[Code of Federal Regulations]

[Title 49, Volume 5]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR390.5]



[Page 309-314]

 

                        TITLE 49--TRANSPORTATION

 

                      DEPARTMENT OF TRANSPORTATION

 

PART 390_FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL--Table of 

Contents

 

             Subpart A_General Applicability and Definitions

 

Sec. 390.5  Definitions.



    Unless specifically defined elsewhere, in this subchapter:

    Accident means--

    (1) Except as provided in paragraph (2) of this definition, an 

occurrence involving a commercial motor vehicle operating on a highway 

in interstate or intrastate commerce which results in:

    (i) A fatality;

    (ii) Bodily injury to a person who, as a result of the injury, 

immediately receives medical treatment away from the scene of the 

accident; or

    (iii) One or more motor vehicles incurring disabling damage as a 

result of the accident, requiring the motor vehicle(s) 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.

    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.

    Bus means any motor vehicle designed, constructed, and or used for 

the transportation of passengers, including taxicabs.

    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.

    Charter transportation of passengers means transportation, using a 

bus, of a group of persons who pursuant to a common purpose, under a 

single contract, at a fixed charge for the motor vehicle, have acquired 

the exclusive use of the motor vehicle to travel together under an 

itinerary either specified in advance or modified after having left the 

place of origin.

    Commercial motor vehicle means any self-propelled or towed motor 

vehicle used on a highway in interstate commerce to transport passengers 

or property when the vehicle--

    (1) Has a gross vehicle weight rating or gross combination weight 

rating, or gross vehicle weight or gross combination weight, of 4,536 kg 

(10,001 pounds) or more, whichever is greater; or

    (2) Is designed or used 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



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driver, and is not used to transport passengers for compensation; or

    (4) Is used in transporting material found by the Secretary of 

Transportation to be hazardous under 49 U.S.C. 5103 and transported in a 

quantity requiring placarding under regulations prescribed by the 

Secretary under 49 CFR, subtitle B, chapter I, subchapter C.

    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.

    Direct assistance means transportation and other relief services 

provided by a motor carrier or its driver(s) incident to the immediate 

restoration of essential services (such as, electricity, medial care, 

sewer, water, telecommunications, and telecommunication transmissions) 

or essential supplies (such as, food and fuel). It does not include 

transportation related to long-term rehabilitation of damaged physical 

infrastructure or routine commercial deliveries after the initial threat 

to life and property has passed.

    Direct compensation means payment made to the motor carrier by the 

passengers or a person acting on behalf of the passengers for the 

transportation services provided, and not included in a total package 

charge or other assessment for highway transportation services.

    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 an operation in which an empty or 

unladen motor vehicle with one or more sets of wheels on the surface of 

the roadway is being transported:

    (1) Between vehicle manufacturer's facilities;

    (2) Between a vehicle manufacturer and a dealership or purchaser;

    (3) Between a dealership, or other entity selling or leasing the 

vehicle, and a purchaser or lessee;

    (4) To a motor carrier's terminal or repair facility for the repair 

of disabling damage (as defined in Sec. 390.5) following a crash; or

    (5) To a motor carrier's terminal or repair facility for repairs 

associated with the failure of a vehicle component or system; or

    (6) By means of a saddle-mount or tow-bar.

    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 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 Table 1 to Sec. 383.51 or Sec. 

392.5(a)(2) of this subchapter.

    Emergency means any hurricane, tornado, storm (e.g. thunderstorm, 

snowstorm, icestorm, 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,



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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 as defined in this section.

    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 

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.

    Exempt intracity zone means the geographic area of a municipality or 

the commercial zone of that municipality described in appendix F to 

subchapter B of this chapter. The term ``exempt intracity zone'' does 

not include any municipality or commercial zone in the State of Hawaii. 

For purposes of Sec. 391.62, a driver may be considered to operate a 

commercial motor vehicle wholly within an exempt intracity zone 

notwithstanding any common control, management, or arrangement for a 

continuous carriage or shipment to or from a point without such zone.

    Exempt motor carrier means a person engaged in transportation exempt 

from economic regulation by the Federal Motor Carrier Safety 

Administration (FMCSA) under 49 U.S.C. 13506. ``Exempt motor carriers'' 

are subject to the safety regulations set forth in this subchapter.

    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 

Sec. 177.823 of this subtitle; 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 Administrator means the chief executive 

of the Federal Motor Carrier Safety Administration, an agency within the 

Department of Transportation.

    For-hire motor carrier means a person engaged in the transportation 

of goods or passengers for compensation.

    Gross combination weight rating (GCWR) means the value specified by



[[Page 312]]



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 Sec. 172.101, List of Hazardous 

Substances and Reportable Quantities, of this title 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 Sec. 171.8 of this title, based on the reportable 

quantity (RQ) specified for the materials listed in the appendix to 

Sec. 172.101.

    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 originating 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 

subchapter 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 Motor Carrier Safety 

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.

    Multiple-employer driver means a driver, who in any period of 7 

consecutive days, is employed or used as a driver by more than one motor 

carrier.

    Operator--See driver.



[[Page 313]]



    Other terms--Any other term used in this subchapter is used in its 

commonly accepted meaning, except where such other term has been defined 

elsewhere in this subchapter. 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 Sec. Sec. 386.72, 

392.5, 395.13, 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 the single location designated by 

the motor carrier, normally its headquarters, for purposes of 

identification under this subchapter. The motor carrier must make 

records required by parts 382, 387, 390, 391, 395, 396, and 397 of this 

subchapter available for inspection at this location within 48 hours 

(Saturdays, Sundays, and Federal holidays excluded) after a request has 

been made by a special agent or authorized representative of the Federal 

Motor Carrier Safety Administration.

    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 (nonbusiness) 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.

    Regional Director of Motor Carriers means the Field Administrator, 

Federal Motor Carrier Safety Administration, for a given geographical 

area of the United States.

    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.

    School bus means a passenger motor vehicle which is designed or used 

to carry more than 10 passengers in addition to the driver, and which 

the Secretary determines is likely to be significantly used for the 

purpose of transporting preprimary, primary, or secondary school 

students to such schools from home or from such schools to home.

    School bus operation means the use of a school bus to transport only 

school children and/or school personnel from home to school and from 

school to home.

    Secretary means the Secretary of Transportation.

    Single-employer driver means a driver who, in any period of 7 

consecutive days, is employed or used as a driver solely by a single 

motor carrier. This term includes a driver who operates a commercial 

motor vehicle on an intermittent, casual, or occasional basis.

    Special agent See appendix B to subchapter B--Special agents.



[[Page 314]]



    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 semitrailer 

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) Semitrailer 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.

    United States means the 50 States and the District of Columbia.



[53 FR 18052, May 19, 1988]



    Editorial Note: For Federal Register citations affecting Sec. 

390.5, see the List of CFR Sections Affected, which appears in the 

Finding Aids section of the printed volume and on GPO Access.