabolite of heroin, 
detectable within minutes, and its presence proves the recent use of 
heroin. If 6-AM is not found, clinical evidence will be required to 
verify a positive opiate result whether or not the donor claims poppy 
seed ingestion as a defense for the positive result.
    The verification process for an opiate positive result can be a 
very complex and very difficult task for the MRO and should be 
undertaken with a great deal of caution.
    Question 14: Please clarify the MRO/lab relationship.
    Guidance: Section 40.29(n)(6) states: ``The laboratory shall not 
enter into any relationship with an employer's MRO that may be 
construed as a potential conflict of interest or derive any financial 
benefit by having an employer use a specific MRO.'' Section 40.33(b)(2) 
further states: ``The MRO shall not be an employee of the laboratory 
conducting the drug test unless the laboratory establishes a clear 
separation of functions to prevent any appearance of a conflict of 
interest, including assuring that the MRO has no responsibility for, 
and is not supervised by or the supervisor of, any persons who have 
responsibility for the drug testing or quality control operations of 
the laboratory.'' Therefore, the rule prohibits an employer-employee or 
contract relationship between the laboratory and the MRO, and it is 
obvious that there must be a clear separation of functions between the 
MRO and the laboratory.
    Question 15: In what situations may an MRO reopen a verification of 
a drug test?
    Guidance: Section 40.33 specifically allows the reopening of an 
MRO's verification of a confirmed positive drug test in only two 
situations. When a donor provides documentation that serious illness, 
injury, or other circumstances unavoidably prevented the employee from 
timely contacting the MRO, the MRO may conclude from the documentation 
that there is a legitimate explanation for the employee's failure to 
contact the MRO (see Sec. 40.33(c)(6)). The second situation is if 
neither the employer nor the MRO is able to contact the employee and 
the MRO declares the test result to be positive, and the employee 
subsequently provides documentation that serious illness, injury, or 
other circumstances unavoidably prevented the employee from contacting 
the MRO in a timely manner, the MRO may conclude from the documentation 
that there is a legitimate explanation for the employee's failure to 
contact the MRO (see Sec. 40.33(g)).

Section 40.35 Protection of Employee Records

    Question 1: Please clarify release of alcohol and drug test results 
with or without written authorization.
    Guidance: The rules governing release of employee test results 
(Secs. 40.35 and 40.81) permit disclosure to persons other than the 
employee, employer, or decision-maker in a lawsuit or grievance action, 
only with the written authorization of the employee. The authorization 
must be an informed consent, in that the employee fully understands the 
intended use and disclosure of the test results. Each entity's request 
for test results would require a separate authorization and must be 
specific. Specific items including the purpose of the release, specific 
test(s) to be released, the party(ies) to whom these specific results 
will be released must be included.
    Question 2: May employees be required to sign release forms for 
third-party disclosures?
    Guidance: The intent of (Secs. 40.29(g)(3), 40.35 and 40.37) is to 
ensure confidentiality of employee drug test results. Employees cannot 
be required to sign release or consent statements for third-party 
disclosure as part of the drug testing process. Information concerning 
the drug test may be released by the employer in

[[Page 16381]]

unemployment or workmen's compensation proceedings, or other situations 
in which the employee is seeking a benefit or challenges an action 
taken by the employer as a result of a drug test.
    It should be noted, however, that employers are required to request 
written authorization from CMV drivers to obtain past verified positive 
drug test results, refusals to test, and alcohol concentrations of 0.04 
or greater over the past 2 years of driving a CMV (Secs. 382.405(f) and 
382.413(a)).

Section 40.39  Use of DHHS-Certified Laboratories

    Question 1: May additional testing be conducted on a DOT specimen 
reported by the laboratory as negative?
    Guidance: Section 2.4(e)(3) of the Department of Health and Human 
Service's Mandatory Guidelines for Federal Workplace Drug Testing 
Programs states, ``Specimens that test negative on all initial 
immunoassay tests shall be reported as negative. No further testing of 
those negative specimens for drugs is permitted and the specimens shall 
be either discarded or pooled for use in the laboratory's internal 
quality control program.''
    The DOT requires use of DHHS-certified laboratories to do all DOT-
required testing. Therefore, the above DHHS requirement is a DOT 
requirement as well. When a DOT specimen is reported as negative by the 
laboratory, no additional testing of the specimen is permissible.
    Question 2: Why use DHHS-certified laboratories?
    Guidance: The DOT requires that all drug testing mandated under the 
provisions of its drug testing rules must be conducted in DHHS-
certified laboratories. The DOT decision to use DHHS-certified 
laboratories for drug testing is mandated by statute (Omnibus 
Transportation Employee Testing Act of 1991). The DHHS standards for 
certification and the proficiency testing requirements comprise the 
most stringent laboratory accreditation program available in analytical 
forensic toxicology for urine drug testing. Additionally, the DHHS 
certification program provides for standardization of laboratory 
methodology and procedures, ensuring equal treatment of all specimens 
analyzed. Finally, the use of DHHS-certified laboratories provides a 
standard that has withstood the test of legal challenges in Federal 
drug testing.

Section 40.69  Inability To Provide an Adequate Amount of Breath

    Question 1: If an employee is unable to provide an amount of breath 
sufficient to permit a valid breath test, but does not allege that such 
inability is due to a medical condition, what actions must follow?
    Guidance: The rules prohibit a covered employee from refusing to 
submit to required alcohol tests. Post-accident, random, reasonable 
suspicion, or follow-up tests must be taken when those tests are 
required. Section 40.69 sets forth the procedures to be followed when 
an employee is unable to provide an adequate amount of breath for any 
reason. These procedures apply to the employee who claims a particular 
medical condition is creating the inability to provide breath; they 
also apply to the employee who claims to have no idea as to the cause 
of the inability, or to the employee who says nothing at all.
    It is imperative that the employee understands that during the 
required follow-on medical evaluation, the physician will concentrate 
solely on finding a medical condition to explain the inability. 
Paragraphs (d)(2)(i) and (d)(2)(ii) of Sec. 40.69 dictate that the only 
acceptable reason for an employee to be unable to provide an adequate 
amount of breath for testing is a medical condition. If a medical 
condition is not found, the employee will be deemed to have refused 
testing.

Section 40.81  Availability and Disclosure of Alcohol Testing 
Information About Individual Employees

    Question 1: If there is one or more BAT working for a company, does 
the BAT supervisor have the right to review (have access to) the Breath 
Alcohol Testing Forms for purposes of supervisory control? Likewise, 
may this form be passed along by the BAT or the employer to billing 
personnel?
    Guidance: The rule holds employers responsible for implementation 
of the total program. This includes confidentiality of information and 
maintenance of records (including BAT and MRO records). Individuals 
such as supervisors of BATs and billing personnel with a ``need to 
know'' are considered authorized company personnel and are permitted to 
have access to breath alcohol testing documentation. Access to 
information would be for a specific purpose and necessary for the 
employer's successful implementation of the program. This would include 
review of the forms for completion, obtaining specific billing data 
from the forms, filing the forms, etc. Individuals with access to these 
forms are under the same regulatory requirements for maintaining 
confidentiality of these records as are employers and BATs. Breath 
Alcohol Testing Forms should not be duplicated for purposes of 
supervision or billing as this would create additional ``data bases'' 
or files with potential problems of disclosure of confidential 
information. Access to these records by unauthorized personnel would be 
difficult to control. This does not preclude use of input forms filled 
out by the BAT or other personnel that would contain appropriate 
billing data and which could be maintained as backup documentation.
    When the employer uses a C/TPA to act as the agent of the employer, 
then that C/TPA could have access to the Breath Alcohol Testing Form or 
the authority to obtain a copy of the form. Likewise, the employer's 
copy of the form may be submitted to the C/TPA by the employer or by 
the BAT when the employer has directed the BAT in writing to do so. In 
all cases of positive results at or above the .02 BAC level, the 
employer must be notified immediately, and prior to notification of the 
C/TPA. Positive results may not be sent from the BAT to the C/TPA and 
then submitted to the employer.

Section 40.93  The Screening Test Technician

    Question 1: May an STT become trained to proficiency on an 
evidential breath tester (EBT) for the purposes of conducting screening 
tests on that device?
    Guidance: No. Section 40.93 only authorizes the STT to operate an 
alcohol screening device (ASD); it does not authorize the STT to 
operate an EBT. This was by design. Likewise, the STT training manual 
does not address the use of an EBT by the STT. This is in contrast with 
the training manual for the BAT which concentrates solely on the EBT; 
in fact, an entire unit in the BAT training manual is devoted to ``EBT 
Methodology.'' Additionally, the proficiency requirements for the ASD, 
as contained in the STT manual, are different from the proficiency 
requirements for the EBT, as contained in the BAT manual.
    When an EBT is used to conduct a DOT alcohol test, the operator 
must be a BAT. An STT is limited to conducting only the alcohol 
screening test, and the only instrument the STT may use is an ASD.
Special Topics--Requirements for Random Testing
    Question 1: Please explain the random testing rates for alcohol and 
drugs.
    Guidance: The DOT drug testing rules require employers initially to 
conduct

[[Page 16382]]

random drug testing at a rate equal to 50 percent of their covered 
employees. Thus, if an employer has 100 covered employees, the employer 
must administer 50 random drug tests. The number of random tests is 
determined by the covered employee population, while the number of 
employees randomly tested varies depending on the random selection 
process. It is possible that 50 random tests may be conducted on less 
than 50 employees, some employees being tested two or more times due to 
the random selection of donors. The highway industry may be allowed to 
reduce the annual rate to 25 percent in calendar year 1998 based on the 
highway industry's performance in calendar years 1995 and 1996. The 
rate may be lowered to 25 percent based on two years of data reported 
to FHWA indicating a positive rate of less than 1.0 percent use of 
drugs by CMV drivers. The rate may increase again, however, to 50 
percent based on one year of data reported to FHWA indicating a 
positive rate equal to or greater than 1.0 percent use of drugs by CMV 
drivers.
    The alcohol testing rules require employers initially conduct 
random testing at a rate equal to 25 percent of their covered 
employees. Thus, if an employer has 100 covered employees, the employer 
must administer 25 random drug tests. The number of random tests is 
determined by the covered employee population, while the number of 
employees randomly tested varies depending on the random selection 
process. It is possible that 25 random tests may be conducted on less 
than 25 employees, some employees being tested two or more times due to 
the random selection of donors. The highway industry may be allowed to 
reduce the annual rate to 10 percent in calendar year 1999 based on the 
highway industry's performance in calendar years 1996 and 1997. The 
rate may be lowered to 10 percent based on two years of data reported 
to FHWA indicating a violation rate of less than 0.5 percent use of 
alcohol by CMV drivers. The highway industry would be required to raise 
the annual rate to 50 percent in calendar year 1998 or later years 
based on the highway industry's performance in calendar year 1996 or 
later years. The rate may increase to 50 percent based on one year of 
data reported to FHWA indicating a violation rate of is equal to or 
greater than 1.0 percent use of alcohol by CMV drivers.
    Question 2: Is use of a consortium to conduct random testing 
allowed?
    Guidance: The FHWA requires individual owner-operators to be in a 
random testing pool of two or more persons. This, in effect, requires 
an individual owner-operator to be in a consortium for random testing 
purposes. The DOT allows and even advocates the use of a consortium to 
assist smaller companies in complying with the alcohol and drug testing 
regulations. While it is true that in a combined employer pool, some 
employers will have a higher percentage of their employees selected for 
testing than others in a given 12-month period, over time this will 
even out. Additionally, the DOT believes that the deterrent effect of 
random drug testing remains as powerful in a combined employers pool as 
it would be in a stand-alone single company pool. With this in mind, 
the DOT has determined that combining employer pools within a 
consortium meets the spirit and intent of the alcohol and drug testing 
regulations and is, therefore, permissible.
    Question 3: May an employer combine DOT and non-DOT random pools?
    Guidance: No. While it would seem to be advantageous for an 
employer to combine all employees into one random testing pool, this 
move could dilute the number of DOT-covered employees who would 
actually be tested. For example, in a pool that is comprised of 50 DOT-
covered employees and 50 non-DOT-covered employees, and assuming a 
testing rate of 50 percent, it is possible that no DOT-covered 
employees would be tested (100 employees, 50 tests, all 50 tests 
conducted on non-DOT employees). The likelihood of this happening, 
albeit remote, is possible under a truly random scheme. On the other 
hand, keeping the above two classes of employees in separate pools 
assures that at least 25 of the tests conducted by the company will be 
conducted on DOT-covered employees. It is this assurance that 
ultimately mandates that DOT-covered employees remain in separate 
random pools.
    Question 4: May an employer combine employees covered by different 
operating administration rules into a single pool for random testing?
    Guidance: The DOT has determined that it is, indeed, permissible 
for an employer to combine covered employees from different operating 
administrations (e.g. Research and Special Programs Administration, 
Coast Guard, and FHWA), into a single selection pool for the purpose of 
conducting random drug testing under DOT authority. When exercising 
this option, however, the employer must ensure that the random testing 
rate is at least equal to the highest rate required by each of the 
operating administrations.
    Question 5: Is it permissible to separate union and non-union 
employees, both covered by DOT, into stand-alone pools?
    Guidance: The DOT has determined that it is permissible for an 
employer to separate union and non-union employees into separate pools 
for the purpose of random drug testing. If using this approach, the 
employer must ensure that employees from each pool are tested at equal 
rates. For example, if pool ``A'' consists of 50 non-union employees 
and pool ``B'' consists of 300 union employees, the employer must 
ensure, if testing is done at a 50 percent rate, that 25 tests are 
conducted annually on employees from pool ``A'' and that 150 tests are 
conducted annually on employees from pool ``B.''
Special Topics--Procedures for Handling and Processing a Split Specimen
    Question: Describe the proper handling and processing of a split 
specimen.
    Guidance: ``Where the employer has used the split sample method, 
and the laboratory observes that the split sample is untestable, 
inadequate, or unavailable for testing, the laboratory shall 
nevertheless test the primary specimen. The laboratory does not inform 
the MRO or the employer of the untestability, inadequacy, or 
unavailability of the split specimen until and unless the primary 
specimen is a verified positive test and the MRO has informed the 
laboratory that the employee has requested a test of the split 
specimen.'' (Sec. 40.29(b)(1)(ii))
    ``In situations where the employer uses the split sample collection 
method, the laboratory shall log in the split specimen, with the split 
specimen bottle seal remaining intact.'' (Sec. 40.29(b)(2))
    ``When directed in writing by the MRO to forward the split specimen 
to another DHHS-certified laboratory for analysis, the second 
laboratory shall analyze the split specimen by GC/MS to reconfirm the 
presence of the drug(s) or drug metabolite(s) found in the primary 
specimen.'' (Sec. 40.29(b)(3))
    ``If the employee requests an analysis of the split specimen within 
72 hours of having been informed of a verified positive test, the MRO 
shall direct, in writing, the laboratory to provide the split specimen 
to another DHHS-certified laboratory for analysis. If the analysis of 
the split specimen fails to reconfirm the presence of the drug(s) or 
drug metabolite(s) found in the specimen, or if the split specimen is 
unavailable, inadequate for testing or untestable, the MRO shall cancel 
the test and report cancellation and the

[[Page 16383]]

reasons for it to the DOT, the employer, and the employee.'' 
(Sec. 40.33(f))
    If the primary laboratory does not receive a split specimen with 
the primary, or the split specimen is leaking, or the split specimen's 
seal is broken, or has any other problem that would make it unavailable 
for testing, the primary laboratory must still process the primary 
specimen as if there were no problems with the split specimen. The 
laboratory should not bring any split specimen deficiency to the 
attention of the MRO at this time. (Sec. 40.29(b)(1)(ii))
    The seal on the split specimen must remain intact--just as the 
split specimen was sealed at the collection site. (Sec. 40.29(b)(2))
    The MRO will direct the primary laboratory to forward the split 
specimen to a second DHHS-certified laboratory. At the second DHHS-
certified laboratory, the split specimen shall only be used to 
reconfirm the presence of the drug(s) or drug metabolite(s) found in 
the primary specimen. (Sec. 40.29(b)(3))
    Only a request from the employee can authorize the MRO to initiate 
the forwarding of the split specimen to the second DHHS-certified 
laboratory for analysis. (Sec. 40.33(f))

PART 325--COMPLIANCE WITH INTERSTATE MOTOR CARRIER NOISE EMISSION 
STANDARDS

Sections Interpreted

325.1

Section 325.1  Scope Of The Rules In This Part

    Question 1: What noise emission requirements are applicable to 
auxiliary generators?
    Guidance: Auxiliary generators which normally operate only when a 
CMV is stopped or moving at 5 mph or less are ``auxiliary equipment'' 
of the kind contemplated by EPA and are, therefore, exempt from the 
noise limits in Part 325. However, noise from generators that run while 
the CMV is moving at higher speeds would be measured as part of total 
vehicle noise.
    Question 2: Do refrigeration units on tractor-trailer combinations 
fall within the exemption listed in part 325, subpart A of the FMCSRs?
    Guidance: No.

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

Sections Interpreted

382.103  Applicability
382.105  Testing Procedures
382.107  Definitions
382.109  Preemption of State and Local Laws
382.113  Requirement for Notice
382.115  Starting Date for Testing Programs
382.205  On-Duty Use
382.213  Controlled Substances Use
382.301  Pre-employment Testing
382.303  Post-accident Testing
382.305  Random Testing
382.307  Reasonable Suspicion Testing
382.401  Retention of Records
382.403  Reporting of Results in a Management Information System
382.405  Access to Facilities and Records
382.413  Release of Alcohol and Controlled Substances Test 
Information by Previous Employers
382.501  Removal From Safety-Sensitive Functions
382.507  Penalties
382.601  Motor Carrier Obligation to Promulgate a Policy on the 
Misuse of Alcohol and Use of Controlled Substances
382.603  Training for Supervisors
382.605  Referral, Evaluation, and Treatment

Subpart B--Prohibitions

Special Topics--Responsibility for Payment for Testing
Special Topics--Multiple Service Providers
Special Topics--Medical Examiners Acting as MRO
Special Topics--Biennial (Periodic) Testing Requirements

Section 382.103  Applicability

    Question 1: Are intrastate drivers of CMVs, who are required to 
obtain CDLs, required to be alcohol and drug tested by their employer?
    Guidance: Yes. The definition of commerce in 382.107 is taken from 
49 U.S.C. Sec. 31301 which encompasses interstate, intrastate and 
foreign commerce.
    Question 2: Are students who will be trained to be motor vehicle 
operators subject to alcohol and drug testing? Are they required to 
obtain a CDL in order to operate training vehicles provided by the 
school?
    Guidance: Yes. Section 382.107 includes the following definitions:
    Employer means any person (including the United States, a State, 
District of Columbia or a political subdivision of a State) who owns or 
leases a CMV or assigns persons to operate such a vehicle. The term 
employer includes an employer's agents, officers and representatives.
    Driver means any person who operates a CMV.
    Truck and bus driver training schools meet the definition of an 
employer because they own or lease CMVs and assign students to operate 
them at appropriate points in their training. Similarly, students who 
actually operate CMVs to complete their course work qualify as drivers.
    The CDL regulations provide that ``no person shall operate'' a CMV 
before passing the written and driving tests required for that vehicle 
(49 CFR 383.23(a)(1)). Virtually all of the vehicles used for training 
purposes meet the definition of a CMV, and student drivers must 
therefore obtain a CDL.
    Question 3: Are part 382 alcohol and drug testing requirements 
applicable to firefighters in a State which gives them the option of 
obtaining a CDL or a non-commercial class A or B license restricted to 
operating fire equipment only?
    Guidance: No. The applicability of part 382 is coextensive with 
part 383--the general CDL requirements. Only those persons required to 
obtain a CDL under Federal law and who actually perform safety-
sensitive duties, are required to be tested for drugs and alcohol.
    The FHWA, exercising its waiver authority, granted the States the 
option of waiving firefighters from CDL requirements. A State which 
gives firefighters the choice of obtaining either a CDL or a non-
commercial license has exercised the option not to require CDLs. 
Therefore, because a CDL is not required, by extension part 382 is not 
applicable.
    A firefighter in the State would not be required under Federal law 
to be tested for drugs and alcohol regardless of the type of license 
which the employer required as a condition of employment or the driver 
actually obtained. It is the Federal requirement to obtain a CDL, 
nonexistent in the State, that entails drug and alcohol testing, not 
the fact of actually holding a CDL.
    Question 4: An employer or State government agency requires CDLs 
for drivers of motor vehicles: (1) with a GVWR of 26,000 pounds or 
less; (2) with a GCWR of 26,000 pounds or less inclusive of a towed 
unit with a GVWR of 10,000 pounds or less; (3) designed to transport 15 
or less passengers, including the driver; or (4) which transport HM, 
but are not required to be placarded under 49 CFR part 172, subpart F. 
Are such drivers required by part 382 to be tested for the use of 
alcohol or controlled substances?
    Guidance: No. Part 382 requires or authorizes drug and alcohol 
testing only of those drivers required by part 383 to obtain a CDL. 
Since the vehicles described above do not meet the definition of a CMV 
in part 383, their drivers are not required by Federal regulations to 
have a CDL.
    Question 5: Are Alaskan drivers with a CDL who operate CMVs and 
have been waived from certain CDL requirements subject to controlled 
substances and alcohol testing?
    Guidance: Yes. Alaskan drivers with a CDL who operate CMVs are 
subject to controlled substances and alcohol

[[Page 16384]]

testing because they have licenses marked either ``commercial driver's 
license'' or ``CDL''. The waived drivers are only exempted from the 
knowledge and skills tests, and the photograph on license requirements.
    Question 6: Do the FHWA's alcohol and controlled substances testing 
regulations apply to employers and drivers in U.S. territories or 
possessions such as Puerto Rico and Guam?
    Guidance: No. The rule by definition applies only to employers and 
drivers domiciled in the 50 states and the District of Columbia.
    Question 7: Which drivers are to be included in a alcohol and 
controlled substances testing program under the FHWA's rule?
    Guidance: Any person who operates a CMV, as defined in 
Sec. 382.107, in intrastate or interstate commerce and is subject to 
the CDL requirement of 49 CFR part 383.
    Question 8: Is a foreign resident driver operating between the U.S. 
and a foreign country from a U.S. terminal for a U.S.-based employer 
subject to the FHWA alcohol and controlled substances testing 
regulations?
    Guidance: Yes. A driver operating for a U.S.-based employer is 
subject to part 382.
    Question 9: What alcohol and drug testing provisions apply to 
foreign drivers employed by foreign motor carriers?
    Guidance: Foreign employers are subject to the alcohol and drug 
testing requirements in part 382 (see Sec. 382.103). All provisions of 
the rules will be applicable while drivers are operating in the U.S. 
Foreign drivers may also be subject to State laws, such as probable 
cause testing by law enforcement officers.

Section 382.105  Testing Procedures

    Question 1: What does a BAT do when a test involves an independent, 
self-employed owner-operator with a confirmed alcohol concentration of 
0.02 or greater, to notify a company representative as required by 
Sec. 40.65(i)?
    Guidance: The independent, self-employed owner-operator will be 
notified by the BAT immediately and the owner-operator's certification 
in Step 4 notes that the self-employed owner-operator has been 
notified. No further notification is necessary. The BAT will provide 
copies 1 and 2 to the self-employed owner-operator directly.
    Question 2: A driver does not have a photo identification card. 
Must an employer representative identify the driver in the presence of 
the BAT/urine specimen collector or may the employer representative 
identify the driver via a telephone conversation?
    Guidance: Those subject to part 382 are subject first, generally, 
to part 383. Part 383 requires all States, with an exception in Alaska 
for a very small group of individuals, to provide a CDL document to the 
individual that includes, among other things: the full name, signature, 
and mailing address of the person to whom such license is issued; 
physical and other information to identify and describe the person 
including date of birth (month, day, and year), sex, and height; and, a 
color photograph of the person. Except in these rare Alaskan instances, 
the FHWA fully expects most employer's to require the driver to present 
the CDL document to the BAT or urine collector.
    A driver subject to alcohol and drug testing should be able to 
provide the CDL document. In those rare instances that the CDL or other 
form of photo identification is not produced for verification, an 
employer representative must be contacted and must provide 
identification. The FHWA will allow employer representatives to 
identify drivers in any way that the employer believes will positively 
identify the driver.
    Question 3: Will foreign drug testing laboratories need to be 
certified by the National Institute on Drug Abuse (NIDA)? Will they 
need to be certified by the Department of Health and Human Services 
(DHHS)?
    Guidance: The NIDA, an agency of the DHHS, no longer administers 
the workplace drug testing laboratory certification program. This 
program is now administered by the DHHS' Substance Abuse and Mental 
Health Services Administration. All motor carriers are required to use 
DHHS-certified laboratories for analysis of alcohol and controlled 
substances tests as neither Mexico nor Canada has an equivalent 
laboratory certification program.
    Question 4: Particularly in light of the coverage of Canadian and 
Mexican employees, how should MROs deal, in the verification process, 
with claims of the use of foreign prescriptions or over-the-counter 
medication?
    Guidance: Possession or use of controlled substances are prohibited 
when operating a CMV under the FHWA regulations regardless of the 
source of the substance. A limited exception exists for a substance's 
use in accordance with instructions provided by a licensed medical 
practitioner who knows that the individual is a CMV driver who operates 
CMVs in a safety-sensitive job and has provided instructions to the CMV 
driver that the use of the substance will not affect the CMV driver's 
ability to safely operate a CMV (see Secs. 382.213, 391.41(b)(12), and 
392.4(c)). Individuals entering the United States must properly declare 
controlled substances with the U.S. Customs Service. 21 CFR 1311.27.
    The FHWA expects MROs to properly investigate the facts concerning 
a CMV driver's claim that a positive controlled substance test result 
was caused by a prescription written by a knowledgeable, licensed 
medical practitioner or the use of an over-the-counter substance that 
was obtained in a foreign country without a prescription. This 
investigation should be documented in the MRO's files.
    If the CMV driver lawfully obtained a substance in a foreign 
country without a prescription which is a controlled substance in the 
United States, the MRO must also investigate whether a knowledgeable, 
licensed medical practitioner provided instructions to the CMV driver 
that the use of the ``over-the-counter'' substance would not affect the 
driver's ability to safely operate a CMV.
    Potential violations of Sec. 392.4 must be investigated by the law 
enforcement officer at the time possession or use is discovered to 
determine whether the exception applies.

Sections 382.107  Definitions

    Question 1: What is an owner-operator?
    Guidance: The FHWA neither defines the term ``owner-operator'' nor 
uses it in regulation. The FHWA regulates ``employers'' and 
``drivers.'' An owner-operator may act as both an employer and a driver 
at certain times, or as a driver for another employer at other times 
depending on contractual arrangements and operational structure.

Section 382.109  Preemption Of State And Local Laws

    Question 1: An employer is required by State or local law, 
regulation, or order to bargain with unionized employees over 
discretionary elements of the DOT alcohol and drug testing regulations 
(e.g., selection of DHHS-approved laboratories or MROs). May the 
employer defer the 1995 or 1996 implementation dates for testing 
employees until the collective bargaining process has produced 
agreement on these discretionary elements, or must the employer 
implement testing as required by part 382?
    Guidance: The FHWA provided large employers 45 weeks and small 
employers 97 weeks collectively to bargain the discretionary elements 
of

[[Page 16385]]

the part 382 testing program. An employer must implement alcohol and 
controlled substances testing in accordance with the schedule in 
Sec. 382.115. If observance of the collective bargaining process would 
make it impossible for the employer to comply with these deadlines, 
Sec. 382.109(a)(1) preempts the State or local bargaining requirement 
to the extent needed to meet the implementation date.

Section 382.113  Requirement For Notice

    Question 1: Must a notice be given before each test or will a 
general notice given to drivers suffice?
    Guidance: A driver must be notified before submitting to each test 
that it is required by part 382. This notification can be provided to 
the driver either verbally or in writing. In addition, the FHWA 
believes that the use of the DOT Breath Alcohol Testing Form, OMB No. 
2105-0529, and the Drug Testing Custody and Control Form, 49 CFR part 
40, appendix A, will support the verbal or written notice that the test 
is being conducted in accordance with Part 382.

Section 382.115  Starting Date For Testing Programs

    Question 1: In a governmental entity structured into various 
subunits such as departments, divisions, and offices, how is the number 
of an employer's drivers determined for purposes of the implementation 
date of controlled substances and alcohol testing?
    Guidance: Part 382 testing applies to governmental entities, 
including those of the Federal government, the States, and political 
subdivisions of the States. An employer is defined as any person that 
owns or leases CMVs, or assigns drivers to operate them. Therefore, any 
governmental entity, or a subunit of it that controls CMVs and the day-
to-day operations of its drivers, may be considered the employer for 
purposes of part 382. For example, a city government divided into 
various departments, such as parks and public works, could consider the 
departments as separate employers if the CMV operations are separately 
controlled. The city also has the option of deeming the city as the 
employer of all of the drivers of the various departments.

Section 382.205  On-duty Use

    Question 1: What is meant by the terms ``use alcohol'' or ``alcohol 
use?'' Is observation of use sufficient or is an alcohol test result 
required?
    Guidance: The term ``alcohol use'' is defined in Sec. 382.107. The 
employer is prohibited in Sec. 382.205 from permitting a driver to 
drive when the employer has actual knowledge of the driver's use of 
alcohol, regardless of the level of alcohol in the driver's body. The 
form of knowledge is not specified. It may be obtained through 
observation or other method.

Section 382.213  Controlled Substances Use

    Question 1: Must a physician specifically advise that substances in 
a prescription will not adversely affect the driver's ability to safely 
operate a CMV or may a pharmacist's advice or precautions printed on a 
container suffice for the advice?
    Guidance: A physician must specifically advise the driver that the 
substances in a prescription will not adversely affect the driver's 
ability to safely operate a CMV.

Section 382.301  Pre-Employment Testing

    Question 1: What is meant by the phrase, ``an employer who uses, 
but does not employ, a driver * * * ?'' Describe a situation to which 
the phrase would apply.
    Guidance: This exception was contained in the original drug testing 
rules and was generally applied to ``trip-lease'' drivers involved in 
interstate commerce. A trip-lease driver is generally a driver employed 
by one motor carrier, but who is temporarily leased to another motor 
carrier for one or more trips generally for a time period less than 30 
days. The phrase would also apply to volunteer organizations that use 
loaned drivers.
    Question 2: Must school bus drivers be pre-employment tested after 
they return to work after summer vacation in each year in which they do 
not drive for 30 consecutive days?
    Guidance: A school bus driver whom the employer expects to return 
to duty the next school year does not have to be pre-employment tested 
so long as the driver has remained in the random selection pool over 
the summer. There is deemed to be no break in employment if the driver 
is expected to return in the fall.
    On the other hand, if the driver is taken out of all DOT random 
pools for more than 30 days, the exception to pre-employment drug 
testing in Sec. 382.301 would be unavailable and a drug test would have 
to be administered after the summer vacation.
    Question 3: Is a pre-employment controlled substances test required 
if a driver returns to a previous employer after his/her employment had 
been terminated?
    Guidance: Yes. A controlled substances test must be administered 
any time employment has been terminated for more than 30 days and the 
exceptions under Sec. 382.301(c) were not met.
    Question 4: Must all drivers who do not work for an extended period 
of time (such as layoffs over the winter or summer months) be pre-
employment drug tested each season when they return to work?
    Guidance: If the driver is considered to be an employee of the 
company during the extended (layoff) period, a pre-employment test 
would not be required so long as the driver has been included in the 
company's random testing program during the layoff period. However, if 
the driver was not considered to be an employee of the company at any 
point during the layoff period, or was not covered by a program, or was 
not covered for more than 30 days, then a pre-employment test would be 
required.
    Question 5: What must an employer do to avail itself of the 
exceptions to pre-employment testing listed under Sec. 382.301(c)?
    Guidance: An employer must meet all requirements in Sec. 382.301(c) 
and (d), including maintaining all required documents. An employer must 
produce the required documents at the time of the Compliance Review for 
the exception to apply.
    Question 6: May a CDL driving skills test examiner conduct a 
driving skills test administered in accordance with 49 CFR part 383 
before a person subject to part 382 is tested for alcohol and 
controlled substances?
    Guidance: Yes. A CDL driving skills test examiner, including a 
third party CDL driving skills test examiner, may administer a driving 
skills test to a person subject to part 382 without first testing him/
her for alcohol and controlled substances. The intent of the CDL 
driving skills test is to assess a person's ability to operate a 
commercial motor vehicle during an official government test of their 
driving skills. However, this guidance does not allow an employer 
(including a truck or bus driver training school) to use a person as a 
current company, lease, or student driver prior to obtaining a verified 
negative test result. An employer must obtain a verified negative 
controlled substance test result prior to dispatching a driver on his/
her first trip.

Section382.303  Post-Accident Testing

    Question 1: Why does the FHWA allow post-accident tests done by 
Federal, State or local law enforcement agencies to substitute for a 
Sec. 382.303 test even though the FHWA does not allow a Federal, State 
or local law

[[Page 16386]]

enforcement agency test to substitute for a pre-employment, random, 
reasonable suspicion, return-to-duty, or follow-up test? Will such 
substitutions be allowed in the future?
    Guidance: A highway accident is generally investigated by a 
Federal, State, or local law enforcement agency that may determine that 
probable cause exists to conduct alcohol or controlled substances 
testing of a surviving driver. The FHWA believes that testing done by 
such agencies will be done to document an investigation for a charge of 
driving under the influence of a substance and should be allowed to 
substitute for a FHWA-required test. The FHWA expects this provision to 
be used rarely.
    The FHWA is required by statute to provide certain protection for 
drivers who are tested for alcohol and controlled substances. The FHWA 
believes that law enforcement agencies investigating accidents will 
provide similar protection based on the local court's prior action in 
such types of testing.
    The FHWA will not allow a similar approach for law enforcement 
agencies to conduct testing for the other types of testing. A law 
enforcement agency, however, may act as a consortium to provide any 
testing in accordance with parts 40 and 382.
    Question 2: May an employer allow a driver, subject to post-
accident controlled substances testing, to continue to drive pending 
receipt of the results of the controlled substances test?
    Guidance: Yes. A driver may continue to drive, so long as no other 
restrictions are imposed by Sec. 382.307 or by law enforcement 
officials.
    Question 3: A commercial motor vehicle operator is involved in an 
accident in which an individual is injured but does not die from the 
injuries until a later date. The commercial motor vehicle driver does 
not receive a citation under State or local law for a moving traffic 
violation arising from the accident. How long after the accident is the 
employer required to attempt to have the driver subjected to post-
accident testing?
    Guidance: Each employer is required to test each surviving driver 
for alcohol and controlled substances as soon as practicable following 
an accident as required by Sec. 382.303. However, if an alcohol test is 
not administered within 8 hours following the accident, or if a 
controlled substance test is not administered within 32 hours following 
the accident, the employer must cease attempts to administer that test. 
In both cases the employer must prepare and maintain a record stating 
the reason(s) the test(s) were not promptly administered.
    If the fatality occurs following the accident and within the time 
limits for the required tests, the employer shall attempt to conduct 
the tests until the respective time limits are reached. The employer is 
not required to conduct any tests for cases in which the fatality 
occurs outside of the 8 and 32 hour time limits.
    Question 4: What post-accident alcohol and drug testing 
requirements are there for U.S. employer's drivers involved in an 
accident occurring outside the U.S.?
    Guidance: U.S. employers are responsible for ensuring that drivers 
who have an accident (as defined in Sec. 390.5) in a foreign country 
are post-accident alcohol and drug tested in conformance with the 
requirements of 49 CFR parts 40 and 382. If the test(s) cannot be 
administered within the required 8 or 32 hours, the employer shall 
prepare and maintain a record stating the reasons the test(s) was not 
administered (see Secs. 382.303 (b)(1) and (b)(4)).
    Question 5: What post-accident alcohol and drug testing 
requirements are there for foreign drivers involved in accidents 
occurring outside the United States?
    Guidance: Post-accident alcohol and drug testing is required for 
CMV accidents occurring within the U.S. and on segments of interstate 
movements into Canada between the U.S.-Canadian border and the first 
physical delivery location of a Canadian consignee. The FHWA further 
believes its regulations require testing for segments of interstate 
movements out of Canada between the last physical pick-up location of a 
Canadian consignor and the U.S.-Canadian border. The same would be true 
for movements between the U.S.-Mexican border and a point in Mexico.
    For example, a motor carrier has two shipments on a CMV from a 
shipper in Chicago, Illinois. The first shipment will be delivered to 
Winnipeg, Manitoba and the second to Lloydminster, Saskatchewan. A 
driver is required to be post-accident tested for any CMV accident that 
meets the requirements to conduct 49 CFR 382.303 Post-accident testing, 
that occurs between Chicago, Illinois and Winnipeg, Manitoba (the first 
delivery point). The FHWA would not require a foreign motor carrier to 
conduct testing of foreign drivers for any accidents between Winnipeg 
and Lloydminster.
    The FHWA does not believe it has authority over Canadian and 
Mexican motor carriers that operate within their own countries where 
the movement does not involve movements into or out of the United 
States. For example, the FHWA does not believe it has authority to 
require testing for transportation of freight from Prince George, 
British Colombia to Red Deer, Alberta that does not traverse the United 
States.
    If the driver is not tested for alcohol and drugs as required by 
Sec. 382.303 and the motor carrier operates in the U.S. during a four-
month period of time after the event that triggered the requirement for 
such a test, the motor carrier will be in violation of part 382 and may 
be subject to penalties under Sec. 382.507.

Section 382.305  Random Testing

    Question 1: Is a driver who is on-duty, but has not been assigned a 
driving task, considered to be ready to perform a safety-sensitive 
function as defined in Sec. 382.107 subjecting the driver to random 
alcohol testing?
    Guidance: A driver must be about to perform, or immediately 
available to perform, a safety-sensitive function to be considered 
subject to random alcohol testing. A supervisor, mechanic, or clerk, 
etc., who is on call to perform safety-sensitive functions may be 
tested at any time they are on call, ready to be dispatched while on-
duty.
    Question 2: What are the employer's obligations, in terms of random 
testing, with regard to an employee who does not drive as part of the 
employee's usual job functions, but who holds a CDL and may be called 
upon at any time, on an occasional or emergency basis, to drive?
    Guidance: Such an employee must be in a random testing pool at all 
times, like a full-time driver. A drug test must be administered each 
time the employee's name is selected from the pool.
    Alcohol testing, however, may only be conducted just before, 
during, or just after the performance of safety-sensitive functions. A 
safety-sensitive function as defined in Sec. 382.107 means any of those 
on-duty functions set forth in Sec. 395.2 On-Duty time, paragraphs (1) 
through (7), (generally, driving and related activities). If the 
employee's name is selected, the employer must wait until the next time 
the employee is performing safety-sensitive functions, just before the 
employee is to perform a safety-sensitive function, or just after the 
employee has ceased performing such functions to administer the alcohol 
test. If a random selection period expires before the employee performs 
a safety-sensitive function, no alcohol test should be given, the 
employee's name should be returned to the pool, and the number of 
employees subsequently selected should be adjusted accordingly to 
achieve the required rate.

[[Page 16387]]

    Question 3: How should a random testing program be structured to 
account for the schedules of school bus or other drivers employed on a 
seasonal basis?
    Guidance: If no school bus drivers from an employer's random 
testing pool are used to perform safety sensitive functions during the 
summer, the employer could choose to make random selections only during 
the school year. If the employer nevertheless chooses to make 
selections in the summer, tests may only be administered when the 
drivers return to duty.
    If some drivers continue to perform safety-sensitive functions 
during the summer, such as driving buses for summer school, an employer 
could not choose to forego all random selections each summer. Such a 
practice would compromise the random, unannounced nature of the random 
testing program. The employer would test all selected drivers actually 
driving in the summer. With regard to testing drivers not driving 
during the summer, the employer has two options. One, names of drivers 
selected who are on summer vacation may be returned to the pool and 
another selection made. Two, the selected names could be held by the 
employer and, if the drivers return to perform safety-sensitive 
functions before the next random selection, the test administered upon 
the drivers' return.
    Finally, it should be noted that reductions in the number of 
drivers during summer vacations reduces the average number of driving 
positions over the course of the year, and thus the number of tests 
which must be administered to meet the minimum random testing rate.
    Question 4: Are driver positions that are vacant for a testing 
cycle to be included in the determination of how many random tests must 
be conducted?
    Guidance: No. The FHWA random testing program tests employed or 
utilized drivers, not positions that are vacant.
    Question 5: May an employer use the results of another program in 
which a driver participates to satisfy random testing requirements if 
the driver is used by the employer only occasionally?
    Guidance: The rules establish an employer-based testing program. 
Employers remain responsible at all times for ensuring compliance with 
all of the rules, including random testing, for all drivers which they 
use, regardless of any utilization of third parties to administer parts 
of the program. Therefore, to use another's program, an employer must 
make the other program, by contract, consortium agreement, or other 
arrangement, the employer's own program. This would entail, among other 
things, being held responsible for the other program's compliance, 
having records forwarded to the employer's principal place of business 
on 2 days notice, and being notified of and acting upon positive test 
results.
    Question 6: Once an employee is randomly tested during a calendar 
year, is his/her name removed from the pool of names for the calendar 
year?
    Guidance: No, the names of those tested earlier in the year must be 
returned to the pool for each new selection. Each driver must be 
subject to an equal chance of being tested during each selection 
process.
    Question 7: Is it permissible to make random selections by 
terminals?
    Guidance: Yes. If random selection is done based on locations or 
terminals, a two-stage selection process must be utilized. The first 
selection would be made by the locations and the second selection would 
be of those employees at the location(s) selected. The selections must 
ensure that each employee in the pool has an equal chance of being 
selected and tested, no matter where the employee is located.
    Question 8: When a driver works for two or more employers, in whose 
random pool must the driver be included?
    Guidance: The driver must be in the pool of each employer for which 
the driver works.
    Question 9: After what period of time may an employer remove a 
casual driver from a random pool?
    Guidance: An employer may remove a casual driver, who is not used 
by the employer, from its random pool when it no longer expects the 
driver to be used.
    Question 10: If an employee is off work due to temporary lay-off, 
illness, injury or vacation, should that individual's name be removed 
from the random pool?
    Guidance: No. The individual's name should not be removed from the 
random pool so long as there is a reasonable expectation of the 
employee's return.
    Question 11: Is it necessary for an owner-operator, who is not 
leased to a motor carrier, to belong to a consortium for random testing 
purposes?
    Guidance: Yes.
    Question 12: If an employer joins a consortium, and the consortium 
is randomly testing at the appropriate rates, will these rates meet the 
requirements of the alcohol and controlled substances testing for the 
employer even though the required percent of the employer's drivers 
were not randomly tested?
    Guidance: Yes.
    Question 13: Is it permissible to combine the drivers from the 
subsidiaries of a parent employer into one pool, with the parent 
employer acting as a consortium?
    Guidance: Yes.
    Question 14: How should an employer compute the number of random 
tests to be given to ensure that the appropriate testing rate is 
achieved given the fluctuations in driver populations and the high 
turnover rate of drivers?
    Guidance: An employer should take into account fluctuations by 
estimating the number of random tests needed to be performed over the 
course of the year. If the carrier's driver workforce is expected to be 
relatively constant (i.e., the total number of driver positions is 
approximately the same) then the number of tests to be performed in any 
given year could be determined by multiplying the average number of 
driver positions by the testing rate.
    If there are large fluctuations in the number of driver positions 
throughout the year without any clear indication of the average number 
of driver positions, the employer should make a reasonable estimate of 
the number of positions. After making the estimate, the employer should 
then be able to determine the number of tests necessary.
    Question 15: May an employer or consortium include non-DOT-covered 
employees in a random pool with DOT-covered employees?
    Guidance: No.
    Question 16: Canadians believe that their laws require employer 
actions be tied to the nature of the job and the associated safety 
risk. Canadian employers believe they will have to issue alcohol and 
drug testing policies that deal with all drivers in an identical 
manner, not just drivers that cross the border into the United States. 
If a motor carrier wanted to add cross border work to an intra-Canadian 
driver's duties, and the driver was otherwise qualified under the FHWA 
rules, may the pre-employment test be waived?
    Guidance: The FHWA has long required, since the beginning of the 
drug testing program in 1988, that transferring from intrastate work 
into interstate work requires a ``pre-employment'' test regardless of 
what type of testing a State might have required under intrastate laws. 
This policy also applied to motor carriers that had a pre-employment 
testing program similar to the FHWA requirement. The FHWA believes it 
is reasonable to apply this same interpretation to the first time a 
Canadian or Mexican driver enters the United States.

[[Page 16388]]

    This policy was delineated in the Federal Register of February 15, 
1994 (59 FR 7302, at 7322). The FHWA believes motor carriers should 
separate drivers into intra-Canadian and inter-State groups for their 
policies and the random selection pools. If a driver in the intra-
Canadian group (including the random selection pool) were to take on 
driving duties into the United States, the driver would be subject to a 
pre-employment test to take on this driving task. Although the 
circumstance is not actually a first employment with the motor carrier, 
such a test would be required because it would be the first time the 
driver would be subject to part 382.

Section 382.307  Reasonable Suspicion Testing

    Question 1: May a reasonable suspicion alcohol test be based upon 
any information or observations of alcohol use or possession, other 
than a supervisor's actual knowledge?
    Guidance: No. Information conveyed by third parties of a driver's 
alcohol use may not be the only determining factor used to conduct a 
reasonable suspicion test. A reasonable suspicion test may only be 
conducted when a trained supervisor has observed specific, 
contemporaneous, articulable appearance, speech, body odor, or behavior 
indicators of alcohol use.
    Question 2: Why does Sec. 382.307(b) allow an employer to use 
indicators of chronic and withdrawal effects of controlled substances 
in the observations to conduct a controlled substances reasonable 
suspicion test, but does not allow similar effects of alcohol use to be 
used for an alcohol reasonable suspicion test?
    Guidance: The use of controlled substances by drivers is strictly 
prohibited. Because controlled substances remain present in the body 
for a relatively long period, withdrawal effects may indicate that the 
driver has used drugs in violation of the regulations, and therefore 
must be given a reasonable suspicion drug test.
    Alcohol is generally a legal substance. Only its use or presence in 
sufficient concentrations while operating a CMV is a violation of FHWA 
regulation. Alcohol withdrawal effects, standing alone, do not, 
therefore, indicate that a driver has used alcohol in violation of the 
regulations, and would not constitute reasonable suspicion to believe 
so.
    Question 3: A consignee, consignor, or other party is a motor 
carrier employer for purposes of 49 CFR parts 382 through 399. They 
have trained their supervisors in accordance with 49 CFR 382.603 to 
conduct reasonable suspicion training on their own drivers. A driver 
for another motor carrier employer delivers, picks up, or has some 
contact with the consignee's, consignor's, or other party's trained 
supervisor. This supervisor believes there is reasonable suspicion, 
based on their training, that the driver may have used a controlled 
substance or alcohol in violation of the regulations. May this trained 
consignee, consignor, or other party's supervisor order a reasonable 
suspicion test of a driver the supervisor does not supervise for the 
employing/using motor carrier employer?
    Guidance: No, the trained supervisor may not order a reasonable 
suspicion test of a driver the supervisor does not supervise for the 
employing/using motor carrier employer. Motor carrier employers may not 
conduct reasonable suspicion testing based ``on reports of a third 
person who has made the observations, because of that person's possible 
credibility problems or lack of appropriate training.''
    The trained supervisor for the consignee, consignor, or other party 
may, however, choose to do things not required by regulation, but 
encouraged by the FHWA. They may inform the driver that they believe 
the driver may have violated Federal, State, or local regulations and 
advise them not to perform additional safety-sensitive work. They may 
contact the employing/using motor carrier employer to alert them of 
their reasonable suspicion and request the employing/using motor 
carrier employer take appropriate action. In addition, they may contact 
the police to request appropriate action.
    Question 4: Are the reasonable suspicion testing and training 
requirements of Secs. 382.307 and 382.603 applicable to an owner-
operator who is both an employer and the only employee?
    Guidance: No. The requirements of Secs. 382.307 and 382.603 are not 
applicable to owner-operators in non-supervisory positions. Section 
382.307 requires employers to have a driver submit to an alcohol and/or 
controlled substances test when the employer has reasonable suspicion 
to believe that the driver has violated the prohibitions of subpart B 
of part 382. Applying Sec. 382.307, Reasonable Suspicion Testing, to an 
owner-operator who is an employer and the only employee contradicts 
both ``reason'' and ``suspicion'' implicit in the title and the purpose 
of Sec. 382.307. A driver who has self-knowledge that he/she has 
violated the prohibitions of subpart B of part 382 is beyond mere 
suspicion. Furthermore, Sec. 382.603 requires ``all persons designated 
to supervise drivers'' to receive training that will enable him/her to 
determine whether reasonable suspicion exists to require a driver to 
undergo testing under Sec. 382.307. An owner-operator who does not hire 
or supervise other drivers is not in a supervisory position, nor are 
they subject to the testing requirements of Sec. 382.307. Therefore, 
such an owner-operator would not be subject to the training 
requirements of Sec. 382.603.

Section 382.401  Retention of Records

    Question 1: Many small school districts are affiliated through 
service units which are, in essence, a coalition of individual 
districts. Can these school districts have one common confidant for 
purposes of receiving results and keeping records?
    Guidance: Yes. Employers may use agents to maintain the records, as 
long as they are in a secure location with controlled access. The 
employer must also make all records available for inspection at the 
employer's principal place of business within two business days after a 
request has been made by an FHWA representative.

Section 382.403  Reporting of Results in a Management Information 
System

    Question 1: The FHWA regulations are written on an annual calendar 
year basis. Will foreign motor carriers, using this system, work from 
July 1 to June 30, or is everything to be managed on a six-month basis 
for the first year and then fall into annual calendar years 
subsequently?
    Guidance: All motor carriers must manage their programs and report 
results under Sec. 382.403, if requested by FHWA, on a January 1 to 
December 31 basis. This means that foreign motor carriers will report 
July 1 to December 31 results the first applicable year.

Section 382.405  Access to Facilities and Records

    Question 1: May employers who are subject to other Federal 
agencies' regulations, such as the Nuclear Regulatory Commission, 
Department of Energy, Department of Defense, etc., allow those agencies 
to view or have access to test records required to be prepared and 
maintained by parts 40 and/or 382?
    Guidance: Federal agencies, other than those specifically provided 
for in Sec. 382.405, may have access to an employer's driver test 
records maintained in accordance with parts 40 or 382 only when a 
specific, contemporaneous authorization for release of the test records 
is allowed by the driver.

[[Page 16389]]

    Question 2: Must a motor carrier respond to a third-party 
administrator's request (as directed by the specific, written consent 
of the driver authorizing release of the information on behalf of an 
entity such as a motor carrier) to release driver information that is 
contained in records required to be maintained under Sec. 382.401?
    Guidance: Yes. However, the third-party administrator must comply 
with the conditions established concerning confidentiality, test 
results, and record keeping as stipulated in the ``Notice: Guidance on 
the Role of Consortia and Third-Party Administrators (C/TPA) in DOT 
Drug and Alcohol Testing Programs'' published on July 25, 1995, in 
Volume 60, No. 142, in the Federal Register. Motor carriers must comply 
completely with 49 CFR 382.413 and 382.405 as well as any applicable 
regulatory guidance. Please note that written consent must be obtained 
from the employee each time part 382 information is provided to a C/
TPA, the consent must be specific to the individual or entity to whom 
information is being provided, and that blanket or non-specific 
consents to release information are not allowed.
    Question 3: May employers allow unions or the National Labor 
Relations Board to view or have access to test records required to be 
prepared and maintained by parts 40 and/or 382, such as the list(s) of 
all employees actually tested?
    Guidance: Unions and the National Labor Relations Board may have 
access to the list(s) of all employees in the random pool or the 
list(s) of all employees actually tested. The dates of births and SSNs 
must be removed from these lists prior to release. However, access to 
the employee's negative or positive test records maintained in 
accordance with parts 40 or 382 can be granted only when a specific, 
contemporaneous authorization for release of the test records is 
allowed by the driver.
    Question 4: May an employer (motor carrier) disclose information 
required to be maintained under 49 CFR part 382 (pertaining to a 
driver) to the driver or the decision maker in a lawsuit, grievance, or 
other proceeding (including, but not limited to, worker's compensation, 
unemployment compensation) initiated by or on behalf of the driver, 
without the driver's written consent?
    Guidance: Yes, a motor carrier has discretion without the driver's 
consent as provided by Sec. 382.405(g), to disclose information to the 
driver or the decision maker in a lawsuit, grievance, or other 
proceeding (including, but not limited to, worker's compensation, 
unemployment compensation) initiated by or on behalf of the driver 
concerning prohibited conduct under 49 CFR part 382.
    Also, an employer (motor carrier) may be required to provide the 
test result information pursuant to other Federal statutes or an order 
of a competent Federal jurisdiction, such as an administrative 
subpoena, as allowed by Sec. 382.405(a) without the driver's written 
consent.
    Question 5: What is meant by the term ``as required by law'' in 
relation to State or local laws for disclosure of public records 
relating to a driver's testing information and test results?
    Guidance: The term ``as required by law'' in Sec. 382.405(a) means 
Federal statutes or an order of a competent Federal jurisdiction, such 
as an administrative subpoena. The Omnibus Transportation Employee 
Testing Act of 1991, and the implementing regulations in part 382, 
require that test results and medical information be confidential to 
the maximum extent possible. (Pub. L. 102-143, Title V, sec. 5(a)(1), 
105 Stat. 959, codified at 49 U.S.C. 31306). In addition, the Act 
preempts inconsistent State or local government laws, rules, 
regulations, ordinances, standards, or orders that are inconsistent 
with the regulations issued under the Act.
    The FHWA believes the only State and local officials that may have 
access to the driver's records under Sec. 382.405(d) and 49 U.S.C. 
31306, without the driver's written consent, are State or local 
government officials that have regulatory authority over an employer's 
(motor carrier's) alcohol and drug testing programs for purposes of 
enforcement of part 382. Such State and local agencies conduct employer 
(motor carrier) compliance reviews under the FHWA's Motor Carrier 
Safety Assistance Program (MCSAP) on the FHWA's behalf in accordance 
with 49 CFR part 350.

Section 382.413  Release of Alcohol and Controlled Substances Test 
Information by Previous Employers

    Question 1: What is to be done if a previous employer does not make 
the records available in spite of the employer's request along with the 
driver's written consent?
    Guidance: Employers must make a reasonable, good faith effort to 
obtain the information. If a previous employer refuses, in violation of 
Sec. 382.405, to release the information pursuant to the new employer's 
and driver's request, the new employer should note the attempt to 
obtain the information and place the note with the driver's other 
testing information (59 FR 7501, February 14, 1994).
    Question 2: Within 14 days of first using a driver to perform 
safety-sensitive functions, an employer discovers that a driver had a 
positive controlled substances and/or 0.04 alcohol concentration test 
result within the previous two years. No records are discovered that 
the driver was evaluated by an SAP and has been released by an SAP for 
return to work. The employer removes the driver immediately from the 
performance of safety-sensitive duties. Is there a violation of the 
regulations?
    Guidance: Based on the scenario as presented, only the driver is in 
violation of the rules.
    Question 3: Must an employer investigate a driver's alcohol and 
drug testing background prior to January 1, 1995?
    Guidance: No. The first implementation date of the part 382 testing 
programs was January 1, 1995. Section 382.413 requires subsequent 
employers to obtain information retained by previous employers that the 
previous employers generated under a part 382 testing program. Since no 
employer was allowed to conduct any type of alcohol or drug test under 
the authority of part 382 prior to January 1, 1995, no tests conducted 
prior to 1995 are required to be obtained under Sec. 382.413. An 
employer may, however, under its own authority, request that a driver 
who was subject to part 391 drug testing provide prior testing 
information.
    Question 4: Must a motor carrier respond to a third-party 
administrator's request (as directed by the specific, written consent 
of the driver authorizing release of the information on behalf of an 
entity such as a motor carrier) to release driver information that is 
contained in records required to be maintained under Sec. 382.401?
    Guidance: Yes. However, the third-party administrator must comply 
with the conditions established concerning confidentiality, test 
results, and record keeping as stipulated in the ``Notice: Guidance on 
the Role of Consortia and Third-Party Administrators (C/TPA) in DOT 
Drug and Alcohol Testing Programs'' published on July 25, 1995, in 
Volume 60, No. 142, in the Federal Register. Motor carriers must comply 
completely with Secs. 382.413 and 382.405 as well as any applicable 
regulatory guidance. Please note that written consent must be obtained 
from the employee each time part 382 information is provided to a C/
TPA, that the consent must be specific to the individual or entity to 
whom

[[Page 16390]]

information is being provided, and that blanket or non-specific 
consents to release information are not allowed.

Section 382.501  Removal From Safety-Sensitive Functions

    Question 1: What work may the driver perform for an employer, if a 
driver violates the prohibitions in subpart B?
    Guidance: A driver who has violated the prohibitions of subpart B 
may perform any duties for an employer that are not considered 
``safety-sensitive functions.'' This may include handling of materials 
exclusively in a warehouse, regardless of whether the materials are 
considered hazardous as long as safety-sensitive functions are not 
performed. Safety-sensitive functions may not be performed until the 
individual has been evaluated by an SAP, complied with any recommended 
treatment, has been re-evaluated by an SAP, has been allowed by the SAP 
to return to work and has passed a return to duty test.

Section 382.507  Penalties

    Question 1: What is the fine or penalty for employers who refuse or 
fail to provide Part 382 testing information to a subsequent employer?
    Guidance: Title 49 U.S.C. 521(b)(2)(A) provides for civil penalties 
not to exceed $500 for each instance of refusing or failing to provide 
the information required by Sec. 382.405. Criminal penalties may also 
be imposed under 49 U.S.C. 521(b)(6).

Section 382.601  Motor Carrier Obligation To Promulgate a Policy on the 
Misuse of Alcohol and Use of Controlled Substances

    Question 1: If a driver refuses to sign a statement certifying that 
he or she has received a copy of the educational materials required in 
Sec. 382.601 from their employer, will the employee be in violation of 
Sec. 382.601? May the driver's supervisor sign the certificate of 
receipt indicating that the employee refused to sign?
    Guidance: The employer is responsible for ensuring that each driver 
signs a statement certifying that he or she has received a copy of the 
materials required in Sec. 382.601. The employer is required to 
maintain the original of the signed certificate and may provide a copy 
to the driver. The employer would be in violation if it uses a driver, 
who refuses to comply with Sec. 382.601, to perform any safety 
sensitive function, because Sec. 382.601 is a requirement placed on the 
employer. The employee would not be in violation if he or she drove 
without signing for the receipt of the policy. It is not permissible 
for the driver's supervisor to sign the certificate of receipt; 
however, it is advisable for the employer to note the attempt, the 
refusal, and the consequences of such action. Also, please note that 
the signing of the policy by the employee is in no way an 
acknowledgment that the policy itself complies with the regulations.
    Question 2: Does Sec. 382.601 require employers to provide 
educational materials and policies and procedures to drivers after the 
initial distribution of required educational materials?
    Guidance: No.

Section 382.603  Training for Supervisors

    Question 1: Does Sec. 382.603 require employers to provide 
recurrent training to supervisory personnel?
    Guidance: No.
    Question 2: May an employer accept proof of supervisory training 
for a supervisor from another employer?
    Guidance: Yes.

Section 382.605  Referral, Evaluation, and Treatment

    Question 1: Must an SAP evaluation be conducted in person or may it 
be conducted telephonically?
    Guidance: Both the initial and follow-up SAP evaluations are 
clinical processes that must be conducted face-to-face. Body language 
and appearance offer important physical cues vital to the evaluation 
process. Tremors, needle marks, dilated pupils, exaggerated movements, 
yellow eyes, glazed or bloodshot eyes, lack of eye contact, a physical 
slowdown or hyperactivity, appearance, posture, carriage, and ability 
to communicate in person are vital components that cannot be determined 
telephonically. In-person sessions carry with them the added advantage 
of the SAP's being able to provide immediate attention to individuals 
who may be a danger to themselves or others.
    Question 2: Are employers required to provide intervention and 
treatment for drivers who have a substance abuse problem or only refer 
drivers to be evaluated by an SAP?
    Guidance: An employer who wants to continue to use or hire a driver 
who has violated the prohibitions in subpart B in the past must ensure 
that a driver has complied with any SAP's recommended treatment prior 
to the driver returning to safety-sensitive functions. However, 
employers must only refer to an SAP drivers who have tested positive 
for controlled substances, tested 0.04 or greater alcohol 
concentration, or have violated other prohibitions in subpart B.
    Question 3: Under the DOT rules, must an SAP be certified by the 
DOT in order to perform SAP functions?
    Guidelines: The DOT does not certify, license, or approve 
individual SAPs. The SAP must be able to demonstrate to the employer 
qualifications necessary to meet the DOT rule requirements. The DOT 
rules define the SAP to be a licensed physician (medical doctor or 
doctor of osteopathy), a licensed or certified psychologist, a licensed 
or certified social worker, or a licensed or certified employee 
assistance professional. All must have knowledge of and clinical 
experience in the diagnosis and treatment of substance abuse-related 
disorders (the degrees and certificates alone do not confer this 
knowledge). In addition, alcohol and drug abuse counselors certified by 
the National Association of Alcoholism and Drug Abuse Counselors 
Certification Commission, a national organization that imposes 
qualification standards for treatment of alcohol-related disorders, are 
included in the SAP definition.
    Question 4: Are employers required to refer a discharged employee 
to an SAP?
    Guidance: The rules require an employer to advise the employee, who 
engages in conduct prohibited under the DOT rules, of the available 
resources for evaluation and treatment including the names, addresses, 
and telephone numbers of SAPs and counseling and treatment programs. In 
the scenario where the employer discharges the employee, that employer 
would be considered to be in compliance with the rules if it provided 
the list to the employee and ensured that SAPs on the list were 
qualified. This employer has no further obligation (e.g., to facilitate 
referral to the SAP; ensure that the employee receives an SAP 
evaluation; pay for the evaluation; or seek to obtain, or maintain the 
SAP evaluation synopsis).
    Question 5: How will the SAP evaluation process differ if the 
employee is discharged by the employer rather than retained following a 
rule violation?
    Guidance: After engaging in prohibited conduct and prior to 
performing safety-sensitive duties in any DOT regulated industry, the 
employee must receive a SAP evaluation. And, when assistance with a 
problem is clinically indicated, the employee must receive that 
assistance and demonstrate successful compliance with the 
recommendation as evaluated through an SAP follow-up evaluation.
    The SAP process has the potential to be more complicated when the 
employee is not retained by the employer. In such circumstances, the 
SAP will likely not have a connection with the employer for whom the 
employee worked nor have immediate

[[Page 16391]]

access to the exact nature of the rule violation. In addition, the SAP 
may have to hold the synopsis of evaluation and recommendation for 
assistance report until asked by the employee to forward that 
information to a new employer who wishes to return the individual to 
safety-sensitive duties. In some cases, the SAP may provide the 
evaluation, referral to a treatment professional, and the follow-up 
evaluation before the employee has received an offer of employment. 
This circumstance may require the SAP to hold all reports until asked 
by the individual to forward them to the new employer. If the new 
employer has a designated SAP, that SAP may conduct the follow-up 
evaluation despite the fact that the employee's SAP has already done 
so. In other words, a new employer may determine to its own 
satisfaction (e.g., by having the prospective employee receive a 
follow-up SAP evaluation utilizing the employer's designated SAP) that 
the prospective employee has demonstrated successful compliance with 
recommended treatment.
    Question 6: Do community lectures and self-help groups qualify as 
education and/or treatment?
    Guidance: Self-help groups and community lectures qualify as 
education but do not qualify as treatment. While self-help groups such 
as Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) are crucial 
to many employees' recovery process, these efforts are not considered 
to be treatment programs in and of themselves. However, they can serve 
as vital adjuncts in support of treatment program efforts. AA and NA 
programs require a level of anonymity which makes reporting client 
progress and prognosis for recovery impossible. If the client provides 
permission, AA and NA sponsors can provide attendance status reports to 
the SAP. Therefore, if a client is referred to one of these groups or 
to community lectures as a result of the SAP evaluation, the employee's 
attendance, when it can be independently validated, can satisfy a SAP 
recommendation for education as well as a gauge for determining 
successful compliance with a treatment program when both education and 
treatment are recommended by the SAP's evaluation.
    Question 7: Can an employee who has violated the rules return to 
safety-sensitive functions prior to receiving an SAP evaluation?
    Guidance: The employee is prohibited from performing any DOT 
regulated safety-sensitive function until being evaluated by the SAP. 
An employer is prohibited from permitting the employee to engage in 
safety-sensitive duties until evaluated. If the evaluation reveals that 
assistance is needed, the employee must receive the assistance, be re-
evaluated by the SAP (and determined to have demonstrated successful 
compliance with the recommendation), and pass a return-to-duty alcohol 
and/or drug test prior to performing safety-sensitive duties.
    Question 8: Can an employer overrule an SAP treatment 
recommendation?
    Guidance: No. If found to need assistance, the employee cannot 
return to safety-sensitive functions until an SAP's follow-up 
evaluation determines that the employee has demonstrated successful 
compliance with the recommended treatment. An employer who returns a 
worker to safety-sensitive duties when the employee has not complied 
with the SAP's recommendation is in violation of the DOT rule and is, 
therefore, subject to a penalty.
    Question 9: Is an employer obligated to return an employee to 
safety-sensitive duty following the SAP's finding during the follow-up 
evaluation that the employee has demonstrated successful compliance 
with the treatment recommendation?
    Guidance: Demonstrating successful compliance with prescribed 
treatment and testing negative on the return-to-duty alcohol test and/
or drug test, are not guarantees of employment or of return to work in 
a safety-sensitive position; they are preconditions the employee must 
meet in order to be considered for hiring or reinstatement to safety-
sensitive duties by an employer.
    Question 10: Can an employee receive the follow-up from an SAP who 
did not conduct the initial SAP evaluation?
    Guidance: Although it is preferable for the same SAP to conduct 
both evaluations, this will not be realistic in some situations. For 
instance, the initial SAP may no longer be in the area, still under 
contract to the employer, or still hired by the employer to conduct the 
service. Additionally, the employee may have moved from the area to a 
new location. In all cases, the employer responsibility is to ensure 
that both the initial SAP and the follow-up SAP are qualified according 
to the DOT rules.
    Question 11: Who is responsible for reimbursing the SAP for 
services rendered? Who is responsible for paying for follow-up testing 
recommended by the SAP?
    Guidance: The DOT rules do not affix responsibility for payment for 
SAP services upon any single party. The DOT has left discussions 
regarding payment to employer policies and to labor-management 
agreements. Therefore, in some instances, this issue has become part of 
labor-management negotiations.
    Some employers have hired or contracted staff for the purpose of 
providing SAP services. For some employees, especially those who have 
been released following a violation, payment for SAP services will 
become their responsibility. In any case, the SAP should be suitable to 
the employer who chooses to return the employee to safety-sensitive 
functions. Employer policies should address this payment issue.
    Regarding follow-up testing recommended by the SAP, when an 
employer decides to return the employee to safety-sensitive duty, the 
employer is essentially determining that the costs associated with 
hiring and training a new employee exceeds the costs associated with 
conducting follow-up testing of the returning employee. In any case, 
whether the employer pays or the employee pays, if the employee returns 
to performance of safety-sensitive functions, the employer must ensure 
that follow-up testing occurs as required. The employer will be held 
accountable if the follow-up testing plan is not followed.
    Question 12: Can the SAP direct that an employee be tested for both 
alcohol and drugs for the return-to-duty test and during the follow-up 
testing program?
    Guidance: If the SAP determines that an employee referred for 
alcohol misuse also uses drugs, or that an employee referred for drugs 
use also misuses alcohol, the SAP can require that the individual be 
tested for both substances. The SAP's decision to test for both can be 
based upon information gathered during the initial evaluation, the 
SAP's consultation contacts with the treatment program, and/or the 
information presented during the follow-up evaluation.
    Question 13: Can random testing be substituted for required follow-
up testing?
    Guidance: Follow-up testing is directly related to a rule violation 
and subsequent return to safety-sensitive duty. Random tests are 
independent of rule violations. Therefore, the two test types are to be 
separated--one cannot be substituted for the other or be conducted in 
lieu of the other. Follow-up testing should be unpredictable, 
unannounced, and conducted not less than six times throughout the first 
12 months after the employee returns to safety-sensitive functions. 
Follow-up testing can last up to 60 months. An employee subject to 
follow-up testing

[[Page 16392]]

will continue to be subject to an employer's random testing program.
    Question 14: If a company has several employees in follow-up 
testing, can those employees be placed into a follow-up random testing 
pool and selected for follow-up testing on a random basis?
    Guidance: Follow-up testing is not to be conducted in a random way. 
An employee's follow-up testing program is to be individualized and 
designed to ensure that the employee is tested the appropriate number 
of times as directed by the SAP. Random testing is neither 
individualized nor can it ensure that the employee receives the 
requisite number of tests.
    Question 15: What actions are to occur if an employee tests 
positive while in the follow-up testing program?
    Guidance: Employees testing positive while in follow-up testing are 
subject to the same specific DOT operating administration rules as if 
they tested positive on the initial test. In addition, the employees 
are subject to employer policies related to second violations of DOT 
rules.
    Question 16: Can an SAP recommend that six follow-up tests be 
conducted in less than six months and then be suspended after all six 
are conducted?
    Guidance: Follow-up testing must be conducted a minimum of six 
times during the first twelve months following the employee's return to 
safety-sensitive functions. The intent of this requirement is that 
testing be spread throughout the 12 month period and not be grouped 
into a shorter interval. When the SAP believes that the employee needs 
to be tested more frequently during the first months after returning to 
duty, the SAP may recommend more than the minimum six tests or can 
direct the employer to conduct more of the six tests during the first 
months rather than toward the latter months of the year.
    Question 17: Can you clarify the DOT's intent with respect to a 
SAP's determination that an individual needs education?
    Guidance: A SAP's decision that an individual needs an education 
program constitutes a clinically based determination that the 
individual requires assistance in resolving problems with alcohol 
misuse and controlled substances use. Therefore, the SAP is prohibited 
from referring the individual to her or his own practice for this 
recommended education unless exempted by DOT rules.
    Question 18: In rare circumstances, it is necessary to refer an 
individual immediately for inpatient substance abuse services. May the 
SAP provide direct treatment services or refer the individual to 
services provided by a treatment facility with which he or she is 
affiliated, or must the inpatient provider refer the individual to 
another provider?
    Guidance: SAPs are prohibited from referring an employee to 
themselves or to any program with which they are financially connected. 
SAP referrals to treatment programs must not give the impression of a 
conflict of interest. However, a SAP is not prohibited from referring 
an employee for assistance through a public agency; the employer or 
person under contract to provide treatment on behalf of the employer; 
the sole source of therapeutically appropriate treatment under the 
employee's health insurance program; or the sole source of 
therapeutically appropriate reasonably accessible to the employee.
    Question 19: What arrangement for SAP services would be acceptable 
in geographical areas where no qualified SAP is readily available?
    Guidance: The driver must be given the names, addresses, and phone 
numbers of the nearest SAPs. Because evaluation by a qualified SAP 
rarely takes more than one diagnostic session, the requirement for an 
in-person evaluation is not unreasonable, even if it must be conducted 
some distance from the employee's home.
    Question 20: May an employee who tests positive be retained in a 
non-driving capacity?
    Guidance: Yes. Before an employee returns to performing safety-
sensitive functions, the requirements of Sec. 382.605 must be met.
    Question 21: Are foreign motor carriers required to have an 
employee assistance program?
    Guidance: No. The employee assistance program was an element of the 
original FHWA drug testing program under 49 CFR part 391, which has 
been superseded by 49 CFR part 382. All motor carriers under part 382 
alcohol and drug testing regulations must refer drivers, who operate in 
the U.S. and violate the FHWA's alcohol and drug testing regulations, 
to a substance abuse professional.
Subpart B--Prohibitions
    Question 1: Does the term, ``actual knowledge,'' used in the 
various prohibitions in subpart B of part 382, require direct 
observation by a supervisor or is it more general?
    Guidance: The form of actual knowledge is not specified, but may 
result from the employer's direct observation of the employee, the 
driver's previous employer(s), the employee's admission of alcohol use, 
or other occurrence. (59 FR 7320, February 15, 1994)
Special Topics--Responsibility for Payment for Testing
    Question 1: Who is responsible for paying for any testing under the 
alcohol and drug testing program, the employer or the driver?
    Guidance: Part 382 is silent as to the responsibility for paying 
for testing required under the rule. The employer remains responsible 
at all times for ensuring compliance with the rule, regardless of who 
pays for testing.
Special Topics--Multiple Service Providers
    Question 1: May an employer use more than one MRO, BAT, or SAP?
    Guidance: Yes.
Special Topics--Medical Examiners Acting as MRO
    Question 1: A medical examiner conducts a physical examination of a 
driver (Sec. 391.43) and also acts as the MRO for the driver's pre-
employment controlled substances test. Though the driver is otherwise 
physically qualified, the medical examiner declines to issue a medical 
examiner's certificate because the driver tested positive for 
controlled substances. What should the medical examiner do when the 
same driver, under the aegis of a different employer, returns a short 
period later, is otherwise physically qualified, and tests negative for 
controlled substances? What, if anything, may the medical examiner 
reveal to the second employer if he/she declines to issue a certificate 
to the driver?
    Guidance: The driver may be physically unqualified under 
Sec. 391.41(b)(12) if the medical examiner determines, based on other 
evidence besides the drug test, including, but not limited to knowledge 
of the prior positive test result, that the driver continues to use 
prohibited drugs (Sec. 391.43 Medical examination; certificate of 
physical examination). If the medical examiner so determines, a medical 
examiner's certificate may not be issued. If the medical examiner 
determines that the driver does not use prohibited drugs, a medical 
examiner's certificate may be issued.
    The FHWA does not regulate communications between a medical 
examiner and employer, other than requiring notification by the MRO to 
the employer of controlled substances test results under Part 382 [see 
Sec. 382.407(a)]. Though medical examiners must retain the physical 
examination form, employers are not required to do so. Many employers 
choose, however, to

[[Page 16393]]

contract with medical examiners to provide copies of the ``long form'' 
to the employers. The FMCSRs leave it solely a matter between the 
medical examiner and the employer whether the medical examiner merely 
declines to issue a medical examiner's certificate or also makes 
available to the employer the long form, which may include notes on 
alcohol and controlled substances use.
Special Topics--Biennial (Periodic) Testing Requirements
    Question 1: May an employer perform testing beyond that required by 
the DOT?
    Guidance: An employer may perform any testing provided it is 
consistent with applicable law and agreements, and is not represented 
as a DOT test.
    Question 2: Does part 382 require a CMV driver to carry proof of 
compliance with part 382 and part 40?
    Guidance: No. The drug and alcohol testing is employer-based and 
proof of compliance must be maintained by the employer. The only 
certificate that is required to be in the driver's possession while 
operating a CMV is the medical examiner's certificate required in 
Sec. 391.41(a) and, if applicable, a waiver of certain physical defects 
issued under Sec. 391.49.

Part 383--Commercial Driver's License Standards; Requirements and 
Penalties

Sections Interpreted

383.3  Applicability
383.5  Definitions
383.21  Number of Drivers' Licenses
383.23  Commercial Driver's License
383.31  Notification of Convictions for Driver Violations
383.33  Notification of Driver's License Suspensions
383.37  Employer Responsibilities
383.51  Driver Disqualifications
    --General Questions--
383.51  Driver Disqualifications
    --Alcohol Questions--
383.71  Driver Application Procedures
383.73  State Procedures
383.75  Third Party Testing
383.77  Substitute for Driving Skills Test
383.91  Vehicle Groups
383.93  Endorsements
383.95  Air Brake Restrictions
383.131  Test Procedures
383.133  Testing Methods
383.153  Information on the Document and Application
Special Topics--Motor Coaches and CDL
Special Topics--State Reciprocity

Section 383.3  Applicability

    Question 1: Are school and church bus drivers required to obtain a 
CDL?
    Guidance: Yes, if they drive vehicles designed to transport 16 or 
more people.
    Question 2: Do mechanics, shop help, and other occasional drivers 
need a CDL if they are operating a CMV or if they only test drive a 
vehicle?
    Guidance: Yes, if the vehicle is operated or test-driven on a 
public highway.
    Question 3: Does part 383 apply to drivers of recreational 
vehicles?
    Guidance: No, if the vehicle is used strictly for non-business 
purposes.
    Question 4: Does part 383 apply to drivers of vehicles used in 
``van pools''?
    Guidance: Yes, if the vehicle is designed to transport 16 or more 
people.
    Question 5: May a person operate a CMV wholly on private property, 
not open to public travel, without a CDL?
    Guidance: Yes.
    Question 6: Does off-road motorized construction equipment meet the 
definitions of ``motor vehicle'' and ``commercial motor vehicle'' as 
used in Secs. 383.5 and 390.5?
    Guidance: No. Off-road motorized construction equipment is outside 
the scope of these definitions: (1) When operated at construction 
sites; and (2) when operated on a public road open to unrestricted 
public travel, provided the equipment is not used in furtherance of a 
transportation purpose. Occasionally driving such equipment on a public 
road to reach or leave a construction site does not amount to 
furtherance of a transportation purpose. Since construction equipment 
is not designed to operate in traffic, it should be accompanied by 
escort vehicles or in some other way separated from the public traffic. 
This equipment may also be subject to State or local permit 
requirements with regard to escort vehicles, special markings, time of 
day, day of the week, and/or the specific route.
    Question 7: What types of equipment are included in the category of 
off-road motorized construction equipment?
    Guidance: The definition of off-road motorized construction 
equipment is to be narrowly construed and limited to equipment which, 
by its design and function is obviously not intended for use, nor is it 
used on a public road in furtherance of a transportation purpose. 
Examples of such equipment include motor scrapers, backhoes, motor 
graders, compactors, tractors, trenchers, bulldozers and railroad track 
maintenance cranes.
    Question 8: Do operators of motorized cranes and vehicles used to 
pump cement at construction sites have to meet the testing and 
licensing requirements of the CDL program?
    Guidance: Yes, because such vehicles are designed to be operated on 
the public highways and therefore do not qualify as off-road 
construction equipment. The fact that these vehicles are only driven 
for limited distances, at less than normal highway speeds and/or 
incidental to their primary function, does not exempt the operators 
from the CDL requirements.
    Question 9: May a State require persons operating recreational 
vehicles or other CMVs used by family members for non-business purposes 
to have a CDL?
    Guidance: Yes. States may extend the CDL requirements to 
recreational vehicles.
    Question 10: Do drivers of either a tractor trailer or straight 
truck that is converted into a mobile office need a CDL?
    Guidance: Yes, if the vehicle meets the definition of a CMV.
    Question 11: Do State motor vehicle inspectors who drive trucks and 
motorcoaches on an infrequent basis and for short distances as part of 
their job have to obtain a CDL?
    Guidance: Yes.
    Question 12: Are State, county and municipal workers operating CMVs 
required to obtain CDLs?
    Guidance: Yes, unless they are waived by the State under the 
firefighting and emergency equipment exemption in Sec. 383.3(d).
    Question 13: Do the regulations require that a person driving an 
empty school bus from the manufacturer to the local distributor obtain 
a CDL?
    Guidance: Yes. Any driver of a bus that is designed to transport 16 
or more persons, or that has a GVWR of 26,001 pounds or more, is 
required to obtain a CDL in the applicable class with a passenger 
endorsement.
    Question 14: Are employees of any governmental agency who drive 
emergency response vehicles that transport HM in quantities requiring 
placarding subject to the CDL regulations?
    Guidance: No, as long as the vehicle does not meet the weight/
configuration thresholds for Groups A or B (in Sec. 383.91). However, 
under the HMTUSA of 1990, when a Federal, State or local government 
agency ``offers HM for transportation in commerce or transports HM in 
furtherance of a commercial enterprise,'' its vehicles are subject to 
the placarding requirements of part 172, subpart F. Vehicles that are 
controlled and operated by government agencies in the conduct of 
governmental functions normally are not subject to placarding, since 
governmental activities usually are not commercial enterprises. Based 
on the above, local police emergency responders driving a vehicle 
having a gross vehicle or combination weight rating under 26,001 pounds 
do not need a CDL, according to

[[Page 16394]]

the Federal minimum standards, when transporting HM as a function of 
their agency. The drivers should check with their State licensing 
agency to determine what class of license the State may require to 
operate the vehicles.
    Question 15: Are public transit employees known as ``hostlers,'' 
who maintain and park transit buses on transit system property, subject 
to CDL requirements?
    Guidance: No, unless operating on public roads.
    Question 16: Are non-military amphibious landing craft that are 
usually used in water but occasionally used on a public highway CMVs?
    Guidance: Yes, if they are designed to transport 16 or more people.
    Question 17: Are students who will be trained to be motor vehicle 
operators subject to alcohol and drug testing? Are they required to 
obtain a CDL in order to operate training vehicles provided by the 
school?
    Guidance: Yes. Section 382.107 includes the following definitions:
    Employer means any person (including the United States, a State, 
District of Columbia or a political subdivision of a State) who owns or 
leases a CMV or assigns persons to operate such a vehicle. The term 
employer includes an employer's agents, officers and representatives.
    Driver means any person who operates a CMV. * * *
    Truck and bus driver training schools meet the definition of an 
employer because they own or lease CMVs and assign students to operate 
them at appropriate points in their training. Similarly, students who 
actually operate CMVs to complete their course work qualify as drivers.
    The CDL regulations provide that ``no person shall operate'' a CMV 
before passing the written and driving tests required for that vehicle 
(Sec. 383.23(a)(1)). Virtually all of the vehicles used for training 
purposes meet the definition of a CMV, and student drivers must 
therefore obtain a CDL.
    Question 18: May States exempt motor carriers which operate wholly 
in intrastate commerce from the Federal HMRs, thus exempting from the 
CDL requirement the driver of an unplacarded vehicle with a GVWR of 
less than 26,001 pounds?
    Guidance: The HMRs apply to motor carriers in intrastate commerce 
only if they transport hazardous wastes, hazardous substances, 
flammable cryogenic liquids in portable tanks and cargo tanks, and 
marine pollutants (as those terms are defined in the HMRs) (see 49 CFR 
171.1(a)(3)). Such carriers transporting any other cargo are not 
required to use HM placards, even if the cargo qualifies as hazardous 
under the Federal HMRs. Unless the vehicles used by these carriers had 
GVWRs of 26,001 pounds or more, they would not meet either the 
placarding or the GVWR test in the jurisdictional definition of a CMV 
(Sec. 383.5), and the driver would be exempt from the CDL requirements.
    However, if the State has adopted the HMRs, or the placarding 
requirements of 49 CFR part 172, as regulations applicable to 
intrastate commerce, then the drivers of all vehicles required to use 
placards must also have CDLs.
    If the State promulgates its own rules for the regulation of HM in 
intrastate commerce, instead of adopting the HMRs, and those rules are 
approved by the FHWA under 49 CFR 355.21(c)(3) and paragraph 3(d) of 
the Tolerance Guidelines (49 CFR part 350, appendix C), the drivers of 
vehicles with GVWRs of less than 26,001 pounds transporting such 
materials in intrastate commerce are required to obtain CDLs only if 
State law requires the use of placards.
    Question 19: Must a civilian operator of a CMV, as defined in 
Sec. 383.5, who operates wholly within a military facility open to 
public travel, have a CDL?
    Guidance: Yes. The CDL requirement applies to every person who 
operates a CMV in interstate, foreign or intrastate commerce. Driving a 
CMV on a road, street or way which is open to public travel, even 
though privately-owned or subject to military control, is prima facie 
evidence of operation in commerce.
    Question 20: Does the FHWA include the Space Cargo Transportation 
System (SCTS) off-road motorized military equipment under the 
definitions of ``motor vehicle'' and ``commercial motor vehicle'' as 
used in Sec. 383.5?
    Guidance: No. Although the SCTS has vehicular aspects (it is 
mechanically propelled on wheels), the SCTS is obviously incompatible 
with highway traffic and is found only at locations adjacent to 
military bases in California and Florida, and is operated by skilled 
technicians. The SCTS is moved to and from its point of manufacture to 
its launch site by ``driving'' the ``vehicles'' short distances on 
public roads at speeds of five MPH or less. This is only incidental to 
their primary functions; the SCTS is not designed to operate in 
traffic; and its mechanical manipulation often requires a different set 
of knowledge and skills. In most instances, the SCTS has to be 
specially marked, escorted, and attended by numerous observers.
    Question 21: Are police officers who operate buses and vans which 
are designed to carry 16 or more persons and are used to transport 
police officers during demonstrations and other crowd control 
activities required to obtain a CDL?
    Guidance: Yes. The CMVSA applies to anyone who operates a CMV, 
including employees of Federal, State and local governments. Crowd 
control activities do not meet the conditions for a waiver of operators 
of firefighting and other emergency vehicles in Sec. 383.3(d).
    Question 22: May fuel be considered ``farm supplies'' as used in 
Sec. 383.3(d)(1)?
    Guidance: Yes. The decision to grant the waiver is left to each 
individual State.
    Question 23: Is the transportation of seed-cotton modules from the 
cotton field to the gin by a module transport vehicle considered a form 
of custom harvesting activity that may be included under the FRSI 
waiver (Sec. 383.3(f))?
    Guidance: Yes. The transportation of seed-cotton modules from field 
to gin may, at the State's discretion, be considered as custom 
harvesting and therefore eligible for the FRSI waiver. However, cotton 
ginning operations as an industry and, specifically the transport of 
cotton from the gin, are not eligible activities under the FRSI waiver 
because these activities are not considered appropriate elements of 
custom harvesting.
    Question 24: Does the amendment of the CMVSA by the Motor Carrier 
Act of 1991 exempt all custom harvesting operations from the CDL 
requirements or only the operation of combines?
    Guidance: Section 4010 of the Motor Carrier Act of 1991 (Title IV 
of Pub. L. 102-240, 105 Stat 1914, 2156, December 18, 1991) modifies 
the definition of a ``motor vehicle'' in 49 U.S.C. 31301(11) by 
excluding ``custom harvesting farm machinery'' from the definition. The 
conference report clarifies the intent of the exclusion by stating: 
``The substitute [provision] removes custom harvesting farm machinery 
from the Act. Operators of such machinery are not covered by the 
Commercial Motor Vehicle Safety Act of 1986. A State, however, may 
still impose a requirement for a commercial driver's license if it so 
desires. The change does not apply to vehicles used to transport this 
type of machinery.'' (H.R. Conf. Rep. No. 404, 102d Cong., 1st Sess. 
449 (1991)).
    Therefore, the intent of Congress was only to exempt operators of 
combines and other equipment used to cut the grain and not the 
operators of trucks, tractors, trailers, semitrailers or any other CMV.
    Question 25: May a State (1) require an applicant for a CDL farmer 
waiver

[[Page 16395]]

(Sec. 383.3(d)) to take HM training as a condition for being granted a 
waiver and (2) reduce the 150-mile provision in the waiver to 50 miles 
if the driver is transporting HM?
    Guidance: Yes. The Federal farm waiver is permissive, not 
mandatory.
    Question 26: Do active duty military personnel, not wearing 
military uniforms, qualify for a waiver from the CDL requirements if 
the CMVs are rental trucks or leased buses from the General Services 
Administration?
    Guidance: Yes. The drivers in question do not need to be in 
military uniforms to qualify for the waivers as long as they are on 
active duty. In regard to the vehicles, they may be owned or operated 
by the Department of Defense.
    Question 27: Are custom harvesters who harvest trees for tree 
farmers eligible to be considered ``custom harvesters'' for purposes of 
the FRSI waiver from selected CDL requirements?
    Guidance: If the State considers a firm that harvests trees for 
tree farmers to be a custom harvesting operation, then its employees 
could qualify for the FRSI-restricted CDLs, subject to the stringent 
conditions and limitations of the waiver provisions in Sec. 383.3(f).
    Question 28: May a farmer who meets all of the conditions for a 
farm waiver be waived from the CDL requirements when transporting 
another farmer's products absent any written contract?
    Guidance: If a farmer is transporting another farmer's products and 
being paid for doing so, he or she is acting as a contract carrier and 
does not meet the conditions for a farm waiver. The existence of a 
contract, written or verbal, is not relevant to the CDL waiver 
provisions.
    Question 29: May a State exempt commercial motor vehicle drivers 
employed by a partnership, corporation or an association engaged in 
farming from the CDL requirements under the farmer waiver (49 CFR 
383.3(d)) or is the waiver only available to drivers employed by a 
family-owned farm?
    Guidance: The purpose of the farmer exemption was to give relief to 
family farms (53 FR 37313, September 26, 1988). The conditions for the 
waiver were established to ensure that the waiver focused on this type 
of farm operation. However, ``farmer'' is defined in Sec. 390.5 as 
``any person who operates a farm or is directly involved in the 
cultivation of land, crops, or livestock which (a) [a]re owned by that 
person; or (b) [a]re under the direct control of that person.'' Since 
farming partnerships, corporations and associations are legal 
``persons,'' States may exempt drivers working for these organizations 
from the CDL requirements, provided they can meet the strict limits 
imposed by the waiver conditions.
    Question 30: May a State exempt commercial motor vehicle drivers 
employed by farm cooperatives from the commercial driver's license 
(CDL) requirements under the farmer waiver (Sec. 383(d))?
    Guidance: No. The waiver covers only operators of farm vehicles 
which are controlled and operated by ``farmers'' as defined in 
Sec. 390.5. The waiver does not extend to ancillary businesses, like 
cooperatives, that provide farm-related services to members. As stated 
in the waiver notice (53 FR 37313, September 26, 1988), ``[t]he waiver 
would not be available to operators of farm vehicles who operate over 
long distances, operate to further a commercial enterprise, or operate 
under contract or for-hire for farm cooperatives or other farm groups. 
Such operators drive for a living and do not drive only incidentally to 
farming.''
    Question 31: Is a person who grows sod as a business considered a 
farmer and eligible for the farmer waiver?
    Guidance: Yes, a sod farmer is eligible for the farmer waiver 
provided the State of licensure recognizes the growing of sod to be a 
farming activity.

Section 383.5  Definitions

    Question 1: a. Does ``designed to transport'' as used in the 
definition of a CMV in Sec. 383.5 mean original design or current 
design when a number of seats are removed?
    b. If all of the seats except the driver's seat are removed from a 
vehicle originally designed to transport only passengers to convert it 
to a cargo-carrying vehicle, does this vehicle meet the definition of a 
CMV in Sec. 383.5?
    Guidance: a. ``Designed to transport'' means the original design. 
Removal of seats does not change the design capacity of the CMV.
    b. No, unless this modified vehicle has a GVWR over 26,000 pounds 
or is used to transport placarded HM.
    Question 2: Are rubberized collapsible containers or ``bladder 
bags'' attached to a trailer considered a tank vehicle, thus requiring 
operators to obtain a CDL with a tank vehicle endorsement?
    Guidance: Yes.
    Question 3: If a vehicle's GVWR plate and/or VIN number are missing 
but its actual gross weight is 26,001 pounds or more, may an 
enforcement officer use the latter instead of GVWR to determine the 
applicability of the Part 383?
    Guidance: Yes. The only apparent reason to remove the 
manufacturer's GVWR plate or VIN number is to make it impossible for 
roadside enforcement officers to determine the applicability of part 
383, which has a GVWR threshold of 26,001 pounds. In order to frustrate 
willful evasion of safety regulations, an officer may therefore presume 
that a vehicle which does not have a manufacturer's GVWR plate and/or 
does not have a VIN number has a GVWR of 26,001 pounds or more if: (1) 
It has a size and configuration normally associated with vehicles that 
have a GVWR of 26,001 pounds or more; and (2) It has an actual gross 
weight of 26,001 pounds or more.
    A motor carrier or driver may rebut the presumption by providing 
the enforcement officer the GVWR plate, the VIN number or other 
information of comparable reliability which demonstrates, or allows the 
officer to determine, that the GVWR of the vehicle is below the 
jurisdictional weight threshold.
    Question 4: If a vehicle with a manufacturer's GVWR of less than 
26,001 pounds has been structurally modified to carry a heavier load, 
may an enforcement officer use the higher actual gross weight of the 
vehicle, instead of the GVWR, to determine the applicability of part 
383?
    Guidance: Yes. The motor carrier's intent to increase the weight 
rating is shown by the structural modifications. When the vehicle is 
used to perform functions normally performed by a vehicle with a higher 
GVWR, Sec. 390.33 allows an enforcement officer to treat the actual 
gross weight as the GVWR of the modified vehicle.
    Question 5: When a State agency contracts with private parties for 
services involving the operation of CMVs, is the State agency or 
contractor considered the employer?
    Guidance: If the contractor employs individuals and assigns and 
monitors their driving tasks, the contractor is considered the 
employer. If the State agency assigns and monitors driving tasks, then 
the State agency is the employer for purposes of part 383.
    Question 6: A driver operates a tractor of exactly 26,000 pounds 
GVWR, towing a trailer of exactly 10,000 pounds GVWR, for a GCWR of 
36,000 pounds. HM and passengers are not involved. Is it a CMV and does 
the driver need a CDL?
    Guidance: No to both questions. Although the vehicle has a GCWR of 
36,000 pounds, it is not a CMV under any part of the definition of that 
term in Sec. 383.5, and a CDL is not federally required.
    Question 7: Does the definition of a ``commercial motor vehicle'' 
in Sec. 383.5 of the CDL requirements include

[[Page 16396]]

parking lot and/or street sweeping vehicles?
    Guidance: If the GVWR of a parking lot or street sweeping vehicle 
is 26,001 or more pounds, it is a CMV under the CDL regulations.
    Question 8: Is an employee of a Federal, State, or local government 
who operates a CMV, as defined in Sec. 383.5, including an emergency 
medical vehicle, required to obtain a CDL? If so, why are such drivers 
considered as operating ``in commerce?''
    Guidance: Government employees who drive CMVs are generally 
required to obtain a CDL. However, operators of firefighting and 
related emergency equipment may be exempt from the CDL requirement [53 
FR 37313, September 26, 1988], at a State's discretion. Drivers of 
large advanced life support vehicles operated by municipalities would 
therefore, at a State's discretion, qualify for the exemption.
    Government employees who drive CMVs are operating in ``commerce,'' 
as defined in Sec. 383.5, because they perform functions that affect 
interstate trade, traffic, or transportation. Nearly all government 
CMVs are used, directly or indirectly, to facilitate or promote such 
trade, traffic, and transportation.
    Question 9: The definition of a passenger CMV is a vehicle 
``designed to transport'' more than 15 passengers, including the 
driver. Does that include standing passengers if the vehicle was 
specifically designed to accommodate standees?
    Guidance: No. ``Designed to transport'' refers only to the number 
of designated seats; it does not include areas suitable, or even 
designed, for standing passengers.
    Question 10: What is considered a ``public road''?
    Guidance: A public road is any road under the jurisdiction of a 
public agency and open to public travel or any road on private property 
that is open to public travel.

Section 383.21  Number of Drivers' Licenses

    Question 1: Are there any circumstances under which the driver of a 
CMV as defined in Sec. 383.5 is allowed to hold more than one driver's 
license?
    Guidance: Yes. A recipient of a new driver's license may hold more 
than one license during the 10 days beginning on the date the person is 
issued a driver's license.
    Question 2: Is a person from Puerto Rico required to surrender his 
or her driver's license in order to obtain a nonresident CDL?
    Guidance: Since Puerto Rico and the U.S. Territories are not 
included in the definition of a State in section 12016 of the CMVSA (49 
U.S.C. Sec. 31301(13)), they must be considered foreign countries for 
purposes of the CDL requirements. Under part 383, a person domiciled in 
a foreign country is not required to surrender his or her foreign 
license in order to obtain a nonresident CDL. There are two reasons for 
permitting this dual licensing to a person domiciled in Puerto Rico: 
(a) There is no reciprocal agreement with Puerto Rico recognizing its 
CMV testing and licensing standards as equivalent to the standards in 
part 383 and, (b) the nonresident CDL may not be recognized as a valid 
license to drive in Puerto Rico.

Section 383.23  Commercial Driver's License

    Question 1: May a holder of a CMV learner's permit continue to hold 
his/her basic driver's license from any State without violating the 
single-license rule?
    Guidance: Yes, since the learner's permit is not a license.
    Question 2: The requirements for States regarding CMV learners' 
permits in Sec. 383.23 appear to be ambiguous. For example, if the CMV 
learner's permit is ``considered a valid CDL'' for instructional 
purposes, is the State to enter the learner's permit issuance as a 
CDLIS transaction?
    Guidance: No such requirement currently exists.
    Question 3: Is a CDL required for CMV operations that occur 
exclusively in places where the general public is never allowed to 
operate, such as airport taxiways or other areas restricted from the 
public?
    Guidance: No. FHWA regulations would not require a CMV driver to 
obtain a CDL under those circumstances. The Federal rules are minimum 
standards, however, and State law may require a CDL for operations not 
covered by part 383.

Section 383.31  Notification of Convictions for Driver Violations

    Question 1: Must an operator of a CMV (as defined in Sec. 383.5), 
who holds a CDL, notify his/her current employer of a conviction for 
violating a State or local (non-parking) traffic law in any type of 
vehicle, as required by Sec. 383.31(b), even though the conviction is 
under appeal?
    Guidance: Yes. The taking of an appeal does not vacate or annul the 
conviction, nor does it stay the notification requirements of 
Sec. 383.31. The driver must notify his/her employer within 30 days of 
the date of conviction.

Section 383.33  Notification of Driver's License Suspensions

    Question 1: When a driver (a) receives an Administrative Order of 
Suspension due to a blood alcohol reading in excess of the legal limit 
with notice that the suspension is not to be effective until 45 days 
after the notice or after an administrative hearing, and (b) a hearing 
is subsequently held, in effect suspending the license, what is the 
effective date of suspension for purposes of notifying the employer 
under Sec. 383.33?
    Guidance: The effective date of the suspension for notification 
purposes is the day the employee received notice of the suspension.

Section 383.37  Employer Responsibilities

    Question 1: Section 383.37(a) does not allow employers to knowingly 
use a driver whose license has been suspended, revoked or canceled. Do 
motor carriers have latitude in their resulting actions: firing, 
suspension, layoff, authorized use of unused vacation time during 
suspension duration, transfer to nondriving position for duration of 
the suspension?
    Guidance: Yes. The employer's minimum responsibility is to prohibit 
operation of a CMV by such an employee.
    Question 2: a. A motor carrier recently found a driver who had a 
detectable presence of alcohol, placed him off-duty in accordance with 
Sec. 392.5, and ordered a blood test which disclosed a blood alcohol 
concentration of 0.05 percent. Is the carrier obligated to place the 
driver out of service for 24 hours as prescribed by Sec. 392.5(c)?
    b. Is the carrier obligated to disqualify the driver for a period 
of one year as prescribed by Secs. 383.51(b) and 391.15(c)(3)(i) of the 
FMCSRs?
    Guidance: a. Only a State or Federal official can place a driver 
out of service. Instead, the carrier is obligated to place the driver 
off-duty and prevent him/her from operating or being in control of a 
CMV until he/she is no longer in violation of Sec. 392.5.
    b. No. A motor carrier has no authority to disqualify a driver. 
Disqualification for such an offense only occurs upon a conviction.
    Question 3: If an individual driver had two convictions for serious 
traffic violations while driving a CMV, and neither FHWA nor his/her 
State licensing agency took any disqualification action, does the motor 
carrier have any obligation under FHWA regulations to refrain from 
using this driver for 60 days? If so, when does that time period begin?

[[Page 16397]]

    Guidance: No. Only the State or the FHWA has the authority to take 
a disqualification action against a driver. The motor carrier's 
responsibility under Sec. 383.37(a) to refrain from using the driver 
begins when it learns of the disqualification action and continues 
until the disqualification period set by the State or the FHWA is 
completed.
    Question 4: Is a driver who has a CDL, and has been convicted of a 
felony, disqualified from operating a CMV under the FMCSRs?
    Guidance: Not necessarily. The FMCSRs do not prohibit a driver who 
has been convicted of a felony, such as drug dealing, from operating a 
CMV unless the offense involved the use of a CMV. If the offense 
involved a non-CMV, or was unrelated to motor vehicles, there is no 
FMCSR prohibition to employment of the person as a driver.

Section 383.51  Driver Disqualifications

--General Questions--
    Question 1: a. If a driver received one ``excessive speeding'' 
violation in a CMV and the same violation in his/her personal passenger 
vehicle, would the driver be disqualified? or,
    b. If a driver received two ``excessive speeding'' violations in 
his/her personal passenger vehicle, would the driver be disqualified?
    Guidance: No, in both cases. Convictions for serious traffic 
violations, such as excessive speeding, only result in disqualification 
if the offenses were committed in a CMV--unless the State has stricter 
regulations.
    Question 2: Section 383.51 of the FMCSRs disqualifies drivers if 
certain offenses were committed while operating a CMV. Will the States 
be required to identify on the motor vehicle driver's record the class 
of vehicle being operated when a violation occurs?
    Guidance: No, only whether or not the violation occurred in a CMV. 
The only other indication that may be required is if the vehicle was 
carrying placardable amounts of HM.
    Question 3: If a CDL holder commits an offense that would normally 
be disqualifying, but the CDL holder is driving under the farm waiver, 
must conviction result in disqualification and action against the CDL 
holder?
    Guidance: Yes. Possession of the CDL means the driver is not 
operating under the waiver. In addition, the waiver does not absolve 
the driver from disqualification under part 391.
    Question 4: What is meant by leaving the scene of an accident 
involving a CMV?
    Guidance: As used in part 383, the disqualifying offense of 
``leaving the scene of an accident involving a CMV'' is all-inclusive 
and covers the entire range of situations where the driver of the CMV 
is required by State law to stop after an accident and either give 
information to the other party, render aid, or attempt to locate and 
notify the operator or owner of other vehicles involved in the 
accident.
    Question 5: If a State disqualifies a driver for two serious 
traffic violations under Sec. 383.51(c)(2)(i), and that driver, after 
being reinstated, commits a third serious violation, what additional 
period of disqualification must be imposed on that driver?
    Guidance: If three years have not elapsed since the original 
violation, then the driver is now subject to a full 120-day 
disqualification period.
    Question 6: May a State issue a ``conditional,'' ``occupational'' 
or ``hardship'' license that includes CDL driving privileges when a CDL 
holder loses driving privileges to operate a private passenger vehicle 
(non-CMV)?
    Guidance: Yes, provided the CDL holder loses his/her driving 
privileges for operating a non-CMV as the result of a conviction for a 
disqualifying offense that occurred in a non-CMV. A State is 
prohibited, however, from issuing any type of license which would give 
the driver even limited privileges to operate a CMV when the conviction 
is for a disqualifying offense that occurred in a CMV.
    Question 7: What information needs to be contained on a 
``conditional,'' ``occupational'' or ``hardship'' license document that 
includes CDL driving privileges?
    Guidance: The same information that is required under Sec. 383.153, 
including an explanation of restrictions of driving privileges.
    Question 8: Is a State obligated to grant reciprocity to another 
State's ``conditional,'' ``occupational'' or ``hardship'' license that 
includes CDL driving privileges?
    Guidance: Yes, in regard to operating a CMV as stated in 
Sec. 383.73(h).

Section 383.51  Driver Disqualifications

--Alcohol Questions--
    Question 1: Are States expected to make major changes to their 
enforcement procedures in order to apply the alcohol disqualifications 
in the Federal regulations?
    Guidance: No. Sections 383.51 and 392.5 do not require any change 
in a State's existing procedures for initially stopping vehicles and 
drivers.
    Roadblocks, random testing programs, or other enforcement 
procedures which have been held unconstitutional in the State or which 
the State does not wish to implement are not required.
    Question 2: Is a driver disqualified for driving a CMV while off-
duty with a blood alcohol concentration over 0.04 percent?
    Guidance: Yes. Section 383.51 applies to any person who is driving 
a CMV, as defined in Sec. 383.5, regardless of the person's duty status 
under other regulations. Therefore, the driver, if convicted, would be 
disqualified under Sec. 383.51.
    Question 3: Does a temporary license issued pursuant to the 
administrative license revocation (ALR) procedure authorize the 
continued operation of CMVs when the license surrendered is a CDL? Does 
the acceptance of a temporary driver's license place the CDL holder in 
violation of the one driver's license requirement?
    Guidance: The ALR procedure of taking possession of the driver's 
CDL and issuing a ``temporary license'' for individuals who either fail 
a chemical alcohol test or refuse to take the test is valid under the 
requirements of part 383. Since the CDL that is being held by the State 
is still valid until the administrative revocation action is taken, the 
FHWA would interpret the document given to the driver as a ``receipt'' 
for the CDL, not a new ``temporary'' license. The driver violates no 
CDL requirements for accepting the receipt which may be used to the 
extent authorized.
    Question 4: Is a driver disqualified under Sec. 383.51 if convicted 
of driving under the influence of alcohol while operating a personal 
vehicle?
    Guidance: The convictions triggering mandatory disqualification 
under Sec. 383.51 all pertain to offenses that occur while the person 
is driving a CMV. However, a driver could be disqualified under 
Sec. 383.51(b)(2)(i) if the State has stricter standards which apply to 
offenses committed in a personal vehicle. (The same principle applies 
to all other disqualifying offenses listed in Sec. 383.51.)
    Question 5: Would a driver convicted under a State's ``open 
container'' law be disqualified under the CDL regulations if the 
violation occurred while he/she was operating a CMV?
    Guidance: If a conviction under a particular State's ``open 
container law'' is a conviction for ``driving under the influence'' or 
``driving while intoxicated,'' and if the person committed the 
violation while driving a CMV, then the driver is disqualified for one 
year under Sec. 383.51, assuming it is a first offense.

[[Page 16398]]

Section 383.71  Driver Application Procedures

    Question 1: What must a driver certify if he/she is in interstate 
commerce but is excepted or exempted from part 391 under the provisions 
of parts 390 or 391?
    Guidance: The State should instruct the driver to certify that he/
she is not subject to part 391.
    Question 2: Since an applicant is required to turn in his/her 
current license when issued an FRSI-restricted CDL, should the 
applicant return to the State exam office and be re-issued the old 
license when the seasonal validation period expires?
    Guidance: No. This approach violates the requirements of part 383 
and the FRSI waiver regarding the single-license concept. It violates 
the waiver requirement that the FRSI-restricted CDL is to have the same 
renewal cycle as an unrestricted CDL and shall serve as an operator's 
license for vehicles other than CMVs. The license issued under the 
waiver is a CDL and must be treated the same as an unrestricted CDL in 
regard to the driver record being maintained through the CDLIS and 
subject to all disqualifying conditions for the full renewal cycle. The 
restriction determining when the driver may use the CDL to operate a 
CMV should be clearly printed on the license.
    Question 3: Do the regulations require that a driver be recertified 
for the hazardous materials ``H'' endorsement every two years?
    Guidance: No. If the driver wishes to retain an HM endorsement, he/
she is required at the time of license renewal to pass the test for 
such endorsement. The only times a driver may be required to pass the 
test for such endorsement in a condensed time frame is within the 2 
years preceding a license transfer if he/she is transferring a CDL from 
one State of domicile to a new State of domicile (see 
Sec. 383.73(b)(4)), or if the State has exercised its prerogative to 
establish more stringent requirements.
    Question 4: May a CDL driving skills test examiner conduct a 
driving skills test administered in accordance with 49 CFR part 383 
before a person subject to Part 382 is tested for alcohol and 
controlled substances?
    Guidance: Yes. A CDL driving skills test examiner, including a 
third party examiner, may administer a driving skills test to a person 
subject to Part 382 without first testing him/her for alcohol and 
controlled substances. The intent of the CDL driving skills test is to 
assess a person's ability to operate a commercial motor vehicle during 
an official government test of their driving skills. However, this 
guidance does not allow an employer (including a truck or bus driver 
training school) to use a person as a current company, lease, or 
student driver prior to obtaining a verified negative test result. An 
employer must obtain a verified negative controlled substance test 
result prior to dispatching a driver on his/her first trip.

Section 383.73  State Procedures

    Question 1: Does the State have any role in certifying compliance 
with Sec. 391.11(b)(2) of the FMCSRs, which requires driver competence 
in the English language?
    Guidance: No. The driver must certify that he or she meets the 
qualifications of part 391. The State is under no duty to verify the 
certification by giving exams or tests.
    Question 2: Are States required to change their current medical 
standards for drivers who need CDLs?
    Guidance: No, but interstate drivers must continue to meet the 
Federal standards, while intrastate drivers are subject to the 
requirements adopted by the State.
    Question 3: To what does the phrase ``. . . as contained in 
Sec. 383.51'' refer to in Sec. 383.73(a)(3)?
    Guidance: The phrase refers only to the word ``disqualification.'' 
Thus the State must check the applicant's record to ensure that he/she 
is not subject to any suspensions, revocations, or cancellations for 
any reason, and is not subject to any disqualifications under 
Sec. 383.51.
    Question 4: Is a State required to refuse a CDL to an applicant if 
the NDR check shows that he/she had a license suspended, revoked, or 
canceled within 3 years of the date of the application?
    Guidance: Yes, if the person's driving license is currently 
suspended, revoked, or canceled.
    Question 5: Must a new State of record accept the out-of-State 
driving record on CDL transfer applications and include this record as 
a permanent part of the new State's file?
    Guidance: Yes.
    Question 6: What does the term ``initial licensure'' mean as used 
in Sec. 383.73?
    Guidance: The term ``initial licensure'' as used in the context of 
Sec. 383.73 is meant to refer to the procedures a State must follow 
when a person applies for his/her first CDL.
    Question 7: May a State allow an applicant to keep his/her current 
valid State license when issued an FRSI-restricted CDL?
    Guidance: No. That would violate the single-license concept.
    Question 8: Does the word ``issuing'' as used in Sec. 383.73(a) 
include temporary 60-day CDLs as well as permanent CDLs?
    Guidance: Yes, the word ``issuing'' applies to all CDLs whether 
they are temporary or permanent.
    Question 9: When a State chooses to meet the certification 
requirements of Sec. 383.73 (a)(1), (b)(1), (c)(1) and (d)(1) by 
demanding, as part of its licensing process, that a commercial driver 
maintain with the Department of Motor Vehicles (DMV) currently valid 
evidence of compliance with the physical qualification standards of 
part 391, subpart E, may the State suspend, cancel or revoke the 
driver's CDL if he/she does not maintain such evidence with the DMV?
    Guidance: Yes. Section 383.73 requires a State to obtain from a 
driver applicant a certification that he/she meets the qualification 
standards of part 391, including subpart E (Physical Qualifications and 
Examinations). A requirement that a driver maintain currently valid 
evidence of compliance with subpart E does not conflict with part 383, 
since the CMVSA made it clear that the DOT was to issue ``regulations 
to establish minimum Federal standards * * *'' (49 U.S.C. 31305(a)). A 
State may therefore demand more information or tests than the Federal 
CDL regulations require. If a driver fails to comply with State 
requirements which are not inconsistent with part 383, the State may 
suspend, cancel or revoke the driver's CDL. This action is not a 
disqualification for purposes of Sec. 383.51, but a withdrawal of the 
commercial driving privilege.
    Question 10: What action should enforcement officers take when a 
commercial driver's CDL has been declared invalid by the issuing State 
because of a lapse in the driver's medical certificate?
    Guidance: Whatever the reason for the State's decision, a driver 
with an invalid CDL may not lawfully drive a CMV.
    Question 11: May licensing jurisdictions meet their stewardship 
requirements for surrendered licenses by physically marking the license 
in some way as not valid and returning it to a driver as part of the 
driver's application for a new or renewal of an existing CDL?
    Guidance: Yes. Provided the licensing jurisdiction meets the test 
of guaranteeing that the returned license document cannot possibly be 
mistaken for a valid document by a casual observer. A document 
perforated with the word ``VOID'' conspicuously and unmistakably 
displayed with holes large enough to be easily distinguished by a

[[Page 16399]]

casual observer in limited light, which cannot be obscured by the 
holder of the document, would meet the test of being invalidated.

Section 383.75  Third Party Testing

    Question 1: May the CDL knowledge test be administered by a third 
party?
    Guidance: No. The third party testing provision found in 
Sec. 383.75 applies only to the skills portion of the testing 
procedure. However, if an employee of the State who is authorized to 
supervise knowledge testing is present during the testing, then the 
FHWA regards it as being administered by the State and not by the third 
party.
    Question 2: Do third party skills test examiners have to meet all 
the requirements of State-employed examiners--i.e. all the State's 
qualification and training standards?
    Guidance: No. Section 383.75(a)(2)(iii) requires third party 
examiners to meet the same standards as State examiners only ``to the 
extent necessary to conduct skills tests.''
    Question 3: Do third-party skills test examiners have to be 
qualified to administer skills tests in all types of CMVs?
    Guidance: No.

Section 383.77  Substitute for Driving Skills Test

    Question 1: May a State grandfather drivers from skills testing 
under Sec. 383.77?
    Guidance: Yes, provided the applicant meets all the eligibility 
conditions under Sec. 383.77, including current operation of a CMV 
(Sec. 383.77(b)(1)). Therefore, the pool of applicants eligible for 
grandfathering is limited to drivers with current CMV operating 
experience under a CDL waiver (e.g., farm, FRSI, firefighting, 
emergency and military vehicles).
    Question 2: May a driver applicant be ``grandfathered'' from any 
CDL knowledge test?
    Guidance: No. ``Grandfathering'' of CDL basic or endorsement 
knowledge testing is not permitted by part 383.

Section 383.91  Vehicle Groups

    Question 1: May a State expand a vehicle group to include vehicles 
that do not meet the Federal definition of the group?
    Guidance: Yes, if: a. A person who tests in a vehicle that does not 
meet the Federal standard for the Group(s) for which the issued CDL 
would otherwise be valid, is restricted to vehicles not meeting the 
Federal definition of such Group(s); and
    b. The restriction is fully explained on the license.
    Question 2: Is a driver of a combination vehicle with a GCWR of 
less than 26,001 pounds required to obtain a CDL even if the trailer 
GVWR is more than 10,000 pounds?
    Guidance: No, because the GCWR is less than 26,001 pounds. The 
driver would need a CDL if the vehicle is transporting HM requiring the 
vehicle to be placarded or if it is designed to transport 16 or more 
persons.
    Question 3: Can a State which expands the vehicle group 
descriptions in Sec. 383.91 enforce those expansions on out-of-State 
CMV drivers by requiring them to have a CDL?
    Guidance: No. They must recognize out-of-State licenses that have 
been validly issued in accordance with the Federal standards and 
operative licensing compacts.
    Question 4: What CMV group are drivers of articulated motorcoaches 
(buses) required to possess?
    Guidance: Drivers of articulated motorcoaches are required to 
possess a Class B CDL.
    Question 5: Do tow truck operators need CDLs? If so, in what 
vehicle group(s)?
    Guidance: For CDL purposes, the tow truck and its towed vehicle are 
treated the same as any other powered unit towing a nonpowered unit:

--If the GCWR of the tow truck and its towed vehicle is 26,001 pounds 
or more, and the towed vehicle alone exceeds 10,000 pounds GVWR, then 
the driver needs a Group A CDL.
--If the GVWR of the tow truck alone is 26,001 pounds or more, and the 
driver either (a) drives the tow truck without a vehicle in tow, or (b) 
drives the tow truck with a towed vehicle of 10,000 pounds or less 
GVWR, then the driver needs a Group B CDL.
--A driver of a tow truck or towing configuration that does not fit 
either configuration description above, requires a Group C CDL only if 
he or she tows a vehicle required to be placarded for hazardous 
materials on a ``subsequent move,'' i.e. after the initial movement of 
the disabled vehicle to the nearest storage or repair facility.

Section 383.93  Endorsements

    Question 1: Is the HM endorsement needed for operation of State and 
local government vehicles carrying HM?
    Guidance: No.
    Question 2: Are drivers of double and triple saddle mount 
combinations required to have the double/triple trailers endorsement on 
their CDLs?
    Guidance: Yes, if the following conditions apply:

--There is more than one point of articulation in the combination;
--The GCWR is 26,001 or more pounds; and
--The combined GVWR of the vehicle(s) being towed is in excess of 
10,000 pounds.

    Question 3: Are drivers delivering empty buses in driveaway-towaway 
operations required to have the passenger endorsement on their CDLs?
    Guidance: No.
    Question 4: Would the driver in the following scenarios be required 
to have a CDL with a HM endorsement?
    a. A driver transports 1,000 or more pounds of Division 1.4 (Class 
C explosive) materials in a vehicle with a GVWR of less than 26,001 
pounds?
    b. A driver transports less than 1,000 pounds of Division 1.4 
(Class C explosive) materials in a vehicle with a GVWR of less than 
26,001 pounds?
    c. The driver transports any quantity of Division 1.1, 1.2 or 1.3 
(Class A or B explosive) materials in any vehicle.
    Guidance: a. Yes.
    b. No.
    c. Yes.
    Question 5: Do drivers of ready-mix concrete mixers need a tank 
vehicle endorsement (``N'') on their CDL?
    Guidance: No.
    Question 6: Does an unattached tote or portable tank with a cargo 
capacity of 1,000 gallons or more meet the definition of ``portable 
tank'' requiring a tank vehicle endorsement on the driver's CDL?
    Guidance: Yes.
    Question 7: Must all drivers of vehicles required to be placarded 
have CDLs containing the HM endorsement?
    Guidance: Yes, unless waived.
    Question 8: Is a driver who operates a truck tractor pulling a 
heavy-haul trailer with a ``jeep'' attached to the front of the trailer 
that meets the definition of a CMV under part 383 required to have a 
CDL with a double/triple trailer endorsement?
    Guidance: Yes. The ``jeep,'' also referred to as a dolly or load 
divider, is a short frame-type trailer complete with upper coupler, 
fifth wheel and undercarriage assembly and designed in such a manner 
that when coupled to a semitrailer and tractor it carries a portion of 
the trailer kingpin load while transferring the remainder to the 
tractor's fifth wheel.
    Question 9: Do persons transporting battery-powered forklifts need 
to obtain an HM endorsement?
    Guidance: No.
    Question 10: Do tow truck operators who hold a CDL require 
endorsements to tow ``endorsable'' vehicles?

[[Page 16400]]

    Guidance: For CDL endorsement purposes, the nature of the tow truck 
operations determines the need for endorsements:

--If the driver's towing operations are restricted to emergency ``first 
moves'' from the site of a breakdown or accident to the nearest 
appropriate repair facility, then no CDL endorsement of any kind is 
required.
--If the driver's towing operations include any ``subsequent moves'' 
from one repair or disposal facility to another, then endorsements 
requisite to the vehicles being towed are required. Exception: Tow 
truck operators need not obtain a passenger endorsement.

Section 383.95  Air Brake Restrictions

    Question 1: A driver has a Group B or C CDL valid for airbrake-
equipped vehicles. He or she later upgrades to a Group A license by 
testing in a vehicle that is not equipped with airbrakes. Must the 
State restrict the upgraded license to nonairbrake-equipped vehicles?
    Guidance: No, because the airbrake systems on combination versus 
single vehicles do not differ significantly.
    Question 2: May a driver who has an air brake restriction as 
defined in Sec. 383.95 operate a CMV equipped with an air-over-
hydraulic brake system?
    Guidance: No. Under Sec. 383.95(b), the term ``air brakes'' 
includes any braking system operating fully or partially on the air 
brake principle. Air-over-hydraulic brake systems operate partially on 
the air brake principle and are therefore air brakes for purposes of 
the CDL regulations. The NHTSA also considers ``air over hydraulic'' 
brakes to be air brakes under FMVSS 121.
    Question 3: May a State issue a restriction to a driver who passes 
the air brake knowledge test and the skills test in a vehicle equipped 
with an air-over-hydraulic brake system that limits the driver to 
operate only vehicles equipped with an air-over-hydraulic air brake 
system?
    Guidance: Yes. A State may issue the additional restriction, 
provided it is fully explained on the CDL. This would give a State the 
option to allow a driver who tests in a vehicle equipped with an air-
over-hydraulic brake system (rather than a full air brake system) to 
operate a vehicle equipped with either a hydraulic or air-over-
hydraulic brake system, while restricting them from operating vehicles 
equipped with a full air brake system.
    Question 4: May a driver with an air brake restriction on his or 
her CDL operate a CMV equipped with a hydraulic braking system that has 
an air-assisted parking brake release?
    Guidance: Yes. The air brake restriction applies only to the 
principal braking system used to stop the vehicle. Section 383.95(b) is 
not applicable to an air-assisted mechanism to release the parking 
brake.

Section 383.131  Test Procedures

    Question 1: Are there any Federal regulations which require the 
States to retain for a specified period of time the CDL knowledge tests 
(or the test results) used to test CMV drivers?
    Guidance: No, there are no Federal regulations regarding such 
record retention.

Section 383.133  Testing Methods

    Question 1: May States administer the CDL knowledge and endorsement 
test in foreign languages or in other than a written format?
    Guidance: Yes.
    Question 2: Do the Federal standards limit the number of times a 
driver may take a test if he or she fails?
    Guidance: The rule does not limit the number of times a driver may 
take a test.
    Question 3: Is a State allowed to provide for an alternative test 
(e.g., oral) or administer an alternate exam format providing the test 
meets FHWA requirements?
    Guidance: Yes. The knowledge portion of the test may be 
administered in written form, verbally, in automated formats, or 
otherwise at the discretion of the State.

Section 383.153  Information on the Document and Application

    Question 1: May a State use the residence address as opposed to the 
mailing address on the CDL?
    Guidance: Yes.
    Question 2: May a State issue temporary nonphoto CDLs?
    Guidance: Yes, as long as:
    a. the State does not liberalize any existing procedures for 
issuing nonphoto licenses; and
    b. the State does not allow drivers to operate CMVs indefinitely 
without a CDL which meets all the standards of Sec. 383.153.
    Question 3: May a State choose to implement a driver license system 
involving multiple part license documents?
    Guidance: Yes. A two or more part document, as currently used in 
some States, is acceptable, provided:
    a. All of the documents must be present to constitute a 
``license;''
    b. Each document is explicitly ``tied'' to the other document(s), 
and to a single driver's record. Each document must indicate that the 
driver is licensed as a CMV driver, if that is the case; and
    c. The multipart license document includes all of the data elements 
specified in part 383, subpart J.
    Question 4: If the State restricts the CDL driving privilege, must 
that restriction be shown on the license?
    Guidance: Yes.
    Question 5: Is a State required to show the driver's SSN on the 
CDL?
    Guidance: No. Section 383.153 does not specify the SSN as a 
required element of the CDL document although the regulation does 
require a driver applicant who is domiciled in the U.S. to provide his 
or her SSN on the CDL application.
    Question 6: Is a State prohibited from issuing a CDL to an 
applicant who, for religious reasons, does not possess an SSN?
    Guidance: No. The determination of whether a person needs an SSN is 
left up to the Social Security Administration.
    Question 7: Is a color-digitized image of a driver acceptable for 
purposes of a CDL?
    Guidance: Yes. The FHWA will accept a color-digitized image of a 
driver on a CDL in lieu of a color photograph.
Special Topics--Motor Coaches and CDL
    Question 1: May a State develop a knowledge test exclusively for 
motorcoach operators which excludes cargo handling and hazardous 
materials?
    Guidance: Yes. A State could develop a basic knowledge test for bus 
drivers only, by deleting the cargo handling and HM questions from its 
normal basic knowledge test. In that case, the driver applicant would 
still need to pass the specialized knowledge and skills tests for the 
passenger endorsement, and the State would need to restrict the CDL to 
passenger operations only.
    Question 2: What skills test is required for a CDL holder seeking 
to add a passenger endorsement?
    Guidance: If a person already holds a CDL without a passenger 
endorsement, and subsequently applies for such endorsement, three 
situations may arise:
    a. The passenger test vehicle is in the same vehicle group as that 
shown on the CDL. This situation poses no problem since there is no 
discrepancy.
    b. The passenger test vehicle is in a greater vehicle group than 
that shown on the preexisting CDL. This is an upgrade situation. The 
driver and the State must meet the requirements of Secs. 383.71(d) and 
383.73(d), and the upgraded CDL must show the vehicle group of the 
passenger test vehicle.

[[Page 16401]]

    c. The passenger test vehicle is in a lesser vehicle group than 
that shown on the preexisting CDL. In this situation, the CDL retains 
the vehicle group of the preexisting CDL, but also restricts the 
driver, when engaged in CMV passenger operations, to vehicles in the 
group in which the passenger skills test was taken, or to a lesser 
group.
Special Topics--State Reciprocity
    Question 1: May a State place an ``intrastate only'' or similar 
restriction on the CDL of a driver who certifies that he or she is not 
subject to part 391?
    Guidance: Yes; however, this restriction would not apply to drivers 
in interstate commerce who are excepted or exempted from part 391 under 
the provisions of parts 390 or 391.
    Question 2: May a State allow a driver possessing an out-of-State 
CDL containing an intrastate restriction to operate a CMV in their 
jurisdiction?
    Guidance: Yes, provided the driver operates exclusively intrastate.
    Question 3: May States choose to interpret ``intrastate'' in ways 
that differ from established transportation practice?
    Guidance: No. States do not have the discretion to change the 
Federal definition of either ``interstate'' or ``intrastate'' commerce.
Special Topics--International
    Question 1: The driver's medical exam is part of the Mexican 
Licencia Federal. If a roadside inspection reveals that a Mexico-based 
driver has not had the medical portion of the Licencia Federal re-
validated, is the driver considered to be without a valid medical 
certificate or without a valid license?
    Guidance: The Mexican Licencia Federal is issued for a period of 10 
years but must be re-validated every 2 years. A condition of re-
validation is that the driver must pass a new physical examination. The 
dates for each re-validation are on the Licencia Federal and must be 
stamped at the completion of each physical. This constitutes 
documentation that the driver is medically qualified. Therefore, if the 
Licencia Federal is not re-validated every 2 years as specified by 
Mexican law, the driver's license is considered invalid.
PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

Sections Interpreted

384.209  Notification of traffic violations
384.211  Return of Old Licenses

Section 384.209  Notification of Traffic Violations

    Question 1: Must a CDL holder's out-of-State conviction for a 
traffic violation be included in the driving record of the State of 
licensure (and thus CDLIS), if there are no traffic violation points 
assigned to the conviction?
    Guidance: All out-of-State convictions of a CDL holder for traffic 
violations committed in any vehicle must be sent to the State of 
licensure, but only the convictions for offenses specified in 49 CFR 
383.51 must be included in that State's driving record (and thus 
CDLIS). Assigning points to a conviction is strictly a State decision 
and has no bearing on the inclusion of the conviction.
    The FHWA recommends the inclusion by the State of licensure of all 
convictions of a CDL holder for traffic violations committed in any 
vehicle, so that the State will have the full driver record available 
as an aid in making licensing decisions.
    Question 2: Must the licensing agency establish a commercial driver 
record, including a CDLIS pointer record, for a person holding a non-
commercial license issued by that jurisdiction upon receiving 
notification of a conviction of any offense committed while (illegally) 
operating a CMV?
    Guidance: Yes.

Section 384.211  Return of Old Licenses

    Question 1: May licensing jurisdictions meet their stewardship 
requirements for surrendered licenses by physically marking the license 
in some way as not valid and returning it to a driver as part of the 
driver's application for a new or renewal of an existing CDL?
    Guidance: Yes. Provided the licensing jurisdiction meets the test 
of guaranteeing that the returned license document cannot possibly be 
mistaken for a valid document by a casual observer. A document 
perforated with the word ``VOID'' conspicuously and unmistakably 
displayed with holes large enough to be easily distinguished by a 
casual observer in limited light, which cannot be obscured by the 
holder of the document would meet the test of being invalidated.
PART 386--RULES OF PRACTICE FOR MOTOR CARRIER SAFETY AND HAZARDOUS 
MATERIALS PROCEEDINGS

Sections Interpreted

386.1  Scope of Rules in this Part

Section 386.1  Scope of Rules in This Part

    Question 1: What is the authority of the RDMC to issue provisions 
as a part of the terms in a Notice of Abatement, Notice of Assessment, 
Compliance Order and Consent Order?
    Guidance: The MCSA of 1984 provided the authority to penalize 
violators of Notices and Orders issued by the FHWA. Regulations were 
issued under part 386 which specify these penalties. Notices to Abate 
and Notices of Assessment/Claim generally deal with specific regulatory 
requirements. Consent Orders and Compliance Orders often require 
remedial measures not specifically mentioned in the FMCSRs since the 
motor carrier's compliance record often indicates that additional 
measures are needed to improve safety and compliance with the 
regulations.
PART 387--MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR CARRIERS

Sections Interpreted

Subpart A--Motor Carriers of Property

387.1  Purpose and Scope
387.3  Applicability
387.5  Definitions
387.7  Financial Responsibility Required
387.9  Financial Responsibility, Minimum Levels
387.11  State Authority and Designation of Agent
387.15  Forms

Subpart B--Motor Carriers of Passengers

387.25  Purpose and Scope
387.27  Applicability
387.31  Financial Responsibility Required
387.39  Forms

Subpart A--Motor Carriers of Property

Section 387.1  Purpose and Scope

    Question 1: May a State require a higher level of financial 
responsibility coverage than is required by part 387?
    Guidance: Yes.

Section 387.3  Applicability

    Question 1: At what GVWR, as assigned by a manufacturer, does the 
requirement to comply with the financial responsibility regulations 
begin?
    Guidance: Generally, part 387, subpart A applies if the vehicle has 
a GVWR of 10,000 pounds or more. Part 387, subpart A, does not apply to 
the intrastate transportation of nonbulk oil, nonbulk HM, substances or 
wastes. Motor vehicles used to transport any quantity of Divisions 1.1, 
1.2 or 1.3 (explosive) materials, poison gas, or highway route 
controlled quantity of radioactive materials in interstate or foreign 
commerce are subject to Federal regulation regardless of the GVWR.

[[Page 16402]]

    Question 2: Does the GVWR apply to the power unit only?
    Guidance: No.
    Question 3: When are tow trucks subject to financial responsibility 
coverage?
    Guidance: For-hire tow trucks with a GVWR or GCWR of 10,000 pounds 
or more performing emergency moves in interstate or foreign commerce 
are required to maintain minimum levels of financial responsibility in 
the amount of $750,000. For-hire tow trucks performing secondary moves 
are required to maintain levels of coverage applicable to the commodity 
being transported by the vehicle being towed.
    Question 4: Are Federal, State or local political subdivisions 
subject to the financial responsibility regulations?
    Guidance: No.
    Question 5: Is a motor vehicle owned by an owner-operator, and 
being dead-headed (returning empty), or a tractor that is being 
bobtailed (operating without a trailer), subject to the financial 
responsibility regulations?
    Guidance: A motor vehicle deadheading or bobtailing while in the 
service of a motor carrier would be subject to the financial 
responsibility regulations.
    Question 6: Is a motor carrier transporting mail under contract for 
the U.S. Postal Service wholly within the boundaries of a single State 
subject to the minimum levels of financial responsibility requirements 
of part 387?
    Guidance: Yes. The transportation of U.S. mail is considered to be 
interstate commerce because of the intermingling of inter- and 
intrastate mail on every vehicle.
    Question 7: Are motor carriers transporting HM that are excepted 
from the HMRs subject to financial responsibility regulations?
    Guidance: Yes. Packaging or transportation exceptions in the HMRs 
do not change the need for financial responsibility at the appropriate 
level commensurate with the commodity being transported.
    Question 8: Are motor vehicles being transported considered to be 
HM for purposes of the financial responsibility requirements, thus 
requiring the higher limits set forth in the regulations?
    Guidance: No, while motor vehicles are identified as HM in the 
Hazardous Materials Table at Sec. 172.101, motor vehicles, by 
themselves, are not to be treated as HM and should be considered 
nonhazardous property.
    Question 9: Is a travel trailer or motor home that has propane 
cylinders attached subject to part 387 of the FMCSRs?
    Guidance: No. The FHWA considers such propane cylinders to be an 
integral part of the recreational vehicle and not subject to the 
financial responsibility regulations.

Section 387.5  Definitions

    Question 1: Does the definition of the term ``in bulk'' include 
solids as well as liquids even though the definition refers to 
containment systems with capacities in excess of 3,500 water gallons?
    Guidance: Yes, the term ``3,500 water gallons'' is used as a 
volumetric value and includes solids as well as liquids.

Section 387.7  Financial Responsibility Required

    Question 1: May a large corporation which has many wholly owned 
subsidiaries have one policy for the parent corporation and maintain 
the policy and the Form MCS-90 at the corporate headquarters?
    Guidance: Generally, the required financial responsibility must be 
in the exact name of the motor carrier and the proof of that coverage 
must be maintained at the motor carrier's principal place of business. 
A parent corporation may, however, have a single policy of insurance or 
surety bond covering the parent and its subsidiaries, provided the name 
of the parent and the name of each subsidiary are listed on the policy 
or bond. Further, the required proof must have listed thereon the name 
of the parent and its subsidiaries. A copy of that proof of financial 
responsibility coverage must be maintained at each motor carrier 
subsidiary's principal place of business.
    Question 2: What is the definition of ``Certificate of 
Registration'' in Sec. 387.7(b)(3)?
    Guidance: ``Certificate of Registration'' means a document issued 
by the FHWA to all Mexican motor carriers, for-hire as well as private, 
that allows them to enter the U.S., but restricts them to the 
commercial zone for a particular border municipality, as previously 
adopted by the ICC. The border municipality is the Port of Entry 
wherever the motor carrier's vehicle enters the U.S.
    Question 3: How does a Mexican motor carrier prove that it is 
complying with Sec. 387.7?
    Guidance: Mexican motor carriers are permitted to obtain trip 
insurance and are required to carry, on the vehicle, a Form MCS-90 
along with an insurance verification document listing the date and time 
the insurance coverage began and expires.
    Question 4: Is the financial responsibility requirement met when an 
owner-operator (lessor) provides the motor carrier (lessee) a copy of 
the policy and Form MCS-90 where the carrier is named as an additional 
insured to the policy (Form MCS-90)?
    Guidance: No. The motor carrier has the responsibility to obtain 
the proper financial responsibility levels.

Section 387.9  Financial Responsibility, Minimum Levels

    Question 1: Is gasoline listed as a hazardous material, and, if so, 
what is the minimum level of financial responsibility currently 
required?
    Guidance: Gasoline is a listed hazardous material in the table 
found at 49 CFR 172.101. Section 387.9 requires for-hire and private 
motor carriers transporting any quantity of oil in interstate or 
foreign commerce to have a minimum $1,000,000 of financial 
responsibility coverage. The Clean Water Act of 1973, as amended, 
declares that gasoline is an ``oil,'' not a ``hazardous substance.'' 
The $1,000,000 coverage also applies to for-hire and private motor 
carriers transporting gasoline ``in-bulk'' in intrastate commerce.
    Question 2: Is a motor carrier transporting liquefied petroleum gas 
(LPG) in any quantity required to have $1,000,000 or $5,000,000 of 
financial responsibility coverage?
    Guidance: Liquefied petroleum gas (LPG) is a flammable compressed 
gas. All transportation of LPG in containment systems with capacities 
in excess of 3,500 water gallons requires $5 million financial 
responsibility coverage. Interstate and foreign commerce movements of 
LPG in containment systems not in excess of 3,500 water gallons 
requires $1 million coverage. Intrastate movements of LPG in those 
smaller containment systems are subject only to state financial 
responsibility requirements.
    Question 3: What is the definition of a ``hopper type'' vehicle as 
indicated in Sec. 387.9?
    Guidance: A ``hopper type'' vehicle is one which is capable of 
discharging its load through a bottom opening without tilting. This 
vehicle type would also include belly dump trailers. Rear dump trailers 
and roll-off containers do not meet the definition of a bottom 
discharging vehicle.

Section 387.11  State Authority and Designation of Agent

    Question 1: How does a Mexican motor carrier demonstrate that its 
insurance company complies with Sec. 387.11?
    Guidance: With a properly executed Form MCS-90 from an insurance 
company licensed in the U.S.

[[Page 16403]]

Section 387.15  Forms

    Question 1: May the motor carrier meet the financial responsibility 
requirements by aggregating insurance in layers?
    Guidance: Yes. A motor carrier may aggregate coverage, by 
purchasing insurance in layers with each layer consisting of a separate 
policy and endorsement. The first layer of coverage is referred to as 
primary insurance and each additional layer is referred to as excess 
insurance. Example: ABC Motor Carrier transports Division 1.1 explosive 
material and is required to maintain $5 million coverage. ABC Motor 
Carrier decides to meet this requirement by purchasing a primary 
insurance policy of $1 million from insurance company A, an excess 
policy of $1 million from insurance company B, and a $3 million excess 
policy from insurance company C. Each policy would have a separate 
endorsement (Form MCS-90). The endorsement provided by insurer A would 
state ``This insurance is primary and the company shall not be liable 
for amounts in excess of $1,000,000 for each accident.'' The 
endorsement provided by insurer B would state ``This insurance is 
excess and the company shall not be liable for amounts in excess of $1 
million for each accident in excess of the underlying limit of $1 
million for each accident.'' The endorsement provided by insurer C 
would state ``This insurance is excess and the company shall not be 
liable for amounts in excess of $3 million for each accident in excess 
of the underlying limit of $2 million for each accident.''
    Question 2: May the Form MCS-90 required by part 387 for proof of 
minimum financial responsibility be modified?
    Guidance: The prescribed text of the document may not be changed. 
However, the format (i.e., number of pages, layout of the text, etc.) 
may be altered.
    Question 3: Is the use of a printed or stamped signature on the 
Form MCS-90 endorsement acceptable?
    Guidance: Yes.
    Question 4: Must a motor carrier obtain a new Form MCS-90 each year 
if it retains the same insurance company?
    Guidance: If the insurance policy, as identified by the policy 
number on the Form MCS-90, is still valid upon the renewal of 
insurance, no new Form MCS-90 is required. If the policy number has 
changed or the insurance policy has been canceled in accordance with 
the terms shown on Form MCS-90, then a new Form MCS-90 must be 
completed and attached to the valid insurance policy.
Subpart B--Motor Carriers of Passengers

Section 387.25  Purpose and Scope

    Question 1: May a State require a higher level of financial 
responsibility coverage than is required by part 387?
    Guidance: Yes.

Section 387.27  Applicability

    Question 1: Is a nonprofit corporation, providing for-hire 
interstate transportation of passengers, subject to the minimum levels 
of financial responsibility for motor carriers of passengers?
    Guidance: Yes.
    Question 2: What determines the level of coverage required for a 
passenger carrier: the number of passengers or the number of seats in 
the vehicle?
    Guidance: The level of financial responsibility required is 
predicated upon the manufacturer's designed seating capacity, not on 
the number of passengers riding in the vehicle at a particular time. 
The minimum levels of financial responsibility required for various 
seating capacities are found in Sec. 387.33.
    Question 3: Are luxury limousines with a seating capacity of fewer 
than seven passengers and not operated on a regular route or between 
specified points exempted under Sec. 387.27(b)(2)?
    Guidance: No. Taxi cab service is highly regulated by local 
governments, usually conducted in marked vehicles, which makes them 
readily identifiable to enforcement officials. Limousines are not taxi 
cabs and are therefore not exempted from the financial responsibility 
requirements.
    Question 4: When must a contract school bus operator comply with 
part 387?
    Guidance: When the contractor is not engaged in transportation to 
or from school and the transportation is not organized, sponsored, and 
paid for by the school district.
    Question 5: Does the exemption for the transportation of school 
children end at the high school level or does it extend to educational 
institutions beyond high school, for example junior college or college?
    Guidance: The exemption does not extend beyond the high school 
level.

Section 387.31  Financial Responsibility Required

    Question 1: May a large corporation which has many wholly-owned 
subsidiaries have one policy of insurance for the parent corporation 
and maintain the policy and Form MCS-90B at the corporate headquarters?
    Guidance: Generally, the required financial responsibility must be 
in the exact name of the motor carrier and the proof of that coverage 
must be maintained at the motor carrier's principal place of business. 
A parent corporation may, however, have a single policy of insurance or 
surety bond covering the parent and its subsidiaries, provided the name 
of the parent and the name of each subsidiary are listed on the policy 
or bond. Further, the required proof must have listed thereon the name 
of the parent and its subsidiaries. A copy of that proof of financial 
responsibility coverage must be maintained at each motor carrier 
subsidiary's principal place of business.

Section 387.39  Forms

    Question 1: May a motor carrier of passengers meet the financial 
responsibility requirements by aggregating insurance in layers?
    Guidance: Yes. A motor carrier of passengers may aggregate 
coverage, by purchasing insurance in layers with each layer consisting 
of a separate policy and endorsement. The first layer of coverage is 
referred to as primary insurance and each additional layer is referred 
to as excess insurance. Each policy would have a separate endorsement 
(Form MCS-90B). The endorsement provided by insurer A would state 
``This insurance is primary and the company shall not be liable for 
amounts in excess of $1,500,000 or $5,000,000 for each accident.'' The 
endorsement provided by insurer B would state ``This insurance is 
excess and the company shall not be liable for amounts in excess of $1 
million for each accident in excess of the underlying limit of 
$1,500,000 or $5,000,000 million for each accident.'' The endorsement 
provided by insurer C would state ``This insurance is excess and the 
company shall not be liable for amounts in excess of $3 million for 
each accident in excess of the underlying limit of $2 million for each 
accident.''
    Question 2: May the Form MCS-90B required by part 387 for proof of 
minimum financial responsibility be modified?
    Guidance: The prescribed text of the document may not be changed. 
However, the format (i.e., number of pages, layout of the text, etc.) 
may be altered.
    Question 3: Is the use of a facsimile signature (e.g., printed, 
stamped, autopenned, etc.) on the Form MCS-90B endorsement acceptable?
    Guidance: Yes.

[[Page 16404]]

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

Sections Interpreted

390.3  General Applicability
390.5  Definitions
390.9  State and Local Laws, Effect on
390.15  Assistance in Investigations and Special Studies
390.21  Marking of Commercial Motor Vehicles
390.23  Relief From Hours-of-Service Regulations--Disasters
390.31  Copies of Records or Documents
Special Topics--Serious Pattern of Violations

Section 390.3  General Applicability

    Question 1: Does the government exception in Sec. 390.3(f)(2) apply 
to motor carriers doing business with the government?
    Guidance: No. The exception applies only when the government is the 
motor carrier.
    Question 2: Are the FMCSRs applicable to drivers and CMVs which 
transport tools, equipment, and supplies across State lines in a CMV?
    Guidance: Yes, the FMCSRs are applicable to drivers and CMVs in 
interstate commerce which transport property. The property in this 
situation is the tools, equipment and supplies.
    Question 3: Are the operations of a church which provides bus tours 
to the general public for compensation subject to the FMCSRs as a for-
hire motor carrier?
    Guidance: Yes, the church is a for-hire motor carrier of passengers 
subject to the FMCSRs.
    Question 4: Are the FMCSRs applicable to the rail movement of 
trailers and intermodal container chassis that previously or 
subsequently were moved by highway by a motor carrier in interstate 
commerce?
    Guidance: No. They are only subject when being moved as a motor 
vehicle by highway by a motor carrier.
    Question 5: Are personnel involved in road testing CMVs across a 
State line subject to the FMCSRs?
    Guidance: Yes, any driver (including mechanics, technicians, driver 
trainees and other personnel) operating a CMV in interstate commerce 
must be in compliance with the FMCSRs.
    Question 6: How does one distinguish between intra- and interstate 
commerce for the purposes of applicability of the FMCSRs?
    Guidance: Interstate commerce is determined by the essential 
character of the movement, manifested by the shipper's fixed and 
persistent intent at the time of shipment, and is ascertained from all 
of the facts and circumstances surrounding the transportation. When the 
intent of the transportation being performed is interstate in nature, 
even when the route is within the boundaries of a single State, the 
driver and CMV are subject to the FMCSRs.
    Question 7: Are Red Cross vehicles/drivers subject to the FMCSRs?
    Guidance: Red Cross vehicles/drivers used to provide emergency 
relief under the provisions of Sec. 390.23 are not subject to the 
FMCSRs while providing the relief. However, these vehicles/drivers 
would be subject when operating at other times, provided they are used 
in interstate commerce and the vehicles meet the definition of a CMV.
    Question 8: May a motor carrier require fingerprinting as a pre-
employment condition?
    Guidance: The FMCSRs do not require or prohibit fingerprinting as a 
condition of employment. Section 390.3(d) allows employers to enforce 
more stringent requirements.
    Question 9: Are the FMCSRs applicable to drivers/vehicles operated 
by a State or local educational institution which is a political 
subdivision of the State?
    Guidance: Section 390.3(f)(2) specifically exempts transportation 
performed by a State or a political subdivision including any agency of 
a State or locality from the FMCSRs. The drivers, however, may be 
subject to the CDL requirements and/or State laws that are similar to 
the FMCSRs.
    Question 10: Are the FMCSRs applicable to drivers/vehicles operated 
by a transit authority owned and operated by a State or a political 
subdivision of the State?
    Guidance: Section 390.3(f)(2) specifically exempts transportation 
performed by the Federal Government, a State, or any political 
subdivision of a State from the FMCSRs. However, this exemption does 
not apply to the CDL requirements in part 383. Also, if governmental 
entities engage in interstate charter transportation of passengers, 
they must comply with accident report retention requirements of part 
390.
    Question 11: Is the interstate transportation of students, teachers 
and parents to school events such as athletic contests and field trips 
performed by municipalities subject to the FMCSRs? If a fee is charged 
to defer the municipality's expenses, does this affect the 
applicability of the regulations?
    Guidance: Section 390.3(f)(2) specifically exempts transportation 
performed by the Federal Government, a State, or any political 
subdivision of a State from the FMCSRs. Charging a fee to defer 
governmental costs does not affect this exemption.
    However, this exemption does not apply to the CDL requirements in 
part 383. Also, if governmental entities engage in interstate charter 
transportation of passengers, they must comply with accident report 
retention requirements of part 390.
    Question 12: What is the applicability of the FMCSRs to school bus 
operations performed by Indian Tribal Governments?
    Guidance: Transportation performed by the Federal Government, 
States, or political subdivisions of a State is generally excepted from 
the FMCSRs. This general exception includes Indian Tribal Governments, 
which for purposes of Sec. 390.3(f) are equivalent to a State 
governmental entity. When a driver is employed and a bus is operated by 
the governmental entity, the operation would not be subject to the 
FMCSRs, with the following exceptions: The requirements of part 383 as 
they pertain to commercial driver licensing standards are applicable to 
every driver operating a CMV, and the accident report retention 
requirements of part 390 are applicable when the governmental entity is 
performing interstate charter transportation of passengers.
    Question 13: A motor carrier dispatches an empty CMV from State A 
into adjoining State B in order to transport cargo or passengers 
between two points in State B, and then to return empty to State A. 
Does the transportation of cargo or passengers within State B 
constitute interstate commerce?
    Guidance: Yes. The courts and the ICC developed a test that 
clarifies the legal status of intrastate portions of interstate trips. 
The character of the intrastate leg depends on the shipper's fixed and 
persistent intent when the transportation began. The fixed and 
persistent intent in this case was to move property--the vehicle 
itself--across State lines and between two points in State B where it 
was used to haul cargo or passengers. The transportation within State 
B, therefore, constitutes interstate commerce. In some cases the motor 
carrier may be the shipper.
    Question 14: What is the applicability of the FMCSRs to motor 
carriers owning and operating school buses that contract with a 
municipality to provide pupil transportation services?
    Guidance: For the purposes of the FMCSRs, parts 390-399, ``school 
bus operation'' means the use of a school bus to transport school 
children and/or school personnel from home to school and from school to 
home. A ``school bus'' is a passenger motor vehicle

[[Page 16405]]

designed to carry more than 10 passengers in addition to the driver, 
and used primarily for school bus operations (see Sec. 390.5). School 
bus operations and transportation performed by government entities are 
specifically exempted from the FMCSRs under Sec. 390.3(f).
    However, anyone operating school buses under contract with a school 
is a for-hire motor carrier. When a nongovernment, for-hire motor 
carrier transports children to school-related functions other than 
``school bus operation'' such as sporting events, class trips, etc., 
and operates across State lines, its operation must be conducted in 
accordance with the FMCSRs. This applies to motor carriers that operate 
CMVs as defined under part 390 which includes vehicles which have a 
GVWR of 10,001 pounds or more or are designed or used to carry 
passengers for compensation, except 6-passenger taxicabs not operating 
on fixed routes.
    In certain instances, carriers providing school bus transportation 
are not subject to the Bus Regulatory Reform Act of 1982 and the 
minimum financial responsibility requirements (part 387) issued under 
this Act. Transportation of school children and teachers that is 
organized, sponsored, and paid for by the school district is not 
subject to part 387. Therefore, school bus contractors must comply with 
the FMCSRs for interstate trips such as sporting events and class trips 
but are not required by Federal regulations to carry a specific level 
of insurance coverage.
    For those operations provided by school bus contractors that are 
subject to the FMCSRs, the motor carriers must keep driver and vehicle 
records as required by the regulations. This would include driver 
qualifications records (part 391), driver records of duty status (part 
395), accident report retention (part 390), and inspection, repair, and 
maintenance records (part 396) for the drivers and vehicles that are 
used on the trips that are subject to the FMCSRs. These records are not 
required under the FMCSRs for the other vehicles in the motor carrier's 
fleet that are not subject to the regulations.
    Question 15: May drivers be coerced into employing loading or 
unloading assistance (lumpers)?
    Guidance: No. The Motor Carrier Act of 1980 made it illegal to 
coerce someone into unwanted loading or unloading and require payment 
for it (49 U.S.C. 14103, previously 49 U.S.C. 11109). The FHWA is 
responsible for the enforcement of regulations forbidding coercion in 
the use of lumpers.
    Question 16: a. Are vehicles which, in the course of interstate 
transportation over the highway, are off the highway, loading, 
unloading or waiting, subject to the FMCSRs during these times?
    b. Are vehicles and drivers used wholly within terminals and on 
premises or plant sites subject to the FMCSRs?
    Guidance:
      a. Yes.
      b. No.
    Question 17: What protection is afforded a driver for refusing to 
violate the FMCSRs?
    Guidance: Section 405 of the STAA (49 U.S.C. 31105) states, in 
part, that no person shall discharge, discipline, or in any manner 
discriminate against an employee with respect to the employee's 
compensation, terms, conditions, or privileges of employment for 
refusing to operate a vehicle when such operation constitutes a 
violation of any Federal rule, regulation, standard, or order 
applicable to CMV safety. In such a case, a driver may submit a signed 
complaint to the Occupational Safety and Health Administration.
    Question 18: Are persons who operate CMVs for the personal 
conveyance of their friends or family members ``private motor carriers 
of passengers (nonbusiness)'' as defined in Sec. 390.5?
    Guidance: No. Nonbusiness private motor carriers of passengers 
(PMCPs) do not include individuals providing personal conveyance of 
passengers for recreational purposes. A nonbusiness PMCP must be 
engaged in some group activity. For example, organizations that are 
exempt under the Internal Revenue Code (26 U.S.C. 501) and provide 
transportation for their members would generally be considered 
nonbusiness PMCPs: Religious, charitable, scientific, and educational 
organizations, scouting groups, sports clubs, fraternal societies or 
lodges, etc.
    Question 19: ``Unless otherwise specifically provided,'' 
Sec. 390.3(f)(2) exempts certain government entities and their drivers 
from compliance with 49 CFR Chapter III, Subchapter B, i.e., parts 350-
399. Which parts are covered by this exemption and which are 
``otherwise specifically'' excluded?
    Guidance: Government employers and drivers are exempt from 
compliance with parts 325, 385, 387, and 390-399. However, they must 
comply with the drug and alcohol testing requirements in part 382 and 
the CDL requirements in part 383. Parts 350, 355, 384, 386, 388, and 
389 do not directly regulate CMV operators, public or private, and the 
question of an exemption therefore does not arise.
    Question 20: Do the FMCSRs apply to Indian Tribal Governments?
    Guidance: Under Sec. 390.3(f)(2), transportation performed by the 
Federal Government, States, or political subdivisions of a State is 
generally exempt from the FMCSRs. Indian Tribal Governments are 
considered equivalent to a State governmental entity for purposes of 
this exemption. Thus, when a driver is employed by and is operating a 
CMV owned by a governmental entity, neither the driver, the vehicle, 
nor the entity is subject to the FMCSRs, with the following exceptions:
    (1) The requirements of part 383 relating to CMV driver licensing 
standards;
    (2) The drug testing requirements in part 382;
    (3) Alcohol testing when an employee is performing, about to 
perform, or just performed safety-sensitive functions. For the purposes 
of alcohol testing, safety-sensitive functions are defined in 
Sec. 382.107 as any of those on-duty functions set forth in Sec. 395.2 
On-Duty time, paragraphs (1) through (6), (generally, driving and 
related activities) and;
    (4) The accident report retention requirements of Sec. 390.15 are 
applicable when the governmental entity is performing interstate 
charter transportation of passengers.
    Question 21: Does the exemption in Sec. 390.3(f)(3) for the 
``occasional transportation of personal property by individuals not for 
compensation nor in the furtherance of a commercial enterprise'' apply 
to persons who occasionally use CMVs to transport cars, boats, horses, 
etc., to races, tournaments, shows or similar events, even if prize 
money is offered at these events?
    Guidance: The exemption would apply to this kind of transportation, 
provided: (1) The underlying activities are not undertaken for profit, 
i.e., (a) prize money is declared as ordinary income for tax purposes, 
and (b) the cost of the underlying activities is not deducted as a 
business expense for tax purposes; and, where relevant; (2) corporate 
sponsorship is not involved. Drivers must confer with their State of 
licensure to determine the licensing provisions to which they are 
subject.
    Question 22: If, after December 18, 1995, a Mexico-based driver is 
found operating beyond the boundaries of the four border States allowed 
by the North American Free Trade Agreement (NAFTA), is that driver in 
violation of the FMCSRs? If so, which one?
    Guidance: No. Driving beyond the four border States is not, in and 
of itself, a violation of the FMCSRs.

[[Page 16406]]

    Question 23: Is transportation within the boundaries of a State 
between a place in an Indian Reservation and a place outside such 
reservation interstate commerce?
    Guidance: No, such transportation is considered to be intrastate 
commerce. An Indian reservation is geographically located within the 
area of a State. Enforcement on Indian reservations is inherently 
Federal, unless such authority has been granted to the States by 
Congressional enactment, accepted by the States where appropriate, and 
consented to by the Indian tribes.
    Question 24: To what extent does the FHWA have jurisdiction to 
regulate the qualifications and hours of service of CMV drivers engaged 
in interstate or foreign commerce if the drivers only occasionally 
operate in interstate or foreign commerce?
    Guidance: The FHWA published an interpretation in the Federal 
Register on July 23, 1981 (46 FR 37902) on this subject. The FHWA must 
show that the driver or motor carrier has engaged in interstate or 
foreign commerce within a reasonable period of time prior to its 
assertion of jurisdiction under 49 U.S.C. 31136 and 31502.
    The FHWA must show that the driver or motor carrier has actually 
operated in interstate commerce within a reasonable period of time 
prior to its assertion of jurisdiction. Mere solicitation of business 
that would involve operations in interstate commerce is not sufficient 
to establish jurisdiction. If jurisdiction is claimed over a driver who 
has not driven in interstate commerce, evidence must be presented that 
the carrier has operated in interstate commerce and that the driver 
could reasonably be expected to make one of the carrier's interstate 
runs. Satisfactory evidence would include, but not be limited to, 
statements from drivers and carriers and any employment agreements.
    Evidence of driving or being available for use in interstate 
commerce makes the driver subject to the FMCSRs for a 4-month period 
from the date of the proof. For that period, the motor carrier is also 
required to comply with those portions of the FMCSRs that deal with 
drivers, driving, and records related to or generated by drivers, 
primarily those in 49 CFR parts 387, 391, 392, 395 and 396. The FHWA 
believes that the 4-month period is reasonable because it avoids both a 
week-by-week determination of jurisdiction, which is excessively 
narrow, and the assertion that a driver who is used or available for 
use once remains subject to the FMCSRs for an unlimited time, which is 
overly inclusive.

Section 390.5  Definitions

    Question 1: Do the definitions of ``farm,'' ``farmer'' and 
``agricultural crops'' apply to greenhouse operations?
    Guidance: Yes.
    Question 2: Is a vehicle used to transport or tow anhydrous ammonia 
nurse tanks considered a CMV and subject to FMCSRs?
    Guidance: Yes, provided the vehicle's GVWR or GCWR meets or exceeds 
that of a CMV as defined in Sec. 390.5 and/or the vehicle transports HM 
in a quantity that requires placarding.
    Question 3: If a vehicle's GVWR plate and/or VIN number are missing 
but its actual gross weight is 10,001 pounds or more, may an 
enforcement officer use the latter instead of GVWR to determine the 
applicability of the FMCSRs?
    Guidance: Yes. The only apparent reason to remove the 
manufacturer's GVWR plate or VIN number is to make it impossible for 
roadside enforcement officers to determine the applicability of the 
FMCSRs, which have a GVWR threshold of 10,001 pounds. In order to 
frustrate willful evasion of safety regulations, an officer may 
therefore presume that a vehicle which does not have a manufacturer's 
GVWR plate and/or does not have a VIN number has a GVWR of 10,001 
pounds or more if: (1) It has a size and configuration normally 
associated with vehicles that have a GVWR of 10,001 pounds or more; and 
(2) It has an actual gross weight of 10,001 pounds or more.
    A motor carrier or driver may rebut the presumption by providing 
the enforcement officer the GVWR plate, the VIN number or other 
information of comparable reliability which demonstrates, or allows the 
officer to determine, that the GVWR of the vehicle is below the 
jurisdictional weight threshold.
    Question 4: If a vehicle with a manufacturer's GVWR of less than 
10,001 pounds has been structurally modified to carry a heavier load, 
may an enforcement officer use the higher actual gross weight of the 
vehicle, instead of the GVWR, to determine the applicability of the 
FMCSRs?
    Guidance: Yes. The motor carrier's intent to increase the weight 
rating is shown by the structural modifications. When the vehicle is 
used to perform functions normally performed by a vehicle with a higher 
GVWR, Sec. 390.33 allows an enforcement officer to treat the actual 
gross weight as the GVWR of the modified vehicle.
    Question 5: A driver used by a motor carrier operates a CMV to and 
from his/her residence out of State. Is this considered interstate 
commerce?
    Guidance: If the driver is operating a CMV at the direction of the 
motor carrier, it is considered interstate commerce and is subject to 
the FMCSRs. If the motor carrier is allowing the driver to use the 
vehicle for private personal transportation, such transportation is not 
subject to the FMCSRs.
    Question 6: Is transporting an empty CMV across State lines for 
purposes of repair and maintenance considered interstate commerce?
    Guidance: Yes. The FMCSRs are applicable to drivers and CMVs in 
interstate commerce which transport property. The property in this 
situation is the empty CMV.
    Question 7: Does off-road motorized construction equipment meet the 
definitions of ``motor vehicle'' and ``commercial motor vehicle'' as 
used in Secs. 383.5 and 390.5?
    Guidance: No. Off-road motorized construction equipment is outside 
the scope of these definitions: (1) When operated at construction 
sites: and (2) when operated on a public road open to unrestricted 
public travel, provided the equipment is not used in furtherance of a 
transportation purpose. Occasionally driving such equipment on a public 
road to reach or leave a construction site does not amount to 
furtherance of a transportation purpose. Since construction equipment 
is not designed to operate in traffic, it should be accompanied by 
escort vehicles or in some other way separated from the public traffic. 
This equipment may also be subject to State or local permit 
requirements with regard to escort vehicles, special markings, time of 
day, day of the week, and/or the specific route.
    Question 8: What types of equipment are included in the category of 
off-road motorized construction equipment?
    Guidance: The definition of off-road motorized construction 
equipment is to be narrowly construed and limited to equipment which, 
by its design and function is obviously not intended for use, nor is it 
used on a public road in furtherance of a transportation purpose. 
Examples of such equipment include motor scrapers, backhoes, motor 
graders, compactors, tractors, trenchers, bulldozers and railroad track 
maintenance cranes.
    Question 9: Are mobile cranes operating in interstate commerce 
subject to the FMCSRs?
    Guidance: Yes, the definition of CMV encompasses mobile cranes.
    Question 10: Does the FHWA define for-hire transportation of 
passengers the same as the former ICC did?

[[Page 16407]]

    Guidance: To the extent FHWA's authority stems from 49 U.S.C. 31502 
or other sections of Title 49 which are rooted in the Interstate 
Commerce Act, the FHWA is bound by judicial precedent and legislative 
history in interpreting that Act, much of which relates to the 
operations of the former ICC. However, since the MCSA of 1984 re-
established the FHWA's jurisdictional authority and resulted in a re-
promulgation of the FMCSRs, the FHWA has been establishing its own 
precedents based on ``safety'' rather than ``economics'' as the 
overriding consideration. This has resulted in some deviation in the 
definition of terms by the two agencies, e.g., commercial zones, for-
hire transportation, etc.
    The term ``for-hire motor carrier'' as defined in part 390 means a 
person engaged in the transportation of goods or passengers for 
compensation. The FHWA has determined that any business entity that 
assesses a fee, monetary or otherwise, directly or indirectly for the 
transportation of passengers is operating as a for-hire carrier. Thus, 
the transportation for compensation in interstate commerce of 
passengers by motor vehicles (except in six-passenger taxicabs 
operating on fixed routes) in the following operations would typically 
be subject to all parts of the FMCSRs, including part 387: whitewater 
river rafters, hotel/motel shuttle transporters, rental car shuttle 
services, etc. These are examples of for-hire carriage because some fee 
is charged, usually indirectly in a total package charge or other 
assessment for transportation performed.
    Question 11: A company has a truck with a GVWR under 10,001 pounds 
towing a trailer with a GVWR under 10,001 pounds. However, the GVWR of 
the truck added to the GVWR of the trailer is greater than 10,001 
pounds. Would the company operating this vehicle in interstate commerce 
have to comply with the FMCSRs?
    Guidance: Section 390.5 of the FMCSRs includes in the definition of 
CMV a vehicle with a GVWR or GCWR of 10,001 or more pounds. The section 
further defines GCWR as the value specified by the manufacturer as the 
loaded weight of a combination (articulated) vehicle. Therefore, if the 
GVWR of the truck added to the GVWR of the trailer exceeds 10,001 
pounds, the driver and vehicle are subject to the FMCSRs.
    Question 12: A CMV becomes stuck in a median or on a shoulder, and 
has had no contact with another vehicle, a pedestrian, or a fixed 
object prior to becoming stuck. If a tow truck is used to pull the CMV 
back onto the traveled portion of the road, would this be considered an 
accident?
    Guidance: No.
    Question 13: To what extent would the windshield and/or mirrors of 
a vehicle have to be damaged in order for it to be considered 
``disabling damage'' as used in the definition of an accident in 
Sec. 390.5?
    Guidance: The decision as to whether damage to a windshield and/or 
mirrors is disabling is left to the discretion of the investigating 
officer.
    Question 14: Is the tillerman who controls the steerable rear axle 
of a vehicle so equipped a driver subject to the FMCSRs while operating 
in interstate commerce?
    Guidance: Yes. Although the tillerman does not control the 
vehicle's speed or braking, the rear-axle steering he/she performs is 
essential to prevent the trailer from offtracking into other lanes or 
vehicles or off the highway entirely. Because this function is critical 
to the safe operation of vehicles with steerable rear axles, the 
tillerman is a driver.
    Question 15: Does the definition of a ``commercial motor vehicle'' 
in Sec. 390.5 of the FMCSRs include parking lot and/or street sweeping 
vehicles?
    Guidance: If the GVWR of a parking lot or street sweeping vehicle 
is 10,001 or more pounds, and it operates in interstate commerce, it is 
a CMV.
    Question 16: Does a driver leasing company that hires, assigns, 
trains, and/or supervises drivers for a private or for-hire motor 
carrier become a motor carrier as defined by 49 CFR 390.5?
    Guidance: No.
    Question 17: May a motor carrier that employs owner-operators who 
have their own operating authority issued by the ICC or the Surface 
Transportation Board transfer the responsibility for compliance with 
the FMCSRs to the owner-operators?
    Guidance: No. The term ``employee,'' as defined in Sec. 390.5, 
specifically includes an independent contractor employed by a motor 
carrier. The existence of operating authority has no bearing upon the 
issue. The motor carrier is, therefore, responsible for compliance with 
the FMCSRs by its driver employees, including those who are owner-
operators.
    Question 18: Must a person who is injured in an accident and 
immediately receives treatment away from the scene of the accident be 
transported in an ambulance?
    Guidance: No. Any type of vehicle may be used to transport an 
injured person from the accident scene to the treatment site.
    Question 19: What is the meaning of ``immediate'' as used in the 
definition of ``accident?''
    Guidance: The term ``immediate'' means without an unreasonable 
delay. A person immediately receives medical treatment if he or she is 
transported directly from the scene of an accident to a hospital or 
other medical facility as soon as it is considered safe and feasible to 
move the injured person away from the scene of the accident.
    Question 20: A person involved in an incident discovers that he or 
she is injured after leaving the scene of the incident and receives 
medical attention at that time. Does the incident meet the definition 
of accident in 49 CFR 390.5?
    Guidance: No. The incident does not meet the definition of accident 
in 49 CFR 390.5 because the person did not receive treatment 
immediately after the incident.
    Question 21: Do electronic devices which are advertised as radar 
jammers meet the definition of a radar detector in 49 CFR 390.5?
    Guidance: Devices that are said to reflect incoming energy 
passively or to transmit steadily on the same frequency as police radar 
units are not radar detectors because they do not detect radio 
microwaves. Devices that are said to detect and isolate the incoming 
signal and then to transmit on the same frequency to interfere with the 
police unit would qualify as radar detectors.
    Question 22: Is a motor vehicle drawing a non-self-propelled mobile 
home that has one or more set of wheels on the roadway, a driveaway-
towaway operation?
    Guidance: Yes, if the mobile home is a commodity. For example, the 
mobile home is transported from the manufacturer to the dealer or from 
the dealer or other seller to the buyer.
    Question 23: Can a truck tractor drawing a trailer be a driveaway-
towaway operation?
    Guidance: Yes, if the trailer is a commodity. For example, the 
trailer is transported from the manufacturer to the dealer or from the 
dealer or other seller to the buyer.
    Question 24: Are trailers which are stacked upon each other and 
drawn by a motor vehicle by attachment to the bottom trailer, a 
driveaway-towaway operation.
    Guidance: No. Only the bottom trailer has one or more sets of 
wheels on the roadway. The other trailers are cargo.
    Question 25: The definition of a passenger CMV is a vehicle 
``designed to transport'' more than 15 passengers, including the 
driver. Does that include standing passengers if the vehicle was

[[Page 16408]]

specifically designed to accommodate standees?
    Guidance: No. ``Designed to transport'' refers only to the number 
of designated seats; it does not include areas suitable, or even 
designed, for standing passengers.
    Question 26: What is considered a ``public road''?
    Guidance: A public road is any road under the jurisdiction of a 
public agency and open to public travel or any road on private property 
that is open to public travel.

Section 390.9  State and Local Laws, Effect on

    Question 1: If an interstate driver gets stopped by a State 
enforcement officer for an inspection, would the inspecting officer be 
enforcing the Federal regulations or State regulations?
    Guidance: A State enforcement officer can only enforce State laws. 
However, under the Motor Carrier Safety Assistance Program, quite often 
State laws are the same as or similar to the FMCSRs.

Section 390.15  Assistance in Investigations and Special Studies

    Question 1: May a motor carrier create an accident register of its 
own, or is there a specified form that must be used?
    Guidance: There is no specified form. A motor carrier may create or 
use any accident register as long as it includes the elements required 
by Sec. 390.15.
    Question 2: Would the accident report retention requirement in 
Sec. 390.15(b)(2) include an ``Adjuster's Report'' that is normally 
considered to be an internal document of an insurance company?
    Guidance: No. The intent of Sec. 390.15(b)(2) is that motor 
carriers maintain copies of all documents which the motor carrier is 
required by the insurance company to complete and/or maintain. Section 
390.15(b)(2) does not require motor carriers to maintain documents, 
such as ``Adjuster's Reports,'' that are typically internal documents 
of the insurance company.
    Question 3: What types of documents must a motor carrier retain to 
support its accident register and be in compliance with Sec. 390.15(b)?
    Guidance: The documents required by Sec. 390.15(b)(2) include all 
information about a particular accident generated by a motor carrier or 
driver to fulfill its accident reporting obligations to State or other 
governmental entities or that motor carrier's insurer. The language of 
paragraph (b)(2) does not require a motor carrier to seek out, obtain, 
and retain copies of accident reports prepared by State investigators 
or insurers.

 Section 390.21  Marking of Commercial Motor Vehicles

    Question 1: What markings must be displayed on a CMV when used by 
two or more motor carriers?
    Guidance: The markings of the motor carrier responsible for the 
operation of the CMV must be displayed at the time of transportation. 
If 2 or more names are on the vehicle, the name of the operating motor 
carrier must be preceded by the words ``operated by.''

Section 390.23  Relief From Hours-of-service Regulations--Disasters

    Question 1: Does Sec. 390.23 create an exemption from the FMCSRs 
each and every time the delivery of electricity is interrupted, no 
matter how isolated or minor the occurrence?
    Guidance: The rule creates an exemption from the FMCSRs when 
interruptions of electricity are severe enough to trigger a declaration 
of an emergency by a public official authorized to do so.
    An interruption of electricity that does not produce a declaration 
by a public official is not an emergency for purposes of the regulation 
and does not exempt a motor carrier or driver from the FMCSRs. A call 
reporting a downed power line, whether directed to the State police or 
a public utility company, does not create a declared emergency.
    The authority to declare emergencies has been delegated to 
different officials in the various States. The FHWA has not attempted 
to list these officials. In order to utilize the exemption provided by 
Sec. 390.23, drivers and motor carriers must therefore ascertain that a 
declaration of an emergency was made by a State or local official 
authorized to do so.
    Question 2: Section 390.23(a) provides that parts 390 through 399 
do not apply to any motor carrier or driver operating a CMV to provide 
direct assistance in an emergency. Is a motor carrier or driver 
required to keep a record of the driver's on-duty or driving time while 
providing relief?
    Guidance: No.
    Question 3: After providing emergency relief under Sec. 390.23, 
what on-duty hours must a driver use to determine how much off-duty 
time he/she must have before returning to the service of the employing 
motor carrier?
    Guidance: The driver must total the number of hours worked while 
the driver actually provided direct assistance to the emergency relief 
effort.

Section 390.31  Copies of Records or Documents

    Question 1: May records required by the FMCSRs be maintained in an 
electronic format?
    Guidance: Yes, provided the motor carrier can produce the 
information required by the regulations. Documents requiring a 
signature must be capable of replication (i.e., photocopy, facsimile, 
etc.) in such form that will provide an opportunity for signature 
verification upon demand. If computer records are used, all of the 
relevant data on the original documents must be included in order for 
the record to be valid.
    Question 2: How long does a motor carrier have to produce records 
if a motor carrier maintains all records in an electronic format?
    Guidance: A motor carrier must produce all records maintained in an 
electronic format within 2 working days after the request. Documents 
requiring a signature must be capable of replication (e.g., photocopy, 
facsimile, etc.) in such form that will provide an opportunity for 
signature verification upon demand.
Special Topics--Serious Pattern of Violations
    Question 1: What constitutes a ``serious pattern'' of violations?
    Guidance: A serious pattern constitutes violations that are both 
widespread and continuing over a period of time. A serious pattern is 
more than isolated violations. A serious pattern does not require a 
specific number of violations.

PART 391--QUALIFICATION OF DRIVERS

Sections Interpreted

391.2  General Exemptions
391.11  Qualifications of Drivers
391.15  Disqualification of Drivers
391.21  Application for Employment
391.23  Investigation and Inquiries
391.25  Annual Review of Driving Record
391.27  Record of Violations
391.31  Road Test
391.41  Physical Qualifications for Drivers
391.43  Medical Examination; Certivicate of Physical Examination
391.45  Persons who Must be Medically Examined and Certified
391.47  Resolution of Conflicts of Medical Evaluation
391.49  Waiver of Certain Physical Defects
391.51  Driver Qualification Files
391.63  Intermittent, Casual, or Occasional Drivers
391.65  Drivers Furnished by Other Motor Carriers

Section 391.2  General Exemptions

    Question 1: Must exempt intracity zone (see Sec. 390.5) drivers 
comply with the medical requirements of this subpart?

[[Page 16409]]

    Guidance: No, provided: a. the driver was otherwise qualified and 
operating in a municipality or exempt intracity zone thereof throughout 
the 1-year period ending November 18, 1988; and,
    b. the driver's medical condition has not substantially worsened 
since August 23, 1988.
    Question 2: What driver qualification requirements must a farm 
vehicle driver (as defined in Sec. 390.5) comply with in part 391?
    Guidance: Drivers meeting the definition of ``farm vehicle driver'' 
who operate straight trucks are exempted from all driver qualification 
requirements of part 391. All drivers of articulated motor vehicles 
with a GCWR of 10,001 pounds or more are required to possess a current 
medical certificate as required in Secs. 391.41 and 391.45.

Section 391.11  Qualifications of Drivers

    Question 1: Is there a maximum age limit for driving in interstate 
commerce?
    Guidance: The FMCSRs do not specify any maximum age limit for 
drivers.
    Question 2: Does the age requirement in Sec. 391.11(b)(1) apply to 
CMV drivers involved entirely in intrastate commerce?
    Guidance: No. Neither the CDL requirements in part 383 nor the 
FMCSRs in parts 390-399 require drivers engaged purely in intrastate 
commerce to be 21 years old. The States may set lower age thresholds 
for intrastate drivers.
    Question 3: What effect does the Age Discrimination in Employment 
Act have on the minimum age requirement for an interstate driver?
    Guidance: None. The Age Discrimination in Employment Act, 29 U.S.C. 
621-634, recognizes an exception when age is a bona fide occupational 
qualification. 29 U.S.C. 623(f)(1).
    Question 4: May a motor carrier be exempt from driver qualification 
requirements by hiring a driver leasing company or temporary help 
service?
    Guidance: No. The FMCSRs apply to, and impose responsibilities on, 
motor carriers and their drivers. The FHWA does not regulate driver 
leasing companies or temporary help service companies.
    Question 5: May a motor carrier lawfully permit a person not yet 
qualified as a driver in accordance with Sec. 391.11 to operate a 
vehicle in interstate commerce for the purpose of attending a training 
and indoctrination course in the operation of that specific vehicle?
    Guidance: No. If the trip is in interstate commerce, the driver 
must be fully qualified to operate a CMV.
    Question 6: Does the Military Selective Service Act of 1967 require 
a motor carrier to place a returning veteran in his/her previous 
position (driving interstate) even though he/she fails to meet minimum 
physical standards?
    Guidance: No. The Act does not require a motor carrier to place a 
returning veteran who does not meet the minimum physical standards into 
his/her previous driving position. The returning veteran must meet the 
physical requirements and obtain a medical examiner's certificate 
before driving in interstate operations.

Section 391.15  Disqualification of Drivers

    Question 1: May a driver convicted of a disqualifying offense be 
``disqualified'' by a motor carrier?
    Guidance: No. Motor carriers have no authority to disqualify 
drivers. However, a conviction for a disqualifying offense 
automatically disqualifies a driver from driving for the period 
specified in the regulations. Thus, so long as a motor carrier knows, 
or should have known, of a driver's conviction for a disqualifying 
offense, it is prohibited from using the driver during the 
disqualification period.
    Question 2: Is a decision of probation before judgment sufficient 
for disqualification?
    Guidance: Yes, provided the State process includes a finding of 
guilt.
    Question 3: Is a driver holding a valid driver's license from his 
or her home State but whose privilege to drive in another State has 
been suspended or revoked, disqualified from driving by Sec. 391.15(b)?
    Guidance: Yes, the driver would be disqualified from interstate 
operations until his privileges are restored by the authority that 
suspended or revoked them, provided the suspension resulted from a 
driving violation. It is immaterial that he holds a valid license from 
another State. All licensing actions should be accomplished through the 
CDLIS or the controlling interstate compact.
    Question 4: What are the differences between the disqualification 
provisions listed in Secs. 383.51 and 383.5 and those listed in 
Sec. 391.15?
    Guidance: Part 383 disqualifications are applicable generally to 
drivers who drive CMVs above 26,000 pounds GVWR, regardless of where 
the CMV is driven in the U.S. Part 391 disqualifications are applicable 
generally to drivers who drive CMVs above 10,000 pounds GVWR, only when 
the vehicle is used in interstate commerce in a State, including the 
District of Columbia.
    Question 5: Do the disqualification provisions of Sec. 391.15 apply 
to offenses committed by a driver who is using a company vehicle for 
personal reasons while off-duty?
    Guidance: No. For example, an owner-operator using his own vehicle 
in an off-duty status, or a driver using a company truck, or tractor 
for transportation to a motel, restaurant or home, would be outside the 
scope of this section if he returns to the same terminal from which he 
went off-duty (see Sec. 383.51 for additional information).
    Question 6: If a driver has his/her privileges to drive a pleasure 
vehicle revoked or suspended by State authorities, but his/her 
privileges to operate a CMV are left intact, would the driver be 
disqualified under the terms set forth in Sec. 391.15?
    Guidance: No. The driver would not be disqualified from operating a 
CMV.
    Question 7: If a driver is convicted of one of the specified 
offenses in Sec. 391.15(c), but is allowed to retain his driver's 
license, is he/she still disqualified?
    Guidance: Yes. A driver who is convicted of one of the specified 
offenses in Sec. 391.15(c), or has forfeited bond in collateral on 
account of one of these offenses, and who is allowed to retain his/her 
driver's license, is still disqualified. The loss of a driver's license 
and convictions of certain offenses in Sec. 391.15(c) are entirely 
separate grounds for disqualification.
    Question 8: If a driver has his/her license suspended for driving 
while under the influence of alcohol, and 2 months later, as a result 
of this same incident, the driver is convicted of a DWI, must the 
periods of disqualification be combined since these are both 
disqualifying offenses?
    Guidance: No. Disqualification during the suspension of an 
operating license continues until the license is restored by the 
jurisdiction that suspended it. Disqualification for conviction of DWI 
is for a fixed term. The fact that the driver was already disqualified 
for driving under the influence of alcohol because of the suspension 
action may mean that the total time under disqualification for the DWI 
conviction may exceed the stated term.
    Question 9: If a driver commits a felony while operating a CMV but 
not in the employ of a motor carrier, is the offense disqualifying?
    Guidance: No. There are 2 conditions required to be present for a 
felony conviction to be a disqualifying offense

[[Page 16410]]

under Sec. 391.15: (1) The offense was committed during on-duty time; 
and (2) the driver was employed by a motor carrier or was engaged in 
activities that were in furtherance of a commercial enterprise. 
However, neither of these conditions is a prerequisite for a 
disqualifying offense under Sec. 383.51.

Section 391.21  Application for Employment

    Question 1: If a driver submits an application for employment and 
has someone else type, write, or print the answers to the questions for 
him and he signs the application, does this constitute a valid 
application?
    Guidance: Yes. The applicant, by signing the application, certifies 
that all entries on it and information therein are true and complete to 
the best of the applicant's knowledge.
    Question 2: Is there a prescribed or specified form that must be 
used when a driver applies for employment, or can a carrier develop its 
own application?
    Guidance: There is no specified form to be used in an application 
for employment. Carriers may develop their own forms, which may be 
tailored to their specific needs. The application form must, at the 
minimum, contain the information specified in Sec. 391.21(b).
    Question 3: Section 391.21(b)(11) requires that an application for 
employment contain 10 years of prior employment information on the 
driver. If a foreign motor carrier's home country requires that an 
application for employment contain only five years of data, will a 
foreign carrier need to change its application to collect 10 years of 
data? Will the foreign carrier be required to go back and collect 10 
years of data on its current drivers? What will a U.S. motor carrier 
who employs foreign drivers be required to do in this regard?
    Guidance: A foreign motor carrier would not be required to collect 
10 years of prior employment information as long as a foreign driver 
has an appropriate foreign commercial driver's license, i.e., (1) the 
Licencia Federal de Conductor (Mexico), or (2) the Canadian National 
Safety Code commercial driver's license. A U.S. motor carrier, on the 
other hand, would be required to collect 10 years of prior employment 
information when hiring foreign drivers. The carrier should also 
remember to contact the U.S. Immigration and Naturalization Service for 
their regulations and policies with respect to hiring foreign drivers.

Section 391.23  Investigation and Inquiries

    Question 1: When a motor carrier receives a request for driver 
information from another motor carrier about a former or current 
driver, is it required to supply the requested information?
    Guidance: Generally no. See Sec. 382.405, however, for requests 
pertaining to drug and alcohol records.

Section 391.25  Annual Review of Driving Record

    Question 1: To what extent must a motor carrier review a driver's 
overall driving record to comply with the requirements of Sec. 391.25?
    Guidance: The motor carrier must consider as much information about 
the driver's experience as is reasonably available. This would include 
all known violations, whether or not they are part of an official 
record maintained by a State, as well as any other information that 
would indicate the driver has shown a lack of due regard for the safety 
of the public. Violations of traffic and criminal laws, as well as the 
driver's involvement in motor vehicle accidents, are such indications 
and must be considered. A violation of size and weight laws should also 
be considered.
    Question 2: Is a driver service or leasing company that is not a 
motor carrier permitted to perform annual reviews of driving records 
(Sec. 391.25) on the drivers it furnishes to motor carriers?
    Guidance: The driver service or leasing company may perform annual 
reviews if designated by a motor carrier to do so.

Section 391.27  Record of Violations

    Question 1: Are notifications to a motor carrier by a driver 
convicted of a driver violation as required by Sec. 383.31 to be 
maintained in the driver's qualification file as part of the supporting 
documentation or certifications noted in the requirements listed in 
Sec. 391.27(d)?
    Guidance: Section 391.27(d) does not require documentation in the 
qualification file. However, Sec. 391.51 does require that such 
notifications be maintained in the qualification file.

Section 391.31  Road Test

    Question 1: Are employers still required to administer road tests 
since all States have implemented CDL skills testing?
    Guidance: The employer may accept a CDL in lieu of a road test if 
the driver is required to successfully complete a road test to obtain a 
CDL in the State of issuance. However, if the employer intends to 
assign to the driver a vehicle necessitating the doubles/triples or 
tank vehicle endorsement, the employer must administer the road test 
under Sec. 391.31 in a representative vehicle.
    Question 2: How does a student enrolled in a driver training school 
comply with the requirement to pass a road test?
    Guidance: The road test is administered only after the student has 
demonstrated a sufficient degree of proficiency on a range or off-road 
course. A student who passes the road test and is qualified to operate 
in interstate commerce could cross a State line in the process of 
receiving training.
    Question 3: May a carrier use a blanket certification of road test 
for specific vehicles (driver's names, etc., left out)?
    Guidance: No.
    Question 4: May a motor carrier designate another person or 
organization to administer the road test?
    Guidance: Yes. A motor carrier may designate another person or 
organization to administer the road test as long as the person who 
administers the road test is competent to evaluate and determine the 
results of the tests.

Section 391.41  Physical Qualifications for Drivers

    Question 1: Who is responsible for ensuring that medical 
certifications meet the requirements?
    Guidance: Medical certification determinations are the 
responsibility of the medical examiner. The motor carrier has the 
responsibility to ensure that the medical examiner is informed of the 
minimum medical requirements and the characteristics of the work to be 
performed. The motor carrier is also responsible for ensuring that only 
medically qualified drivers are operating CMVs in interstate commerce.
    Question 2: Do the physical qualification requirements of the 
FMCSRs infringe upon a person's religious beliefs if such beliefs 
prohibit being examined by a licensed doctor of medicine or osteopathy?
    Guidance: No. To determine whether a governmental regulation 
infringes on a person's right to freely practice his religion, the 
interest served by the regulation must be balanced against the degree 
to which a person's rights are adversely affected. Biklen v. Board of 
Education, 333 F. Supp. 902 (N.D.N.Y. 1971) aff'd 406 U.S. 951 (1972).
    If there is an important objective being promoted by the 
requirement and the restriction on religious freedom is reasonably 
adapted to achieving that objective, the requirement should be upheld. 
Burgin v. Henderson, 536 F.2d 501 (2d. Cir. 1976).

[[Page 16411]]

    Based on the tests developed by the courts and the important 
objective served, the regulation meets Constitutional standards. It 
does not deny a driver his First Amendment rights.
    Question 3: What are the physical qualification requirements for 
operating a CMV in interstate commerce?
    Guidance: The physical qualification regulations for drivers in 
interstate commerce are found at Sec. 391.41. Instructions to medical 
examiners performing physical examinations of these drivers are found 
at Sec. 391.43. Interpretive guidelines are distributed upon request.
    The qualification standards cover 13 areas which directly relate to 
the driving function. All but four of the standards require a judgement 
by the medical examiner. A person's qualification to drive is 
determined by a medical examiner who is knowledgeable about the 
driver's functions and whether a particular condition would interfere 
with the driver's ability to operate a CMV safely. In the case of 
vision, hearing, insulin-using diabetes, and epilepsy, the current 
standards are absolute, providing no discretion to the medical 
examiner.
    Question 4: Is a driver who is taking prescription methadone 
qualified to drive a CMV in interstate commerce?
    Guidance: Methadone is a habit-forming narcotic which can produce 
drug dependence and is not an allowable drug for operators of CMVs.
    Question 5: May the medical examiner restrict a driver's duties?
    Guidance: No. The only conditions a medical examiner may impose 
upon a driver otherwise qualified involve the use of corrective lenses 
or hearing aids, securement of a waiver or limitation of driving to 
exempt intracity zones (see Sec. 391.43(g)). A medical examiner who 
believes a driver has a condition not specified in Sec. 391.41 that 
would affect his ability to operate a CMV safely should refuse to sign 
the examiner's certificate.
    Question 6: If an interstate driver tests positive for alcohol or 
controlled substances under part 382, must the driver be medically re-
examined and obtain a new medical examiner's certificate to drive 
again?
    Guidance: The driver is not required to be medically re-examined or 
to obtain a new medical examiner's certificate provided the driver is 
seen by an SAP who evaluates the driver, does not make a clinical 
diagnosis of alcoholism, and provides the driver with documentation 
allowing the driver to return to work. However, if the SAP determines 
that alcoholism exists, the driver is not qualified to drive a CMV in 
interstate commerce. The ultimate responsibility rests with the motor 
carrier to ensure the driver is medically qualified and to determine 
whether a new medical examination should be completed.
    Question 7: Are drivers prohibited from using CB radios and 
earphones?
    Guidance: No. CB radios and earphones are not prohibited under the 
regulations, as long as they do not distract the driver and the driver 
is capable of complying with Sec. 391.41(b)(11).
    Question 8: Is the use of coumadin, an anticoagulant, an automatic 
disqualification for drivers operating CMVs in interstate commerce?
    Guidance: No. Although the FHWA 1987 ``Conference on Cardiac 
Disorders and Commercial Drivers'' recommended that drivers who are 
taking anticoagulants not be allowed to drive, the agency has not 
adopted a rule to that effect. The medical examiner and treating 
specialist may, but are not required to, accept the Conference 
recommendations. Therefore, the use of coumadin is not an automatic 
disqualification, but a factor to be considered in determining the 
driver's physical qualification status.

Section 391.43  Medical Examination; Certificate of Physical 
Examination

    Question 1: May a motor carrier, for the purposes of Sec. 391.41, 
or a State driver licensing agency, for the purposes of Sec. 383.71, 
accept the results of a medical examination performed by a foreign 
medical examiner?
    Guidance: Yes. Foreign drivers operating in the U.S. with a 
driver's license recognized as equivalent to the CDL may be medically 
certified in accordance with the requirements of part 391, subpart E, 
by a medical examiner in the driver's home country who is licensed, 
certified, and/or registered to perform physical examinations in that 
country. However, U.S. drivers operating in interstate commerce within 
the U.S. must be medically certified in accordance with part 391, 
subpart E, by a medical examiner licensed, certified, and/or registered 
to perform physical examinations in the U.S.
    Question 2: May a urine sample collected for purposes of performing 
a subpart H test be used to test for diabetes as part of a driver's 
FHWA-required physical examination?
    Guidance: In general, no. However, the DOT has recognized an 
exception to this general policy whereby, after 60 milliliters of urine 
have been set aside for subpart H testing, any remaining portion of the 
sample may be used for other nondrug testing, but only if such other 
nondrug testing is required by the FHWA (under part 391, subpart E) 
such as testing for glucose and protein levels.
    Question 3: Is a chest x-ray required under the minimum medical 
requirements of the FMCSRs?
    Guidance: No, but a medical examiner may take an x-ray if 
appropriate.
    Question 4: Does Sec. 391.43 of the FMCSRs require that physical 
examinations of applicants for employment be conducted by medical 
examiners employed by or designated by the carrier?
    Guidance: No.
    Question 5: Does a medical certificate displaying a facsimile of a 
medical examiner's signature meet the ``signature of examining health 
care professional'' requirement?
    Guidance: Yes.
    Question 6: The driver's medical exam is part of the Mexican 
Licencia Federal. If a roadside inspection reveals that a Mexico-based 
driver has not had the medical portion of the Licencia Federal re-
validated, is the driver considered to be without a valid medical 
certificate or without a valid license?
    Guidance: The Mexican Licencia Federal is issued for a period of 10 
years but must be re-validated every 2 years. A condition of re-
validation is that the driver must pass a new physical examination. The 
dates for each re-validation are on the Licencia Federal and must be 
stamped at the completion of each physical. This constitutes 
documentation that the driver is medically qualified. Therefore, if the 
Licencia Federal is not re-validated every 2 years as specified by 
Mexican law, the driver's license is considered invalid.

Section 391.45  Persons Who Must Be Medically Examined and Certified

    Question 1: Is it intended that the words ``person'' and ``driver'' 
be used interchangeably in Sec. 391.45?
    Guidance: Yes.
    Question 2: Do the FMCSRs require applicants, possessing a current 
medical certificate, to undergo a new physical examination as a 
condition of employment?
    Guidance: No. However, if a motor carrier accepts such a currently 
valid certificate from a driver subject to part 382, the driver is 
subject to additional controlled substance testing requirements unless 
otherwise excepted in subpart H.
    Question 3: Must a driver who is returning from an illness or 
injury undergo a medical examination even if

[[Page 16412]]

his current medical certificate has not expired?
    Guidance: The FMCSRs do not require an examination in this case 
unless the injury or illness has impaired the driver's ability to 
perform his/her normal duties. However, the motor carrier may require a 
driver returning from any illness or injury to take a physical 
examination. But, in either case, the motor carrier has the obligation 
to determine if an injury or illness renders the driver medically 
unqualified.

Section 391.47  Resolution of Conflicts of Medical Evaluation

    Question 1: Does the FHWA issue formal medical decisions as to the 
physical qualifications of drivers on an individual basis?
    Guidance: No, except upon request for resolution of a conflict of 
medical evaluations.

Section 391.49  Waiver of Certain Physical Defects

    Question 1: Since 49 CFR 391.49 does not mandate a Skill 
Performance Evaluation, does the term ``performance standard'' mean 
that the State must give a driving test or other Skill Performance 
Evaluation to the driver for every waiver issued or does this term mean 
that, depending upon the medical condition, the State may give some 
other type of performance test? For example, in the case of a vision 
waiver, would a vision examination suffice as a performance standard?
    Guidance: Under the Tolerance Guidelines, Appendix C, Paragraph 
3(j), each State that creates a waiver program for intrastate drivers 
is responsible for determining what constitutes ``sound medical 
judgment,'' as well as determining the performance standard. In the 
example used above, a vision examination would suffice as a performance 
standard. It is the responsibility of each State establishing a waiver 
program to determine what constitutes an appropriate performance 
standard.

Section 391.51  Driver Qualification Files

    Question 1: When a motor carrier purchases another motor carrier, 
must the drivers of the acquired motor carrier be requalified by the 
purchasing motor carrier?
    Guidance: No.
    Question 2: Is a driver training school required to keep a driver 
qualification file on each student?
    Guidance: Yes, if operating in interstate commerce.
    Question 3: Before December 23, 1994, motor carriers were required 
to maintain documentary evidence that their drivers had completed the 
written examination specified by 49 CFR 391.35 (1994). The rule 
removing Sec. 391.35 became effective on that date (59 FR 60319, 
November 23, 1994). Are motor carriers required to maintain such 
documentary evidence for drivers employed prior to December 23, 1994?
    Guidance: No.
    Question 4: If a motor carrier maintains complete driver 
qualification files but cannot produce them at the time of the review 
or within two business days, is it in violation of Sec. 391.51?
    Guidance: Yes. Driver qualification files must be produced on 
demand. Producing driver qualification files after the completion of 
the review does not cure a record-keeping violation of Sec. 391.51.
    Question 5: Must a driver/employee who was employed prior to the 
deletion of the section of the FMCSRs requiring certain documentary 
proof of written examination, and who does not have such proof in his 
driver qualification file, complete the exam?
    Guidance: No. The requirement of former 49 CFR 391.35(h) that a 
driver qualification file contains certain documents substantiating the 
driver examination may not be the basis of a citation after November 
23, 1994, the date on which all requirements pertinent to a driver's 
written test were rescinded (59 FR 60319).

Section 391.63  Intermittent, Casual, or Occasional Drivers

    Question 1: Is a person employed by a nonmotor carrier in his 
normal duties considered an intermittent, casual, or occasional driver 
when employed by a motor carrier as a driver on a part-time basis?
    Guidance: No. A person who drives for one motor carrier (even if it 
is only one day per month) would not meet the definition of an 
intermittent, casual or occasional driver in Sec. 390.5 since he/she is 
employed by only one motor carrier. The motor carrier must fully 
qualify the driver and maintain a qualification file on the employee as 
a regularly employed driver.
    Question 2: How does Sec. 391.63 apply when motor carriers obtain, 
from a driver leasing service, intermittent, casual, or occasional 
drivers who are on temporary assignments to multiple motor carriers?
    Guidance: If an intermittent, casual, or occasional driver has only 
been fully qualified by a driver leasing service or similar non-motor 
carrier entity, and has never been fully qualified by a motor carrier, 
the first motor carrier employing such a driver must ensure that the 
driver is fully qualified, and must keep a complete driver 
qualification file for that driver. It was the intention of 
Secs. 391.63 and 391.65 to require that a driver, before entering the 
status of an ``intermittent, casual, or occasional'' driver, be fully 
qualified by a motor carrier. In a contractual relationship between a 
motor carrier and a driver leasing service, this may be accomplished by 
a motor carrier designating a driver leasing service as its agent to 
perform the qualification procedures in accordance with parts 383 and 
391. However, in such a case, the motor carrier will be held liable for 
any violations of the FMCSRs committed by its agent.
    Question 3: Must a motor carrier that employs an intermittent, 
casual, or occasional driver to operate a CMV, as defined in 
Sec. 383.5, (1) require the driver to prepare and submit an employment 
application in accordance with Sec. 391.21 and (2) conduct the 
background investigation of the driver's previous employers required by 
Sec. 391.23?
    Guidance: Section 391.63(a) (1)-(2) exempts from compliance with 
Secs. 391.21 and 391.23 motor carriers that use intermittent, casual or 
occasional drivers to operate CMVs with a gross vehicle (or 
combination) weight rating (GVWR/GCWR) of 10,001 pounds or more. These 
exemptions also apply to carriers operating the heavier CMVs subject to 
parts 382 and 383.
    However, the more limited driver information and motor carrier 
investigation required by parts 382 and 383 are not covered by 
Sec. 391.63. Therefore, a carrier using intermittent, casual or 
occasional drivers to operate CMVs with a GVWR/GCWR of 26,001 pounds or 
more need not require an employment application in accordance with 
Sec. 391.21, but the driver must furnish the information required by 
Sec. 383.35(c). The carrier may conduct a background investigation of 
the driver's previous employers (Sec. 383.35(f)), and it must 
investigate his/her previous alcohol and controlled substance test 
results (Sec. 382.413).

Section 391.65  Drivers Furnished by Other Motor Carriers

    Question 1: May a nonmotor carrier which owns a CMV prepare the 
qualification certificate provided for in Sec. 391.65?
    Guidance: No, only a motor carrier which regularly employs a driver 
may issue the required certification.
    Question 2: May the certificate of qualification as prescribed by 
Sec. 391.65

[[Page 16413]]

be incorporated into another carrier's forms such as a lease and/or 
interchange agreement?
    Guidance: Yes. However, the certificate of qualification must be 
signed and dated by an officer or authorized employee of the regularly 
employing carrier.
    Question 3: Is a motor carrier required to accept a certificate 
from the driver's regularly employing motor carrier certifying that the 
driver is qualified per Sec. 391.65?
    Guidance: No. If the motor carrier chooses not to accept the 
certificate issued by the regularly employing motor carrier furnishing 
the driver, the motor carrier must then assume responsibility for 
assuring itself that the driver is fully qualified in accordance with 
part 391.
    Question 4: If a driver furnished by another motor carrier is in 
the second carrier's service for a period of 7 consecutive days or 
more, may the driver still fall under the exemption in Sec. 391.65?
    Guidance: No. The driver becomes a regularly employed driver of the 
second motor carrier and the exemption in Sec. 391.65 is inapplicable.

PART 392--DRIVING OF MOTOR VEHICLES

Sections Interpreted

392.3  Ill or Fatigued Operator
392.5  Intoxicating Beverage
392.6  Schedules To Conform With Speed Limits
392.7  Equipment, Inspection, and Use
392.9  Safe Loading
392.14  Hazardous Conditions; Extreme Caution
392.16  Use of Seat Belts
392.42  Notification of License Revocation
392.60  Unauthorized Persons Not To Be Transported

Section 392.3  Ill or Fatigued Operator

    Question 1: What protection is afforded a driver for refusing to 
violate the FMCSRs?
    Guidance: Section 405 of the STAA (49 U.S.C. 31105) states, in 
part, that no person shall discharge, discipline, or in any manner 
discriminate against an employee with respect to the employee's 
compensation, terms, conditions, or privileges of employment for 
refusing to operate a vehicle when such operation constitutes a 
violation of any Federal rule, regulation, standard, or order 
applicable to CMV safety. In such a case, a driver may submit a signed 
complaint to the Occupational Safety and Health Administration.

Section 392.5  Intoxicating Beverage

    Question 1: Do possession and use of alcoholic beverages in the 
passenger area of a motorcoach constitute ``possession'' of such 
beverages under Sec. 392.5(a)(3)?
    Guidance: No.
    Question 2: Can a motor carrier, which finds a driver with a 
detectable presence of alcohol, place him/her out of service in 
accordance with Sec. 392.5?
    Guidance: No. The term ``out of service'' in the context of 
Sec. 392.5 refers to an act by a State or Federal official. However, 
the motor carrier must prevent the driver from being on-duty or from 
operating or being in physical control of a CMV for at least as long as 
is necessary to prevent a violation of Sec. 392.5.
    Question 3: Does the prohibition against carrying alcoholic 
beverages in Sec. 392.5 apply to a driver who uses a company vehicle, 
for personal reasons, while off-duty?
    Guidance: No. For example, an owner-operator using his/her own 
vehicle in an off-duty status, or a driver using a company truck or 
tractor for transportation to a motel, restaurant, or home, would 
normally be outside the scope of this section.
    Question 4: Would an alcohol test, performed by an employer 
pursuant to 49 CFR part 382, with a result greater than 0.00 BAC, but 
less than 0.02 BAC, establish that a driver was in violation of 49 CFR 
392.5(a)(2), having any measured alcohol concentration while on duty?
    Guidance: No. The FHWA believes that a 0.02 BAC is the lowest level 
at which a scientifically accurate breath/blood alcohol concentration 
can be measured in an employer-based test under part 382. The FHWA 
further believes that this use of a 0.02 BAC standard is consistent 
with FHWA's long established zero tolerance standard for alcohol. This 
guidance in no way impedes or precludes any action taken by a law 
enforcement official because of a finding that a BAC level was less 
than 0.02 BAC.

Section 392.6  Shedules to Conform With Speed Limits.

    Question 1: How many miles may a driver record on his/her daily 
record of duty status and still be presumed to be in compliance with 
the speed limits?
    Guidance: Drivers are required to conform to the posted speed 
limits prescribed by the jurisdictions in or through which the vehicle 
is being operated. Where the total trip is on highways with a speed 
limit of 65 mph, trips of 550-600 miles completed in 10 hours are 
considered questionable and the motor carrier may be asked to document 
that such trips can be made. Trips of 600 miles or more will be assumed 
to be incapable of being completed without violations of the speed 
limits and may be required to be documented. In areas where a 55 mph 
speed limit is in effect, trips of 450-500 miles are open to question, 
and runs of 500 miles or more are considered incapable of being made in 
compliance with the speed limit and hours of service limitation.

Section 392.7  Equipment, Inspection, and Use

    Question 1: Must a driver prepare a written report of a pretrip 
inspection performed under Sec. 392.7?
    Guidance: No.
    Question 2: Must both drivers of a team operation comply with the 
provisions of Sec. 392.7 before driving?
    Guidance: Section 392.7 states that a driver must be satisfied that 
the vehicle is in good working order before operating the vehicle. If a 
driver is satisfied with a co-driver's inspection, or a safety lane 
inspection, then the requirement of this section will have been met.

Section 392.9  Safe Loading

    Question 1: Is a vehicle's cargo compartment considered sealed 
according to the terms of Sec. 392.9(b)(4) when it is secured with a 
padlock, to which the driver holds a key?
    Guidance: No. The driver has ready access to the cargo compartment 
by using the padlock key and would be required to perform the 
examinations of the cargo and load-securing devices described in 
Sec. 392.9(b).
    Question 2: Does the FHWA have authority to enforce the safe 
loading requirements against a shipper that is not the motor carrier?
    Guidance: No, unless HM as defined in Sec. 172.101 are involved. It 
is the responsibility of the motor carrier and the driver to ensure 
that any cargo aboard a vehicle is properly loaded and secured.
    Question 3: How may the motor carrier determine safe loading when a 
shipper has loaded and sealed the trailer?
    Guidance: Under these circumstances, a motor carrier may fulfill 
its responsibilities for proper loading a number of ways. Examples are: 
a. Arrange for supervision of loading to determine compliance; or
    b. Obtain notation on the connecting line freight bill that the 
lading was properly loaded; or
    c. Obtain approval to break the seal to permit inspection.
    Question 4: Is there a requirement that a driver must personally 
load, block, brace, and tie down the cargo on the property carrying CMV 
he/she drives?
    Guidance: No. But the driver is required to be familiar with 
methods and procedures for securing cargo, and

[[Page 16414]]

may have to adjust the cargo or load securing devices pursuant to 
Sec. 392.9(b).

Section 392.14  Hazardous Conditions; Extreme Caution

    Question 1: Who makes the determination, the driver or carrier, 
that conditions are sufficiently dangerous to warrant discontinuing the 
operation of a CMV?
    Guidance: Under this section, the driver is clearly responsible for 
the safe operation of the vehicle and the decision to cease operation 
because of hazardous conditions.

Section 392.16  Use of Seat Belts

    Question 1: May a driver be exempted from wearing seat belts 
because of a medical condition such as claustrophobia?
    Guidance: No.
    Question 2: Are motorcoach passengers required to wear seat belts?
    Guidance: No.

Section 392.42  Notification of License Revocation

    Question 1: If a driver's driving privilege is suspended as a 
result of a violation committed off-duty, in a personal vehicle, is the 
driver required to notify the employing motor carrier under the 
provisions of Sec. 392.42?
    Guidance: Yes.

Section 392.60  Unauthorized Persons Not To Be Transported

    Question 1: Does Sec. 392.60 require a driver to carry a copy of 
the written authorization (required to transport passengers) on board a 
CMV?
    Guidance: No, the authorization must be maintained at the carrier's 
principal place of business. At the discretion of the motor carrier, a 
driver may also carry a copy of the authorization.

PART 393--PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION

Sections Interpreted

393.11  Lighting Devices and Reflectors
393.17  Lamps and Reflectors--Combinations in Driveaway-Towaway 
Operation
393.24  Requirements for Head Lamps and Auxiliary Road Lighting 
Lamps
393.25  Requirements for Lamps Other Than Head Lamps
393.28  Wiring To Be Protected
393.31  Overload Protective Devices
393.40  Required Brake Systems
393.41  Parking Brake Systems
393.42  Brakes Required on All Wheels
393.43  Breakaway and Emergency Braking System
393.44  Front Brake Lines, Protection
393.48  Brakes To Be Operative
393.49  Single Valve To Operate All Brakes
393.51  Warning Devices and Gauges
393.52  Brake Performance
393.60  Glazing in Specified Openings
393.61  Window Construction
393.62  Window Obstructions
393.65  All Fuel Systems
393.67  Liquid Fuel Tanks
393.70  Coupling Devices and Towing Methods, Except for Driveaway-
Towaway Operations
393.71  Coupling Devices and Towing Methods, Driveaway-Towaway 
Operations
393.75  Tires
393.76  Sleeper Berths
393.78  Windshield Wipers
393.81  Horn
393.82  Speedometer
393.83  Exhaust System
393.87  Flags on Projecting Loads
393.88  Television Receivers
393.89  Buses, Driveshaft Protection
393.92  Buses, Marking Emergency Doors
393.93  Seats, Seat Belt Assemblies and Seat Belt Assembly 
Anchorages
393.95  Emergency Equipment on All Power Units
393.100  General Rules for Protection Against Shifting or Falling 
Cargo
393.102  Securement Systems
393.106  Front-end Structure
393.201  Frames
Special Topics--CMV Parts and Accessories

Section 393.11  Lighting Devices and Reflectors

    Question 1: What is the definition of ``body'' with respect to 
trucks and trailers?
    Guidance: The FMCSRs do not include a definition of ``body.'' 
However, a truck or trailer body generally means the structure or 
fixture designed to contain, or support, the material or property to be 
transported on the vehicle.
    Question 2: May retroreflective tape be used in place of side 
reflex reflectors?
    Guidance: Section 393.26(b) cross references FMVSS 108 (49 CFR 
571.108, S5.1.1.4) which allows reflective material to be used for side 
reflex reflectors under the conditions described below. Retroreflective 
tape conforming to Federal specification L-S-300, ``Sheeting and Tape, 
Reflective; Non-exposed Lens, Adhesive Backing,'' September 7, 1965, 
may be used in place of side reflex reflectors if this material as used 
on the vehicle, meets the performance standards in either Table I or 
Table IA of Society of Automotive Engineers J594f, Reflex Reflectors, 
January 1977.
    Question 3: Section 393.11, Footnote 5, requires that each 
converter dolly be equipped with turn signals at the rear if the 
converter dolly obscures the turn signals at the rear of the towing 
vehicle when towed singly by another vehicle. Are turn signals required 
on the rear of the converter dolly when the towing of the unladen dolly 
prevents other motorists from seeing only a portion of the lenses of 
the turn signals on the towing vehicle?
    Guidance: Yes. Although a portion of the rear turn signal lenses on 
the towing vehicle may be visible to other drivers, the turn signal 
generally would not satisfy the visibility requirements of FMVSS No. 
108 (49 CFR 571.108) if the converter dolly prevents other motorists 
from seeing the entire lens. The visibility requirements of FMVSS No. 
108 help to ensure that other drivers can see the turn signal from a 
range of positions to the rear of the vehicle. Therefore, turn signals 
on the towing vehicle are considered to be obscured by the converter 
dolly if other motorists' view of the lens is even partially blocked.
    Question 4: Does a CMV equipped with amber tail lamps in addition 
to the red tail lamps required to designate the rear of a CMV meet the 
lighting requirements of Sec. 393.11?
    Guidance: No. Section 393.11 requires that lighting devices on CMVs 
placed in operation after March 7, 1989, meet the requirements of FMVSS 
No. 108 in effect at the time of manufacture. The NHTSA has issued 
interpretations which indicate that the use of amber tail lamps impairs 
the effectiveness of the required lighting equipment and as such is 
prohibited by FMVSS No. 108 (S5.1.3). Since NHTSA does not allow 
vehicle manufacturers to install amber tail lamps, the FHWA has 
concluded that the use of amber tail lamps on vehicles placed in 
operation after March 7, 1989, is prohibited by Sec. 393.11.
    In the case of vehicles placed in operation on or before March 7, 
1989, Sec. 393.11 requires that vehicles meet either the lighting 
requirements of part 393 or FMVSS No. 108 in effect at the time of 
manufacture. Prior to the December 7, 1988, final rule on part 393 (53 
FR 49397), amber tail lamps were prohibited by Sec. 393.25. Section 
393.25(e)(3) (in the October 1, 1988 edition of the Code of Federal 
Regulations) required all rear lamps, with certain exceptions, to be 
red. Since tail lamps were not included in the exceptions, the use of 
amber tail lamps was implicitly prohibited. Therefore, a vehicle placed 
in operation on or before March 7, 1989, must not be equipped with 
amber tail lamps because the use of such lamps meets neither the 
lighting requirements of part 393 nor FMVSS No. 108 in effect at the 
time of manufacture.

[[Page 16415]]

Section 393.17  Lamps and Reflectors-Combinations in Driveaway-Towaway 
Operation

    Question 1: What are the lighting requirements when a tow truck is 
pulling a wrecked or disabled vehicle?
    Guidance: A wrecker pulling a vehicle would be considered a 
driveaway-towaway operation and would have to be equipped with the 
lighting devices specified in Sec. 393.17 when operating in interstate 
commerce.

Section 393.24  Requirements for Head Lamps and Auxiliary Road Lighting 
Lamps

    Question 1: Must additional lamps that are not required be 
operative if all required lamps are operative?
    Guidance: No.

Section 393.25  Requirements for Lamps Other Than Head Lamps

    Question 1: Are lighting devices on mobile homes/house trailers 
required to be permanently mounted?
    Guidance: No. The movement of mobile homes/house trailers is 
considered to be a driveaway-towaway operation.
    Question 2: Are there any special lighting requirements for large 
containers?
    Guidance: No.
    Question 3: What are the lighting requirements when a container 
assumes the structural requirements of a trailer?
    Guidance: All relevant requirements of the regulations must be met 
by this container/trailer.

Section 393.28  Wiring to be Protected

    Question 1: Does a frame channel of a CMV constitute a protective 
``sheath or tube'' as specified in Sec. 393.28?
    Guidance: No. To be acceptable, a sheath or tube must enclose the 
wires throughout their circumference. In the absence of a sheath or 
tube, the group of wires must be protected by nonconductive tape, 
braid, or other covering capable of withstanding severe abrasion.

Section 393.31  Overload Protective Devices

    Question 1: Must all trailers be equipped with overload protective 
devices?
    Guidance: No. Trailers do not need overload protective devices when 
protection of trailer circuits is provided on the towing vehicle. A 
circuit breaker is required only when the head lamp circuit is 
protected in common with one or more other circuits. A circuit breaker, 
if required, must be an automatic reset type.

Section 393.40  Required Brake Systems

    Question 1: May a system such as ``driveline brakes'' be used as an 
emergency brake provided it complies with the requirements of 
Sec. 393.52?
    Guidance: Yes. CMVs which were not subject to the emergency brake 
requirements of FMVSS Nos. 105 or 121 may use ``driveline brakes'' 
provided those vehicles meet the requirements of Sec. 393.52.

Section 393.41  Parking Brake Systems

    Question 1: May the ``park'' position of a CMV's transmission be 
used as a parking brake to comply with the Sec. 393.41?
    Guidance: No. The ``park'' position of the transmission is only a 
locking device used to lock the transmission.
    Question 2: Does Sec. 393.41 prohibit air brake systems from being 
equipped with a means to release the spring brakes for purposes of 
towing disabled vehicles in emergency situations?
    Guidance: No, provided the brakes are designed and maintained so 
they cannot be released unless adequate energy is available to make 
immediate reapplication of the brakes when the brake system is 
operable.
    Question 3: Are parking brakes required on every CMV manufactured 
before March 7, 1990?
    Guidance: No.

Section 393.42  Brakes Required on All Wheels

    Question 1: Do retractable or lift axles have to be equipped with 
brakes?
    Guidance: Yes, when the wheels are in contact with the roadway.
    Question 2: Are unladen converter dollies covered by the exemption 
in Sec. 393.42(b)(3)?
    Guidance: Yes. However, if the converter dolly is laden, the brakes 
must be operable.
    Question 3: Section 393.42(b)(3) of the FMCSRs states that any full 
trailer, any semitrailer, or any pole trailer having a GVWR of 3,000 
pounds or less must be equipped with brakes if the weight of the towed 
vehicle resting on the towing vehicle exceeds 40 percent of the GVWR of 
the towing vehicle. Is the manufacturer of the trailer responsible for 
ensuring that the trailer is equipped with brakes when required?
    Guidance: No. The motor carrier pulling the trailer is responsible 
for ensuring that the trailer is in compliance with all applicable 
FMCSRs.

Section 393.43  Breakaway and Emergency Braking System

    Question 1: Are tractor protection valves required by 
Sec. 393.43(b), or may similar devices be used?
    Guidance: No. Similar devices may be used provided the devices meet 
the performance requirements of Sec. 393.43(b).
    Question 2: Are all brakes on a trailer required to be applied 
automatically upon breakaway?
    Guidance: Yes.

Section 393.44  Front Brake Lines, Protection

    Question 1: Does the term ``rear wheels'' include the tag axle on a 
bus/motorcoach?
    Guidance: Yes. The braking system on a bus/motorcoach must be 
constructed so that if any brake line to either front wheel is broken, 
the driver can apply the brakes to all of the wheels on each rear axle.

Section 393.48  Brakes To Be Operative

    Question 1: Do surge brakes comply with Sec. 393.48?
    Guidance: No. Section 393.48 requires that brakes be operable at 
all times. Generally, surge brakes are only operative when the vehicle 
is moving in the forward direction and as such do not comply with 
Sec. 393.48 (see question number 1 in Sec. 393.49).
    Question 2: If a CMV manufactured on or after July 25, 1980 (see 
Sec. 393.42) has brake components on the front axle, and the brakes are 
not operable, does the vehicle comply with Sec. 393.48?
    Guidance: No.
    Question 3: If a truck or truck tractor manufactured prior to July 
25, 1980, and having 3 or more axles, has inoperable brakes on the 
front axle or some of the brake components are missing, would the 
vehicle be in violation of Sec. 393.48?
    Guidance: Yes. Section 393.48(a) requires that all brakes with 
which the vehicle is equipped must be operable at all times. Although 
Sec. 393.42(b)(1) provides an exception to the requirement for brakes 
on all wheels for trucks and truck tractors with 3 or more axles and 
manufactured prior to July 25, 1980, the exception does not affect the 
applicability of Sec. 393.48 for those cases in which the vehicle is 
equipped with inoperable front wheel brakes or only has certain 
portions of the front wheel brake system (e.g., shoes, linings, 
chambers, hoses) in place.
    Question 4: Are the brakes on a vehicle towed in a driveaway-
towaway operation or towed disabled vehicle required to be operable at 
all times?
    Guidance: Section 393.48(c) provides an exception to the 
requirement that brakes be operable at all times. This exception covers 
disabled vehicles being towed and vehicles towed in a driveaway-towaway 
operation.
    The driveaway-towaway exception in Sec. 393.48(c) is contingent 
upon the conditions outlined in Sec. 393.42(b)(2). Towed vehicles must 
have brakes as may be necessary to ensure compliance

[[Page 16416]]

with the performance requirements of Sec. 393.52. A motor vehicle towed 
by means of a tow-bar when any other vehicle is full-mounted on the 
towed vehicle, or any combination of motor vehicles utilizing 3 or more 
saddle-mounts, would not be covered under the exception found at 
Sec. 393.48(c).
    With regard to the disabled-vehicle provision of Sec. 393.48(c)(1), 
the combination vehicle would have to meet the applicable performance 
requirements of Sec. 393.52.

Section 393.49  Single Valve To Operate All Brakes

    Question 1: Does a combination of vehicles using a surge brake to 
activate the towed vehicle's brakes comply with Sec. 393.49?
    Guidance: No. The surge brake cannot keep the trailer brakes in an 
applied position. Therefore, the brakes on the combination of vehicles 
are not under the control of a single valve as required by Sec. 393.49 
(see question number 1 in Sec. 393.48)

Section 393.51  Warning Devices and Gauges

    Question 1: Is the low pressure warning device required to activate 
before the tractor protection valve?
    Guidance: No. Section 393.51 does not explicitly require the 
warning device to operate before the protection valve. It is implied 
that if the operating pressure of the warning device is at least \1/2\ 
of the governor cut-out pressure, and that pressure is not less than 
the pressure at which the protection valve (or similar device) 
activates, the requirements of Sec. 393.51 are satisfied.
    Question 2: Is the vacuum portion of vacuum-assisted hydraulic 
brake systems required to have a warning device?
    Guidance: No. Only the hydraulic portion of vacuum-assisted 
hydraulic brake systems is required to have a warning device. FMVSS No. 
105 does not require a warning device for the vacuum portion of the 
vacuum-assisted hydraulic brake systems. It is the intention of the 
FHWA that Sec. 393.51 be consistent with FMVSS No. 105.
    Question 3: Are vacuum gauges required on the vacuum portion of 
vacuum-assisted hydraulic brakes?
    Guidance: No. Section 393.51(d)(2) requires only that CMVs with 
vacuum brakes (not hydraulic brakes applied or assisted by vacuum) be 
equipped with a vacuum gauge.
    Question 4: Is a warning device required in a CMV with a single 
hydraulic brake system which uses the driveline parking brake as the 
emergency brake system?
    Guidance: No. Warning devices are not required on such CMVs because 
the driver will be given ample warning of system failure by the 
movement and feel of the brake pedal.
    Question 5: What difference, if any, is there between a warning 
device and a warning signal?
    Guidance: For purposes of Sec. 393.51, the terms may be used 
interchangeably.

Section 393.52  Brake Performance

    Question 1: May the information in the stopping distance table be 
used to determine the stopping distances at speeds greater than 20 mph?
    Guidance: No, the table is not intended to be used to predict or 
determine stopping distances at speeds greater than 20 mph.

Section 393.60  Glazing in Specified Openings

    Question 1: May windshields and side windows be tinted?
    Guidance: Yes, as long as the light transmission is not restricted 
to less than 70 percent of normal (refer to the American Standards 
Association publication Z26.1-1966 and Z26.1a-1969).
    Question 2: May a decal designed to comply with the periodic 
inspection documentation requirements of Sec. 396.17 be displayed on 
the windshields or side windows of a CMV?
    Guidance: Yes, provided the decal is being used in lieu of an 
inspection report and is in compliance with Sec. 393.60(c).
    Question 3: If a crack extended into the thickness of the glass at 
such an angle as to measure \1/4\'' or more, measuring from the top 
edge of the crack on the outside surface of the windshield to vertical 
line drawn through the windshield to the far edge of this angled crack 
on the inside of the windshield, would this constitute a crack of \1/
4\'' or more in width as defined in Sec. 393.60(b)(2)?
    Guidance: No. The crack, in order to fall outside the exception, 
would have to be a gap of \1/4\'' or more on the same surface of the 
windshield.

Section 393.61  Window Construction

    Question 1: Do school buses used for purposes other than school bus 
operations (as defined in Sec. 390.5), have to meet additional 
emergency exits requirements under Sec. 393.61?
    Guidance: Yes. Section 393.61(b)(2) says that ``a bus, including a 
school bus, manufactured on and after September 1, 1973,'' must conform 
with NHTSA's Sec. 571.217 (FMVSS 217). At the time this provision was 
adopted, FMVSS 217 applied only to other buses and it was optional for 
school buses. The FHWA inserted the language, ``including school 
buses,'' in Sec. 393.61(b)(2) to make clear that school buses used in 
interstate commerce and, therefore, subject to the FMCSRs, were 
required to comply with the bus exit standards in Standard FMVSS 217.
    Section 393.61(b)(3) regarding push-out windows provides that older 
buses must conform with the requirements of Secs. 393.61(b) or 571.217. 
Buses which are subject to Sec. 571.217 would follow NHTSA's 
interpretation on push-out windows. Buses which are subject to 
Sec. 393.61(b)(1) of the FMCSRs are required to have emergency windows 
that are either push-out windows or that have laminated safety glass 
that can be pushed out in a manner similar to a push-out window.
    Question 2: For emergency exits which consist of laminated safety 
glass, is the window frame or sash required to move outward from the 
bus as is the case with push-out windows?
    Guidance: No. Laminated safety glass is an alternative to the use 
of push-out windows for buses manufactured before September 1, 1973. 
Section 393.61(c) requires that every glazed opening used to satisfy 
the emergency exit space requirements, ``if not glazed with laminated 
safety glass, shall have a frame or sash so designed, constructed, and 
maintained that it will yield outwardly to provide the required free 
opening. * * *'' Laminated safety glass meeting Test No. 25, Egress, 
American National Standard ``Safety Code for Safety Glazing Materials 
for Glazing Motor Vehicles Operating on Land Highways,'' Z26.1-1966 as 
supplemented by Z26.1a-1969 (referenced in Secs. 393.61(c) and 
393.60(a)) is intended to provide an adequate means of emergency exit 
on older buses without resorting to push-out windows.
    However, buses with a seating capacity of more than 10 people 
manufactured after September 1, 1973, must have push-out windows that 
conform to 49 CFR 571.217.
    Question 3: When calculating the minimum emergency exit space 
required on school buses used in non-school bus operations, should two 
or three passengers per bench seat be used in determining the adult 
seating capacity?
    Guidance: The NHTSA has indicated that ``School buses can transport 
3 to a seat if the passengers are in grades 1 through 5, and 2 per seat 
in grades 9 through 12.'' (May 9, 1995, 60 FR 24562, 24567) Therefore, 
for vehicles originally manufactured as school buses, the total pupil 
seating capacity provided by the

[[Page 16417]]

bus manufacturer should be multiplied by \2/3\ to determine the adult 
seating capacity for the purposes of Sec. 393.61. This generally yields 
the same result as using two adults per bench seat.
    Question 4: Do school buses which meet the school bus emergency 
exit requirements established by the NHTSA's November 2, 1992, final 
rule on FMVSS No. 217 have to be retrofitted with additional emergency 
exits when used in interstate commerce for non-school bus operations?
    Guidance: No. On May 9, 1995, the NHTSA amended FMVSS No. 217 to 
permit non-school buses to meet either the current non-school bus 
emergency exit requirements or the upgraded school bus exit 
requirements established by the November 2, 1992 (57 FR 49413), final 
rule which became effective on September 1, 1994. Therefore, school 
buses which meet the upgraded emergency exit standards meet the 
requirements of Sec. 393.61 without the retrofitting of additional 
exits.
    Question 5: Which edition of FMVSS No. 217 is required to be used 
in determining the emergency exit space requirements when retrofitting 
buses?
    Guidance: The cross reference to FMVSS No. 217 applies to the 
requirements in effect at the time of manufacture of the bus. Motor 
carriers are not, however, prohibited from retrofitting their buses to 
the most up-to-date requirements in FMVSS No. 217. Therefore, at a 
minimum, motor carriers must meet the non-school bus emergency exit 
requirements in effect at the time of manufacture, and have the option 
of retrofitting their buses to meet the emergency exit requirements 
established by the November 2, 1992 (57 FR 49413), final rule which 
became effective on September 1, 1994.

Section 393.62  Window Obstructions

    Question 1: May a bus being operated by a for-hire motor carrier of 
passengers, under contract with a governmental agency to provide 
transportation of prisoners in interstate commerce, be allowed to 
operate with security bars covering the emergency push-out windows and 
with locked emergency door exits?
    Guidance: Yes. Even when the transportation is performed by a 
contract carrier, the welfare, safety, and security of the prisoners is 
under the authority of the governmental corrections agency and, thus, 
the agency may require additional security measures. For these types of 
operations, a carrier may meet the special security requirements of the 
governmental corrections agency regarding emergency exits. However, 
CMVs that have been modified to meet the security requirements of the 
corrections agency may not be used for other purposes that are subject 
to the FMCSRs unless they meet the emergency exit requirements.

Section 393.65  All Fuel Systems

    Question 1: May a fuel fill pipe opening be placed above the 
passenger floor level if it is not physically within the passenger 
compartment?
    Guidance: Yes. In addition, the fill pipe may intrude into the 
passenger compartment as long as the fill pipe opening complies with 
Sec. 393.65(b)(4), and the fill pipe is protected by a housing or 
covering to prevent leakage of fuel or fumes into the passenger 
compartment.
    Question 2: Must a motor vehicle that meets the definition of a 
``commercial motor vehicle'' in Sec. 390.5 because it transports 
hazardous materials in a quantity requiring placarding under the 
Hazardous Materials Regulations (49 CFR parts 171-180) comply with the 
fuel system requirements of Subpart E of Part 393, even though it has a 
gross vehicle weight rating (GVWR) of 10,000 pounds or less?
    Guidance: No. FMVSS No. 301 contains fuel system integrity 
requirements for passenger cars and multipurpose passenger vehicles, 
trucks, and buses that have a GVWR of 10,000 pounds or less and use 
fuel with a boiling point above 0 deg. Celsius (32 deg. Fahrenheit). 
Subpart E of part 393 was issued to provide fuel system requirements to 
cover motor vehicles with a GVWR of 10,001 or more pounds. The fuel 
systems of placarded motor vehicles with a GVWR of less than 10,001 
pounds are adequately addressed by FMVSS No. 301 and compliance with 
subpart E of part 393 would be redundant. However, commercial motor 
vehicles that are not covered by FMVSS No. 301 must continue to comply 
with subpart E of part 393.

Section 393.67  Liquid Fuel Tanks

    Question 1: May a properly vented fuel cap be used on a fuel tank 
equipped with another fuel venting system?
    Guidance: Yes (see Sec. 393.3).
    Question 2: Do the FMCSRs specify a particular pressure relief 
system?
    Guidance: No, but the performance standards of Sec. 393.67(d) must 
be met.
    Question 3: What standards under the FMCSRs must be met when a 
liquid fuel tank is repaired or replaced?
    Guidance: A replacement/repaired tank must meet the applicable 
standards in Sec. 393.67.

Section 393.70  Coupling Devices and Towing Methods, Except for 
Driveaway-Towaway Operations

    Question 1: Is there a minimum number of fasteners required to 
fasten the upper fifth wheel plate to the frame of a trailer?
    Guidance: The FMCSRs do not specify a minimum number of fasteners. 
However, the industry recommends that a minimum of ten \5/8\ inch bolts 
be used. If \1/2\ inch bolts are used, the industry recommends at least 
14 bolts. The CVSA has adopted these industry standards as a part of 
its vehicle out-of-service criteria.
    Question 2: When two safety chains are used, must the ultimate 
combined breaking strength of each chain be equal to the gross weight 
of the towed vehicle(s) or would the requirements be met if the 
combined breaking strength of the two chains is equal to the gross 
weight of the towed vehicle(s)?
    Guidance: If the ultimate combined breaking strength of the two 
chains is equal to the gross weight of the towed vehicle(s), the 
requirements of Sec. 393.70(d) are satisfied. It should be noted that 
some States may have more stringent requirements for safety chains.
    Question 3: Section 393.70(d) requires that every full trailer must 
be coupled to the frame, or an extension of the frame, of the motor 
vehicle which tows it with one or more safety devices to prevent the 
towed vehicle from breaking loose in the event the tow-bar fails or 
becomes disconnected. The safety device must be connected to the towed 
and towing vehicles and to the tow-bar in a manner which prevents the 
tow-bar from dropping to the ground in the event it fails or becomes 
disconnected. Would the use of a pair of safety chains/cables between 
the towing vehicle and the front of a fixed-length draw bar, or an 
extendible draw bar, with a separate pair of safety chains/cables 
between the end of the draw bar and the front of the towed vehicle meet 
the requirements of Sec. 393.70(d)?
    Guidance: Generally, separate safety devices at the front and rear 
of the draw bar could be used to satisfy the requirements of 
Sec. 393.70(d) provided the safety devices are attached to the drawbar 
and the vehicles in a manner that prevents the drawbar from dropping to 
the ground in the event that it fails or becomes disconnected. Also, 
the arrangement of the safety device(s) must be such that the vehicles 
will not separate if the draw bar fails or becomes disconnected.
    If the drawbar design is such that bolts, connecting pins, etc., 
are used to connect structural members of the

[[Page 16418]]

drawbar, and are located at or near the midpoint of the drawbar (beyond 
the attachment points for the safety chain at the ends of the draw bar) 
the safety devices would have to extend from either the frame of the 
towed or towing vehicle to a point beyond the bolts, connecting pins or 
similar devices.
    In the case of an extendible draw bar or reach, if a separate 
safety device(s) is used for the front and rear of the drawbar, a means 
must be provided to ensure that the drawbar will not separate at the 
movable portion of the drawbar. The use of welded tube stops would 
satisfy the intent of Sec. 393.70(d) if the ultimate strength of the 
welds exceeds the impact forces associated with the drawbar extending 
suddenly with a fully loaded trailer attached.

Section 393.71  Coupling Devices and Towing Methods, Driveaway-Towaway 
Operations

    Question 1: May a fifth wheel be considered as a coupling device 
when towing a semi-trailer in a driveaway-towaway operation?
    Guidance: Yes. Section 393.71(g) requires the use of a tow-bar or a 
saddle-mount. Since a saddle-mount performs the function of a 
conventional fifth wheel, the use of a fifth wheel is consistent with 
the requirements of this section.

Section 393.75  Tires

    Question 1: If a CMV has a defective tire, may the driver remove 
the defective tire from the axle and drive with three tires on an axle 
instead of four?
    Guidance: Yes, provided the weight on all of the remaining tires 
does not exceed the maximum allowed under Sec. 393.75(f).
    Question 2: May a CMV be operated with tires that carry a greater 
weight than the weight marked on the sidewall of the tires?
    Guidance: Yes, but only if the CMV is being operated under the 
terms of a State-issued special permit, and at a reduced speed that is 
appropriate to compensate for tire loading in excess of the rated 
capacity.
    Question 3: May a vehicle transport HM when equipped with retreaded 
tires?
    Guidance: Yes. The only CMV that may not utilize retreaded tires is 
a bus, and then only on its front wheels.
    Question 4: May tires be filled with materials other than air 
(e.g., silicone, polyurethane)?
    Guidance: Section 393.75 does not prohibit the use of tires filled 
with material other than air. However, Sec. 393.3 may prohibit the use 
of such tires under certain circumstances. Some substances used in 
place of air in tires may not maintain a constant physical state at 
different temperatures. While these substances are solid at lower 
temperatures, the increase in temperature from highway use may result 
in the substance changing from a solid to a liquid. The use of a 
substance which could undergo such a change in its physical 
characteristics is not safe, and is not in compliance with Sec. 393.3.

Section 393.76  Sleeper Berths

    Question 1: If a compartment in a CMV is no longer used as a 
sleeper berth, must it be maintained and equipped as a sleeper berth as 
required in Sec. 393.76?
    Guidance: No.

Section 393.78  Windshield Wipers

    Question 1: Are windshield washer systems required?
    Guidance: No, only windshield wipers are required.

Section 393.81  Horn

    Question 1: Do the FMCSRs specify what type of horn is to be used 
on a CMV?
    Guidance: No.
    Question 2: Are there established criteria in the FMCSRs to 
determine the minimum sound level of horns on CMVs?
    Guidance: No.

Section 393.82  Speedometer

    Question 1: What does the phrase ``reasonable accuracy'' mean?
    Guidance: ``Reasonable accuracy'' is interpreted to mean accuracy 
to within plus or minus 5 mph at a speed of 50 mph.

Section 393.83  Exhaust System

    Question 1: Is a heat shield mandatory on a vertical exhaust stack?
    Guidance: No. However, Sec. 393.83 requires the placement of the 
exhaust system in such a manner as to prevent the burning, charring, or 
damaging of the electrical wiring, the fuel supply, or any combustible 
part of the CMV.
    Question 2: Does Sec. 393.83 specify the type of exhaust system, 
vertical or horizontal, to be used on trucks or truck tractors?
    Guidance: No.

Section 393.87  Flags on Projecting Loads

    Question 1: May a triangular-shaped flag or device be used by 
itself to mark an oversized load?
    Guidance: No. However, nothing prohibits using a triangular-shaped 
flag in conjunction with the prescribed flag.

Section 393.88  Television Receivers

    Question 1: Does Sec. 393.88 restrict the use of closed circuit 
monitor devices being used as a safety viewing system that would 
eliminate blind-side motor carrier accidents?
    Guidance: No. The restriction of this section would not apply 
because the device cannot receive television broadcasts or be used for 
the viewing of video tapes.

Section 393.89  Buses, Drive Shaft Protection

    Question 1: For the purposes of Sec. 393.89, would a spline and 
yoke that is secured by a nut be considered a sliding connection?
    Guidance: No. To be considered a sliding connection, the spline 
must be able to move within the sleeve. When the end of the spline is 
secured by a nut, it no longer has that freedom.
    Question 2: On multiple drive shaft buses, does Sec. 393.89 require 
that all segments of the drive shaft be protected no matter the 
segments' length?
    Guidance: Yes. Each drive shaft must have one guard or bracket for 
each end of a shaft which is provided with a sliding connection (spline 
or other such device).
    Question 3: How does an existing pillow bearing (shaft support) on 
a multiple driveshaft system affect the requirement?
    Guidance: It does not affect the requirement. It is part of the 
requirement.

Section 393.92  Buses, Marking Emergency Doors

    Question 1: Is a contractor-operated school bus operating in 
interstate commerce required to have emergency lights over the exit 
door?
    Guidance: Yes. Any bus used in interstate commerce for other than 
school bus operations, as defined in Sec. 390.5, is subject to the 
FMCSRs.

Section 393.93  Seats, Seat Belt Assemblies, and Seat Belt Assembly 
Anchorages

    Question 1: If a CMV, other than a motorcoach, is equipped with a 
passenger seat, is a seat belt required for the passenger seat?
    Guidance: Yes.

Section 393.95  Emergency Equipment on all Power Units

    Question 1: Are pressure gauges the only acceptable means for a 
visual determination that a fire extinguisher is fully charged?
    Guidance: No, as long as there is some means to permit a visual 
determination that a fire extinguisher is fully charged.

[[Page 16419]]

Section 393.100  General Rules for Protection Against Shifting or 
Falling Cargo

    Question 1: When securing cargo, is the use of a tiedown every 10 
linear feet, or fraction thereof, adequate?
    Guidance: Yes, as long as the aggregate strength of the tiedowns is 
equal to the requirements of Sec. 393.102, and each article is secured.
    Question 2: Are CMVs transporting metal objects required to use 
option C?
    Guidance: Only those CMVs which cannot comply with options A, B, or 
D, are required to conform to option C (see Sec. 393.100(c)).
    Question 3: Are the requirements of Sec. 393.100 the only cargo 
securement requirements motor carriers must comply with?
    Guidance: No. A motor carrier, when transporting cargo, must comply 
with all the applicable cargo securement requirements of subpart I and 
Sec. 392.9.
    Question 4: Do the rules for protection against shifting or falling 
cargo apply to CMVs with enclosed cargo areas?
    Guidance: Yes. All CMVs transporting cargo must comply with the 
applicable provisions of Secs. 393.100-393.106 (subpart I) to prevent 
the shifting or falling of cargo aboard the vehicle.
    Question 5: How many tiedowns are required for the transportation 
of logs on pole trailers with trip-bolsters or other stanchions?
    Guidance: The regulations do not specify a minimum number of 
tiedowns. Section 393.100(b) provides motor carriers with several 
options for complying with Sec. 393.100. Although option B specifically 
addresses the use of tiedowns for each 10 linear feet of lading or 
fraction thereof (with certain exceptions), option D indicates the 
motor carrier may use ``other means * * * which are similar to, and at 
least as effective * * *'' as options A, B, and C. Therefore, the trip-
bolsters or other stanchions in conjunction with securement devices 
meeting the requirements of Sec. 393.102 may (depending on the amount 
by which the logs exceed the length of the trailer) be used to satisfy 
option D.
    Question 6: Are logs which are bundled together with tiedowns and 
transported on pole trailers with trip-bolsters or stanchions required 
to be fastened to the vehicle?
    Guidance: Yes. Generally, cargo is not considered to be secured in 
accordance with subpart I of part 393 unless tiedowns or other 
securement devices prevent the cargo from moving relative to the 
vehicle. Two rules in Sec. 393.100 are directly applicable to the 
transportation of logs on a pole trailer.
    Section 393.100(b)(2), Option B, requires one tiedown assembly for 
each 10 linear feet of lading or fraction thereof. However, ``a pole 
trailer * * * is required only to have two * * * of those tiedown 
assemblies at each end of the trailer,'' i.e., at the stanchions, 
because the cargo cannot effectively be secured at mid-trailer where 
its structure is limited to the pole or boom.
    Section 393.100(b)(4), Option D, allows the motor carrier to use a 
securement system that is similar to, and at least as effective as 
Option B.
    Section 393.100(d) states that the rules in Sec. 393.100 do not 
apply to the transportation of ``one or more articles which, because of 
their size, shape, or weight, must be carried on special purpose 
vehicles or must be fastened by special methods.'' However, since pole 
trailers are explicitly included in Sec. 393.100(b)(2), they are not 
special purpose vehicles and logs must be secured in accordance with 
Sec. 393.100(b).

Section 393.102  Securement Systems

    Question 1: Does Sec. 393.102(b) prohibit the use of securement 
devices for which manufacturing standards have not been incorporated by 
reference?
    Guidance: Section 393.102(b) requires that chain, wire rope, 
synthetic webbing, cordage, and steel strapping meet minimum 
manufacturing standards. It does not, however, prohibit the use of 
other types of securement devices or establish manufacturing standards 
for those devices. Therefore, if the securement device(s) has an 
aggregate working load limit of at least 1/2 the weight of the article, 
and the load is secured to prevent it from shifting or falling from the 
vehicle, Secs. 393.100 and 393.102(b) would be satisfied.
    If the cargo is not firmly braced against a front-end structure 
that conforms to the requirements of Sec. 393.106, the securement 
system would have to provide protection against longitudinal movement 
[Sec. 393.104(a)]. If the load may shift sideways in transit then 
Sec. 393.104(b) would also be applicable.
    Question 2: Does Sec. 393.102(b) require that securement devices be 
marked or labeled with their working load limit or any other 
information?
    Guidance: No. Although Sec. 393.102(b) requires chain, wire rope, 
synthetic webbing, cordage, and steel strapping tiedowns to meet 
applicable manufacturing standards, it explicitly excludes marking 
identification provisions of those manufacturing standards. Since 
Sec. 393.102(b) does not establish manufacturing standards or marking 
requirements for other types of securement devices, such devices are 
not required to be marked with their working load limit.

Section 393.106  Front-end Structure

    Question 1: When describing a headerboard or cab protection device, 
the regulations state that similar devices may be used. What is meant 
by the term ``similar devices''?
    Guidance: The term ``similar devices'' has reference to devices 
equivalent in strength and function, though not necessarily in 
appearance and construction, to headerboards.

Section 393.201  Frames

    Question 1: Are crossmembers of CMVs considered part of the frame?
    Guidance: Yes.
    Question 2: Does Sec. 393.201 of the FMCSRs apply to trailers?
    Guidance: No. Section 393. 201 is specific to buses, trucks, and 
truck tractors.
    Question 3: Are welded repairs or modifications to the frame of a 
CMV violations of the FMCSRs?
    Guidance: Welding would not be a violation of the FMCSRs unless the 
process used for the metals being welded or the location of the weld 
reduced the safety of operation of the vehicle. The safety of a 
repaired and/or modified vehicle would depend on the structural design 
of the frame, as well as the modifications performed. The manufacturer 
of the vehicle should be contacted for assistance.
Special Topics--CMV Parts and Accessories
    Question 1: Do tires marked ``NHS'' (not for highway service) mean 
that highway use is prohibited by Sec. 393.75?
    Guidance: No, provided the use of such tires does not decrease the 
safety of operations (see Periodic Inspection Requirements, Appendix G 
to subpart B).

PART 395--HOURS OF SERVICE OF DRIVERS

Sections Interpreted

395.1  Scope of the Rules in This Part
395.2  Definitions
395.3  Maximum Driving and On-Duty Time
395.8  Driver's Record of Duty Status
395.13  Drivers Declared Out of Service
395.15  Automatic On-Board Recording Devices

Section 395.1  Scope of the Rules in This Part

    Question 1: What hours-of-service regulations apply to drivers 
operating between the United States and Mexico or between the United 
States and Canada?

[[Page 16420]]

    Guidance: When operating CMVs, as defined in Sec. 390.5, in the 
United States, all hours-of-service provisions apply to all drivers of 
CMVs, regardless of nationality, point of origin, or where the driving 
time or on-duty time was accrued.
    Question 2: If a driver invokes the exception for adverse driving 
conditions, does a supervisor need to sign the driver's record of duty 
status when he/she arrives at the destination?
    Guidance: No.
    Question 3: May a driver use the adverse driving conditions 
exception if he/she has accumulated driving time and on-duty (not 
driving) time, that would put the driver over 15 hours or over 70 hours 
in 8 consecutive days?
    Guidance: No. The adverse driving conditions exception applies only 
to the 10-hour rule.
    Question 4: Are there allowances made in the FMCSRs for delays 
caused by loading and unloading?
    Guidance: No. Although the regulations do make some allowances for 
unforeseen contingencies such as in Sec. 395.1(b), adverse driving 
conditions, and Sec. 395.1(b)(2), emergency conditions, loading and 
unloading delays are not covered by these sections.
    Question 5: How may a driver utilize the adverse driving conditions 
exception or the emergency conditions exception as found in 
Sec. 395.1(b), to preclude an hours of service violation?
    Guidance: An absolute prerequisite for any such claim must be that 
the trip involved is one which could normally and reasonably have been 
completed without a violation and that the unforeseen event occurred 
after the driver began the trip.
    Drivers who are dispatched after the motor carrier has been 
notified or should have known of adverse driving conditions are not 
eligible for the two hours additional driving time provided for under 
Sec. 395.1(b), adverse driving conditions. The term ``in any 
emergency'' shall not be construed as encompassing such situations as a 
driver's desire to get home, shippers' demands, market declines, 
shortage of drivers, or mechanical failures.
    Question 6: What does ``servicing'' of the field operations of the 
natural gas and oil industry cover?
    Guidance: Servicing of field operations, as described by the ICC 
report issued with this exemption, covers those services generally 
performed by specialized companies supporting the petroleum drilling 
and producing industry, ``including testing, mudfilling, cementing, 
hydraulic fracturing, voltage, logging, and resistivity measurements, 
and cleaning of industrial equipment, as the particular requirement 
might arise in the normal course of well digging or maintenance 
operations * * *'' (89 M.C.C. 19, at 28, March 29, 1962). Water 
servicing companies, whose operations are exclusive to servicing the 
natural gas and oil industry, are also covered by the provisions of 
Sec. 395.1(d).
    Section 395.1(d) applies only to situations involving drilling or 
the operation of wells. It does not apply to exploration activities.
    Question 7: What is considered ``oilfield equipment'' for the 
purposes of 395.1(d)(1)?
    Guidance: Oilfield equipment is not specifically defined in this 
section. However, its meaning is broader than the ``specially 
constructed'' commercial motor vehicles referred to in 
Sec. 395.1(d)(2), and may encompass a spectrum of equipment ranging 
from an entire vehicle to hand-held devices.
    Question 8: What kinds of oilfield equipment may drivers operate 
while taking advantage of the special rule in Sec. 395.1(d)(2)?
    Guidance: The special rule in Sec. 395.1(d)(2) applies only to 
drivers transporting the equipment identified by the former Interstate 
Commerce Commission (now part of the Federal Highway Administration) in 
a 1962 report to accompany the oilfield rule. The report indicated the 
specialized equipment normally consists of heavy machinery permanently 
mounted on commercial motor vehicles, designed to fill a specific need.
    Question 9: Are drivers required to be dedicated permanently to the 
oilfield industry, or must they exclusively transport oilfield 
equipment or service the field operations of the industry only for each 
eight-day (or shorter) period ended by an off-duty period of 24 or more 
consecutive hours?
    Guidance: A driver must exclusively transport oilfield equipment or 
service the field operations of the industry for each eight-day (or 
shorter) period before his/her off-duty period of 24 or more 
consecutive hours. However, he/she must be in full compliance with the 
requirements of 395.3(b) before driving other commercial motor vehicles 
not used to service the field operations of the natural gas or oil 
industry.
    Question 10: A driver is used exclusively to transport materials 
(such as sand or water) which are used exclusively to service the field 
operations of the natural gas or oil industry. Occasionally, the driver 
has leftover materials that must be transported back to a motor carrier 
facility or service depot. Would such a return trip be covered by 
Sec. 395.1(d)(1)?
    Guidance: Yes. Transporting excess materials back to a facility 
from the well site is part of the servicing operations. However, such 
servicing operations are limited to transportation back and forth 
between the service depot or motor carrier facility and the field site. 
Transportation of materials from one depot to another, from a railhead 
to a depot, or from a motor carrier terminal to a depot, is not 
considered to be in direct support of field operations.
    Question 11: May specially trained drivers of specially constructed 
oil well servicing vehicles cumulate the 8 consecutive hours off duty 
required by Sec. 395.3 by combining off-duty time or sleeper-berth time 
at a natural gas or oil well site with off-duty time or sleeper-berth 
time while en route to or from the well?
    Guidance: These drivers may cumulate the required 8 consecutive 
hours off duty by combining two separate periods, each at least 2 hours 
long, of off-duty time or sleeper-berth time at a natural gas or oil 
well location with sleeper-berth time in a CMV while en route to or 
from such a location. They may also cumulate the required 8 consecutive 
hours off duty by combining an off-duty period of at least 2 hours at a 
well site with: (1) Another off-duty period at the well site that, when 
added to the first such period, equals at least 8 hours, or (2) a 
period in a sleeper-berth, either at or away from the well site, or in 
other sleeping accommodations at the well site, that, when added to the 
first off-duty period, equals at least 8 hours.
    However, such drivers may not combine a period of less than 8 hours 
off duty away from a natural gas or oil well site with another period 
of less than 8 hours off duty at such well sites. The special 
provisions for drivers at well sites are strictly limited to those 
locations.
    The following table indicates what types of off-site and on-site 
time periods may be combined.

[[Page 16421]]



----------------------------------------------------------------------------------------------------------------
                                                                                         On Site Other Sleeping 
                                     On Site Off Duty Time      On Site Sleeper Berth         Accommodation     
----------------------------------------------------------------------------------------------------------------
Away from Site Off Duty Time                                                                                    
Away from Site Sleeper Berth Time  X Combination must be 8    X Combination must be 8   X Combination must be 8 
                                    or more hours.             or more hours.            or more hours.         
Away from Site Other Sleeping                                                                                   
 Accommodation                                                                                                  
----------------------------------------------------------------------------------------------------------------

    Question 12: What constitutes the 100-air-mile radius exemption?
    Guidance: The term ``air mile'' is internationally defined as a 
``nautical mile'' which is equivalent to 6,076 feet or 1,852 meters. 
Thus, the 100 air miles are equivalent to 115.08 statute miles or 185.2 
kilometers.
    Question 13: What documentation must a driver claiming the 100-air-
mile radius exemption [Sec. 395.1(e)] have in his/her possession?
    Guidance: None.
    Question 14: Must a motor carrier retain 100-air-mile driver time 
records at its principal place of business?
    Guidance: No. However, upon request by an authorized representative 
of the FHWA or State official, the records must be produced within a 
reasonable period of time (2 working days) at the location where the 
review takes place.
    Question 15: May an operation that changes its normal work-
reporting location on an intermittent basis utilize the 100-air-mile 
radius exemption?
    Guidance: Yes. However, when the motor carrier changes the normal 
reporting location to a new reporting location, that trip (from the old 
location to the new location) must be recorded on the record of duty 
status because the driver has not returned to his/her normal work 
reporting location.
    Question 16: May a driver use a record of duty status form as a 
time record to meet the requirement contained in the 100-air-mile 
radius exemption?
    Guidance: Yes, provided the form contains the mandatory 
information.
    Question 17: Is the ``mandatory information'' referred to in the 
previous guidance that required of a normal RODS under Sec. 395.8(d) or 
that of the 100-air-mile radius exemption under Sec. 395.1(e)(5)?
    Guidance: The ``mandatory information'' referred to is the time 
records specified by Sec. 395.1(e)(5) which must show: (1) The time the 
driver reports for duty each day; (2) the total number of hours the 
driver is on duty each day; (3) the time the driver is released from 
duty each day; and (4) the total time for the preceding 7 days in 
accordance with Sec. 395.8(j)(2) for drivers used for the first time or 
intermittently.
    Using the RODS to comply with Sec. 395.1(e)(5) is not prohibited as 
long as the RODS contains driver identification, the date, the time the 
driver began work, the time the driver ended work, and the total hours 
on duty.
    Question 18: Must the driver's name and each date worked appear on 
the time record prepared to comply with Sec. 395.1(e), 100-air-mile 
radius driver?
    Guidance: Yes. The driver's name or other identification and date 
worked must be shown on the time record.
    Question 19: May drivers who work split shifts take advantage of 
the 100-air-mile radius exemption found at Sec. 395.1(e)?
    Guidance: Yes. Drivers who work split shifts may take advantage of 
the 100-air-mile radius exemption if: 1. The drivers operate within a 
100-air-mile radius of their normal work-reporting locations; 2. The 
drivers return to their work-reporting locations and are released from 
work at the end of each shift and each shift is less than 12 
consecutive hours; 3. The drivers are off-duty for more than 8 
consecutive hours before reporting for their first shift of the day and 
spend less than 12 hours, in the aggregate, on-duty each day; 4. The 
drivers do not exceed a total of 10 hours driving time and are afforded 
8 or more consecutive hours off-duty prior to their first shift of the 
day; and 5. The employing motor carriers maintain and retain the time 
records required by 395.1(e)(5).
    Question 20: A company prepares and maintains time records for 
drivers classified as 100-air-mile radius drivers. The drivers usually 
do not work every day of the week. Does the motor carrier have to 
maintain time records for the days the drivers do not work?
    Guidance: The motor carrier must maintain time records stating that 
the drivers were off-duty during the days the drivers did not work. 
However, if the drivers are off consecutive days, the employer may 
prepare a single time record stating the days each driver was off-duty.
    Question 21: May a driver who is taking advantage of the 100-air-
mile radius exemption in Sec. 395.1(e) be intermittently off-duty 
during the period away from the work-reporting location?
    Guidance: Yes, a driver may be intermittently off-duty during the 
period away from the work-reporting location provided the driver meets 
all requirements for being off-duty. If the driver's period away from 
the work-reporting location includes periods of off-duty time, the time 
record must show both total on-duty time and total off-duty time during 
his/her tour of duty. In any event, the driver must return to the work-
reporting location and be released from work within 12 consecutive 
hours.
    Question 22: When a driver fails to meet the provisions of the 100-
air-mile radius exemption (Sec. 395.1(e)), is the driver required to 
have copies of his/her records of duty status for the previous seven 
days? Must the driver prepare daily records of duty status for the next 
seven days?
    Guidance: The driver must only have in his/her possession a record 
of duty status for the day he/she does not qualify for the exemption. A 
driver must begin to prepare the record of duty status for the day 
immediately after he/she becomes aware that the terms of the exemption 
cannot be met. The record of duty status must cover the entire day, 
even if the driver has to record retroactively changes in status that 
occurred between the time that the driver reported for duty and the 
time in which he/she no longer qualified for the 100 air-mile radius 
exemption. This is the only way to ensure that a driver does not claim 
the right to drive 10 hours after leaving his/her exempt status, in 
addition to the hours already driven under the 100-air-mile exemption.
    Question 23: A driver returns to his/her normal work reporting 
location from a location beyond the 100-air-mile radius and goes off 
duty for 7 hours. May the driver return to duty after being off-duty 
for 7 hours and utilize the 100-air-mile radius exemption?
    Guidance: No. The 7-hour off-duty period has not met the 
requirement of 8 consecutive hours separating each 12-hour on-duty 
period. The driver must first accumulate 8 consecutive hours off-duty 
before operating under the 100-air-mile radius exemption.
    Question 24: Is the exemption contained in Sec. 395.1(f) concerning 
department store deliveries during the period from December 10 to 
December

[[Page 16422]]

25 limited to only drivers employed by department stores?
    Guidance: No. The exemption applies to all drivers engaged solely 
in making local deliveries from retail stores and/or retail catalog 
businesses to the ultimate consumer, when driving solely within a 100-
air-mile radius of the driver's work-reporting location, during the 
dates specified.
    Question 25: May time spent in sleeping facilities being 
transported as cargo (e.g., boats, campers, travel trailers) be 
recorded as sleeper berth time?
    Guidance: No, it cannot be recorded as sleeper berth time.
    Question 26: May sleeper berth time and off-duty periods be 
combined to meet the 8-hour off-duty requirement?
    Guidance: Yes, as long as the 8-hour period is consecutive and not 
broken by on-duty or driving activities. This does not apply to drivers 
at natural gas or oil well locations who may separate the periods.
    Question 27: May a driver record sleeper berth time as off-duty 
time on line one of the record of duty status?
    Guidance: No. The driver's record of duty status must accurately 
reflect the driver's activities.
    Question 28: After accumulating 8 consecutive hours of off-duty 
time, a driver spends 2 hours in the sleeper berth. The driver then 
drives a CMV for 10 hours, then spends 6 hours in the sleeper berth. 
May the driver combine the two sleeper berth periods to meet the 
required 8 consecutive hours of off-duty time per Sec. 395.1(h), then 
drive for up to 10 more hours?
    Guidance: No. The 10 hours of driving time between the first and 
second sleeper berth periods must be considered in determining the 
amount of time that the driver may drive after the second sleeper berth 
period. Sleeper berths are intended to be used between periods of on-
duty time. When a driver has already been off duty for more than 8 
consecutive hours, and has therefore had adequate opportunity to rest, 
he/she may not ``save'' additional hours before going on duty and add 
them to the next sleeper berth period. In short, a driver must be on 
duty before he/she begins to accumulate sleeper berth time. The driver 
in your scenario is operating in violation of the hours of service 
regulations for the entire second 10-hour driving period until that 
driver is able to secure at least 8 consecutive hours of off-duty time.

Section 395.2  Definitions

    Question 1: A company told all of its drivers that it would no 
longer pay for driving from the last stop to home and that this time 
should not be shown on the time cards. Is it a violation of the FMCSRs 
to operate a CMV from the last stop to home and not show that time on 
the time cards?
    Guidance: The FMCSRs do not address questions of pay. All the time 
spent operating a CMV for, or at the direction of, a motor carrier must 
be recorded as driving time.
    Question 2: What conditions must be met for a CMV driver to record 
meal and other routine stops made during a tour of duty as off-duty 
time?
    Guidance: 1. The driver must have been relieved of all duty and 
responsibility for the care and custody of the vehicle, its 
accessories, and any cargo or passengers it may be carrying.
    2. The duration of the driver's relief from duty must be a finite 
period of time which is of sufficient duration to ensure that the 
accumulated fatigue resulting from operating a CMV will be 
significantly reduced.
    3. If the driver has been relieved from duty, as noted in (1) 
above, the duration of the relief from duty must have been made known 
to the driver prior to the driver's departure in written instructions 
from the employer. There are no record retention requirements for these 
instructions on board a vehicle or at a motor carrier's principal place 
of business.
    4. During the stop, and for the duration of the stop, the driver 
must be at liberty to pursue activities of his/her own choosing and to 
leave the premises where the vehicle is situated.
    Question 3: A driver has been given written permission by his/her 
employer to record meal and other routine stops made during a tour of 
duty as off-duty time. Is the driver required to record such time as 
off-duty, or is it the driver's decision whether such time is recorded 
as off-duty?
    Guidance: It is the employer's choice whether the driver shall 
record stops made during a tour of duty as off-duty time. However, 
employers may permit drivers to make the decision as to how the time 
will be recorded.
    Question 4: A driver has been given written permission by his/her 
employer to record meal and other routine stops made during a tour of 
duty as off-duty time. Is the driver allowed to record his stops during 
a tour of duty as off-duty time when the CMV is laden with HM and the 
CMV is parked in a truck stop parking lot?
    Guidance: Drivers may record meal and other routine stops made 
during a tour of duty as off-duty time, except when a CMV is laden with 
explosive HM classified as hazard divisions 1.1, 1.2, or 1.3 (formerly 
Class A or B explosives). In addition, when HM classified under hazard 
divisions 1.1, 1.2, or 1.3 are on a CMV, the employer and the driver 
must comply with Sec. 397.5 of the FMCSRs.
    Question 5: Do telephone calls to or from the motor carrier that 
momentarily interrupt a driver's rest period constitute a change of the 
driver's duty status?
    Guidance: Telephone calls of this type do not prevent the driver 
from obtaining adequate rest. Therefore, the FHWA does not consider 
these brief telephone calls to be a break in the driver's off-duty 
status.
    Question 6: If a driver is required by a motor carrier to carry a 
pager/beeper to receive notification to contact the motor carrier for a 
duty assignment, how should this time be recorded?
    Guidance: The time is to be recorded as off-duty.
    Question 7: May a sleeper berth be used for a period of less than 2 
hours' duration?
    Guidance: Yes. The sleeper berth may be used for such periods of 
inactivity. Periods of time of less than 2 hours spent in a sleeper 
berth may not be used to accumulate the 8 hours of off-duty time 
required by Sec. 395.3 of the FMCSRs.
    Question 8: If a ``driver trainer'' occasionally drives a CMV, 
thereby becoming a ``driver'' (regardless of whether he/she is paid for 
driving), must the driver record all nondriving (training) time as on-
duty (not driving)?
    Guidance: Yes.
    Question 9: A driver drives on streets and highways during the week 
and jockeys CMVs in the yard (private property) on weekends. How is the 
yard time to be recorded?
    Guidance: On-duty (driving).
    Question 10: How does compensation relate to on-duty time?
    Guidance: The fact that a driver is paid for a period of time does 
not always establish that the driver was on-duty for the purposes of 
part 395 during that period of time. A driver may be relieved of duty 
under certain conditions and still be paid.
    Question 11: Must nontransportation-related work for a motor 
carrier be recorded as on-duty time?
    Guidance: Yes. All work for a motor carrier, whether compensated or 
not, must be recorded as on-duty time. The term ``work'' as used in the 
definition of ``on-duty time'' in Sec. 395.2 of the FMCSRs is not 
limited to driving or other nontransportation-related employment.
    Question 12: How should time spent in transit on a ferry boat be 
recorded?
    Guidance: Time spent on a ferry by drivers may be recorded as off-
duty time

[[Page 16423]]

if they are completely relieved from work and all responsibility and 
obligation to the motor carriers for which they drive. This relief must 
be consistent with existing regulations of the ferry company and the 
U.S. Coast Guard.
    Question 13: What is the duty status of a co-driver (truck) who is 
riding seated next to the driver?
    Guidance: On-duty (not driving).
    Question 14: How much a CMV driver driving a non-CMV at the 
direction of a motor carrier record this time?
    Guidance: If CMV drivers operate motor vehicles with GVWRs of 
10,000 pounds or less at the direction of a motor carrier, the FHWA 
requires those drivers to maintain records of duty status and record 
such time operating as on-duty (not driving).
    Question 15: How much the time spent operating a motor vehicle on 
the rails (roadrailers) be recorded?
    Guidance: On-duty (not driving).
    Question 16: Must a driver engaged in union activities affecting 
the employing motor carrier record such time as on-duty (not driving) 
time?
    Guidance: The union activities of a driver employed by a unionized 
motor carrier must be recorded as on-duty (not driving) time if the 
collective bargaining agreement requires the motor carrier to pay the 
driver for time engaged in such activities. Otherwise these activities 
may be recorded as off duty time unless they are combined with normal 
duties performed for the carrier.
    Efforts by a driver to organize co-workers employed by a non-
unionized motor carrier, either on the carrier's premises or elsewhere, 
may be recorded as off duty time unless the organizing activities are 
combined with normal duties performed for the carrier.
    Question 17: How is the 50 percent driving time in the definition 
of ``driver-salesperson'' in Sec. 395.2 determined?
    Guidance: The driving time is determined on a weekly basis. The 
driver must be employed solely as a driver-salesperson. The driver-
salesperson may not participate in any other type of work activity.
    Question 18: May a driver change to and from a driver-salesman 
status at any time?
    Guidance: Yes, if the change is made on a weekly basis.
    Question 19: May the time a driver spends attending safety 
meetings, ceremonies, celebrations, or other company-sponsored safety 
events be recorded as off-duty time?
    Guidance: Yes, if attendance is voluntary.
    Question 20: How must a driver record time spent on-call awaiting 
dispatch?
    Guidance: The time that a driver is free from obligations to the 
employer and is able to use that time to secure appropriate rest may be 
recorded as off-duty time. The fact that a driver must also be 
available to receive a call in the event the driver is needed at work, 
even under the threat of discipline for non-availability, does not by 
itself impair the ability of the driver to use this time for rest.
    If the employer generally requires its drivers to be available for 
call after a mandatory rest period which complies with the regulatory 
requirement, the time spent standing by for a work-related call, 
following the required off-duty period, may be properly recorded as 
off-duty time.
    Question 21: How does a driver record the hours spent driving in a 
school bus operation when he/she also drives a CMV for a company 
subject to the FMCSRs?
    Guidance: If the school bus meets the definition of a CMV, it must 
be recorded as driving time.
    Question 22: A motor carrier relieves a driver from duty. What is a 
suitable facility for resting?
    Guidance: The only resting facility which the FHWA regulates is the 
sleeper berth. The sleeper berth requirements can be found in 
Sec. 393.76.
    Question 23: How many times may a motor carrier relieve a driver 
from duty within a tour of duty?
    Guidance: There is no limitation on the number of times a driver 
can be relieved from duty during a tour of duty.
    Question 24: If a driver is transported by automobile from the 
point of a breakdown to a terminal, and then dispatched on another run, 
how is the time spent in the automobile entered on the record of duty 
status? How is the time entered if the driver goes off-duty once he 
reaches the terminal?
    Guidance: The time spent in the automobile would be on-duty (not 
driving) if dispatched on another run once he/she reaches the terminal, 
and off-duty if he/she is given 8 consecutive hours off-duty upon 
reaching the terminal.
    Question 25: When a driver experiences a delay on an impassable 
highway, should the time he/she is delayed be entered on the record of 
duty status as driving time or on-duty (not driving)?
    Guidance: Delays on impassable highways must be recorded as driving 
time because Sec. 395.2 defines ``driving time'' as all time spent at 
the driving controls of a CMV in operation.
    Question 26: Is time spent operating controls in a CMV to perform 
an auxiliary, non-driving function (e.g., lifting a loaded container, 
compacting waste, etc.) considered driving time? Does the location of 
the controls have a bearing on the answer?
    Guidance: The location of the controls does have a bearing on the 
answer. Section 395.2 defines ``driving time'' as all time spent at the 
driving controls of a CMV in operation. If a driver, seated at the 
driving controls of the vehicle, is able to simultaneously perform the 
driving and auxiliary function (for example, one hand on the steering 
wheel and one hand on a control mechanism), the time spent performing 
the auxiliary function must be recorded as ``driving time.'' If a 
driver, seated at the driving controls of the vehicle, is unable to 
simultaneously perform the driving and auxiliary function, the time 
spent performing the auxiliary function may be recorded as ``on-duty 
not driving time.''
    Question 27: A motor carrier has full-time drivers who are also 
volunteer fire fighters. Some of the drivers carry pagers and leave 
their normal activities only when notified of a fire. Others 
consistently work 3 to 4 non-consecutive 24-hour shifts at a fire 
station each month, resting between calls. The drivers receive no 
monetary compensation for their work. How should the time spent on 
these activities be logged on the record of duty status when the 
drivers return to work?
    Guidance: When drivers are free from obligations to their 
employers, that time may be recorded as off-duty time. Drivers who are 
allowed by the motor carrier to leave their normal activities to fight 
fires and those who spend full days in a fire station are clearly off 
duty. Their time should be recorded as such.
    Question 28: How should time spent at National Guard meetings and 
training sessions be recorded for the hours of service requirements?
    Guidance: A member of a military reserve component, serving on 
either an inactive duty status, such as on a weekend drill, or in an 
active duty status, such as annual training, need only log as ``on 
duty'' time that time during which he or she is required to perform 
work, and not that time during which he or she is required or permitted 
to rest.

Section 395.3  Maximum Driving and On-duty Time

    Question 1: May a motor carrier switch from a 60-hour/7-day limit 
to a 70-hour/8-day limit or vice versa?
    Guidance: Yes. The only restriction regarding the use of the 70-
hour/8-day rule is that the motor carrier must have CMVs operating 
every day of the week. The 70-hour/8-day rule is a permissive

[[Page 16424]]

provision in that a motor carrier with vehicles operating every day of 
the week is not required to use the 70-hour/8-day rules for calculating 
its drivers' hours of service. The motor carrier may, however, assign 
some or all of its drivers to operate under the 70-hour/8-day rule if 
it so chooses. The assignment of individual drivers to the 60-hour/7-
day or the 70-hour/8-day time rule is left to the discretion of the 
motor carrier.
    Question 2: Does a driver, employed full time by one motor carrier 
using the 60-hours in 7-days rule, and part-time by another motor 
carrier using the 70-hours in 8-days rule, have the option of using 
either rule in computing his hours of service?
    Guidance: No. The motor carrier that employs the driver on a full-
time basis determines which rule it will use to comply with 
Sec. 395.3(b). The driver does not have the option to select the rule 
he/she wishes to use.
    Question 3: May a carrier which provides occasional, but not 
regular service on every day of the week, have the option of the 60 
hours in 7 days or 70 hours in 8 days with respect to all drivers, 
during the period in which it operates one or more vehicles on each day 
of the week?
    Guidance: Yes.
    Question 4: A Canadian driver is subjected to a log book inspection 
in the U.S. The driver has logged one or more 13-hour driving periods 
while in Canada during the previous 7 days, but has complied with all 
the FMCSRs while operating in the U.S. Has the driver violated the 10-
hour driving requirement in the U.S.?
    Guidance: No. Canadian drivers are required to comply with the 
FMCSRs only when operating in the U.S.
    Question 5: May a driver domiciled in the United States comply with 
the Canadian hours of service regulations while driving in Canada? If 
so, would the driving and on-duty time accumulated in Canada be counted 
toward compliance with one or more of the limits imposed by part 395 
when the driver re-enters the United States?
    Guidance: A driver domiciled in the United States may comply with 
the Canadian hours of service regulations while driving in Canada. Upon 
re-entering the United States, however, the driver is subject to all of 
the requirements of part 395, including the 10- and 15-hour rules, and 
the 60- or 70- hour rules applicable to the previous 7 or 8 consecutive 
days.
    In other words, a driver who takes full advantage of Canadian law 
may have to stop driving for a time immediately after returning to the 
U.S. in order to restore compliance with part 395. Despite its possible 
effect on decisions a U.S. driver must make while in Canada, this 
interpretation does not involve an exercise of extraterritorial 
jurisdiction.
    Question 6: If a motor carrier operates under the 70-hour/8-day 
rule, does any aspect of the 60-hour rule apply to its operations? If a 
motor carrier operates under the 60-hour/7-day rule, does any part of 
the 70-hour rule apply to its operations?
    Guidance: If a motor carrier operates 7 days per week and chooses 
to require all of its drivers to comply with the 70-hour/8-day rule, 
the 60-hour/7-day rule would not be applicable to these drivers. If 
this carrier chooses to assign some or all of its drivers to the 60-
hour/7-day rule, the 70-hour rule would not be applicable to these 
drivers. Conversely, if a motor carrier does not operate 7 days per 
week, it must operate under the 60-hour/7-day rule and the 70-hour rule 
would not apply to its operations.
    Question 7: What is the liability of a motor carrier for hours of 
service violations?
    Guidance: The carrier is liable for violations of the hours of 
service regulations if it had or should have had the means by which to 
detect the violations. Liability under the FMCSRs does not depend upon 
actual knowledge of the violations.
    Question 8: Are carriers liable for the actions of their employees 
even though the carrier contends that it did not require or permit the 
violations to occur?
    Guidance: Yes. Carriers are liable for the actions of their 
employees. Neither intent to commit, nor actual knowledge of, a 
violation is a necessary element of that liability. Carriers ``permit'' 
violations of the hours of service regulations by their employees if 
they fail to have in place management systems that effectively prevent 
such violations.

Section 395.8  Driver's Record of Duty Status

    Question 1: How should a change of duty status for a short period 
of time be shown on the driver's record of duty status?
    Guidance: Short periods of time (less than 15 minutes) may be 
identified by drawing a line from the appropriate on-duty (not driving) 
or driving line to the remarks section and entering the amount of time, 
such as ``6 minutes,'' and the geographic location of the duty status 
change.
    Question 2: May a rubber stamp signature be used on a driver's 
record of duty status?
    Guidance: No, a driver's record of duty status must bear the 
signature of the driver whose time is recorded thereon.
    Question 3: If a driver's record of duty status is not signed, may 
enforcement action be taken on the current day's record if it contains 
false information?
    Guidance: Enforcement action can be taken against the driver even 
though that record may not be signed. The regulations require the 
driver to keep the record of duty status current to the time of last 
change of duty status (whether or not the record has been signed). 
Also, Sec. 395.8(e) states that making false reports shall make the 
driver and/or the carrier liable to prosecution.
    Question 4: Must drivers, alternating between interstate and 
intrastate commerce, record their intrastate driving time on their 
record of duty status?
    Guidance: Yes, to account for all on-duty time for the prior 7 or 8 
days preceding an interstate movement.
    Question 5: May a driver, being used for the first time, submit 
records of duty status for the preceding 7 days in lieu of a signed 
statement?
    Guidance: The carrier may accept true and accurate copies of the 
driver's record of duty status for the preceding 7 days in lieu of the 
signed statement required by Sec. 395.8(j)(2).
    Question 6: How should multiple short stops in a town or city be 
recorded on a record of duty status?
    Guidance: All stops made in any one city, town, village or 
municipality may be computed as one. In such cases the sum of all stops 
should be shown on a continuous line as on-duty (not driving). The 
aggregate driving time between such stops should be entered on the 
record of duty status immediately following the on-duty (not driving) 
entry. The name of the city, town, village, or municipality, followed 
by the State abbreviation where all the stops took place, must appear 
in the ``remarks'' section of the record of duty status.
    Question 7: Is the Canadian bilingual or any other record of duty 
status form acceptable in the U.S.?
    Guidance: Yes, provided the grid format and specific information 
required are included.
    Question 8: May a motor carrier return a driver's completed record 
of duty status to the driver for correction of inaccurate or incomplete 
entries?
    Guidance: Yes, although the regulations do not require a driver to 
submit ``corrected'' records of duty status. A driver may submit 
corrected records of duty status to the motor

[[Page 16425]]

carrier at any time. It is suggested the carrier mark the second 
submission ``CORRECTED COPY'' and staple it to the original submission 
for the required retention period.
    Question 9: May a duplicate copy of a record of duty status be 
submitted if an original was seized by an enforcement official?
    Guidance: A driver must prepare a second original record of duty 
status to replace any page taken by an enforcement official. The driver 
should note that the first original had been taken by an enforcement 
official and the circumstances under which it was taken.
    Question 10: What regulation, interpretation, and/or administrative 
ruling requires a motor carrier to retain supporting documents and what 
are those documents?
    Guidance: Section 395.8(k)(1) requires motor carriers to retain all 
supporting documents at their principal places of business for a period 
of 6 months from date of receipt.
    Supporting documents are the records of the motor carrier which are 
maintained in the ordinary course of business and used by the motor 
carrier to verify the information recorded on the driver's record of 
duty status. Examples are: Bills of lading, carrier pros, freight 
bills, dispatch records, driver call-in records, gate record receipts, 
weight/scale tickets, fuel receipts, fuel billing statements, toll 
receipts, international registration plan receipts, international fuel 
tax agreement receipts, trip permits, port of entry receipts, cash 
advance receipts, delivery receipts, lumper receipts, interchange and 
inspection reports, lessor settlement sheets, over/short and damage 
reports, agricultural inspection reports, CVSA reports, accident 
reports, telephone billing statements, credit card receipts, driver fax 
reports, on-board computer reports, border crossing reports, custom 
declarations, traffic citations, overweight/oversize reports and 
citations, and/or other documents directly related to the motor 
carrier's operation, which are retained by the motor carrier in 
connection with the operation of its transportation business. 
Supporting documents may include other documents which the motor 
carrier maintains and can be used to verify information on the driver's 
records of duty status. If these records are maintained at locations 
other than the principal place of business but are not used by the 
motor carrier for verification purposes, they must be forwarded to the 
principal place of business upon a request by an authorized 
representative of the FHWA or State official within 2 business days.
    Question 11: Is a driver who works for a motor carrier on an 
occasional basis and who is regularly employed by a non-motor carrier 
entity required to submit either records of duty status or a signed 
statement regarding the hours of service for all on-duty time as ``on-
duty time'' as defined by Sec. 395.2?
    Guidance: Yes.
    Question 12: May a driver use ``white-out'' liquid paper to correct 
a record of duty status entry?
    Guidance: Any method of correction would be acceptable so long as 
it does not negate the obligation of the driver to certify by his or 
her signature that all entries were made by the driver and are true and 
correct.
    Question 13: Are drivers required to draw continuous lines between 
the off-duty, sleeper berth, driving, and on-duty (not driving) lines 
on a record of duty status when changing their duty status?
    Guidance: No. Under Sec. 395.8(h) the FMCSRs require that 
continuous lines be drawn between the appropriate time markers within 
each duty status line, but they do not require that continuous lines be 
drawn between the appropriate duty status lines when drivers change 
their duty status.
    Question 14: What documents satisfy the requirement to show a 
shipping document number on a record of duty status as found in 
Sec. 395.8(d)(11)?
    Guidance: The following are some of the documents acceptable to 
satisfy the requirement: shipping manifests, invoices/freight bills, 
trip reports, charter orders, special order numbers, bus bills or any 
other document that identifies a particular movement of passengers or 
cargo.
    In the event of multiple shipments, a single document will satisfy 
the requirement. If a driver is dispatched on a trip, which is 
subsequently completed, and then is dispatched on another trip on that 
calendar day, two shipping document numbers or two shippers and 
commodities must be shown in the remarks section of the record of duty 
status.
    Question 15: If a driver from a foreign country only operates in 
the U.S. one day a week, is he required to keep a record of duty status 
for every day?
    Guidance: A foreign driver, when in the U.S., must produce a 
current record of duty status, and sufficient documentation to account 
for his duty time for the previous 6 days.
    Question 16: Are drivers required to include their total on-duty 
time for the previous 7 to 8 days (as applicable) on the driver's 
record of duty status?
    Guidance: No.
    Question 17: Can military time be used on the grid portion of the 
driver's record of duty status?
    Guidance: Yes. The references to 9 a.m., 3 p.m., etc. in 
Sec. 395.8(d)(6) are examples only. Military time is also acceptable.
    Question 18: Section 395.8(d)(4) requires that the name of the 
motor carrier be shown on the driver's record of duty status. If a 
company owns more than one motor carrier subject to the FMCSRs, may the 
company use logs listing the names of all such motor carrier employers 
and require the driver to identify the carrier for which he or she 
drives?
    Guidance: Yes, provided three conditions are met. First, the driver 
must identify his or her motor carrier employer by a method that would 
be visible on a photocopy of the log. A dark check mark by the 
carrier's name would be acceptable. However, a colored highlight of the 
name would not be acceptable, since these colors are often transparent 
to photocopiers.
    Second, the driver may check off the name of the motor carrier 
employer only if he or she works for a single carrier during the 24 
hour period covered by the log.
    Third, if the parent company uses Multiday Logs (Form 139 or 139A), 
the log for each day must list all motor carrier employers and the 
driver must identify his or her carrier each day.
    Question 19: Regulatory guidance issued by the Office of Motor 
Carriers states that a driver's record-of-duty-status (RODS) may be 
used as the 100 air-mile radius time record ``. . . provided the form 
contains the mandatory information.'' Is this ``mandatory information'' 
that required of a normal RODS under Sec. 395.8(d) or that of the 100 
air-mile radius exemption under Sec. 395.1(e)(5)?
    Guidance: The ``mandatory information'' referred to is the time 
records specified by Sec. 395.1(e)(5) which must show: (1) The time the 
driver reports for duty each day; (2) the total number of hours the 
driver is on duty each day; (3) the time the driver is released from 
duty each day; and (4) the total time for the preceding 7 days in 
accordance with Sec. 395.8(j)(2) for drivers used for the first time or 
intermittently.
    Using the RODS to comply with Sec. 395.1(e)(5) is not prohibited as 
long as the RODS contains driver identification, the date, the time the 
driver began work, the time the driver ended work, and the total hours 
on duty.
    Question 20: When a driver fails to meet the provisions of the 100 
air-mile radius exemption (Sec. 395.1(e)), is the driver required to 
have copies of his/her

[[Page 16426]]

records of duty status for the previous seven days? Must the driver 
prepare daily records of duty status for the next seven days?
    Guidance: The driver must only have in his/her possession a record 
of duty status for the day he/she does not qualify for the exemption. 
The record of duty status must cover the entire day, even if the driver 
has to record retroactively changes in status that occurred between the 
time that the driver reported for duty and the time in which he/she no 
longer qualified for the 100 air-mile radius exemption. This is the 
only way to ensure that a driver does not claim the right to drive 10 
hours after leaving his/her exempt status, in addition to the hours 
already driven under the 100 air-mile exemption.
    Question 21: What is the carrier's liability when its drivers 
falsify records of duty status?
    Guidance: A carrier is liable both for the actions of its drivers 
in submitting false documents and for its own actions in accepting 
false documents. Motor carriers have a duty to require drivers to 
observe the FMCSRs.
    Question 22: If a driver logs his/her duty status as ``driving'' 
but makes multiple short stops (each less than 15 minutes) for on-duty 
or off-duty activities, marks a vertical line on the grid for each 
stop, and records the elapsed time for each in the remarks section of 
the grid, would the aggregate time spent on those non-driving 
activities be counted against the 10-hour driving limit?
    Guidance: No. On-duty not driving time or off-duty time is not 
counted against the 10-hour driving limit.
    Question 23: When the driver's duty status changes, do 
Secs. 395.8(c) or 395.8(h)(5) require a description of on-duty not 
driving activities (``fueling,'' ``pre-trip,'' ``loading,'' 
``unloading,'', etc.) in the remarks section in addition to the name of 
the nearest city, town or village followed by the State abbreviation?
    Guidance: No. Many motor carriers require drivers to identify work 
performed during a change of duty status. Part 395 neither requires nor 
prohibits this practice.
    Question 24: When must a driver complete the signature/
certification of the driver's record of duty status?
    Guidance: In general, the driver must sign the record of duty 
status immediately after all required entries have been made for the 
24-hour period. However, if the driver is driving at the end of the 24-
hour period, he/she must sign during the next stop. A driver may also 
sign the record of duty status upon going off duty if he/she expects to 
remain off duty until the end of the 24-hour period.
    Question 25: Is a driver (United States or foreign) required to 
maintain a record of duty status (log book) in a foreign country before 
entering the U.S.?
    Guidance: No. The FHWA does not require drivers to prepare records 
of duty status while operating outside the jurisdiction of the United 
States. However, it may be advantageous for any driver (U.S. or 
foreign) to prepare records of duty status for short-term foreign 
trips. Upon entering the U.S., each driver must either: (a) Have in 
his/her possession a record of duty status current on the day of the 
examination showing the total hours worked for the prior seven 
consecutive days, including time spent outside the U.S.; or, (b) 
Demonstrate that he/she is operating as a ``100 air-mile (161 air-
kilometer) radius driver'' under Sec. 395.1(e).
    Question 26: If a driver is permitted to use a CMV for personal 
reasons, how must the driving time be recorded?
    Guidance: When a driver is relieved from work and all 
responsibility for performing work, time spent traveling from a 
driver's home to his/her terminal (normal work reporting location), or 
from a driver's terminal to his/her home, may be considered off-duty 
time. Similarly, time spent traveling short distances from a driver's 
en route lodgings (such as en route terminals or motels) to restaurants 
in the vicinity of such lodgings may be considered off-duty time. The 
type of conveyance used from the terminal to the driver's home, from 
the driver's home to the terminal, or to restaurants in the vicinity of 
en route lodgings would not alter the situation unless the vehicle is 
laden. A driver may not operate a laden CMV as a personal conveyance. 
The driver who uses a motor carrier's CMV for transportation home, and 
is subsequently called by the employing carrier and is then dispatched 
from home, would be on-duty from the time the driver leaves home.
    A driver placed out of service for exceeding the requirements of 
the hours of service regulations may not drive a CMV to any location to 
obtain rest.

Section 395.13  Drivers Declared Out of Service

    Question 1: May a driver operate any motor vehicle, at the 
direction of the motor carrier, after being placed out of service for 
an hours of service violation?
    Guidance: An out of service order issued under Sec. 395.13 extends 
only to the operation of CMVs. State procedures may differ.
    Question 2: May a driver operating a CMV under a lease arrangement 
with a motor carrier, after being placed out of service for an hours of 
service violation, cancel the lease and continue to operate the vehicle 
as a private personal conveyance?
    Guidance: No. Cancellation of a lease does not relieve the driver 
of the responsibility of complying with the out of service order which 
prohibits the driver from operating a CMV.

Section 395.15  Automatic On-Board Recording Devices

    Question 1: Must a motor carrier maintain a second (back-up copy) 
of the electronic hours-of-service files, by month, in a different 
physical location than where the original data is stored if the motor 
carrier retains the original hours-of-service printout signed by the 
driver and provides the driver with a copy?
    Guidance: No. By creating and maintaining the signed original 
record-of-duty status printed from the electronic hours-of-service 
file, the motor carrier has converted the electronic document into a 
paper document subject to Sec. 395.8(k). That section requires the 
motor carrier to retain at its principal place of business the records 
of duty status and supporting documents for a period of 6 months from 
date of receipt. If the motor carrier did not generate a paper copy of 
the electronic document and retain a signed original, it would be 
required to maintain the electronic file and a second (back-up) copy.
    Question 2: May a driver who uses an automatic on-board recording 
device amend his/her record of duty status during a trip?
    Guidance: No. Section 395.15(i)(3) requires automatic on-board 
recording devices, to the maximum extent possible, be tamperproof and 
preclude the alteration of information collected concerning a driver's 
hours of service. If drivers, who use automatic on-board recording 
devices, were allowed to amend their record of duty status while in 
transit, legitimate amendments could not be distinguished from 
falsifications. Records of duty status maintained and generated by an 
automatic on-board recording device may only be amended by a 
supervisory motor carrier official to accurately reflect the driver's 
activity. Such supervisory motor carrier official must include an 
explanation of the mistake in the remarks section of either the 
original or amended record of duty status. Both the original and 
amended record of duty status must be retained by the motor carrier.

[[Page 16427]]

PART 396--INSPECTION, REPAIR, AND MAINTENANCE

Sections Interpreted

396.3  Inspection, Repair, and Maintenance
396.9  Inspection of Motor Vehicles in Operation
396.11  Driver Vehicle Inspection Report(s)
396.13  Driver Inspection
396.17  Periodic Inspection
396.19  Inspector Qualifications
396.21  Periodic Inspection Recordkeeping Requirements
396.23  Equivalent to a Periodic Inspection
396.25  Qualifications of Brake Inspectors

Section 396.3  Inspection, Repair, and Maintenance

    Question 1: What is meant by ``systematic inspection, repair, and 
maintenance''?
    Guidance: Generally, systematic means a regular or scheduled 
program to keep vehicles in a safe operating condition. Section 396.3 
does not specify inspection, maintenance, or repair intervals because 
such intervals are fleet specific and, in some instances, vehicle 
specific. The inspection, repair, and maintenance intervals are to be 
determined by the motor carrier. The requirements of Secs. 396.11, 
396.13, and 396.17 are in addition to the systematic inspection, 
repair, and maintenance required by Sec. 396.3.
    Question 2: Section 396.3(b)(4) refers to a record of tests. What 
tests are required of push-out windows and emergency door lamps on 
buses?
    Guidance: Generally, inspection of a push-out window would require 
pushing out the window. However, if the window may be destroyed by 
pushing out to test its proper functioning, a visual inspection may 
qualify as a test if the inspector can ascertain the proper functioning 
of the window without opening it. Checking to ensure that the rubber 
push-out molding is properly in place and has not deteriorated and that 
any handles or marking instructions have not been tampered with would 
meet the test requirement. Inspection of emergency door marking lights 
would require opening the door to test the lights.
    Question 3: Who has the responsibility of inspecting and 
maintaining leased vehicles and their maintenance records?
    Guidance: The motor carrier must either inspect, repair, maintain, 
and keep suitable records for all vehicles subject to its control for 
30 consecutive days or more, or cause another party to perform such 
activities. The motor carrier is solely responsible for ensuring that 
the vehicles under its control are in safe operating condition and that 
defects have been corrected.
    Question 4: Is computerized recordkeeping of CMV inspection and 
maintenance information permissible under Sec. 396.3 of the FMCSRs?
    Guidance: Yes, if the minimum inspection, repair, and maintenance 
records required are included in the computer information system and 
can be reproduced on demand.
    Question 5: Where must vehicle inspection and maintenance records 
be retained if a vehicle is not housed or maintained at a single 
location?
    Guidance: The motor carrier may retain the records at a location of 
its choice. If the vehicle maintenance records are retained at a 
location apart from the vehicle, the motor carrier is not relieved of 
its responsibility for ensuring that the records are current and 
factual. In all cases, however, upon request of the FHWA the 
maintenance records must be made available within a reasonable period 
of time (2 working days).

Section 396.9  Inspection of Motor Vehicles in Operation

    Question 1: Under what conditions may a vehicle that has been 
placed ``out of service'' under Sec. 396.3 be moved?
    Guidance: The vehicle may be moved by being placed entirely upon 
another vehicle, towed by a vehicle equipped with a crane or hoist, or 
driven if the ``out of service'' condition no longer exists.
    Question 2: Is it the intent of Sec. 396.9 to allow ``out of 
service'' vehicles to be towed?
    Guidance: Yes; however, not all out of service vehicles may be 
towed away from the inspection location. The regulation sets up a 
flexible situation that will permit the inspecting officer to use his/
her best judgment on a case-by-case basis.

Section 396.11  Driver Vehicle Inspection Report(s)

    Question 1: Does Sec. 396.11 require the DVIR to be turned in each 
day by a driver dispatched on a trip of more than one day's duration?
    Guidance: A driver must prepare a DVIR at the completion of each 
day's work and shall submit those reports to the motor carrier upon 
his/her return to the home terminal. This does not relieve the motor 
carrier from the responsibility of effecting repairs and certification 
of any items listed on the DVIR, prepared at the end of each day's 
work, that would be likely to affect the safety of the operation of the 
motor vehicle.
    Question 2: Does Sec. 396.11 require that the power unit and the 
trailer be inspected?
    Guidance: Yes. A driver must be satisfied that both the power unit 
and the trailer are in safe operating condition before operating the 
combination.
    Question 3: May more than one power unit be included on the DVIR if 
two or more power units were used by a driver during one day's work?
    Guidance: No. A separate DVIR must be prepared for each power unit 
operated during the day's work.
    Question 4: Does Sec. 396.11 require a motor carrier to use a 
specific type of DVIR?
    Guidance: A motor carrier may use any type of DVIR as long as the 
report contains the information and signatures required.
    Question 5: Does Sec. 396.11 require a separate DVIR for each 
vehicle and a combination of vehicles or is one report adequate to 
cover the entire combination?
    Guidance: One vehicle inspection report may be used for any 
combination, provided the defects or deficiencies, if any, are 
identified for each vehicle and the driver signs the report.
    Question 6: Does Sec. 396.11(c) require a motor carrier to effect 
repairs of all items listed on a DVIR prepared by a driver before the 
vehicle is subsequently driven?
    Guidance: The motor carrier must effect repairs of defective or 
missing parts and accessories listed in Appendix G to the FMCSRs before 
allowing the vehicle to be driven.
    Question 7: What constitutes a ``certification'' as required by 
Sec. 396.11(c)(1) and (2)?
    Guidance: A motor carrier or its agent must state, in writing, that 
certain defects or deficiencies have been corrected or that correction 
was unnecessary. The declaration must be immediately followed by the 
signature of the person making it.
    Question 8: Who must certify under Sec. 396.11(c) that repairs have 
been made when a motor vehicle is repaired en route by the driver or a 
commercial repair facility?
    Guidance: Either the driver or the commercial repair facility.
    Question 9: Must certification for trailer repairs be made?
    Guidance: Yes. Certification must be made that all reported defects 
or deficiencies have been corrected or that correction was unnecessary. 
The certification need only appear on the carrier's copy of the report 
if the trailer is separated from the tractor.
    Question 10: What responsibility does a vehicle leasing company, 
engaged in the daily rental of CMVs, have regarding

[[Page 16428]]

the placement of the DVIR in the power unit?
    Guidance: A leasing company has no responsibility to comply with 
Sec. 396.11 unless it is the carrier. It is the responsibility of a 
motor carrier to comply with part 396 regardless of whether the 
vehicles are owned or leased.
    Question 11: Which carrier is to be provided the original of the 
DVIR in a trip lease arrangement?
    Guidance: The motor carrier controlling the vehicle during the term 
of the lease (i.e. the lessee) must be given the original of the DVIR. 
The controlling motor carrier is also responsible for obtaining and 
retaining records relating to repairs.
    Question 12: Must the motor carrier's certification be shown on all 
copies of the DVIR?
    Guidance: Yes.
    Question 13: Must a DVIR carried on a power unit during operation 
cover both the power unit and trailer being operated at the time?
    Guidance: No. The DVIR must cover the power unit being operated at 
the time. The trailer identified on the report may represent one pulled 
on the preceding trip.
    Question 14: In instances where the DVIR has not been prepared or 
cannot be located, is it permissible under Sec. 396.11 for a driver to 
prepare a DVIR based on a pre-trip inspection and a short drive of a 
motor vehicle?
    Guidance: Yes. Section 396.11 of the FMCSRs places the 
responsibility on the motor carrier to require its drivers to prepare 
and submit the DVIR. If, in unusual circumstances, the DVIR has not 
been prepared or cannot be located the motor carrier may cause a road 
test and inspection to be performed for safety of operation and the 
DVIR to be prepared.
    Question 15: Is it permissible to use the back of a record of duty 
status (daily log) as a DVIR?
    Guidance: Yes, but the retention requirements of Sec. 396.11 and 
Sec. 395.8 must be met.
    Question 16: Does Sec. 396.11 require that specific parts and 
accessories that are inspected be identified on the DVIR?
    Guidance: No.
    Question 17: Is the Ontario pretrip/posttrip inspection report 
acceptable as a DVIR under Sec. 396.11?
    Guidance: Yes, provided the report from the preceding trip is 
carried on board the motor vehicle while in operation and all entries 
required by Secs. 396.11 and 396.13 are contained on the reports.
    Question 18: Where must DVIRs be maintained?
    Guidance: Since Sec. 396.11 is not specific, the DVIRs may be kept 
at either the motor carrier's principal place of business or the 
location where the vehicle is housed or maintained.
    Question 19: Who is responsible for retaining DVIRs for leased 
vehicles including those of owner-operators?
    Guidance: The motor carrier is responsible for retaining the 
original copy of each DVIR and the certification of repairs for at 
least 3 months from the date the report was prepared.
    Question 20: Is a multi-day DVIR acceptable under Secs. 396.11 and 
396.13?
    Guidance: Yes, provided all information and certifications required 
by Secs. 396.11 and 396.13 are contained on the report.
    Question 21: Is a DVIR required by a motor carrier operating only 
one tractor trailer combination?
    Guidance: No. One tractor semitrailer/full trailer combination is 
considered one motor vehicle. However, a carrier operating a single 
truck tractor and multiple semitrailers, which are not capable of being 
operated as one combination unit, would be required to prepare DVIRs.
    Question 22: Are motor carriers required to retain the ``legible 
copy'' of the last vehicle inspection report (referenced in 
Sec. 396.11(c)(3)) which is carried on the power unit?
    Guidance: No. The record retention requirement refers only to the 
original copy retained by the motor carrier.
    Question 23: Does the record retention requirement of 
Sec. 396.11(c)(2) apply to all DVIRs, or only those reports on which 
defects or deficiencies have been noted?
    Guidance: The record retention requirement applies to all DVIRs.
    Question 24: How would the DVIR requirements apply to a driver who 
works two or more shifts in a single calendar day?
    Guidance: Section 396.11(a) requires every driver to prepare a DVIR 
at the completion of each day's work on each vehicle operated. A driver 
who operates two or more vehicles in a 24-hour-period must prepare a 
DVIR at the completion of the tour of duty in each vehicle.
    Question 25: Section 396.11 requires the driver, at the completion 
of each day's work, to prepare a written report on each vehicle 
operated that day. Does this section require a ``post trip inspection'' 
of the kind described in Sec. 396.15?
    Guidance: No. However, the written report must include all defects 
in the parts and accessories listed in Sec. 396.11(a) that were 
discovered by or reported to the driver during that day.
    Question 26: Is the motor carrier official or agent who certifies 
that defects or deficiencies have been corrected or that correction was 
unnecessary required to be a mechanic or have training concerning 
commercial motor vehicle maintenance?
    Guidance: No. Section 396.11 does not establish minimum 
qualifications for motor carrier officials or agents who certify that 
defects or deficiencies on DVIRs are corrected. With the exception of 
individuals performing the periodic or annual inspection (Sec. 396.19), 
and motor carrier employees responsible for ensuring that brake-related 
inspection, repair, or maintenance tasks are performed correctly 
(Sec. 396.25), Part 396 of the FMCSRs does not establish minimum 
qualifications for maintenance personnel. Motor carriers, therefore, 
are not prohibited from having DVIRs certified by company officials or 
agents who do not have experience repairing or maintaining commercial 
motor vehicles.

Section 396.13  Driver Inspection

    Question 1: If a DVIR does not indicate that certain defects have 
been repaired, and the motor carrier has not certified in writing that 
such repairs were considered unnecessary, may the driver refuse to 
operate the motor vehicle?
    Guidance: The driver is prohibited from operating the motor vehicle 
if the motor carrier fails to make that certification. Operation of the 
vehicle by the driver would cause the driver and the motor carrier to 
be in violation of Sec. 396.11(c) and both would be subject to 
appropriate penalties. However, a driver may sign the certification of 
repairs as an agent of the motor carrier if he/she is satisfied that 
the repairs have been performed.
    Question 2: At the end of the day's work and upon completion of the 
required DVIR, what does the driver do with the copy of the previous 
DVIR carried on the power unit?
    Guidance: There is no requirement that the driver submit the copy 
of that previous DVIR to the motor carrier nor is there a retention 
requirement for the motor carrier.

Section 396.17  Periodic Inspection

    Question 1: Some of a motor carrier's vehicles are registered in a 
State with a mandated inspection program which has been determined to 
be as effective as the Federal periodic inspection program, but these 
vehicles are not used in that State. Is the motor carrier required to 
make sure the vehicles are inspected under that State's program in

[[Page 16429]]

order to meet the Federal periodic inspection requirements?
    Guidance: If the State requires all vehicles registered in the 
State to be inspected through its mandatory program then the motor 
carrier must go through the State program to satisfy the Federal 
requirements. If, however, the State inspection program includes an 
exception or exemption for vehicles which are registered in the State 
but domiciled outside of the State, then the motor carrier may meet the 
Federal requirements through a self-inspection, a third party 
inspection, a CVSA inspection, or a periodic inspection performed in 
any State with a program that the FHWA determines is comparable to, or 
as effective as, the part 396 requirements.
    Question 2: May the due date for the next inspection satisfy the 
requirements for the inspection date on the sticker or decal?
    Guidance: No. The rule requires that the date of the inspection be 
included on the report and sticker or decal. This date may consist of a 
month and a year.
    Question 3: Must each vehicle in a combination carry separate 
periodic inspection documentation?
    Guidance: Yes, unless a single document clearly identifies all of 
the vehicles in the CMV combination.
    Question 4: Does the sticker have to be located in a specific 
location on the vehicle?
    Guidance: No. The rule does not specify where the sticker, decal or 
other form of documentation must be located. It is the responsibility 
of the driver to produce the documentation when requested. Therefore, 
the driver must know the location of the sticker and ensure that all 
information on it is legible and current. The driver must also be able 
to produce the inspection report if that form of documentation is used.
    Question 5: Is new equipment required to pass a periodic inspection 
under Sec. 396.17?
    Guidance: Yes, but a dealer who meets the inspection requirements 
may provide the documentation for the initial periodic inspection.
    Question 6: Are the Federal periodic inspection requirements 
applicable to U.S. Government trailers operated by motor carriers 
engaged in interstate commerce?
    Guidance: Yes. The transportation is not performed by a 
governmental entity but by a for-hire carrier in interstate commerce.
    Question 7: Does a CMV equipped with tires marked ``Not for Highway 
Use'' meet the periodic inspection requirements?
    Guidance: No. Appendix G to subchapter B--Minimum Periodic 
Inspection Standards, lists tires so labeled as a defect or deficiency 
which would prevent a vehicle from passing an inspection.
    Question 8: Is a CMV subject to a roadside inspection by State or 
Federal inspectors if it displays a periodic inspection decal or other 
evidence of a periodic inspection being conducted in the past 12 
months?
    Guidance: Yes. Evidence of a valid periodic inspection only 
precludes a citation for a violation of Sec. 396.17.
    Question 9: Is a State required to accept the periodic inspection 
program of another State having a periodic inspection program meeting 
minimum FHWA standards as contained in appendix G to the FMCSRs?
    Guidance: Yes. Section 210 of the MCSA (49 U.S.C. 31142) 
establishes the principle that State inspections meeting federally 
approved criteria must be recognized by every other State.
    Question 10: Do vehicles inspected under a periodic Canadian 
inspection program comply with the FHWA periodic inspection standards?
    Guidance: Yes. The FHWA has determined that the inspection programs 
of all of the Canadian Provinces meet or exceed the Federal 
requirements for a periodic inspection program.
    Question 11: Must a specific form be used to record the periodic 
inspection mandated by Sec. 396.17?
    Guidance: No. Section 396.21 does not designate any particular 
form, decal, or sticker, but does specify the information which must be 
shown on these documents.
    Question 12: May an inspector certify a CMV as meeting the periodic 
inspection standards of Sec. 396.17 if he/she cannot see all components 
required to be inspected under appendix G?
    Guidance: No. The affixing of a decal or sticker or preparation of 
a report as proof of inspection indicates compliance with all 
requirements of appendix G to part 396.
    Question 13: If an intermodal container is attached to a chassis at 
the time of a periodic inspection, must the container also be inspected 
to comply with Sec. 396.17 inspection requirements?
    Guidance: Yes. Safe loading is one of the inspection areas covered 
under appendix G. If the chassis is loaded at the time of inspection, 
the method of securement of the container to the chassis must be 
included in the inspection. Although integral securement devices such 
as twist locks are not listed in appendix G, the operation of these 
devices must be included in the inspection without removal of the 
container.
    Question 14: Is it acceptable for the proof of periodic inspection 
to be written in Spanish?
    Guidance: Yes. There is no requirement under Sec. 396.17, or 
appendix G to subchapter B that the proof of periodic inspection be 
written in English.

Section 396.19  Inspector Qualifications

    Question 1: May an entity other than a motor carrier maintain the 
evidence of inspector qualifications required by Sec. 396.19(b)?
    Guidance: Yes. In those cases in which the inspection is performed 
by a commercial garage or similar facility or a leasing company, the 
motor carrier may allow the commercial garage or leasing company to 
maintain a copy of the inspector's qualifications on behalf of the 
motor carrier. The motor carrier, however, is responsible for obtaining 
copies of evidence of the inspector's qualifications upon the request 
of Federal, State, or local officials. If, for whatever reason, the 
motor carrier is unable to obtain this information from the third 
party, the motor carrier may be cited for noncompliance with 
Sec. 396.19.
    Question 2: Is there a specific form or format to be used in 
ensuring that inspectors are qualified in accordance with Sec. 396.19?
    Guidance: No. Section 396.19(b) requires the motor carrier to 
retain evidence satisfying the standards without specifying any 
particular form.

Section 396.21  Periodic Inspection Recordkeeping Requirements

    Question 1: What recordkeeping requirements under Sec. 396.21 is a 
carrier subject to when it utilizes an FHWA-approved State inspection 
program?
    Guidance: The motor carrier must comply with the recordkeeping 
requirements of the State. The requirements specified in Sec. 396.21 
(a) and (b) are applicable only in those instances where the motor 
carrier self-inspects its CMVs or has an agent perform the periodic 
inspection.

Section 396.23  Equivalent to a Periodic Inspection

    Question 1: Is a CVSA Level I or Level V inspection a ``State * * * 
roadside inspection program'' through which a motor carrier may meet 
the periodic inspection requirements of Sec. 396.17? If so, what 
evidence of inspection is required?
    Guidance: A CVSA Level I or Level V inspection is equivalent to the 
Federal periodic inspection requirements. A

[[Page 16430]]

CMV that passes such an inspection has therefore met Sec. 396.17, 
unless the vehicle is subject to a mandatory State inspection program 
that the FHWA has determined is comparable to, or as effective as, the 
Federal requirements [see Sec. 396.23(b)(1)]. A CVSA decal displayed on 
the CMV, or a copy of the Level I or Level V inspection report 
maintained in the vehicle, constitutes sufficient evidence of 
inspection.

Section 396.25  Qualifications of Brake Inspectors

    Question 1: Does a CDL with an airbrake endorsement qualify a 
person as a brake inspector under Sec. 396.25?
    Guidance: No.
    Question 2: May a driver who does not have the necessary experience 
perform the adjustment under directions issued by telephone by a 
qualified inspector?
    Guidance: Yes. A driver is permitted to perform brake adjustments 
at a roadside inspection providing they are done under the supervision 
of a qualified brake adjuster and the carrier is willing to assume 
responsibility for the proper adjustment.
    Question 3: May a driver or other motor carrier employee be 
qualified as a brake inspector under Sec. 396.25 by way of experience 
or training to perform brake adjustments without being qualified to 
perform other brake-related tasks such as the repair or replacement of 
brake components?
    Guidance: Yes. A driver may be qualified by the motor carrier to 
perform a limited number of tasks in connection with the brake system, 
e.g., inspect and/or adjust the vehicle's brakes, but not repair them.
    Question 4: Would a mechanic who is employed by a leasing company 
and only works on CMVs that the leasing company leases to other motor 
carriers be required to meet the brake inspector certification 
requirements?
    Guidance: No. The mechanic is not required to meet the 
certification requirements of Sec. 396.25(d) since he/she is not 
employed by a motor carrier.
PART 397--TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND PARKING 
RULES

Sections Interpreted

397.1  Application of the Rules in This Part
397.5  Attendance and Surveillance of Motor Vehicles
397.7  Parking
397.9  Routes
397.13  Smoking

Section 397.1  Application of the Rules in This Part

    Question 1: Who is subject to part 397?
    Guidance: Part 397 applies to motor carriers that transport HM in 
interstate commerce in types and quantities requiring marking or 
placarding under 49 CFR 177.823. The routing requirements of part 397 
establish guidelines State and Indian tribal routing agencies must 
employ in designating and/or restricting routes for the transportation 
of HM. Interstate motor carriers transporting HM, in interstate or 
intrastate commerce, must comply with the designations and restrictions 
established by the routing agencies.
    Question 2: Is the interstate transportation of anhydrous ammonia, 
in nurse tanks, subject to part 397?
    Guidance: The requirements of part 397 do not apply to the direct 
application of ammonia to fields from nurse tanks. However, part 397 
does apply to the transportation of nurse tanks on public highways, 
when performed by interstate motor carriers.

Section 397.5  Attendance and Surveillance of Motor Vehicles

    Question 1: What defines a ``public highway'' or ``shoulder'' of a 
public highway for the purpose of determining violations under 
Sec. 397.5(c)?
    Guidance: The applicable engineering/highway design plans.
    Question 2: Must a driver of a motor vehicle transporting HM, other 
than Division 1.1, 1.2, or 1.3 (Class A or B) explosives, always 
maintain an unobstructed view and be within 100 feet of that vehicle?
    Guidance: No. If the vehicle is not located on a public street or 
highway or on the shoulder of a public highway, then the vehicle need 
not be within 100 feet of the driver's unobstructed view, unless it 
contains Division 1.1, 1.2, or 1.3 (Class A or B) materials.
    Question 3: May a motor carrier consider fuel stop operators as 
``qualified representative(s)'' for purposes of the attendance and 
surveillance requirements of Sec. 397.5?
    Guidance: Yes. However, the fuel stop operator must be able to 
perform the required functions.
    Question 4: Who determines what is a ``safe haven''?
    Guidance: The selection of safe havens is a decision of the 
``competent government authorities'' having jurisdiction over the area. 
The definition found in Sec. 397.5(d)(3) is purposely void of any 
specific guidelines or criteria. A truck stop may be considered a safe 
haven if it is so designated by local or State governmental 
authorities.
    Question 5: Section 397.5(d)(3) describes a safe haven as ``* * * 
an area specifically approved in writing by local, State, or Federal 
governmental authorities for the parking of unattended vehicles 
containing Division 1.1, 1.2, or 1.3 materials.'' Do guidelines exist 
for establishing approval criteria for safe havens? Is there a national 
list of approved safe havens available to the public?
    Guidance: The FHWA believes the safe haven concept is becoming 
increasingly obsolete due to readily available alternatives for 
providing ``attendance at all times'' for vehicles laden with 
explosives. The FHWA is aware of two documents that may be used as 
resources for establishing approval criteria for safe havens. The first 
document, Construction and Maintenance Procedure Recommendations for 
Proposed Federal Guidelines of Safe Havens for Vehicles Carrying Class 
A or Class B Explosives (1985), contains design, construction, and 
maintenance guidelines. The second document, Recommended National 
Criteria for the Establishment and Operation of Safe Havens (1990), 
contains recommended national uniform criteria for approval of safe 
havens and an inventory of all State-approved safe havens in existence 
at the time of the report. These two documents may be used both as 
resources for establishing guidelines for safe haven design and 
construction, and as source documents for finding other materials that 
may be used toward the same purpose. These two documents are available 
to the public through the U.S. Department of Commerce, National 
Technical Information Service (NTIS), Springfield, Virginia 22161 
(phone: (703) 487-4650). The NTIS publications database is also 
accessible on the internet's world wide web at
http://www.fedworld.gov/ntis.
    Question 6: May video monitors be used to satisfy the attendance 
requirements in Sec. 397.5?
    Guidance: The purpose of the attendance requirement is to ensure 
that motor vehicles containing hazardous materials are attended at all 
times and that, in the event of an emergency involving the motor 
vehicle, the attendant is able to respond immediately. The use of video 
monitors could satisfy the attendance requirements in Sec. 397.5, 
provided the monitors are operable and continuously manned, the 
attendant is within 30.48 meters (100 feet) of the parked vehicle with 
an unobstructed view, and the attendant is able to go to the vehicle 
immediately from the monitoring location.

[[Page 16431]]

Section 397.7  Parking

    Question 1: When is a vehicle considered ``parked''?
    Guidance: For the purposes of part 397, ``parked'' means the 
vehicle is stopped for a purpose unrelated to the driving function, 
(e.g., fueling, eating, loading, unloading).
    Question 2: What constitutes ``knowledge and consent of the person 
in charge,'' as used in Sec. 397.7(a)(2)?
    Guidance: In order to satisfy the requirement for ``knowledge and 
consent,'' actual notice of ``the nature of the hazardous materials the 
vehicle contains'' must be given to the person in charge, and that 
person must affirmatively agree to allow the vehicle to be parked on 
the property under his/her control.
    Question 3: Is the motor carrier or driver relieved from the 
requirements of Sec. 397.7(a)(3) if the person in charge of the private 
property is notified of the explosive HM contained in the vehicle?
    Guidance: No. A vehicle transporting Division 1.1, 1.2, or 1.3 
(Class A or B) explosives must meet the 300-foot separation 
requirement, regardless of any notification made to any person.
    Question 4: What is meant by the term ``brief periods when 
necessities of operation require * * *'' in Sec. 397.7(a)(3)?
    Guidance: Brief periods of time depend upon the ``necessities of 
operation'' in question. Parking a vehicle containing Division 1.1, 
1.2, or 1.3 (Class A or B) materials closer than 300 feet to buildings, 
dwellings, etc. for periods up to 1 hour for a driver to eat would not 
be permitted under the provisions of Sec. 397.7(a)(3). Parking at 
fueling facilities to obtain fuel, oil, etc., or at a carrier's 
terminal would be considered necessities of operation.
    Question 5: May a safe haven be designated within 300 feet of an 
area where buildings and other structures are likely to be occupied by 
large numbers of people?
    Guidance: The selection and designation of safe havens are a 
decision of the ``competent government authorities'' having 
jurisdiction over the area.
    Question 6: If a motor vehicle is transporting Division 1.1, 1.2, 
or 1.3 (Class A or B) explosives and is parked in a safe haven, must it 
be in compliance with the parking requirements of Sec. 397.7?
    Guidance: Yes. Safe havens, as outlined in Sec. 397.5, relate to 
attendance and surveillance requirements. The parking restrictions of 
Sec. 397.7 still apply.
    Question 7: May a driver transporting Division 1.1, 1.2, or 1.3 
(Class A or B) materials park within 100 feet of an eating 
establishment in order to meet the attendance and surveillance 
requirements?
    Guidance: No, because it will result in a violation of 
Sec. 397.7(a)(3).

Section 397.9  Routes

    Question 1: May a motor vehicle which contains HM use expressways 
or major thoroughfares to make deliveries within a populated area?
    Guidance: Yes, unless otherwise specifically prohibited by State or 
local authorities. In many instances a more circuitous route may 
present greater hazards due to increased exposure. However, in those 
situations where a vehicle is passing through a populated or congested 
area, use of a beltway or other bypass would be considered the 
appropriate route, regardless of the additional economic burden.

Section 397.13  Smoking

    Question 1: May a driver of a CMV transporting HM, listed in 
Sec. 397.13, smoke while at the controls or in the sleeper berth of the 
vehicle?
    Guidance: No. All persons are prohibited from smoking or carrying 
lighted smoking materials at any time while on or within 25 feet of 
such a vehicle. The word ``on'' includes any time while in the cab, 
sleeper berth, etc.

PART 399--EMPLOYEE SAFETY AND HEALTH STANDARDS

Sections Interpreted

399.207  Truck and Truck-Tractor Access Requirements

Section 399.207  Truck and Truck-Tractor Access Requirements

    Question 1: If a high-profile COE truck or truck-tractor is 
equipped with a seat on the passenger's side, must steps and handholds 
be provided for any person entering or exiting on that side of the 
vehicle?
    Guidance: Yes, all high-profile COE trucks and truck tractors shall 
be equipped on each side of the vehicle where a seat is located, with a 
sufficient number of steps and handholds to comply with the 
requirements of Sec. 399.207(a).
    Question 2: What does the foot accommodation rule mean when it 
states: ``The step need not retain the disc at rest''?
    Guidance: The note under Sec. 399.207(b)(4) states that the disc 
referred to is a measuring device. The step or rung does not have to be 
configured in such a manner as to keep the measuring disc from falling 
off the step or rung.
    Question 3: In Sec. 399.207(b)(4), Illustration III, what does the 
unshaded area within the disc suggest?
    Guidance: The unshaded area illustrates the height of the open area 
required for a driver to insert his or her foot.
    Question 4: May the step be a rung? If so, what minimum diameter 
must the rung be?
    Guidance: Yes, the step may be a rung. There is no minimum 
requirement for the diameter of a step rung. However, it must meet the 
performance requirements in Sec. 399.207(b)(5).

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

    Issued on: March 27, 1997.
Jane F. Garvey,
Acting Administrator, Federal Highway Administration.
[FR Doc. 97-8406 Filed 4-3-97; 8:45 am]
BILLING CODE 4910-22-P