South Carolina Code of Regulations
(Unannotated)
Current through State Register Volume 32, Issue 9, effective September 26, 2008.
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CHAPTER 38.
DEPARTMENT OF PUBLIC SAFETY
(Statutory Authority: 1976 Code Sections 23-6-10 et seq. and 23-47-20(C)(15))
A. The Deputy Director of the Criminal Justice Academy Division (Academy) of the Department of Public Safety (Department) is authorized to issue orders directing that public law enforcement agencies and law enforcement officers certified in this state comply with Article 9, Chapter 6 of Title 23, Code of Laws of South Carolina, 1976, as amended, and the regulations promulgated pursuant thereto.
B. All orders so issued shall be reviewed and ratified by the Director of the Department prior to their issuance.
38-002. Application for Re-issuance of Certification.
All applications for re-issuance of law enforcement certification shall be submitted within fifteen days after hiring on a form prescribed by the Department.
Every agency who requests certification of any class of law enforcement officer shall conduct a background investigation in accordance with guidelines issued by the Department.
B. Certification to the Department.
Every agency who requests certification of any class of law enforcement officer shall certify to the Department that, in the opinion of the employing agency, the candidate is of good character and has not engaged in misconduct as defined in R.38-004.
C. Availability of Background Information.
Information obtained in any background investigation made in response to these regulations, shall be available, upon request, to the Department for its review and to any future prospective law enforcement employers to assist them in a determination of an applicant's good character for law enforcement certification.
A. The Department may deny certification based on evidence satisfactory to the Department that the candidate has engaged in misconduct. For purposes of this section, misconduct means:
1. Conviction, plea of guilty, plea of no contest or admission of guilt (regardless of withheld adjudication) to a felony, a crime punishable by a sentence of more than one year (regardless of the sentence actually imposed, if any), or a crime of moral turpitude in this or any other jurisdiction;
2. Unlawful use of a controlled substance;
3. The repeated use of excessive force in dealing with the public and/or prisoners;
4. Dangerous and/or unsafe practices involving firearms, weapons, and/or vehicles which indicate either a willful or wanton disregard for the safety of persons or property;
5. Physical or psychological abuses of members of the public and/or prisoners;
6. Misrepresentation of employment-related information;
7. Dishonesty with respect to his/her employer;
8. Untruthfulness with respect to his/her employer.
B. In considering whether to deny certification based on misconduct, the Department may consider the seriousness, the remoteness in time and any mitigating circumstances surrounding the act or omission constituting or alleged to constitute misconduct.
Each law enforcement agency shall maintain proof of completion of a firearms qualification program and keep on file, available for inspection, proof that the firearms qualification program was administered by an Academy accredited firearms instructor.
Certification will occur upon the successful completion of the prescribed training course as set out in 38-007. No candidate may be certified in more than one class at any one time and certification shall be that required for the most recent employing agency.
38-007. Training Requirements for Basic Law Enforcement Certification.
A. Class 1 Certifications
1. Candidates for basic certification as law enforcement officers with full powers shall successfully complete a training program as approved by the Department and will be certified as Class 1-LE.
2. Candidates for basic certification as both law enforcement officers with full powers and as local detention facility officers (jailers) shall successfully complete the requirements to be certified as Class 1-LE and Class 2-LCO and will be certified as Class 1-LECO.
B. Class 2 Certifications
1. Candidates for basic certification as local detention facility officers (jailers) shall successfully complete a training program as approved by the Department and will be certified as Class 2-LCO.
2. Candidates for basic certification as correctional officers with the Department of Corrections shall successfully complete a training program as approved by the Department and will be certified as Class 2-SCO.
3. Candidates for basic certification as juvenile correction officers with the Department of Juvenile Justice shall successfully complete a training program as approved by the Department and will be certified as Class 2-JCO.
C. Class 3 Certifications. Candidates for basic certification as law enforcement officers with limited powers of arrest or special duties shall successfully complete a training program as approved by the Department and will be certified as Class 3-SLE.
All candidates who have received law enforcement training in other states shall submit satisfactory proof of successful completion and a verified copy of the courses taken. Training will be reviewed on a case by case basis and each candidate will be given credit for any training deemed to be equivalent to training offered by the Academy. All candidates must satisfy legal and firearms training as well as remedy any deficiencies in prior training.
B. Federal Training
All candidates who have received law enforcement training with U.S. federal agencies shall submit satisfactory proof of successful completion and a verified copy of the courses taken. Training will be reviewed on a case by case basis and each candidate will be given credit for any training deemed to be equivalent to training offered by the Academy. All candidates must satisfy legal and firearms training as well as remedy any deficiencies in prior training.
C. Military Training
All candidates who have received law enforcement training as U.S. military police shall submit satisfactory proof of successful completion and a verified copy of the courses taken. Training will be reviewed on a case by case basis and each candidate will be given credit for any training deemed to be equivalent to training offered by the Academy. All candidates must satisfy legal and firearms training as well as remedy any deficiencies in prior training.
D. Prior Training with Break in Service
1. All certification lapses when an individual terminates active law enforcement duty.
2. A candidate with a break in service of less than one year will be re-certified by the Academy upon receiving a request by his department and upon providing proof of no disabilities at law.
3. A candidate with a break in service of one year but less than three years will be re-certified upon submission of the application with appropriate documents as set out in R.38-100 and the completion of legal education and firearms training requirements.
4. A candidate with a break in service of three years or more must complete all the requirements of R.38-002, R. 38-005 and R. 38-006.
5. When a candidate becomes subject to new training requirements, as set forth in R.38-007, as a result of a transfer from one agency to another with different training requirements, the candidate must successfully complete the training requirements for the class of certification the candidate will occupy with the new agency.
6. A candidate who has been continuously certified in this state, in any class, and who transfers to a class in which he/she has been previously certified, will be certified in the prior class upon successful completion of the firearms qualification requirement.
38-009. Separation from Law Enforcement Employment.
A. All law enforcement agencies and other employers of law enforcement officers are required to notify the Department when an officer leaves the employment of the agency/employer, regardless of the reason for the separation within 15 days of separation.
B. Such notification shall take place on a form as prescribed by the Department, contain the facts and circumstances leading to the separation, and be for the Department's confidential use and subsequent safekeeping.
C. In the event that such notification contains allegations of misconduct, a copy of such notice shall be sent to the law enforcement officer and the officer shall be informed of the provisions of Section 23-6-460 and allowed to file a response for the Department's use and safekeeping.
D. A willful failure by law enforcement agencies and other employers of law enforcement officers to supply the facts and circumstances of separation shall subject the violator to a civil penalty as provided by law.
In addition to the definition required by law, a "reserve" officer is not paid by the agency for which the officer performs law enforcement duties.
B. Documentation and Reporting
1. Each agency having a reserve law enforcement officer program shall keep on file, available for inspection, all documentation required for regularly salaried law enforcement officers and as set out in R.38-002.
2. Each agency shall certify to the Department, using a form as prescribed by the Department, that such documentation is on file in the agency.
C. In-Service Requirement
Each agency having a reserve law enforcement officer program shall keep on file, and make available for inspection, documentation that each reserve officer has completed the in-service requirement as required by law.
D. Transfers
1. A reserve officer who desires to transfer to regular law enforcement status shall complete all the requirements as set forth by law and under R.38-008 as appropriate for the class of certification which the reserve officer will occupy.
2. A certified law enforcement officer who transfers to reserve status for a period of time not to exceed three years, shall be deemed to have no break in service as defined in R.38-008. Should the period of time exceed three years, the officer shall be deemed to have a break in service and shall complete all the requirements as set forth by law and under R.38-007, as appropriate for the class of certification which the reserve officer will occupy.
E. Operational Procedures
Any law enforcement agency wishing to establish a Reserve Officer program must meet minimum department sponsored certification criteria as required by SCDPS.CJAD Standards Section.
Only Class 1 certified law enforcement officers and appointed reserve officers may be accredited as traffic radar operators.
B. Accreditation
To be accredited as a traffic radar operator, a law enforcement officer must complete a course of training taught by a certified law enforcement traffic radar instructor.
An application for re-certification must be submitted on a form approved by the Department and is deemed complete when the form, with the necessary information as set out in R.38-013, is received by the Department.
38-013. Continuing Law Enforcement Education Requirements for Re-certification.
A. Eligibility
No law enforcement officer is eligible for re-certification unless, in addition to the requirements of R.38-012, the officer has successfully completed, at a minimum, the number of approved continuing law enforcement education hours as appropriate for the officer's certification class, as specified in R.38-007. Such education hours shall be designated as Continuing Law Enforcement Education (CLEE) hours in the context of these regulations.
B. Class 1 Re-certification Requirements:
1. Officers possessing a current Class 1-LE Certification shall be required to obtain forty CLEE hours in a three year period. The forty CLEE hours shall consist of at least one legal update course and one domestic violence course, presented or approved by the Academy, each year of the three year period. The remaining required CLEE hours in the three year period may come from any source approved by the Academy.
2. Officers possessing a current Class 1-LECO certification shall be required to complete the number of hours of in-service instruction per year as specified by the Jail Standards Committee and approved by the Department. Each officer shall also be required to complete at least one legal update course and one domestic violence course, presented or approved by the Academy, each year of the three year period.
C. Class 2 Re-certification Requirements:
1. Officers possessing a current Class 2-LCO Certification shall be required to complete the number of hours of in-service instruction per year as specified by the Jail Standards Committee and approved by the Department.
2. Officers possessing a current Class 2-SCO Certification shall be required to complete a Department approved agency in-service program of at least forty hours every three years. At least one course each year shall be a legal update course.
3. Officers possessing a current Class 2-JCO certification shall be required to complete a Department approved agency in-service program of at least forty hours every three years. At least one course each year shall be a legal update course.
D. Class 3 Re-certification Requirements:
Officers possessing a current Class 3 Certification shall be required to complete at least one legal update course, presented by the Academy, each year of the three year period.
38-014. Approval of Continuing Law Enforcement Education Hours for Re-certification Requirements.
A. The Department shall approve courses for CLEE hours toward officer re-certification upon application made on a form approved by the Department and containing the following information concerning the courses.
1. The name of the course sponsor and its address;
2. The course agenda showing the actual number of hours of instruction;
3. A listing of course faculty with educational and professional credentials for each faculty member;
4. A copy of the course written materials, including a lesson plan and any test instruments which will be used;
5. Any supporting material which the course offeror wishes to submit for the Department's consideration.
B. The Department shall maintain a listing of courses which are approved for CLEE hours towards officer re-certification and shall indicate after each course the number of CLEE hours for which the course is approved. The listing shall be updated on an annual basis.
C. Courses, once approved, shall be added to the listing maintained by the Department. In order to receive continuing approval for course offerings, the offeror of each course must provide, on each successive second anniversary of the course's being placed on the listing, an updated application form and supporting documentation as stated in paragraph (A) of this section. Failure to comply with this requirement shall result in the course being removed from the listing and having its approval withdrawn.
A certified law enforcement officer who is unable to complete the requirements of R.38-013 within the three year period specified will be granted an extension to his/her renewal date in the following cases:
A. Military Leave. Any officer called to active military duty for a period of more than thirty consecutive days shall be granted an extension to his/her renewal date, as specified in Section 23-6-440(C) of the South Carolina Code of Laws, for the duration of the active duty, plus ninety days.
B. Medical, Disability or Administrative Leave.
1. Any officer who is on disability leave, medical leave, administrative leave as a result of an assault by an inmate, patient or client, or other administrative leave granted by the employing agency, with or without pay, for a period of more than thirty consecutive days, shall be granted an extension to his/her renewal date, as specified in Section 23-6-440(C) of the South Carolina Code of Laws, for the duration of the leave, provided such extension does not exceed one year.
2. Any officer on medical leave, disability leave, administrative leave as a result of an assault by an inmate, patient or client, or other administrative leave granted by the employing agency, for a period of one year or more shall be treated under R.38-008(D)(3) or (4).
C. Eligibility and Application for Extension of Renewal Date.
1. Only officers whose law enforcement responsibilities have been suspended will be eligible for an extension of renewal date.
2. Application by the employing agency for an extension of renewal date shall be made within forty-five days of the beginning of military leave, medical leave, disability leave, administrative leave as a result of an assault by an inmate, patient or client, or other administrative leave granted by the employing agency, on a form prescribed by the Department.
3. Notification by the employing agency of a return to active law enforcement duty shall be made within fifteen days of return to active law enforcement duty on a form prescribed by the Department.
38-016. Withdrawal of Certification of Law Enforcement Officers.
A. A law enforcement officer, certified pursuant to the provisions of R.38-007 and R.38-008, shall have his or her certification as a law enforcement officer withdrawn by the Department upon the occurrence of any one or more of the following events:
1. The officer is found to have falsified any application for certification and training based upon which the officer was admitted for training.
2. The officer is found to be ineligible for service as a law enforcement officer because of his or her failure to meet prerequisite qualifications for training and certification, as set by law, even though such ineligibility is not discovered until after the officer's initial certification.
3. The officer is convicted of a criminal offense under the law of any jurisdiction which would, by the laws of this State, disqualify the officer from obtainment of certification as provided for in R.38-007 and R.38-008.
4. Evidence satisfactory to the Department that the officer has engaged in misconduct. For purposes of this section, misconduct means:
a. Conviction, plea of guilty, plea of no contest or admission of guilt (regardless of withheld adjudication) to a felony, a crime punishable by a sentence of more than one year (regardless of the sentence actually imposed, if any), or a crime of moral turpitude;
b. Unlawful use of a controlled substance;
c. The repeated use of excessive force in dealing with the public and/or prisoners;
d. Dangerous and/or unsafe practices involving firearms, weapons, and/or vehicles which indicate either a willful or wanton disregard for the safety of persons or property;
e. Physical or psychological abuses of members of the public and/or prisoners;
f. Misrepresentation of employment-related information;
g. Dishonesty with respect to his/her employer;
h. Untruthfulness with respect to his/her employer.
i. Violations of criminal law resulting from administrative inquiries.
Provided however that in considering whether to withdraw certification based on misconduct, the Department may consider the seriousness, frequency and any mitigating circumstances surrounding the act or omission constituting or alleged to constitute misconduct.
B. The officer's certification expires due to the officer's failure to meet re-certification requirements as set out in R. 38-013.
38-017. Reporting of Events Requiring Withdrawal of Certification.
A. It shall be the responsibility of the sheriff or the chief executive officer of every law enforcement agency or department within the State to report to the Department the occurrence of any event, or series of events, set forth in R.38-016 which requires the withdrawal of certification of a law enforcement officer who is currently or was last employed by his or her agency.
B. The report shall be made within fifteen days of the final agency or department action resulting from the internal investigation conducted by the agency or department, and shall be on a form prescribed by the Department.
C. A willful failure to report information shall subject the violator to a civil penalty as provided by the Department.
D. Only events which are determined as founded by the department or agency shall be reported as provided herein above.
38-018. Investigation of Events Requiring Withdrawal of Certification; Notification to Officer.
A. Upon receipt of a report pursuant to R.38-017A, the Department shall initiate an investigation into reported events which require withdrawal of the law enforcement officer's certification.
B. The Department may suspend the certification of any law enforcement officer pending the outcome of an investigation initiated pursuant to paragraph (A) above.
C. A law enforcement officer who is the subject of an investigation shall be notified of its initiation on a form prescribed by the Department, sent by certified mail to the current address on file at the Academy, return receipt requested, as soon as practicable after the investigation is initiated.
D. Duplicate of such notice shall be sent, in the same manner prescribed in paragraph (C) above, to the current sheriff or chief executive officer of the employing agency or department of the law enforcement officer.
E. The Department may direct that the investigation, on its behalf, be conducted. The investigation shall be sent to the Department for its confidential use and review.
F. Where the Department's investigation indicates that withdrawal of the law enforcement officer's certification is not warranted, the Department shall notify the law enforcement officer and the sheriff or chief executive officer of the employing law enforcement agency of its finding, in accordance with the notice provisions of paragraphs (C) and (D) above.
G. Where the Department's investigation indicates that withdrawal of the law enforcement officer's certification is warranted, the Department shall proceed in accordance with R.38-019.
38-019. Notification of Withdrawal of Certification.
A. Prior to the withdrawal of a law enforcement officer's certification pursuant to R.38-016, the Department shall notify the officer whose certification is to be withdrawn on a form prescribed by the Department sent by registered mail, to the current address on file at the Academy, return receipt requested, to the officer.
B. Such notice shall be provided to the officer ten days in advance of the effective date of withdrawal of the certification.
C. Duplicate of such notice shall be sent in the same manner as in paragraph (A) above, to the current sheriff or the chief executive officer of the law enforcement agency or department of the law enforcement officer.
All notifications to law enforcement officers and their respective employing law enforcement agencies pursuant to R.38-017, R.38-018 and R.38-019 shall be handled in a confidential and sensitive manner.
38-021. Law Enforcement Emergency Vehicle Training Requirement.
A. Every agency which employs one or more law enforcement officers who use emergency vehicles shall make provision for the training set out in R.38-022 as appropriate for each such officer's law enforcement duty requirements prior to any such officer's certification as qualified by the Department.
B. Officers holding valid certification on the effective date of these regulations must successfully complete the training set out in R.38-022, as is appropriate for such officer's law enforcement duty requirements within 180 days of such date.
38-022. Law Enforcement Emergency Vehicle Training Programs.
A. Non-Emergency Response Training
1. Every law enforcement officer who drives or operates an emergency vehicle shall successfully complete a course of instruction as prescribed by the Department relating to non-emergency operation of the law enforcement emergency vehicle.
2. Every agency required to make provision for the training prescribed in R.38-022(A)(1) shall promulgate written policy and procedure concerning non-emergency vehicle response, consistent with the provisions of the course of instruction prescribed by the Department, which shall be included as part of the training program provided to its officers.
B. Emergency Response Training
1. Every Class 1 law enforcement officer and any other law enforcement officer who drives or operates a law enforcement emergency vehicle in response to an emergency, as defined in these regulations, shall successfully complete a course of instruction as prescribed by the Department relating to emergency response operation of the law enforcement emergency vehicle.
2. Every agency required to make provision for the training prescribed in R.38-022(B)(1) shall promulgate written policy and procedure concerning emergency response with the law enforcement emergency vehicle, consistent with the provisions of the course of instruction prescribed by the Department, which shall be included as part of the training program provided to its officers.
C. Pursuit Training
1. Every Class 1 law enforcement officer and any other law enforcement officer who drives or operates a law enforcement emergency vehicle in pursuit of an actual or suspected violator of the law, as defined in these regulations, shall successfully complete a course of instruction as prescribed by the Department relating to pursuit operation of the law enforcement emergency vehicle.
2. Every agency required to make provision for the training prescribed in R.38-022(C)(1) shall promulgate written policy and procedure concerning pursuit operation of the law enforcement emergency vehicle, consistent with the provisions of the course of instruction prescribed by the Department which shall be included as a part of the training program provided to its officers.
A. Every agency required to conduct training pursuant to R.38-022 shall provide proof of completion of the required training programs, including appropriate instruction in the written policies and procedures of the agency concerning operation of the law enforcement emergency vehicle as required by R.38-022.
B. A law enforcement officer who transfers from one agency to another shall be required to successfully complete the training program appropriate for the agency to which transfer has occurred, in accordance with R.38-022. Provided, however, that an officer who has successfully completed a training program pursuant to R.38-022 within a period of one year of the date of transfer to another agency, where the successfully completed program is appropriate for the officer's law enforcement duty with the agency to which transferred, shall not be required to complete another training program upon such a transfer, but rather the employing agency to which transferred shall provide appropriate instruction to the transferred officer in the written policies and procedures of the agency concerning operation of the law enforcement emergency vehicle as required by R.38-022. This training shall be reported to the Department as required in R.38-023(A).
A. The training required by R.38-022 shall be conducted on a continuing basis no less frequently than annually. Every agency shall report, on the form prescribed by the Department, the provision of appropriate training on or before the expiration of the current certification. Nothing in these regulations shall be construed to prohibit such training on a basis more frequently than annually.
B. Officers successfully completing appropriate required emergency vehicle training shall be provided CLEE hours in accordance with R.38-013 appropriate for the number of hours of instruction received.
A. All agencies required to conduct training programs pursuant to R.38-022 shall, prior to initiation of the required training, submit training materials as required by the Department to the Academy for review and approval.
B. CLEE hours shall be awarded only for materials properly submitted and approved by the Department.
38-026. Equivalent Law Enforcement Emergency Vehicle Training.
Training provided by other states, the federal government or private training providers, will be evaluated in a fashion consistent with the provisions of R.38-008. In each instance where an agency or officer submits a request for credit for equivalent training, the employing agency must provide verification that appropriate instruction in the written policies and procedures of the agency has occurred, in accordance with the directives of R.38-023(B) regarding transferred officers.
A. Any agency which willfully fails to comply with the directives of R.38-021 through 38-026, shall be subject to a civil penalty as provided by law.
B. Any law enforcement officer found not to be in compliance with the directives of R.38-021 through 38-026, shall have his or her certification as a law enforcement officer withdrawn in accordance with R.38-016(A)(2) and his or her authority to exercise law enforcement powers shall cease, and the officer's certification shall be deemed to have lapsed.
For purposes of R.38-021 and 38-022, the following definitions shall apply:
A. Emergency: A sudden or unexpected occurrence involving an imminent threat to human life or immediate potential for extreme property damage under conditions requiring immediate response to curtail imminent harm to human life.
With respect to the suspected commission of a criminal offense and law enforcement response to such offense, the classification of the crime as felony or misdemeanor shall not be the sole determinative factor of whether an emergency is present; but rather all known factors, in accordance with the first paragraph above, will be weighed in a determination of whether an emergency exists.
B. Non-Emergency: A situation involving conditions routinely encountered in line of law enforcement duty which does not pose an imminent threat to human life or immediate potential for extreme property damage which would require immediate response to curtail harm to human life.
C. Pursuit: An event involving a law enforcement officer attempting to apprehend a person in a motor vehicle while that person is trying to avoid capture by willfully failing to yield to the officer's signal to stop. It also includes the closing of the distance between a law enforcement vehicle and the violator's vehicle under circumstances where the violator is not yet aware of the law enforcement action.
D. Emergency Response: The driving of a law enforcement emergency vehicle by a law enforcement officer in response to an emergency, as defined herein, where the response is conducted in accordance with state law and department policy.
E. Non-Emergency Response: The driving of a law enforcement emergency vehicle by a law enforcement officer in response to a non-emergency, as defined herein. This response involves operation of the law enforcement emergency vehicle in all modes other than emergency response or pursuit mode.
F. Law Enforcement Emergency Vehicle: A motor vehicle, as defined by the laws of this state, whether marked or unmarked, used by a law enforcement agency in the conduct of law enforcement operations, in accordance with state law and department policy.
A. "Operator" means a telecommunications operator or dispatcher employed in an E-911 system.
B. "Agency" means local government or public safety agency employing operators.
C. "Director" means the Director of the South Carolina Department of Public Safety.
D. "Academy" means the Division of Training and Continuing Education of the South Carolina Department of Public Safety.
38-061. Minimum Requirements for E-911 Operator Enrollment in Training.
A. All agencies having operators as candidates for training and certification shall submit to the Academy, the following:
1. an application under oath in a format prescribed by the Director;
2. evidence satisfactory to the Director that the candidate possesses a high school diploma or equivalent recognized and accepted by the South Carolina Department of Education;
3. evidence satisfactory to the Director that the candidate's present age is not less than eighteen years;
4. evidence satisfactory to the Director that the candidate has not been convicted of any criminal offense that carries a possible sentence of more than one year.
B. Nothing in this regulation shall be construed to preclude any agency from establishing qualifications or standards for hiring that exceed these minimum standards.
A. Candidates for certification as operators shall successfully complete a prescribed course of training as approved by the Director and will be certified as Class 4-TCO.
B. Candidates employed as operators on the effective date of these regulations may be certified without completing the training referenced in paragraph (A) above if the candidate has:
(1) two years continuous employment as an emergency services dispatcher and no break in service of longer than six months; or
(2) one year continuous employment as an emergency services dispatcher, no break in service of more than six months, and prior training accredited by the Academy, and the candidate successfully passes a comprehensive test as approved by the Director and administered by the Academy. No retest will be offered.
A. All certification lapses upon separation from employment.
B. Candidates with prior certification and a break in service of less than one year will be recertified upon a request by the employing agency, provided the agency produces evidence satisfactory to the Director that the candidate has not been convicted of any criminal offense that carries a possible sentence of more than one year.
C. Candidates with prior certification and a break in service of more than one year must meet the requirements of 38-061 and 38-062(A).
Agencies shall notify the Academy of the separation from employment of any certified operator. If the separation is a result of the conviction for a criminal offense carrying a possible sentence of more than one year, such conviction shall be reported to the Academy. All reports shall take place on a form approved by the Director.
The cost of training shall be established by the Academy. Agencies shall forward an authorized purchase order for this amount with each application for training.
ARTICLE 3.
DIVISION OF MOTOR VEHICLES
SUBARTICLE 1.
SPECIAL LICENSE PLATES
38-100. Motor Vehicles License Plates for Members of Congress of the United States.
A. A special series of private passenger car license plates is hereby designated, as described herein, which may, upon application being made therefor, and the regular fee required by law paid, be issued to United States Representatives and Senators from South Carolina, said plates to bear the words "Member U. S. Congress" or "Member U. S. Senate," as the case may be. The said plates shall be serially numbered 1 through 6 in the case of those designated "Member U. S. Congress," and 1 and 2 in the case of those designated "Member U. S. Senate." The said specially designated license plates shall be reserved by the Department of Public Safety for issuance in the order of the seniority of the Representatives and Senators; Provided, that by mutual consent between respective Representatives and Senators the order in which serial numbers are issued may be modified.
B. The specially designated license plates issued hereunder shall not be transferable, and in the event an owner transfers or otherwise disposes of a vehicle for which one of the said plates has been issued, he shall return same to the Department of Public Safety in exchange for a regular license plate which, in turn, may be transferred as provided for by law; or the Department of Public Safety may authorize a specially designated license plate to be transferred to another vehicle of the same owner upon receipt of application therefor and payment of the regular fee required by law for registration and license of that vehicle.
C. Specially designated license plates issued hereunder shall be surrendered to the Department of Public Safety upon expiration of the term of office, resignation, or death of the holder, in exchange for a regular license plate not specially designated.
D. All specially designated license plates issued hereunder shall expire on the 31st day of January.
E. Nothing herein shall be construed as affecting the license and registration fees to be paid on the vehicles involved, nor in any way to otherwise relieve the owners from complying with all provisions of the law relating to the licensing and registration of vehicles in South Carolina.
38-101. Issuance and Use of Specially Designated Motor Vehicle License Plates for Members of the South Carolina General Assembly.
A. A special series of private car license plates is hereby designated, as described herein, which may, upon application being made therefor and the regular fee required by law paid, be issued to the members of the South Carolina General Assembly, said plates to bear the words "State Senator" for members of the South Carolina Senate, and "State Legislator" for a member of the South Carolina House of Representatives, as the case may be. The said plates shall be serially numbered one through forty-six in the case of those designated "State Senator," and one through one hundred twenty-four for those designated "State Legislator." The said specially designated license plates shall be reserved by the Department of Public Safety for issuance in the order of seniority of the State Senators and members of the House of Representatives, provided that by mutual consent between respective Representatives and Senators, the order in which serial numbers are issued may be modified.
B. The specially designated license plates issued hereunder shall not be transferable, and in the event an owner transfers or otherwise disposes of a vehicle for which one of the said plates has been issued, he shall return same to the Department of Public Safety in exchange for a regular license plate which, in turn, may be transferred as provided by law, or the Department of Public Safety may authorize a specially designated license plate to be transferred to another owner of the same vehicle upon receipt of application therefor and payment of the regular fee required by law for registration and licensing of that vehicle.
C. Specially designated license plates issued hereunder shall be surrendered to the Department of Public Safety upon expiration of the term of office, resignation or death of the holder in exchange for a regular license plate not specially designated.
D. All specially designated license plates issued hereunder shall expire on the 31st day of January of each year.
E. Nothing herein shall be construed as affecting the license and registration fees to be paid on the vehicle involved, nor in any way to otherwise release the owners from complying with all provisions of the law relating to the licensing and registration of vehicles in South Carolina.
38-102. Special License Plates for Various State Officials.
A. A special series of private passenger automobile license plates are hereby designated, which may, upon proper application being made therefor, be issued to duly elected State Constitutional Officers, said plates to bear the title of the office holder or any other numerical designation approved by the State Constitutional Officer and the Department; to duly elected members of Statewide Commissions and the numerical designation of the district or circuit which such member represents; to any past Governor of South Carolina, said plates to bear the word "Governor" and the numerical designation of the years in office.
No special personalized motor vehicle license plates included in this section will be issued requiring special or separate dies unless the cost of such dies will be recovered within a two-year license period from the fifteen-dollar ($15.00) annual fee charge for personalized license plates and none of these plates will be manufactured to include the word designation "Chairman."
B. A special series of private passenger automobile license plates are hereby designated, which may, upon proper application being made therefor, be issued to members of the South Carolina Supreme Court, Members of the South Carolina Circuit Court and qualified residents of any Federal Judiciary Office. The fee for the issue of such special plates shall be the regular motor vehicle registration fee as set forth in Article 5 of Chapter 3 of Title 56 of the 1976 Code.
C. The specially designated license plates issued hereunder shall not be transferable except to another vehicle of the same owner and only then upon receipt of proper application therefor and payment of the fee required by law for registration and license of that vehicle. Such plates shall not be transferable to another person unless so authorized by the Department.
D. Specially designated license plates issued hereunder shall be surrendered to the Department of Public Safety upon expiration of term of office, resignation, or death of the holder, in exchange for license plates not specially designated.
38-110. Repealed by State Register Volume 21, Issue No. 6, Part 2, eff June 27, 1997.
SUBARTICLE 3.
ADMINISTRATION AND ENFORCEMENT OF THE FINANCIAL RESPONSIBILITY ACT AND LAWS REGARDING MOTOR VEHICLE REGISTRATION AND FINANCIAL SECURITY
38-120. Insurance Certification Required for Vehicle Licensing.
No certificate of registration shall be issued or transferred to an owner by the Department of Public Safety unless the owner or prospective owner produces satisfactory evidence that such security in accordance with the South Carolina Automobile Reparation Reform Act of 1974, Chapter 11 of Title 56 of the 1976 Code, is in effect.
This item shall not apply with respect to any motor vehicle owned by the U. S., this State or any political subdivision of this State or any municipality therein. Authority 1976 South Carolina Code of Laws, as amended, Section 56-9-30.
I. Pursuant to Section 15-78-140, political subdivisions are allowed to procure automobile liability insurance by becoming self-insured. Additionally, pursuant to Section 56-9-30 political subdivisions are exempted from the self-insured requirements contained in Chapter 9 of Title 56. However, pursuant to Section 56-10-10 political subdivisions who wish to be self-insured must still provide proof that adequate security is in place to meet the minimum coverage specified in Section 56-10-20.
II. Political Subdivisions must meet the following requirements to be self-insured with the Department of Public Safety:
A. Apply annually to be self-insured. The application must be submitted thirty (30) days prior to the expiration of the current self-insured period.
B. Annually provide a recent actuary's report, not more than six months old from the date of application, of the political subdivisions's projected automobile liability losses for the upcoming self-insured period.
C. Annually provide proof that sufficient funds are available and will be maintained to cover the projected losses listed in the actuary's report.
D. Annually provide a copy of the political subdivisions's most recent financial statement, which shall be not more than six months old from the date of application.
E. If an Excess Liability Insurance Policy is in place, the political subdivision must designate the Department of Public Safety as the Certificate holder on the policy.
III. Other Self-Insured Applicants must meet the following requirements:
A. Apply annually to be self-insured. The application must be submitted thirty (30) days prior to the expiration of the current self-insured period and contain the information required by Section 56-9-60.
B. Pursuant to Section 56-9-60 to be self-insured an applicant must:
1. have more than twenty-five motor vehicles registered in the applicant's name;
2. provide the Department with a copy of the applicant's latest financial statement prepared by a certified public accountant licensed to do business in South Carolina, indicating that the applicant has a positive net worth;
3. provide the Department with a current list of all vehicles registered in the applicant's name;
4. provide the Department with the applicant's procedural guidelines for processing claims;
5. the applicant must have a net worth of twenty million dollars or the Department may require the applicant to deposit in a segregated self-insured claims account the sum of three thousand dollars for each vehicle to be covered by the self-insurer's certificate.
C. Self-Insured funds must be segregated in a federally insured savings or checking account or maintained in another federally insured account such as:
1. Money Market Accounts or
2. Certificates of Deposits
All accounts containing self-insured funds must either be payable to the South Carolina Department of Public Safety or designate the Department as a lienholder. The account, however, shall be in the name of the Self-Insurer and all interest which accrues to the account shall belong to the Self-Insurer. The Department of Public Safety must be provided copies of statements of accounts containing self-insured funds on either a monthly or quarterly basis depending upon how often the statements are issued. The Department must also be notified when the term has expired for any certificates of deposit containing self-insured funds.
D. If a portion of the required self-insured funds are to be covered by real estate, a quick sale appraisal of the property must be submitted at the time of the initial application. Thereafter, an appraisal update must be submitted annually with the renewal application. Pursuant to Section 56-9-60, no more than twenty percent of the required self-insured funds may be covered by the "quick sale" appraised value of real estate located in the State.
38-130, 38-140. Repealed by State Register Volume 21, Issue No. 6, Part 2, eff June 27, 1997.
38-130, 38-140. Repealed by State Register Volume 21, Issue No. 6, Part 2, eff June 27, 1997.
For purposes of interpretation and enforcement of the Act, the following definitions are established:
A. Protective helmet. A covering device primarily intended to protect the upper part of the wearer's head against blow.
B. Goggles. A device consisting of glass or plastic eye pieces or eye cups worn over the eyes and held in place by a headband or temple piece for protection of the eyes and eye sockets.
C. Face Shield. A device attached to a helmet which covers the wearer's face at least to a point approximating the tip of the nose for the purpose of providing protection of the eyes against flying objects, dust, glare or a combination of these hazards.
D. Windscreen. A device mounted on a two-wheeled motorized vehicle forward of the rider designed to deflect wind and/or small flying objects from the face and body of the rider.
E. Harness. Collectively all those parts of a helmet such as chin strap, etc. which act to restrain and hold the helmet in proper position on the head of the wearer.
F. Shell. The outer material that gives rigidity and provides the general form of the helmet.
G. Department. The South Carolina Department of Public Safety
A. Helmet: Shall be approved only if it meets the minimum requirements of the USA Standard #Z90.1-1966 for Protective Headgear for Vehicular Users with respect to:
1. Construction
2. Materials
3. Extent of protection (coverage)
4. Labelling
5. Shock absorption (except limited to one impact at each of four sites)
6. Penetration
7. Retention (performance of harnesses)
Also, to be approved by the Department, a helmet shall have a reflectorized surface, or shall have securely affixed thereto on both the right and left side a reflectorized material providing not less than 4 square inches of reflectorized surface on each side of the helmet. If the reflectorized material is affixed to the helmet, it must be attached with a suitable permanent, weather-proof and water-resistant adhesive.
Special Labeling
Helmets approved by the Department shall be permanently labelled on the outer surface of the shell at the lower rear center edge with letters and numbers at least 1/4 inch; in height giving the manufacturer's name or trade name and model name or number, and these shall be the same under which the helmet has been approved by the Department.
B. Goggles: Shall be approved only if they meet with the minimum requirements of the "Eye Protection" section of the USA Standard #Z2.1-1959 for Head, Eye and Respiratory Protection, specifically that portion applicable to the following types of eye protection devices:
Goggles, eye cup (except welders and cutters)
Spectacles, metal or plastic frame
Goggles, flexible fitting
Spectacles, plastic eye shield
The following modifications of the USA Standards shall be applicable:
(a) Table 3, Selection of Eye-and Face-Protective Devices, shall not apply.
(b) Language referring to employees shall be construed as referring to persons operating or riding on a two-wheeled motorized vehicle.
Goggles approved by the Department shall bear a readily identifiable mark used by the manufacturer to indicate compliance with the USA Standards, and the device shall bear a manufacturer's tag at time of sale to the consumer indicating the brand name and model designation, and these shall be the same under which the goggles were approved by the Department.
C. Face Shield: Shall be approved only if:
(a) It meets the requirements established in the USA Standard Specifications #Z2.1-1959 for Head, Eye and Respiratory Protection, specifically that portion devoted to "Face Shields" and prescribing official test procedures for the following physical qualities (other than where exceptions or modifications are given):
1. Impact resistance, plastic-window face shield, except that the face shield shall be tested while attached to a helmet and the harness of the helmet shall take the place of the crown strap
2. Penetration resistance, plastic-window face shield
3. Visible transmittance, plastic windows
4. Flammability, plastic windows
5. Disinfection
(b) The edge of the shield is smooth, and if bevelled it must be dull finished.
(c) The shield is adequately supported, as a snap-on or flip-up attachment to the helmet.
(d) The shield covers the face both front and sides, from the leading edge of the helmet above the eyes to a point at or below the tip of the nose of the wearer.
(e) The shield is marked permanently and legibly for manufacturer identification as required by USA Standard #Z2.1-1959 and in addition bears a manufacturer's tag at time of sale to the consumer indicating brand name and model designation, and these shall be the same under which the shield was approved by the Department.
D. Windscreen: Shall be approved only if
(a) The visual material meets the provisions appearing in USA Standard Specifications #Z26.1-1966 for Safety Glazing Materials for Motor Vehicles Operated on Land Highways as pertaining to motorcycle use. For rigid plastic material Item #4 of Table 1 shall be used, and for flexible plastics Item #6 of Table 1 shall be used.
(b) The metal support for the shield shall be of material that will bend under impact rather than fragment.
(c) Cover material, other than visual material, shall be beaded at the edges or otherwise suitably trimmed off to prevent fraying, and if cloth shall be tested for flammability in accordance with procedures of #5902 of specifications of the ASTM.
(d) Each windscreen approved shall be labelled at a readily visible location showing the name of manufacturer, trade name if any and model designation, and these shall be the same name and model under which the device has been approved.
A. Tests. Tests to demonstrate compliance with requirements of the law shall be performed by independent testing agencies considered by the Department to be qualified to conduct such tests. Test reports shall be complete showing test results as against minimum or maximum values prescribed by the applicable State Standards and Specifications and shall be certified by the testing agency with respect to accuracy and compliance with the requirements for approval.
B. Procedure for Securing Approval.
(a) A manufacturer desiring approval of a helmet, goggles, face shields or windscreen shall submit to the Director of the Department or his designee, Columbia, South Carolina postage prepaid a test report (From an independent testing laboratory approved by the State) certified as required under the foregoing paragraph on "Test," together with a sample of the device for which approval is sought, fully identified as required by these regulations.
(b) If after receiving the report and the related sample the Department finds that the device meets the requirements of these regulations a notice of approval of the device will be issued. All samples will be retained by the Department for future reference and control purposes.
(c) Any protective device appearing on the approved list of the Public Health Service of the U.S. Department of Health, Education and Welfare will be approved if it also meets all other requirements of the South Carolina Act not included in current USA Standards upon which DHEW approval is based.
SUBARTICLE 7.
DRIVER SCHOOLS
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
38-160 to 38-186. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 7 was repealed by South Carolina State Register Vol 32 Issue 5, eff May 23, 2008. See now R 90-160 et seq.
SUBARTICLE 9.
TRUCK DRIVER TRAINING SCHOOLS
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
38-200 to 38-223. Repealed by State Register Volume 32, Issue No. 5, eff May 23, 2008.
SUBARTICLE 9 was repealed by South Carolina State Register Vol 32 issue 5, eff May 23, 2008. See now R 90-101 et seq.
SUBARTICLE 11.
REQUIRED STOPS AT RAILROAD CROSSINGS
38-240. Vehicles Required to Stop at Railroad Crossings.
(Statutory Authority: 1976 Code Section 56-5-2720, as amended)
A. The driver or operator of every vehicle listed in 49 C.F.R. Section 392.10, (a) shall stop such vehicle at all railroad crossings as required by Section 56-5-2720. The covered vehicles shall include:
(1) Every bus transporting passengers;
(2) Every motor vehicle transporting any quantity of chlorine;
(3) Every motor vehicle which, in accordance with the regulations of the United States Department of Transportation, is required to be marked or placarded with one of the following markings:
(i) Explosives A
(ii) Explosives B
(iii) Poison
(iv) Flammable
(v) Oxidizers
(vi) Compressed Gas
(vii) Corrosives
(viii) Flammable Gas
(ix) Radioactive
(x) Dangerous
(xi) Combustible (cargo tanks only)
(4) Every cargo tank motor vehicle, whether loaded or empty, used for the transportation of any hazardous material as defined in the Hazardous Materials Regulations of the United States Department of Transportation;
(5) Every cargo tank motor vehicle transporting a commodity which at the time of loading has a temperature above its flash point; and
(6) Every cargo tank motor vehicle, whether loaded or empty, transporting any commodity under special permit.
B. The driver or operator of every vehicle designed to carry more than ten (10) persons and used to transport persons shall stop such vehicle at all railroad crossings as required by Section 56-5-2720.
C. The driver or operator of every motor vehicle used to transport persons for compensation, shall stop at all railroad grade crossings as required by Section 56-5-2720. This requirement shall not apply to non-profit car pools.
SUBARTICLE 13.
RELEASE OF LICENSING AND REGISTRATION INFORMATION
(Statutory Authority: South Carolina Code of Laws Section 23-6-10, et seq.)
1. Companies must request in writing, on company stationery, to establish an account. Individuals must request in writing to establish an account and must include their current mailing address.
2. Companies and Individuals must furnish the following information:
a. Mailing address for billing purposes.
b. Contact person and telephone number.
c. Companies must provide their Federal I. D. number and Individuals must provide their Social Security Number.
d. Number and type of anticipated requests per month.
3. The Company must remit with request a Security Deposit equivalent to the monthly expected billing (Minimum of $100.00). The money remitted is a Security Deposit and not an advance payment for services rendered. The Deposit will remain on file with the Department until written notice of cancellation is received from the company or the individual and all invoices have been paid. Accounts will be reviewed periodically to determine if an increase in the deposit is needed.
4. After review and approval, a four (4) digit account number will be assigned to the Company or individual to use when requesting information.
1. Listed below are the types of information available with this account. Each request for information will be charged according to the following schedule:
TYPE INFORMATION CHARGE PER REQUEST
Registration $2.00
Liability Insurance Information $2.00
Odometer Information $3.00
Investigative Officer Reports $3.00
Vehicle Title Lienholder Information $2.00
2. Information requests will be accumulated monthly. One invoice will be prepared for all information requested.
3. Invoices must be paid within thirty (30) days of receipt of the invoice for the account to remain active. After thirty (30) days, accounts will become delinquent and subject to closure.
1. Companies and individuals will be notified that an Account Balance is Past Due. Payment must be received within ten (10) days of receipt of the notice for account to be returned to active status.
2. If payment of all past due invoices is not received within ten (10) days after receiving the notice, account privileges will be suspended.
3. If payment is not received within thirty (30) days of receipt of the notice, the account will be closed and Security Deposit applied to all outstanding invoices. Any remaining balance will be refunded to the company or individual.
1. Companies and individuals may terminate an account by requesting in writing to the Deputy Director, Department of Public Safety, Division of Motor Vehicles, P. O. Box 1498, Columbia, South Carolina 29216-0022, to close the account and have the security deposit be returned.
2. Upon receipt of the request, the Department will suspend privileges under the account and will determine the amount of any outstanding balance under the account.
3. Any amounts due will be deducted from the security deposit with the remaining balance being returned to the company or individual.
ARTICLE 5.
STATE TRANSPORT POLICE REGULATIONS
(Statutory Authority: South Carolina Code of Laws, Section 23-6-10, et seq.)
The purpose of part 38-382 is to establish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles.
(a) 38-382 applies to every person and to all employers of such persons who operate a commercial motor vehicle in commerce in any State, and is subject to
(1) The commercial driver's license requirements of part 38-383 of these regulations;
(2) The Licencia Federal de Conductor (Mexico) requirements; or
(3) The commercial drivers license requirements of the Canadian National Safety Code.
(b) An employer who employs himself/herself as a driver must comply with both the requirements in 38-382 that apply to employers and the requirements in 38-382 that apply to drivers. An employer who employs only himself/herself as a driver shall implement a random alcohol and controlled substances testing program of two or more covered employees in the random testing selection pool.
(c) The exceptions contained in Regulation 38-390.3(f) of this regulation do not apply to 38-382. The employers and drivers identified in Regulation 38-390.3(f) of this regulation must comply with the requirements of 38-382, unless otherwise specifically provided in paragraph (d).
(d) Exceptions. 38-382 shall not apply to employers and their drivers:
(1) Required to comply with the alcohol and/or controlled substances testing requirements of part 655 (Federal Transit Administration alcohol and controlled substances testing regulations); or
(2) Who a State must waive from the requirements of part 38-383 of this regulation. These individuals include active duty military personnel; members of the reserves; and members of the national guard on active duty, including personnel on full-time national guard duty, personnel on part-time national guard training and national guard military technicians (civilians who are required to wear military uniforms), and active duty U.S. Coast Guard personnel; or
(3) Who a State has, at its discretion, exempted from the requirements of part 38-383 of this regulation. These individuals may be:
(i) Operators of a farm vehicle which is:
(A) Controlled and operated by a farmer;
(B) Used to transport either agricultural products, farm machinery, farm supplies, or both to or from a farm;
(C) Not used in the operations of a common or contract motor carrier; and
(D) Used within 241 kilometers (150 miles) of the farmer's farm.
(ii) Firefighters or other persons who operate commercial motor vehicles which are necessary for the preservation of life or property or the execution of emergency governmental functions, are equipped with audible and visual signals, and are not subject to normal traffic regulation.
Each employer shall ensure that all alcohol or controlled substances testing conducted under 38-382 complies with the procedures set forth in part 40. The provisions of part 40 that address alcohol or controlled substances testing are made applicable to employers by 38-382.
Words or phrases used are defined in Sections 38-386.2 and 38-390.5 of this regulation, and Section 40.3 of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs, except as provided below:
Actual knowledge for the purpose of subpart B, means actual knowledge by an employer that a driver has used alcohol or controlled substances based on the employer's direct observation of the employee, information provided by the driver's previous employer(s), a traffic citation for driving a CMV while under the influence of alcohol or controlled substances or an employee's admission of alcohol or controlled substance use, except as provided in Regulation 38-382.121. Direct observation as used in this definition means observation of alcohol or controlled substances use and does not include observation of employee behavior or physical characteristics sufficient to warrant reasonable suspicion testing under Regulation 38-382.307.
Alcohol means the intoxicating agent in beverage alcohol, ethyl alcohol, or other low molecular weight alcohols including methyl and isopropyl alcohol.
Alcohol concentration (or content) means the alcohol in a volume of breath expressed in terms of grams of alcohol per 210 liters of breath as indicated by an evidential breath test.
Alcohol use means the drinking or swallowing of any beverage, liquid mixture or preparation (including any medication), containing alcohol.
Commerce means:
(1) Any trade, traffic or transportation within the jurisdiction of the United States between a place in a State and a place outside of such State, including a place outside of the United States; and
(2) Trade, traffic, and transportation in the United States which affects any trade, traffic, and transportation described in paragraph (1) of this definition.
Commercial motor vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle:
(1) Has a gross combination weight rating of 11,794 or more kilograms (26,001 or more pounds) inclusive of a towed unit with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or
(2) Has a gross vehicle weight rating of 11,794 or more kilograms (26,001 or more pounds); or
(3) Is designed to transport 16 or more passengers, including the driver; or
(4) Is of any size and is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act (49 U.S.C. 51O3(b)) and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR part 172, subpart F).
Confirmation (or confirmatory) drug test means a second analytical procedure performed on a urine specimen to identify and quantify the presence of a specific drug or drug metabolite.
Confirmation (or confirmatory) validity test means a second test performed on a urine specimen to further support a validity test result.
Confirmed drug test means a confirmation test result received by an MRO from a laboratory.
Consortium/Third Party Administrator (C/TPA) means a service agent that provides or coordinates one or more drug and/or alcohol testing services to DOT-regulated employers. C/TPAs typically provide or coordinate the provision of a number of such services and perform administrative tasks concerning the operation of the employers' drug and alcohol testing programs. This term includes, but is not limited to. groups of employers who join together to administer, as a single entity, the DOT drug and alcohol testing programs of its members (e.g., having a combined random testing pool). C/TPAs are not "employers".
Controlled substances mean those substances identified in Section 40.85 of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs.
Designated employer representative (DER) is an individual identified by the employer as able to receive communications and test results from service agents and who is authorized to take immediate actions to remove employees from safety-sensitive duties and to make required decisions in the testing and evaluation processes. The individual must be an employee of the company. Service agents cannot serve as DERs.
Disabling damage means damage which precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs: (1)Inclusions. Damage to motor vehicles that could have been driven, but would have been further damaged if so driven; (2)Exclusions: (i)Damage which can be remedied temporarily at the scene of the accident without special tools or parts, (ii)Tire disablement without other damage even if no spare tire is available, (iii) Headlight or taillight damage, (iv)Damage to turn signals, horn, or windshield wipers which make them inoperative.
DOT Agency means an agency (or "operating administration") of the United States Department of Transportation administering regulations requiring alcohol and/or drug testing (14 CFR parts 61, 63, 65, 121, and 135; 49 CFR parts 199, 219, 382, and 655), in accordance with part 40.
Driver means any person who operates a commercial motor vehicle. This includes, but is not limited to: Full time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent owner-operator contractors.
Employer means a person or entity employing one or more employees (including an individual who is self-employed) that is subject to DOT agency regulations requiring compliance. The term means the entity responsible for overall implementation of DOT drug and alcohol program requirements, including individuals employed by the entity who take personnel actions resulting from violations and any applicable DOT agency regulations. Service agents are not employers for the purposes of 38-382.
Licensed medical practitioner means a person who is licensed, certified, and/or registered, in accordance with applicable Federal, State, local, or foreign laws and regulations, to prescribe controlled substances and other drugs.
Performing (a safety-sensitive junction) means a driver is considered to be performing a safety-sensitive function during any period in which he or she is actually performing, ready to perform, or immediately available to perform any safety-sensitive functions.
Positive rate for random drug testing means the number of verified positive results for random drug, tests conducted under 38-382 plus the number of refusals of random drug tests required by 38-382, divided by the total number of random drug tests results (i.e., positives, negatives, and refusals) under 38-382.
Refuse to submit (to an alcohol or controlled substances test) means that a driver:
(1) Fail to appear for any test (except a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer. This includes the failure of an employee (including an owner-operator) to appear for a test when called by a C/TPA (see Section 40.6Ha of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs);
(2) Fail to remain at the testing site until the testing process is complete. Provided, that an employee who leaves the testing site before the testing process commences (see Section 40.63(c) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs) a pre-employment test is not deemed to have refused to test;
(3) Fail to provide a urine specimen for any drug test required by 38-382 or DOT agency regulations. Provided, that an employee who does not provide a urine specimen because he or she has left the testing site before the testing process commences (see Section 40.63(c) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs) for a pre-employment test is not deemed to have refused to test;
(4) In the case of a directly observed or monitored collection in a drug test, fails to permit the observation or monitoring of the driver's provision of a specimen (see Sections 40.67(1) and 40.69(g) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs;
(5) Fail to provide a sufficient amount of urine when directed, and it has been determined, through a required medical evaluation, that there was no adequate medical explanation for the failure (see Section 40.193(d)(2) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs;
(6) Fail or declines to take a second test the employer or collector has directed the driver to take;
(7) Fail to undergo a medical examination or evaluation, as directed by the MRO as part of the verification process, or as directed by the DER under Section 40.193(d) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs. In the case of a pre-employment drug test, the employee is deemed to have refused to test on this basis only if the pre-employment test is conducted following a contingent offer of employment;
(8) Fail to cooperate with any part of the testing process (e.g.. refuse to empty pockets when so directed by the collector, behave in a confrontational way that disrupts the collection process); or
(9) Is reported by the MRO as having a verified adulterated or substituted test result.
Safety-sensitive function means all time from the time a driver begins to work or is required to be in readiness to work until the time he/she is relieved from work and all responsibility for performing work. Safety-sensitive functions shall include:
(1) All time at an employer or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the employer;
(2) All time inspecting equipment as required by Regulations 38-392.7 and 38-392.8 of these regulations or otherwise inspecting, servicing, or conditioning any commercial motor vehicle at any time;
(3) All time spent at the driving controls of a commercial motor vehicle in operation;
(4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth (a berth conforming to the requirements of Regulation 38-393.76 of this regulation);
(5) AH time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, remaining in readiness to operate the vehicle, or in giving or receiving receipts for shipments loaded or unloaded; and
(6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled vehicle.
Screening test (or initial test) means:
(1) In drug testing, a test to eliminate "negative" urine specimens from further analysis or to identify a specimen that requires additional testing for the presence of drugs,
(2) In alcohol testing, an analytical procedure to determine whether an employee may have a prohibited concentration of alcohol in a breath or saliva specimen.
Stand-down means the practice of temporarily removing an employee from the performance of safety-sensitive functions based only on a report from a laboratory to the MRO of a confirmed positive test for a drug or drug metabolite, an. adulterated test, or a substituted test, before the MRO has completed verification of the test results.
Violation rate for random alcohol testing means the number of 0.04 and above random alcohol confirmation test results conducted under 38-382 plus the number of refusals of random alcohol tests required by 38-382, divided by the total number of random alcohol screening tests (including refusals) conducted under 38-382.
(a) Except as provided in paragraph (b), 38-382 preempts any State or local law, rule, regulation, or order to the extent that:
(1) Compliance with both the State or local requirement is not possible; or
(2) Compliance with the State or local requirement is an obstacle to the accomplishment and execution of any requirement.
(b) 38-382 shall not be construed to preempt provisions of State criminal law that impose sanctions for reckless conduct leading to actual loss of life, injury, or damage to property, whether the provisions apply specifically to transportation employees, employers, or the general public.
38-382.111. Other requirements imposed by employers.
Except as expressly provided in 38-382, nothing in 38-382 shall be construed to affect the authority of employers, or the rights of drivers, with respect to the use of alcohol, or the use of controlled substances, including authority and rights with respect to testing and rehabilitation.
Before performing each alcohol or controlled substances test under 38-382, each employer shall notify a driver that the alcohol or controlled substances test is required by 38-382. No employer shall falsely represent that a test is administered under 38-382.
(a) All domestic-domiciled employers must implement the requirements of 38-382 on the date the employer begins commercial motor vehicle operations.
(b) All foreign-domiciled employers must implement the requirements of 38-382 on the date the employer begins commercial motor vehicle operations in the United States,
No employer shall use the services of a service agent who is subject to public interest exclusion in accordance with 49 CFR part 40, Subpart R.
38-382.119. Stand-down waiver provision (Company must file waiver with FMCSA.).
(a) Employers are prohibited from standing employees down, except consistent with a waiver from the Federal Motor Carrier Safety Administration as required under 38-382.119.
(b) An employer subject to 38-382 who seeks a waiver from the prohibition against standing down an employee before the MRO has completed the verification process shall follow the procedures in 49 CFR 40.21. The employer must send a written request, which includes all of the information required by that section to the Federal Motor Carrier Safety Administrator (or the Administrator's designee). U.S. Department of Transportation, 400 Seventh Street, SW. Washington. DC 20590.
(c) The final decision whether to grant or deny the application for a waiver will be made by the Administrator or the Administrator's designee.
(d) After a decision is signed by the Administrator or the Administrator's designee. the employer will be sent a copy of the decision, which will include the terms and conditions for the waiver or the reason for denying the application for a waiver.
(e) Questions regarding waiver applications should be directed to the Office of Enforcement and Compliance, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. The telephone number is (202) 366-5720.
38-382.121. Employee admission of alcohol and controlled substances use.
(a) Employees who admit to alcohol misuse or controlled substances use are not subject to the referral, evaluation and treatment requirements of 38-382 and part 40, provided that:
(1) The admission is in accordance with a written employer- established voluntary self-identification program or policy that meets the requirements of paragraph (b) above;
(2) The driver does not self-identify in order to avoid testing under the requirements of 38-382;
(3) The driver makes the admission of alcohol misuse or controlled substances use prior to performing a safety sensitive function (i.e., prior to reporting for duty); and
(4) The driver does not perform a safety sensitive function until the employer is satisfied that the employee has been evaluated and has successfully completed education or treatment requirements in accordance with the self-identification program guidelines.
(b) A qualified voluntary self-identification program or policy must contain the following elements:
(1) It must prohibit the employer from taking adverse action against an employee making a voluntary admission of alcohol misuse or controlled substances use within the parameters of the program or policy and paragraph (a) of 38-382.121;
(2) It must allow the employee sufficient opportunity to seek evaluation, education or treatment to establish control over the employee's drug or alcohol problem;
(3) It must permit the employee to return to safety sensitive duties only upon successful completion of an educational or treatment program, as determined by a drug and alcohol abuse evaluation expert, i.e... employee assistance professional, substance abuse professional, or qualified drug and alcohol counselor;
(4) It must ensure that:
(i) Prior to the employee participating in a safety sensitive function, the employee shall undergo a return to duty test with a result indicating an alcohol concentration of less than 0.02; and/or
(ii) Prior to the employee participating in a safety sensitive function, the employee shall undergo a return to duty controlled substance test with a verified negative test result for controlled substances use; and
(5) It may incorporate employee monitoring and include non-DOT follow-up testing.
No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while having an alcohol concentration of 0.04 or greater. No employer having actual knowledge that a driver has an alcohol concentration of 0.04 or greater shall permit the driver to perform or continue to perform safety-sensitive functions.
No driver shall use alcohol while performing safety-sensitive functions. No employer having actual knowledge that a driver is using alcohol while performing safety-sensitive functions shall permit the driver to perform or continue to perform safety-sensitive functions.
No driver shall perform safety-sensitive functions within four hours after using alcohol. No employer having actual knowledge that a driver has used alcohol within four hours shall permit a driver to perform or continue to perform safety-sensitive functions.
No driver required to take a post-accident alcohol test under Regulation 38-382.303 shall use alcohol for eight hours following the accident, or until he/she undergoes a post-accident alcohol test, whichever occurs first.
38-382.211. Refusal to submit to a required alcohol or controlled substances test.
No driver shall refuse to submit to a post-accident alcohol or controlled substances test required under 38-382.303, a random alcohol or controlled substances test required under 38-382.305, a reasonable suspicion alcohol or controlled substances test required under 38-382.307, or a follow-up alcohol or controlled substances test required under Regulation 38-382.311. No employer shall permit a driver who refuses to submit to such tests to perform or continue to perform safety-sensitive functions.
(a) No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any controlled substance, except when the use is pursuant to the instructions of a licensed medical practitioner, as defined in Regulation 38-382.107, who has advised the driver that the substance will not adversely affect the driver's ability to safely operate a commercial motor vehicle.
(b) No employer having actual knowledge that a driver has used a controlled substance shall permit the driver to perform or continue to perform a safety-sensitive function.
(c) An employer may require a driver to inform the employer of any therapeutic drug use.
No driver shall report for duty, remain on duty or perform a safety-sensitive function, if the driver tests positive or has adulterated or substituted a test specimen for controlled substances. No employer having actual knowledge that a driver has tested positive or has adulterated or substituted a test specimen for controlled substances shall permit the driver to perform or continue to perform safety-sensitive functions.
(a) Prior to the first time a driver performs safety-sensitive functions for an employer, the driver shall undergo testing for controlled substances as a condition prior to being used, unless the employer uses the exception in paragraph (b). No employer shall allow a driver, who the employer intends to hire or use, to perform safety-sensitive functions unless the employer has received a controlled substances test result from the MRO or C/TPA indicating a verified negative test result for that driver.
(b) An employer is not required to administer a controlled substances test required by paragraph (a) if:
(1) The driver has participated in a controlled substances testing program that meets the requirements of 38-382 within the previous 30 days; and
(2) While participating in that program, either:
(i) Was tested for controlled substances within the past 6 months (from the date of application with the employer), or
(ii) Participated in the random controlled substances testing program for the previous 12 months (from the date of application with the employer); and
(3) The employer ensures that no prior employer of the driver of whom the employer has knowledge has records of a violation of 38-382 or the controlled substances use rule of another DOT agency within the previous six months.
(c)(1) An employer who exercises the exception in paragraph (b) shall contact the controlled substances testing program(s) in which the driver participates or participated and shall obtain and retain from the testing pro-gram(s) the following information:
(i)Name(s) and address(es) of the program(s).
(ii) Verification that the driver participates or participated in the program(s).
(iii) Verification that the program(s) conforms to part 40. Verification that the driver is qualified under the rules of 38-382, including that the driver has not refused to be tested for controlled substances.
(v) The date the driver was last tested for controlled substances.
(vi) The results of any tests taken within the previous six months and any other violations of subpart B of 38-382.
(2) An employer who uses, but does not employ a driver more than once a year to operate commercial motor vehicles must obtain the information in paragraph (c)(1) at least once every six months. The records prepared under this paragraph shall be maintained in accordance with Regulation 38-382.401. If the employer cannot verify that the driver is participating in a controlled substances testing program in accordance with 38-382 and part 40 of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs, the employer shall conduct a pre-employment controlled substances test.
(d) An employer may, but is not required to. conduct pre-employment alcohol testing under 38-382. If an employer chooses to conduct pre- employment alcohol testing, it must comply with the following requirements;
(1) It must conduct a pre-employment alcohol test before the first performance of safety-sensitive functions by every covered employee (whether a new employee or someone who has transferred to a position involving the performance of safety-sensitive functions).
(2) It must treat all safety-sensitive employees performing safety- sensitive functions the same for the purpose of pre-employment alcohol testing (i.e., it must not test some covered employees and not others). J
(3) It must conduct the pre-employment tests after making a contingent offer of employment or transfer, subject to the employee passing the pre-employment alcohol test.
(4) It must conduct all pre-employment alcohol tests using the alcohol testing procedures of 49 CFR part 40.
(5) It must not allow a covered employee to begin performing safety-sensitive functions unless the result of the employee's test indicates an alcohol concentration of less than 0.04.
(a) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for alcohol for each of its surviving drivers:
(1) Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or
(2) Who receives a citation within 8 hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved:
(i) Bodily injury to any person who. as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
(ii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
(b) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for controlled substances for each of its surviving drivers:
(1) Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or
(2) Who receives a citation within thirty-two hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved:
(i) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
(ii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
(c) The following table notes when a post-accident test is required to be conducted by paragraphs (a)(l), (a)(2), (b)(l), and (b)(2);
(d)(1) Alcohol tests. If a required test is not administered within two hours following the accident, the employer shall prepare and maintain on file a record stating the reasons the test was not promptly administered. If a required test is not administered within eight hours following the accident, the employer shall cease attempts to administer an alcohol test and shall prepare and maintain the same record. Records shall be submitted to the FMCSA upon request.
(2) Controlled substance tests. If a required test is not administered within 32 hours following the accident, the employer shall cease attempts to administer a controlled substances test, and prepare and maintain on file a record stating the reasons the test was not promptly administered. Records shall be submitted to the FMCSA upon request.
(e) A driver who is subject to post-accident testing shall remain readily available for such testing or may be deemed by the employer to have refused to submit to testing. Nothing in 38-382 shall be construed to require the delay of necessary medical attention for injured people following an accident or to prohibit a driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care.
(f) An employer shall provide drivers with necessary post-accident information, procedures and instructions, prior to the driver operating a commercial motor vehicle, so that drivers will be able to comply with the requirements of 38-382.
(g)(1) The results of a breath or blood test for the use of alcohol, conducted by Federal, State, or local officials having independent authority for the test, shall be considered to meet the requirements, provided such tests conform to the applicable Federal, State or local alcohol testing requirements, and that the results of the tests are obtained by the employer.
(2) The results of a urine test for the use of controlled substances, conducted by Federal, State, or local officials having independent authority for the test shall be considered to meet the requirements, provided such tests conform to the applicable Federal, State or local controlled substances testing requirements, and that the results of the tests are obtained by the employer.
(h) Exception. 38-382 does not apply to:
(1) An occurrence involving only boarding or alighting from a stationary motor vehicle; or
(2) An occurrence involving only the loading or unloading of cargo; or
(3) An occurrence in the course of the operation of a passenger car or a multipurpose passenger vehicle (as defined in the National Highway Traffic Safety Administration's Standard Section 571.3) by an employer unless the motor vehicle is transporting passengers for hire or hazardous materials of a type and quantity that require the motor vehicle to be marked or placarded in accordance with Section 177.823 of the Federal Motor Carrier Safety Administration's hazardous materials regulations.
(a) Every employer shall comply with the requirements of 38-382. Every driver shall submit to random alcohol and controlled substance testing as required in 38-382.
(b)(1) Except as provided in paragraphs (c) through (e), the minimum annual percentage rate for random alcohol testing shall be 10 percent of the average number of driver positions.
(2) Except as provided in paragraphs (f) through (h), the minimum annual percentage rate for random controlled substances testing shall be 50 percent of the average number of driver positions.
(c) The FMCSA Administrator's decision to increase or decrease the minimum annual percentage rate for alcohol testing is based on the reported violation rate for the entire industry. All information used for this determination is drawn from the alcohol management information system reports required by Regulation 38-382.403. In order to ensure reliability of the data, the FMCSA Administrator considers the quality and completeness of the reported data, may obtain additional information or reports from employers, and may make appropriate modifications in calculating the industry violation rate. In the event of a change in the annual percentage rate, the FMCSA Administrator will publish in the FEDERAL REGISTER the new minimum annual percentage rate for random alcohol testing of drivers. The new minimum annual percentage rate for random alcohol testing will be applicable starting January 1 of the calendar year following publication in the FEDERAL REGISTER.
(d)(1) When the minimum annual percentage rate for random alcohol testing is 25 percent or more, the FMCSA Administrator may lower this rate to 10 percent of all driver positions if the FMCSA Administrator determines that the data received under the reporting requirements of Regulation 38-382.403 for two consecutive calendar years indicate that the violation rate is less than 0.5 percent.
(2) When the minimum annual percentage rate for random alcohol testing is 50 percent, the FMCSA Administrator may lower this rate to 25 percent of all driver positions if the FMCSA Administrator determines that the data received under the reporting requirements of Regulation 38-382.403 for two consecutive calendar years indicate that the violation rate is less than 1.0 percent but equal to or greater than 0.5 percent.
(e)(1) When the minimum annual percentage rate for random alcohol testing is 10 percent, and the data received under the reporting requirements of Regulation 38-382.403 for that calendar year indicate that the violation rate is equal to or greater than 0.5 percent, but less than 1.0 percent, the FMCSA Administrator will increase the minimum annual percentage rate for random alcohol testing to 25 percent for all driver positions.
(2) When the minimum annual percentage rate for random alcohol testing is 25 percent or less, and the data received under the reporting requirements of Regulation 38-382.403 for that calendar year indicate that the violation rate is equal to or greater than 1.0 percent, the FMCSA Administrator will increase the minimum annual percentage rate for random alcohol testing to 50 percent for all driver positions.
(f) The FMCSA Administrator's decision to increase or decrease the minimum annual percentage rate for controlled substances testing is based on the reported positive rate for the entire industry. All information used for this determination is drawn from the controlled substances management information system reports required by Regulation 38-382-403. In order to ensure reliability of the data, the FMCSA Administrator considers the quality and completeness of the reported data, may obtain additional information or reports from employers, and may make appropriate modifications in calculating the industry positive rate. In the event of a change in the annual percentage rate, the FMCSA Administrator will publish in the FEDERAL REGISTER the new minimum annual percentage rate for controlled substances testing of drivers. The new minimum annual percentage rate for random controlled substances testing will be applicable starting January 1 of the calendar year following publication in the FEDERAL REGISTER.
(g) When the minimum annual percentage rate for random controlled substances testing is 50 percent, the FMCSA Administrator may lower this rate to 25 percent of all driver positions if the FMCSA administrator determines that the data received under the reporting requirements of Regulation 38-382.403 for two consecutive calendar years indicate that the positive rate is less than 1.0 percent.
(h) When the minimum annual percentage rate for random controlled substances testing is 25 percent, and the data received under the reporting requirements of Regulation 38-382.403 for any calendar year indicate that the reported positive rate is equal to or greater than 1.0 percent, the FMCSA Administrator will increase the minimum annual percentage rate for random controlled substances testing to 50 percent of all driver positions.
(i)(1) The selection of drivers for random alcohol and controlled substances testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with drivers' Social Security numbers, payroll identification numbers, or other comparable identifying numbers.
(2) Each driver selected for random alcohol and controlled substances testing under the selection process used, shall have an equal chance of being tested each time selections are made.
(3) Each driver selected for testing shall be tested during the selection period.
(j)(1) To calculate the total number of covered drivers eligible for random testing throughout the year, as an employer, you must add the total number of covered drivers eligible for testing during each random testing period for the year and divide that total by the number of random testing periods. Covered employees, and only covered employees, are to be in an employer's random testing pool, and all covered drivers must be in the random pool. If you are an employer conducting random testing more often than once per month (e.g., daily, weekly, bi-weekly) you do not need to compute this total number of covered drivers rate more than on a once per month basis.
(2) As an employer, you may use a service agent (e.g., a C/TPA) to perform random selections for you, and your covered drivers may be part of a larger random testing pool of covered employees. However, you must ensure that the service agent you use is testing at the appropriate percentage established for your industry and that only covered employees are in the random testing pool.
(k)(1) Each employer shall ensure that random alcohol and controlled substances tests conducted under 38-382 are unannounced.
(2) Each employer shall ensure that the dates for administering random alcohol and controlled substances tests conducted under 38-382 are spread reasonably throughout the calendar year.
(l) Each employer shall require that each driver who is notified of selection for random alcohol and/or controlled substances testing proceeds to the test site immediately; provided, however, that if the driver is performing a safety-sensitive function, other than driving a commercial motor vehicle, at the time of notification, the employer shall instead ensure that the driver ceases to perform the safety- sensitive function and proceeds to the testing site as soon as possible.
(m) A driver shall only be tested for alcohol while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions,
(n) If a given driver is subject to random alcohol or controlled substances testing under the random alcohol or controlled substances testing rules of more than one DOT agency for the same employer, the driver shall be subject to random alcohol and/or controlled substances testing at the annual percentage rate established for the calendar year by the DOT agency regulating more than 50 percent of the driver's function.
(o) If an employer is required to conduct random alcohol or controlled substances testing under the alcohol or controlled substances testing rules of more than one DOT agency, the employer may-
(1) Establish separate pools for random selection, with each pool containing the DOT-covered employees who are subject to testing at the same required minimum annual percentage rate; or
(2) Randomly select such employees for testing at the highest minimum annual percentage rate established for the calendar year by any DOT agency to which the employer is subject.
(a) An employer shall require a driver to submit to an alcohol test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of 38-382 concerning alcohol. The employer's determination that reasonable suspicion exists to require the driver to undergo an alcohol test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver.
(b) An employer shall require a driver to submit to a controlled substances test when the employer has reasonable suspicion to believe that the driver has violated the prohibitions of subpart B of 38-382 concerning controlled substances. The employer's determination that reasonable suspicion exists to require the driver to undergo a controlled substances test must be based on specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver. The observations may include indications of the chronic and withdrawal effects of controlled substances.
(c) The required observations for alcohol and/or controlled substances reasonable suspicion testing shall be made by a supervisor or company official who is trained in accordance with Regulation 38-382.603. The person who makes the determination that reasonable suspicion exists to conduct an alcohol test shall not conduct the alcohol test of the driver.
(d) Alcohol testing is authorized by 38-382 only if the observations required by paragraph (a) are made during, just preceding, or just after the period of the work day that the driver is required to be in compliance with 38-382. A driver may be directed by the employer to only undergo reasonable suspicion testing while the driver is performing safety-sensitive functions, just before the driver is to perform safety-sensitive functions, or just after the driver has ceased performing such functions.
(e)(1) If an alcohol test required by 38-382 is not administered within two hours following the determination under paragraph (a), the employer shall prepare and maintain on file a record stating the reasons the alcohol test was not promptly administered. If an alcohol test required by 38-382 is not administered within eight hours following the determination under paragraph (a), the employer shall cease attempts to administer an alcohol test and shall state in the record the reasons for not administering the test.
(2) Notwithstanding the absence of a reasonable suspicion alcohol test under 38-382, no driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions while the driver is under the influence of or impaired by alcohol, as shown by the behavioral, speech, and performance indicators of alcohol misuse, nor shall an employer permit the driver to perform or continue to perform safety-sensitive functions, until:
(i) An alcohol test is administered and the driver's alcohol concentration measures less than 0.02; or
(ii) Twenty four hours have elapsed following the determination under paragraph (a) that there is reasonable suspicion to believe that the driver has violated the prohibitions in 38-382 concerning the use of alcohol.
(3) Except as provided in paragraph (e)(2) of 38-382, no employer shall take any action under 38-382 against a driver based solely on the driver's behavior and appearance, with respect to alcohol use, in the absence of an alcohol test. This does not prohibit an employer with independent authority of 38-382 from taking any action otherwise consistent with law.
(f) A written record shall be made of the observations leading to an alcohol or controlled substances reasonable suspicion test, and signed by the supervisor or company official who made the observations, within 24 hours of the observed behavior or before the results of the alcohol or controlled substances tests are released, whichever is earlier.
(a) General requirement. Each employer shall maintain records of its alcohol misuse and controlled substances use prevention programs as provided in 38-382. The records shall be maintained in a secure location with controlled access.
(b) Period of retention. Each employer shall maintain the records in accordance with the following schedule:
(1) Five years. The following records shall be maintained for a minimum of five years:
(i) Records of driver alcohol test results indicating an alcohol concentration of 0.02 or greater,
(ii) Records of driver verified positive controlled substances test results,
(iii) Documentation of refusals to take required alcohol and/or controlled substances tests,
(iv) Driver evaluation and referrals,
(v) Calibration documentation.
(vi) Records related to the administration of the alcohol and controlled substances testing programs, and
(vii) A copy of each annual calendar year summary required by 38-382.403.
(2) Two years. Records related to the alcohol and controlled substances collection process (except calibration of evidential breath testing devices).
(3) One year. Records of negative and canceled controlled substances test results (as defined in part 40) and alcohol test results with a concentration of less than 0.02 shall be maintained for a minimum of one year.
(4) Indefinite period. Records related to the education and training of breath alcohol technicians, screening test technicians, supervisors, and drivers shall be maintained by the employer while the individual performs the functions which require the training and for two years after ceasing to perform those functions.
(c) Types of records. The following specific types of records shall be maintained. "Documents generated" are documents that may have to be prepared under a requirement of 38-382. If the record is required to be prepared, it must be maintained.
(1) Records related to the collection process:
(i) Collection logbooks, if used;
(ii) Documents relating to the random selection process;
(iii) Calibration documentation for evidential breath testing devices;
(iv) Documentation of breath alcohol technician training;
(v) Documents generated in connection with decisions to administer reasonable suspicion alcohol or controlled substances tests;
(vi) Documents generated in connection with decisions on post- accident tests;
(vii) Documents verifying existence of a medical explanation of the inability of a driver to provide adequate breath or to provide a urine specimen for testing; and
(viii) A copy of each annual calendar year summary as required by Regulation 38-382.403.
(2) Records related to a driver's test results:
(i) The employer's copy of the alcohol test form, including the results of the test;
(ii) The employer's copy of the controlled substances test chain of custody and control form;
(iii) Documents sent by the MRO to the employer, including those required by part 40, subpart G;
(iv) Documents related to the refusal of any driver to submit to an alcohol or controlled substances test required by 38-382;
(v) Documents presented by a driver to dispute the result of an alcohol or controlled substances test administered under 38-382; and
(vi) Documents generated in connection with verifications of prior employers' alcohol or controlled substances test results that the employer
(A) Must obtain in connection with the exception contained in Regulation 38-382.301, and
(B) Must obtain as required by Regulation 38-382.413.
(3) Records related to other violations of 38-382.
(4) Records related to evaluations:
(i) Records pertaining to a determination by a substance abuse professional concerning a driver's need for assistance; and
(ii) Records concerning a driver's compliance with recommendations of the substance abuse professional.
(5) Records related to education and training:
(i) Materials on alcohol misuse and controlled substance use awareness, including a copy of the employer's policy on alcohol misuse and controlled substance use;
(ii) Documentation of compliance with the requirements of Regulation 38-382.601 including the driver's signed receipt of education materials;
(iii) Documentation of training provided to supervisors for the purpose of qualifying the supervisors to make a determination concerning the need for alcohol and/or controlled substances testing based on reasonable suspicion;
(iv) Documentation of training for breath alcohol technicians as required by Section 40.213(a) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs; and
(v) Certification that any training conducted under 38-382 complies with the requirements for such training.
(6) Administrative records related to alcohol and controlled substances testing:
(i) Agreements with collection site facilities, laboratories, breath alcohol technicians, screening test technicians, medical review officers, consortia, and third party service providers;
(ii) Names and positions of officials and their role in the employer's alcohol and controlled substances testing program);
(iii) Semi-annual laboratory statistical summaries of urinalysis required by Section 40.111(a) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs; and
(iv) The employer's alcohol and controlled substances testing policy and procedures.
(d) Location of records. All records required by 38-382 shall be maintained as required by Regulation 38-390.31 of this regulation and shall be made available for inspection at the employer's principal place of business within two business days after a request has been made by an authorized representative of the Federal Motor Carrier Safety Administration.
(e) OMB control number.
(1) The information collection requirements of 38-382 have been reviewed by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and have been assigned OMB control number 2126-0012.
(2) The information collection requirements of 38-382 are found in the following Regulations: Regulations 38-382.105, 38-382.113, 38-382.301, 38-382.303, 38-382.305, 38-382.307, 38-382.401, 38-382.403, 38-382.405, 38-382.409, 38-382.411, 38-382.601, and 38-382.603.
38-382.403. Reporting of results in a management information system.
(a) An employer shall prepare and maintain a summary of the results of its alcohol and controlled substances testing programs performed under 38-382 during the previous calendar year, when requested by the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the employer or any of its drivers.
(b) If an employer is notified, during the month of January, of a request by the Federal Motor Carrier Safety Administration to report the employer's annual calendar year summary information, the employer shall prepare and submit the report to the FMCSA by March 15 of that year. The employer shall ensure that the annual summary report is accurate and received by March 15 at the location that the FMCSA specifies in its request. The employer must use the Management Information System (MIS) form and instructions as required by 49 CFR part 40 (at Section 40.26 and appendix H to part 40 of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs). The employer may also use the electronic version of the MIS form provided by the DOT. The Administrator may designate means (e.g.. electronic program transmitted via the Internet), other than hard-copy, for MIS form submission. For information on the electronic version of the form, see: http://www..fmcsa.dot.gov/safetyprogs/drugs/engtesting.hm.
(c) When the report is submitted to the FMCSA by mail or electronic transmission, the information requested shall be typed, except for the signature of the certifying official. Each employer shall ensure the accuracy and timeliness of each report submitted by the employer or a consortium.
(d) If you have a covered employee who performs multi-DOT agency functions (e.g., an employee drives a commercial motor vehicle and performs pipeline maintenance duties for the same employer), count the employee only on the MIS report for the DOT agency under which he or she is randomly tested. Normally, this will be the DOT agency under which the employee performs more than 50% of his or her duties. Employers may have to explain the testing data for these employees in the event of a DOT agency inspection or audit.
(e) A service agent (e.g., Consortia/Third party administrator as defined in 49 CFR 382.107) may prepare the MIS report on behalf of an employer. However, a company official [e.g., Designated employer representative] must certify the accuracy and completeness of the MIS report, no matter who prepares it.
(a) Except as required by law or expressly authorized or required in 38-382, no employer shall release driver information that is contained in records required to be maintained under Regulation 38-382.401.
(b) A driver is entitled, upon written request, to obtain copies of any records pertaining to the driver's use of alcohol or controlled substances, including any records pertaining to his or her alcohol or controlled substances tests. The employer shall promptly provide the records requested by the driver. Access to a driver's records shall not be contingent upon payment for records other than those specifically requested.
(c) Each employer shall permit access to all facilities utilized in complying with the requirements of 38-382 to the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the employer or any of its drivers.
(d) Each employer shall make available copies of all results for employer alcohol and/or controlled substances testing conducted under 38-382 and any other information pertaining to the employer's alcohol misuse and/or controlled substances use prevention program, when requested by the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the employer or any of its drivers.
(e) When requested by the National Transportation Safety Board as part of an accident investigation, employers shall disclose information related to the employer's administration of a post-accident alcohol and/or controlled substance test administered following the accident under investigation.
(f) Records shall be made available to a subsequent employer upon receipt of a written request from a driver. Disclosure by the subsequent employer is permitted only as expressly authorized by the terms of the driver's request.
(g) An employer may disclose information required to be maintained under 38-382 pertaining to a driver to the decision maker in a lawsuit, grievance, or administrative proceeding initiated by or on behalf of the individual, and arising from a positive DOT drug or alcohol test or a refusal to test (including, but not limited to, adulterated or substituted test results) of 38-382 (including, but not limited to, a worker's compensation, unemployment compensation, or other proceeding relating to a benefit sought by the driver). Additionally, an employer may disclose information in criminal or civil actions in accordance with Section 40.323(a)(2) of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs.
(h) An employer shall release information regarding a driver's records as directed by the specific written consent of the driver authorizing release of the information to an identified person. Release of such information by the person receiving the information is permitted only in accordance with the terms of the employee's specific written consent as outlined in Section 40.32Kb of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs.
38-382.407. Medical review officer notifications to the employer.
Medical review officers shall report the results of controlled substances tests to employers in accordance with the requirements of part 40, Subpart G.
38-382.409. Medical review officer record retention for controlled substances.
(a) A medical review officer or third party administrator shall maintain all dated records and notifications, identified by individual, for a minimum of five years for verified positive controlled substances test results. A medical review officer or third party administrator shall maintain all dated records and notifications, identified by individual, for a minimum of one year for negative and canceled controlled substances test results.
(b) No person may obtain the individual controlled substances test results retained by a medical review officer or third party administrator, and no medical review officer or third party administrator shall release the individual controlled substances test results of any driver to any person, without first obtaining a specific, written authorization from the tested driver. Nothing in this paragraph (c) shall prohibit a medical review officer or third party administrator from releasing, to the employer or to officials of the Secretary of Transportation, any DOT agency, or any State or local officials with regulatory authority over the controlled substances testing program under 38-382, the information delineated in part 40, Subpart G.
(a) An employer shall notify a driver of the results of a pre-employment controlled substances test conducted under 38-382, if the driver requests such results within 60 calendar days of being notified of the disposition of the employment application. An employer shall notify a driver of the results of random, reasonable suspicion and post-accident tests for controlled substances conducted under 38-382 if the test results are verified positive. The employer shall also inform the driver which controlled substance or substances were verified as positive.
(b) The designated employer representative shall make reasonable efforts to contact and request each driver who submitted a specimen under the employer's program, regardless of the driver's employment status, to contact and discuss the results of the controlled substances test with a medical review officer who has been unable to contact the driver.
(c) The designated employer representative shall immediately notify the medical review officer that the driver has been notified to contact the medical review officer within 72 hours.
38-382.413. Inquiries for alcohol and controlled substances information from previous employers.
Employers shall request alcohol and controlled substances information from previous employers in accordance with the requirements of Section 40.25 of the Federal Motor Carrier Safety Administration's procedures for transportation workplace drug and alcohol testing programs.
Subpart E: Consequences for Drivers Engaging in Substance Use-Related Conduct
38-382.501. Removal from safety-sensitive function.
(a) Except as provided in subpart F of 38-382, no driver shall perform safety-sensitive functions, including driving a commercial motor vehicle, if the driver has engaged in conduct prohibited by subpart B of 38-382 or an alcohol or controlled substances rule of another DOT agency.
(b) No employer shall permit any driver to perform safety-sensitive functions; including driving a commercial motor vehicle, if the employer has determined that the driver has violated 38-382.
(c) For purposes of this subpart, commercial motor vehicle means a commercial motor vehicle in commerce as defined in Regulation 38-382.107, and a commercial motor vehicle in interstate commerce as defined in part 38-390 of this regulation.
No driver who has engaged in conduct prohibited by subpart B of 38-382 shall perform safety-sensitive functions, including driving a commercial motor vehicle, unless the driver has met the requirements of part 40. subpart O. No employer shall permit a driver who has engaged in conduct prohibited by subpart B of 38-382 to perform safety-sensitive functions, including driving a commercial motor vehicle, unless the driver has met the requirements of part 40, subpart O.
(a) No driver tested under the provisions of subpart C of 38-382 who is found to have an alcohol concentration of 0.02 or greater but less than 0.04 shall perform or continue to perform safety-sensitive functions for an employer, including driving a commercial motor vehicle, nor shall an employer permit the driver to perform or continue to perform safety-sensitive functions, until the start of the driver's next regularly scheduled duty period, but not less than 24 hours following administration of the test.
(b) Except as provided in paragraph (a) of 38-382, no employer shall take any action under 38-382 against a driver based solely on test results showing an alcohol concentration less than 0.04. This does not prohibit an employer with authority independent of 38-382 from taking any action otherwise consistent with law.
Any employer or driver who violates the requirements of 38-382 shall be subject to the civil and/or criminal penalty provisions of 49 U.S.C. 521(b). In addition, any employer or driver who violates the requirements of 49 CFR part 40 shall be subject to the civil and/or criminal penalty provisions of 49 U.S.C. 521(b).
Subpart F: Alcohol Misuse and Controlled Substances Use Information, Training, and Referral
38-382.601. Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances.
(a) General requirements. Each employer shall provide educational materials that explain the requirements of 38-382 and the employer's policies and procedures with respect to meeting these requirements.
(1) The employer shall ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under 38-382 and to each driver subsequently hired or transferred into a position requiring driving a commercial motor vehicle.
(2) Each employer shall provide written notice to representatives of employee organizations of the availability of this information.
(b) Required content. The materials to be made available to drivers shall include detailed discussion of at least the following:
(1) The identity of the person designated by the employer to answer driver questions about the materials;
(2) The categories of drivers who are subject to the provisions of 38-382;
(3) Sufficient information about the safety-sensitive functions performed by those drivers to make clear what period of the work day the driver is required to be in compliance with 38-382;
(4) Specific information concerning driver conduct that is prohibited by 38-382;
(5) The circumstances under which a driver will be tested for alcohol and/or controlled substances under 38-382, including post-accident testing under Regulation 38-382.303(d);
(6) The procedures that will be used to test for the presence of alcohol and controlled substances, protect the driver and the integrity of the testing processes, safeguard the validity of the test results, and ensure that those results are attributed to the correct driver, including post-accident information, procedures and instructions required by Regulation 38-382.303(d);
(7) The requirement that a driver submit to alcohol and controlled substances tests administered in accordance with 38-382;
(8) An explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences;
(9) The consequences for drivers found to have violated subpart B of 38-382, including the requirement that the driver be removed immediately from safety-sensitive functions, and the procedures under part 40, subpart O;
(10) The consequences for drivers found to have an alcohol concentration of 0.02 or greater but less than 0.04;
(11) Information concerning the effects of alcohol and controlled substances use on an individual's health, work, and personal life; signs and symptoms of an alcohol or a controlled substances problem (the driver's or a co-worker's); and available methods of intervening when an alcohol or a controlled substances problem is suspected, including confrontation, referral to any employee assistance program and or referral to management.
(c) Optional provision. The materials supplied to drivers may also include information on additional employer policies with respect to the use of alcohol or controlled substances, including any consequences for a driver found to have a specified alcohol or controlled substances level, that are based on the employer's authority independent of 38-382. Any such additional policies or consequences must be clearly and obviously described as being based on independent authority.
(d) Certificate of receipt. Each employer shall ensure that each driver is required to sign a statement certifying that he or she has received a copy of these materials described in 38-382. Each employer shall maintain the original of the signed certificate and may provide a copy of die certificate to the driver.
Each employer shall ensure that all persons designated to supervise drivers receive at least 60 minutes of training on alcohol misuse and receive at least an additional 60 minutes of training on controlled substances use. The training will be used by the supervisors to determine whether reasonable suspicion exists to require a driver to undergo testing under Regulation 38-382.307. The training shall include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances. Recurrent training for supervisory personnel is not required.
(a) The purpose of 38-382 is to help reduce or prevent truck and bus accidents, fatalities, and injuries by requiring drivers to have a single commercial motor vehicle driver's license and by disqualifying drivers who operate commercial motor vehicles in an unsafe manner.
(b) 38-382:
(1) Prohibits a commercial motor vehicle driver from having more than one commercial motor vehicle driver's license;
(2) Requires a driver to notify the driver's current employer and the driver's State of domicile of certain convictions;
(3) Requires that a driver provide previous employment information when applying for employment as an operator of a commercial motor vehicle;
(4) Prohibits an employer from allowing a person with a suspended license to operate a commercial motor vehicle;
(5) Establishes periods of disqualification and penalties for those persons convicted of certain criminal and other offenses and serious traffic violations, or subject to any suspensions, revocations, or cancellations of certain driving privileges;
(6) Establishes testing and licensing requirements for commercial motor vehicle operators;
(7) Requires States to give knowledge and skills tests to all qualified applicants for commercial drivers' licenses which meet the Federal standard;
(8) Sets forth commercial motor vehicle groups and endorsements;
(9) Sets forth the knowledge and skills test requirements for the motor vehicle groups and endorsements;
(10) Sets forth the Federal standards for procedures, methods, and minimum passing scores for States and others to use in testing and licensing commercial motor vehicle operators; and
(11) Establishes requirements for the State issued commercial license documentation.
(a) The rules in 38-382 apply to every person who operates a commercial motor vehicle (CMV) in interstate, foreign, or intrastate commerce, to all employers of such persons, and to all States.
(b) The exceptions contained in Regulation 38-390.3(g) of this regulation do not apply to 38-382. The employers and drivers identified in Regulation 38-390.3(g) must comply with the requirements of 38-382, unless otherwise provided in 38-383.
(c) Exception for certain military drivers. Each State must exempt from the requirements of 38-382 individuals who operate CMVs for military purposes. This exception is applicable to active duty military personnel; members of the military reserves; member of the national guard on active duty, including personnel on full time national guard duty, personnel on part time national guard training, and national guard military technicians (civilians who are required to wear military uniforms); and active duty U.S. Coast Guard personnel. This exception is not applicable to U.S. Reserve technicians.
(d) Exception for farmers, firefighters, emergency response vehicle drivers, and drivers removing snow and ice. A State may, at its discretion, exempt individuals identified in paragraphs (d)(1), (d)(2) and (d)(3) of 38-383 from the requirements of 38-382. The use of this waiver is limited to the driver's home State unless there is a reciprocity agreement with adjoining States.
(1) Operators of a farm vehicle which is:
(i) Controlled and operated by a farmer, including operation by employees or family members;
(ii) Used to transport either agricultural product, farm machinery, farm supplies, or both to or from a farm;
(iii) Not used in the operations of a common or contract motor carrier; and
(iv) Used within 241 kilometers (150 miles) of the farmer's farm.
(2) Firefighters and other persons who operate CMVs which are necessary to the preservation of life or property or the execution of emergency governmental functions, are equipped with audible and visual signals and are not subject to normal traffic regulation. These vehicles include fire trucks, hook and ladder trucks, foam or water transport trucks, police SWAT team vehicles, ambulances, or other vehicles that are used in response to emergencies.
(3)(i) A driver, employed by an eligible unit of local government, operating a commercial motor vehicle within the boundaries of that unit for the purpose of removing snow or ice from a roadway by plowing, sanding, or salting, if
(A) The properly licensed employee who ordinarily operates a commercial motor vehicle for these purposes is unable to operate the vehicle; or
(B) The employing governmental entity determines that a snow or ice emergency exists that requires additional assistance.
(ii) This exemption shall not preempt State laws and regulations concerning the safe operation of commercial motor vehicles.
(e) Restricted commercial drivers license (CDL) for certain drivers in the State of Alaska.
(1) The State of Alaska may, at its discretion, waive only the following requirements of 38-382 and issue a CDL to each driver that meets the conditions set forth in paragraphs (e) (2) and (3) of 38-383:
(i) The knowledge tests standards for testing procedures and methods of Subpart H, but must continue to administer knowledge tests that fulfill the content requirements of Subpart G for all applicants;
(ii) All the skills test requirements; and
(iii) The requirement under Regulation 38-383.153(a)(4) to have a photograph on the license document.
(2) Drivers of CMVs in the State of Alaska must operate exclusively over roads that meet both of the following criteria to be eligible for the exception in paragraph (e)(1) of 38-383:
(i) Such roads are not connected by land highway or vehicular way to the land connected State highway system; and
(ii) Such roads are not connected to any highway or vehicular way with an average daily traffic volume greater than 499.
(3) Any CDL issued under the terms of this paragraph must carry two restrictions:
(i) Holders may not operate CMVs over roads other than those specified in paragraph (e)(2); and
(ii) The license is not valid for CMV operation outside the State of Alaska.
(f) Restricted CDL for certain drivers in farm related service industries.
(1) A State may, at its discretion, waive the required knowledge and skills tests of Subpart H of 38-382 and issue restricted CDLs to employees of these designated farm related service industries:
(i) Agri chemical businesses;
(ii) Custom harvesters;
(iii) Farm retail outlets and suppliers;
(iv) Livestock feeders.
(2) A restricted CDL issued pursuant to this paragraph shall meet all the requirements of 38-382, except Subpart H of 38-382. A restricted CDL issued pursuant to this paragraph shall be accorded the same reciprocity as a CDL meeting all of the requirements of 38-382. The restrictions imposed upon the issuance of this restricted CDL shall not limit a person's use of the CDL in a non CMV during either validated or non validated periods, nor shall the CDL affect a State's power to administer its driver licensing program for operators of vehicles other than CMVs.
(3) A State issuing a CDL under the terms of this paragraph must restrict issuance as follows:
(i) Applicants must have a good driving record as defined in this paragraph. Drivers who have not held any motor vehicle operator's license for at least one year shall not be eligible for this CDL. Drivers who have between one and two years of driving experience must demonstrate a good driving record for their entire driving history. Drivers with more than two years of driving experience must have a good driving record for the two most recent years. For the purposes of this paragraph, the term good driving record means that an applicant:
(A) Has not had more than one license (except in the instances specified in Regulation 38-383.21(b));
(B) Has not had any license suspended, revoked, or canceled;
(C) Has not had any conviction for any type of motor vehicle for the disqualifying offenses contained in Regulation 38-383.51(b)(2);
(D) Has not had any conviction for any type of motor vehicle for serious traffic violations; and
(E) Has not had any conviction for a violation of State or local law relating to motor vehicle traffic control (other than a parking violation) arising in connection with any traffic accident, and has no record of an accident in which he/she was at fault.
(ii) Restricted CDLs shall have the same renewal cycle as unrestricted CDLs, but shall be limited to the seasonal period or periods as defined by the State of licensure, provided that the total number of calendar days in any 12 month period for which the restricted CDL is valid does not exceed 180. If a State elects to provide for more than one seasonal period, the restricted CDL is valid for commercial motor vehicle operation only during the currently approved season, and must be revalidated for each successive season. Only one seasonal period of validity may appear on the license document at a time. The good driving record must be confirmed prior to any renewal or revalidation.
(iii) Restricted CDL holders are limited to operating Group B and C vehicles, as described in Subpart F of 38-382.
(iv) Restricted CDLs shall not be issued with any endorsements on the license document. Only the limited tank vehicle and hazardous materials endorsement privileges that the restricted CDL automatically confers and are described in paragraph (f)(3)(v) are permitted.
(v) Restricted CDL holders may not drive vehicles carrying any placardable quantities of hazardous materials, except for diesel fuel in quantities of 3,785 liters (1,000 gallons) or less; liquid fertilizers (i.e., plant nutrients) in vehicles or implements of husbandry in total quantities of 11,355 liters (3,000 gallons) or less; and solid fertilizers (i.e., solid plant nutrients) that are not transported with any organic substance.
(vi) Restricted CDL holders may not hold an unrestricted CDL at the same time.
(vii) Restricted CDL holders may not operate a commercial motor vehicle beyond 241 kilometers (150 miles) from the place of business or the farm currently being served.
(g) Restricted CDL for certain drivers in the pyrotechnic industry.
(1) A State may, at its discretion, waive the required hazardous materials knowledge tests of Subpart H of 38-382 and issue restricted CDLs to part time drivers operating commercial motor vehicles transporting less than 227 kilograms (500 pounds) of fireworks classified as DOT Class 1.3G explosives.
(2) A State issuing a CDL under the terms of this paragraph must restrict issuance as follows:
(i) The GVWR of the vehicle to be operated must be less than 4,537 kilograms (10,001 pounds);
(ii) If a State believes, at its discretion, that the training required by Section 172.704 of the Federal Motor Carrier Safety Administration's hazardous materials regulations adequately prepares part time drivers meeting the other requirements of this paragraph to deal with fireworks and the other potential dangers posed by fireworks transportation and use, the State may waive the hazardous materials knowledge tests of Subpart H of 38-382. The State may impose any requirements it believes is necessary to ensure itself that a driver is properly trained pursuant to Section 172.704 of the Federal Motor Carrier Safety Administration's hazardous materials regulations.
(iii) A restricted CDL document issued pursuant to this paragraph shall have a statement clearly imprinted on the face of the document that is substantially similar as follows: "For use as a CDL only during the period from June 30 through July 6 for purposes of transporting less than 227 kilograms (500 pounds) of fireworks classified as DOT Class 1.3G explosives in a vehicle with a GVWR of less than 4,537 kilograms (10,001 pounds)."
(3) A restricted CDL issued pursuant to this paragraph shall meet all the requirements of 38-382, except those specifically identified. A restricted CDL issued pursuant to this paragraph shall be accorded the same reciprocity as a CDL meeting all of the requirements of 38-382. The restrictions imposed upon the issuance of this restricted CDL shall not limit a person's use of the CDL in a non CMV during either validated or non validated periods, nor shall the CDL affect a State's power to administer its driver licensing program for operators of vehicles other than CMVs.
(4) Restricted CDLs shall have the same renewal cycle as unrestricted CDLs, but shall be limited to the seasonal period of June 30 through July 6 of each year or a lesser period as defined by the State of licensure.
(5) Persons who operate commercial motor vehicles during the period from July 7 through June 29 for purposes of transporting less than 227 kilograms (500 pounds) of fireworks classified as DOT Class 1.3G explosives in a vehicle with a GVWR of less than 4,537 kilograms (10,001 pounds) and who also operate such vehicles for the same purposes during the period June 30 through July 6 shall not be issued a restricted CDL pursuant to this paragraph.
Administrator means the Federal Highway Administrator, the chief executive of the Federal Highway Administration, an agency within the Department of Transportation.
Alcohol or alcoholic beverage means: (a) Beer as defined in 26 U.S.C. 5052(a), of the Internal Revenue Code of 1954, (b) wine of not less than one half of one per centum of alcohol by volume, or (c) distilled spirits as defined in section 5002(a)(8), of the Internal Revenue Code of 1954.
Alcohol concentration (AC) means the concentration of alcohol in a person's blood or breath. When expressed as a percentage it means grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
Alien means any person not a citizen or national of the United States.
Commerce means (a) any trade, traffic or transportation within the jurisdiction of the United States between a place in a State and a place outside of such State, including a place outside of the United States and (b) trade, traffic, and transportation in the United States which affects any trade, traffic, and transportation described in paragraph (a) of this definition.
Commercial driver's license (CDL) means a license issued by a State or other jurisdiction, in accordance with the standards contained in 49 CFR part 383, to an individual which authorizes the individual to operate a class of a commercial motor vehicle.
Commercial driver's license information system (CDLIS) means the CDLIS established by FHWA pursuant to section 12007 of the Commercial Motor Vehicle Safety Act of 1986.
Commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle
(a) Has a gross combination weight rating of 11,794 kilograms or more (26,001 pounds or more) inclusive of a towed unit with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or
(b) Has a gross vehicle weight rating of 11,794 or more kilograms (26,001 pounds or more); or
(c) Is designed to transport 16 or more passengers, including the driver; or
(d) Is of any size and is used in the transportation of hazardous materials as defined in 38-383.
Controlled substance has the meaning such term has under section 102(6), of the Controlled Substances Act (21 U.S.C. 802(6)) and includes all substances listed on schedules I through V of 21 CFR part 1308, as they may be revised from time to time. Schedule I substances are identified in appendix D of this regulation and schedules II through V are identified in appendix E of this regulation.
Conviction means an un-vacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an un-vacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated."
Disqualification means either:
(a) The suspension, revocation, cancellation, or any other withdrawal by a State of a person's privileges to drive a commercial motor vehicle; or
(b) A determination by the FHWA, under the rules of practice for motor carrier safety contained in part 386, that a person is no longer qualified to operate a commercial motor vehicle under part 38-391; or
(c) The loss of qualification which automatically follows conviction of an offense listed in Regulation 38-383.51.
Driver applicant means an individual who applies to a State to obtain, transfer, upgrade, or renew a CDL.
Driver's license means a license issued by a State or other jurisdiction, to an individual which authorizes the individual to operate a motor vehicle on the highways.
Driving a commercial motor vehicle while under the influence of alcohol means committing any one or more of the following acts in a CMV: driving a CMV while the person's alcohol concentration is 0.04 percent or more; driving under the influence of alcohol, as prescribed by State law; or refusal to undergo such testing as is required by any State or jurisdiction in the enforcement of Regulation 38-383.51(b)(2)(i)(A) or (B), or Regulation 38-392.5(a)(2).
Eligible unit of local government means a city, town, borough, county, parish, district, or other public body created by or pursuant to State law which has a total population of 3,000 individuals or less.
Employee means any operator of a commercial motor vehicle, including full time, regularly employed drivers; casual, intermittent or occasional drivers; leased drivers and independent, owner operator contractors (while in the course of operating a commercial motor vehicle) who are either directly employed by or under lease to an employer.
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 commercial motor vehicle or assigns employees to operate such a vehicle.
Endorsement means an authorization to an individual's CDL required to permit the individual to operate certain types of commercial motor vehicles.
Fatality means the death of a person as a result of a motor vehicle accident.
Felony means an offense under State or Federal law that is punishable by death or imprisonment for a term exceeding 1 year.
Foreign means outside the fifty United States and the District of Columbia.
"Gross vehicle weight rating" means the actual weight or the value specified by the manufacturer as maximum loaded weight of a single or a combination vehicle or the registered gross weight, whichever is greater. The gross vehicle weight rating of a combination vehicle (commonly referred to as the "gross combination weight rating") is the gross vehicle weight rating of the power unit plus the gross vehicle weight rating of a towed unit. South Carolina Code of Laws Section 56-1-2030.
Hazardous materials means any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.
Motor vehicle means a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power used on highways, except that such term does not include a vehicle, machine, tractor, trailer, semitrailer operated exclusively on a rail.
Nonresident CDL means a CDL issued by a State to an individual domiciled in a foreign country.
Out of service order means a declaration by an authorized enforcement officer of a Federal, State, Canadian, Mexican, or local jurisdiction that a driver, a commercial motor vehicle, or a motor carrier operation, is out of service pursuant to Regulations 386.72, 38-392.5, 395.13, 38-38-396.9, or compatible laws, or the North American Uniform Out of Service Criteria.
Representative vehicle means a motor vehicle which represents the type of motor vehicle that a driver applicant operates or expects to operate.
Serious traffic violation means conviction, when operating a commercial motor vehicle, of:
(a) Excessive speeding, involving any single offense for any speed of 15 miles per hour or more above the posted speed limit;
(b) Reckless driving, as defined by State or local law or regulation, including but not limited to offenses of driving a commercial motor vehicle in willful or wanton disregard for the safety of persons or property;
(c) Improper or erratic traffic lane changes;
(d) Following the vehicle ahead too closely;
(e) A violation, arising in connection with a fatal accident, of State or local law relating to motor vehicle traffic control;
(f) Driving a CMV without obtaining a CDL;
(g) Driving a CMV without a CDL in the driver's possession. Any individual who provides proof to the enforcement authority that issued the citation, by the date the individual must appear in court or pay an fine for such a violation, that the individual held a valid CDL on the date the citation was issued, shall not be guilty of this offense; or
(h) Driving a CMV without the proper class of CDL and/or endorsements for the specific vehicle group being operated or for the passengers or type of cargo being transported.
State means a State of the United States and the District of Columbia.
State of domicile means that State where a person has his/her true, fixed, and permanent home and principal residence and to which he/she has the intention of returning whenever he/she is absent.
"Tank vehicle" means a vehicle that is designed to transport a liquid or gaseous material within a tank that either is attached permanently or temporarily to the vehicle and which has a capacity of one thousand gallons or more. South Carolina Code of Laws Section 56-1-2030.
The term United States means the 50 States and the District of Columbia.
Vehicle means a motor vehicle unless otherwise specified.
Vehicle group means a class or type of vehicle with certain operating characteristics.
38-383.7. Validity of CDL issued by decertified State.
A CDL issued by a State prior to the date the State is notified by the Administrator, in accordance with the provisions of Regulation 384.405 of this regulation, that the State is prohibited from issuing CDLs, will remain valid until its stated expiration date.
(1) Effective April 1, 1992, no person shall operate a commercial motor vehicle unless such person has taken and passed written and driving tests which meet the Federal standards contained in Subparts F, G, and H of 38-382 for the commercial motor vehicle that person operates or expects to operate.
(2) Effective April 1, 1992, except as provided in paragraph (b), no person shall operate a commercial motor vehicle unless such person possesses a CDL which meets the standards contained in Subpart J of 38-382, issued by his/her State or jurisdiction of domicile.
(b) Exception. If a commercial motor vehicle operator is domiciled in a foreign jurisdiction which, as determined by the Administrator, does not test drivers and issue a CDL in accordance with, or similar to, the standards contained in Subparts F, G, and H of 38-382, the person shall obtain a Nonresident CDL from a State which does comply with the testing and licensing standards contained in such Subparts F, G, and H.
(c) Learner's permit. State learner's permits, issued for limited time periods according to State requirements, shall be considered valid commercial drivers' licenses for purposes of behind the wheel training on public roads or highways, if the following minimum conditions are met:
(1) The learner's permit holder is at all time accompanied by the holder of a valid CDL; and
(2) He/she either holds a valid automobile driver's license, or has passed such vision, sign/symbol, and knowledge tests as the State issuing the learner's permit ordinarily administers to applicants for automobile drivers' licenses.
Subpart C: Notification Requirements and Employer Responsibilities
38-383.31. Notification of convictions for driver violations.
(a) Each person who operates a commercial motor vehicle, who has a commercial driver's license issued by a State or jurisdiction, and who is convicted of violating, in any type of motor vehicle, a State or local law relating to motor vehicle traffic control (other than a parking violation) in a State or jurisdiction other than the one which issued his/her license, shall notify an official designated by the State or jurisdiction which issued such license, of such conviction. The notification must be made within 30 days after the date that the person has been convicted.
(b) Each person who operates a commercial motor vehicle, who has a commercial driver's license issued by a State or jurisdiction, and who is convicted of violating, in any type of motor vehicle, a State or local law relating to motor vehicle traffic control (other than a parking violation), shall notify his/her current employer of such conviction. The notification must be made within 30 days after the date that the person has been convicted. If the driver is not currently employed, he/she must notify the State or jurisdiction which issued the license according to Regulation 38-383.31(a).
(c) Notification. The notification to the State official and employer must be made in writing and contain the following information:
(1) Driver's full name;
(2) Driver's license number;
(3) Date of conviction;
(4) The specific criminal or other offense(s), serious traffic violation(s), and other violation(s) of State or local law relating to motor vehicle traffic control, for which the person was convicted and any suspension, revocation, or cancellation of certain driving privileges which resulted from such conviction(s);
(5) Indication whether the violation was in a commercial motor vehicle;
(6) Location of offense; and
(7) Driver's signature.
38-383.33. Notification of driver's license suspensions.
Each employee who has a driver's license suspended, revoked, or canceled by a State or jurisdiction, who loses the right to operate a commercial motor vehicle in a State or jurisdiction for any period, or who is disqualified from operating a commercial motor vehicle for any period, shall notify his/her current employer of such suspension, revocation, cancellation, lost privilege, or disqualification. The notification must be made before the end of the business day following the day the employee received notice of the suspension, revocation, cancellation, lost privilege, or disqualification.
(a) Any person applying for employment as an operator of a commercial motor vehicle shall provide at the time of application for employment, the information specified in paragraph (c).
(b) All employers shall request the information specified in paragraph (c) from all persons applying for employment as a commercial motor vehicle operator. The request shall be made at the time of application for employment.
(c) The following employment history information for the 10 years preceding the date the application is submitted shall be presented to the prospective employer by the applicant:
(1) A list of the names and addresses of the applicant's previous employers for which the applicant was an operator of a commercial motor vehicle;
(2) The dates the applicant was employed by these employers; and
(3) The reason for leaving such employment.
(d) The applicant shall certify that all information furnished is true and complete.
(e) An employer may require an applicant to provide additional information.
(f) Before an application is submitted, the employer shall inform the applicant that the information he/she provides in accordance with paragraph (c) may be used, and the applicant's previous employers may be contacted for the purpose of investigating the applicant's work history.
No employer shall knowingly allow, require, permit, or authorize an employee to operate a commercial motor vehicle in the United States:
(a) During any period in which the driver has a CMV driver's license suspended, revoked, or canceled by a State, has lost the right to operate a commercial motor vehicle in a State, or has been disqualified from operating a commercial motor vehicle;
(b) During any period in which the employee has more than one commercial motor vehicle driver's license;
(c) During any period in which the employee, or the motor vehicle he/she is driving, or the motor carrier operation, is subject to an out of service order; or
(d) In violation of a Federal, State, or local law or regulation, pertaining to railroad-highway grade crossings.
(1) A driver or holder of a CDL who is disqualified must not drive a CMV.
(2) An employer must not knowingly allow, require, permit, or authorize a driver who is disqualified to drive a CMV.
(3) A driver is subject to disqualification sanctions designated in paragraphs (b) and (c), if the holder of a CDL driver a CMV or non-CMV and is convicted of the violations.
(4) Determining first and subsequent violations. For purposes of determining first and subsequent violations of the offenses specified in this subpart, each conviction for any offense listed in Tables 1 through 4 resulting from a separate incident, whether committed in a CMV or non-CMV, must be counted.
(5) Reinstatement after lifetime disqualification. A State may reinstate any driver disqualified for life for offenses described in paragraphs (b)(1) through (b)(8), (Table 1 to Regulation 38-383.51) after 10 years if that person has voluntarily entered and successfully completed an appropriate rehabilitation program approved by the State. Any person who has been reinstated in accordance with this provision and who is subsequently convicted of a disqualifying offense described in paragraphs (b)(1) through (b)(8), (Table 1 to Regulation 38-383.51) must be reinstated.
(b) Disqualification for major offenses. Table 1 to Regulation 38-383.51 contains a list of the offenses and periods for which a driver must be disqualified, depending upon the type of vehicle the driver is operating at the time of the violation, as follows:
WIDETABLE
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(c) Disqualification for serious traffic violations. Table 2 to Regulation 38-383.51 contains a list of the offenses and the periods for which a driver must be disqualified, depending upon the type of vehicle the driver is operating at the time of the violation, as follows:
(d) Disqualification for violation of out of service orders. Table 3 to Regulation 38-383.51 contains a list of the offenses and periods for which a driver must be disqualified, when the driver is operating a CMV at the time of the violation, as follows:
(e) Disqualification for violating out-of-service orders. Table 4 Regulation 38-383.51 contains a list of the offenses and periods for which a driver must be disqualified when the driver is operating a CMV at the time of the violation, as follows:
(a) General rule. Any person who violates the rules set forth in Subparts B and C of 38-382 may be subject to civil or criminal penalties as provided for in 49 U.S.C. 521(b).
(b) Special penalties pertaining to violation of out of service orders
(1) Driver violations. A driver who is convicted of violating an out of service order shall be subject to a civil penalty of not less than $1,000 nor more than $2,500, in addition to disqualification under Regulation 38-383.51(d).
(2) Employer violations. An employer who is convicted of a violation of Regulation 38-383.37(c) shall be subject to a civil penalty of not less than $2,500 nor more than $10,000.
(a) Initial Commercial Driver's License. Prior to obtaining a CDL, a person must meet the following requirements:
(1) A person who operates or expects to operate in interstate or foreign commerce, or is otherwise subject to part 38-391, shall certify that he/she meets the qualification requirements contained in part 38-391. A person who operates or expects to operate entirely in intrastate commerce and is not subject to part 38-391, is subject to State driver qualification requirements and must certify that he/she is not subject to part 38-391;
(2) Pass a knowledge test in accordance with the standards contained in Subparts G and H of 38-382 for the type of motor vehicle the person operates or expects to operate;
(3) Pass a driving or skills test in accordance with the standards contained in Subparts G and H of 38-382 taken in a motor vehicle which is representative of the type of motor vehicle the person operates or expects to operate; or provide evidence that he/she has successfully passed a driving test administered by an authorized third party;
(4) Certify that the motor vehicle in which the person takes the driving skills test is representative of the type of motor vehicle that person operates or expects to operate;
(5) Provide to the State of issuance the information required to be included on the CDL as specified in Subpart J of 38-382;
(6) Certify that he/she is not subject to any disqualification, suspension, revocation, or cancellation as contained in Regulation 38-383.51 and that he/she does not have a driver's license from more than one State or jurisdiction.
(7) The applicant shall surrender his/her non CDL driver's licenses to the State.
(8) Provide the names of all States where the applicant has previously been licensed to drive any type of motor vehicle during the previous 10 years.
(9) If applying for a hazardous materials endorsement, comply with Transportation Security Administration requirements codified in 49 CFR Part 1572, and provide proof of citizenship or immigration status as specified in Table 1. A lawful permanent resident of the United States requesting a hazardous materials endorsement must additionally provide his or her Bureau of Citizenship and Immigration Services (BCTS) Alien registration number.
Table 1 to Regulation 38-383.71--List of Acceptable Proofs of Citizenship or Immigration
(b) License transfer. When applying to transfer a CDL from one State of domicile to a new State domicile, an applicant shall apply for a CDL from the new State of domicile within no more than 30 days after establishing his/her new domicile. The applicant shall:
(1) Provide to the new State of domicile the certifications contained in Regulation 38-383.71(a) (1) and (6):
(2) Provide to the new State of domicile updated information as specified in Subpart J of 38-382;
(3) If the applicant wishes to retain a hazardous materials endorsement, comply with State requirements as specified in Regulation 38-383.73(b)(4);
(4) Surrender the CDL from the old State of domicile to the new State of domicile; or
(5) Provide the names of all States where the applicant has previously been licensed to drive any type of motor vehicle during the previous 10 years;
(c) License renewal. When applying for a renewal of a CDL, all applicants shall:
(1) Provide certification contained in Regulation 38-383.71(a)(1);
(2) Provide update information as specified in Subpart J of 38-382;
(3) If a person wishes to retain a hazardous materials endorsement, he/she must comply with the requirements specified in Regulation 387.71(a)(9) and pass the test for such endorsement; and
(4) Provide the names of all States where the applicant has previously been licensed to drive any type of motor vehicle during the previous 10 years.
(d) License upgrades. When applying to operate a commercial motor vehicle in a different group or endorsement from the group or endorsement in which the applicant already has a CDL, all persons shall:
(1) Provide the necessary certifications as specified in Regulation 38-383.71(a) (1) and (a)(4);
(2) Pass all tests specified in Regulation 38-383.71(a) (2) and (a)(3) for the new vehicle group and/or different endorsements; and
(3) To obtain a hazardous materials endorsement, comply with the requirements for such endorsement specified in Regulation 387.71(a)(9).
(e) Nonresident CDL. When an applicant is domiciled in a foreign jurisdiction, as defined in Regulation 38-383.5, where the commercial motor vehicle operator testing and licensing standards do not meet the standards contained in Subparts G and H of 38-382, as determined by the Administrator, such applicant shall obtain a Nonresident CDL from a State which meets such standards. Such applicant shall:
(1) Complete the requirements to obtain a CDL contained in Regulation 38-383.71(a); and
(2) After receipt of the CDL, and for as long as it is valid, notify the State which issued the CDL of any adverse action taken by any jurisdiction or governmental agency, foreign or domestic, against his/ her driving privileges. Such adverse actions would include but not be limited to license suspension or revocation, or disqualification from operating a commercial motor vehicle for the convictions described in 38-383.51. Notifications shall be made within the time periods specified in Regulation 38-383.33.
(f) If a State uses the alternative method described in Regulation 38-383.73(i) to achieve the objectives of the certifications in Regulation 38-383.71(a), then the driver applicant shall satisfy such alternative methods as are applicable to him/her with respect to initial licensing, license transfer, license renewal, and license upgrades.
Any person who holds a CDL shall be deemed to have consented to such testing as is required of him/her by any State or jurisdiction in the enforcement of Regulation 38-383.51(b)(2)(i) and Regulation 38-392.5(a)(2). Consent is implied by driving a commercial motor vehicle.
(a) Initial licensure. Prior to issuing a CDL to a person, a State shall:
(1) Require the driver applicant to certify, pass tests, and provide information as described in Secs. 38-383.71(a) (1) through (6);
(2) Check that the vehicle in which the applicant takes his/her test is representative of the vehicle group the applicant has certified that he/she operates or expects to operate;
(3) Initiate and complete a check of the applicant's driving record to ensure that the person is not subject to any disqualification, suspensions, revocations, or cancellations as contained in Regulation 38-383.51 and that the person does not have a driver's license from more than one State. The record check shall include but not be limited to the following:
(i) A check of the applicant's driving record as maintained by his/ her current State of licensure, if any;
(ii) A check with the CDLIS to determine whether the driver applicant already has a CDL, whether the applicant's license has been suspended, revoked, or canceled, or if the applicant has been disqualified from operating a commercial motor vehicle; and
(iii) A check with the National Driver Register (NDR), when it is determined to be operational by the National Highway Traffic Safety Administrator, to determine whether the driver applicant has:
(A) Been disqualified from operating a motor vehicle (other than a commercial motor vehicle);
(B) Had a license (other than CDL) suspended, revoked, or canceled for cause in the 3 year period ending on the date of application; or
(C) Been convicted of any offenses contained in section 205(a)(3) of the National Drivers Register Act of 1982 (23 U.S.C. 401 note); and
(iv) A request for the applicant's complete driving record from all States where the applicant was previously licensed over the last 10 years to drive any type of motor vehicle. Exception: A State is only required to make the driving record check specified in this paragraph (a)(3) for drivers renewing a CDL for the first time after September 30, 2002, provided a notation is made on the driver's record confirming that the driver record check required by this paragraph (a)(3) has been made and noting the date it was done; and
(4) Require the driver applicant, if he/she has moved from another State, to surrender his/her driver's license issued by another State.
(5) For persons applying for a hazardous materials endorsement, require compliance with the standards for such endorsement specified in Regulation 387.71(a)(9).
(b) License transfers. Prior to issuing a CDL to a person who has a CDL from another State, a State shall:
(1) Require the driver applicant to make the certifications contained in Regulation 38-383.71(a);
(2) Complete a check of the driver applicant's record as contained in Regulation 38-383.73(a)(3);
(3) Request and receive updates of information specified in Subpart J of 38-382;
(4) If such applicant wishes to retain a hazardous materials endorsement, require compliance with standards for such endorsement specified in Regulation 38-383.71(a)(9) and ensure that the driver has, within the 2 years preceding the transfer, either:
(i) Passed the test for such endorsement specified in Regulation 38-383.121; or
(ii) Successfully completed a hazardous materials test or training that is given by a third party and that is deemed by the State to substantially cover the same knowledge base as that described in Regulation 38-383.121; and
(5) Obtain the CDL issued by the applicant's previous State of domicile.
(c) License Renewals. Prior to renewing any CDL a State shall:
(1) Require the driver applicant to make the certifications contained in Regulation 38-383.71(a);
(2) Complete a check of the driver applicant's record as contained in Regulation 38-383.73(a)(3);
(3) Request and receive updates of information specified in Subpart J of 38-382; and
(4) If such applicant wishes to retain a hazardous materials endorsement, require the driver to pass the test specified in Regulation 38-383.121 and comply with the standards specified in Regulation 38-383.71(a)(9) for such endorsement.
(d) License upgrades. Prior to issuing an upgrade of a CDL, a State shall:
(1) Require such driver applicant to provide certifications, pass tests, and meet applicable hazardous materials standards specified in Regulation 38-383.71(d); and
(2) Complete a check of the driver applicant's record as described in Regulation 38-383.73(a)(3).
(e) Nonresident CDL. A State may issue a Nonresident CDL to a person domiciled in a foreign country if the Administrator has determined that the commercial motor vehicle testing and licensing standards in the foreign jurisdiction of domicile do not meet the standards contained in 38-382. State procedures for the issuance of a nonresident CDL, for any modifications thereto, and for notifications to the CDLIS shall at a minimum be identical to those pertaining to any other CDL, with the following exceptions:
(1) If the applicant is requesting a transfer of his/her Nonresident CDL, the State shall obtain the Nonresident CDL currently held by the applicant and issued by another State;
(2) The State shall add the word "Nonresident" to the face of the CDL, in accordance with Regulation 38-383.153(b); and
(3) The State shall have established, prior to issuing any Nonresident CDL, the practical capability of disqualifying the holder of any Nonresident CDL, by withdrawing, suspending, canceling, and revoking his/her Nonresident CDL as if the Nonresident CDL were a CDL issued to a resident of the State.
(f) License issuance. After the State has completed the procedures described in Regulation 38-383.73(a), (b), (c), (d) or (e), it may issue a CDL to the driver applicant. The State shall notify the operator of the CDLIS of such issuance, transfer, renewal, or upgrade within the 10 day period beginning on the date of license issuance.
(g) Penalties for false information. If a State determines, in its check of an applicant's license status and record prior to issuing a CDL, or at any time after the CDL is issued, that the applicant has falsified information contained in Subpart J of 38-382 or any of the certifications required in Regulation 38-383.71(a), the State shall at a minimum suspend, cancel, or revoke the person's CDL or his/her pending application, or disqualify the person from operating a commercial motor vehicle for a period of at least 60 consecutive days.
(h) Reciprocity. A State shall allow any person who has a valid CDL which is not suspended, revoked, or canceled, and who is not disqualified from operating a commercial motor vehicle, to operate a commercial motor vehicle in the State.
(i) Alternative procedures. A State may implement alternative procedures to the certification requirements of Regulation 38-383.71(a) (1), (4), and (6), provided those procedures ensure that the driver meets the requirements of those paragraphs.
(a) Third party tests. A State may authorize a person (including another State, an employer, a private driver training facility or other private institution, or a department, agency or instrumentality of a local government) to administer the skills tests as specified in Subparts G and H of 38-382, if the following conditions are met:
(1) The tests given by the third party are the same as those which would otherwise be given by the State; and
(2) The third party as an agreement with the State containing, at a minimum, provisions that:
(i) Allow the FHWA, or its representative, and the State to conduct random examinations, inspections and audits without prior notice;
(ii) Require the State to conduct on site inspections at least annually;
(iii) Require that all third party examiners meet the same qualification and training standards as State examiners, to the extent necessary to conduct skills tests in compliance with Subparts G and H;
(iv) Require that, at least on an annual basis, State employees take the tests actually administered by the third party as if the State employee were a test applicant, or that States test a sample of drivers who were examined by the third party to compare pass/fail results; and
(v) Reserve unto the State the right to take prompt and appropriate remedial action against the third party testers in the event that the third party fails to comply with State or Federal standards for the CDL testing program, or with any other terms of the third party contract.
(b) Proof of testing by a third party. A driver applicant who takes and passes driving tests administered by an authorized third party shall provide evidence to the State licensing agency that he/she has successfully passed the driving tests administered by the third party.
At the discretion of a State, the driving skill test as specified in Regulation 38-383.113 may be waived for a CMV operator who is currently licensed at the time of his/her application for a CDL, and substituted with either an applicant's driving record and previous passage of an acceptable skills test, or an applicant's driving record in combination with certain driving experience. The State shall impose conditions and limitations to restrict the applicants from whom a State may accept alternative requirements for the skills test described in Regulation 38-383.113. Such conditions must require at least the following:
(a) An applicant must certify that, during the two year period immediately prior to applying for a CDL, he/she:
(1) Has not had more than one license (except in the instances specified in Regulation 38-383.21(b));
(2) Has not had any license suspended, revoked, or canceled;
(3) Has not had any convictions for any type of motor vehicle for the disqualifying offenses contained in Regulation 38-383.51(b)(2);
(4) Has not had more than one conviction for any type of motor vehicle for serious traffic violations; and
(5) Has not had any conviction for a violation of State or local law relating to motor vehicle traffic control (other than a parking violation) arising in connection with any traffic accident, and has no record of an accident in which he/she was at fault; and
(b) An applicant must provide evidence and certify that:
(1) He/she is regularly employed in a job requiring operation of a CMV, and that either:
(2) He/she has previously taken and passed a skills test given by a State with a classified licensing and testing system, and that the test was behind the wheel in a representative vehicle for that applicant's driver's license classification; or
(3) He/she has operated, for at least 2 years immediately preceding application for a CDL, a vehicle representative of the commercial motor vehicle the driver applicant operates or expects to operate.
(a) Vehicle group descriptions. Each driver applicant must possess and be tested on his/her knowledge and skills, described in Subpart G of 38-382, for the commercial motor vehicle group(s) for which he/she desires a CDL. The commercial motor vehicle groups are as follows:
(1) Combination vehicle (Group A) Any combination of vehicles with a gross combination weight rating (GCWR) of 11,794 kilograms or more (26,001 pounds or more) provided the GVWR of the vehicle(s) being towed is in excess of 4,536 kilograms (10,000 pounds).
(2) Heavy Straight Vehicle (Group B) Any single vehicle with a GVWR of 11,794 kilograms or more (26,001 pounds or more), or any such vehicle towing a vehicle not in excess of 4,536 kilograms (10,000 pounds) GVWR.
(3) Small Vehicle (Group C) Any single vehicle, or combination of vehicles, that meets neither the definition of Group A nor that of Group B, but that either is designed to transport 16 or more passengers including the driver, or is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act and which require the motor vehicle to be placarded under the Hazardous Materials Regulations (49 CFR part 172, Subpart F).
(b) Representative vehicle. For purposes of taking the driving test in accordance with Regulation 38-383.113, a representative vehicle for a given vehicle group contained in Regulation 38-383.91(a), is any commercial motor vehicle which meets the definition of that vehicle group.
(c) Relation between vehicle groups. Each driver applicant who desires to operate in a different commercial motor vehicle group from the one which his/her CDL authorizes shall be required to retake and pass all related tests, except the following:
(1) A driver who has passed the knowledge and skills tests for a combination vehicle (Group A) may operate a heavy straight vehicle (Group B) or a small vehicle (Group C), provided that he/she possesses the requisite endorsement(s); and
(2) A driver who has passed the knowledge and skills tests for a heavy straight vehicle (Group B) may operate any small vehicle (Group C), provided that he/she possesses the requisite endorsement(s).
(a) General. In addition to taking and passing the knowledge and skills tests described in Subpart G of 38-382, all persons who operate or expect to operate the type(s) of motor vehicles described in paragraph (b) shall take and pass specialized tests to obtain each endorsement. The State shall issue CDL endorsements only to drivers who successfully complete the tests.
(b) Endorsement descriptions. An operator must obtain State issued endorsements to his/her CDL to operate commercial motor vehicles which are:
(1) Double/triple trailers;
(2) Passenger vehicles;
(3) Tank vehicles; or
(4) Used to transport hazardous material as defined in Regulation 38-383.5.
(c) Endorsement testing requirements. The following tests are required for the endorsements contained in paragraph (b):
(a) If an applicant either fails the air brake component of the knowledge test, or performs the skills test in a vehicle not equipped with air brakes, the State shall indicate on the CDL, if issued, that the person is restricted from operating a CMV equipped with air brakes.
(b) For the purposes of the skills test and the restriction, air brakes shall include any braking system operating fully or partially on the air brake principle.
All drivers of commercial motor vehicles shall have knowledge and skills necessary to operate a commercial motor vehicle safely as contained in this Subpart. A sample of the specific types of items which a State may wish to include in the knowledge and skills tests that it administers to CDL applicants is included in the appendix to this Subpart G.
All commercial motor vehicle operators must have knowledge of the following general areas:
(a) Safe operations regulations. Driver related elements of the regulations contained in 49 CFR parts 391, 392, 38, 395, 396, and 397, such as: Motor vehicle inspection, repair, and maintenance requirements; procedures for safe vehicle operations; the effects of fatigue, poor vision, hearing, and general health upon safe commercial motor vehicle operation; the types of motor vehicles and cargoes subject to the requirements; and the effects of alcohol and drug use upon safe commercial motor vehicle operations.
(b) Commercial motor vehicle safety control systems. Proper use of the motor vehicle's safety system, including lights, horns, side and rear view mirrors, proper mirror adjustments, fire extinguishers, symptoms of improper operation revealed through instruments, motor vehicle operation characteristics, and diagnosing malfunctions. Commercial motor vehicle drivers shall have knowledge on the correct procedures needed to use these safety systems in an emergency situation, e.g., skids and loss of brakes.
(c) Safe vehicle control
(1) Control systems. The purpose and function of the controls and instruments commonly found on commercial motor vehicles.
(2) Basic control. The proper procedures for performing various basic maneuvers.
(3) Shifting. The basic shifting rules and terms, as well as shift patterns and procedures for common transmissions.
(4) Backing. The procedures and rules for various backing maneuvers.
(5) Visual search. The importance of proper visual search, and proper visual search methods.
(6) Communication. The principles and procedures for proper communications and the hazards of failure to signal properly.
(7) Speed management. The importance of understanding the effects of speed.
(8) Space management. The procedures and techniques for controlling the space around the vehicle.
(9) Night operation. Preparations and procedures for night driving.
(10) Extreme driving conditions. The basic information on operating in extreme driving conditions and the hazards that are encountered in extreme conditions.
(11) Hazard perceptions. The basic information on hazard perception and clues for recognition of hazards.
(12) Emergency maneuvers. The basic information concerning when and how to make emergency maneuvers.
(13) Skid control and recovery. The information on the causes and major types of skids, as well as the procedures for recovering from skids.
(d) Relationship of cargo to vehicle control. The principles and procedures for the proper handling of cargo.
(e) Vehicle inspections: The objectives and proper procedures for performing vehicle safety inspections, as follows:
(1) The importance of periodic inspection and repair to vehicle safety.
(2) The effect of undiscovered malfunctions upon safety.
(3) What safety related parts to look for when inspecting vehicles.
(4) Pre trip/enroute/post trip inspection procedures.
(5) Reporting findings.
(f) Hazardous materials knowledge, such as: What constitutes hazardous material requiring an endorsement to transport; classes of hazardous materials; labeling/placarding requirements; and the need for specialized training as a prerequisite to receiving the endorsement and transporting hazardous cargoes.
(g) Air brake knowledge as follows:
(1) Air brake system nomenclature;
(2) The dangers of contaminated air supply;
(3) Implications of severed or disconnected air lines between the power unit and the trailer(s);
(4) Implications of low air pressure readings;
(5) Procedures to conduct safe and accurate pre trip inspections.
(6) Procedures for conducting enroute and post trip inspections of air actuated brake systems, including ability to detect defects which may cause the system to fail.
(h) Operators for the combination vehicle group shall also have knowledge of:
(1) Coupling and uncoupling: The procedures for proper coupling and uncoupling a tractor to semi trailer.
(2) Vehicle inspection: The objectives and proper procedures that are unique for performing vehicle safety inspections on combination vehicles.
(a) Basic vehicle control skills. All applicants for a CDL must possess and demonstrate basic motor vehicle control skills for each vehicle group which the driver operates or expects to operate. These skills should include the ability to start, to stop, and to move the vehicle forward and backward in a safe manner.
(b) Safe driving skills. All applicants for a CDL must possess and demonstrate the safe driving skills for their vehicle group. These skills should include proper visual search methods, appropriate use of signals, speed control for weather and traffic conditions, and ability to position the motor vehicle correctly when changing lanes or turning.
(c) Air brake skills. Except as provided in Regulation 38-393.95, all applicants shall demonstrate the following skills with respect to inspection and operation of air brakes:
(1) Pre trip inspection skills. Applicants shall demonstrate the skills necessary to conduct a pre trip inspection which includes the ability to:
(i) Locate and verbally identify air brake operating controls and monitoring devices;
(ii) Determine the motor vehicle's brake system condition for proper adjustments and that air system connections between motor vehicles have been properly made and secured;
(iii) Inspect the low pressure warning device(s) to ensure that they will activate in emergency situations;
(iv) Ascertain, with the engine running, that the system maintains an adequate supply of compressed air;
(v) Determine that required minimum air pressure build up time is within acceptable limits and that required alarms and emergency devices automatically deactivate at the proper pressure level; and
(vi) Operationally check the brake system for proper performance.
(2) Driving skills. Applicants shall successfully complete the skills tests contained in Regulation 38-383.113 in a representative vehicle equipped with air brakes.
(d) Test area. Skills tests shall be conducted in on street conditions or under a combination of on street and off street conditions.
(e) Simulation technology. A State may utilize simulators to perform skills testing, but under no circumstances as a substitute for the required testing in on street conditions.
38-383.115. Requirements for double/triple trailers endorsement.
In order to obtain a Double/Triple Trailers endorsement each applicant must have knowledge covering:
(a) Procedures for assembly and hookup of the units;
(b) Proper placement of heaviest trailer;
(c) Handling and stability characteristics including off tracking, response to steering, sensory feedback, braking, oscillatory sway, rollover in steady turns, yaw stability in steady turns; and
(d) Potential problems in traffic operations, including problems the motor vehicle creates for other motorists due to slower speeds on steep grades, longer passing times, possibility for blocking entry of other motor vehicles on freeways, splash and spray impacts, aerodynamic buffeting, view blockages, and lateral placement.
38-383.117. Requirements for passenger endorsement.
An applicant for the passenger endorsement must satisfy both of the following additional knowledge and skills test requirements.
(a) Knowledge test. All applicants for the passenger endorsement must have knowledge covering at least the following topics:
(1) Proper procedures for loading/unloading passengers;
(2) Proper use of emergency exits, including push out windows;
(3) Proper responses to such emergency situations as fires and unruly passengers;
(4) Proper procedures at railroad crossings and drawbridges; and
(5) Proper braking procedures.
(b) Skills test. To obtain a passenger endorsement applicable to a specific vehicle group, an applicant must take his/her skills test in a passenger vehicle satisfying the requirements of that group as defined in Regulation 38-383.91.
38-383.119. Requirements for tank vehicle endorsement.
In order to obtain a Tank Vehicle Endorsement, each applicant must have knowledge covering the following:
(a) Causes, prevention, and effects of cargo surge on motor vehicle handling;
(b) Proper braking procedures for the motor vehicle when it is empty, full and partially full;
(c) Differences in handling of baffled/compartmental tank interiors versus non baffled motor vehicles;
(d) Differences in tank vehicle type and construction;
(e) Differences in cargo surge for liquids of varying product densities;
(f) Effects of road grade and curvature on motor vehicle handling with filled, half filled and empty tanks;
(g) Proper use of emergency systems; and
(h) For drivers of DOT specification tank vehicles, retest and marking requirements.
38-383.121. Requirements for hazardous materials endorsement.
In order to obtain a Hazardous Material Endorsement each applicant must have such knowledge as is required of a driver of a hazardous materials laden vehicle, from information contained in 49 CFR parts 171, 172, 173, 177, 178, and 397 on the following:
(a) Hazardous materials regulations including:
(1) Hazardous materials table;
(2) Shipping paper requirements;
(3) Marking;
(4) Labeling;
(5) Placarding requirements;
(6) Hazardous materials packaging;
(7) Hazardous materials definitions and preparation;
(8) Other regulated material (e.g., ORM D);
(9) Reporting hazardous materials accidents; and
(10) Tunnels and railroad crossings.
(b) Hazardous materials handling including:
(1) Forbidden Materials and Packages;
(2) Loading and Unloading Materials;
(3) Cargo Segregation;
(4) Passenger Carrying Buses and Hazardous Materials;
(5) Attendance of Motor Vehicles;
(6) Parking;
(7) Routes;
(8) Cargo Tanks; and
(9) "Safe Havens."
(c) Operation of emergency equipment including:
(1) Use of equipment to protect the public;
(2) Special precautions for equipment to be used in fires;
(3) Special precautions for use of emergency equipment when loading or unloading a hazardous materials laden motor vehicle; and
(4) Use of emergency equipment for tank vehicles.
(d) Emergency response procedures including:
(1) Special care and precautions for different types of accidents;
(2) Special precautions for driving near a fire and carrying hazardous materials, and smoking and carrying hazardous materials;
(3) Emergency procedures; and
(4) Existence of special requirements for transporting Class A and B explosives.
Appendix to Subpart G: Required Knowledge and Skills--Sample Guidelines
The following is a sample of the specific types of items which a State may wish to include in the knowledge and skills tests that it administers to CDL applicants. This appendix closely follows the framework of Regulation 38-383.111 and 38-383.113. It is intended to provide more specific guidance and suggestion to States. Additional detail in this appendix is not binding and States may depart from it at their discretion provided their CDL program tests for the general areas of knowledge and skill specified in Regulation 38-383.111 and 38-383.113.
Examples of specific knowledge elements
(a) Safe operations regulations. Driver related elements of the following regulations:
(1) Motor vehicle inspection, repair, and maintenance requirements as contained in parts 38-393 and 38-396;
(2) Procedures for safe vehicle operations as contained in part 38-392;
(3) The effects of fatigue, poor vision, hearing, and general health upon safe commercial motor vehicle operation as contained in parts 38-391, 38-392, and 395;
(4) The types of motor vehicles and cargoes subject to the requirements contained in part 397; and
(5) The effects of alcohol and drug use upon safe commercial motor vehicle operations as contained in parts 38-391 and 395.e
(b) Commercial motor vehicle safety control systems. Proper use of the motor vehicle's safety system, including lights, horns, side and rear view mirrors, proper mirror adjustments, fire extinguishers, symptoms of improper operation revealed through instruments, motor vehicle operation characteristics, and diagnosing malfunctions. Commercial motor vehicle drivers shall have knowledge on the correct procedures needed to use these safety systems in an emergency situation, e.g., skids and loss of brakes.
(c) Safe vehicle control
(1) Control systems. The purpose and function of the controls and instruments commonly found on commercial motor vehicles.
(2) Basic control. The proper procedures for performing various basic maneuvers, including:
(i) Starting, warming up, and shutting down the engine;
(ii) Putting the vehicle in motion and stopping;
(iii) Backing in a straight line; and
(iv) Turning the vehicle, e.g., basic rules, off tracking, right/left turns and right curves.
(3) Shifting. The basic shifting rules and terms, as well as shift patterns and procedures for common transmissions, including:
(i) Key elements of shifting, e.g., controls, when to shift and double clutching;
(ii) Shift patterns and procedures; and
(iii) Consequences of improper shifting.
(4) Backing. The procedures and rules for various backing maneuvers, including:
(i) Backing principles and rules; and
(ii) Basic backing maneuvers, e.g., straight line backing, and backing on a curved path.
(5) Visual search. The importance of proper visual search, and proper visual search methods, including:
(i) Seeing ahead and to the sides;
(ii) Use of mirrors; and
(iii) Seeing to the rear.
(6) Communication. The principles and procedures for proper communications and the hazards of failure to signal properly, including:
(i) Signaling intent, e.g., signaling when changing speed or direction in traffic;
(ii) Communicating presence, e.g., using horn or lights to signal presence; and
(iii) Misuse of communications.
(7) Speed management. The importance of understanding the effects of speed, including:
(i) Speed and stopping distance;
(ii) Speed and surface conditions;
(iii) Speed and the shape of the road;
(iv) Speed and visibility; and
(v) Speed and traffic flow.
(8) Space management. The procedures and techniques for controlling the space around the vehicle, including:
(i) The importance of space management;
(ii) Space cushions, e.g., controlling space ahead/to the rear;
(iii) Space to the sides; and
(iv) Space for traffic gaps.
(9) Night operation. Preparations and procedures for night driving, including:
(i) Night driving factors, e.g., driver factors, (vision, glare, fatigue, inexperience), roadway factors, (low illumination, variation in illumination, familiarity with roads, other road users, especially drivers exhibiting erratic or improper driving), vehicle factors (headlights, auxiliary lights, turn signals, windshields and mirrors); and
(ii) Night driving procedures, e.g., preparing to drive at night and driving at night.
(10) Extreme driving conditions. The basic information on operating in extreme driving conditions and the hazards that are encountered in extreme conditions, including:
(i) Adverse weather;
(ii) Hot weather; and
(iii) Mountain driving.
(11) Hazard perceptions. The basic information on hazard perception and clues for recognition of hazards, including:
(i) Importance of hazards recognition;
(ii) Road characteristics; and
(iii) Road user activities.
(12) Emergency maneuvers. The basic information concerning when and how to make emergency maneuvers, including:
(i) Evasive steering;
(ii) Emergency stop;
(iii) Off road recovery;
(iv) Brake failure; and
(v) Blowouts.
(13) Skid control and recovery. The information on the causes and major types of skids, as well as the procedures for recovering from skids.
(d) Relationship of cargo to vehicle control. The principles and procedures for the proper handling of cargo, including:
(1) The importance of proper cargo handling, e.g., consequences of improperly secured cargo, drivers' responsibilities, Federal/State and local regulations.
(2) Principles of weight distribution.
(3) Principles and methods of cargo securement.
(e) Vehicle inspections: The objectives and proper procedures for performing vehicle safety inspections, as follows:
(1) The importance of periodic inspection and repair to vehicle safety and to prevention of enroute breakdowns.
(2) The effect of undiscovered malfunctions upon safety.
(3) What safety related parts to look for when inspecting vehicles, e.g., fluid leaks, interference with visibility, bad tires, wheel and rim defects, braking system defects, steering system defects, suspension system defects, exhaust system defects, coupling system defects, and cargo problems.
(4) Pre trip/enroute/post trip inspection procedures.
(5) Reporting findings.
(f) Hazardous materials knowledge, as follows:
(1) What constitutes hazardous material requiring an endorsement to transport; and
(2) Classes of hazardous materials, labeling/ placarding requirements, and the need for specialized training as a prerequisite to receiving the endorsement and transporting hazardous cargoes.
(g) Air brake knowledge as follows:
(1) General air brake system nomenclature;
(2) The dangers of contaminated air (dirt, moisture and oil) supply;
(3) Implications of severed or disconnected air lines between the power unit and the trailer(s);
(4) Implications of low air pressure readings;
(5) Procedures to conduct safe and accurate pre trip inspections, including knowledge about:
(i) Automatic fail safe devices;
(ii) System monitoring devices; and
(iii) Low pressure warning alarms.
(6) Procedures for conducting enroute and post trip inspections of air actuated brake systems, including ability to detect defects which may cause the system to fail, including:
(i) Tests which indicate the amount of air loss from the braking system within a specified period, with and without the engine running; and
(ii) Tests which indicate the pressure levels at which the low air pressure warning devices and the tractor protection valve should activate.
(h) Operators for the combination vehicle group shall also have knowledge of:
(1) Coupling and uncoupling. The procedures for proper coupling and uncoupling a tractor to semi trailer.
(2) Vehicle inspection. The objectives and proper procedures that are unique for performing vehicle safety inspections on combination vehicles.
Examples of Specific Skills Elements
These examples relate to paragraphs (a) and (b) of Regulation 38-383.113 only.
(a) Basic vehicle control skills. All applicants for a CDL must possess and demonstrate the following basic motor vehicle control skills for each vehicle group which the driver operates or expects to operate. These skills shall include:
(1) Ability to start, warm up, and shut down the engine;
(2) Ability to put the motor vehicle in motion and accelerate smoothly, forward and backward;
(3) Ability to bring the motor vehicle to a smooth stop;
(4) Ability to back the motor vehicle in a straight line, and check path and clearance while backing;
(5) Ability to position the motor vehicle to negotiate and then make left and right turns;
(6) Ability to shift as required and select appropriate gear for speed and highway conditions;
(7) Ability to back along a curved path; and
(8) Ability to observe the road and the behavior of other motor vehicles, particularly before changing speed and direction.
(b) Safe driving skills. All applicants for a CDL must possess and demonstrate the following safe driving skills for any vehicle group. These skills shall include:
(1) Ability to use proper visual search methods.
(2) Ability to signal appropriately when changing speed or direction in traffic.
(3) Ability to adjust speed to the configuration and condition of the roadway, weather and visibility conditions, traffic conditions, and motor vehicle, cargo and driver conditions;
(4) Ability to choose a safe gap for changing lanes, passing other vehicles, as well as for crossing or entering traffic;
(5) Ability to position the motor vehicle correctly before and during a turn to prevent other vehicles from passing on the wrong side as well as to prevent problems caused by off tracking;
(6) Ability to maintain a safe following distance depending on the condition of the road, on visibility, and on vehicle weight; and
(7) Ability to adjust operation of the motor vehicle to prevailing weather conditions including speed selection, braking, direction changes and following distance to maintain control.
Subpart H: Tests
Source: 53 FR 27657, July 21, 1988, unless otherwise noted.
(a) Driver information manuals. Information on how to obtain a CDL and endorsements shall be included in manuals and made available by States to CDL applicants. All information provided to the applicant shall include the following:
(1) Information on the requirements described in Regulation 38-383.71, the implied consent to alcohol testing described in Regulation 38-383.72, the procedures and penalties, contained in Regulation 38-383.51(b) to which a CDL holder is exposed for refusal to comply with such alcohol testing, State procedures described in Regulation 38-383.73, and other appropriate driver information contained in Subpart E of 38-382;
(2) Information on vehicle groups and endorsements as specified in Subpart F of 38-382;
(3) The substance of the knowledge and skills which drivers shall have as outlined in Subpart G of 38-382 for the different vehicle groups and endorsements;
(4) Details of testing procedures, including the purpose of the tests, how to respond, any time limits for taking the test, and any other special procedures determined by the State of issuance; and
(5) Directions for taking the tests.
(b) Examiner procedures. A State shall provide to test examiners details on testing and any other State imposed requirements in the examiner's manual, and shall ensure that examiners are qualified to administer tests on the basis of training and/or other experience. States shall provide standardized scoring sheets for the skills tests, as well as standardized driving instructions for the applicants. Such examiners' manuals shall contain the following:
(1) Information on driver application procedures contained in Regulation 38-383.71, State procedures described in Regulation 38-383.73, and other appropriate driver information contained in Subpart E of 38-382;
(2) Details on information which must be given to the applicant;
(3) Details on how to conduct the tests;
(4) Scoring procedures and minimum passing scores;
(5) Information for selecting driving test routes;
(6) List of the skills to be tested;
(7) Instructions on where and how the skills will be tested;
(8) How performance of the skills will be scored; and
(a) All tests shall be constructed in such a way as to determine if the applicant possesses the required knowledge and skills contained in Subpart G of 38-382 for the type of motor vehicle or endorsement the applicant wishes to obtain.
(b) States shall develop their own specifications for the tests for each vehicle group and endorsement which must be at least as stringent as the Federal standards.
(c) States shall determine specific methods for scoring the knowledge and skills tests.
(d) Passing scores must meet those standards contained in Regulation 38-383.135.
(e) Knowledge and skills tests shall be based solely on the information contained in the driver manuals referred to in Regulation 38-383.131(a).
(f) Each knowledge test shall be valid and reliable so as to assure that driver applicants possess the knowledge required under Regulation 38-383.111.
(g) Each basic knowledge test, i.e., the test covering the areas referred to in Regulation 38-383.111 for the applicable vehicle group, shall contain at least 30 items, exclusive of the number of items testing air brake knowledge. Each endorsement knowledge test, and the air brake component of the basic knowledge test as described in Regulation 38-383.111(g), shall contain a number of questions that is sufficient to test the driver applicant's knowledge of the required subject matter with validity and reliability.
(h) The skills tests shall have administrative procedures, designed to achieve inter-examiner reliability, that are sufficient to ensure fairness of pass/fail rates.
(a) The driver applicant must correctly answer at least 80 percent of the questions on each knowledge test in order to achieve a passing score on such knowledge test.
(b) To achieve a passing score on the skills test, the driver applicant must demonstrate that he/she can successfully perform all of the skills listed in Regulation 38-383.113.
(c) If the driver applicant does not obey traffic laws, or causes an accident during the test, he/she shall automatically fail the test.
(d) The scoring of the basic knowledge and skills tests shall be adjusted as follows to allow for the air brake restriction (Regulation 38-383.95):
(1) If the applicant scores less than 80 percent on the air brake component of the basic knowledge test as described in Regulation 38-383.111(g), the driver will have failed the air brake component and, if the driver is issued a CDL, an air brake restriction shall be indicated on the license; and
(2) If the applicant performs the skills test in a vehicle not equipped with air brakes, the driver will have omitted the air brake component as described in Regulation 38-383.113(c) and, if the driver is issued a CDL, the air brake restriction shall be indicated on the license.
Subpart I: Requirement for Transportation Security Administration Approval of Hazardous Materials Endorsement Issuances
(a) Applicability date. Beginning on January 31, 2005, 38-383 applies to State agencies responsible for issuing hazardous materials endorsements for a CDL, and applicants for such endorsements.
(b) Prohibition. A State may not issue, renew, upgrade, or transfer a hazardous materials endorsement for a CDL to any individual authorizing that individual to operate a commercial motor vehicle transporting a hazardous material in commerce unless the Transportation Security Administration has determined that the individual does not pose a security risk warranting denial of the endorsement.
(c) Individual notification. At least 180 days before the expiration date of the CDL or hazardous materials endorsement, a State must notify the holder of a hazardous materials endorsement that the individual must pass a Transportation Security Administration security screening process as part of any application for renewal of the hazardous materials endorsement. The notice must advise a driver that, in order to expedite the security screening process, he or she should file a renewal application as soon as possible, but not later than 90 days before the date of expiration of the endorsement. An individual who does not successfully complete the Transportation Security Administration security screening process referenced in paragraph (b) may not be issued a hazardous materials endorsement.
(d) Hazardous materials endorsement renewal cycle. Each State must require that hazardous materials endorsements be renewed every 5 years or less so that individuals are subject to a Transportation Security Administration security screening requirement referenced in paragraph (b) at least every 5 years.
Subpart J: Commercial Driver's License Document
Source: 53 FR 27657, July 21, 1988, unless otherwise noted.
The CDL shall be a document that is easy to recognize as a CDL. At a minimum, the document shall contain information specified in Regulation 38-383.153.
38-383.153. Information on the document and application.
(a) All CDLs shall contain the following information:
(1) The prominent statement that the license is a "Commercial Driver's License" or "CDL," except as specified in Regulation 38-383.153(b).
(2) The full name, signature, and mailing address of the person to whom such license is issued;
(3) Physical and other information to identify and describe such person including date of birth (month, day, and year), sex, and height;
(4) Color photograph of the driver;
(5) The driver's State license number;
(6) The name of the State which issued the license;
(7) The date of issuance and the date of expiration of the license;
(8) The group or groups of commercial motor vehicle(s) that the driver is authorized to operate, indicated as follows:
(i) A for Combination Vehicle;
(ii) B for Heavy Straight Vehicle; and
(iii) C for Small Vehicle.
(9) The endorsement(s) for which the driver has qualified, if any, indicated as follows:
(i) T for double/triple trailers;
(ii) P for passenger;
(iii) N for tank vehicle;
(iv) H for hazardous materials;
(v) X for a combination of the tank vehicle and hazardous materials endorsements; and
(vi) At the discretion of the State, additional codes for additional groupings of endorsements, as long as each such discretionary code is fully explained on the front or back of the CDL document.
(b) If the CDL is a Nonresident CDL, it shall contain the prominent statement that the license is a "Nonresident Commercial Driver's License" or "Nonresident CDL." The word "Nonresident" must be conspicuously and unmistakably displayed, but may be noncontiguous with the words "Commercial Driver's License" or "CDL."
(c) If the State has issued the applicant an air brake restriction as specified in Regulation 38-383.95, that restriction must be indicated on the license.
(d) Except in the case of a Nonresident CDL:
(1) A driver applicant must provide his/her Social Security Number on the application of a CDL; and
(2) The State must provide the Social Security Number to the CDLIS.
States shall make the CDL tamperproof to the maximum extent practicable. At a minimum, a State shall use the same tamperproof method used for noncommercial drivers' licenses.
(a) The rules in regulation B of this chapter are applicable to all employers, employees, and commercial motor vehicles, which transport property or passengers in intrastate commerce.
(b) The rules in Part 38-383, Commercial Driver's License Standards; Requirements and Penalties, are applicable to every person who operates a commercial motor vehicle, as defined in Regulation 38-383.5 of this regulation, in interstate or intrastate commerce and to all employers of such persons.
(c) [Reserved]
(d) Additional requirements. Nothing in regulation B of this chapter shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health.
(e) Knowledge of and compliance with the regulations.
(1) Every employer shall be knowledgeable of and comply with all regulations contained in this regulation which are applicable to that motor carrier's operations.
(2) Every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations contained in this regulation.
(3) All motor vehicle equipment and accessories required by this regulation shall be maintained in compliance with all applicable performance and design criteria set forth in this regulation.
Unless specifically defined elsewhere, in this regulation:
Accident means:
(1) Except as provided in paragraph (2) of this definition, an occurrence involving a commercial motor vehicle operating on a public road in interstate or intrastate commerce which results in:
(i) A fatality;
(ii) Bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
(iii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
(2) The term accident does not include:
(i) An occurrence involving only boarding and alighting from a stationary motor vehicle; or
(ii) An occurrence involving only the loading or unloading of cargo; or
Alcohol concentration (AC) means the concentration of alcohol in a person's blood or breath. When expressed as a percentage it means grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
Business district means the territory contiguous to and including a highway when within any 600 feet along such highway there are buildings in use for business or industrial purposes, including but not limited to hotels, banks, or office buildings which occupy at least 300 feet of frontage on one side or 300 feet collectively on both sides of the highway.
Commercial motor vehicle means any self propelled or towed vehicle used on public highways in interstate or intrastate commerce to transport passengers or property when the vehicle:
(1) Has a gross vehicle weight rating or gross combination weight rating of (26,001 or more pounds); or more and is engaged solely in the intrastate transportation of unmanufactured forest products; or
(2) Is designed to transport more than 8 passengers, including the driver for compensation; or
(3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
(4) Is used in transporting hazardous materials in a quantity requiring placarding under regulations issued by the Secretary under the Hazardous Materials Transportation Act (49 U.S.C. 5101 et. seq.).
Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person's appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated.
Disabling damage means damage which precludes departure of a motor vehicle from the scene of the accident in its usual manner in daylight after simple repairs.
(1) Inclusions: Damage to motor vehicles that could have been driven, but would have been further damaged if so driven.
(2) Exclusions:
(i) Damage which can be remedied temporarily at the scene of the accident without special tools or parts.
(ii) Tire disablement without other damage even if no spare tire is available.
(iii) Headlamp or taillight damage.
(iv) Damage to turn signals, horn, or windshield wipers which makes them inoperative.
Driveaway towaway operation means any operation in which a motor vehicle constitutes the commodity being transported and one or more set of wheels of the motor vehicle being transported are on the surface of the roadway during transportation.
Driver means any person who operates any commercial motor vehicle.
Driving a commercial motor vehicle while under the influence of alcohol means committing any one or more of the following acts in a CMV: Driving a CMV while the person's alcohol concentration is 0.04 percent or more; driving under the influence of alcohol, as prescribed by State law; or refusal to undergo such testing as is required by any State or jurisdiction in the enforcement of Regulation 38-383.51(b)(2)(i)(A) or (B), or Regulation 38-392.5(a)(2).
Emergency means any hurricane, tornado, storm (e.g. thunderstorm, snowstorm, ice storm, blizzard, sandstorm, etc.) high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, mud slide, drought, forest fire, explosion, blackout or other occurrence, natural or man-made, which interrupts the delivery of essential services (such as, electricity, medical care, sewer, water, telecommunications, and telecommunication transmissions) or essential supplies (such as, food and fuel) or otherwise immediately threatens human life or public welfare, provided such hurricane, tornado, or other event results in:
(1) A declaration of an emergency by the President of the United States, the Governor of a State, or their authorized representatives having authority to declare emergencies; by the FMCSA Field Administrator for the geographical area in which the occurrence happens, or by other Federal, State or local government officials having authority to declare emergencies, or
(2) A request by a police officer for tow trucks to move wrecked or disabled motor vehicles.
Emergency relief means an operation in which a motor carrier or driver of a commercial motor vehicle is providing direct assistance to supplement State and local efforts and capabilities to save lives or property or to protect public health and safety as a result of an emergency.
Employee means any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler. Such term does not include an employee of the United States, any State, any political subdivision of a State, or any agency established under a compact between States and approved by the Congress of the United States who is acting within the course of such employment.
Employer means any person engaged in a business affecting interstate or intrastate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it, but such terms does not include the United States, any State, any political subdivision of a State, or an agency established under a compact between States approved by the Congress of the United States.
Farm vehicle driver means a person who drives only a commercial motor vehicle that is
(a) Controlled and operated by a farmer as a private motor carrier of property;
(b) Being used to transport either
(1) Agricultural products, or
(2) Farm machinery, farm supplies, or both, to or from a farm;
(c) Not being used in the operation of a for hire motor carrier;
(d) Not carrying hazardous materials of a type or quantity that requires the commercial motor vehicle to be placarded in accordance with Section 177.823 of the Federal Motor Carrier Safety Administration's hazardous materials regulations, and
(e) Being used within 150 air miles of the farmer's farm.
Farmer means any person who operates a farm or is directly involved in the cultivation of land, crops, or livestock which
(a) Are owned by that person; or
(b) Are under the direct control of that person.
Fatality means any injury which results in the death of a person at the time of the motor vehicle accident or within 30 days of the accident.
Federal Motor Carrier Safety Administration means the chief executive of the Federal Motor Carrier Safety Administration, an agency within the Department of Transportation.
Gross combination weight rating (GCWR) means the value specified by the manufacturer as the loaded weight of a combination (articulated) motor vehicle. In the absence of a value specified by the manufacturer, GCWR will be determined by adding the GVWR of the power unit and the total weight of the towed unit and any load thereon.
Gross vehicle weight rating (GVWR) means the value specified by the manufacturer as the loaded weight of a single motor vehicle.
Hazardous material means a substance or material which has been determined by the Secretary of Transportation to be capable of posing an unreasonable risk to health, safety, and property when transported in commerce, and which has been so designated.
Hazardous substance means a material, and its mixtures or solutions, that is identified in the appendix to Section 172.101 of the Federal Motor Carrier Safety Administration's hazardous materials regulations, List of Hazardous Substances and Reportable Quantities, when offered for transportation in one package, or in one transport motor vehicle if not packaged, and when the quantity of the material therein equals or exceeds the reportable quantity (RQ). This definition does not apply to petroleum products that are lubricants or fuels, or to mixtures or solutions of hazardous substances if in a concentration less than that shown in the table in Section 171.8 of the Federal Motor Carrier Safety Administration's hazardous materials regulations based on the reportable quantity (RQ) specified for the materials listed in the appendix to Section 172.101 of the Federal Motor Carrier Safety Administration's hazardous materials regulations.
Hazardous waste means any material that is subject to the hazardous waste manifest requirements of the EPA specified in 40 CFR part 262 or would be subject to these requirements absent an interim authorization to a State under 40 CFR part 123, Subpart F.
Highway means any road, street, or way, whether on public or private property, open to public travel. "Open to public travel" means that the road section is available, except during scheduled periods, extreme weather or emergency conditions, passable by four-wheel standard passenger cars, and open to the general public for use without restrictive gates, prohibitive signs, or regulation other than restrictions based on size, weight, or class of registration. Toll plazas of public toll roads are not considered restrictive gates.
Interstate commerce means trade, traffic, or transportation in the United States-
(1) Between a place in a State and a place outside of such State (including a place outside of the United States);
(2) Between two places in a State through another State or a place outside of the United States; or
(3) Between two places in a State as part of trade, traffic, or transportation origination or terminating outside the State or the United States.
Intrastate commerce means any trade, traffic, or transportation in any State which is not described in the term "interstate commerce."
Medical examiner means a person who is licensed, certified, and/or registered, in accordance with applicable State laws and regulations, to perform physical examinations. The term includes but is not limited to, doctors of medicine, doctors of osteopathy, physician assistants, advanced practice nurses, and doctors of chiropractic.
Motor carrier means a for hire motor carrier or a private motor carrier. The term includes a motor carrier's agents, officers and representatives as well as employees responsible for hiring, supervising, training, assigning, or dispatching of drivers and employees concerned with the installation, inspection, and maintenance of motor vehicle equipment and/or accessories. For purposes of regulation B, this definition includes the terms employer, and exempt motor carrier.
Motor vehicle means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, or any combination thereof determined by the Federal Highway Administration, but does not include any vehicle, locomotive, or car operated exclusively on a rail or rails, or a trolley bus operated by electric power derived from a fixed overhead wire, furnishing local passenger transportation similar to street railway service.
Operator See driver.
Other terms: Any other term used in this regulation is used in its commonly accepted meaning, except where such other term has been defined elsewhere in this regulation. In that event, the definition therein given shall apply.
Out of service order means a declaration by an authorized enforcement officer of a Federal, State, Canadian, Mexican, or local jurisdiction that a driver, a commercial motor vehicle, or a motor carrier operation, is out of service pursuant to Secs. 386.72, 38-392.5, 38-396.9, or compatible laws, or the North American Uniform Out of Service Criteria.
Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.
Previous employer means any DOT regulated person who employed the driver in the preceding 3 years, including any possible current employer.
Principal place of business means a single location designated by the motor carrier, normally its headquarters, where records required by parts 38-390 and 38-391 of this regulation will be maintained and where records required by part 38-382 must be made available for inspection within two business days after a request has been made by an authorized representative of the Federal/State Government.
Private motor carrier means a person who provides transportation of property or passengers, by commercial motor vehicle, and is not a for hire motor carrier.
Private motor carrier of passengers (business) means a private motor carrier engaged in the interstate transportation of passengers which is provided in the furtherance of a commercial enterprise and is not available to the public at large.
Private motor carrier of passengers (non-business) means private motor carrier involved in the interstate transportation of passengers that does not otherwise meet the definition of a private motor carrier of passengers (business).
Radar detector means any device or mechanism to detect the emission of radio microwaves, laser beams or any other future speed measurement technology employed by enforcement personnel to measure the speed of commercial motor vehicles upon public roads and highways for enforcement purposes. Excluded from this definition are radar detection devices that meet both of the following requirements:
(1) Transported outside the driver's compartment of the commercial motor vehicle. For this purpose, the driver's compartment of a passenger carrying CMV shall include all space designed to accommodate both the driver and the passengers; and
(2) Completely inaccessible to, inoperable by, and imperceptible to the driver while operating the commercial motor vehicle.
Residential district means the territory adjacent to and including a highway which is not a business district and for a distance of 300 feet or more along the highway is primarily improved with residences.
State means a State of the United States and the District of Columbia and includes a political subdivision of a State.
Trailer includes:
(a) Full trailer means any motor vehicle other than a pole trailer which is designed to be drawn by another motor vehicle and so constructed that no part of its weight, except for the towing device, rests upon the self propelled towing motor vehicle. A semi trailer equipped with an auxiliary front axle (converter dolly) shall be considered a full trailer.
(b) Pole trailer means any motor vehicle which is designed to be drawn by another motor vehicle and attached to the towing motor vehicle by means of a "reach" or "pole," or by being "boomed" or otherwise secured to the towing motor vehicle, for transporting long or irregularly shaped loads such as poles, pipes, or structural members, which generally are capable of sustaining themselves as beams between the supporting connections.
(c) Semi trailer means any motor vehicle, other than a pole trailer, which is designed to be drawn by another motor vehicle and is constructed so that some part of its weight rests upon the self propelled towing motor vehicle.
Truck means any self propelled commercial motor vehicle except a truck tractor, designed and/or used for the transportation of property.
Truck tractor means a self propelled commercial motor vehicle designed and/or used primarily for drawing other vehicles.
Unmanufactured Forest Products means logs, pulpwood, woodchips, bark, sawmill wood waste, stumps, pine straw and un-machined posts. This definition includes the movement of machinery and equipment:
(a) To produce unmanufactured forest products; and
Except as otherwise specifically indicated, regulation B of this chapter is not intended to preclude States or subdivisions thereof from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations by the person subject thereto.
38-390.11. Motor carrier to require observance of driver regulations.
Whenever in this regulation a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.
No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.
38-390.15. Assistance in investigations and special studies.
(a) A motor carrier shall make all records and information pertaining to an accident available to an authorized representative or special agent of the Federal Highway Administration upon request or as part of any inquiry within such time as the request or inquiry may specify. A motor carrier shall give an authorized representative of the Federal Highway Administration all reasonable assistance in the investigation of any accident including providing a full, true and correct answer to any question of the inquiry.
(b) Motor carriers shall maintain for a period of one year after an accident occurs, an accident register containing at least the following information:
(1) A list of accidents containing for each accident:
(i) Date of accident,
(ii) City or town in which or most near where the accident occurred and the State in which the accident occurred,
(iii) Driver name,
(iv) Number of injuries,
(v) Number of fatalities, and
(vi) Whether hazardous materials, other than fuel spilled from the fuel tanks of motor vehicles involved in the accident, were released.
(2) Copies of all accident reports required by State or other governmental entities or insurers.
Nothing in this regulation shall be construed to prohibit the use of additional equipment and accessories, not inconsistent with or prohibited by this regulation, provided such equipment and accessories do not decrease the safety of operation of the commercial motor vehicles on which they are used.
(a) General. Every self propelled commercial motor vehicle operated in interstate or intrastate commerce and subject to the rules of regulation B of this chapter must be marked as specified in paragraphs (b), (c) and (d).
(b) Nature of marking. The marking must display the following information:
(1) The legal name or a single trade name of the motor carrier operating the self-propelled CMV.
(2) [Reserved]
(3) If the name of any person other than the operating carrier appears on the commercial motor vehicle operated under its own power, either alone or in combination, the name of the operating carrier shall be followed by the information required by paragraphs (b)(1), (2), and (3), and be preceded by the words "operated by."
(4) Other identifying information may be displayed on the commercial motor vehicle if it is not inconsistent with the information required by this paragraph.
(c) Size, shape, location, and color of marking. The marking must
(1) Appear on both sides of the self propelled commercial motor vehicle;
(2) Be in letters that contrast sharply in color with the background on which the letters are placed;
(3) Be readily legible, during daylight hours, from a distance of 50 feet while the commercial motor vehicle is stationary; and
(4) Be kept and maintained in a manner that retains the legibility required by paragraph (c)(3).
(d) Construction and durability. The marking may be painted on the commercial motor vehicle or may consist of a removable device, if that device meets the identification and legibility requirements of 38-390, and such marking shall be maintained in such a manner as to remain legible as required. South Carolina Code of Laws Section 56-5-4150.
(a) All records and documents required to be maintained under this regulation must be preserved in their original form for the period specified, unless the records and documents are suitably photographed and the microfilm is retained in lieu of the original record for the required retention period.
(b) To be acceptable in lieu of original records, the photographic copies of records must meet the following minimum requirements:
(1) Photographic copies shall be no less readily accessible than the original record or document as normally filed or preserved would be and suitable means or facilities shall be available to locate, identify, read, and reproduce such photographic copies.
(2) Any significant characteristic, feature or other attribute of the original record or document, which photography in black and white will not preserve, shall be clearly indicated before the photograph is made.
(3) The reverse side of printed forms need not be copied if nothing has been added to the printed matter common to all such forms, but an identified specimen of each form shall be on the film of reference.
(4) Film used for photographing copies shall be of permanent-record type meeting in all respects the minimum specification of the National Bureau of Standards, and all processed recommended by the manufacturer shall be observed to protect it from deterioration or accidental destruction.
(5) Each roll of film shall include a microfilm of certificate or certificates stating that the photographs are direct or facsimile reproductions of the original records. Such certificate(s) shall be executed by a person or persons having personal knowledge of the material covered thereby.
(c) All records and documents required to be maintained under this regulation may be destroyed after they have been suitably photographed for preservation.
(d) Exception. All records except those requiring a signature may be maintained through the use of computer technology provided the motor carrier can product, upon demand, a computer printout of the required data.
38-390.33. Commercial motor vehicles used for purposes other than defined.
Whenever a commercial motor vehicle of one type is used to perform the functions normally performed by a commercial motor vehicle of another type, the requirements of this regulation shall apply to the commercial motor vehicle and to its operation in the same manner as though the commercial motor vehicle were actually a commercial motor vehicle of the latter type. Example: If a commercial motor vehicle other than a bus is used to perform the functions normally performed by a bus, the regulations pertaining to buses and to the transportation of passengers shall apply to that commercial motor vehicle.
Any person who violates the rules set forth in this subchapter may be subject to civil or criminal penalties of the South Carolina Code of Laws 58-23-1120 or other related statutes.
38-391.1. Scope of the rules in 38-382; additional qualifications; duties of carrier drivers.
(a) The rules in 38-382 establish minimum qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers. The rules in 38-382 also establish minimum duties of motor carriers with respect to the qualifications of their drivers.
(b) A motor carrier who employs himself/herself as a driver must comply with both the rules in 38-382 that apply to motor carriers and the rules in 38-382 that apply to drivers.
(a) A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle. Except as provided in Regulation 38-391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.
(b) Except as provided in subpart G of 38-382, a person is qualified to drive a motor vehicle is he/she--
(1) Is at least 18 years old;
(2) Can read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records;
(3) Can, by reason of experience, training, or both, safely operate the type of commercial motor vehicle he/she drives;
(4) [Reserved]
(5) Has a currently valid commercial motor vehicle operator's license issued only by one State or jurisdiction;
(6) Has prepared and furnished the motor carrier that employs him/her with the list of violations or the certificate as required by Regulation 38-391.27;
(7) Is not disqualified to drive a commercial motor vehicle under the rules in Regulation 38-391.15; and
In order to comply with the requirements of Regulation 38-392.9(a) and Regulation 38-393.9 of this regulation, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless the person:
(a) Can, by reason of experience, training, or both, determine whether the cargo he/she transports (including baggage in a passenger-carrying commercial motor vehicle) has been properly located, distributed, and secured in or on the commercial motor vehicle he/she drives;
(b) Is familiar with methods and procedures for securing cargo in or on the commercial motor vehicle he/she drives.
(a) General. A driver who is disqualified shall not drive a commercial motor vehicle. A motor carrier shall not require or permit a drive who is disqualified to drive a commercial motor vehicle.
(b) Disqualification for loss of driving privileges.
(1) A driver is disqualified for the duration of the driver's loss of his/her privilege to operate a commercial motor vehicle on public highways, either temporarily or permanently, by reason of the revocation, suspension, withdrawal, or denial of an operator's license, permit, or privilege, until that operator's license, permit, or privilege is restored by the authority that revoked, suspended, withdrew, or denied it.
(c) Disqualification for criminal and other offenses.
(1) General rule. A driver who is convicted of (or forfeits bond or collateral upon a charge of) a disqualifying offense specified in paragraph (c)(2) is disqualified for the period of time specified in paragraph (c)(3), if--
(i) The offense was committed during on-duty time as defined in Regulation 390.5 (Driver) of this regulation or as otherwise specified; and
(ii) The driver is employed by a motor carrier or is engaged in activities that are in furtherance of a commercial enterprise in interstate, intrastate, or foreign commerce;
(2) Disqualifying offenses. The following offenses are disqualifying offenses:
(i) Driving a commercial motor vehicle while under the influence of alcohol. This shall include:
(A) Driving a commercial motor vehicle while the person's alcohol concentration is 0.04 percent of more;
(B) Driving under the influence of alcohol, as prescribed by State law; or
(C) Refusal to undergo such testing as is required by any State or jurisdiction in the enforcement of Regulation 38-391.15(c)(2)(i)(A) or (B), or Regulation 38-392.5(a)(2)
(ii) Driving a commercial motor vehicle under the influence of a 21 CFR 1308.11 Schedule I identified controlled substance, an amphetamine, a narcotic drug, a formulation of an amphetamine, or a derivative of a narcotic drug:
1A copy of the Schedule I drugs and other substances may be obtained by writing to the Director, Office of Motor Carrier Research and Standards, Washington, DC 20590, or to any Regional Office of Motor Carriers of the Federal Highway Administration.
(iii) Transportation, possession, or unlawful use of a 21 CFR 1308.11 Schedule I identified controlled substance, amphetamines, narcotic drugs, formulations of an amphetamine, or derivatives of narcotic drugs while the driver is on duty, as the term driver is defined in Regulation 390.5 of this chapter;
(iv) Leaving the scene of an accident while operating a commercial motor vehicle; or
(v) A felony involving the use of a commercial motor vehicle.
(3) Duration of disqualification.
(i) First offenders. A driver is disqualified for 1 year after the date of conviction or forfeiture of bond or collateral if, during the 3 years preceding that date, the driver was not convicted of, or did not forfeit bond or collateral upon a charge of an offense that would disqualify the driver under the rules of 38-391. Exemption. The period of disqualifications is 6 months if the conviction or forfeiture of bond or collateral solely concerned the transportation or possession of substances named in paragraph (c)(2)(iii).
(ii) Subsequent offenders. A driver is disqualified for 3 years after the date of his/her conviction or forfeiture of bond or collateral if, during the years preceding that date, he/she was convicted of, or forfeited bond or collateral upon a charge of, an offense that would disqualify him/her under the rules in 38-391.
(d) Disqualification for violation of out of service orders
(1) General rule. A driver who is convicted of violating an out of service order is disqualified for the period of time specified in paragraph (d)(2).
(2) Duration of disqualification for violation of out of service orders
(i) First violation. A driver is disqualified for not less than 90 days nor more than one year if the driver is convicted of a first violation of an out of service order.
(ii) Second violation. A driver is disqualified for not less than one year nor more than five years if, during any 10 year period, the driver is convicted of two violations of out of service orders in separate incidents.
(iii) Third or subsequent violation. A driver is disqualified for not less than three years nor more than five years if, during any 10 year period, the driver is convicted of three or more violations of out of service orders in separate incidents.
(iii) [FNa] Special rule for hazardous materials and passenger offenses. A driver is disqualified for a period of not less than 180 days nor more than two years if the driver is convicted of a first violation of an out of service order while transporting hazardous materials required to be placarded under the Hazardous Materials Transportation Act (49 U.S.C. 5101 et seq.), or while operating commercial motor vehicles designed to transport more than 15 passengers, including the driver. A driver is disqualified for a period of not less than three years nor more than five years if, during any 10 year period, the driver is convicted of any subsequent violations of out of service orders, in separate incidents, while transporting hazardous materials required to be placarded under the Hazardous Materials Transportation Act, or while operating commercial motor vehicles designed to transport more than 15 passengers, including the driver.
[FNa] So in original. State Register Volume 30, Issue No. 4, eff April 28, 2006, promulgated two subparagraphs designated as (iii).
(a) Except as provided in subpart G of 38-382, a person shall not drive a commercial motor vehicle unless he/she has completed and furnished the motor carrier that employs him/her with an application for employment that meets the requirements of paragraph (b).
(b) The application for employment shall be made on a form furnished by the motor carrier. Each application form must be completed by the applicant, must be signed by him/her, and must contain the following information:
(1) The name and address of the employing motor carrier;
(2) The applicant's name, address, date of birth, and social security number;
(3) The addresses at which the applicant has resided during the 3 years preceding the date on which the application is submitted;
(4) The date on which the applicant is submitted;
(5) The issuing State, number, and expiration date of each unexpired commercial motor vehicle operator's license or permit that has been issued to the applicant;
(6) The nature and extent of the applicant's experience in the operation of motor vehicles, including they type of equipment (such as buses, trucks, truck tractors, semitrailers, full trailers, and pole trailers) which he/she has operated;
(7) A list of all motor vehicle accidents in which the applicant was involved during the 3 years preceding the date the application is submitted, specifying the date and nature of each accident and any fatalities or personal injuries it caused;
(8) A list of all violations of motor vehicle laws or ordinances (other than violations involving only parking) of which the applicant was convicted or forfeited bond or collateral during the 3 years preceding the date the application is submitted;
(9) A statement setting forth in detail the facts and circumstances of any denial, revocation, or suspension of any license, permit, or privilege to operate a motor vehicle that has been issued to the applicant, or a statement that no such denial, revocation, or suspension has occurred;
(10)(i) A list of the names and addresses of the applicant's employers during the 3 years preceding the date the application is submitted;
(ii) The dates he or she was employed by that employer;
(iii) The reason for leaving the employ of that employer;
(iv) After October 29, 2004, whether the
(A) Applicant was subject to the FMCSRs while employed by that previous employer;
(B) Job was designated as a safety sensitive function in any DOT regulated mode subject to alcohol and controlled substances testing requirements as required by 49 CFT Part 40;
(11) For those drivers applying to operate a commercial motor vehicle as defined by Part 38-383 of this regulation, a list of the names and addresses of the applicant's employers during the 7-year period preceding the 3 years contained in paragraph (b)(10) for which the applicant was an operator of a commercial motor vehicle, together with the dates of employment and the reasons for leaving such employment; and
(12) The following certification and signature line, which must appear at the end of the application form and be signed by the applicant:
This certifies that this application was completed by me, and that all entries on it and information in it are true and complete to the best of my knowledge.
______________________________________
(Date)
______________________________________
(Applicant's signature)
(c) A motor carrier may require an applicant to provide information in addition to the information required by paragraph (b) on the application form.
(d) Before an application is submitted, the motor carrier must inform the applicant that the information he/she provides in accordance with paragraph (b)(10) may be used, and the applicant's previous employers will be contacted, for the purpose of investigating the applicant's safety performance history information as required by paragraphs (d) and (e) of Regulation 38-391.23. The prospective employer must also notify the driver in writing of his/her due process rights as specified in Regulation 38-391.23(i) regarding information received as a result of these investigations.
(a) Except as provided in subpart of 38-382, each motor carrier shall make the following investigations and inquiries with respect to each driver it employs, other than a person who has been a regularly employed driver of the motor carrier for a continuous period which began before January 1, 1971;
(1) An inquiry into the driver's driving record during the preceding 3 years to the appropriate agency of every State in which the driver held a motor vehicle operator's license or permit during those 3 years; and
(2) An investigation of the driver's safety performance history with Department of Transportation regulated employers during the preceding three years.
(b) A copy of the driver record(s) obtained in response to the inquiry or inquiries to each State driver record agency required by paragraph (a)(1) must be placed in the driver qualification file within 30 days of the date the driver's employment begins and be retained in compliance with Regulation 38-391.51. If no driving record exists from the State or States, the motor carrier must document a good faith effort to obtain such information, and certify that no record exists for that driver in that State. The inquiry to the State driver record agencies must be made in the form and manner each agency prescribes.
(c)(1) Replies to the investigations of the driver's safety performance history required by paragraph (a)(2), or documentation of good faith efforts to obtain the investigation data, must be placed in the driver investigation history file, after October 29, 2004, within 30 days of the date the driver's employment begins. Any period of time required to exercise the driver's due process rights to review the information received, request a previous employer to correct or include a rebuttal, is separate and apart from this 30-day requirement to document investigation of the driver safety performance history data.
(2) The investigation may consist of personal interviews, telephone interviews, letters, or any other method for investigating that the carrier deems appropriate. Each motor carrier must make a written record with respect to each previous employer contacted, or good faith efforts to do so. The record must include the previous employer's name and address, the date the previous employer was contacted, or the attempts made, and the information received about the driver from the previous employer. Failures to contact a previous employer, or of them to provide the required safety performance history information, must be documented. The record must be maintained pursuant to Regulation 38-391.53.
(3) Prospective employers should report failures of previous employers to respond to an investigation to the FMCSA following procedures specified at Regulation 386.12 of this chapter and keep a copy of such reports in the Driver Investigation file as part of documenting a good faith effort to obtain the required information.
(4) Exception. For a driver(s) with no previous employment experience working for a DOT regulated employer during the preceding three years, documentation that no investigation was possible must be placed in the driver history investigation file, after October 29, 2004, within the required 30 days of the date the driver's employment beings.
(d) The prospective motor carrier must investigate, at a minimum, the information listed in this paragraph from all previous employers of the applicant that employed the driver to operate a CMV within the previous three years. The investigation request must contain specific contact information on where the previous motor carrier employers should send the information requested.
(1) General driver identification and employment verification information.
(2) The data elements as specified in Regulation 38-390.15(b)(1) of this chapter for accidents involving the driver that occurred in the three-year period preceding the date of the employment application.
(i) Any accidents as defined by Regulation 38-390.5 of this chapter.
(ii) Any accidents the previous employer may wish to provide that are retained pursuant to Regulation 38-390.15(b)(2), or pursuant to the employer's internal policies for retaining more detailed minor accident information.
(e) In addition to the investigations required by paragraph (d), the prospective motor carrier employers must investigate the information listed below in this paragraph from all previous DOT regulated employers that employed the driver within the previous three years from the date of the employment application, in a safety-sensitive function that required alcohol and controlled substance testing specified by 49 CFR Part 40.
(1) Whether, within the previous three years, the driver had violated the alcohol and controlled substances prohibitions under subpart B of Part 38-382 of this chapter, or 49 CFR part 40.
(2) Whether the driver failed to undertake or complete a rehabilitation program prescribed by a substance abuse professional (SAP) pursuant to Regulation 38-382.605 of this chapter, or 49 CFR part 40, subpart O. If the previous employer does not know this information (e.g., an employer that terminated an employee who tested positive on a drug test), the prospective motor carrier must obtain documentation of the driver's successful completion of the SAP's referral directly from the driver.
(3) For a driver who had successfully completed a SAP's rehabilitation referral, and remained in the employ of the referring employer, information on whether the driver had the following testing violations subsequent to completion of a Regulation 38-382.605 or 49 CFR part 40, subpart O referral:
(i) Alcohol tests with a result of 0.04 or higher alcohol concentration;
(ii) Verified positive drug tests;
(iii) Refusals to be tested (including verified adulterated or substituted drug test results).
(f) A prospective motor carrier employer must provide to the previous employer the driver's written consent meeting the requirements of Part 40.321(b) for the release of the information in paragraph (e). If the driver refuses to provide this written consent, the prospective motor carrier employer must not permit the driver to operate a commercial motor vehicle for that motor carrier.
(g) After October 29, 2004, previous employers must:
(1) Respond to each request for the DOT defined information in paragraphs (d) and (e) within 30 days after the request is received. If there is no safety performance history information to report for that driver, previous motor carrier employers are nonetheless required to send a response confirming the non-existence of any such data, including the driver identification information and dates of employment.
(2) Take all precautions reasonably necessary to ensure the accuracy of the records.
(3) Provide specific contact information in case a driver chooses to contact the previous employer regarding correction or referral of the data.
(4) Keep a record of each request and the response for one year, including the date, the party to whom it was released, and a summary identifying what was provided.
(5) Exception. Until May 1, 2006, carriers need only provide information for accidents that occurred after April 29, 2003.
(h) The release of information under 38-391 may take any from that reasonably ensures confidentiality, including letter, facsimile, or e-mail. The previous employer and its agents and insurers must take all precautions reasonably necessary to protect the driver safety performance history records from disclosure to any person not directly involved in forwarding the records, except the previous employer's insurer, except that the previous employer may not provide any alcohol or controlled substances information to the previous employer's insurer.
(i)(1) The prospective employer must expressly notify drivers with Department of Transportation regulated employment during the preceding three years -via the application form or other written document prior to any hiring decision--that he or she has the following rights regarding the investigative information that will be provided to the prospective employer pursuant to paragraphs (d) and (e):
(i) The right to review information provided by previous employers;
(ii) The right to have errors in the information corrected by the previous employer and for that previous employer to re-send the corrected information to the prospective employer.
(iii) [FNb]
[FNb] So in original. No subparagraph (iii) was promulgated by State Register Volume 30, Issue No. 4, eff April 28, 2006.
(iv) The right to have a rebuttal statement attached to the alleged erroneous information, if the previous employer and the driver cannot agree on the accuracy of the information.
(2) Drivers who have previous Department of Transportation regulated employment history in the preceding three years, and wish to review previous employer-provided investigative information must submit a written request to the prospective employer, which may be done at any time, including when applying, or as late as 30 days after being employed or being notified of denial of employment. The prospective employer must provide this information to the applicant within five (5) business days of receiving the written request. If the prospective employer has not yet received the requested information from the previous employer(s), then the five-business day's deadline will begin when the prospective employer receives the requested safety performance history information. If the driver has not arranged to pick up or receive the requested records within thirty (30) days of the prospective employer making them available, the prospective motor carrier may consider the driver to have waived his/her request to review the records.
(j)(1) Drivers wishing to request correction of erroneous information in records received pursuant to paragraph (i) must send the request for the correction to the previous employer that provided the records to the prospective employer.
(2) After October 29, 2004, the previous employer must either correct and forward the information to the prospective motor carrier employer, or notify the driver within 15 days of receiving a driver's request to correct the data that it does not agree to correct to data. If the previous employer corrects and forwards the data as requested, that employer must also retain the corrected information as part of the driver's safety performance history record and provide it to subsequent prospective employers when requests for this information are received. If the previous employer corrects the data and forwards it to the prospective motor carrier employer, there is no need to notify the driver.
(3) Drivers wishing to rebut information in records received pursuant to paragraph (i) must send the rebuttal to the previous employer with instructions to include the rebuttal in that driver's safety performance history.
(4) After October 29, 2004, within five business days of receiving a rebuttal from a driver, the previous employer must:
(i) Forward a copy of the rebuttal to the prospective motor carrier employer;
(ii) Append the rebuttal to the driver's information in the carrier's appropriate file, to be included as part of the response for any subsequent investigating prospective employers for the duration of the three-year retention requirement.
(5) The driver may submit a rebuttal initially without a request for correction, or subsequent to a request for correction.
(6) The driver may report failures of previous employers to correct information or include the driver's rebuttal as part of the safety performance information, to the FMCSA following procedures specified at Regulation 386.12.
(k)(1) The prospective motor carrier employer must use the information described in paragraphs (d) and (e) only as part of deciding whether to hire the driver.
(2) The prospective motor carrier employer, its agents and insurers must take all precautions reasonably necessary to protect the records from disclosure to any person not directly involved in deciding whether to hire the driver. The prospective motor carrier employer may not provide any alcohol or controlled substances information to the prospective motor carrier employer's insurer.
(l)(1) No action or proceeding for defamation, invasion of privacy, or interference with a contract that is based on the furnishing or use of information in accordance with 38-391 may be brought against--
(i) A motor carrier investigating the information, described in paragraphs (d) and (e), of an individual under consideration for employment as a commercial motor vehicle driver.
(ii) A person who has provided such information; or
(iii) The agents or insurers of a person described in paragraph (l)(1)(i) or (ii), except insurers are not granted a limitation on liability for any alcohol and controlled substance information.
(2) The protections in paragraph (l)(1)do not apply to persons who knowingly furnish false information, or who are not in compliance with the procedures specified for these investigations.
(Approved by the Office of Management and Budget under control number 2126-0004)
38-391.25. Annual inquiry and review of driving record.
(a) Except as provided in subpart G of 38-382, each motor carrier shall, at least once every 12 months, make an inquiry into the driving record of each driver it employs, covering at least the preceding 12 months, to the appropriate agency of every State in which the driver held a commercial motor vehicle operator's license or permit during the time period.
(b) Except as provided in subpart G of 38-382, each motor carrier shall, at least once every 12 months, review the driving record of each driver it employs to determine whether that driver meets minimum requirements for safe driving or is disqualified to drive a commercial motor vehicle pursuant to Regulation 38-391.15.
(1) The motor carrier must consider any evidence that the driver has violated any applicable Federal Motor Carrier Safety Regulations in this regulation or Hazardous Materials Regulations (49 CFR chapter I, regulation C).
(2) The motor carrier must consider the driver's accident record and any evidence that the driver has violated laws governing the operation of motor vehicles, and must give great weight to violations, such as speeding, reckless driving, and operating while under the influence of alcohol or drugs, that indicates the driver has exhibited a disregard for the safety of the public.
(c) Recordkeeping.
(1) A copy of the response from each State agency to the inquiry required by paragraph (a) shall be maintained in the driver's qualification file.
(2) A note, including the name of the person who performed the review of the driving record required by paragraph (b) and the date of such review, shall be maintained in the driver's qualification file.
(a) Except as provided in subpart G of 38-382, each motor carrier shall, at least once every 12 months, require each driver it employs to prepare and furnish it with a list of all violations of motor vehicle traffic laws and ordinances (other than violations involving only parking) of which the driver has been convicted or on account of which he/she has forfeited bond or collateral during the preceding 12 months.
(b) Each driver shall furnish the list required in accordance with paragraph (a). If the driver has not been convicted of, or forfeited bond or collateral on account of, any violation which must be listed, he/she shall so certify.
(c) The form of the driver's list or certification shall be prescribed by the motor carrier. The following form may be used:
DRIVER'S CERTIFICATION
I certify that the following is a true and complete list of traffic violations (other than parking violations) for which I have been convicted or forfeited bond or collateral during the past 12 months.
Date of conviction Offense
Location Type of motor vehicle operated
If no violations are listed above, I certify that I have not been convicted or forfeited bond or collateral on account of any violation required to be listed during the past 12 months.
(Date of certification) (Driver's signature)
(Motor carrier's name)
(Motor carrier's address)
(Reviewed by: Signature) (Title)
(d) The motor carrier shall retain the list or certificate, or a copy of it, in its files as part of the driver's qualification file.
(e) Drivers who have provided information required by Regulation 38-383.31 of this regulation need not repeat that information in the annual list of violations.
(a) Except as provided in subpart G, a person shall not drive a commercial motor vehicle unless he/she has first successfully completed a road test and has been issued a certificate of driver's road test in accordance with this 38-391.
(b) The road test shall be given by the motor carrier or a person designated by it. However, a driver who is a motor carrier must be given the test by a person other than himself/herself. The test shall be given by a person who is competent to evaluate and determine whether the person who takes the test has demonstrated that he/she is capable of operating the commercial motor vehicle, and associated equipment, that the motor carrier intends to assign him/her.
(c) The road test must be of sufficient duration to enable the person who gives it to evaluate the skill of the person who takes it at handling the commercial motor vehicle, and associated equipment, that the motor carriers intends to assign to him/her. As a minimum, the person who takes the test must be tested, while operating the type of commercial motor vehicle the motor carrier intends to assign him/her, on his/her skill at performing each of the following operations:
(1) The pretrip inspection required by Regulation 38-392.7 of this regulation;
(2) Coupling and uncoupling of combination units, if the equipment he/she may drive includes combination units;
(3) Placing the commercial motor vehicle in operation;
(4) Use of the commercial motor vehicles controls and emergency equipment;
(5) Operating the commercial motor vehicle in traffic and while passing other motor vehicles;
(6) Turning the commercial motor vehicle;
(7) Braking, and slowing the commercial motor vehicle by means other than baking; and
(8) Backing and parking the commercial motor vehicle.
(d) The motor carrier shall provide a road test form on which the person who gives the test shall rate the performance of the person who takes it at each operation or activity which is a part of the test. After he/she completes the form, the person who gave the test shall sign it.
(e) If the road test is successfully completed, the person who gave it shall complete a certificate of driver's road test in substantially the form prescribed in paragraph (f).
(f) The form for the certificate of driver's road test is substantially as follows:
CERTIFICATION OF ROAD TEST
Driver's name ___
Social Security No ___
Operator's or Chauffeur's License No ___
State ___
Type of power unit ___
Type of trailer(s) ___
If passenger carrier, type of bus ___
This is to certify that the above-named driver was given a road test under any supervision on __________, 20 ___, consisting of approximately miles of driving.
It is my considered opinion that this driver possesses sufficient driving skill to operate safely the type of commercial motor vehicle listed above.
(Signature of examiner)
(Title)
(Organization and address of examiner)
(g) A copy of the certificate required by paragraph (e) shall be given to the person who was examined. The motor carrier shall retain in the driver qualification file of the person who was examined--
(1) The original of the signed, road test form required by paragraph (d); and
(2) The original or a copy of, the certificate required by paragraph (e).
(a) In place of, and as equivalent to, the road test required by Regulation 38-393.31, a person who seeks to drive a commercial motor vehicle may present, and a motor carrier may accept--
(1) A valid Commercial Driver's License as defined in Regulation 38-383.5 of this regulation, but not including double/triple trailer or tank vehicle endorsements, which has been issued to him/her to operate specific categories of commercial motor vehicles and which, under the laws of that State, licenses him/her after successful completion of a road test in a commercial motor vehicle of the type the motor carrier intends to assign to him/her; or
(2) A copy of a valid certificate of driver's road test issued to him/her pursuant to Regulation 38-391.31 within the preceding 3 years.
(b) If a driver presents, and a motor carrier accepts, a license or certificate as equivalent to the road test, the motor carrier shall retain a legible copy of the license or certificate in its files as part of the driver's qualification file.
(c) A motor carrier may require any person who presents a license or certificate as equivalent to the road test to take a road test or any other test of his/her driving skill as a condition to his/her employment as a driver.
(a) After October 29, 2004, each motor carrier must maintain records relating to the investigation into the safety performance history of a new or prospective driver pursuant to paragraphs (d) and (e) of Regulation 38-391.23. This file must be maintained in a secure location with controlled access.
(1) The motor carrier must ensure that access to this data is limited to those who are involved in the hiring decision or who control access to the data. In addition, the motor carrier's insurer may have access to the data, except the alcohol and controlled substances data.
(2) This data must only be used for the hiring decision.
(b) The file must include:
(1) A copy of the driver's written authorization for the motor carrier to seek information about a driver's alcohol and controlled substances history as required under Regulation 38-391.23(d).
(2) A copy of the response(s) received for investigations required by paragraphs (d) and (e) of Regulation 38-391.23 from each previous employer, or documentation of good faith efforts to contact them. The record must include the previous employer's name and address, the date the previous employer was contacted, and the information received about the driver from the previous employer. Failures to contact a previous employer, or of them to provide the required safety performance history information, must be documented.
(c) The safety performance histories received from the previous employers for a driver who is hired must be retained for as long as the driver is employed by that motor carrier and for three years thereafter.
(d) A motor carrier must make all records and information in this file available an authorized representative or special agent of the Federal Motor Carrier Safety Administration, an authorized State or local enforcement agency representative, or an authorized third party, upon request or as part of any inquiry within the time period specified by the requesting representative.
Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in 38-382.
Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if the South Carolina Unmanufactured Forest Products Trucking Regulations impose a higher standard of care than that law, ordinance, or regulation, the South Carolina Unmanufactured Forest Products Trucking Regulation must be complied with.
No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this 38-392, the driver may continue to operate the commercial motor vehicle to the nearest place at which that hazard is removed.
(a) No driver shall be on duty and possess, be under the influence of, or use, any of the following drugs or other substances:
(1) Any Schedule I drug or other substance identified in appendix D to this regulation;
(2) An amphetamine or any formulation thereof (including, but not limited, to "pep pills," and "bennies");
(3) A narcotic drug or any derivative thereof; or
(4) Any other substance, to a degree which renders the driver incapable of safely operating a motor vehicle.
(b) No motor carrier shall require or permit a driver to violate paragraph (a).
(c) Paragraphs (a) (2), (3), and (4) do not apply to the possession or use of a substance administered to a driver by or under the instructions of a licensed medical practitioner, as defined in Regulation 38-382.107 of this regulation, who has advised the driver that the substance will not affect the driver's ability to safely operate a motor vehicle.
(d) As used in 38-392, "possession" does not include possession of a substance which is manifested and transported as part of a shipment.
(1) Use alcohol, as defined in Regulation 38-382.107 of this regulation, or be under the influence of alcohol, within 4 hours before going on duty or operating, or having physical control of, a commercial motor vehicle; or
(2) Use alcohol, be under the influence of alcohol, or have any measured alcohol concentration or detected presence of alcohol, while on duty, or operating, or in physical control of a commercial motor vehicle; or
(3) Be on duty or operate a commercial motor vehicle while the driver possesses wine of not less than one half of one per centum of alcohol by volume, beer as defined in 26 U.S.C. 5052(a), of the Internal Revenue Code of 1954, and distilled spirits as defined in section 5002(a)(8), of such Code. However, this does not apply to possession of wine, beer, or distilled spirits which are:
(i) Manifested and transported as part of a shipment; or
(ii) Possessed or used by bus passengers.
(b) No motor carrier shall require or permit a driver to
(1) Violate any provision of paragraph (a); or
(2) Be on duty or operate a commercial motor vehicle if, by the driver's general appearance or conduct or by other substantiating evidence, the driver appears to have used alcohol within the preceding four hours.
(c) Any driver who is found to be in violation of the provisions of paragraph (a) or (b) shall be placed out of service immediately for a period of 24 hours.
(1) The 24 hour out of service period will commence upon issuance of an out of service order.
(2) No driver shall violate the terms of an out of service order issued under 38-392.
(d) Any driver who is issued an out of service order under 38-392 shall:
(1) Report such issuance to his/her employer within 24 hours; and
(2) Report such issuance to a State official, designated by the State which issued his/her driver's license, within 30 days unless the driver chooses to request a review of the order. In this case, the driver shall report the order to the State official within 30 days of an affirmation of the order by either the Regional Director of Motor Carriers for the Region or the Associate Administrator.
(e) Any driver who is subject to an out of service order under 38-392 may petition for review of that order by submitting a petition for review in writing within 10 days of the issuance of the order to the Regional Director of Motor Carriers for the Region in which the order was issued. The Regional Director of Motor Carriers may affirm or reverse the order.
No motor carrier shall schedule a run nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the commercial motor vehicle being operated at speeds greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is being operated.
No commercial motor vehicle shall be driven unless the driver thereof shall have satisfied himself/herself that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed:
Service brakes, including trailer brake connections.
Parking (hand) brake.
Steering mechanism.
Lighting devices and reflectors.
Tires.
Horn.
Windshield wiper or wipers.
Rear vision mirror or mirrors.
Coupling devices.
38-392.8. Emergency equipment, inspection and use.
No commercial motor vehicle shall be driven unless the driver thereof is satisfied that the emergency equipment required by Regulation 38-393.95 of this regulation is in place and ready for use; nor shall any driver fail to use or make use of such equipment when and as needed.
38-392.9. Inspection of cargo, cargo securement devices and systems.
(a) General. A driver may operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless
(1) The commercial motor vehicle's cargo is properly distributed and adequately secured as specified in Secs. 38-393.100 to 38-393.118, 38-393.128 and 38-393.130 of this regulation.
(2) The commercial motor vehicle's tailgate, tailboard, doors, tarpaulins, spare tire and other equipment used in its operation, and the means of fastening the commercial motor vehicle's cargo are secured; and
(3) The commercial motor vehicle's cargo or any other object does not obscure the driver's view ahead or to the right or left sides, interfere with the free movement of his/her arms or legs, prevent his/her free and ready access to accessories required for emergencies, or prevent the free and ready exit of any person from the commercial motor vehicle's cab or driver's compartment.
(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4), the driver of a truck or truck tractor must
(1) Assure himself/herself that the provisions of paragraph (a) have been complied with before he/she drives that commercial motor vehicle;
(2) Inspect the cargo and the devices used to secure the cargo, within the first 50 miles after beginning a trip and cause any adjustments to be made to the cargo or load securement devices as necessary, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from the commercial motor vehicle; and
(3) Reexamine the commercial motor vehicle's cargo and its load securement devices during the course of transportation and make any necessary adjustment to the cargo or load securement devices, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from, the commercial motor vehicle. Reexamination and any necessary adjustments must be made whenever--
(i) The driver makes a change of his/her duty status; or
(ii) The commercial motor vehicle has been driven for 3 hours; or
(iii) The commercial motor vehicle has been driven for 150 miles, whichever occurs first.
(4) The rules in this paragraph (b) do not apply to the driver of a sealed commercial motor vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial motor vehicle that has been loaded in a manner that makes inspection of its cargo impracticable.
(a) Except as provided in paragraph (b), the driver of a commercial motor vehicle specified in paragraphs (a) (1) through (6) shall not cross a railroad track or tracks at grade unless he/she first: Stops the commercial motor vehicle within 50 feet of, and not closer than 15 feet to, the tracks; thereafter listens and looks in each direction along the tracks for an approaching train; and ascertains that no train is approaching. When it is safe to do so, the driver may drive the commercial motor vehicle across the tracks in a gear that permits the commercial motor vehicle to complete the crossing without a change of gears. The driver must not shift gears while crossing the tracks.
(1) Every bus transporting passengers,
(2) Every commercial motor vehicle transporting any quantity of a Division 2.3 chlorine.
(3) Every commercial motor vehicle which, in accordance with the regulations of the Department of Transportation, is required to be marked or placarded with one of the following classifications:
(i) Division 1.1; Explosives
(ii) Division 1.2, or Division 1.3; Explosives
(iii) Division 2.3; Poisonous Gas
(iv) Division 4.3; Dangerous When Wet
(v) Class 7; Radioactive
(vi) Class 3; Flammable
(vii) Division 5.1; Oxidizer
(viii) Division 2.2; Non-Flammable Gas
(ix) Division 2.3; Chlorine
(x) Division 6.1; Poison
(xi) Division 2.2; Oxygen
(xii) Division 2.1; Flammable Gas
(xiii) Class 3; Combustible liquid
(xiv) Division 4.1; Flammable Solid
(xv) Division 5.1; Oxidizer
(xvi) Division 5.2; Organic Peroxide
(xvii) Class 8; Corrosive
(xviii) Division 1.4; Explosives
(4) Every cargo tank motor vehicle, whether loaded or empty, used for the transportation of any hazardous material as defined in the Hazardous Materials Regulations of the Department of Transportation, Parts 107 through 180.
(5) Every cargo tank motor vehicle transporting a commodity which at the time of loading has a temperature above its flash point as determined by Part 173.120.
(6) Every cargo tank motor vehicle, whether loaded or empty, transporting any commodity under exemption in accordance with the provisions of Subpart B of part 107.
(b) A stop need not be made at:
(1) A streetcar crossing, or railroad tracks used exclusively for industrial switching purposes, within a business district, as defined in Regulation 38-390.5 of this chapter.
(2) A railroad grade crossing when a police officer or crossing flagman directs traffic to proceed,
(3) A railroad grade crossing controlled by a functioning highway traffic signal transmitting a green indication which, under local law, permits the commercial motor vehicle to proceed across the railroad tracks without slowing or stopping.
(4) An abandoned railroad grade crossing which is marked with a sign indicating that the rail line is abandoned,
(5) An industrial or spur line railroad grade crossing marked with a sign reading "Exempt." Such "Exempt" signs shall be erected only by or with the consent of the appropriate State or local authority.
38-392.11. Railroad grade crossings; slowing down required.
Every commercial motor vehicle other than those listed in Regulation 38-392.10 shall, upon approaching a railroad grade crossing, be driven at a rate of speed which will permit said commercial motor vehicle to be stopped before reaching the nearest rail of such crossing and shall not be driven upon or over such crossing until due caution has been taken to ascertain that the course is clear.
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.
A commercial motor vehicle which has a seat belt assembly installed at the driver's seat shall not be driven unless the driver has properly restrained himself/herself with the seat belt assembly.
38-392.22. Emergency signals; stopped commercial motor vehicles.
(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b). The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b).
(b) Placement of warning devices
(1) General rule. Except as provided in paragraph (b)(2), whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by Regulation 38-393.95 of this regulation, in the following manner:
(i) One at the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;
(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and
(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.
(2) Special rules
(i) Fusees and liquid burning flares. The driver of a commercial motor vehicle equipped with only fusees or liquid burning flares shall place a lighted fusee or liquid burning flare at each of the locations specified in paragraph (b)(1). There shall be at least one lighted fusee or liquid burning flare at each of the prescribed locations, as long as the commercial motor vehicle is stopped. Before the stopped commercial motor vehicle is moved, the driver shall extinguish and remove each fusee or liquid burning flare.
(ii) Daylight hours. Except as provided in paragraph (b)(2)(iii), during the period lighted lamps are not required, three bi-directional reflective triangles, or three lighted fusees or liquid burning flares shall be placed as specified in paragraph (b)(1) within a time of 10 minutes. In the event the driver elects to use only fusees or liquid burning flares in lieu of bi-directional reflective triangles or red flags, the driver must ensure that at least one fusee or liquid burning flare remains lighted at each of the prescribed locations as long as the commercial motor vehicle is stopped or parked.
(iii) Business or residential districts. The placement of warning devices is not required within the business or residential district of a municipality, except during the time lighted lamps are required and when street or highway lighting is insufficient to make a commercial motor vehicle clearly discernable at a distance of 500 feet to persons on the highway.
(iv) Hills, curves, and obstructions. If a commercial motor vehicle is stopped within 500 feet of a curve, crest of a hill, or other obstruction to view, the driver shall place the warning signal required by paragraph (b)(1) in the direction of the obstruction to view a distance of 100 feet to 500 feet from the stopped commercial motor vehicle so as to afford ample warning to other users of the highway.
(v) Divided or one way roads. If a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a divided or one way highway, the driver shall place the warning devices required by paragraph (b)(1), one warning device at a distance of 200 feet and one warning direction toward approaching traffic in the center of the lane or shoulder occupied by the commercial motor vehicle. He/she shall place one warning device at the traffic side of the commercial motor vehicle within 10 feet of the rear of the commercial motor vehicle.
(vi) Leaking, flammable material. If gasoline or any other flammable liquid, or combustible liquid or gas seeps or leaks from a fuel container or a commercial motor vehicle stopped upon a highway, no emergency warning signal producing a flame shall be lighted or placed except at such a distance from any such liquid or gas as will assure the prevention of a fire or explosion.
No driver shall attach or permit any person to attach a lighted fusee or other flame producing emergency signal to any part of a commercial motor vehicle.
No driver shall use or permit the use of any flame producing emergency signal for protecting any commercial motor vehicle transporting Division 1.1, Division 1.2, or Division 1.3 explosives; any cargo tank motor vehicle used for the transportation of any Class 3 or Division 2.1, whether loaded or empty; or any commercial motor vehicle using compressed gas as a motor fuel. In lieu thereof, emergency reflective triangles, red electric lanterns, or red emergency reflectors shall be used, the placement of which shall be in the same manner as prescribed in Regulation 38-392.22(b).
No commercial motor vehicle shall be driven when any of the required lamps or reflectors are obscured by the tailboard, by any part of the load, by dirt, or otherwise.
Small amounts of fuel for the operation or maintenance of a commercial motor vehicle (including its auxiliary equipment) may be designated as materials of trade (see 49 CFR 171.8).
(a) The aggregate gross weight of all materials of trade on a motor vehicle may not exceed 200 kg (440 pounds).
(b) Packaging for gasoline must be made of metal or plastic and conform to requirements of 49 CFR Parts 171, 172, 173, and 178 or requirements of the Occupational Safety and Health Administration contained in 29 CFR 1910.106
(c) For Packing Group II (including gasoline), Packing Group III (including aviation fuel and fuel oil), or ORM-D, the material is limited to 30 kg (66 pounds) or 30 L (8 gallons).
(d) For diesel fuel, the capacity of the package is limited to 450 L (119 gallons).
(e) A Division 2.1 material in a cylinder is limited to a gross weight of 100 kg (220 pounds). (A Division 2.1 material is a flammable gas, including liquefied petroleum gas, butane, propane, liquefied natural gas, and methane).
38-392.60. Unauthorized persons not to be transported.
(a) Unless specifically authorized in writing to do so by the motor carrier under whose authority the commercial motor vehicle is being operated, no driver shall transport any person or permit any person to be transported on any commercial motor vehicle other than a bus. When such authorization is issued, it shall state the name of the person to be transported, the points where the transportation is to begin and end, and the date upon which such authority expires. No written authorization, however, shall be necessary for the transportation of:
(1) Employees or other persons assigned to a commercial motor vehicle by a motor carrier;
(2) Any person transported when aid is being rendered in case of an accident or other emergency;
(3) An attendant delegated to care for livestock.
(b) 38-392 shall not apply to the operation of commercial motor vehicles controlled and operated by any farmer and used in the transportation of agricultural commodities or products thereof from his/her farm or in the transportation of supplies to his/her farm.
38-392.66. Carbon monoxide; use of commercial motor vehicle when detected.
(a) No person shall dispatch or drive any commercial motor vehicle or permit any passengers thereon, when the following conditions are known to exist, until such conditions have been remedied or repaired:
(1) Where an occupant has been affected by carbon monoxide;
(2) Where carbon monoxide has been detected in the interior of the commercial motor vehicle;
(3) When a mechanical condition of the commercial motor vehicle is discovered which would be likely to produce a hazard to the occupants by reason of carbon monoxide.
38-392.67. Heater, flame producing; on commercial motor vehicle in motion.
No open flame heater used in the loading or unloading of the commodity transported shall be in operation while the commercial motor vehicle is in motion.
38-392.71. Radar detectors; use and/or possession.
(a) No driver shall use a radar detector in a commercial motor vehicle, or operate a commercial motor vehicle that is equipped with or contains any radar detector.
(b) No motor carrier shall require or permit a driver to violate paragraph (a).
38-393. Parts and Accessories Necessary for Safe Operation.
38-393.95. Emergency equipment on all power units.
Subpart I: Protection against Shifting or Falling Cargo
38-393.100. Which type of commercial motor vehicles are subject to the cargo securement standards of this subpart, and what general requirements apply?
38-393.102. What are the minimum performance criteria for cargo securement devices and systems?
38-393.104. What standards must cargo securement devices and systems meet in order to satisfy the requirements of this subpart?
38-393.106. What are the general requirements for securing articles of cargo?
38-393.108. How is the working load limit of a tiedown determined?
38-393.110. What else do I have to do to determine the minimum number of tiedowns?
Every employer and employee shall comply and be conversant with the requirements and specifications of 38-382. No employer shall operate a commercial motor vehicle, or cause or permit it to be operated, unless it is equipped in accordance with the requirements and specifications of 38-382.
Nothing contained in this regulation shall be construed to prohibit the use of additional equipment and accessories, not inconsistent with or prohibited by this regulation, provided such equipment and accessories do not decrease the safety of operation of the motor vehicles on which they are used.
As used in 38-382, the following words and terms are construed to mean:
Aggregate working load limit. The summation of the working load limits or restraining capacity of all devices used to secure an article of cargo on a vehicle.
Anchor Point. Part of the structure, fitting or attachment on a vehicle or articles of cargo to which a tiedown is attached.
Antilock Brake System or ABS means a portion of a service brake system that automatically controls the degree rotational wheel slip during braking by:
Article of cargo. A unit of cargo, other than a liquid, gas, or aggregate that lacks physical structure (e.g., grain, gravel, etc. including articles grouped together so that they can be handled as a single unit or unitized by wrapping, strapping, banding or edge protection device(s).
Blocking. A structure, device or other substantial article placed against or around an article of cargo to prevent horizontal movement of the article of cargo.
Bracing. A structure, device, or another substantial article placed against an article of cargo to prevent it from tipping that may also prevent it from shifting.
Brake. An energy conversion mechanism used to stop, or hold a vehicle stationary.
Brake Tubing/Hose. Metallic brake tubing, nonmetallic brake tubing and brake hose are conduits or lines used in a brake system to transmit or contain the medium (fluid or vacuum) used to apply the motor vehicle's brakes.
Chassis. The load supporting frame in a truck or trailer, exclusive of any appurtenances which might be added to accommodate cargo.
Clearance Lamp. A lamp used on the front and the rear of a motor vehicle to indicate its overall width and height.
Converter Dolly. A motor vehicle consisting of a chassis equipped with one or more axles, a fifth wheel and/or equivalent mechanism, and drawbar, the attachment of which converts a semitrailer to a full trailer.
Curb Weight. The weight of a motor vehicle with standard equipment, maximum capacity of fuel, oil, and coolant; and, if so equipped, air conditioning and additional weight of optional engine. Curb weight does not include the driver.
Dunnage. All loose materials used to support and protect cargo.
Emergency Brake System. A mechanism designed to stop a vehicle after a single failure occurs in the service brake system of a part designed to contain compressed air or brake fluid or vacuum (except failure of a common valve, manifold brake fluid housing or brake chamber housing).
Fifth Wheel. A device mounted on a truck tractor or similar towing vehicle (e.g., converter dolly) which interfaces with and couples to the upper coupler assembly of a semitrailer.
Frame vehicle. A vehicle with skeletal structure fitted with one or more bunk units for transporting logs. A bunk unit consists of U-shaped front and rear bunks that together cradle logs. The bunks are welded, gusseted or otherwise firmly fastened to the vehicle's main beams, and are an integral part of the vehicle.
Fuel Tank Fitting. Any removable device affixed to an opening in the fuel tank with the exception of the filler cap.
Grommet. A device that serves as a support and protection to that which passes through it.
Hazard Warning Signal. Lamps that flash simultaneously to the front and rear, on both the right and left sides of a commercial motor vehicle, to indicate to an approaching driver the presence of a vehicular hazard.
Head Lamps. Lamps used to provide general illumination ahead of a motor vehicle.
Heater. Any device or assembly of devices or appliances used to heat the interior of any motor vehicle. This includes a catalytic heater which must meet the requirements of Section 177.834(1) of the Federal Motor Carrier Safety Administration's hazardous materials regulations when flammable liquid or gas is transported.
Heavy Hauler Trailer. A trailer with one or more of the following characteristics:
(1) Its brake lines are designed to adapt to separation or extension of the vehicle frame; or
(2) Its body consists only of a platform whose primary cargo carrying surface is not more than 40 inches above the ground in an unloaded condition, except that it may include sides that are designed to be easily removable and a permanent "front end structure" as that term is used in Regulation 38-393.106.
Identification Lamps. Lamps used to identify certain types of commercial motor vehicles.
Lamp. A device used to produce artificial light.
License Plate Lamp. A lamp used to illuminate the license plate on the rear of a motor vehicle.
Longwood. All logs that are not shortwood, i.e., are over 4.9 m (16 feet) long. Such logs are usually described as long logs or treelength.
Low chassis vehicle. (1) A trailer or semitrailer manufactured on or after January 26, 1998, having a chassis which extends behind the rearmost point of the rearmost tires and which has a lower rear surface that meets the guard width, height, and rear surface requirements of the National Highway Traffic Safety Administration's Standard Section 571.224 in effect on the date of manufacture, or a subsequent edition. (2) A motor vehicle, not described by paragraph (1) of this definition, having a chassis which extends behind the rearmost point of the rearmost tires and which has a lower rear surface that meets the guard configuration requirements of State Regulation 38-39386(b)(1).
Parking Brake System. A brake system used to hold a vehicle stationary.
Play. Any free movement of components.
Pulpwood Trailer. A trailer or semitrailer that is designed exclusively for harvesting logs or pulpwood and constructed with a skeletal frame with no means for attachment of a solid bed, body or container.
Rail Vehicle. A vehicle whose skeletal structure is fitted with stakes at the front and rear to contain logs loaded crosswise.
Rear Extremity. The rearmost point on a vehicle when the vehicle's cargo doors, tailgate or other permanent structure are positioned as they normally are when the vehicle is being driven. Non structural protrusions such as tail lights, hinges, and latches are deleted from the determination of the rearmost point.
Reflective Material. A material conforming to Federal Specification L S 300, "Sheeting and Tape, Reflective; Non exposed Lens, Adhesive Backing," (September 7, 1965) meeting the performance standard in either Table 1 or Table 1A of SAE Standard J594f, "Reflex Reflectors" (January, 1977).
Reflex Reflector. A device which is used on a vehicle to give an indication to an approaching driver by reflected lighted from the lamps on the approaching vehicle.
Saddle mount. A device, designed and constructed as to be readily demountable, used in driveaway towaway operations to perform the functions of a conventional fifth wheel:
(1) Upper half. Upper half of a "saddle mount" means that part of the device which is securely attached to the towed vehicle and maintains a fixed position relative thereto, but does not include the "king pin;"
(2) Lower half. Lower half of a "saddle mount" means that part of the device which is securely attached to the towing vehicle and maintains a fixed position relative thereto but does not include the "king pin;" and
(3) King pin. King pin means that device which is used to connect the "upper half" to the "lower half" in such manner as to permit relative movement in a horizontal plane between the towed and towing vehicles.
Service Brake System. A primary brake system used for slowing and stopping a vehicle.
Shortwood. All logs typically up to 4.9 m (16 feet) long. Such logs are often described as cut-up logs, cut-to-length logs, bolts or pulpwood. Shortwood may be loaded lengthwise or crosswise, though that crosswise is usually no more than 2.6 m (102 inches) long.
Side Extremities. The outermost point on the sides of the vehicle. Nonstructural protrusions such as tail lights, hinges, and latches are excluded from the determination of the outermost point.
Side Marker Lamp (Intermediate). A lamp shown to the side of a trailer to indicate the approximate middle of a trailer 30 feet or more in length.
Side Marker Lamps. Lamps used on each side of a trailer to indicate its overall length.
Steering Wheel Lash. The condition in which the steering wheel may be turned through some part of a revolution without associated movement of the front wheels.
Stop Lamps. Lamps shown to the rear of a motor vehicle to indicate that the service brake system is engaged.
Tail Lamps. Lamps used to designate the rear of a motor vehicle.
Tiedown. A combination of securing devices which forms an assembly that attaches articles of cargo to, or restrains articles of cargo on, a vehicle or trailer, and is attached to anchor point(s).
Tractor-pole trailer. A combination vehicle that carries logs lengthwise so that they form the body of the vehicle. The logs are supported by a bunk located on the rear of the tractor, and another bunk on the skeletal trailer. The tractor bunk may rotate about a vertical axis, and the trailer may have a fixed, scoping, or cabled reach, or other mechanical freedom, to allow it to turn.
Turn Signals. Lamps used to indicate a change in direction by emitting a flashing light on the side of a motor vehicle towards which a turn will be made.
Upper Coupler Assembly. A structure consisting of an upper coupler plate, king pin and supporting framework which interfaces with and couples to a fifth wheel.
Upper Coupler Plate. A plate structure through which the king pin neck and collar extend. The bottom surface of the plate contacts the fifth wheel when coupled.
Working load limit (WLL). The maximum load that may be applied to a component of a cargo securement system during normal service, usually assigned by the manufacturer of the component.
(a) Incorporation by reference. Part 38-393 includes references to certain matter or materials. The text of the materials is not included in the regulations contained in part 38-393. The materials are hereby made a part of the regulations in part 38-393. The Director of the Federal Register has approved the materials incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. For materials subject to change, only the specific version approved by the Director of the Federal Register and specified in the regulation is incorporated. Material is incorporated as it exists on the date of the approval and a notice of any change in these materials will be published in the Federal Register.
(b) Availability. The materials incorporated by reference are available as follows:
(1) Standards of the Underwriters Laboratories, Inc. Information and copies may be obtained by writing to: Underwriters Laboratories, Inc., 333 Pfingsten Road, Northbrook, Illinois 60062.
(2) Specifications of the American Society for Testing and Materials. Information and copies may be obtained by writing to: American Society for Testing and Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103.
(3) Specifications of the National Association of Chain Manufacturers. Information and copies may be obtained by writing to: National Association of Chain Manufacturers, P.O. Box 3143, York, Pennsylvania 17402 0143.
(4) Specifications of the Web Sling and Tiedown Association. Information and copies may be obtained by writing to: Web Sling and Tiedown Association, Inc., 710 East Ogden Avenue, suite 113, Naperville, Illinois 60563.
(5) Manuals of the Wire Rope Technical Board. Information and copies may be obtained by writing to: Wire Rope Technical Committee, P.O. Box 849, Stevensville, Maryland 21666.
(6) Standards of the Cordage Institute. Information and copies may be obtained by writing to: Cordage Institute, 350 Lincoln Street, No. 115, Hingham, Massachusetts 02043.
(7)-(9) [Reserved]
(10) All of the materials incorporated by reference are available for inspection at:
(i) The Federal Motor Carrier Safety Administration, Office of Bus and Truck Standards and Operations, 400 Seventh Street, SW., Washington, DC 20590; and
(ii) The Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
Subpart B: Lighting Devices, Reflectors, and Electrical Equipment
The following Table 1 sets forth the required color, position, and required lighting devices by type of commercial motor vehicle. Diagrams illustrating the locations of lighting devices and reflectors, by type and size of commercial motor vehicle, are shown immediately following Table 1. All lighting devices on motor vehicles placed in operation after March 7, 1989, must meet the requirements of 49 CFR 571.108 in effect at the time of manufacture of the vehicle. Motor vehicles placed in operation on or before March 7, 1989, must meet either the requirements of this regulation or part 571 in effect at the time of manufacture.
*Lighting Required per Type of Commercial Vehicle as Shown Last Column of Table.
A. Small trucks less than 80 inches in overall width.
B. Trucks 80 inches or more in overall width.
C. Truck Tractors.
D. Large semitrailers and full trailers 80 inches or more in overall width except converter dollies.
E. Converter dolly.
F. Small semitrailers and full trailers less than 80 inches in overall width.
G. Pole Trailers & Pulpwood Trailers.
H. Projecting loads.
Lamps and reflectors may be combined as permitted by Paragraphs 38-393.22 and S4.4 of 49 CFR 571.108, Equipment combinations. Exception - Pulpwood, Longwood and Pole Trailers shall not be subject to use of side marker lamps, combination marker lamps or reflectors which require mounting at the top of the rear load standard as provided.
Footnote 1
Identification lamps may be mounted on the vertical centerline of the cab where different from the centerline of the vehicle, except where the cab is not more than 42 inches wide at the front roofline, then a single lamp at the center of the cab shall be deemed to comply with the requirements for identification lamps. No part of the identification lamps or their mountings may extend below the top of the vehicle windshield.
Footnote 2
Unless the turn signals on the front are so constructed (double faced) and located as to be visible to passing drivers, two turn signals are required on the rear of the truck tractor, one at each side as far apart as practicable.
Footnote 3
The identification lamps need not be visible or lighted if obscured by a vehicle in the same combination.
Footnote 4
Any semitrailer or full trailer vehicles manufactured on and after March 1, 1979, shall be equipped with rear side marker lamps at a height of not less than 15 inches (381 mm) nor more than 60 inches (1524 mm) above the road surface, as measured from the center of the lamp on the vehicle at curb weight. The rear side marker lamps shall be visible in the vehicle's rearview mirrors when the trailer is tracking straight.
Footnote 5
For purposes of these regulations, each converter dolly shall be equipped with one stop lamp, one tail lamp, and two reflectors on the rear at each side when towed singly by another vehicle. Each converter dolly shall 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.
Footnote 6
Pole and pulpwood trailers will have two reflectors, one on each side, placed to indicate extreme width of the trailer.
Footnote 7
Pole and pulpwood trailers may have three identification lamps mounted on the vertical centerline of the rear of the cab of the truck tractor drawing the pole trailer, and higher than the load being transported, in lieu of the three identification lamps mounted on the rear vertical centerline of the trailer.
Footnote 8
Pole and pulpwood trailers shall have on the rearmost support for the load, one combination marker lamp or two single lamps showing amber to the front and red to the rear and side, mounted on each side to indicate maximum width of the pole trailer; and one red reflector on each side of the rearmost support for the load.
Footnote 9
Any motor vehicle transporting a load which extends more than 4 inches beyond the width of the motor vehicle, or having projections beyond the rear of such vehicles, shall be equipped with the following lamps in addition to other required lamps, have the loads marked.
Loads projecting more than 4 inches beyond sides of motor vehicles:
(1) The foremost edge of the projecting load at its outermost extremity shall be marked with an amber lamp visible from the front and both sides.
(2) The rearmost edge of the projecting load at its outermost extremity shall be marked with a red lamp visible from the rear and side.
(3) If any portion of the projecting load extends beyond both the foremost and rearmost edge, it shall be marked with an amber lamp visible from the front, both sides, and rear.
(4) If the protecting load does not measure more than 3 feet from front to rear, it shall be marked with an amber lamp visible from the front, both sides, and rear, except that if the projection is located at or near the rear it shall be marked by a red lamp visible from front, side, and rear.
Footnote 10
Projections beyond rear of motor vehicle. On motor vehicles transporting loads which extend to the rear four (4) feet or more beyond the bed or body of the vehicle there must be displayed at the extreme rear end of the load, from a half hour after sunset to a half hour before sunrise, and at any other time when windshield wipers are required to be in use as a result of rain, sleet, n=snow, or other inclement weather, a red light or lantern plainly visible from a distance of at least five hundred feet to the sides or rear. The red light or lantern required is in addition to the red rear light required upon every vehicle. At any other time of day there must be displayed at the extreme rear of the load a red flag or cloth not less than twelve inches by twelve inches and so hung that the entire area is visible to the driver of a vehicle approaching from the rear. South Carolina Code of Law - 56-5-4630.
Footnote 11
To be illuminated when tractor headlamps are illuminated.
Footnote 12
Every truck, and truck tractor shall be equipped with a signaling system that, in addition to signaling turning movements, shall have a switch or combination of switches that will cause the two front turn signals and the two rear signals to flash simultaneously as a vehicular traffic signal warning, required by Regulation 38-392 22(a). The system shall be capable of flashing simultaneously with the ignition of the vehicle on or off.
Footnote 13
To be actuated upon application of service brakes.
Footnote 14
Backup lamp required to operate when truck or truck tractor is in reverse.
38-393.13. Retroreflective sheeting and reflex reflectors, requirements for semitrailers and trailers manufactured before December 1, 1993.
(a) Applicability. All trailers and semitrailers manufactured prior to December 1, 1993, which have an overall width of 2,032 mm (80 inches) or more and a gross vehicle weight rating of 4,536 kg (10,001 pounds) or more, except trailers that are manufactured exclusively for use as offices or dwellings, pole trailers (as defined in Regulation 38-390.5 of these regulation), and trailers transported in a driveaway-towaway operation, must be equipped with retroreflective sheeting or an array of reflex reflectors that meet the requirements. Motor carriers operating trailers, other than container chassis (as defined in Regulation 38-393.5), have until June 1, 2001, to comply with the requirements of 38-393. Motor carriers operating container chassis have until December 1, 2001, to comply with the requirements of 38-393.
(b) Retroreflective sheeting and reflex reflectors. Motor carriers are encouraged to retrofit their trailers with a conspicuity system that meets all of the requirements applicable to trailers manufactured on or after December 1, 1993, including the use of retroreflective sheeting or reflex reflectors in a red and white pattern (see Federal Motor Vehicle Safety Standard No. 108 (49 CFR 571.108), S5.7, Conspicuity systems). Motor carriers which do not retrofit their trailers to meet the requirements of FMVSS No. 108, for example by using an alternative color pattern, must comply with the remainder of this paragraph and with paragraph (c) or (d). Retroreflective sheeting or reflex reflectors in colors or color combinations other than red and white may be used on the sides or lower rear area of the semitrailer or trailer until June 1, 2009. The alternate color or color combination must be uniform along the sides and lower rear area of the trailer. The retroreflective sheeting or reflex reflectors on the upper rear area of the trailer must be white and conform to the requirements of FMVSS No. 108 (S5.7). Red retroreflective sheeting or reflex reflectors shall not be used along the sides of the trailer unless it is used as part of a red and white pattern. Retroreflective sheeting shall have a width of at least 50 mm (2 inches).
(c) Locations for retroreflective sheeting.
(1) Sides. Retroreflective sheeting shall be applied to each side of the trailer or semitrailer. Each strip of retroreflective sheeting shall be positioned as horizontally as practicable, beginning and ending as close to the front and rear as practicable. The strip need no be continuous but the sum of the length of all of the segments shall be at least half of the length of the trailer and the spaces between the segments of the strip shall be distributed as evenly as practicable. The centerline for each strip of retroreflective sheeting shall be between 375 mm (15 inches) and 1,525 mm (60 inches) above the road surface when measured with the trailer empty or unladed, or as close as practicable to this area. If necessary to clear rivet heads or other similar obstruction, 50 mm (2 inches) wide retroreflective sheeting may be separated into two 25 mm (1 inch) wide strips of the same length and color, separated by a space of not more than 25 mm (1 inch).
(2) Lower rear area. The rear of each trailer and semitrailer must be equipped with retroreflective sheeting. Each strip of retroreflective sheeting shall be positioned as horizontally as practicable, extending across the full width of the trailer, beginning and ending as close to the extreme edges as practicable. The centerline for each of the strips of retroreflective sheeting shall be between 375 mm (15 inches) and 1,525 mm (60 inches) above the road surface when measured with the trailer empty or unladen, or as close as practicable to this area.
(3) Upper rear area. Two pairs of white strips of retroreflective sheeting, each pair consisting of strips 300 mm (12 inches) long, must be positioned horizontally and vertically on the right and left upper corners of the rear of the body of each trailer and semitrailer, as close as practicable to the top of the trailer and as far apart as practicable. If the perimeter of the body, as viewed from the rear, is not square or rectangular, the strips may be applied along the perimeter, as close as practicable to the uppermost and outermost areas of the rear of the body on the left and right sides.
(d) Locations for reflex reflectors.
(1) Sides. Reflex reflectors shall be applied to each side of the trailer or semitrailer. Each array of reflex reflectors shall be positioned as horizontally as practicable, beginning and ending as close to the front and rear as practicable. The array need not be continuous but the sum of the length of all f the array segments shall be at least half of the length of the trailer and the spaces between the segments of the strip shall be distributed as evenly as practicable. The centerline for each array of reflex reflectors shall be between 375 mm (15 inches) and 1,525 mm (60 inches) above the road surface when measured with the trailer empty or unladen, or as close as practicable to this area. The center of each reflector shall not be more than 100 mm (4 inches) from the center of each adjacent reflector in the segment of the array. If reflex reflectors are arranged in an alternating color pattern, the length of reflectors of the first color shall be as close as practicable to the length of the reflectors of the second color.
(2) Lower rear area. The rear of each trailer and semitrailer must be equipped with reflex reflectors. Each array of reflex reflectors shall be positioned as horizontally as practicable, extending across the full width of the trailer, beginning and ending as close to the extreme edges as practicable. The centerline for each array of reflex reflectors shall be between375 mm (15 inches) and 1,525 mm (60 inches) above the road surface when measured with the trailer empty or unladen, or as close as practicable to this area. The center of each reflector shall not be more than 100 mm (4 inches) from the center of each adjacent reflector in the segment of the array.
(3) Upper rear area. Two pairs of white reflex reflector arrays, each pair at least 300 mm (12 inches) long, must be positioned horizontally and vertically on the right and left upper corners of the rear of the body of each trailer and semitrailer, as close as practicable to the top of the trailer and as far apart as practicable. If the perimeter of the body, as viewed from the rear, is not square or rectangular, the arrays may be applied along the perimeter, as close as practicable to the uppermost and outermost areas of the rear of the body on the left and right sides. The center of each reflector shall not be more than 100 mm (4 inches) from the center of each adjacent reflector in the segment of the array.
38-393.19. Requirements for turn signaling systems.
(a) Every truck, or truck tractor shall be equipped with a signaling system that in addition to signaling turning movements shall have a switch or combination of switches that will cause the two front turn signals and the two rear turn signals to flash simultaneously as a vehicular traffic hazard warning as required by Regulation 38-392.22 with the ignition on or off.
(b) Every semitrailer and full trailer shall be equipped so as to have the two rear turn signals to flash simultaneously with the two front turn signals of the towing vehicle as a vehicular traffic hazard warning as required by Regulation 38-392.22(a).
38-393.20. Clearance lamps to indicate extreme width and height.
Clearance lamps shall be mounted so as to indicate the extreme width of the motor vehicle (not including mirrors) and as near the top thereof as practicable: Provided, That when rear identification lamps are mounted at the extreme height of the vehicle, rear clearance lamps may be mounted at optional height: And provided further, That when mounting of front clearance lamps at the highest point of a trailer results in such lamps failing to mark the extreme width of the trailer, such lamps may be mounted at optional height but must indicate the extreme width of the trailer. Clearance lamps on truck tractors shall be so located as to indicate the extreme width of the truck tractor cab.
38-393.22. Combination of lighting devices and reflectors.
(a) Permitted combinations. Except as provided in paragraph (b), two or more lighting devices and reflectors (whether or not required by the rules in 38-382) may be combined optically if
(1) Each required lighting device and reflector conforms to the applicable rules in 38-382; and
(2) Neither the mounting nor the use of a non-required lighting device or reflector impairs the effectiveness of a required lighting device or reflector or causes that device or reflector to be inconsistent with the applicable rules in 38-382.
(b) Prohibited combinations.
(1) A turn signal lamp must not be combined optically with either a head lamp or other lighting device or combination of lighting devices that produces a greater intensity of light than the turn signal lamp.
(2) A turn signal lamp must not be combined optically with a stop lamp unless the stop lamp function is always deactivated when the turn signal function is activated.
(3) A clearance lamp must not be combined optically with a tail lamp or identification lamp.
Lighting devices shall be electric, except that red liquid burning lanterns may be used on the end of loads in the nature of poles, pipes, and ladders projecting to the rear of the motor vehicle.
38-393.24. Requirements for head lamps and auxiliary road lighting lamps.
(a) Mounting. Head lamps and auxiliary road lighting lamps shall be mounted so that the beams are readily adjustable, both vertically and horizontally, and the mounting shall be such that the aim is not readily disturbed by ordinary conditions of service.
(b) Head lamps required. Every truck, and truck tractor shall be equipped with a headlighting system composed of at least two head lamps, not including fog or other auxiliary lamps, with an equal number on each side of the vehicle. The headlighting system shall provide an upper and lower distribution of light, selectable at the driver's will.
(c) Fog, adverse weather, and auxiliary road lighting lamps. For the purposes of 38-393, fog, adverse weather, and auxiliary road lighting lamps, when installed, are considered to be a part of the headlighting system. Such lamps may be used in lieu of head lamps under conditions making their use advisable if there be at least one such lamp conforming to the appropriate SAE Standard1 for such lamps on each side of the vehicle.
(d) Aiming and intensity. Head lamps shall be constructed and installed so as to provide adequate and reliable illumination and shall conform to the appropriate specification set forth in the SAE Standards1 for "Electric Head Lamps for Motor Vehicles" or "Sealed Beam Head Lamp Units for Motor Vehicles."
38-393.25. Requirements for lamps other than head lamps.
(a) Mounting. All lamps shall be permanently and securely mounted in workmanlike manner on a permanent part of the motor vehicle, except that temporary lamps on motor vehicles being transported in driveaway towaway operations and temporary electric lamps on projecting loads need not be permanently mounted nor mounted on a permanent part of the vehicle. The requirement for three identification lamps on the centerline of a vehicle will be met as to location by one lamp on the centerline, with the other two at right and left. All temporary lamps must be firmly attached.
(b) Visibility. All required exterior lamps shall be so mounted as to be capable of being seen at all distances between 500 feet and 50 feet under clear atmospheric conditions during the time lamps are required to be lighted. The light from front clearance and front identification lamps shall be visible to the front, that from sidemarker lamps to the side, that from rear clearance, rear identification, and tail lamps to the rear, and that from projecting loadmarker lamps from those directions required by Regulation 38-393.11. This shall not be construed to apply to lamps on one unit which are obscured by another unit of a combination of vehicles.
(c) Specifications. All required lamps except those already installed on vehicles tendered for transportation in driveaway and towaway operations shall conform to appropriate requirements of the SAE Standards and/or Recommended Practices1 as indicated below, except that the minimum required marking of lamps conforming to the 1985 requirements shall be as specified in paragraph (d). Projecting load marker lamps shall conform to the requirements for clearance, side marker, and identification lamps. Turn signals shall conform to the requirements for class A, Type I turn signals, provided.
(1) Lamps on vehicles made before July 1, 1961, excepting replacement lamps as specified in paragraph (c)(2), shall conform to the 1952 requirements.
(2) Lamps on vehicles made on and after July 1, 1961, and replacement lamps installed on and after December 31, 1961, shall conform to the 1985 requirements.
(3) Lamps temporarily attached to vehicles transported in driveaway and towaway operations on and after December 31, 1961, shall conform to the 1985 requirements.
(d) Certification and markings. All lamps required to conform to the requirements of the SAE Standards1 shall be certified by the manufacturer or supplier that they do so conform, by markings indicated below. The markings in each case shall be visible when the lamp is in place on the vehicle.
(1) Stop lamps shall be marked with the manufacturers or supplier's name or trade name and shall be marked "SAE S".
(2) Turn signal units shall be marked with the manufacturers or supplier's name or trade name and shall be marked "SAE AI" or "SAE I".
(3) Tail lamps shall be marked with the manufacturers or supplier's name or trade name and shall be marked "SAE T".
(4) Clearance, side marker, identification, and projecting load marker lamps, except combination lamps, shall be marked with the manufacturers or supplier's name or trade name and shall be marked "SAE" or "SAE P".
(5) Combination lamps shall be marked with the manufacturers or supplier's name or trade name and shall be marked "SAE" followed by the appropriate letters indicating the individual lamps combined. The letter "A", as specified in Regulation 38-393.26(c), may be included to certify that a reflector in the combination conforms to the requirements appropriate to such marking. If the letter "I" follows the letter "A" immediately the two letters shall be deemed to refer to a turn signal unit, as specified in paragraph (d)(2) of 38-393. Combination clearance and side marker lamps may be marked "SAE PC".
(e) Lighting devices to be steady burning. All exterior lighting devices shall be of the steady burning type except turn signals on any vehicle, stop lamps when used as turn signals, warning lamps on school when operating as such, and warning lamps on emergency and service vehicles authorized by State or local authorities, and except that lamps combined into the same shell or housing with any turn signal may be turned off by the same switch that turns the signal on for flashing and turned on again when the turn signal as such is turned off. This paragraph shall not be construed to prohibit the use of vehicular hazard warning signal flashers as required by Regulation 38-392.22 or permitted by Regulation 38-392.18.
(f) Stop lamp operation. All stop lamps on each motor vehicle or combination of motor vehicles shall be actuated upon application of any of the service brakes, except that such actuation is not required upon activation of the emergency feature of trailer brakes by means of either manual or automatic control on the towing vehicle, and except that stop lamps on a towing vehicle need not be actuated when service brakes are applied to the towed vehicles or vehicles only, and except that no stop lamp need be actuated as such when it is in use as a turn signal or when it is turned off by the turn signal switch as provided in paragraph (e).
(a) Mounting. All required reflectors shall be mounted upon the motor vehicle at a height not less than 15 inches nor more than 60 inches above the ground on which the motor vehicle stands, except that reflectors shall be mounted as high as practicable on motor vehicles which are so constructed as to make compliance with the 15 inch requirement impractical. They shall be so installed as to perform their function adequately and reliably, and except for temporary reflectors required for vehicles in driveaway towaway operations, or on projecting loads, all reflectors shall be permanently and securely mounted in workmanlike manner so as to provide the maximum of stability and the minimum likelihood of damage. Required reflectors otherwise properly mounted may be securely installed on flexible strapping or belting provided that under conditions of normal operation they reflect light in the required directions. Required temporary reflectors mounted on motor vehicles during the time they are in transit in any driveaway towaway operation must be firmly attached.
(b) Specifications. All required reflectors except those installed on vehicles tendered for transportation in driveaway and towaway operations shall comply with FMVSS 571.108 (49 CFR 571.108) in effect at the time the vehicle was manufactured or the current FMVSS 571.108 requirements.
(c) Certification and markings. All reflectors required to conform to the specifications in paragraph (b) shall be certified by the manufacturer or supplier that they do so conform, by marking with the manufacturer's or supplier's name or trade name and the letters "SAE A". The marking in each case shall be visible when the reflector is in place on the vehicle.
(d) Retroreflective surfaces. Retroreflective surfaces other than required reflectors may be used, provided:
(1) Designs do not resemble traffic control signs, lights, or devices, except that straight edge striping resembling a barricade pattern may be used.
(2) Designs do not tend to distort the length and/or width of the motor vehicle.
(3) Such surfaces shall be at least 3 inches from any required lamp or reflector unless of the same color as such lamp or reflector.
(4) No red color shall be used on the front of any motor vehicle, except for display of markings or placards required by Section 177.823 of the Federal Motor Carrier Safety Administration's hazardous materials regulations.
(5) Retroreflective license plates required by State or local authorities may be used.
South Carolina Code of State Laws 56-5-4580 (section 7) on every pole truck or trailer, a strip of light reflecting paint, tape or reflectors on the external sides of the pole support frame or bolsters, or both, where practical.
(a) Wiring for both low voltage (tension) and high voltage (tension) circuits shall be constructed and installed so as to meet design requirements. Wiring shall meet or exceed, both mechanically and electrically, the following SAE Standards as found in the 1985 edition of the SAE Handbook:
(1) Commercial vehicle engine ignition systems SAE J557 High Tension Ignition Cable.
(b) The source of power and the electrical wiring shall be of such size and characteristics as to provide the necessary voltage as the design requires to comply with FMVSS 571.108.
(1) Be so installed that connections are protected from weather, abrasion, road splash, grease, oil, fuel and chafing;
(2) Be grouped together, when possible, and protected by nonconductive tape, braid, or other covering capable of withstanding severe abrasion or shall be protected by being enclosed in a sheath or tube;
(3) Be properly supported in a manner to prevent chafing;
(4) Not be so located as to be likely to be charred, overheated, or enmeshed in moving parts;
(5) Not have terminals or splices located above the fuel tank except for the fuel sender wiring and terminal; and
(6) Be protected when passing through holes in metal by a grommet, or other means, or the wiring shall be encased in a protective covering.
(b) The complete wiring system including lamps, junction boxes, receptacle boxes, conduit and fittings must be weather resistant.
(c) Harness connections shall be accomplished by a mechanical means.
The battery ground and trailer return ground connections on a grounded system shall be readily accessible. The contact surfaces of electrical connections shall be clean and free of oxide, paint, or other nonconductive coating.
Every storage battery on every vehicle, unless located in the engine compartment, shall be covered by a fixed part of the motor vehicle or protected by a removable cover or enclosure. Removable covers or enclosures shall be substantial and shall be securely latched or fastened. The storage battery compartment and adjacent metal parts which might corrode by reason of battery leakage shall be painted or coated with an acid resisting paint or coating and shall have openings to provide ample battery ventilation and drainage. Wherever the cable to the starting motor passes through a metal compartment, the cable shall be protected against grounding by an acid and waterproof insulating bushing. Wherever a battery and a fuel tank are both placed under the driver's seat, they shall be partitioned from each other, and each compartment shall be provided with an independent cover, ventilation, and drainage.
(a) The current to all low tension circuits shall pass through overload protective devices except that this requirement shall not be applicable to battery to starting motor or battery to generator circuits, ignition and engine control circuits, horn circuits, electrically operated fuel pump circuits, or electric brake circuits.
(b) Trucks and truck tractors meeting the definition of a commercial motor vehicle and manufactured after June 30, 1953 shall have protective devices for electrical circuits arranged so that:
(1) The headlamp circuit or circuits shall not be affected by a short circuit in any other lighting circuits on the motor vehicle; or
(2) The protective device shall be an automatic reset overload circuit breaker if the headlight circuit is protected in common with other circuits.
Electrical wiring between towing and towed vehicles shall be contained in a cable or cables or entirely within another substantially constructed protective device. All such electrical wiring shall be mechanically and electrically adequate and free of short or open circuits. Suitable provision shall be made in every such detachable connection to afford reasonable assurance against connection in an incorrect manner or accidental disconnection. Detachable connections made by twisting together wires from the towed and towing units are prohibited. Precaution shall be taken to provide sufficient slack in the connecting wire or cable to accommodate without damage all normal motions of the parts to which they are attached.
Electrical wiring shall be systematically arranged and installed in a workmanlike manner. All detachable wiring, except temporary wiring connections for driveaway towaway operations, shall be attached to posts or terminals by means of suitable cable terminals which conform to the SAE Standard1 for "Cable Terminals" or by cable terminals which are mechanically and electrically at least equal to such terminals. The number of wires attached to any post shall be limited to the number which such post was designed to accommodate. The presence of bare, loose, dangling, chafing, or poorly connected wires is prohibited.
(a) General. A truck, truck tractor, or a combination of motor vehicles must have brakes adequate to control the movement of, and to stop and hold, the vehicle or combination of vehicles.
(b) Specific systems required.
(1) A truck, truck tractor, or combination of motor vehicles must have
(i) A service brake system that conforms to the requirements of Regulation 38-393.52; and
(ii) A parking brake system that conforms to the requirements of Regulation 38-393.41.
(2) A truck, truck tractor, or a combination of motor vehicles manufactured on or after July 1, 1973, must have an emergency brake system that conforms to the requirements of Regulation 38-393.52(b) and consists of either
(i) Emergency features of the service brake system; or
(ii) A system separate from the service brake system.
A control by which the driver applies the emergency brake system must be located so that the driver can readily operate it when he/she is properly restrained by any seat belt assembly provided for his/her use. The control for applying the emergency brake system may be combined with either the control for applying the service brake system or the control for applying the parking brake system. However, all three controls may not be combined.
(c) Interconnected systems.
(1) If the brake systems specified in paragraph (b) are interconnected in any way, they must be designed, constructed, and maintained so that, upon the failure of any part of the operating mechanism of one or more of the systems (except the service brake actuation pedal or valve)
(i) The vehicle will have operative brakes; and
(ii) In the case of a vehicle manufactured on or after July 1, 1973, the vehicle will have operative brakes capable of performing as specified in Regulation 38-393.52(b).
(2) A motor vehicle to which the emergency brake system requirements of Federal Motor Vehicle Safety Standard No. 105 (Section 571.105) applied at the time of its manufacture conforms to the requirements of paragraph (c)(1) if
(i) It is maintained in conformity with the emergency brake requirements of Standard No. 105 in effect on the date of its manufacture; and
(ii) It is capable of performing as specified in Regulation 38-393.52(b), except upon structural failure of its brake master cylinder body or effectiveness indicator body.
(a) Every commercial motor vehicle manufactured on and after March 7, 1990, except an agricultural commodity trailer, converter dolly, heavy hauler or pulpwood trailer, shall at all times be equipped with a parking brake system adequate to hold the vehicle or combination under any condition of loading as required by FMVSS 571.121. An agricultural commodity trailer, heavy hauler or pulpwood trailer shall carry sufficient chocking blocks to prevent movement when parked.
(b) The parking brake system shall at all times be capable of being applied in conformance with the requirements of paragraph (a) of 38-393.41 either the driver's muscular effort, or by spring action, or by other energy, provided, that if such other energy is depended on for application of the parking brake, then an accumulation of such energy shall be isolated from any common source and used exclusively for the operation of the parking brake.
(c) The parking brake system shall be held in the applied position by energy other than fluid pressure, air pressure, or electric energy. The parking brake system shall be such that it cannot be released unless adequate energy is available upon release of the parking brake to make immediate further application with the required effectiveness.
(a) Every commercial motor vehicle shall be equipped with brakes acting on all wheels.
(b) Exception.
(1) Trucks or truck tractors having three or more axles
(i) Need not have brakes on the front wheels if the vehicle was manufactured before July 25, 1980; or
(ii) Manufactured between July 24, 1980, and October 27, 1986, must be retrofitted to meet the requirements of 38-393 within one year from February 26, 1987, if the brake components have been removed.
(2) Any motor vehicle being towed in a driveaway towaway operation must have operative brakes as may be necessary to ensure compliance with the performance requirements of Regulation 38-393.52. This paragraph is not applicable to any motor vehicle towed by means of a tow bar when any other vehicle is full mounted on such towed motor vehicle or any combination of motor vehicles utilizing three or more saddle mounts. (See Regulation 38-393.71(a)(3).)
(3) 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.
(a) Every motor vehicle, if used to tow a trailer equipped with brakes, shall be equipped with means for providing that in case of breakaway of such trailer the service brakes on the towing vehicle will be sufficiently operative to stop the towing vehicle.
(b) Every truck or truck tractor equipped with air brakes, when used for towing other vehicles equipped with air brakes, shall be equipped with two means of activating the emergency features of the trailer brakes. One of these means shall operate automatically in the event of reduction of the towing vehicle air supply to a fixed pressure which shall not be lower than 20 pounds per square inch nor higher than 45 pounds per square inch. The other means shall be a manually controlled device readily operable by a person seated in the driving seat. Its emergency position or method of operation shall be clearly indicated. In no instance may the manual means be so arranged as to permit its use to prevent operation of the automatic means. The automatic and manual means required may be, but are not required to be, separate.
(c) Every truck tractor and truck when used for towing other vehicles equipped with vacuum brakes, shall have, in addition to the single control required by Regulation 38-393.49 to operate all brakes of the combination, a second manual control device which can be used to operate the brakes on the towed vehicles in emergencies. Such second control shall be independent of brake air, hydraulic, and other pressure, and independent of other controls, unless the braking system be so arranged that failure of the pressure on which the second control depends will cause the towed vehicle brakes to be applied automatically. The second control is not required by this rule to provide modulated or graduated braking.
(d) Every trailer required to be equipped with brakes shall be equipped with brakes of such character as to be applied automatically and promptly upon breakaway from the towing vehicle, and means shall be provided to maintain application of the brakes on the trailer in such case for at least 15 minutes.
(e) Air brake systems installed on towed vehicles shall be so designed, by the use of "no bleed back" relay emergency valves or equivalent devices, that the supply reservoir used to provide air for brakes shall be safeguarded against backflow of air to the towing vehicle upon reduction of the towing vehicle air pressure.
(f) The requirements of paragraphs (b), (c), and (d) shall not be applicable to motor vehicles in driveaway towaway operations.
(a) General requirements. Brake tubing and brake hose must
(1) Be designed and constructed in a manner that insures proper, adequate, and continued functioning of the tubing or hose;
(2) Be installed in a manner that insures proper continued functioning of the tubing or hose;
(3) Be long and flexible enough to accommodate without damage all normal motions of the parts to which it is attached;
(4) Be suitably secured against chafing, kinking, or other mechanical damage;
(5) Be installed in a manner that prevents it from contacting the vehicle's exhaust system or any other source of high temperatures; and
(6) Conform to the applicable requirements of paragraph (b) or (c). In addition, all hose installed on and after January 1, 1981, must conform to those applicable subsections of FMVSS 106 (49 CFR 571.106).
(b) Special requirements for metallic brake tubing, nonmetallic brake tubing, coiled nonmetallic brake tubing and brake hose.
(1) Metallic brake tubing, nonmetallic brake tubing, coiled nonmetallic brake tubing, and brake hose installed on a commercial motor vehicle on and after March 7, 1989, must meet or exceed one of the following specifications set forth in the SAE Handbook, 1985 edition:
(i) Metallic Air Brake Tubing SAE Recommended Practice J1149 Metallic Air Brake System Tubing and Pipe July 76.
(ii) Nonmetallic Air Brake Tubing SAE Recommended Practice J844 Nonmetallic Air Brake System Type B OCT 80.
(iii) Air Brake Hose SAE Recommended Practice J1402 Automotive Air Brake Hose and Hose Assemblies JUN 85.
(iv) Hydraulic Brake Hose SAE Recommended Practice J1401 Road Vehicle Hydraulic Brake Hose Assemblies for Use with Non Petroleum Base Hydraulic Fluid JUN 85.
(v) Vacuum Brake Hose SAE Recommended Practice J1403 Vacuum Brake Hose JUN 85.
(2) Except as provided in paragraph (c), brake hose and brake tubing installed on a motor vehicle before March 7, 1989, must conform to 49 CFR 393.45 effective October 31, 1983.
(c) Nonmetallic brake tubing. Coiled nonmetallic brake tubing may be used for connections between towed and towing vehicles or between the frame of a towed vehicle and the unsprung subframe of an adjustable axle of that vehicle if
(1) The coiled tubing has a straight segment (pigtail) at each end that is at least 2 inches in length and is encased in a spring guard or similar device which prevents the tubing from kinking at the fitting at which it is attached to the vehicle; and
(2) The spring guard or similar device has at least 2 inches of closed coils or similar surface at its interface with the fitting and extends at least 1 1/2 inches into the coiled segment of the tubing from its straight segment.
(d) Brake tubing and brake hose, uses. Metallic and nonmetallic brake tubing is intended for use in areas of the brake system where relative movement in the line is not anticipated. Brake hose and coiled nonmetallic brake tubing is intended for use in the brake system where substantial relative movement in the line is anticipated or the hose/coiled nonmetallic brake tubing is exposed to potential tension or impact such as between the frame and axle in a conventional type suspension system (axle attached to frame by suspension system). Nonmetallic brake tubing may be used through an articulation point provided movement is less than 4.5 degrees in a vertical plane, and 7.4 degrees in a transverse horizontal plane.
All connections for air, vacuum, or hydraulic braking systems shall:
(a) Be adequate in material and construction to insure proper continued functioning;
(b) Be designed, constructed, and installed so as to insure, when properly connected, an attachment free of leaks, constrictions, or other defects;
(c) Have suitable provision in every detachable connection to afford reasonable assurance against accidental disconnection;
(d) Have the vacuum brake engine manifold connection at least three eighths inch in diameter.
(e) If installed on a vehicle on or after January 1, 1981, meet requirements under applicable subsections of FMVSS 106 (49 CFR 571.106).
(f) Splices in tubing if installed on a vehicle after March 7, 1989, must use fittings that meet the requirements of SAE Standard J512 OCT 80 Automotive Tube Fittings or for air brake systems SAE J246 March 81 Spherical and Flanged Sleeve (Compression) Tube Fittings as found in the SAE Handbook 1985 edition.
The brake lining on every motor vehicle shall be so constructed and installed as not to be subject to excessive fading and grabbing and shall be adequate in thickness, means of attachment, and physical characteristics to provide for safe and reliable stopping of the motor vehicle.
(a) General rule. Except as provided in paragraphs (b) and (c), all brakes with which a motor vehicle is equipped must at all times be capable of operating.
(b) Devices to reduce or remove front wheel braking effort. A motor vehicle may be equipped with a device to reduce the braking effort upon its front wheels or, in the case of a three axle truck or truck tractor manufactured before March 1, 1975, to remove the braking effort upon its front wheels, if that device conforms to, and is used in compliance with, the rules in paragraph (b) (1) or (2).
(1) Manually operated devices. A manually operated device to reduce or remove the front wheel braking effort must not be
(i) Installed in a motor vehicle other than a truck, or truck tractor; or
(ii) Installed in a truck, or truck tractor manufactured after February 28, 1975; or
(iii) Used in the reduced mode except when the vehicle is operating under adverse conditions such as wet, snowy, or icy roads.
(2) Automatic devices. An automatic device to reduce the front wheel braking effort by up to 50 percent of the normal braking force, regardless of whether or not antilock system failure has occurred on any axle, must not
(i) Be operable by the driver except upon application of the control that activates the braking system; and
(ii) Be operable when the pressure that transmits brake control application force exceeds
(A) 85 psig on air mechanical braking systems; or
(B) 85 percent of the maximum system pressure in the case of vehicles utilizing other than compressed air.
(c) Towed vehicle. Paragraph (a) does not apply to
(1) A disabled vehicle being towed; or
(2) A vehicle being towed in a driveaway towaway operation which is exempt from the general rule of 38-393.42 under paragraph (b) of that regulation.
Every motor vehicle, the date of manufacture of which is subsequent to June 30, 1953, which is equipped with power brakes, shall have the braking system so arranged that one application valve shall when applied operate all the service brakes on the motor vehicle or combination of motor vehicles. This requirement shall not be construed to prohibit motor vehicles from being equipped with an additional valve to be used to operate the brakes on a trailer or trailers or as provided in Regulation 38-393.44. 38-393 shall not be applicable to driveaway towaway operations unless the brakes on such operations are designed to be operated by a single valve.
(a) General. Every commercial motor vehicle using air or vacuum for breaking shall be equipped with reserve capacity or a reservoir sufficient to ensure a full service brake application with the engine stopped without depleting the air pressure or vacuum below 70 percent of that pressure or degree of vacuum indicated by the gauge immediately before the brake application is made. For purposes of 38-393, a full service brake application is considered to be made when the service brake pedal is pushed to the limit of its travel.
(b) Safeguarding of air and vacuum.
(1) Every truck, and truck tractor, when equipped with air or vacuum reservoirs and regardless of date of manufacture, shall have such reservoirs so safeguarded by a check valve or equivalent device that in the event of failure or leakage in its connection to the source of compressed air or vacuum the air or vacuum supply in the reservoir shall not be depleted by the leak or failure.
(2) Means shall be provided to establish the check valve to be in working order. On and after May 1, 1966, means other than loosening or disconnection of any connection between the source of compressed air or vacuum and the check valve, and necessary tools for operation of such means, shall be provided to prove that the check valve is in working order. The means shall be readily accessible either from the front, side, or rear of the vehicle, or from the driver's compartment.
(i) In air brake systems with one reservoir, the means shall be a cock, valve, plug, or equivalent device arranged to vent a cavity having free communication with the connection between the check valve and the source of compressed air or vacuum.
(ii) Where air is delivered by a compressor into one tank or compartment (wet tank), and air for braking is taken directly from another tank or compartment (dry tank) only, with the required check valve between the tanks or compartments, a manually operated drain cock on the first (wet) tank or compartment will serve as a means herein required if it conforms to the requirements herein.
(iii) In vacuum systems stopping the engine will serve as the required means, the system remaining evacuated as indicated by the vacuum gauge.
(a) General. In the manner and to the extent specified in paragraphs (b), (c), (d), and (e), a truck, or truck tractor must be equipped with a signal that provides a warning to the driver when a failure occurs in the vehicle's service brake system.
(b) Hydraulic brakes. A vehicle manufactured on or after July 1, 1973, and having service brakes activated by hydraulic fluid must be equipped with a warning signal that performs as follows:
(1) If Federal Motor Vehicle Safety Standard No. 105 (Section 571.105) was applicable to the vehicle at the time it was manufactured, the warning signal must conform to the requirements of that standard.
(2) If Federal Motor Vehicle Safety Standard No. 105 (Section 571.105) was not applicable to the vehicle at the time it was manufactured, the warning signal must become operative, before or upon application of the brakes in the event of a hydraulic type complete failure of a partial system. The signal must be readily audible or visible to the driver.
(c) Air brakes. A vehicle (regardless of the date it was manufactured) having service brakes activated by compressed air (air mechanical brakes) or a vehicle towing a vehicle having service brakes activated by compressed air (air mechanical brakes) must be equipped, and perform, as follows:
(1) The vehicle must have a low air pressure warning device that conforms to the requirements of either paragraph (c)(1) (i) or (ii).
(i) If Federal Motor Vehicle Safety Standard No. 121 (Section 571.121) was applicable to the vehicle at the time it was manufactured, the warning device must conform to the requirements of that standard.
(ii) If Federal Motor Vehicle Safety Standard No. 121 (Section 571.121) was not applicable to the vehicle at the time it was manufactured, the vehicle must have a device that provides a readily audible or visible continuous warning to the driver whenever the pressure of the compressed air in the braking system is below a specified pressure, which must be at least one half of the compressor governor cutout pressure.
(2) The vehicle must have a pressure gauge which indicates to the driver the pressure in pounds per square inch available for braking.
(d) Vacuum brakes. A vehicle (regardless of the date it was manufactured) having service brakes activated by vacuum or a vehicle towing a vehicle having service brakes activated by vacuum must be equipped with
(1) A device that provides a readily audible or visible continuous warning to the driver whenever the vacuum in the vehicle's supply reservoir is less than 8 inches of mercury; and
(2) A vacuum gauge which indicates to the driver the vacuum in inches of mercury available for braking.
(e) Hydraulic brakes applied or assisted by air or vacuum. A vehicle having a braking system in which hydraulically activated service brakes are applied or assisted by compressed air or vacuum must be equipped with both a warning signal that conforms to the requirements of paragraph (b) and a warning device that conforms to the requirements of either paragraph (c) or paragraph (d).
(f) Maintenance. The warning signals, devices, and gauges required by 38-393 must be maintained in operative condition.
(a) Upon application of its service brakes, a motor vehicle or combination of motor vehicles must under any condition of loading in which it is found on a public highway, be capable of
(1) Developing a braking force at least equal to the percentage of its gross weight specified in the table in paragraph (d);
(2) Decelerating to a stop from 20 miles per hour at not less than the rate specified in the table in paragraph (d); and
(3) Stopping from 20 miles per hour in a distance, measured from the point at which movement of the service brake pedal or control begins, that is not greater than the distance specified in the table in paragraph (d).
(b) Upon application of its emergency brake system and with no other brake system applied, a motor vehicle or combination of motor vehicles must, under any condition of loading in which it is found on a public highway, be capable of stopping from 20 miles per hour in a distance, measured from the point at which movement of the emergency brake control begins, that is not greater than the distance specified in the table in paragraph (d).
(c) Conformity to the stopping distance requirements of paragraphs (a) and (b) shall be determined under the following conditions:
(1) Any test must be made with the vehicle on a hard surface that is substantially level, dry, smooth, and free of loose material.
(2) The vehicle must be in the center of a 12 foot wide lane when the test begins and must not deviate from that lane during the test.
(d) Vehicle brake performance table:
WIDETABLE
NOTE--Some parts of this form are wider than one screen. To view
material that exceeds the width of this screen, use the right arrow
key. To return to the original screen, use the left arrow key.
: (a) There is a definite mathematical relationship between the figures in columns 2 and 3. If the decelerations set forth in column 3 are divided by 32.2 feet per second per second, the figures in column 2 will be obtained. (For example, 21 divided by 32.2 equals 65.2 percent.) Column 2 is included in the tabulation because certain brake testing devices utilize this factor.
(b) The decelerations specified in column 3 are an indication of the effectiveness of the basic brakes, and as measured in practical brake testing are the maximum decelerations attained at some time during the stop. These decelerations as measured in brake tests cannot be used to compute the values in column 4 because the deceleration is not sustained at the same rate over the entire period of the stop. The deceleration increases from zero to a maximum during a period of brake system application and brake force buildup. Also, other factors may cause the deceleration to decrease after reaching a maximum. The added distance which results because maximum deceleration is not sustained is included in the figures in column 4 but is not indicated by the usual brake testing devices for checking deceleration.
(c) The distances in column 4 and the decelerations in column 3 are not directly related. "Brake system application and braking distance in feet" (column 4) is a definite measure of the overall effectiveness of the braking system, being the distance traveled between the point at which the driver starts to move the braking controls and the point at which the vehicle comes to rest. It includes distance traveled while the brakes are being applied and distance traveled while the brakes are retarding the vehicle.
(d) The distance traveled during the period of brake system application and brake force buildup varies with vehicle type, being negligible for many passenger cars and greatest for combinations of commercial vehicles. This fact accounts for the variation from 20 to 40 feet in the values in column 4 for the various classes of vehicles.
(e) The terms "GVWR" and "GVW" refer to the manufacturer's gross vehicle rating and the actual gross vehicle weight, respectively.
38-393.53. Automatic brake adjusters and brake adjustment indicators.
(a) Automatic brake adjusters (hydraulic brake systems). Each commercial motor vehicle manufactured on or after October 20, 1993, and equipped with a hydraulic brake system, shall meet the automatic brake adjustment system requirements of Federal Motor Vehicle Safety Standard No. 105 (49 CFR 571.105, S5.1) applicable to the vehicle at the time it was manufactured.
(b) Automatic brake adjusters (air brake systems). Each commercial motor vehicle manufactured on or after October 20, 1994, and equipped with an air brake system shall meet the automatic brake adjustment system requirements of Federal Motor Vehicle Safety Standard No. 121 (49 CFR 571.121, S5.1.8) applicable to the vehicle at the time it was manufactured.
(c) Brake adjustment indicator (air brake systems). On each commercial motor vehicle manufactured on or after October 20, 1994, and equipped with an air brake system which contains an external automatic adjustment mechanism and an exposed pushrod, the condition of service brake under adjustment shall be displayed by a brake adjustment indicator conforming to the requirements of Federal Motor Vehicle Safety Standard No. 121 (49 CFR 571.121, S5.1.8) applicable to the vehicle at the time it was manufactured.
(a) Glazing material. Glazing material used in windshields, windows, and doors on a motor vehicle manufactured on or after December25, 1968, shall at a minimum meet the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 205 in effect on the date of manufacture of the motor vehicle. The glazing material shall be marked in accordance with FMVSS No. 205 (49 CFR 571.205, S6)
(b) Windshield required. Each bus, truck and truck-tractor shall be equipped with a windshield. Each windshield or portion of a multi-piece windshield shall be mounted using the full periphery of the glazing material.
(c) Windshield condition. With the exception of the condition listed in paragraphs (c)(1), (c)(2), and (c)(3), each windshield shall be free of discoloration or damage in the area extending upward from the height of the top of the steering wheel (excluding a 51 mm (2 inch) border at the top of the windshield) and extending from a 25 mm (1 inch) border at each side of the windshield or windshield panel. Exception:
(1) Coloring or tinting which meets the requirements of paragraph (d);
(2) Any crack that is not intersected by any other cracks;
(3) Any damaged area which can be covered by a disc 19 mm (3.4 inch) in diameter if not closer than 76 mm (3 inches) to any other similarly damaged area.
(d) Use of vision reducing matter. No motor vehicle may be operated with any label, sticker, decalcomania, or other vision reducing matter covering any portion of its windshield or windows at either side of the driver's compartment, except that stickers required by law may be affixed at the bottom of the windshield, provided no portion of any label, sticker, decalcomania, or other vision reducing matter may extend upward more than 4 1/2 inches from the bottom of such windshield.
Windows, if otherwise capable of complying with Regulation 38-393.61 (a) and (b), shall not be obstructed by bars or other such means located either inside or outside such windows such as would hinder the escape of occupants unless such bars or other such means are so constructed as to provide a clear opening, at least equal to the opening provided by the window to which it is adjacent, when subjected to the same test specified in Regulation 38-393.61(c). The point of application of such test force shall be such as will be most likely to result in the removal of the obstruction.
(a) Application of the rules. The rules apply to systems for containing and supplying fuel for the operation of motor vehicles or for the operation of auxiliary equipment installed on, or used in connection with, motor vehicles.
(b) Location. Each fuel system must be located on the motor vehicle so that
(1) No part of the system extends beyond the widest part of the vehicle;
(2) No part of a fuel tank is forward of the front axle of a power unit;
(3) Fuel spilled vertically from a fuel tank while it is being filled will not contact any part of the exhaust or electrical systems of the vehicle, except the fuel level indicator assembly;
(4) Fill pipe openings are located outside the vehicle's passenger compartment and its cargo compartment;
(5) A fuel line does not extend between a towed vehicle and the vehicle that is towing it while the combination of vehicles is in motion; and
(c) Fuel tank installation. Each fuel tank must be securely attached to the motor vehicle in a workmanlike manner.
(d) Gravity or syphon feed prohibited. A fuel system must not supply fuel by gravity or syphon feed directly to the carburetor or injector.
(e) Selection control valve location. If a fuel system includes a selection control valve which is operable by the driver to regulate the flow of fuel from two or more fuel tanks, the valve must be installed so that either
(1) The driver may operate it while watching the roadway and without leaving his/her driving position; or
(2) The driver must stop the vehicle and leave his/her seat in order to operate the valve.
(f) Fuel lines. A fuel line which is not completely enclosed in a protective housing must not extend more than 2 inches below the fuel tank or its sump. Diesel fuel crossover, return, and withdrawal lines which extend below the bottom of the tank or sump must be protected against damage from impact. Every fuel line must be
(1) Long enough and flexible enough to accommodate normal movements of the parts to which it is attached without incurring damage; and
(2) Secured against chafing, kinking, or other causes of mechanical damage.
(g) Excess flow valve. When pressure devices are used to force fuel from a fuel tank, a device which prevents the flow of fuel from the fuel tank if the fuel feed line is broken must be installed in the fuel system.
(1) A liquid fuel tank manufactured on or after January 1, 1973, and a side mounted gasoline tank must conform to all the rules.
(2) [Reserved]
(3) A diesel fuel tank manufactured before January 1, 1973, and mounted on a vehicle must conform to the rules in paragraph (c)(7)(iii) Reserved
(4) [FNa]
[FNa] So in original. No paragraph (a)(4) was promulgated by State Register Volume 30, Issue No. 4, eff April 28, 2006.
(5) A gasoline tank, other than a side mounted gasoline tank, manufactured before January 1, 1973, and mounted on a vehicle must conform to the rules in paragraphs (c) (1) through (10), inclusive.
(6) Private motor carrier of passengers. Motor carriers engaged in the private transportation of passengers may continue to operate a commercial motor vehicle which was not subject to 38-393 or 49 CFR 571.301 at the time of its manufacture, provided the fuel tank of such vehicle is maintained to the original manufacturer's standards.
(b) Definitions. As used in 38-393
(1) The term liquid fuel tank means a fuel tank designed to contain a fuel that is liquid at normal atmospheric pressures and temperatures.
(2) A side mounted fuel tank is a liquid fuel tank which
(i) If mounted on a truck tractor, extends outboard of the vehicle frame and outside of the plan view outline of the cab; or
(ii) If mounted on a truck, extends outboard of a line parallel to the longitudinal centerline of the truck and tangent to the outboard side of a front tire in a straight ahead position. In determining whether a fuel tank on a truck or truck tractor is side mounted, the fill pipe is not considered a part of the tank.
(c) Construction of liquid fuel tanks
(1) Joints. Joints of a fuel tank body must be closed by arc , gas , seam , or spot welding, by brazing, by silver soldering, or by techniques which provide heat resistance and mechanical securement at least equal to those specifically named. Joints must not be closed solely by crimping or by soldering with a lead based or other soft solder.
(2) Fittings. The fuel tank body must have flanges or spuds suitable for the installation of all fittings.
(3) Threads. The threads of all fittings must be Dryseal American Standard Taper Pipe Thread or Dryseal SAE Short Taper Pipe Thread, specified in Society of Automotive Engineers Standard J476, as contained in the 1971 edition of the "SAE Handbook," except that straight (nontapered) threads may be used on fittings having integral flanges and using gaskets for sealing. At least four full threads must be in engagement in each fitting.
(4) Drains and bottom fittings.
(i) Drains or other bottom fittings must not extend more than three fourths of an inch below the lowest part of the fuel tank or sump.
(ii) Drains or other bottom fittings must be protected against damage from impact.
(iii) If a fuel tank has drains the drain fittings must permit substantially complete drainage of the tank.
(iv) Drains or other bottom fittings must be installed in a flange or spud designed to accommodate it.
(5) Fuel withdrawal fittings. Except for diesel fuel tanks, the fittings through which fuel is withdrawn from a fuel tank must be located above the normal level of fuel in the tank when the tank is full.
(6) [Reserved]
(7) Fill pipe.
(i) Each fill pipe must be designed and constructed to minimize the risk of fuel spillage during fueling operations and when the vehicle is involved in a crash.
(ii) The fill pipe and vents of a fuel tank having a capacity of more than 25 gallons of fuel must permit filling the tank with fuel at a rate of at least 20 gallons per minute without fuel spillage.
(iii) Each fill pipe must be fitted with a cap that can be fastened securely over the opening in the fill pipe. Screw threads or a bayonet type joint are methods of conforming to the requirements of this subdivision.
(8) Safety venting system. A liquid fuel tank with a capacity of more than 25 gallons of fuel must have a venting system which, in the event the tank is subjected to fire, will prevent internal tank pressure from rupturing the tank's body, seams, or bottom opening (if any).
(9) Pressure resistance. The body and fittings of a liquid fuel tank with a capacity of more than 25 gallons of fuel must be capable of withstanding an internal hydrostatic pressure equal to 150 percent of the maximum internal pressure reached in the tank during the safety venting systems test specified in paragraph (d)(1).
(10) Air vent. Each fuel tank must be equipped with a nonspill air vent (such as a ball check). The air vent may be combined with the fill pipe cap or safety vent, or it may be a separate unit installed on the fuel tank.
(11) Markings. If the body of a fuel tank is readily visible when the tank is installed on the vehicle, the tank must be plainly marked with its liquid capacity. The tank must also be plainly marked with a warning against filling it to more than 95 percent of its liquid capacity.
(12) Overfill restriction. A liquid fuel tank manufactured on or after January 1, 1973, must be designed and constructed so that
(i) The tank cannot be filled, in a normal filling operation, with a quantity of fuel that exceeds 95 percent of the tank's liquid capacity; and
(ii) When the tank is filled, normal expansion of the fuel will not cause fuel spillage.
(d) Liquid fuel tank tests. Each liquid fuel tank must be capable of passing the tests specified in paragraphs (d) (1) and (2). [FN1]
(1) Safety venting system test
(i) Procedure. Fill the tank three fourths full with fuel, seal the fuel feed outlet, and invert the tank. When the fuel temperature is between 50 deg. F. and 80 deg. F., apply an enveloping flame to the tank so that the temperature of the fuel rises at a rate of not less than 6 deg. F. and not more than 8 deg. F. per minute.
(ii) Required performance. The safety venting system required by paragraph (c)(8) activate before the internal pressure in the tank exceeds 50 pounds per square inch, gauge, and the internal pressure must not thereafter exceed the pressure at which the system activated by more than five pounds per square inch despite any further increase in the temperature of the fuel.
(2) Leakage test
(i) Procedure. Fill the tank to capacity with fuel having a temperature between 50 deg. F. and 80 deg. F. With the fill pipe cap installed, turn the tank through an angle of 150 deg. in any direction about any axis from its normal position.
(ii) Required performance. Neither the tank nor any fitting may leak more than a total of one ounce by weight of fuel per minute in any position the tank assumes during the test.
(e) Side mounted liquid fuel tank tests. Each side mounted liquid fuel tank must be capable of passing the tests specified in paragraphs (e) (1) and (2) and the tests specified in paragraphs (d) (1) and (2). [FN1]
(1) Drop test
(i) Procedure. Fill the tank with a quantity of water having a weight equal to the weight of the maximum fuel load of the tank and drop the tank 30 feet onto an unyielding surface so that it lands squarely on one corner.
(ii) Required performance. Neither the tank nor any fitting may leak more than a total of 1 ounce by weight of water per minute.
(2) Fill pipe test
(i) Procedure. Fill the tank with a quantity of water having a weight equal to the weight of the maximum fuel load of the tank and drop the tank 10 feet onto an unyielding surface so that it lands squarely on its fill pipe.
(ii) Required performance. Neither the tank nor any fitting may leak more than a total of 1 ounce by weight of water per minute.
(f) Certification and markings. Each liquid fuel tank shall be legibly and permanently marked by the manufacturer with the following minimum information:
(1) The month and year of manufacture,
(2) The manufacturer's name on tanks manufactured on and after July 1, 1988, and means of identifying the facility at which the tank was manufactured, and
(3) A certificate that it conforms to the rules 38-393 applicable to the tank. The certificate must be in the form set forth in either of the following:
(i) If a tank conforms to all rules 38-393 pertaining to side mounted fuel tanks: "Meets all FHWA side mounted tank requirements."
(ii) If a tank conforms to all rules in 38-393 pertaining to tanks which are not side mounted fuel tanks: "Meets all FHWA requirements for non side mounted fuel tanks."
(iii) The form of certificate specified in paragraph (f)(3) (i) or (ii) may be used on a liquid fuel tank manufactured before July 11, 1973, but it is not mandatory for liquid fuel tanks manufactured before March 7, 1989. The form of certification manufactured on or before March 7, 1989, must meet the requirements in effect at the time of manufacture.
[FN1] The specified tests are a measure of performance only. Manufacturers and carriers may use any alternative procedures which assure that their equipment meets the required performance criteria.
(a) A fuel system that uses liquefied petroleum gas as a fuel for the operation of a motor vehicle or for the operation of auxiliary equipment installed on, or used in connection with, a motor vehicle must conform to the "Standards for the Storage and Handling of Liquefied Petroleum Gases" of the National Fire Protection Association, Battery March Park, Quincy, MA 02269, as follows:
(1) A fuel system installed before December 31, 1962, must conform to the 1951 edition of the Standards.
(2) A fuel system installed on or after December 31, 1962, and before January 1, 1973, must conform to Division IV of the June 1959 edition of the Standards.
(3) A fuel system installed on or after January 1, 1973, and providing fuel for propulsion of the motor vehicle must conform to Division IV of the 1969 edition of the Standards.
(4) A fuel system installed on or after January 1, 1973, and providing fuel for the operation of auxiliary equipment must conform to Division VII of the 1969 edition of the Standards.
(b) When the rules require a fuel system to conform to a specific edition of the Standards, the fuel system may conform to the applicable provisions in a later edition of the Standards specified in 38-393.
(c) The tank of a fuel system must be marked to indicate that the system conforms to the Standards.
Subpart F: Coupling Devices and Towing Methods
38-393.70. Coupling devices and towing methods, except for driveaway towaway operations.
(a) Tracking. When two or more vehicles are operated in combination, the coupling devices connecting the vehicles shall be designed, constructed, and installed, and the vehicles shall be designed and constructed, so that when the combination is operated in a straight line on a level, smooth, paved surface, the path of the towed vehicle will not deviate more than 3 inches to either side of the path of the vehicle that tows it.
(b) Fifth wheel assemblies
(1) Mounting
(i) Lower half. The lower half of a fifth wheel mounted on a truck tractor or converter dolly must be secured to the frame of that vehicle with properly designed brackets, mounting plates or angles and properly tightened bolts of adequate size and grade, or devices that provide equivalent security. The installation shall not cause cracking, warping, or deformation of the frame. The installation must include a device for positively preventing the lower half of the fifth wheel from shifting on the frame to which it is attached.
(ii) Upper half. The upper half of a fifth wheel must be fastened to the motor vehicle with at least the same security required for the installation of the lower half on a truck tractor or converter dolly.
(2) Locking. Every fifth wheel assembly must have a locking mechanism. The locking mechanism, and any adapter used in conjunction with it, must prevent separation of the upper and lower halves of the fifth wheel assembly unless a positive manual release is activated. The release may be located so that the driver can operate it from the cab. If a motor vehicle has a fifth wheel designed and constructed to be readily separable, the fifth wheel locking devices shall apply automatically on coupling.
(3) Location. The lower half of a fifth wheel shall be located so that, regardless of the condition of loading, the relationship between the kingpin and the rear axle or axles of the towing motor vehicle will properly distribute the gross weight of both the towed and towing vehicles on the axles of those vehicles, will not unduly interfere with the steering, braking, and other maneuvering of the towing vehicle, and will not otherwise contribute to unsafe operation of the vehicles comprising the combination. The upper half of a fifth wheel shall be located so that the weight of the vehicles is properly distributed on their axles and the combination of vehicles will operate safely during normal operation.
(c) Towing of full trailers. A full trailer must be equipped with a tow bar and a means of attaching the tow bar to the towing and towed vehicles. The tow bar and the means of attaching it must
(1) Be structurally adequate for the weight being drawn;
(2) Be properly and securely mounted;
(3) Provide for adequate articulation at the connection without excessive slack at that location; and
(4) Be provided with a locking device that prevents accidental separation of the towed and towing vehicles. The mounting of the trailer hitch (pintle hook or equivalent mechanism) on the towing vehicle must include reinforcement or bracing of the frame sufficient to produce strength and rigidity of the frame to prevent its undue distortion.
(d) Safety devices in case of tow bar failure or disconnection. Every full trailer and every converter dolly used to convert a semitrailer to a 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 meet the following requirements:
(1) The safety device must not be attached to the pintle hook or any other device on the towing vehicle to which the tow bar is attached. However, if the pintle hook or other device was manufactured prior to July 1, 1973, the safety device may be attached to the towing vehicle at a place on a pintle hook forging or casting if that place is independent of the pintle hook.
(2) The safety device must have no more slack than is necessary to permit the vehicles to be turned properly.
(3) The safety device, and the means of attaching it to the vehicles, must have an ultimate strength of not less than the gross weight of the vehicle or vehicles being towed.
(4) The safety device must be connected to the towed and towing vehicles and to the tow
