Regulatory Guidance:

Federal Register Volume 76, Number 108 (Monday, June 6, 2011)

Rules and Regulations

Pages 32327-32329

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

FR Doc No: 2011-13902

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration 49 CFR Parts 383 and 390

Regulatory Guidance on the Designation of Steerable Rear Axle

Operators (Tillermen) as Drivers of Commercial Motor Vehicles

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of Regulatory Guidance.

SUMMARY: FMCSA issues regulatory guidance concerning the applicability of the term ``driver'' to ``tillerman,'' a person who controls the steerable rear axle on a commercial motor vehicle. The term ``driver'' is used in FMCSA's commercial

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driver's license requirements and in the Agency's general safety rules.

This notice provides Federal and State enforcement personnel, and the motor carrier industry, with uniform guidance as to when certain

Federal rules concerning driver licensing and qualifications are applicable to tillermen.

DATES: Effective Date: This regulatory guidance is effective June 6, 2011.

FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, Driver and

Carrier Operations Division, Office of Bus and Truck Standards and

Operations, Federal Motor Carrier Safety Administration, 1200 New

Jersey Ave., SE., Washington, DC 20590. E-mail: MCPSD@dot.gov. Phone

(202) 366-4325.

SUPPLEMENTARY INFORMATION:

Legal Basis

The Motor Carrier Act of 1935 provides that ``The Secretary of

Transportation may prescribe requirements for (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation'' [49

U.S.C. 31502(b)].

The Motor Carrier Safety Act of 1984 (MCSA) confers on the

Secretary the authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to prescribe safety standards for commercial motor vehicles (CMVs). At a minimum, the regulations must ensure that (1) CMVs are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of

CMVs do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of CMVs is adequate to enable them to operate the vehicles safely; and (4) the operation of CMVs does not have a deleterious effect on the physical condition of the operator [49

U.S.C. 31136(a)]. The Act also grants the Secretary broad power to

``prescribe recordkeeping and reporting requirements'' and to ``perform other acts the Secretary considers appropriate'' [49 U.S.C. 31133(a)(8) and (10)].

The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) requires the Secretary to prescribe regulations on minimum licensing and testing standards for persons seeking a commercial driver's license (CDL) to operate a CMV. For purposes of the CMVSA, the term CMV means (among other things) a vehicle with a weight or weight rating of at least 26,001 pounds, compared to a minimum weight threshold of 10,001 pounds for purposes of the MCSA [49 U.S.C. chapter 313].

The Administrator of FMCSA has been delegated the authority to carry out the functions vested in the Secretary by the Motor Carrier

Act of 1935 [49 CFR 1.73(l)], the MCSA [Sec. 1.73(g)], and the CMVSA

Sec. 1.73(e)(1)

. The provisions affected by this Notice of

Regulatory Guidance are based on these three statutes.

Background

This document revises current regulatory guidance on the applicability of the definition of a ``driver'' in 49 CFR 390.5, to

``tillerman,'' a person exercising control over the movement of a steerable rear axle on a CMV. Section 390.5 states that ``Driver means any person who operates any [CMV].'' Today's guidance also pertains to

CDL requirements for ``* * * every person who operates a commercial motor vehicle (CMV) * * *'' (Sec. 383.3(a)).

Current Regulatory Guidance Question 14 to Sec. 390.5 (62 FR 16370, 16407, April 4, 1997) reads as follows:

``Question 14: Is the tillerman who controls the steerable rear axle of a vehicle so equipped a driver subject to the FMCSRs while operating in interstate commerce?

Guidance: Yes. Although the tillerman does not control the vehicle's speed or braking, the rear-axle steering he/she performs is essential to prevent the trailer from off tracking into other lanes or vehicles or off the highway entirely. Because this function is critical to the safe operation of vehicles with steerable rear axles, the tillerman is a driver.''

Reason for This Notice

The FMCSA has received inquiries from various entities, including the Professional Escort Vehicle Operators Association and the

Specialized Carriers and Riggers Association, asking about other circumstances under which a person exercising control over a CMV's steerable rear axle would be considered a driver of the CMV under Sec. 383.3 and thus subject to the CDL requirements, or a driver under Sec. 390.5 and therefore subject to many provisions of the FMCSRs, such as driver qualifications and hours of service.

In these new scenarios, the tillerman does not sit on the CMV, but walks alongside it to use a wired or wireless remote control to steer the rear axle; sometimes the tillerman may be in an escort car. These

CMVs are typically specialized oversize vehicles on which the rear axle is steered only when ``released'' and when the CMV is moving at very slow speeds.\1\ Under these circumstances, we do not believe that the persons operating the steerable rear axle should be classified as

``tillermen,'' as the term is used in Question 14. CDL knowledge and skills testing would have little relevance to the remote-control operation of a steerable rear axle on an oversized CMV. Therefore,

FMCSA believes it is necessary to update Question 14 for Sec. 390.5 to differentiate among persons who might be considered to be

``tillermen,'' consistent with the explanation above.

\1\ Steerable rear axles may have a ``locked'' or ``unlocked'' status, used for highway speeds and low speeds, respectively. The status can be changed by operation of the trailer controls when the

CMV is not moving. In the ``locked'' position, the axle may be completely fixed, or have a limited self-steering capability, depending on the manufacturer's design. In the self-steering mode, the axle automatically steers itself within a range determined by the manufacturer to prevent tire scrubbing in turns. Typically, the unlocked mode is used for over-length CMVs that cannot turn at many roadway intersections without steering the rear axle under close guidance of a remote operator.

FMCSA considers the tillerman's physical location in, on, or around a CMV to be the most relevant factor in determining whether the person is a driver. A tillerman physically located on a vehicle is likely to be responsible for steering the rear axles of the CMV at highway speeds, and should be held responsible for safe operation of the vehicle, just like the driver in the cab. Anyone controlling a steerable rear axle from outside the CMV would be doing so under the direction of the person in the cab, and should not be considered a driver. Although certain training may be needed for such remote operators, that would vary according to the equipment involved.

For the reasons explained above, FMCSA issues Regulatory Guidance

Question 34 to Sec. 383.3 and revises Question 14 of the Regulatory

Guidance to Sec. 390.5 of the FMCSRs.

PART 383--COMMERCIAL DRIVERS LICENSE STANDARDS; REQUIREMENTS AND

PENALTIES

Section 383.3, ``Applicability.''

``Question 34: Would a tillerman, a person exercising control over the steerable rear axle(s) on a commercial motor vehicle (CMV), be considered a driver or ``* * * person who operates a [CMV] * * *''

(Sec. 383.3), and thus subject to applicable commercial driver's license regulations?

Guidance:

A person physically located on the rear of the CMV who controls a steerable rear axle while the CMV is moving at

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highway speeds would be considered a ``* * * person who operates a commercial motor vehicle * * *'' (Sec. 383.3), and would therefore be subject to the applicable commercial driver's license regulations in 49

CFR part 383.

A person walking beside a CMV or riding in an escort car while controlling a steerable rear axle at slow speeds would not be considered a ``* * * person who operates a [CMV] * * *'' (Sec. 383.3), and therefore would not be subject to applicable commercial driver's license regulations.''

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

Section 390.5, ``Definitions.''

``Question 14: Would a tillerman, a person exercising control over the steerable rear axle(s) on a commercial motor vehicle (CMV), be considered a driver as defined in Sec. 390.5, and thus subject to 49

CFR Parts 390 to 399?

Guidance:

A person physically located on the rear of the CMV who controls a steerable rear axle while the CMV is moving at highway speeds would be considered a driver as defined in Sec. 390.5 and therefore would be subject to the regulations in 49 CFR parts 390-399.

A person walking beside a CMV or riding in an escort car while controlling a steerable rear axle at slow speeds would not be considered a driver as defined in Sec. 390.5 and would therefore not be subject to 49 CFR Parts 390 to 399.''

Issued on: May 25, 2011.

Anne S. Ferro,

Administrator.

FR Doc. 2011-13902 Filed 6-3-11; 8:45 am

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