§390.3 General Applicability
Question 1: Does the government
exception in §390.3(f)(2)
apply to motor carriers doing business with the government?
Guidance: No. The exception applies only when the
government is the motor carrier.
Question 2: Are the FMCSRs
applicable to drivers and CMVs
which transport tools, equipment, and supplies across State lines in a CMV?
Guidance: Yes, the FMCSRs are
applicable to drivers and CMVs
in interstate commerce which transport property. The
property in this situation is the tools, equipment and supplies.
Question 3: Are the operations of a
church which provides bus tours to the general public for compensation subject
to the FMCSRs
as a for- hire motor carrier?
Guidance: Yes, the church is a for-hire motor
carrier of passengers subject to the FMCSRs.
Question 4: Are the FMCSRs
applicable to the rail movement of trailers and intermodal
container chassis that previously or subsequently were moved by highway by a motor
carrier in interstate commerce?
Guidance: No. They are only subject when being
moved as a motor vehicle by highway by a motor carrier.
Question 5: Are personnel involved
in road testing CMVs
across a State line subject to the FMCSRs?
Guidance: Yes, any driver (including mechanics,
technicians, driver trainees and other personnel) operating a CMV
in interstate commerce must be in compliance with the FMCSRs.
Question 6: How does one distinguish
between intra- and interstate commerce for the purposes of applicability of the
FMCSRs?
Guidance: Interstate commerce is determined by the
essential character of the movement, manifested by the shipper's fixed and
persistent intent at the time of shipment, and is ascertained from all of the
facts and circumstances surrounding the transportation. When the intent of the
transportation being performed is interstate in nature, even when the route is within the
boundaries of a single State, the driver and CMV are subject to the FMCSRs.
Question 7: Are Red Cross
vehicles/drivers subject to the FMCSRs?
Guidance: Red Cross vehicles/drivers used to
provide emergency relief under the provisions of §390.23 are not subject to
the FMCSRs
while providing the relief. However, these vehicles/drivers would be subject
when operating at other times, provided they are used in interstate commerce
and the vehicles meet the definition of a CMV.
Question 8: May a motor carrier
require fingerprinting as a pre- employment condition?
Guidance: The FMCSRs do not
require or prohibit fingerprinting as a condition of employment. §390.3(d) allows
employers to enforce more stringent requirements.
Question 9: Are the FMCSRs
applicable to drivers/vehicles operated by a State or local educational
institution which is a political subdivision of the State?
Guidance: §390.3(f)(2)
specifically exempts transportation performed by a State or a political
subdivision including any agency of a State or locality from the FMCSRs.
The drivers, however, may be subject to the CDL requirements and/or State laws
that are similar to the FMCSRs.
Question 10: Are the FMCSRs
applicable to drivers/vehicles operated by a transit authority owned and
operated by a State or a political subdivision of the State?
Guidance: §390.3(f)(2)
specifically exempts transportation performed by the Federal Government, a
State, or any political subdivision of a State from the FMCSRs.
However, this exemption does not apply to the CDL requirements in part 383. Also, if
governmental entities engage in interstate charter transportation of
passengers, they must comply with accident report retention requirements of part 390.
Question 11: Is the interstate
transportation of students, teachers and parents to school events such as
athletic contests and field trips performed by municipalities subject to the FMCSRs?
If a fee is charged to defer the municipality's expenses, does this affect the
applicability of the regulations?
Guidance: §390.3(f)(2)
specifically exempts transportation performed by the Federal Government, a
State, or any political subdivision of a State from the FMCSRs.
Charging a fee to defer governmental costs does not affect this exemption.
However, this exemption does not apply to the CDL requirements in part 383. Also, if
governmental entities engage in interstate charter transportation of
passengers, they must comply with accident report retention requirements of part 390.
Question 12: What is the
applicability of the FMCSRs to
school bus operations performed by Indian Tribal Governments?
Guidance: Transportation performed by the Federal
Government, States, or political subdivisions of a State is generally excepted
from the FMCSRs.
This general exception includes Indian Tribal Governments, which for purposes
of §390.3(f) are
equivalent to a State governmental entity. When a driver is employed and a bus
is operated by the governmental entity, the operation would not be subject to
the FMCSRs,
with the following exceptions: The requirements of part 383 as they pertain to
commercial driver licensing standards are applicable to every driver operating
a CMV,
and the accident report retention requirements of part 390 are applicable when
the governmental entity is performing interstate charter transportation of
passengers.
Question 13: A motor carrier
dispatches an empty CMV from State A into
adjoining State B in order to transport cargo or passengers between two points
in State B, and then to return empty to State A. Does the transportation of
cargo or passengers within State B constitute interstate commerce?
Guidance: Yes. The courts and the ICC developed a test that clarifies
the legal status of intrastate portions of interstate trips. The character of
the intrastate leg depends on the shipper's fixed and persistent intent when
the transportation began. The fixed and persistent intent in this case was to
move property--the vehicle itself--across State lines and between two points in
State B where it was used to haul cargo or passengers. The transportation
within State B, therefore, constitutes interstate commerce. In some cases the
motor carrier may be the shipper.
Question 14: What is the
applicability of the FMCSRs to motor
carriers owning and operating school buses that contract with a municipality to
provide pupil transportation services?
Guidance: For the purposes of the FMCSRs,
parts 390-399,
"school bus operation" means the use of a school bus to transport
school children and/or school personnel from home to school and from school to
home. A "school bus" is a passenger motor vehicle
designed to carry more than 10
passengers in addition to the driver, and used primarily for school bus
operations (see §390.5).
School bus operations and transportation performed by government entities are
specifically exempted from the FMCSRs under §390.3(f).
However, anyone operating school buses under contract with
a school is a for-hire motor carrier. When a nongovernment,
for-hire motor carrier transports children to school-related functions other
than "school bus operation" such as sporting events, class trips,
etc., and operates across State lines, its operation must be conducted in
accordance with the FMCSRs. This
applies to motor carriers that operate CMVs
as defined under part 390
which includes vehicles which have a GVWR
of 10,001 pounds or more or are designed or used to carry passengers for
compensation, except 6-passenger taxicabs not operating on fixed routes.
In certain instances, carriers providing school bus
transportation are not subject to the Bus Regulatory Reform Act of 1982 and the
minimum financial responsibility requirements (part 387) issued under this
Act. Transportation of school children and teachers that is organized,
sponsored, and paid for by the school district is not subject to part 387. Therefore, school
bus contractors must comply with the FMCSRs for
interstate trips such as sporting events and class trips but are not required
by Federal regulations to carry a specific level of insurance coverage.
For those operations provided by school bus contractors
that are subject to the FMCSRs, the
motor carriers must keep driver and vehicle records as required by the
regulations. This would include driver qualifications records (part 391), driver records of
duty status (part 395),
accident report retention (part
390), and inspection, repair, and maintenance records (part 396) for the drivers and
vehicles that are used on the trips that are subject to the FMCSRs.
These records are not required under the FMCSRs for the
other vehicles in the motor carrier's fleet that are not subject to the
regulations.
Question 15: May drivers be
coerced into employing loading or unloading assistance (lumpers)?
Guidance: No. The Motor Carrier Act of 1980 made it
illegal to coerce someone into unwanted loading or unloading and require
payment for it (49 U.S.C. 14103, previously 49 U.S.C. 11109). The FHWA is responsible for the
enforcement of regulations forbidding coercion in the use of lumpers.
Question 16: a. Are vehicles which,
in the course of interstate transportation over the highway, are off the
highway, loading, unloading or waiting, subject to the FMCSRs
during these times?
b. Are vehicles and drivers used wholly within terminals
and on premises or plant sites subject to the FMCSRs?
Guidance:
a. Yes.
b. No.
Question 17: What protection is
afforded a driver for refusing to violate the FMCSRs?
Guidance: Section 405 of the STAA—Surface Transportation Assistance
Act of 1982 (49 U.S.C. 31105) states, in part, that no person shall
discharge, discipline, or in any manner discriminate against an employee with
respect to the employee's compensation, terms, conditions, or privileges of
employment for refusing to operate a vehicle when such operation constitutes a
violation of any Federal rule, regulation, standard, or order applicable to CMV
safety. In such a case, a driver may submit a signed complaint to the
Occupational Safety and Health Administration.
Question 18: Are persons who
operate CMVs
for the personal conveyance of their friends or family members "private
motor carriers of passengers (nonbusiness)" as defined
in §390.5?
Guidance: No. Nonbusiness
private motor carriers of passengers (PMCPs) do not include
individuals providing personal conveyance of passengers for recreational
purposes. A nonbusiness PMCP must be engaged in some group activity.
For example, organizations that are exempt under the Internal Revenue Code (26
U.S.C. 501) and provide transportation for their members would generally be
considered nonbusiness
PMCPs:
Religious, charitable, scientific, and educational organizations, scouting
groups, sports clubs, fraternal societies or lodges, etc.
Question 19: "Unless otherwise
specifically provided," §390.3(f)(2)
exempts certain government entities and their drivers from compliance with 49 CFR Chapter III, Subchapter B, i.e., parts 350- 399. Which parts are covered
by this exemption and which are "otherwise specifically" excluded?
Guidance: Government employers and drivers are
exempt from compliance with parts
325, 385, 387, and 390-399. However, they must
comply with the drug and alcohol testing requirements in part 382 and the CDL requirements in part 383. Parts 350, 355, 384, 386, 388, and 389 do not directly regulate CMV
operators, public or private, and the question of an exemption therefore does
not arise.
Question 20: Do the FMCSRs
apply to Indian Tribal Governments?
Guidance: Under §390.3(f)(2),
transportation performed by the Federal Government, States, or political
subdivisions of a State is generally exempt from the FMCSRs.
Indian Tribal Governments are considered equivalent to a State governmental
entity for purposes of this exemption. Thus, when a driver is employed by and
is operating a CMV owned by a
governmental entity, neither the driver, the vehicle, nor the entity is subject
to the FMCSRs,
with the following exceptions:
(1) The requirements of part 383 relating to CMV
driver licensing standards;
(2) The drug testing requirements in part 382;
(3) Alcohol testing when an employee is performing, about
to perform, or just performed safety-sensitive functions. For the purposes of
alcohol testing, safety-sensitive functions are defined in §382.107 as any of those
on-duty functions set forth in §395.2
On-Duty time, paragraphs (1) through (6), (generally, driving and related
activities) and;
(4) The accident report retention requirements of §390.15 are applicable when
the governmental entity is performing interstate charter transportation of
passengers.
Question 21: Does the exemption in §390.3(f)(3)
for the "occasional transportation of personal property by individuals not
for compensation nor in the furtherance of a commercial enterprise" apply
to persons who occasionally use CMVs
to transport cars, boats, horses, etc., to races, tournaments, shows or similar
events, even if prize money is offered at these events?
Guidance: The exemption would apply to this kind of
transportation, provided: (1) The underlying activities are not undertaken for
profit, i.e., (a) prize money is declared as ordinary income
for tax purposes, and (b) the cost of the underlying activities is not deducted
as a business expense for tax purposes; and, where relevant; (2) corporate
sponsorship is not involved. Drivers must confer with their State of licensure
to determine the licensing provisions to which they are subject.
Question 22: If, after
Guidance: No. Driving beyond the four
Question 23: Is transportation
within the boundaries of a State between a place in an Indian Reservation and a
place outside such reservation interstate commerce?
Guidance: No, such transportation is considered to
be intrastate commerce. An Indian reservation is geographically located within
the area of a State. Enforcement on Indian reservations is inherently Federal,
unless such authority has been granted to the States by Congressional
enactment, accepted by the States where appropriate, and consented to
by the Indian tribes.
Question 24: To what extent does
the FHWA have jurisdiction to regulate the qualifications and hours of service
of CMV drivers engaged in interstate or foreign commerce if the drivers only
occasionally operate in interstate or foreign commerce?
Guidance: The FHWA published an interpretation in the Federal Register on
The
FHWA must show that the driver or motor carrier has actually operated in
interstate commerce within a reasonable period of time prior to its assertion
of jurisdiction. Mere solicitation of business that would involve operations in
interstate commerce is not sufficient to establish jurisdiction. If
jurisdiction is claimed over a driver who has not driven in interstate
commerce, evidence must be presented that the carrier has operated in
interstate commerce and that the driver could reasonably be expected to make
one of the carrier's interstate runs. Satisfactory evidence would include, but
not be limited to, statements from drivers and carriers and any employment
agreements.
Evidence
of driving or being available for use in interstate commerce makes the driver
subject to the FMCSRs for a 4-month period from the date of the proof.
For that period, the motor carrier is also required to comply with those
portions of the FMCSRs that deal with drivers, driving, and records
related to or generated by drivers, primarily those in 49 CFR parts 387, 391,
392, 395 and 396. The FHWA believes that the 4-month period is reasonable
because it avoids both a week-by-week determination of jurisdiction, which is
excessively narrow, and the assertion that a driver who is used or available
for use once remains subject to the FMCSRs for an unlimited time, which is
overly inclusive.
Editor's Note: The following memorandum was issued
On
After considering the issues raised by the July memo, I
have decided to change the policy of the FMCSA. This memorandum explains
when the agency will exercise jurisdiction over intrastate operations of motor
carriers and drivers that sometimes operate interstate.
Background
The statutes on which most of the Federal Motor Carrier
Safety Regulations (FMCSRs) are based apply only
to “interstate commerce.” The extent of the jurisdiction conferred by
that term has been decided by the Federal courts in a long series of
cases. Most of the motor carrier cases analyzing “interstate commerce”
involve disputes about overtime pay under the Fair Labor Standards Act
(FLSA). The FLSA exempts employers from the requirement to pay overtime
to any employee “with respect to whom the Secretary of Transportation has power
to establish qualifications and maximum hours of service” under the Motor
Carrier Act of 1935 (i.e., 49 U.S.C. 31502). Since the 1935 Act applies
only to “interstate commerce,” the courts have had to determine whether drivers
not currently operating across State lines may nonetheless be subject to the
“power” of the Secretary, and thus not entitled to overtime pay.
In 1981 the Federal Highway Administration (FHWA), on
behalf of its Bureau of Motor Carrier Safety, published a notice in the Federal
Register (46 FR 37902, July 23, 1981) discussing the more important FLSA
cases and interpreting its “jurisdiction to regulate the qualifications and
maximum hours of service of commercial motor vehicle drivers engaged in
interstate or foreign commerce.” The notice summarized the conclusions of
these cases as follows:
If in the regular course of employment a driver is, or
could be, called upon to transport a shipment in interstate commerce the driver
would be subject to the FHWA’s jurisdiction under 49
U.S.C. 304 [i.e., the Motor Carrier Act of 1935, now codified at 49 U.S.C.
31502]. 49 U.S.C. 304 provides the authority to regulate the
qualifications and maximum hours of service of employees and safety of
operation and equipment of common carriers, contract carriers, private carriers
of property, and carriers of migrant workers. . . . These cases
establish the basic tests for determining whether a driver is subject to Federal
jurisdiction under
49 U.S.C. 304. They hold that even a minor involvement in interstate
commerce as a regular part of an employee’s duties will subject that employee
to the jurisdiction of the FHWA. In two of the cases mentioned, “Morris
v. McComb”
[332 U.S. 422, Supreme Court, 1947] and “Starrett v. Bruce” [391 F.2d
320 (10th Cir. 1968)], the courts found jurisdiction over drivers
even though those drivers had not driven at all in interstate commerce.
The findings of jurisdiction were based on the probability of those drivers
being assigned to interstate runs in the regular course of their employment.
The 1981 notice reached the following conclusion:
The FHWA view is that in order to establish jurisdiction
under 49 U.S.C. 304 [now 49 U.S.C. 31502] the carrier must be shown to have
engaged in interstate commerce within a reasonable period of time prior to the
time at which jurisdiction is in question. The carrier’s involvement in
interstate commerce must be established by some concrete evidence such as an actual
trip in interstate commerce or proof, in the case of a “for hire” carrier, that
interstate business had been solicited. If jurisdiction is claimed over a
driver who has not driven in interstate commerce, evidence must be presented
that the carrier has engaged in interstate commerce and that the driver could
reasonably have been expected to make one of the carrier’s interstate
runs. Satisfactory evidence would be statements from drivers and
carriers, and any employment agreements.
Evidence of driving in interstate commerce or being
subject to being used in interstate commerce should be accepted as proof that
the driver is subject to 49 U.S.C. 304 for a 4-month period from the date of
the proof. The FHWA believes that the 4-month period is reasonable because
it avoids both the too strict week-by-week approach and the situation where a
driver could be used or be subject to being used once and remain subject to
jurisdiction under 49 U.S.C. 304 for an unlimited time.
Although the notice of interpretation was never included
in the Code of Federal Regulations, the FHWA summarized it in the Regulatory
Guidance for the FMCSRs published on
Despite the 1981 and 1997 publications, the Office of
Motor Carriers (OMC) and the OMCHS never applied the so-called 4-month rule, or
at least not universally. My July 6 memorandum was designed to create a
new, consistent policy for OMC. As mentioned above, however, it has
created more problems than it resolved. I am therefore issuing this
document to establish a new national policy for the FMCSA.
National Policy
Safety is the highest priority of the FMCSA.
Enforcement of the hours of service regulations is a critical part of that
mandate. Drivers who operate in interstate commerce must be in compliance
with 49 C.F.R. Part 395 before, during and after interstate trips.
Although the case law discussed in the 1981 notice of interpretation clearly
supports an assertion of jurisdiction over a driver for four months after a
single interstate trip, a 4-month rule is not necessary to prevent
fatigue. The rules in Part 395 control hours of service in periods of
either 7 consecutive days (if the carrier does not operate every day of the
week) or 8 consecutive days (if the carrier operates every day of the
week). Because compliance with Part 395 during the 7- or 8-day period
before and after an interstate trip will keep driver fatigue within manageable
bounds, the FMCSA will replace the 4-month rule with a 14/15-day rule.
1. Any driver who begins a trip in interstate
commerce must continue to meet the requirements of 49 CFR 395.3(a) and (b)
through the end of the next 7 to 8 consecutive days, depending on which rule
the motor carrier operates under.
The driver must continue to comply
with the requirements of 49 CFR Part 395, even if he/she operates exclusively
in intrastate commerce for the remainder of the 60/70 hour period (i.e. 7-8 day
schedule) at the end of the interstate trip. The driver must also
continue to comply with the 10- and 15-hour rules as well as the 60- or 70-hour
rules for the remainder of that day, and the following 7 days (if the 60-hour
rule was applicable) or 8 days (if the 70-hour rule was applicable).
A driver who begins a trip in
interstate commerce in a CMV must have in his/her possession a copy of records
of duty status for the previous 7 consecutive days, as required by 49 CFR
395.8(k)(2) unless they meet 49 CFR 395.1(e), even if the driver
operated only in intrastate commerce during that 7-day period. During the
7-day period prior to the interstate trip the driver may follow the
state regulations applicable to intrastate commerce with regard to the states’
CMV driving and on-duty requirements.
2. FMCSA investigators should cite drivers for
violations of the 10- or 15-hour rules or the 60- or 70-hour rules that are
committed while on the interstate trip or during the 7 or 8 days after
completing the interstate trip (depending on which rule the motor carrier
operates under).
The driver remains subject to Part
395 for 7 or 8 days after a trip in interstate commerce even if he/she drives
only in intrastate commerce for that period. Violations of the policies
stated here which are discovered during compliance reviews should be treated
like any other violations of the FMCSRs in determining the
motor carrier’s safety rating and enforcement action may be taken.
3. The MCSAP Tolerance Guidelines in Appendix
C to 49 C.F.R. Part 350 are unchanged. This
policy statement simply clarifies the difference between Paragraphs 2 and 3 of
the Guidelines, i.e., between the type of trips subject to Federal
jurisdiction, as opposed to those subject only to State jurisdiction.
The FMCSA does not disagree with the legal conclusions the
FHWA reached in the 1981 notice of interpretation. However, in the
interest of simplicity and workability, I have decided to replace the so-called
4-month rule with a 14/15-day rule.
Question 25: Do the Federal Motor
Carrier Safety Regulations apply to transportation performed by the federal
government of a foreign country, or by a state, provincial, or territorial
government of a foreign country? [Editor's
Note]
Guidance: Yes. Although §390.3(f)(2)
includes an exception for transportation performed by the Federal government, a
State, or any political subdivision of a State, the exceptions are only
applicable to government entities in the
Question 26: Is the operation of fire trucks and rescue vehicles in interstate commerce by a private firefighting company subject to the FMCSRs when the company provides its services under contract to Federal or State agencies?
Guidance: Generally, 49 CFR parts 390-399 (FMCSRs) are
not applicable to the operation of fire trucks and rescue vehicles by private
contract fire companies while such vehicles are being used in emergency and
related operations, i.e., while their personnel are engaged in firefighting or
participating in rescue operations, and when their vehicles are returning from
the emergency or rescue scene [see 49 CFR 390.3(f)(5)]. In such
cases, private contract fire companies? drivers and vehicles are not
subject to most of the safety regulations.
In addition to 49 CFR 390.3(f)(5)
, private contract firefighting companies are also exempted by 49 CFR 390.23 when providing direct
assistance during national, regional or local emergencies. The term
"emergency," as used in § 390.23,
means an occurrence, natural or manmade, that interrupts the delivery of
services (such as electricity, medical care, sewer, water, telecommunications,
and telecommunications transmissions) or supplies (such as food and fuel), or
that otherwise immediately threatens human life or public welfare. The
occurrence must result in a declaration of an emergency by the President of the
With regard to non-emergency and rescue activities, such as training
exercises, emergency preparedness drills, or pre-positioning of personnel and
equipment prior to an actual emergency, private contract fire companies must
comply with the FMCSR while operating commercial motor vehicles in interstate
commerce.
Question 27:
Section 390.3(f)(5)
provides an exemption from the FMCSRs for the operation of
fire trucks and rescue vehicles while such vehicles are being used in emergency
and related operations. What is meant by the phrase "emergency and related
operations"?
Guidance: The term "emergency,"
as used in § 390.3(f)(5)
, includes any occurrence, natural or manmade, that immediately threatens human
life or public welfare, and requires the work of firefighters or rescue
personnel to respond to the threat. Such occurrences include, but are not
limited to, fires, floods, motor vehicle crashes, and medical emergencies. An
emergency, however, need not have been formally declared by a governmental
authority in order to utilize this exemption.
The term "related operations" includes driving fire trucks or
rescue vehicles to the scene of an emergency, and driving such vehicles while
returning from the emergency or rescue scene. "Related operations"
does not include the pre-positioning of fire trucks or rescue vehicles in
anticipation of emergencies, or the use of such vehicles in training or
emergency preparedness exercises.
Question 28: Is
the operation of motor vehicles designed or used to transport between 9 and 15
passengers (including the driver), in interstate commerce, by private
firefighting companies transporting their employees subject to the FMCSRs?
Guidance: No. Although the 9- to
15-passenger vehicles are being operated in interstate commerce, firefighting
companies transporting their own employees would be considered private motor
carriers of passengers with regard to the operation of these vehicles because
the passengers are not being transported for compensation. Vehicles designed or
used to transport 9- to 15-passengers, in interstate commerce, but not for
compensation, are excluded from the definition of "commercial motor
vehicle" found at 49 CFR 390.5
. Therefore, the FMCSRs are not applicable to the operation of
such vehicles, even if the firefighting company operates other vehicles that
are subject to the safety regulations.
Question 29:
Section 390.3(f)(5)
provides an exemption from the FMCSRs for the operation of fire
trucks and rescue vehicles while such vehicles are being used in emergency and
related operations. Section 390.23 provides an exception to most
of the FMCSRs
for motor carriers providing direct assistance during an emergency. What are the differences between these
provisions when they are applied to contract wildfire suppression services?
Guidance: Section 390.3(f)(5) provides
an exception to all of the requirements in Subchapter B of Chapter III, Title
49 of the Code of Federal Regulations (49 CFR Parts 350 through 399) for certain
operations of fire trucks and rescue vehicles.
By contrast the exception provided by § 390.23 is limited to all of the
requirements in 49 CFR Parts 390
through 399 and may be used by any motor carrier, including contract
wildfire suppression services, providing direct assistance during an emergency,
as defined in 49 CFR 390.5.
The exception provided by § 390.3(f)(5) may be used by operators of fire trucks and rescue vehicles while such vehicles are used in emergency and related operations, regardless of whether there is an emergency declaration. The exception provided in § 390.23 always requires 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, such as 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.
Question 30:
Section 390.3(f)(5)
provides an exemption from the FMCSRs for the operation of
fire trucks and rescue vehicles while such vehicles are being used in emergency
and related operations. Is this
exemption applicable to all fire trucks and rescue vehicles, or is it limited
to such vehicles when they are used for emergency and related operations
associated with occurrences in or around residential or commercial buildings or
structures?
Guidance: Section 390.3(f)(5) is applicable to all fire
trucks and rescue vehicles while such vehicles are being used in emergency and
related operations, regardless of whether the emergency or related operation
involves occurrences in or around residential or commercial buildings or
structures. For example, § 390.3(f)(5)
is applicable to fire trucks and rescue vehicles used by wildfire suppression
services when these vehicles are used in emergency and related operations,
regardless of whether there are buildings or structures in the immediate
vicinity of the fire suppression activities.
Question 31:
Section 390.3(f)(5)
provides an exemption from the FMCSRs for the operation of
fire trucks and rescue vehicles while such vehicles are being used in emergency
and related operations. What is meant by
the phrase “fire trucks and rescue vehicles?”
Guidance: For the purposes of § 390.3(f)(5), the term “fire trucks and rescue vehicles” should be considered to include a wide range of fire and rescue apparatus used by fire fighters, such as, but not limited to, pumper trucks (which may or may not be equipped with water tanks) and rescue trucks (used to transport a crew and various emergency equipment; they may or may not be equipped with water pumping equipment) used primarily or exclusively for fire and rescue operations.
The term “fire trucks and rescue vehicles” should not be considered to include certain wildfire suppression services support vehicles such as: trucks operated by caterers or other food vendors; cargo tank vehicles and trailers operated by water supply companies; cargo tank vehicles and trailers used to transport fuel for helicopters and auxiliary equipment such as generators; vehicles used to transport tents (or other temporary shelters), portable showers, or portable/mobile restrooms; or, buses designed or used to transport 16 or more passengers, including the driver. Although cargo tank vehicles and trailers operated by water supply companies should not be considered fire trucks or rescue vehicles, wildfire suppression efforts that require significant use of water supply companies are likely to result in the declaration of an emergency, as defined in 49 CFR 390.5. If an emergency is declared, all motor carriers, including water supply companies, providing direct assistance (as defined in 49 CFR 390.5) in responding to the emergency would be covered by § 390.23, an exception to all of the requirements of 49 CFR Parts 390 through 399.