{"database": "openregs", "table": "cfr_sections", "is_view": false, "human_description_en": "where part_number = 391 sorted by section_id", "rows": [["46:46:8.0.1.12.46.0.18.1", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.0 Statutory provisions; section 607, Merchant Marine Act, 1936, as amended.", "FMC", "", "", "", "Sec. 607  (a) Agreement Rules.\n \n Any citizen of the United States owning or leasing one or more eligible vessels (as defined in subsection (k)(1)) may enter into an agreement with the Secretary of Transportation under, and as provided in, this section to establish a capital construction fund (hereinafter in this section referred to as the \u201cfund\u201d) with respect to any or all of such vessels. Any agreement entered into under this section shall be for the purpose of providing replacement vessels, additional vessels, or reconstructed vessels, built in the United States and documented under the laws of the United States for operation in the United States foreign, Great Lakes, or noncontiguous domestic trade or in the fisheries of the United States and shall provide for the deposit in the fund of the amounts agreed upon as necessary or appropriate to provide for qualified withdrawals under subsection (f). The deposits in the fund, and all withdrawals from the fund, whether qualified or nonqualified, shall be subject to such conditions and requirements as the Secretary of Transportation may by regulations prescribe or are set forth in such agreement; except that the Secretary of Transportation may not require any person to deposit in the fund for any taxable year more than 50 percent of that portion of such person's taxable income for such year (computed in the manner provided in subsection (b)(1)(A)) which is attributable to the operation of the agreement vessels.\n \n (b) Ceiling on Deposits. \n \n (1) The amount deposited under subsection (a) in the fund for any taxable year shall not exceed the sum of:\n \n (A) That portion of the taxable income of the owner or lessee for such year (computed as provided in chapter 1 of the Internal Revenue Code of 1954 but without regard to the carryback of any net operating loss or net capital loss and without regard to this section) which is attributable to the operation of the agreement vessels in the foreign or domestic commerce of the United States or in the fisheries of the United States.\n \n (B) The amount allowable as a deduction under section 167 of the Internal Revenue Code of 1954 for such year with respect to the agreement vessels.\n \n (C) If the transaction is not taken into account for purposes of subparagraph (A), the net proceeds (as defined in joint regulations) from (i) the sale or other disposition of any agreement vessel, or (ii) insurance or indemnity attributable to any agreement vessel, and\n \n (D) The receipts from the investment or reinvestment of amounts held in such fund.\n \n (2) In the case of a lessee, the maximum amount which may be deposited with respect to an agreement vessel by reason of paragraph (1)(B) for any period shall be reduced by any amount which, under an agreement entered into under this section, the owner is required or permitted to deposit for such period with respect to such vessel by reason of paragraph (1)(B).\n \n (3) For purposes of paragraph (1), the term  agreement vessel  includes barges and containers which are part of the complement of such vessel and which are provided for in the agreement.\n \n (c) Requirements as to Investments.\n \n Amounts in any fund established under this section shall be kept in the depository or depositories specified in the agreement and shall be subject to such trustee and other fiduciary requirements as may be specified by the Secretary of Transportation. They may be invested only in interest-bearing securities approved by the Secretary of Transportation; except that, if the Secretary of Transportation consents thereto, an agreed percentage (not in excess of 60 percent) of the assets of the fund may be invested in the stock of domestic corporations. Such stock must be currently fully listed and registered on an exchange registered with the Securities and Exchange Commission as a national securities exchange, and must be stock which would be acquired by prudent men of discretion and intelligence in such matters who are seeking a reasonable income and the preservation of their capital. If at any time the fair market value of the stock in the fund is more than the agreed percentage of the assets in the fund, any subsequent investment of amounts deposited in the fund, and any subsequent withdrawal from the fund, shall be made in such a way as to tend to restore the fund to a situation in which the fair market value of the stock does not exceed such agreed percentage. For purposes of this subsection, if the common stock of a corporation meets the requirements of this subsection, and if the preferred stock of such corporation would meet such requirements but for the fact that it cannot be listed and registered as required because it is nonvoting stock, such preferred stock shall be treated as meeting the requirements of this subsection.\n \n (d) Nontaxability for Deposits.\n \n (1) For purposes of the Internal Revenue Code of 1954\u2014\n \n (A) Taxable income (determined without regard to this section) for the taxable year shall be reduced by an amount equal to the amount deposited for the taxable year out of amounts referred to in subsection (b)(1)(A).\n \n (B) Gain from a transaction referred to in subsection (b)(1)(C) shall not be taken into account if an amount equal to the net proceeds (as defined in joint regulations) from such transaction is deposited in the fund.\n \n (C) The earnings (including gains and losses) from the investment and reinvestment of amounts held in the fund shall not be taken into account,\n \n (D) The earnings and profits of any corporation (within the meaning of section 316 of such Code) shall be determined without regard to this section, and\n \n (E) In applying the tax imposed by section 531 of such Code (relating to the accumulated earnings tax), amounts while held in the fund shall not be taken into account.\n \n (2) Paragraph (1) shall apply with respect to any amount only if such amount is deposited in the fund pursuant to the agreement and not later than the time provided in joint regulations.\n \n (e) Establishment of Accounts.\n \n For purposes of this section\u2014\n \n (1) Within the fund established pursuant to this section three accounts shall be maintained:\n \n (A) The capital account,\n \n (B) The capital gain account, and\n \n (C) The ordinary income account.\n \n (2) The capital account shall consist of\u2014\n \n (A) Amounts referred to in subsection (b)(1)(B),\n \n (B) Amounts referred to in subsection (b)(1)(C) other than that portion thereof which represents gain not taken into account by reason of subsection (d)(1)(B),\n \n (C) 85 percent of any dividend received by the fund with respect to which the person maintaining the fund would (but for subsection (d)(1)(C)) be allowed a deduction under section 243 of the Internal Revenue Code of 1954, and\n \n (D) Interest income exempt from taxation under section 103 of such Code. \n \n (3) The capital gain account shall consist of\u2014\n \n (A) Amounts representing capital gains on assets held for more than 6 months and referred to in subsection (b)(1)(C) or (b)(1)(D), reduced by\u2014\n \n (B) Amounts representing capital losses on assets held in the fund for more than 6 months.\n \n (4) The ordinary income account shall consist of\u2014\n \n (A) Amounts referred to in subsection (b)(1)(A),\n \n (B)(i) Amounts representing capital gains on assets held for 6 months or less and referred to in subsection (b)(1)(C) or (b)(1)(D), reduced by\u2014\n \n (ii) Amounts representing capital losses on assets held in the fund for 6 months or less,\n \n (C) Interest (not including any tax-exempt interest referred to in paragraph (2)(D)) and other ordinary income (not including any dividend referred to in subparagraph (E)) received on assets held in the fund,\n \n (D) Ordinary income from a transaction described in subsection (b)(1)(C), and\n \n (E) 15 percent of any dividend referred to in paragraph (2)(C).\n \n (5) Except on termination of a fund, capital losses referred to in paragraph (3)(B) or in paragraph (4)(B)(ii) shall be allowed only as an offset to gains referred to in paragraph (3)(A) or (4)(B)(i), respectively.\n \n (f) Purposes of Qualified Withdrawals.\n \n (1) A qualified withdrawal from the fund is one made in accordance with the terms of the agreement but only if it is for:\n \n (A) The acquisition, construction, or reconstruction of a qualified vessel,\n \n (B) The acquisition, construction, or reconstruction of barges and containers which are part of the complement of a qualified vessel, or\n \n (C) The payment of the principal on indebtedness incurred in connection with the acquisition, construction or reconstruction of a qualified vessel or a barge or container which is part of the complement of a qualified vessel.\n \n Except to the extent provided in regulations prescribed by the Secretary of Transportation, subparagraph (B), and so much of subparagraph (C) as relates only to barges and containers, shall apply only with respect to barges and containers constructed in the United States.\n \n (2) Under joint regulations, if the Secretary of Transportation determines that any substantial obligation under any agreement is not being fulfilled, he may, after notice and opportunity for hearing to the person maintaining the fund, treat the entire fund or any portion thereof as an amount withdrawn from the fund in a nonqualified withdrawal.\n \n (g) Tax Treatment of Qualified Withdrawals.\n \n (1) Any qualified withdrawal from a fund shall be treated\u2014\n \n (A) First as made out of the capital account.\n \n (B) Second as made out of the capital gain account, and\n \n (C) Third as made out of the ordinary income account.\n \n (2) If any portion of a qualified withdrawal for a vessel, barge, or container is made out of the ordinary income account, the basis of such vessel, barge, or container shall be reduced by an amount equal to such portion.\n \n (3) If any portion of a qualified withdrawal for a vessel, barge, or container is made out of the capital gain account, the basis of such vessel, barge, or container shall be reduced by an amount equal to\u2014\n \n (A) Five-eighths of such portion, in the case of a corporation (other than an electing small business corporation, as defined in section 1371 of the Internal Revenue Code of 1954), or\n \n (B) One-half of such portion, in the case of any other person.\n \n (4) If any portion of a qualified withdrawal to pay the principal on any indebtedness is made out of the ordinary income account or the capital gain account, then an amount equal to the aggregate reduction which would be required by paragraphs (2) and (3) if this were a qualified withdrawal for a purpose described in such paragraphs shall be applied, in the order provided in joint regulations, to reduce the basis of vessels, barges, and containers owned by the person maintaining the fund. Any amount of a withdrawal remaining after the application of the preceding sentence shall be treated as a nonqualified withdrawal.\n \n (5) If any property the basis of which was reduced under paragraph (2), (3), or (4) is disposed of, any gain realized on such disposition, to the extent it does not exceed the aggregate reduction in the basis of such property under such paragraphs, shall be treated as an amount referred to in subsection (h)(3)(A) which was withdrawn on the date of such disposition. Subject to such conditions and requirements as may be provided in joint regulations, the preceding sentence shall not apply to a disposition where there is a redeposit in an amount determined under joint regulations which will insofar as practicable, restore the fund to the position it was in before the withdrawal.\n \n (h) Tax Treatment of Nonqualified Withdrawals.\n \n (1) Except as provided in subsection (i), any withdrawal from a fund which is not a qualified withdrawal shall be treated as a nonqualified withdrawal.\n \n (2) Any nonqualified withdrawal from a fund shall be treated\u2014\n \n (A) First as be made out of the ordinary income account,\n \n (B) Second as made out of the capital gain account, and\n \n (C) Third as made out of the capital account.\n \n For purposes of this section, items withdrawn from any account shall be treated as withdrawn on a first-in-first-out basis; except that (i) any nonqualified withdrawal for research, development, and design expenses incident to new and advanced ship design, machinery and equipment, and (ii) any amount treated as a nonqualified withdrawal under the second sentence of subsection (g)(4), shall be treated as withdrawn on a last-in-first-out basis.\n \n (3) For purposes of the Internal Revenue Code of 1954\u2014\n \n (A) Any amount referred to in paragraph (2)(A) shall be included in income as an item of ordinary income for the taxable year in which the withdrawal is made.\n \n (B) Any amount referred to in paragraph (2)(B) shall be included in income for the taxable year in which the withdrawal is made as an item of gain realized during such year from the disposition of an asset held for more than 6 months, and\n \n (C) For the period on or before the last date prescribed for payment of tax for the taxable year in which this withdrawal is made\u2014\n \n (i) No interest shall be payable under section 6601 f such Code and no addition to the tax shall be payable under section 6651 of such Code.\n \n (ii) Interest on the amount of the additional tax attributable to any item referred to in subparagraph (A) or (B) shall be paid at the applicable rate (as defined in paragraph (4)) from the last date prescribed for payment of the tax for the taxable year for which such item was deposited in the fund, and\n \n (iii) No interest shall be payable on amounts referred to in clauses (i) and (ii) of paragraph (2) or in the case of any nonqualified withdrawal arising from the application of the recapture provision of section 606(5) of the Merchant Marine Act of 1936 as in effect on December 31, 1969.\n \n (4) For purposes of paragraph (3)(C)(ii), the applicable rate of interest for any nonqualified withdrawal\u2014\n \n (A) Made in a taxable year beginning in 1970 or 1971 is 8 percent, or\n \n (B) Made in a taxable year beginning after 1971, shall be determined and published jointly by the Secretary of the Treasury and the Secretary of Transportation and shall bear a relationship to 8 percent which the Secretaries determine under joint regulations to be comparable to the relationship which the money rates and investment yields for the calendar year immediately preceding the beginning of the taxable year bear to the money rates and investment yields for the calendar year 1970.\n \n (i) Certain Corporate Reorganizations and Changes in Partnerships.\n \n Under joint regulations\u2014\n \n (1) A transfer of a fund from one person to another person in a transaction to which section 381 of the Internal Revenue Code of 1954 applies may be treated as if such transaction did not constitute a nonqualified withdrawal, and\n \n (2) A similar rule shall be applied in the case of a continuation of a partnership (within the meaning of subchapter K of such Code).\n \n (j) Treatment of Existing Funds.\n \n (1) Any person who was maintaining a fund or funds (hereinafter in this subsection referred to as \u201cold fund\u201d) under this section (as in effect before the enactment of this subsection) may elect to continue such old fund but\u2014\n \n (A) May not hold moneys in the old fund beyond the expiration date provided in the agreement under which such old fund is maintained (determined without regard to any extension or renewal entered into after April 14, 1970),\n \n (B) May not simultaneously maintain such old fund and a new fund established under this section, and\n \n (C) If he enters into an agreement under this section to establish a new fund, may agree to the extension of such agreement to some or all of the amounts in the old fund.\n \n (2) In the case of any extension of an agreement pursuant to paragraph (1)(C), each item in the old fund to be transferred shall be transferred in a nontaxable transaction to the appropriate account in the new fund established under this section. For purposes of subsection (h)(3)(C), the date of the deposit of any item so transferred shall be July 1, 1971, or the date of the deposit in the old fund, whichever is the later.\n \n (k) Definitions.\n \n For purposes of this section\u2014\n \n (1) The term  eligible vessel  means any vessel\u2014\n \n (A) Constructed in the United States and, if reconstructed, reconstructed in the United States,\n \n (B) Documented under the laws of the United States, and \n \n (C) Operated in the foreign or domestic commerce of the United States or in the fisheries of the United States.\n \n Any vessel which (i) was constructed outside of the United States but documented under the laws of the United States on April 15, 1970, or (ii) constructed outside the United States for use in the United States foreign trade pursuant to a contract entered into before April 15, 1970, shall be treated as satisfying the requirements of subparagraph (A) of this paragraph and the requirements of subparagraph (A) of paragraph (2).\n \n (2) The term  qualified vessel  means any vessel\u2014\n \n (A) Constructed in the United States and, if reconstructed, reconstructed in the United States,\n \n (B) Documented under the laws of the United States, and\n \n (C) Which the person maintaining the fund agrees with the Secretary of Transportation will be operated in the United States foreign, Great Lakes, or noncontiguous domestic trade or in the fisheries of the United States.\n \n (3) The term  agreement vessel  means any eligible vessel or qualified vessel which is subject to an agreement entered into under this section.\n \n (4) The term  United States,  when used in a geographical sense, means the continental United States including Alaska, Hawaii, and Puerto Rico.\n \n (5) The term  United States foreign trade  includes (but is not limited to) those areas in domestic trade in which a vessel built with construction-differential subsidy is permitted to operate under the first sentence of section 506 of the Act.\n \n (6) The term  joint regulations  means regulations prescribed under subsection (1).\n \n (7) The term  vessel  includes cargo handling equipment which the Secretary of Transportation determines is intended for use primarily on the vessel. The term  vessel  also includes an ocean-going towing vessel or an ocean-going barge or comparable towing vessel or barge operated on the Great Lakes.\n \n (8) The term  noncontiguous trade  means (i) trade between the contiguous forty-eight States on the one hand and Alaska, Hawaii, Puerto Rico and the insular territories and possessions of the United States on the other hand, and (ii) trade from any point in Alaska, Hawaii, Puerto Rico, and such territories and possessions to any other point in Alaska, Hawaii, Puerto Rico, and such territories and possessions.\n \n (l) Records; Reports; Changes in Regulations.\n \n Each person maintaining a fund under this section shall keep such records and shall make such reports as the Secretary of Transportation or the Secretary of the Treasury shall require. The Secretary of the Treasury and the Secretary of Transportation shall jointly prescribe all rules and regulations, not inconsistent with the foregoing provisions of this section, as may be necessary or appropriate to the determination of tax liability under this section. If, after an agreement has been entered into under this section, a change is made either in the joint regulations or in the regulations prescribed by the Secretary of Transportation under this section which could have a substantial effect on the rights or obligations of any person maintaining a fund under this section, such person may terminate such agreement.\n\nSec. 607  (a) Agreement Rules.\n\nAny citizen of the United States owning or leasing one or more eligible vessels (as defined in subsection (k)(1)) may enter into an agreement with the Secretary of Transportation under, and as provided in, this section to establish a capital construction fund (hereinafter in this section referred to as the \u201cfund\u201d) with respect to any or all of such vessels. Any agreement entered into under this section shall be for the purpose of providing replacement vessels, additional vessels, or reconstructed vessels, built in the United States and documented under the laws of the United States for operation in the United States foreign, Great Lakes, or noncontiguous domestic trade or in the fisheries of the United States and shall provide for the deposit in the fund of the amounts agreed upon as necessary or appropriate to provide for qualified withdrawals under subsection (f). The deposits in the fund, and all withdrawals from the fund, whether qualified or nonqualified, shall be subject to such conditions and requirements as the Secretary of Transportation may by regulations prescribe or are set forth in such agreement; except that the Secretary of Transportation may not require any person to deposit in the fund for any taxable year more than 50 percent of that portion of such person's taxable income for such year (computed in the manner provided in subsection (b)(1)(A)) which is attributable to the operation of the agreement vessels.\n\n(b) Ceiling on Deposits.\n\n(1) The amount deposited under subsection (a) in the fund for any taxable year shall not exceed the sum of:\n\n(A) That portion of the taxable income of the owner or lessee for such year (computed as provided in chapter 1 of the Internal Revenue Code of 1954 but without regard to the carryback of any net operating loss or net capital loss and without regard to this section) which is attributable to the operation of the agreement vessels in the foreign or domestic commerce of the United States or in the fisheries of the United States.\n\n(B) The amount allowable as a deduction under section 167 of the Internal Revenue Code of 1954 for such year with respect to the agreement vessels.\n\n(C) If the transaction is not taken into account for purposes of subparagraph (A), the net proceeds (as defined in joint regulations) from (i) the sale or other disposition of any agreement vessel, or (ii) insurance or indemnity attributable to any agreement vessel, and\n\n(D) The receipts from the investment or reinvestment of amounts held in such fund.\n\n(2) In the case of a lessee, the maximum amount which may be deposited with respect to an agreement vessel by reason of paragraph (1)(B) for any period shall be reduced by any amount which, under an agreement entered into under this section, the owner is required or permitted to deposit for such period with respect to such vessel by reason of paragraph (1)(B).\n\n(3) For purposes of paragraph (1), the term  agreement vessel  includes barges and containers which are part of the complement of such vessel and which are provided for in the agreement.\n\n(c) Requirements as to Investments.\n\nAmounts in any fund established under this section shall be kept in the depository or depositories specified in the agreement and shall be subject to such trustee and other fiduciary requirements as may be specified by the Secretary of Transportation. They may be invested only in interest-bearing securities approved by the Secretary of Transportation; except that, if the Secretary of Transportation consents thereto, an agreed percentage (not in excess of 60 percent) of the assets of the fund may be invested in the stock of domestic corporations. Such stock must be currently fully listed and registered on an exchange registered with the Securities and Exchange Commission as a national securities exchange, and must be stock which would be acquired by prudent men of discretion and intelligence in such matters who are seeking a reasonable income and the preservation of their capital. If at any time the fair market value of the stock in the fund is more than the agreed percentage of the assets in the fund, any subsequent investment of amounts deposited in the fund, and any subsequent withdrawal from the fund, shall be made in such a way as to tend to restore the fund to a situation in which the fair market value of the stock does not exceed such agreed percentage. For purposes of this subsection, if the common stock of a corporation meets the requirements of this subsection, and if the preferred stock of such corporation would meet such requirements but for the fact that it cannot be listed and registered as required because it is nonvoting stock, such preferred stock shall be treated as meeting the requirements of this subsection.\n\n(d) Nontaxability for Deposits.\n\n(1) For purposes of the Internal Revenue Code of 1954\u2014\n\n(A) Taxable income (determined without regard to this section) for the taxable year shall be reduced by an amount equal to the amount deposited for the taxable year out of amounts referred to in subsection (b)(1)(A).\n\n(B) Gain from a transaction referred to in subsection (b)(1)(C) shall not be taken into account if an amount equal to the net proceeds (as defined in joint regulations) from such transaction is deposited in the fund.\n\n(C) The earnings (including gains and losses) from the investment and reinvestment of amounts held in the fund shall not be taken into account,\n\n(D) The earnings and profits of any corporation (within the meaning of section 316 of such Code) shall be determined without regard to this section, and\n\n(E) In applying the tax imposed by section 531 of such Code (relating to the accumulated earnings tax), amounts while held in the fund shall not be taken into account.\n\n(2) Paragraph (1) shall apply with respect to any amount only if such amount is deposited in the fund pursuant to the agreement and not later than the time provided in joint regulations.\n\n(e) Establishment of Accounts.\n\nFor purposes of this section\u2014\n\n(1) Within the fund established pursuant to this section three accounts shall be maintained:\n\n(A) The capital account,\n\n(B) The capital gain account, and\n\n(C) The ordinary income account.\n\n(2) The capital account shall consist of\u2014\n\n(A) Amounts referred to in subsection (b)(1)(B),\n\n(B) Amounts referred to in subsection (b)(1)(C) other than that portion thereof which represents gain not taken into account by reason of subsection (d)(1)(B),\n\n(C) 85 percent of any dividend received by the fund with respect to which the person maintaining the fund would (but for subsection (d)(1)(C)) be allowed a deduction under section 243 of the Internal Revenue Code of 1954, and\n\n(D) Interest income exempt from taxation under section 103 of such Code.\n\n(3) The capital gain account shall consist of\u2014\n\n(A) Amounts representing capital gains on assets held for more than 6 months and referred to in subsection (b)(1)(C) or (b)(1)(D), reduced by\u2014\n\n(B) Amounts representing capital losses on assets held in the fund for more than 6 months.\n\n(4) The ordinary income account shall consist of\u2014\n\n(A) Amounts referred to in subsection (b)(1)(A),\n\n(B)(i) Amounts representing capital gains on assets held for 6 months or less and referred to in subsection (b)(1)(C) or (b)(1)(D), reduced by\u2014\n\n(ii) Amounts representing capital losses on assets held in the fund for 6 months or less,\n\n(C) Interest (not including any tax-exempt interest referred to in paragraph (2)(D)) and other ordinary income (not including any dividend referred to in subparagraph (E)) received on assets held in the fund,\n\n(D) Ordinary income from a transaction described in subsection (b)(1)(C), and\n\n(E) 15 percent of any dividend referred to in paragraph (2)(C).\n\n(5) Except on termination of a fund, capital losses referred to in paragraph (3)(B) or in paragraph (4)(B)(ii) shall be allowed only as an offset to gains referred to in paragraph (3)(A) or (4)(B)(i), respectively.\n\n(f) Purposes of Qualified Withdrawals.\n\n(1) A qualified withdrawal from the fund is one made in accordance with the terms of the agreement but only if it is for:\n\n(A) The acquisition, construction, or reconstruction of a qualified vessel,\n\n(B) The acquisition, construction, or reconstruction of barges and containers which are part of the complement of a qualified vessel, or\n\n(C) The payment of the principal on indebtedness incurred in connection with the acquisition, construction or reconstruction of a qualified vessel or a barge or container which is part of the complement of a qualified vessel.\n\nExcept to the extent provided in regulations prescribed by the Secretary of Transportation, subparagraph (B), and so much of subparagraph (C) as relates only to barges and containers, shall apply only with respect to barges and containers constructed in the United States.\n\n(2) Under joint regulations, if the Secretary of Transportation determines that any substantial obligation under any agreement is not being fulfilled, he may, after notice and opportunity for hearing to the person maintaining the fund, treat the entire fund or any portion thereof as an amount withdrawn from the fund in a nonqualified withdrawal.\n\n(g) Tax Treatment of Qualified Withdrawals.\n\n(1) Any qualified withdrawal from a fund shall be treated\u2014\n\n(A) First as made out of the capital account.\n\n(B) Second as made out of the capital gain account, and\n\n(C) Third as made out of the ordinary income account.\n\n(2) If any portion of a qualified withdrawal for a vessel, barge, or container is made out of the ordinary income account, the basis of such vessel, barge, or container shall be reduced by an amount equal to such portion.\n\n(3) If any portion of a qualified withdrawal for a vessel, barge, or container is made out of the capital gain account, the basis of such vessel, barge, or container shall be reduced by an amount equal to\u2014\n\n(A) Five-eighths of such portion, in the case of a corporation (other than an electing small business corporation, as defined in section 1371 of the Internal Revenue Code of 1954), or\n\n(B) One-half of such portion, in the case of any other person.\n\n(4) If any portion of a qualified withdrawal to pay the principal on any indebtedness is made out of the ordinary income account or the capital gain account, then an amount equal to the aggregate reduction which would be required by paragraphs (2) and (3) if this were a qualified withdrawal for a purpose described in such paragraphs shall be applied, in the order provided in joint regulations, to reduce the basis of vessels, barges, and containers owned by the person maintaining the fund. Any amount of a withdrawal remaining after the application of the preceding sentence shall be treated as a nonqualified withdrawal.\n\n(5) If any property the basis of which was reduced under paragraph (2), (3), or (4) is disposed of, any gain realized on such disposition, to the extent it does not exceed the aggregate reduction in the basis of such property under such paragraphs, shall be treated as an amount referred to in subsection (h)(3)(A) which was withdrawn on the date of such disposition. Subject to such conditions and requirements as may be provided in joint regulations, the preceding sentence shall not apply to a disposition where there is a redeposit in an amount determined under joint regulations which will insofar as practicable, restore the fund to the position it was in before the withdrawal.\n\n(h) Tax Treatment of Nonqualified Withdrawals.\n\n(1) Except as provided in subsection (i), any withdrawal from a fund which is not a qualified withdrawal shall be treated as a nonqualified withdrawal.\n\n(2) Any nonqualified withdrawal from a fund shall be treated\u2014\n\n(A) First as be made out of the ordinary income account,\n\n(B) Second as made out of the capital gain account, and\n\n(C) Third as made out of the capital account.\n\nFor purposes of this section, items withdrawn from any account shall be treated as withdrawn on a first-in-first-out basis; except that (i) any nonqualified withdrawal for research, development, and design expenses incident to new and advanced ship design, machinery and equipment, and (ii) any amount treated as a nonqualified withdrawal under the second sentence of subsection (g)(4), shall be treated as withdrawn on a last-in-first-out basis.\n\n(3) For purposes of the Internal Revenue Code of 1954\u2014\n\n(A) Any amount referred to in paragraph (2)(A) shall be included in income as an item of ordinary income for the taxable year in which the withdrawal is made.\n\n(B) Any amount referred to in paragraph (2)(B) shall be included in income for the taxable year in which the withdrawal is made as an item of gain realized during such year from the disposition of an asset held for more than 6 months, and\n\n(C) For the period on or before the last date prescribed for payment of tax for the taxable year in which this withdrawal is made\u2014\n\n(i) No interest shall be payable under section 6601 f such Code and no addition to the tax shall be payable under section 6651 of such Code.\n\n(ii) Interest on the amount of the additional tax attributable to any item referred to in subparagraph (A) or (B) shall be paid at the applicable rate (as defined in paragraph (4)) from the last date prescribed for payment of the tax for the taxable year for which such item was deposited in the fund, and\n\n(iii) No interest shall be payable on amounts referred to in clauses (i) and (ii) of paragraph (2) or in the case of any nonqualified withdrawal arising from the application of the recapture provision of section 606(5) of the Merchant Marine Act of 1936 as in effect on December 31, 1969.\n\n(4) For purposes of paragraph (3)(C)(ii), the applicable rate of interest for any nonqualified withdrawal\u2014\n\n(A) Made in a taxable year beginning in 1970 or 1971 is 8 percent, or\n\n(B) Made in a taxable year beginning after 1971, shall be determined and published jointly by the Secretary of the Treasury and the Secretary of Transportation and shall bear a relationship to 8 percent which the Secretaries determine under joint regulations to be comparable to the relationship which the money rates and investment yields for the calendar year immediately preceding the beginning of the taxable year bear to the money rates and investment yields for the calendar year 1970.\n\n(i) Certain Corporate Reorganizations and Changes in Partnerships.\n\nUnder joint regulations\u2014\n\n(1) A transfer of a fund from one person to another person in a transaction to which section 381 of the Internal Revenue Code of 1954 applies may be treated as if such transaction did not constitute a nonqualified withdrawal, and\n\n(2) A similar rule shall be applied in the case of a continuation of a partnership (within the meaning of subchapter K of such Code).\n\n(j) Treatment of Existing Funds.\n\n(1) Any person who was maintaining a fund or funds (hereinafter in this subsection referred to as \u201cold fund\u201d) under this section (as in effect before the enactment of this subsection) may elect to continue such old fund but\u2014\n\n(A) May not hold moneys in the old fund beyond the expiration date provided in the agreement under which such old fund is maintained (determined without regard to any extension or renewal entered into after April 14, 1970),\n\n(B) May not simultaneously maintain such old fund and a new fund established under this section, and\n\n(C) If he enters into an agreement under this section to establish a new fund, may agree to the extension of such agreement to some or all of the amounts in the old fund.\n\n(2) In the case of any extension of an agreement pursuant to paragraph (1)(C), each item in the old fund to be transferred shall be transferred in a nontaxable transaction to the appropriate account in the new fund established under this section. For purposes of subsection (h)(3)(C), the date of the deposit of any item so transferred shall be July 1, 1971, or the date of the deposit in the old fund, whichever is the later.\n\n(k) Definitions.\n\nFor purposes of this section\u2014\n\n(1) The term  eligible vessel  means any vessel\u2014\n\n(A) Constructed in the United States and, if reconstructed, reconstructed in the United States,\n\n(B) Documented under the laws of the United States, and\n\n(C) Operated in the foreign or domestic commerce of the United States or in the fisheries of the United States.\n\nAny vessel which (i) was constructed outside of the United States but documented under the laws of the United States on April 15, 1970, or (ii) constructed outside the United States for use in the United States foreign trade pursuant to a contract entered into before April 15, 1970, shall be treated as satisfying the requirements of subparagraph (A) of this paragraph and the requirements of subparagraph (A) of paragraph (2).\n\n(2) The term  qualified vessel  means any vessel\u2014\n\n(A) Constructed in the United States and, if reconstructed, reconstructed in the United States,\n\n(B) Documented under the laws of the United States, and\n\n(C) Which the person maintaining the fund agrees with the Secretary of Transportation will be operated in the United States foreign, Great Lakes, or noncontiguous domestic trade or in the fisheries of the United States.\n\n(3) The term  agreement vessel  means any eligible vessel or qualified vessel which is subject to an agreement entered into under this section.\n\n(4) The term  United States,  when used in a geographical sense, means the continental United States including Alaska, Hawaii, and Puerto Rico.\n\n(5) The term  United States foreign trade  includes (but is not limited to) those areas in domestic trade in which a vessel built with construction-differential subsidy is permitted to operate under the first sentence of section 506 of the Act.\n\n(6) The term  joint regulations  means regulations prescribed under subsection (1).\n\n(7) The term  vessel  includes cargo handling equipment which the Secretary of Transportation determines is intended for use primarily on the vessel. The term  vessel  also includes an ocean-going towing vessel or an ocean-going barge or comparable towing vessel or barge operated on the Great Lakes.\n\n(8) The term  noncontiguous trade  means (i) trade between the contiguous forty-eight States on the one hand and Alaska, Hawaii, Puerto Rico and the insular territories and possessions of the United States on the other hand, and (ii) trade from any point in Alaska, Hawaii, Puerto Rico, and such territories and possessions to any other point in Alaska, Hawaii, Puerto Rico, and such territories and possessions.\n\n(l) Records; Reports; Changes in Regulations.\n\nEach person maintaining a fund under this section shall keep such records and shall make such reports as the Secretary of Transportation or the Secretary of the Treasury shall require. The Secretary of the Treasury and the Secretary of Transportation shall jointly prescribe all rules and regulations, not inconsistent with the foregoing provisions of this section, as may be necessary or appropriate to the determination of tax liability under this section. If, after an agreement has been entered into under this section, a change is made either in the joint regulations or in the regulations prescribed by the Secretary of Transportation under this section which could have a substantial effect on the rights or obligations of any person maintaining a fund under this section, such person may terminate such agreement."], ["46:46:8.0.1.12.46.0.18.10", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.9 Consolidated returns. [Reserved]", "FMC", "", "", "", ""], ["46:46:8.0.1.12.46.0.18.11", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.10 Transitional rules for existing funds.", "FMC", "", "", "", "(a)  In general.  Section 607(j) of the Act provides that any person who was maintaining a fund or funds under section 607 of the Merchant Marine Act, 1936, prior to its amendment by the Merchant Marine Act of 1970 (for purposes of this part referred to as \u201cold fund\u201d) may continue to maintain such old fund in the same manner as under prior law subject to the limitations contained in section 607(j) of the Act. Thus, a party may not simultaneously maintain such old fund and a new fund established under the Act.\n\n(b)  Extension of agreement to new fund.  If a person enters into an agreement under the Act to establish a new fund, he may agree to the extension of such agreement to some or all of the amounts in the old fund and transfer the amounts in the old fund to which the agreement is to apply from the old fund to the new fund. If an agreement to establish a new fund is extended to amounts from an old fund, each item in the old fund to which such agreement applies shall be considered to be transferred to the appropriate account in the manner provided for in \u00a7 391.8(d) in the new fund in a nontaxable transaction which is in accordance with the provisions of the agreement under which such old fund was maintained. For purposes of determining the amount of interest under section 607(h)(3)(C) of the Act and \u00a7 391.7(e), the date of deposit of any item so transferred shall be deemed to be July 1, 1971, or the date of the deposit in the old fund, whichever is the later."], ["46:46:8.0.1.12.46.0.18.12", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.11 Definitions.", "FMC", "", "", "[29 FR 10464, July 28, 1964]", "(a) As used in the regulations in this part and as defined in section 607(k) of the Act\u2014\n\n(1) The term  eligible vessel  means any vessel\u2014\n\n(i) Constructed in the United States, and if reconstructed, reconstructed in the United States,\n\n(ii) Documented under the laws of the United States, and\n\n(iii) Operated in the foreign or domestic commerce of the United States or in the fisheries of the United States. Any vessel which was constructed outside of the United States but documented under the laws of the United States on April 15, 1970, or constructed outside the United States for use in the U.S. foreign trade pursuant to a contract entered into before April 15, 1970, shall be treated as satisfying the requirements of paragraph (a)(1) of this section and the requirements of paragraph (a)(2)(i) of this section.\n\n(2) The term  qualified vessel  means any vessel\u2014\n\n(i) Constructed in the United States and, if reconstructed, reconstructed in the United States,\n\n(ii) Documented under the laws of the United States, and\n\n(iii) Which the person maintaining the fund agrees with the Secretary of Transportation will be operated in the U.S. foreign, Great Lakes, or noncontiguous domestic trade or in the fisheries of the United States.\n\n(3) The term  agreement vessel  means any eligible vessel or qualified vessel which is subject to an agreement entered into under section 607 of the Act.\n\n(4) The term  vessel  includes cargo handling equipment which the Secretary of Transportation determines is intended for use primarily on the vessel. The term  vessel  also includes an ocean-going towing vessel or an ocean-going barge or comparable towing vessel or barge operated in the Great Lakes.\n\n(b) Insofar as the computation and collection of taxes are concerned, other terms used in the regulation in this part, except as otherwise provided in the Act or this part, have the same meaning as in the Code and the regulations thereunder."], ["46:46:8.0.1.12.46.0.18.2", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.1 Scope of section 607 of the Act and the regulations in this part.", "FMC", "", "", "", "(a)  In general.  The regulations prescribed in this part provide rules for determining the income tax liability of any person a party to an agreement with the Secretary of Transportation establishing a capital construction fund (for purposes of this part referred to as the \u201cfund\u201d) authorized by section 607 of the Merchant Marine Act, 1936, as amended (for purposes of this part referred to as the \u201cAct\u201d). With respect to such parties, section 607 of the Act in general provides for the nontaxability of certain deposits of money or other property into the fund out of earnings or gains realized from the operation of vessels covered in an agreement, gains realized from the sale or other disposition of agreement vessels or proceeds from insurance for indemnification for loss of agreement vessels, earnings from the investment or reinvestment of amounts held in a fund, and gains with respect to amounts or deposits in the fund. Transitional rules are also provided for the treatment of \u201cold funds\u201d existing on or before the effective date of the Merchant Marine Act of 1970 (see \u00a7 391.10).\n\n(b)  Cross references.  For rules relating to eligibility for a fund, deposits, and withdrawals and other aspects, see the regulations prescribed by the Secretary of Transportation in title 46 (Merchant Marine) and by the Secretary of Commerce in title 50 (Fisheries) of the Code of Federal Regulations.\n\n(c)  Code.  For purposes of this part, the term  Code  means the Internal Revenue Code of 1954, as amended."], ["46:46:8.0.1.12.46.0.18.3", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.2 Ceiling on deposits.", "FMC", "", "", "", "(a)  In general \u2014(1)  Total ceiling.  Section 607(b) of the Act provides a ceiling on the amount which may be deposited by a party for a taxable year pursuant to an agreement. The amount which a party may deposit into a fund may not exceed the sum of the following subceilings:\n\n(i) The lower of ( a ) the taxable income (if any) of the party for such year (computed as provided in chapter 1 of the Code but without regard to the carryback of any net operating loss or net capital loss and without regard to section 607 of the Act) or ( b ) taxable income (if any) of such party for such year attributable under paragraph (b) of this section to the operation of agreement vessels (as defined in paragraph (f) of this section) in the foreign or domestic commerce of the United States or in the fisheries of the United States (see section 607(b)(1)(A) of the Act),\n\n(ii) Amounts allowable as a deduction under section 167 of the Code for such year with respect to the agreement vessels (see section 607(b)(1)(B) of the Act),\n\n(iii) The net proceeds (if not included in paragraph (a)(i) of this section) from ( a ) the sale or other disposition of any agreement vessels or ( b ) insurance or indemnity attributable to any agreement vessels (see section 607(b)(1)(C) of the Act and paragraph (c) of this section), and\n\n(iv) Earnings and gains from the investment or reinvestment of amounts held in such fund (see section 607 (b)(1)(D) of the Act and paragraphs (d) and (g) of this section).\n\n(2)  Overdeposits.  (i) If for any taxable year an amount is deposited into the fund under a subceiling computed under paragraph (a)(1) of this section which is in excess of the amount of such subceiling for such year, then at the party's option such excess (or any portion thereof) may\u2014\n\n( a ) Be treated as a deposit into the fund for that taxable year under another available subceiling, or\n\n( b ) Be treated as not having been deposited for the taxable year and thus, at the party's option, may be disposed of either by it being\u2014\n\n( 1 ) Treated as a deposit into the fund under any subceiling available in the first subsequent taxable year in which a subceiling is available, in which case such amount shall be deemed to have been deposited on the first day of such subsequent taxable year, or\n\n( 2 ) Repaid to the party from the fund.\n\n(ii)( a ) When a correction is made for an overdeposit, proper adjustment shall be made with respect to all items for all taxable years affected by the overdeposit, such as, for example, amounts in each account described in \u00a7 391.4, treatment of nonqualified withdrawals, the consequences of qualified withdrawals and the treatment of losses realized or treated as realized by the fund. Thus, for example, if the party chooses to have the fund repay to him the amount of an overdeposit, amounts in each account, basis of assets, and any affected item will be determined as though no deposit and repayment had been made. Accordingly, in such a case, if there are insufficient amounts in an account to cover a repayment of an overdeposit (as determined before correcting the overdeposit), and the party had applied the proceeds of a qualified withdrawal from such account towards the purchase of a qualified vessel (within the meaning of \u00a7 391.11(a)(2)), then such account and the basis of the vessel shall be adjusted as of the time such withdrawal was made and proceeds were applied, and repayment shall be made from such account as adjusted. If a party chooses to treat the amount of an overdeposit as a deposit under a subceiling for a subsequent year, similar adjustments to affected items shall be made. If the amount of a withdrawal would have exceeded the amount in the fund (determined after adjusting all affected amounts by reason of correcting the overdeposit), the withdrawal to the extent of such excess shall be treated as a repayment made at the time the withdrawal was made.\n\n( b ) If the accounts (as defined in \u00a7 391.4) that were increased by reason of excessive deposits contain sufficient amounts at the time the overdeposit is discovered to repay the party, the party may, at his option, demand repayment of such excessive deposits from such accounts in lieu of making the adjustments required by paragraph (a)(2)(ii)( a ) of this section.\n\n(iii) During the period beginning with the day after the date an overdeposit was actually made and ending with the date it was disposed of in accordance with paragraph (a)(2)(i)( b ) of this section, there shall be included in the party's gross income for each taxable year the earnings attributed to any amount of overdeposit on hand during such a year. The earnings attributable to any amount of overdeposit on hand during a taxable year shall be an amount equal to the product of\u2014\n\n( a ) The average daily earnings for each one dollar in the fund (as determined in paragraph (a)(2)(iv) of this section),\n\n( b ) The amount of overdeposit (as determined in paragraph (a)(2)(vi) of this section), and\n\n( c ) The number of days during the taxable year the overdeposit existed.\n\n(iv) For purposes of paragraph (a)(2)(iii)( a ) of this section, the average daily earnings for each dollar in the fund shall be determined by dividing the total earnings of the fund for the taxable year by the sum of the products of\u2014\n\n( a ) Any amount on hand during the taxable year (determined under paragraph (a)(2)(v) of this section), and\n\n( b ) The number of days during the taxable year such amount was on hand in the fund.\n\n(v) For purposes of this paragraph\u2014\n\n( a ) An amount on hand in the fund or an overdeposit shall not be treated as on hand on the day deposited but shall be treated as on hand on the day withdrawn, and\n\n( b ) The fair market value of such amounts on hand for purposes of this subparagraph shall be determined as provided in \u00a7 20.2031-2 of the Estate Tax Regulations of this chapter but without applying the blockage and other special rules contained in paragraph (e) thereof.\n\n(vi) For purposes of paragraph (a)(2)(iii)( b ) of this section, the amount of overdeposit on hand at any time is an amount equal to\u2014\n\n( a ) The amount deposited into the fund under a subceiling computed under paragraph (a)(1) of this section which is in excess of the amount of such subceiling, less\n\n( b ) The sum of\u2014\n\n( 1 ) Amounts described in paragraph (a)(2)(vi)( a ) of this section treated as a deposit under another subceiling for the taxable year pursuant to paragraph (a)(2)(i) of this section,\n\n( 2 ) Amounts described in paragraph (a)(2)(vi)( a ) of this section disposed of (or treated as disposed of) in accordance with paragraphs (a)(2) (i) or (ii) of this section prior to such time.\n\n(vii) To the extent earnings attributed under paragraph (a)(2)(iii) of this section represent a deposit for any taxable year in excess of the subceiling described in paragraph (a)(1)(iv) of this section for receipts from the investment or reinvestment of amounts held in the fund, such attributed earnings shall be subject to the rules of this paragraph for overdeposits.\n\n(3)  Underdeposit caused by audit adjustment.  [Reserved]\n\n(4)  Requirements for deficiency deposits.  [Reserved]\n\n(b)  Taxable income attributable to the operation of an agreement vessel \u2014(1)  In general.  For purposes of this section, taxable income attributable to the operation of an agreement vessel means the amount, if any, by which the gross income of a party for the taxable year from the operation of an agreement vessel (as defined in paragraph (f) of this section) exceeds the allowable deductions allocable to such operation (as determined under paragraph (b)(3) of this section). The term  taxable income attributable to the operation of the agreement vessels  means the sum of the amounts described in the preceding sentence separately computed with respect to each agreement vessel (or share therein) or, at the party's option, computed in the aggregate.\n\n(2)  Gross income.  (i) Gross income from the operation of agreement vessels means the sum of the revenues which are derived during the taxable year from the following:\n\n( a ) Revenues derived from the transportation of passengers, freight, or mail in such vessels, including amounts from contracts for the charter of such vessels to others, from operating differential subsidies, from collections in accordance with pooling agreements and from insurance or indemnity net proceeds relating to the loss of income attributable to such agreement vessels.\n\n( b ) Revenues derived from the operation of agreement vessels relating to commercial fishing activities, including the transportation of fish, support activities for fishing vessels, charters for commercial fishing, and insurance or indemnity net proceeds relating to the loss of income attributable to such agreement vessels.\n\n( c ) Revenues from the rental lease, or use by others of terminal facilities, revenues from cargo handling operations and tug and lighter operations, and revenues from other services or operations which are incidental and directly related to the operation of an agreement vessel. Thus, for example, agency fees, commissions, and brokerage fees derived by the party at his place of business for effecting transactions for services incidental and directly related to shipping for the accounts of other persons are includible in gross income from the operation of agreement vessels where the transaction is of a kind customarily consummated by the party for his own account at such place of business.\n\n( d ) Dividends, interest, and gains derived from assets set aside and reasonably retained to meet regularly occurring obligations relating to the shipping or fishing business directly connected with the agreement vessel which obligations cannot at all times be met from the current revenues of the business because of layups or repairs, special surveys, fluctuations in the business, and reasonably forseeable strikes (whether or not a strike actually occurs), and security amounts retained by reason of participation in conferences, pooling agreements, or similar agreements.\n\n(ii) The items of gross income described in paragraphs (b)(2)(i) ( c ) and ( d ) of this section shall be considered to be derived from the operations of a particular agreement vessel in the same proportion that the sum of the items of gross income described in paragraphs (b)(2)(i) ( a ) and ( b ) of this section which are derived from the operations of such agreement vessel bears to the party's total gross income for the taxable year from operations described in paragraphs (b)(2)(i) ( a ) and ( b ) of this section.\n\n(iii) In the case of a party who uses his own or leased agreement vessels to transport his own products, the gross income attributable to such vessel operations is an amount determined to be an arm's length charge for such transportation. The arm's length charge shall be determined by applying the principles of section 482 of the Code and the regulations thereunder as if the party transporting the product and the owner of the product were not the same person but were controlled taxpayers within the meaning of \u00a7 1.482-1(a)(4) of the Income Tax Regulations of this chapter. Gross income attributable to the operation of agreement vessels does not include amounts for which the party is allowed a deduction for percentage depletion under sections 611 and 613 of the Code.\n\n(3)  Deductions.  From the gross income attributable to the operation of an agreement vessel or vessels as determined under paragraph (b)(2) of this section, there shall be deducted in accordance with the principles of \u00a7 1.861-8 of the Income Tax Regulations of this chapter, the expenses, losses, and other deductions definitely related and therefore allocated and apportioned thereto and a ratable part of any expenses, losses, or other deductions which are not definitely related to any gross income of the party. Thus, for example, if a party has gross income attributable to the operation of an agreement vessel and other gross income and has a particular deduction definitely related to both types of gross income, such deductions must be apportioned between the two types of gross income on a reasonable basis in determining the taxable income attributable to the operation of the agreement vessel.\n\n(4)  Net operating and capital loss deductions.  The taxable income of a party attributable to the operation of agreement vessels shall be computed without regard to the carryback of any net operating loss deduction allowed by section 172 of the Code, the carryback of any net capital loss deduction allowed by section 165(f) of the Code, or any reduction in taxable income allowed by section 607 of the Act.\n\n(5)  Method of accounting.  Taxable income must be computed under the method of accounting which the party uses for Federal income tax purposes. Such method may include a method of reporting whereby items of revenue and expense properly allocable to voyages in progress at the end of any accounting period are eliminated from the computation of taxable income for such accounting period and taken into account in the accounting period in which the voyage is completed.\n\n(c)  Net proceeds from transactions with respect to agreement vessels.  [Reserved]\n\n(d)  Earnings and gains from the investment or reinvestment of amounts held in a fund \u2014(1)  In general.  (i) Earnings and gains received or accrued by a party from the investment or reinvestment of assets in a fund is the total amount of any interest or dividends received or accrued, and gains realized, by the party with respect to assets deposited in, or purchased with amounts deposited in, such fund. Such earnings and gains are therefore required to be included in the gross income of the party unless such amount, or a portion thereof, is not taken into account under section 607(d)(1)(C) of the Act and \u00a7 391.3(b)(2)(ii) by reason of a deposit or deemed deposit into the fund. For rules relating to receipts from the sale or other disposition of nonmoney deposits into the fund, see paragraph (g) of this section.\n\n(ii) Earnings received or accrued by a party from investment or reinvestment of assets in a fund include the ratable monthly portion of original issue discount included in gross income pursuant to section 1232(a)(3) of the Code. Such ratable monthly portion shall be deemed to be deposited into the ordinary income account of the fund, but an actual deposit representing such ratable monthly portion shall not be made. For basis of a bond or other evidence of indebtedness issued at a discount, see \u00a7 391.3(b)(2)(ii)(b).\n\n(2)  Gain realized.  (i) The gain realized with respect to assets in the fund is the excess of the amount realized (as defined in section 1001(b) of the Code and the regulations thereunder) by the fund on the sale or other disposition of a fund asset over its adjusted basis (as defined in section 1011 of the Code) to the fund. For the adjusted basis of nonmoney deposits, see paragraph (g) of this section.\n\n(ii) Property purchased by the fund (including property considered under paragraph (g)(1)(iii) of this section as purchased by the fund) which is withdrawn from the fund in a qualified withdrawal (as defined in \u00a7 391.5) is treated as a disposition to which subdivision (i) of this subparagraph applies. For purposes of determining the amount by which the balance within a particular account will be reduced in the manner provided in \u00a7 391.6(b) (relating to order of application of qualified withdrawals against accounts) and for purposes of determining the reduction in basis of a vessel, barge, or container (or share therein) pursuant to \u00a7 391.6(c), the value of the property is its fair market value on the day of the qualified withdrawal.\n\n(3)  Holding Period.  Except as provided in paragraph (g) of this section, the holding period of fund assets shall be determined under section 1223 of the Code.\n\n(e)  Leased vessels.  In the case of a party who is a lessee of an agreement vessel, the maximum amount which such lessee may deposit with respect to any agreement vessel by reason of section 607(b)(1)(B) of the Act and paragraph (a)(1)(ii) of this section (relating to depreciation allowable) for any period shall be reduced by the amount (if any) which, under an agreement entered into under section 607 of the Act, the owner is required or permitted to deposit for such period with respect to such vessel by reason of section 607(b)(1)(B) of the Act and paragraph (a)(1)(ii) of this section. The amount of depreciation depositable by the lessee under this paragraph is the amount of depreciation deductible by the lessor on its income tax return, reduced by the amount described in the preceding sentence or the amount set forth in the agreement, whichever is lower.\n\n(f)  Definition of agreement vessel.  For purposes of this section, the term  agreement vessel  (as defined in \u00a7 391.11 (a)(3) and 46 CFR 390.6) includes barges and containers which are the complement of an agreement vessel and which are provided for in the agreements, agreement vessels which have been contracted for or are in the process of construction, and any shares in an agreement vessel. Solely for purposes of this section, a party is considered to have a \u201cshare\u201d in an agreement vessel if he has a right to use the vessel to generate income from its use whether or not the party would be considered as having a proprietary interest in the vessel for purposes of State or Federal law. Thus, a partner may enter into an agreement with respect to his share of the vessel owned by the partnership and he may make deposits of his distributive share of the sum of the four subceilings described in paragraph (a)(1) of this section. Notwithstanding the provisions of Subchapter K of the Code (relating to the taxation of partners and partnerships), the Internal Revenue Service will recognize, solely for the purposes of applying this part, an agreement by an owner of a share in an agreement vessel even though the \u201cshare\u201d arrangement is a partnership for purposes of the Code.\n\n(g)  Special rules for nonmoney deposits and withdrawals \u2014(1)  In general.  (i) Deposits may be made in the form of money or property of the type permitted to be deposited under the agreement. (For rules relating to the types of property which may be deposited into the fund, see 46 CFR 390.7(d), and 50 CFR part 259.) For purposes of this paragraph, the term  property  does not include money.\n\n(ii) Whether or not the election provided for in paragraph (g)(2) of this section is made\u2014\n\n( a ) The amount of any property deposit, and the fund's basis for property deposited in the fund, is the fair market value of the property at the time deposited, and\n\n( b ) The fund's holding period for the property begins on the day after the deposit is made.\n\n(iii) Unless such an election is made, deposits of property into a fund are considered to be a sale at fair market value of the property, a deposit of cash equal to such fair market value, and a purchase by the fund of such property for cash. Thus, in the absence of the election, the difference between the fair market value of such property deposited and its adjusted basis shall be taken into account as gain or loss for purposes of computing the party's income tax liability for the year of deposit.\n\n(iv) For fund's basis and holding period of assets purchased by the fund, see paragraphs (d) (2) and (3) of this section.\n\n(2)  Election not to treat deposits of property other than money as a sale or exchange at the time of deposit.  A party may elect to treat a deposit of property as if no sale or other taxable event had occurred on the date of deposit. If such election is made, in the taxable year the fund disposes of the property, the party shall recognize as gain or loss the amount he would have recognized on the day the property was deposited into the fund had the election not been made. The party's holding period with respect to such property shall not include the period of time such property was held by the fund. The election shall be made by a statement to that effect, attached to the party's Federal income tax return for the taxable year to which the deposit relates, or, if such return is filed before such deposit is made, attached to the party's return for the taxable year during which the deposit is actually made.\n\n(3)  Effect of qualified withdrawal of property deposited pursuant to election.  If property deposited into a fund, with respect to which an election under paragraph (g)(2) of this section is made, is withdrawn from the fund in a qualified withdrawal (as defined in \u00a7 391.5) such withdrawal is treated as a disposition of such property resulting in recognition by the party of gain or loss (if any) as provided in paragraph (g)(2) of this section with respect to nonfund property. In addition, such withdrawal is treated as a disposition of such property by the fund resulting in recognition of gain or loss by the party with respect to fund property to the extent the fair market value of the property on the date of withdrawal is greater or less (as the case may be) than the adjusted basis of the property to the fund on such date. For purposes of determining the amount by which the balance within a particular account will be reduced in the manner provided in \u00a7 391.6(b) (relating to order of application of qualified withdrawals against accounts and for purposes of determining the reduction in basis of a vessel, barge, or container (or share therein) pursuant to \u00a7 391.6(c), the value of the property is its fair market value on the day of the qualified withdrawal. For rules relating to the effect of a qualified withdrawal of property purchased by the fund (including deposited property considered under paragraph (g)(1)(iii) of this section as purchased by the fund), see paragraph (d)(2)(ii) of this section.\n\n(4)  Effect of nonqualified withdrawal of property deposited pursuant to election.  If property deposited into a fund with respect to which an election under paragraph (g)(2) of this section is made, is withdrawn from the fund in a nonqualified withdrawal (as defined in \u00a7 391.7(b)), no gain or loss is to be recognized by the party with respect to fund property or nonfund property but an amount equal to the adjusted basis of the property to the fund is to be treated as a nonqualified withdrawal. Thus, such amount is to be applied against the various accounts in the manner provided in \u00a7 391.7(c), such amount is to be taken into account in computing the party's taxable income as provided in \u00a7 391.7(d), and such amount is to be subject to interest to the extent provided for in \u00a7 391.7(e). In the case of withdrawals to which this subparagraph applies, the adjusted basis of the property in the hands of the party is the adjusted basis on the date of deposit, increased or decreased by the adjustments made to such property while held in the fund, and in determining the period for which the party has held the property there shall be included, in addition to the period the fund held the property, the period for which the party held the property before the date of deposit of the property into the fund. For rules relating to the basis and holding period of property purchased by the fund (including deposited property considered under paragraph (g)(1)(ii) of this section as purchased by the fund) and withdrawn in a nonqualified withdrawal see \u00a7 391.7(f).\n\n(5)  Examples.  The provisions of this paragraph are illustrated by the following examples:"], ["46:46:8.0.1.12.46.0.18.4", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.3 Nontaxability of deposits.", "FMC", "", "", "", "(a)  In general.  Section 607(d) of the Act sets forth the rules concerning the income tax effects of deposits made with respect to ceilings described in section 607(b) and \u00a7 391.2. The specific treatment of deposits with respect to each of the subceilings is set forth in paragraph (b) of this section.\n\n(b)  Treatment of deposits \u2014(1)  Earnings of agreement vessels.  Section 607 (d)(1)(A) of the Act provides that taxable income of the party (determined without regard to section 607 of the Act) shall be reduced by an amount equal to the amount deposited for the taxable year out of amounts referred to in section 607(b)(1)(A) of the Act and \u00a7 391.2(a)(1)(i). For computation of the foreign tax credit, see paragraph (i) of this section.\n\n(2)  Net proceeds from agreement vessels and fund earnings.  (i)( a ) Section 607(d)(1)(B) provides that gain from a transaction referred to in section 607(b)(1)(C) of the Act and \u00a7 391.2(a)(1)(iii) (relating to ceilings on deposits of net proceeds from the sale or other disposition of agreement vessels) is not to be taken into account for purposes of the Code if an amount equal to the net proceeds from transactions referred to in such sections is deposited in the fund. Such gain is to be excluded from gross income of the party for the taxable year to which such deposit relates. Thus, the gain will not be taken into account in applying section 1231 of the Code for the year to which the deposit relates.\n\n( b ) [Reserved]\n\n(ii)( a ) Section 607(d)(1)(C) of the Act provides that the earnings (including gains and losses) from the investment and reinvestment of amounts held in the fund and referred to in section 607(b)(1)(D) of the Act and \u00a7 391.2(a)(1)(iv) shall not be taken into account for purposes of the Code if an amount equal to such earnings is deposited into the fund. Such earnings are to be excluded from the gross income of the party for the taxable year to which such deposit relates.\n\n( b ) However, for purposes of the basis adjustment under section 1232(a)(3)(E) of the Code, the ratable monthly portion of original issue discount included in gross income shall be determined without regard to section 607(d)(1)(C) of the Act.\n\n(iii) In determining the tax liability of a party to whom paragraph (b)(1) of this section applies, taxable income, determined after application of paragraph (b)(1) of this section, is in effect reduced by the portion of deposits which represent gain or earnings respectively referred to in paragraph (b)(2) (i) or (ii) of this section. The excess, if any, of such portion over taxable income determined after application of paragraph (b)(1) of this section is taken into account in computing the net operating loss (under section 172 of the Code) for the taxable year to which such deposits relate.\n\n(3)  Time for making deposits.  (i) This section applies with respect to an amount only if such amount is deposited in the fund pursuant to the agreement and not later than the time provided in paragraph (b)(2) (ii), (iii), or (iv) of this section for the making of such deposit or the date the Secretary of Transportation provides, whichever is earlier.\n\n(ii) Except as provided in paragraph (b)(2) (iii) or (iv) of this section, a deposit may be made not later than the last day prescribed by law (including extensions thereof) for filing the party's Federal income tax return for the taxable year to which such deposit relates.\n\n(iii) If the party is a subsidized operator under an operating-differential subsidy contract, and does not receive on or before the 59th day preceding such last day, payment of all or part of the accrued operating-differential subsidy payable for the taxable year, the party may deposit an amount equivalent to the unpaid accrued operating-differential subsidy on or before the 60th day after receipt of payment of the accrued operating-differential subsidy.\n\n(iv) A deposit pursuant to \u00a7 391.2(a)(3)(i) (relating to underdeposits caused by audit adjustments) must be made on or before the date prescribed for such a deposit in \u00a7 391.2(a)(4).\n\n(4)  Date of deposits.  (i) Except as otherwise provided in paragraphs (b)(4) (ii) and (iii) of this section (with respect to taxable years beginning after December 31, 1969, and prior to January 1, 1972), in \u00a7 391.2(a)(2)(i), or in \u00a7 391.10(b), deposits made in a fund within the time specified in paragraph (b)(3) of this section are deemed to have been made on the date of actual deposit.\n\n(ii)( a ) For taxable years beginning after December 31, 1969, and prior to January 1, 1971, where an application for a fund is filed by a taxpayer prior to January 1, 1972, and an agreement is executed and entered into by the taxpayer prior to March 1, 1972,\n\n( b ) For taxable years beginning after December 31, 1970, and prior to January 1, 1972, where an application for a fund is filed by a taxpayer prior to January 1, 1973, and an agreement is executed and entered into by the taxpayer prior to March 1, 1973, and\n\n( c ) For taxable years beginning after December 31, 1971, and prior to January 1, 1975, where an agreement is executed and entered into by the taxpayer on or prior to the due date, with extensions, for the filing of his Federal income tax return for such taxable year, deposits in a fund which are made within 60 days after the date of execution of the agreement, or on or before the due date, with extensions thereof, for the filing of his Federal income tax return for such taxable year or years, whichever date shall be later, shall be deemed to have been made on the date of the actual deposit or as of the close of business of the last regular business day of each such taxable year or years to which such deposits relate, whichever day is earlier.\n\n(iii) Notwithstanding paragraph (b)(4)(ii) of this section, for taxable years beginning after December 31, 1970, and ending prior to January 1, 1972, deposits made later than the last date permitted under paragraph (b)(4)(ii) but on or before January 9, 1973, in a fund pursuant to an agreement with the Secretary of Transportation acting by and through the Administrator of the National Oceanic and Atmospheric Administration, shall be deemed to have been made on the date of the actual deposit or as of the close of business of the last regular business day of such taxable year, whichever is earlier.\n\n(c)  Determination of earnings and profits.  [Reserved]\n\n(d)  Accumulated earnings tax.  As provided in section 607(d)(1)(E) of the Act amounts, while held in the fund, are not to be taken into account in computing the \u201caccumulated taxable income\u201d of the party within the meaning of section 531 of the Code. Amounts while held in the fund are considered held for the purpose of acquiring, constructing, or reconstructing a qualified vessel or barges and containers which are part of the complement of a qualified vessel or the payment of the principal on indebtedness incurred in connection with any such acquisition, construction, or reconstruction. Thus, for example, if the reasonable needs of the business (within the meaning of section 537 of the Code) justify a greater amount of accumulation for providing replacement vessels than can be satisfied out of the fund, such greater amount accumulated outside of the fund shall be considered to be accumulated for the reasonable needs of the business. For a further example, although amounts in the fund are not taken into account in applying the tax imposed by section 531 of the Code, to the extent there are amounts in a fund to provide for replacing a vessel, amounts accumulated outside of the fund to replace the same vessel are not considered to be accumulated for the reasonable needs of the business.\n\n(e)  Nonapplicability of section 1231.  If an amount equivalent to gain from a transaction referred to in section 607(b)(1)(C) of the Act and \u00a7 391.2(c) (1) and (5) is deposited into the fund and, therefore, such gain is not taken into account in computing gross income under the provisions of paragraph (b)(2) of this section, then such gain will not be taken into account for purposes of the computations under section 1231 of the Code.\n\n(f)  Deposits of capital gains.  In respect of capital gains which are not included in the gross income of the party by virtue of a deposit to which section 607(d) of the Act and this section apply, the following provisions of the Code do not apply; the minimum tax for tax preferences imposed by section 56 of the Code; the alternative tax imposed by section 1201 of the Code on the excess of the party's net long-term capital gain over his net short-term capital loss; and, in the case of a taxpayer other than a corporation, the deduction provided by section 1202 of the Code of 50 percent of the amount of such excess. However, section 56 may apply upon a nonqualified withdrawal with respect to amounts treated under \u00a7 391.7(d)(2) as being made out of the capital gain account.\n\n(g)  Deposits of dividends.  The deduction provided by section 243 of the Code (relating to the deductions for dividends from a domestic corporation received by a corporation) shall not apply in respect of dividends (earned on assets held in the fund) which are deposited into a fund, and which, by virtue of such deposits and the provisions of section 607(d) of the Act and this section, are not included in the gross income of the party.\n\n(h)  Presumption of validity of deposit.  All amounts deposited in the fund shall be presumed to have been deposited pursuant to an agreement unless, after an examination of the facts upon the request of the Commissioner of Internal Revenue or his delegate, the Secretary of Transportation determines otherwise. The Commissioner or his delegate will request such a determination where there is a substantial question as to whether a deposit is made in accordance with an agreement.\n\n(i)  Special rules for application of the foreign tax credit \u2014(1)  In general.  For purposes of computing the limitation under section 904 of the Code on the amount of the credit provided by section 901 of the Code (relating to the foreign tax credit), the party's taxable income from any source without the United States and the party's entire taxable income are to be determined after application of section 607(d) of the Act. Thus, amounts deposited for the taxable year with respect to amounts referred to in section 607(b)(1)(A) of the Act and \u00a7 391.2(a)(1)(i) (relating to taxable income attributable to the operation of agreement vessels) shall be treated as a deduction in arriving at the party's taxable income from sources without the United States (subject to the apportionment rules and paragraph (i)(2) of this section) and the party's entire taxable income for the taxable year. Amounts deposited with respect to gain described in section 607(d)(1)(B) of the Act and \u00a7 391.2(c) (relating to net proceeds from the sale or other disposition of an agreement vessel and net proceeds from insurance or indemnity) and amounts deposited with respect to earnings described in section 607(d)(1)(C) of the Act and paragraph (b)(2)(ii) (relating to earnings from the investment and reinvestment of amounts held in a fund) of this section are not taken into account for purposes of the Code and hence are not included in the party's taxable income from sources without the United States or in the party's entire taxable income for purposes of this paragraph.\n\n(2)  Apportionment of taxable income attributable to agreement vessels.  For purposes of computing the overall limitation under section 904(a)(2) of the Code the amount of the deposit made with respect to taxable income attributable to agreement vessels pursuant to \u00a7 391.2(a)(1)(i) which is allocable to sources without the United States is the total amount of such deposit multiplied by a fraction the numerator of which is the gross income from sources without the United States from the operation of agreement vessels and the denominator of which is the total gross income from the operation of agreement vessels computed as provided in \u00a7 391.2(b)(2). For purposes of this paragraph, gross income from sources without the United States attributable to the operation of agreement vessels is to be determined under sections 61 through 863 of the Code and under the taxpayer's usual method of accounting provided such method is reasonable and in keeping with sound accounting practice. Any computation under the per-country limitation of section 904(a)(1) shall be made in the manner consistent with the provisions of the preceding sentences of this paragraph."], ["46:46:8.0.1.12.46.0.18.5", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.4 Establishment of accounts.", "FMC", "", "", "", "(a)  In general.  Section 607(e)(1) of the Act requires that three bookkeeping or memorandum accounts are to be established and maintained within the fund: The capital account, the capital gain account, and the ordinary income account. Deposits of the amounts under the subceilings in section 607(b) of the Act and \u00a7 391.2 are allocated among the accounts under section 607(e) of the Act and this section.\n\n(b)  Capital account.  The capital account shall consist of:\n\n(1) Amounts referred to in section 607(b)(1)(B) of the Act and \u00a7 391.2 (a)(1)(ii) (relating to deposits for depreciation),\n\n(2) Amounts referred to in section 607(b)(1)(C) of the Act and \u00a7 391.2(a)(1)(iii) (relating to deposits of net proceeds from the sale or other disposition of agreement vessels) other than that portion thereof which represents gain not taken into account for purposes of computing gross income by reason of section 607(d)(1)(B) of the Act and \u00a7 391.3(b)(2) (relating to nontaxability of gain from the sale or other disposition of an agreement vessel),\n\n(3) Amounts representing 85 percent of any dividend received by the fund with respect to which the party would, but for section 607(d)(1)(C) of the Act and \u00a7 391.3(b)(2)(ii) (relating to nontaxability of deposits of earnings from investment and reinvestment of amounts held in a fund), be allowed a deduction under section 243 of the Code, and\n\n(4) Amounts received by the fund representing interest income which is exempt from taxation under section 103 of the Code.\n\n(c)  Capital gain account.  The capital gain account shall consist of amounts which represent the excess of (1) deposits of long-term capital gains on property referred to in section 607(b)(1) (C) and (D) of the Act and \u00a7 391.2(a)(1) (iii) and (iv) (relating respectively to certain agreement vessels and fund assets), over (2) amounts representing losses from the sale or exchange of assets held in the fund for more than 6 months (for purposes of this section referred to as \u201clong-term capital losses\u201d). For purposes of this paragraph and paragraph (d)(2) of this section, an agreement vessel disposed of at a gain shall be treated as a capital asset to the extent that gain thereon is not treated as ordinary income, including gain which is ordinary income under section 607(g)(5) of the Act (relating to treatment of gain on disposition of a vessel with a reduced basis) and \u00a7 391.6(e) or under section 1245 of the Code (relating to gain from disposition of certain depreciable property). For provisions relating to the treatment of short-term capital gains on certain transactions involving agreement vessels or realized by the fund, see paragraph (d) of this section. For rules relating to the treatment of capital losses on assets held in the fund, see paragraph (e) of this section.\n\n(d)  Ordinary income account.  The ordinary income account shall consist of:\n\n(1) Amounts referred to in section 607(b)(1)(A) of the Act and \u00a7 391.2(a)(1)(i) (relating to taxable income attributable to the operation of an agreement vessel),\n\n(2) Amounts representing (i) deposits of gains from the sale or exchange of capital assets held for 6 months or less (for purposes of this section referred to as \u201cshort-term capital gains\u201d) referred to in section 607(b)(1) (C) or (D) of the Act and \u00a7 391.2(a)(1) (iii) and (iv) (relating respectively to certain agreement vessels and fund assets), reduced by (ii) amounts representing losses from the sale or exchange of capital assets held in the fund for 6 months or less (for purposes of this section referred to as \u201cshort-term capital losses\u201d). For rules relating to the treatment of certain agreement vessels as capital assets, see paragraph (c) of this section,\n\n(3) Amounts representing interest (not including any tax-exempt interest referred to in section 607(e)(2)(D) of the Act and paragraph (b)(4) of this section) and other ordinary income received on assets held in the fund (not including any dividend referred to in section 607(e)(2)(C) of the Act and paragraph (d)(5) of this section),\n\n(4) Amounts representing ordinary income from a transaction (involving certain net proceeds with respect to an agreement vessel) described in section 607(b)(1)(C) of the Act and \u00a7 391.2(a)(1)(iii), including gain which is ordinary income under section 607(g)(5) of the Act and \u00a7 391.6(e) (relating to treatment of gain on the disposition of a vessel with a reduced basis) or under section 1245 of the Code (relating to gain from disposition of certain depreciable property), and\n\n(5) Fifteen percent of any dividend referred to in section 607(e)(2)(C) of the Act and paragraph (b)(3) of this section received on any assets held in the fund.\n\n(e)  Limitation on deduction for capital losses on assets held in a fund.  Except on termination of a fund, long-term (and short-term) capital losses on assets held in a fund shall be allowed only as an offset to long-term (and short-term) capital gains on assets held in the fund, but only if such gains are deposited into the fund, and shall not be allowed as an offset to any capital gains on assets not held in the fund. The net long-term capital loss of the fund for the taxable year shall reduce the earliest long-term capital gains in the capital gain account at the beginning of the taxable year and the next short-term capital loss for the taxable year shall reduce the earliest short-term capital gains remaining in the ordinary income account at the beginning of the taxable year. Any such losses that are in excess of the capital gains in the respective accounts shall reduce capital gains deposited into the respective accounts in subsequent years (without regard to section 1212, relating to capital loss carrybacks and carryovers). On termination of a fund, any net long-term capital loss in the capital gain account and any net short-term capital loss remaining in the ordinary income accounts is to be taken into account for purposes of computing the party's taxable income for the year of termination as a long-term or short-term (as the case may be) capital loss recognized in the year the fund is terminated. With respect to the determination of the basis to a fund of assets held in such fund, see \u00a7 391.2(g)."], ["46:46:8.0.1.12.46.0.18.6", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.5 Qualified withdrawals.", "FMC", "", "", "", "(a)  In general.  (1) A qualified withdrawal is one made from the fund during the taxable year which is in accordance with section 670(f)(1) of the Act, the agreement, and with regulations prescribed by the Secretary of Transportation and which is for the acquisition, construction, or reconstruction of a qualified vessel (as defined in \u00a7 391.11(a)(2)) or barges and containers which are part of the complement of a qualified vessel (or shares in such vessels, barges, and containers), or for the payment of the principal of indebtedness incurred in connection with the acquisition construction, or reconstruction of such qualified vessel (or a barge or container which is part of the complement of a qualified vessel).\n\n(2) For purposes of this section the term  share  is used to reflect an interest in a vessel and means a proprietary interest in a vessel such as, for example, that which results from joint ownership. Accordingly, a share within the meaning of \u00a7 391.2(f) (relating to the definition of \u201cagreement vessel\u201d for the purpose of making deposits) will not necessarily be sufficient to be treated as a share within the meaning of this section.\n\n(3) For purposes of this section, the term  acquisition  means any of the following:\n\n(i) Any acquisition, but only to the extent the basis of the property acquired in the hands of the transferee is its cost. Thus, for example, if a party transfers a vessel and $1 million in an exchange for another vessel which qualifies for nonrecognition of gain or loss under section 1031(a) of the Code (relating to like-kind exchange), there is an acquisition to the extent of $1 million.\n\n(ii) With respect to a lessee's interest in a vessel, expenditures which result in increasing the amounts with respect to which a deduction for depreciation (or amortization in lieu thereof) is allowable.\n\n(b)  Payments on indebtedness.  Payments on indebtedness may constitute qualified withdrawals only if the party shows to the satisfaction of the Secretary of Transportation a direct connection between incurring the indebtedness and the acquisition, construction, or reconstruction of a qualified vessel or its complement of barges and containers whether or not the indebtedness is secured by the vessel or its complement of barges and containers. The fact that an indebtedness is secured by an interest in a qualified vessel, barge, or container is insufficient by itself to demonstrate the necessary connection.\n\n(c)  Payments to related persons.  Not- withstanding paragraph (a) of this section, payments from a fund to a person owned or controlled directly or indirectly by the same interests as the party within the meaning of section 482 of the Code and the regulations thereunder are not to be treated as qualified withdrawals unless the party demonstrates to the satisfaction of the Secretary of Transportation that no part of such payment constitutes a dividend, a return of capital, or a contribution to capital under the Code.\n\n(d)  Treatment of fund upon failure to fulfill obligations.  Section 607(f)(2) of the Act provides that if the Secretary of Transportation determines that any substantial obligation under the agreement is not being fulfilled, he may, after notice and opportunity for hearing to the party, treat the entire fund, or any portion thereof, as having been withdrawn as a nonqualified withdrawal. In determining whether a party has breached a substantial obligation under the agreement, the Secretary will consider among other things, (1) the effect of the party's action or omission upon his ability to carry out the purposes of the fund and for which qualified withdrawals are permitted under section 607(f)(1) of the Act, and (2) whether the party has made material misrepresentations in connection with the agreement or has failed to disclose material information. For the income tax treatment of nonqualified withdrawals, see \u00a7 391.7."], ["46:46:8.0.1.12.46.0.18.7", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.6 Tax treatment of qualified withdrawals.", "FMC", "", "", "", "(a)  In general.  Section 607(g) of the Act and this section provide rules for the income tax treatment of qualified withdrawals including the income tax treatment on the disposition of assets acquired with fund amounts.\n\n(b)  Order of application of qualified withdrawals against accounts.  A qualified withdrawal from a fund shall be treated as being made: First, out of the capital account; second, out of the capital gain account; and third, out of the ordinary income account. Such withdrawals will reduce the balance within a particular account on a first-in-first-out basis, the earliest qualified withdrawals reducing the items within an account in the order in which they were actually deposited or deemed deposited in accordance with this part. The date funds are actually withdrawn from the fund determines the time at which withdrawals are considered to be made.\n\n(c)  Reduction of basis.  (1) If any portion of a qualified withdrawal for the acquisition, construction, or reconstruction of a vessel, barge, or container (or share therein) is made out of the ordinary income account, the basis of such vessel, barge, or container (or share therein) shall be reduced by an amount equal to such portion.\n\n(2) If any portion of a qualified withdrawal for the acquisition, construction or reconstruction of a vessel, barge, or container (or share therein) is made out of the capital gain account, the basis of such vessel, barge, or container (or share therein) shall be reduced by an amount equal to\u2014\n\n(i) Five-eights of such portion, in the case of a corporation (other than an electing small business corporation, as defined in section 1371 of the Code), or\n\n(ii) One-half of such portion, in the case of any other person.\n\n(3) If any portion of a qualified withdrawal to pay the principal of an indebtedness is made out of the ordinary income account or the capital gain account, then the basis of the vessel, barge, or container (or share therein) with respect to which such indebtedness was incurred is reduced in the manner provided by paragraphs (c) (1) and (2) of this section. If the aggregate amount of such withdrawal from the ordinary income account and capital gain account would cause a basis reduction in excess of the party's basis in such vessel, barge, or container (or share therein), the excess is applied against the basis of other vessels, barges, or containers (or shares therein) owned by the party at the time of withdrawal in the following order: (i) Vessels, barges, or containers (or shares therein) which were the subject of qualified withdrawals in the order in which they were acquired, constructed, or reconstructed; (ii) agreement vessels (as defined in section 607(k)(3) of the Act and \u00a7 391.11(a)(3)) and barges and containers which are part of the complement of an agreement vessel (or shares therein) which were not the subject of qualified withdrawals, in the order in which such vessels, barges, or containers (or shares therein) were acquired by the party; and (iii) other vessels, barges, and containers (or shares therein), in the order in which they were acquired by the party. Any amount of a withdrawal remaining after the application of this paragraph is to be treated as a nonqualified withdrawal. If the indebtedness was incurred to acquire two or more vessels, barges, or containers (or shares therein), then the basis reduction in such vessels, barges, or containers (or shares therein) is to be made pro rata in proportion to the adjusted basis of such vessels, barges, or containers (or shares therein) computed, however, without regard to this section and adjustments under section 1016(a) (2) and (3) of the Code for depreciation or amortization.\n\n(d)  Basis for depreciation.  For purposes of determining the allowance for depreciation under section 167 of the Code in respect of any property which has been acquired, constructed, or reconstructed from qualified withdrawals, the adjusted basis for determining gain on such property is determined after applying paragraph (c) of this section. In the case of reductions in the basis of any property resulting from the application of paragraph (c)(3) of this section, the party may adopt a method of accounting whereby (1) payments shall reduce the basis of the property on the day such payments are actually made, or (2) payments made at any time during the first half of the party's taxable year shall reduce the basis of the property on the first day of the taxable year, and payments made at any time during the second half of the party's taxable year shall reduce the basis of the property on the first day of the succeeding taxable year. For requirements respecting the change of methods of accounting, see \u00a7 1.446-1(e)(3) of the Income Tax Regulations of this chapter.\n\n(e)  Ordinary income treatment of gain from disposition of property acquired with qualified withdrawals.  [Reserved]"], ["46:46:8.0.1.12.46.0.18.8", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.7 Tax treatment of nonqualified withdrawals.", "FMC", "", "", "", "(a)  In general.  Section 607(h) of the Act provides rules for the tax treatment of nonqualified withdrawals, including rules for adjustments to the various accounts of the fund, the inclusion of amounts in income, and the payment of interest with respect to such amounts.\n\n(b)  Nonqualified withdrawals defined.  Except as provided in section 607 of the Act and \u00a7 391.8 (relating to certain corporate reorganizations, changes in partnerships, and transfers by reason of death), any withdrawal from a fund which is not a qualified withdrawal shall be treated as a nonqualified withdrawal which is subject to tax in accordance with section 607(h) of the Act and the provisions of this section. Examples of nonqualified withdrawals are amounts remaining in a fund upon termination of the fund, and withdrawals which are treated as nonqualified withdrawals under section 607(f)(2) of the Act and \u00a7 391.5(d) (relating to failure by a party to fulfill substantial obligation under agreement) or under the second sentence of section 607(g)(4) of the Act and \u00a7 391.6(c)(3) (relating to payments against indebtedness in excess of basis).\n\n(c)  Order of application of nonqualified withdrawals against deposits.  A nonqualified withdrawal from a fund shall be treated as being made: First, out of the ordinary income account; second, out of the capital gain account; and third, out of the capital account. Such withdrawals will reduce the balance within a particular account on a first-in-first-out basis, the earliest nonqualified withdrawals reducing the items within an account in the order in which they were actually deposited or deemed deposited in accordance with this part. Nonqualified withdrawals for research, development, and design expenses incident to new and advanced ship design, machinery, and equipment, and any amount treated as a nonqualified withdrawal under the second sentence of section 607(g)(4) of the Act and \u00a7 391.6(c)(3), shall be applied against the deposits within a particular account on a last-in-first-out basis. The date funds are actually withdrawn from the fund determines the time at which withdrawals are considered to be made. For special rules concerning the withdrawal of contingent deposits of net proceeds from the installment sale of an agreement vessel, see \u00a7 391.2(c)(6).\n\n(d)  Inclusion in income.  (1) Any portion of a nonqualified withdrawal which, under paragraph (c) of this section, is treated as being made out of the ordinary income account is to be included in gross income as an item of ordinary income for the taxable year in which the withdrawal is made.\n\n(2) Any portion of a nonqualified withdrawal which, under paragraph (c) of this section, is treated as being made out of the capital gain account is to be included in income as an item of long-term capital gain recognized during the taxable year in which the withdrawal is made.\n\n(3) For effect upon a party's taxable income of capital losses remaining in a fund upon the termination of a fund (which, under paragraph (b) of this section, is treated as a nonqualified withdrawal of amounts remaining in the fund), see \u00a7 391.4(e).\n\n(e)  Interest.  (1) For the period on or before the last date prescribed by law, including extensions thereof, for filing the party's Federal income tax return for the taxable year during which a nonqualified withdrawal is made, no interest shall be payable under section 6601 of the Code in respect of the tax on any item which is included in gross income under paragraph (d) of this section, and no addition to such tax for such period shall be payable under section 6651 of the Code. In lieu of the interest and additions to tax under such sections, simple interest on the amount of the tax attributable to any item included in gross income under paragraph (d) of this section is to be paid at the rate of interest determined for the year of withdrawal under paragraph (e)(2) of this section. Such interest is to be charged for the period from the last date prescribed for payment of tax for the taxable year for which such item was deposited in the fund to the last date for payment of tax for the taxable year in which the withdrawal is made. Both dates are to be determined without regard to any extensions of time for payment. Interest determined under this paragraph which is paid within the taxable year shall be allowed as a deduction for such year under section 163 of the Code. However, such interest is to be treated as part of the party's tax for the year of withdrawal for purposes of collection and in determining any interest or additions to tax for the year of withdrawal under section 6601 or 6651, respectively, of the Code.\n\n(2) For purposes of section 607(h)(3)(C)(ii) of the Act, and for purposes of certain dispositions of vessels constructed, reconstructed, or acquired with qualified withdrawals described in \u00a7 391.6(e), the applicable rate of interest for any nonqualified withdrawal\u2014\n\n(i) Made in a taxable year beginning in 1970 and 1971 is 8 percent.\n\n(ii) Made in a taxable year beginning after 1971, the rate for such year as determined and published jointly by the Secretary of the Treasury or his delegate and the Secretary of Transportation. Such rate shall bear a relationship to 8 percent which the Secretaries determine to be comparable to the relationship which the money rates and investment yields for the calendar year immediately preceding the beginning of the taxable year bear to the money rates and investment yields for the calendar year 1970. The determination of the applicable rate for any such taxable year will be computed by multiplying 8 percent by the ratio which ( a ) the average yield on 5-year Treasury securities for the calendar year immediately preceding the beginning of such taxable year, bears to ( b ) the average yield on 5-year Treasury securities for the calendar year 1970. The applicable rate so determined shall be computed to the nearest one-hundredth of 1 percent. If such a determination and publication is made, the latest published percentage shall apply for any taxable year beginning in the calendar year with respect to which publication is made.\n\n(3) No interest shall be payable in respect of taxes on amounts referred to in section 607(h)(2) (i) and (ii) of the Act (relating to withdrawals for research and development and payments against indebtedness in excess of basis) or in the case of any nonqualified withdrawal arising from the application of the recapture provision of section 606(5) of the Merchant Marine Act, 1936, as in effect on December 31, 1969.\n\n(f)  Basis and holding period in the case of property purchased by the fund or considered purchased by the fund.  In the case of a nonqualified withdrawal of property other than money which was purchased by the fund (including deposited property considered under \u00a7 391.2 (g)(1)(ii) as purchased by the fund), the adjusted basis of the property in the hands of the party is its adjusted basis to the fund on the day of the withdrawal. In determining the period for which the taxpayer has held the property withdrawn in a nonqualified withdrawal, there shall be included only the period beginning with the date on which the withdrawal occurred. For basis and holding period in the case of nonqualified withdrawals of property other than money deposited into the fund, see \u00a7 391.2(g)(4)."], ["46:46:8.0.1.12.46.0.18.9", 46, "Shipping", "II", "K", "391", "PART 391\u2014FEDERAL INCOME TAX ASPECTS OF THE CAPITAL CONSTRUCTION FUND", "", "", "", "\u00a7 391.8 Certain corporate reorganizations and changes in partnerships, and certain transfers on death. [Reserved]", "FMC", "", "", "", ""], ["49:49:5.1.1.2.33.1.15.1", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "A", "Subpart A\u2014General", "", "\u00a7 391.1 Scope of the rules in this part; additional qualifications; duties of carrier-drivers.", "FHWA", "", "", "[35 FR 6460, Apr. 22, 1970, as amended at 53 FR 18057, May 19, 1988; 60 FR 38744, July 28, 1995; 80 FR 59074, Oct. 1, 2015]", "(a) The rules in this part establish minimum qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers. The rules in this part also establish minimum duties of motor carriers with respect to the qualifications of their drivers.\n\n(b) An individual who meets the definition of both a motor carrier and a driver employed by that motor carrier must comply with both the rules in this part that apply to motor carriers and the rules in this part that apply to drivers."], ["49:49:5.1.1.2.33.1.15.2", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "A", "Subpart A\u2014General", "", "\u00a7 391.2 General exceptions.", "FHWA", "", "", "[76 FR 75487, Dec. 2, 2011, as amended at 78 FR 16195, Mar. 14, 2013; 78 FR 58483, Sept. 24, 2013; 81 FR 47720, July 22, 2016]", "(a)  Farm custom operation.  The rules in this part, except for \u00a7 391.15(e) and (f), do not apply to a driver who drives a commercial motor vehicle controlled and operated by a person engaged in custom-harvesting operations, if the commercial motor vehicle is used to\u2014\n\n(1) Transport farm machinery, supplies, or both, to or from a farm for custom-harvesting operations on a farm; or\n\n(2) Transport custom-harvested crops to storage or market.\n\n(b)  Apiarian industries.  The rules in this part, except for \u00a7 391.15(e) and (f), do not apply to a driver who is operating a commercial motor vehicle controlled and operated by a beekeeper engaged in the seasonal transportation of bees.\n\n(c)  Certain farm vehicle drivers.  The rules in this part, except for \u00a7 391.15(e) and (f), do not apply to a farm vehicle driver except a farm vehicle driver who drives an articulated (combination) commercial motor vehicle, as defined in \u00a7 390.5 of this chapter. For limited exemptions for farm vehicle drivers of articulated commercial motor vehicles, see \u00a7 391.67.\n\n(d)  Covered farm vehicles.  The rules in part 391, Subpart E\u2014Physical Qualifications and Examinations\u2014do not apply to drivers of \u201ccovered farm vehicles,\u201d as defined in 49 CFR 390.5.\n\n(e)  Pipeline welding trucks.  The rules in this part do not apply to drivers of \u201cpipeline welding trucks\u201d as defined in 49 CFR 390.38(b)."], ["49:49:5.1.1.2.33.2.15.1", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "B", "Subpart B\u2014Qualification and Disqualification of Drivers", "", "\u00a7 391.11 General qualifications of drivers.", "FHWA", "", "", "[35 FR 6460, Apr. 22, 1970, as amended at 35 FR 17420, Nov. 13, 1970; 35 FR 19181, Dec. 18, 1970; 36 FR 222, Jan. 7, 1971, 36 FR 24220, Dec. 22, 1971; 45 FR 46424, July 10, 1980; 52 FR 20589, June 1, 1987; 59 FR 60323, Nov. 23, 1994; 60 FR 38744, 38745, July 28, 1995; 63 FR 33276, June 18, 1998; 87 FR 13208, Mar. 9, 2022]", "(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 \u00a7 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.\n\n(b) Except as provided in subpart G of this part, a person is qualified to drive a motor vehicle if he/she\u2014\n\n(1) Is at least 21 years old;\n\n(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;\n\n(3) Can, by reason of experience, training, or both, safely operate the type of commercial motor vehicle he/she drives;\n\n(4) Is physically qualified to drive a commercial motor vehicle in accordance with subpart E\u2014Physical Qualifications and Examinations of this part;\n\n(5) Has a currently valid commercial motor vehicle operator's license issued only by one State or jurisdiction;\n\n(6) Is not disqualified to drive a commercial motor vehicle under the rules in \u00a7 391.15; and\n\n(7) Has successfully completed a driver's road test and has been issued a certificate of driver's road test in accordance with \u00a7 391.31, or has presented an operator's license or a certificate of road test which the motor carrier that employs him/her has accepted as equivalent to a road test in accordance with \u00a7 391.33."], ["49:49:5.1.1.2.33.2.15.2", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "B", "Subpart B\u2014Qualification and Disqualification of Drivers", "", "\u00a7 391.13 Responsibilities of drivers.", "FHWA", "", "", "[63 FR 33277, June 18, 1998, as amended at 80 FR 59074, Oct. 1, 2015]", "In order to comply with the requirements of \u00a7\u00a7 392.9(a) and 383.111(a)(16) of this subchapter, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless the person\u2014\n\n(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;\n\n(b) Is familiar with methods and procedures for securing cargo in or on the commercial motor vehicle he/she drives."], ["49:49:5.1.1.2.33.2.15.3", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "B", "Subpart B\u2014Qualification and Disqualification of Drivers", "", "\u00a7 391.15 Disqualification of drivers.", "FHWA", "", "", "[37 FR 24902, Nov. 23, 1972]", "(a)  General.  A driver who is disqualified shall not drive a commercial motor vehicle. A motor carrier shall not require or permit a driver who is disqualified to drive a commercial motor vehicle.\n\n(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.\n\n(2) A driver who receives a notice that his/her license, permit, or privilege to operate a commercial motor vehicle has been revoked, suspended, or withdrawn shall notify the motor carrier that employs him/her of the contents of the notice before the end of the business day following the day the driver received it.\n\n(c)  Disqualification for criminal and other offenses \u2014(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) of this section is disqualified for the period of time specified in paragraph (c)(3) of this section, if\u2014\n\n(i) The offense was committed during on-duty time as defined in \u00a7 395.2 of this subchapter or as otherwise specified; and\n\n(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.\n\n(2)  Disqualifying offenses.  The following offenses are disqualifying offenses:\n\n(i) Driving a commercial motor vehicle while under the influence of alcohol. This shall include:\n\n(A) Driving a commercial motor vehicle while the person's alcohol concentration is 0.04 percent or more;\n\n(B) Driving under the influence of alcohol, as prescribed by State law; or\n\n(C) Refusal to undergo such testing as is required by any State or jurisdiction in the enforcement of \u00a7 391.15(c)(2)(i) (A) or (B), or \u00a7 392.5(a)(2).\n\n(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;\n\n(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 on-duty time is defined in \u00a7 395.2 of this subchapter;\n\n(iv) Leaving the scene of an accident while operating a commercial motor vehicle; or\n\n(v) A felony involving the use of a commercial motor vehicle.\n\n(3)  Duration of disqualification \u2014(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 this section. Exemption. The period of disqualification is 6 months if the conviction or forfeiture of bond or collateral soley concerned the transportation or possession of substances named in paragraph (c)(2)(iii) of this section.\n\n(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 3 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 this section.\n\n(d)  Disqualification for violation of out-of-service orders \u2014(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) of this section.\n\n(2)  Duration of disqualification for violation of out-of-service orders \u2014(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.\n\n(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.\n\n(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.\n\n(iv)  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.\n\n(e) Disqualification for violation of prohibition of texting while driving a commercial motor vehicle\u2014\n\n(1)  General rule.  A driver who is convicted of violating the prohibition of texting in \u00a7 392.80(a) of this chapter is disqualified for the period of time specified in paragraph (e)(2) of this section.\n\n(2)  Duration.  Disqualification for violation of prohibition of texting while driving a commercial motor vehicle\u2014\n\n(i)  Second violation.  A driver is disqualified for 60 days if the driver is convicted of two violations of \u00a7 392.80(a) of this chapter in separate incidents during any 3-year period.\n\n(ii)  Third or subsequent violation.  A driver is disqualified for 120 days if the driver is convicted of three or more violations of \u00a7 392.80(a) of this chapter in separate incidents during any 3-year period.\n\n(f) Disqualification for violation of a restriction on using a hand-held mobile telephone while driving a commercial motor vehicle\u2014\n\n(1)  General rule.  A driver who is convicted of violating the restriction on using a hand-held mobile telephone in \u00a7 392.82(a) of this chapter is disqualified from driving a commercial motor vehicle for the period of time specified in paragraph (f)(2) of this section.\n\n(2)  Duration.  Disqualification for violation of a restriction on using a hand-held mobile telephone while driving a commercial motor vehicle\u2014\n\n(i)  Second violation.  A driver is disqualified for 60 days if the driver is convicted of two violations of \u00a7 392.82(a) of this chapter in separate incidents committed during any 3-year period.\n\n(ii)  Third or subsequent violation.  A driver is disqualified for 120 days if the driver is convicted of three or more violations of \u00a7 392.82(a) of this chapter in separate incidents committed during any 3-year period."], ["49:49:5.1.1.2.33.3.15.1", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "C", "Subpart C\u2014Background and Character", "", "\u00a7 391.21 Application for employment.", "FHWA", "", "", "[35 FR 6460, Apr. 22, 1970, as amended at 35 FR 17420, Nov. 13, 1970; 52 FR 20589, June 1, 1987; 60 FR 38744, July 28, 1995; 69 FR 16719, Mar. 30, 2004; 87 FR 13208, Mar. 9, 2022]", "(a) Except as provided in subpart G of this part, 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) of this section.\n\n(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:\n\n(1) The name and address of the employing motor carrier;\n\n(2) The applicant's name, address, date of birth, and social security number;\n\n(3) The addresses at which the applicant has resided during the 3 years preceding the date on which the application is submitted;\n\n(4) The date on which the application is submitted;\n\n(5) The issuing driver's licensing authority, number, and expiration date of each unexpired commercial motor vehicle operator's license or permit that has been issued to the applicant;\n\n(6) The nature and extent of the applicant's experience in the operation of motor vehicles, including the type of equipment (such as buses, trucks, truck tractors, semitrailers, full trailers, and pole trailers) which he/she has operated;\n\n(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;\n\n(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;\n\n(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;\n\n(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,\n\n(ii) The dates he or she was employed by that employer,\n\n(iii) The reason for leaving the employ of that employer,\n\n(iv) After October 29, 2004, whether the (A) Applicant was subject to the FMCSRs while employed by that previous employer,\n\n(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 CFR part 40;\n\n(11) For those drivers applying to operate a commercial motor vehicle as defined by part 383 of this subchapter, 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) of this section 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\n\n(12) The following certification and signature line, which must appear at the end of the application form and be signed by the applicant:\n\nThis 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. \n \n \n (Date) \n \n \n (Applicant's signature)\n\nThis 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.\n\n(c) A motor carrier may require an applicant to provide information in addition to the information required by paragraph (b) of this section on the application form.\n\n(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) of this section 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 \u00a7 391.23. The prospective employer must also notify the driver in writing of his/her due process rights as specified in \u00a7 391.23(i) regarding information received as a result of these investigations."], ["49:49:5.1.1.2.33.3.15.2", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "C", "Subpart C\u2014Background and Character", "", "\u00a7 391.23 Investigation and inquiries.", "FHWA", "", "", "[35 FR 6460, Apr. 22, 1970]", "(a) Except as provided in subpart G of this part, 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:\n\n(1) An inquiry, within 30 days of the date the driver's employment begins, to each State where the driver held or holds a motor vehicle operator's license or permit during the preceding 3 years, to obtain that driver's motor vehicle record covering that driver's prior 3-year driving history.\n\n(2) An investigation of the driver's safety performance history with Department of Transportation regulated employers during the preceding three years.\n\n(b) A copy of the motor vehicle record(s) obtained in response to the inquiry or inquiries to each driver's licensing authority required by paragraph (a)(1) of this section 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 \u00a7 391.51. If no motor vehicle record is received from a driver's licensing authority required to submit this response, the motor carrier must document a good faith effort to obtain such information. The inquiry to a driver's licensing authority must be made in the form and manner each authority prescribes.\n\n(c)(1) Replies to the investigations of the driver's safety performance history required by paragraph (a)(2) of this section, 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.\n\n(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 \u00a7 391.53.\n\n(3) Prospective employers should report failures of previous employers to respond to an investigation to the FMCSA and use the complaint procedures specified at \u00a7 386.12 of this subchapter. Keep a copy of the reports in the driver investigation history file as part of documenting a good faith effort to obtain the required information.\n\n(4) For drivers 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 investigation history file, after October 29, 2004, within the required 30 days of the date the driver's employment begins.\n\n(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.\n\n(1) General driver identification and employment verification information.\n\n(2) The data elements as specified in \u00a7 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.\n\n(i) Any accidents as defined by \u00a7 390.5 of this chapter.\n\n(ii) Any accidents the previous employer may wish to provide that are retained pursuant to \u00a7 390.15(b)(2), or pursuant to the employer's internal policies for retaining more detailed minor accident information.\n\n(e) In addition to the investigations required by paragraph (d) of this section, 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.\n\n(1) Whether, within the previous three years, the driver had violated the alcohol and controlled substances prohibitions under subpart B of part 382 of this chapter, or 49 CFR part 40.\n\n(2) Whether the driver failed to undertake or complete a rehabilitation program prescribed by a substance abuse professional (SAP) pursuant to \u00a7 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.\n\n(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 \u00a7 382.605 or 49 CFR part 40, subpart O referral:\n\n(i) Alcohol tests with a result of 0.04 or higher alcohol concentration;\n\n(ii) Verified positive drug tests;\n\n(iii) Refusals to be tested (including verified adulterated or substituted drug test results).\n\n(4) As of January 6, 2023, employers subject to \u00a7 382.701(a) of this chapter must use the Drug and Alcohol Clearinghouse to comply with the requirements of this section with respect to FMCSA-regulated employers.\n\n(i) If an applicant who is subject to follow-up testing has not successfully completed all follow-up tests, the employer must request the applicant's follow-up testing plan directly from the previous employer in accordance with \u00a7 40.25(b)(5) of this title.\n\n(ii) If an applicant was subject to an alcohol and controlled substance testing program under the requirements of a DOT mode other than FMCSA, the employer must request alcohol and controlled substances information required under this section directly from those employers regulated by a DOT mode other than FMCSA.\n\n(f)(1) A prospective motor carrier employer must provide to the previous employer the driver's consent meeting the requirements of \u00a7 40.321(b) of this title for the release of the information in paragraph (e) of this section. If the driver refuses to provide this consent, the prospective motor carrier employer must not permit the driver to operate a commercial motor vehicle for that motor carrier.\n\n(2) If a driver refuses to grant consent for the prospective motor carrier employer to query the Drug and Alcohol Clearinghouse in accordance with paragraph (e)(4) of this section, the prospective motor carrier employer must not permit the driver to operate a commercial motor vehicle.\n\n(g) After October 29, 2004, previous employers must:\n\n(1) Respond to each request for the DOT defined information in paragraphs (d) and (e) of this section 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.\n\n(2) Take all precautions reasonably necessary to ensure the accuracy of the records.\n\n(3) Provide specific contact information in case a driver chooses to contact the previous employer regarding correction or rebuttal of the data.\n\n(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.\n\n(5) Until May 1, 2006, carriers need only provide information for accidents that occurred after April 29, 2003.\n\n(h) The release of information under this section may take any form 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.\n\n(i)(1) The prospective employer must expressly notify drivers with Department of Transportation regulated employment during the preceding three years\u2014via the application form or other written document prior to any hiring decision\u2014that 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) of this section:\n\n(i) The right to review information provided by previous employers;\n\n(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;\n\n(iii) 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.\n\n(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 days 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.\n\n(j)(1) Drivers wishing to request correction of erroneous information in records received pursuant to paragraph (i) of this section must send the request for the correction to the previous employer that provided the records to the prospective employer.\n\n(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 the 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.\n\n(3) Drivers wishing to rebut information in records received pursuant to paragraph (i) of this section must send the rebuttal to the previous employer with instructions to include the rebuttal in that driver's safety performance history.\n\n(4) After October 29, 2004, within five business days of receiving a rebuttal from a driver, the previous employer must:\n\n(i) Forward a copy of the rebuttal to the prospective motor carrier employer;\n\n(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 data retention requirement.\n\n(5) The driver may submit a rebuttal initially without a request for correction, or subsequent to a request for correction.\n\n(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 \u00a7 386.12.\n\n(k)(1) The prospective motor carrier employer must use the information described in paragraphs (d) and (e) of this section only as part of deciding whether to hire the driver.\n\n(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.\n\n(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 this section may be brought against\u2014\n\n(i) A motor carrier investigating the information, described in paragraphs (d) and (e) of this section, of an individual under consideration for employment as a commercial motor vehicle driver,\n\n(ii) A person who has provided such information; or\n\n(iii) The agents or insurers of a person described in paragraph (l)(1)(i) or (ii) of this section, except insurers are not granted a limitation on liability for any alcohol and controlled substance information.\n\n(2) The protections in paragraph (l)(1) of this section do not apply to persons who knowingly furnish false information, or who are not in compliance with the procedures specified for these investigations.\n\n(m)(1) The motor carrier must obtain an original or copy of the medical examiner's certificate issued in accordance with \u00a7 391.43, and any medical variance on which the certification is based, and, beginning on or after May 21, 2014, verify the driver was certified by a medical examiner listed on the National Registry of Certified Medical Examiners as of the date of issuance of the medical examiner's certificate, and place the records in the driver qualification file, before allowing the driver to operate a CMV.\n\n(2) For drivers required to have a commercial driver's license under part 383 of this chapter, beginning January 30, 2015, using the CDLIS motor vehicle record obtained from the current licensing State, the motor carrier must verify and document in the driver qualification file the following information before allowing the driver to operate a CMV:\n\n(i) The type of operation the driver self-certified that he or she will perform in accordance with \u00a7 383.71(b)(1) of this chapter.\n\n(ii)(A) Beginning on May 21, 2014, and through June 22, 2025, that the driver was certified by a medical examiner listed on the National Registry of Certified Medical Examiners as of the date of medical examiner's certificate issuance.\n\n(B) If the driver has certified under paragraph (m)(2)(i)(A) of this section that he or she expects to operate in interstate commerce, that the driver has a valid medical examiner's certificate and any required medical variances.\n\n(iii) Beginning on January 30, 2015, and through June 22, 2025, if the driver provided the motor carrier with a copy of the current medical examiner's certificate that was submitted to the State in accordance with \u00a7 383.73(b)(5) of this chapter, the motor carrier may use a copy of that medical examiner's certificate as proof of the driver's medical certification for up to 15 days after the date it was issued.\n\n(3) For drivers required to have a commercial learner's permit under part 383 of this chapter:\n\n(i) Beginning July 8, 2015, using the CDLIS motor vehicle record obtained from the current licensing State, the motor carrier must verify and document in the driver qualification file the following information before allowing the driver to operate a CMV:\n\n(A) The type of operation the driver self-certified that he or she will perform in accordance with \u00a7 383.71(b)(1) and (g) of this chapter.\n\n(B)( 1 ) Through June 22, 2025, that the driver was certified by a medical examiner listed on the National Registry of Certified Medical Examiners as of the date of medical examiner's certificate issuance.\n\n( 2 ) If the driver has a commercial learner's permit and has certified under paragraph (m)(3)(i)(A) of this section that he or she expects to operate in interstate commerce, that the driver has a valid medical examiner's certificate and any required medical variances.\n\n(C) Through June 22, 2025, if the driver provided the motor carrier with a copy of the current medical examiner's certificate that was submitted to the State in accordance with \u00a7 383.73(a)(2)(vii) of this chapter, the motor carrier may use a copy of that medical examiner's certificate as proof of the driver's medical certification for up to 15 days after the date it was issued.\n\n(ii) Until July 8, 2015, if a driver operating in non-excepted, interstate commerce has no medical certification status information on the CDLIS MVR obtained from the current State driver licensing agency, the employing motor carrier may accept a medical examiner's certificate issued to that driver, and place a copy of it in the driver qualification file before allowing the driver to operate a CMV in interstate commerce.\n\n(4) In the event of a conflict between the medical certification information provided electronically by FMCSA and a paper copy of the medical examiner's certificate, the medical certification information provided electronically by FMCSA shall control."], ["49:49:5.1.1.2.33.3.15.3", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "C", "Subpart C\u2014Background and Character", "", "\u00a7 391.25 Annual inquiry and review of driving record.", "FHWA", "", "", "[63 FR 33277, June 18, 1998, as amended at 73 FR 73127, Dec. 1, 2008; 87 FR 13209, Mar. 9, 2022; 87 FR 59036, Sept. 29, 2022]", "(a) Except as provided in subpart G of this part, each motor carrier shall, at least once every 12 months, make an inquiry to obtain the motor vehicle record of each driver it employs, covering at least the preceding 12 months, to each driver's licensing authority where the driver held a commercial motor vehicle operator's license or permit during the time period.\n\n(b) Except as provided in subpart G of this part, each motor carrier shall, at least once every 12 months, review the motor vehicle 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 \u00a7 391.15.\n\n(1) The motor carrier must consider any evidence that the driver has violated any applicable Federal Motor Carrier Safety Regulations in this subchapter or Hazardous Materials Regulations (49 CFR chapter I, subchapter C).\n\n(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 indicate that the driver has exhibited a disregard for the safety of the public.\n\n(c)(1) A copy of the motor vehicle record required by paragraph (a) of this section shall be maintained in the driver's qualification file.\n\n(2) A note, including the name of the person who performed the review of the driving record required by paragraph (b) of this section and the date of such review, shall be maintained in the driver's qualification file."], ["49:49:5.1.1.2.33.3.15.4", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "C", "Subpart C\u2014Background and Character", "", "\u00a7 391.27 [Reserved]", "FHWA", "", "", "", ""], ["49:49:5.1.1.2.33.4.15.1", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "D", "Subpart D\u2014Tests", "", "\u00a7 391.31 Road test.", "FHWA", "", "", "[35 FR 6460, Apr. 22, 1970, as amended at 36 FR 223, Jan. 7, 1971; 59 FR 8752, Feb. 23, 1994; 60 FR 38744, July 28, 1995; 66 FR 49874, Oct. 1, 2001; 87 FR 3417, Jan. 21, 2022]", "(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 section.\n\n(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.\n\n(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:\n\n(1) The pretrip inspection required by \u00a7 392.7 of this subchapter;\n\n(2) Coupling and uncoupling of combination units, if the equipment he/she may drive includes combination units;\n\n(3) Placing the commercial motor vehicle in operation;\n\n(4) Use of the commercial motor vehicle's controls and emergency equipment;\n\n(5) Operating the commercial motor vehicle in traffic and while passing other motor vehicles;\n\n(6) Turning the commercial motor vehicle;\n\n(7) Braking, and slowing the commercial motor vehicle by means other than braking; and\n\n(8) Backing and parking the commercial motor vehicle.\n\n(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.\n\n(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) of this section.\n\n(f) The form for the certificate of driver's road test is substantially as follows:\n\nCertification of Road Test\n \n Driver's name\n \n Type of power unit ____________ Type of trailer(s)\n \n If passenger carrier, type of bus ____________\n \n This is to certify that the above-named driver was given a road test under my supervision on ____________, 20____, consisting of approximately ______ miles of driving.\n \n It is my considered opinion that this driver possesses sufficient driving skill to operate safely the type of commercial motor vehicle listed above.\n \n (Signature of examiner)\n \n (Title)\n \n (Organization and address of examiner)\n\nThis is to certify that the above-named driver was given a road test under my supervision on ____________, 20____, consisting of approximately ______ miles of driving.\n\nIt is my considered opinion that this driver possesses sufficient driving skill to operate safely the type of commercial motor vehicle listed above.\n\n(g) A copy of the certificate required by paragraph (e) of this section 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\u2014\n\n(1) The original of the signed road test form required by paragraph (d) of this section; and\n\n(2) The original, or a copy of, the certificate required by paragraph (e) of this section.\n\n(h) The information collection requirements of this section have been reviewed by the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501  et seq. ) and have been assigned OMB control number 2126-0072."], ["49:49:5.1.1.2.33.4.15.2", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "D", "Subpart D\u2014Tests", "", "\u00a7 391.33 Equivalent of road test.", "FHWA", "", "", "[35 FR 6460, Apr. 22, 1970, as amended at 60 FR 38744, July 28, 1995; 63 FR 33277, June 18, 1998]", "(a) In place of, and as equivalent to, the road test required by \u00a7 391.31, a person who seeks to drive a commercial motor vehicle may present, and a motor carrier may accept\u2014\n\n(1) A valid Commercial Driver's License as defined in \u00a7 383.5 of this subchapter, 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\n\n(2) A copy of a valid certificate of driver's road test issued to him/her pursuant to \u00a7 391.31 within the preceding 3 years.\n\n(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.\n\n(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."], ["49:49:5.1.1.2.33.5.15.1", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "E", "Subpart E\u2014Physical Qualifications and Examinations", "", "\u00a7 391.41 Physical qualifications for drivers.", "FHWA", "", "", "[35 FR 6460, Apr. 22, 1970]", "(a)(1)(i) A person subject to this part must not operate a commercial motor vehicle unless he or she is medically certified as physically qualified to do so, and, except as provided in paragraph (a)(2) of this section, when on-duty has on his or her person the original, or a copy, of a current medical examiner's certificate that he or she is physically qualified to drive a commercial motor vehicle. NOTE: Effective December 29, 1991, and as amended on January 19, 2017, the FMCSA Administrator determined that the Licencia Federal de Conductor issued by the United Mexican States is recognized as proof of medical fitness to drive a CMV. The United States and Canada entered into a Reciprocity Agreement, effective March 30, 1999, recognizing that a Canadian commercial driver's license is proof of medical fitness to drive a CMV. Therefore, Canadian and Mexican CMV drivers are not required to have in their possession a medical examiner's certificate if the driver has been issued, and possesses, a valid commercial driver license issued by the United Mexican States, or a Canadian Province or Territory, and whose license and medical status, including any waiver or exemption, can be electronically verified. Drivers from any of the countries who have received a medical authorization that deviates from the mutually accepted compatible medical standards of the resident country are not qualified to drive a CMV in the other countries. For example, Canadian drivers who do not meet the medical fitness provisions of the Canadian National Safety Code for Motor Carriers but are issued a waiver by one of the Canadian Provinces or Territories, are not qualified to drive a CMV in the United States. In addition, U.S. drivers who received a medical variance from FMCSA are not qualified to drive a CMV in Canada.\n\n(ii) A person who qualifies for the medical examiner's certificate by virtue of having obtained a medical variance from FMCSA, in the form of an exemption letter or a skill performance evaluation certificate, must have on his or her person a copy of the variance documentation when on-duty.\n\n(2)  CDL/CLP exception.  (i)(A) Beginning on January 30, 2015 and through June 22, 2025, a driver required to have a commercial driver's license under part 383 of this chapter, and who submitted a current medical examiner's certificate to the State in accordance with 49 CFR 383.71(h) documenting that he or she meets the physical qualification requirements of this part, no longer needs to carry on his or her person the medical examiner's certificate specified at \u00a7 391.43(h), or a copy, for more than 15 days after the date it was issued as valid proof of medical certification.\n\n(B) On or after June 23, 2025, a driver required to have a commercial driver's license or a commercial learner's permit under 49 CFR part 383, and who has a current medical examiner's certificate documenting that he or she meets the physical qualification requirements of this part, no longer needs to carry on his or her person the medical examiner's certificate specified at \u00a7 391.43(h).\n\n(ii) Beginning on July 8, 2015, and through June 22, 2025, a driver required to have a commercial learner's permit under part 383 of this chapter, and who submitted a current medical examiner's certificate to the State in accordance with \u00a7 383.71(h) of this chapter documenting that he or she meets the physical qualification requirements of this part, no longer needs to carry on his or her person the medical examiner's certificate specified at \u00a7 391.43(h), or a copy for more than 15 days after the date it was issued as valid proof of medical certification.\n\n(iii) A CDL or CLP holder required by \u00a7 383.71(h) of this chapter to obtain a medical examiner's certificate, who obtained such by virtue of having obtained a medical variance from FMCSA, must continue to have in his or her possession the original or copy of that medical variance documentation at all times when on-duty.\n\n(iv) In the event of a conflict between the medical certification information provided electronically by FMCSA and a paper copy of the medical examiner's certificate, the medical certification information provided electronically by FMCSA shall control.\n\n(3) A person is physically qualified to drive a commercial motor vehicle if:\n\n(i) That person meets the physical qualification standards in paragraph (b) of this section and has complied with the medical examination requirements in \u00a7 391.43; or\n\n(ii) That person obtained from FMCSA a medical variance from the physical qualification standards in paragraph (b) of this section and has complied with the medical examination requirement in \u00a7 391.43.\n\n(b) A person is physically qualified to drive a commercial motor vehicle if that person\u2014\n\n(1) Has no loss of a foot, a leg, a hand, or an arm, or has been granted a skill performance evaluation certificate pursuant to \u00a7 391.49;\n\n(2) Has no impairment of:\n\n(i) A hand or finger which interferes with prehension or power grasping; or\n\n(ii) An arm, foot, or leg which interferes with the ability to perform normal tasks associated with operating a commercial motor vehicle; or any other significant limb defect or limitation which interferes with the ability to perform normal tasks associated with operating a commercial motor vehicle; or has been granted a skill performance evaluation certificate pursuant to \u00a7 391.49;\n\n(3) Has no established medical history or clinical diagnosis of diabetes mellitus currently treated with insulin for control, unless the person meets the requirements in \u00a7 391.46;\n\n(4) Has no current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure;\n\n(5) Has no established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial motor vehicle safely;\n\n(6) Has no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial motor vehicle safely;\n\n(7) Has no established medical history or clinical diagnosis of rheumatic, arthritic, orthopedic, muscular, neuromuscular, or vascular disease which interferes with his/her ability to control and operate a commercial motor vehicle safely;\n\n(8) Has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle;\n\n(9) Has no mental, nervous, organic, or functional disease or psychiatric disorder likely to interfere with his/her ability to drive a commercial motor vehicle safely;\n\n(10)(i) Has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70\u00b0 in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber; or\n\n(ii) Meets the requirements in \u00a7 391.44, if the person does not satisfy, with the worse eye, either the distant visual acuity standard with corrective lenses or the field of vision standard, or both, in paragraph (b)(10)(i) of this section;\n\n(11) First perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5\u20141951;\n\n(12)(i) Does not use any drug or substance identified in 21 CFR 1308.11 Schedule I, an amphetamine, a narcotic, or other habit-forming drug; or\n\n(ii) Does not use any non-Schedule I drug or substance that is identified in the other Schedules in 21 CFR part 1308 except when the use is prescribed by a licensed medical practitioner, as defined in \u00a7 382.107 of this chapter, who is familiar with the driver's medical history and has advised the driver that the substance will not adversely affect the driver's ability to safely operate a commercial motor vehicle; and\n\n(13) Has no current clinical diagnosis of alcoholism."], ["49:49:5.1.1.2.33.5.15.2", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "E", "Subpart E\u2014Physical Qualifications and Examinations", "", "\u00a7 391.43 Medical examination; certificate of physical examination.", "FHWA", "", "", "[35 FR 6460, Apr. 22, 1970]", "(a) Except as provided by paragraph (b) of this section, the medical examination must be performed by a medical examiner listed on the National Registry of Certified Medical Examiners under subpart D of part 390 of this chapter.\n\n(b) Exceptions:\n\n(1) A licensed ophthalmologist or licensed optometrist may perform the part of the medical examination that involves visual acuity, field of vision, and the ability to recognize colors as specified in \u00a7 391.41(b)(10).\n\n(2) A certified VA medical examiner must only perform medical examinations of veteran operators.\n\n(c) Medical examiners shall:\n\n(1) Be knowledgeable of the specific physical and mental demands associated with operating a commercial motor vehicle and the requirements of this subpart, including the medical advisory criteria prepared by the FMCSA as guidelines to aid the medical examiner in making the qualification determination; and\n\n(2) Be proficient in the use of and use the medical protocols necessary to adequately perform the medical examination required by this section.\n\n(d) Any driver authorized to operate a commercial motor vehicle within an exempt intracity zone pursuant to \u00a7 391.62 of this part shall furnish the examining medical examiner with a copy of the medical findings that led to the issuance of the first certificate of medical examination which allowed the driver to operate a commercial motor vehicle wholly within an exempt intracity zone.\n\n(e) [Reserved]\n\n(f) The medical examination shall be performed, and its results shall be recorded on the Medical Examination Report Form, MCSA-5875, set out in this paragraph (f):\n\n(g) Upon completion of the medical examination required by this subpart:\n\n(1) The medical examiner must date and sign the Medical Examination Report and provide his or her full name, office address, and telephone number on the Report.\n\n(2)(i) Before June 23, 2025, if the medical examiner finds that the person examined is physically qualified to operate a commercial motor vehicle in accordance with \u00a7 391.41(b), he or she must complete a certificate in the form prescribed in paragraph (h) of this section and furnish the original to the person who was examined. The examiner must provide a copy to a prospective or current employing motor carrier who requests it.\n\n(ii) On or after June 23, 2025, if the medical examiner identifies that the person examined will not be operating a commercial motor vehicle that requires a commercial driver's license or a commercial learner's permit and finds that the driver is physically qualified to operate a commercial motor vehicle in accordance with \u00a7 391.41(b), he or she must complete a certificate in the form prescribed in paragraph (h) of this section and furnish the original to the person who was examined. The examiner must provide a copy to a prospective or current employing motor carrier who requests it.\n\n(3) On or after June 23, 2025, if the medical examiner finds that the person examined is not physically qualified to operate a commercial motor vehicle in accordance with \u00a7 391.41(b), he or she must inform the person examined that he or she is not physically qualified, and that this information will be reported to FMCSA. All medical examiner's certificates previously issued to the person are not valid and no longer satisfy the requirements of \u00a7 391.41(a).\n\n(4) Beginning December 22, 2015, if the medical examiner finds that the determination of whether the person examined is physically qualified to operate a commercial motor vehicle in accordance with \u00a7 391.41(b) should be delayed to receive additional information or to conduct further examination in order for the medical examiner to make such determination, he or she must inform the person examined that the additional information must be provided or the further examination completed within 45 days, and that the pending status of the examination will be reported to FMCSA.\n\n(5)(i)(A) Once every calendar month, beginning May 21, 2014 and ending on June 22, 2018, the medical examiner must electronically transmit to FMCSA, via a secure Web account on the National Registry, a completed CMV Driver Medical Examination Results Form, MCSA-5850. The Form must include all information specified for each medical examination conducted during the previous month for any driver who is required to be examined by a medical examiner listed on the National Registry of Certified Medical Examiners.\n\n(B) Beginning June 22, 2018 by midnight (local time) of the next calendar day after the medical examiner completes a medical examination for any driver who is required to be examined by a medical examiner listed on the National Registry of Certified Medical Examiners, the medical examiner must electronically transmit to FMCSA, via a secure FMCSA-designated website, a completed CMV Driver Medical Examination Results Form, MCSA-5850. The Form must include all information specified for each medical examination conducted for each driver who is required to be examined by a medical examiner listed on the National Registry of Certified Medical Examiners in accordance with the provisions of this subpart E, and should also include information for each driver who is required by a State to be examined by a medical examiner listed on the National Registry of Certified Medical Examiners in accordance with the provisions of this subpart and any variances from those provisions adopted by such State.\n\n(ii) Beginning on June 22, 2015, if the medical examiner does not perform a medical examination of any driver who is required to be examined by a medical examiner listed on the National Registry of Certified Medical Examiners during any calendar month, the medical examiner must report that fact to FMCSA, via a secure FMCSA-designated website, by the close of business on the last day of such month.\n\n(h) The medical examiner's certificate shall be completed in accordance with the following Form MCSA-5876, Medical Examiner's Certificate:\n\n(i) Each original (paper or electronic) completed Medical Examination Report and a copy or electronic version of each medical examiner's certificate must be retained on file at the office of the medical examiner for at least 3 years from the date of examination. The medical examiner must make all records and information in these files available to an authorized representative of FMCSA or an authorized Federal, State, or local enforcement agency representative, within 48 hours after the request is made."], ["49:49:5.1.1.2.33.5.15.3", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "E", "Subpart E\u2014Physical Qualifications and Examinations", "", "\u00a7 391.44 Physical qualification standards for an individual who does not satisfy, with the worse eye, either the distant visual acuity standard with corrective lenses or the field of vision standard, or both.", "FHWA", "", "", "[87 FR 3417, Jan. 21, 2022]", "(a)  General.  An individual who does not satisfy, with the worse eye, either the distant visual acuity standard with corrective lenses or the field of vision standard, or both, in \u00a7 391.41(b)(10)(i) is physically qualified to operate a commercial motor vehicle in interstate commerce provided:\n\n(1) The individual meets the other physical qualification standards in \u00a7 391.41 or has an exemption or skill performance evaluation certificate, if required; and\n\n(2) The individual has the vision evaluation required by paragraph (b) of this section and the medical examination required by paragraph (c) of this section.\n\n(b)  Evaluation by an ophthalmologist or optometrist.  Prior to the examination required by \u00a7 391.45 or the expiration of a medical examiner's certificate, the individual must be evaluated by a licensed ophthalmologist or licensed optometrist.\n\n(1) During the evaluation of the individual, the ophthalmologist or optometrist must complete the Vision Evaluation Report, Form MCSA-5871.\n\n(2) Upon completion of the Vision Evaluation Report, Form MCSA-5871, the ophthalmologist or optometrist must sign and date the Report and provide the ophthalmologist or optometrist's full name, office address, and telephone number on the Report.\n\n(c)  Examination by a medical examiner.  At least annually, an individual who does not satisfy, with the worse eye, either the distant visual acuity standard with corrective lenses or the field of vision standard, or both, in \u00a7 391.41(b)(10)(i) must be medically examined and certified by a medical examiner as physically qualified to operate a commercial motor vehicle in accordance with \u00a7 391.43. The examination must begin not more than 45 days after an ophthalmologist or optometrist signs and dates the Vision Evaluation Report, Form MCSA-5871.\n\n(1) The medical examiner must receive a completed Vision Evaluation Report, Form MCSA-5871, signed and dated by an ophthalmologist or optometrist for each required examination. This Report shall be treated and retained as part of the Medical Examination Report Form, MCSA-5875.\n\n(2) The medical examiner must determine whether the individual meets the physical qualification standards in \u00a7 391.41 to operate a commercial motor vehicle. In making that determination, the medical examiner must consider the information in the Vision Evaluation Report, Form MCSA-5871, signed by an ophthalmologist or optometrist and, utilizing independent medical judgment, apply the following standards in determining whether the individual may be certified as physically qualified to operate a commercial motor vehicle.\n\n(i) The individual is not physically qualified to operate a commercial motor vehicle if, in the better eye, the distant visual acuity is not at least 20/40 (Snellen), with or without corrective lenses, and the field of vision is not at least 70\u00b0 in the horizontal meridian.\n\n(ii) The individual is not physically qualified to operate a commercial motor vehicle if the individual is not able to recognize the colors of traffic signals and devices showing standard red, green, and amber.\n\n(iii) The individual is not physically qualified to operate a commercial motor vehicle if the individual's vision deficiency is not stable.\n\n(iv) The individual is not physically qualified to operate a commercial motor vehicle if sufficient time has not passed since the vision deficiency became stable to allow the individual to adapt to and compensate for the change in vision.\n\n(d)  Road test.  (1) Except as provided in paragraphs (d)(3), (4), and (5) of this section, an individual physically qualified under this section for the first time shall not drive a commercial motor vehicle until the individual has successfully completed a road test subsequent to physical qualification and has been issued a certificate of driver's road test in accordance with \u00a7 391.31. An individual physically qualified under this section for the first time must inform the motor carrier responsible for completing the road test under \u00a7 391.31(b) that the individual is required by paragraph (d) of this section to have a road test. The motor carrier must conduct the road test in accordance with \u00a7 391.31(b) thorough (g).\n\n(2) For road tests required by paragraph (d)(1) of this section, the provisions of \u00a7 391.33 for the equivalent of a road test do not apply. If an individual required to have a road test by paragraph (d)(1) of this section successfully completes the road test and is issued a certificate of driver's road test in accordance with \u00a7 391.31, then any otherwise applicable provisions of \u00a7 391.33 will apply thereafter to such individual.\n\n(3) An individual physically qualified under this section for the first time is not required to complete a road test in accordance with \u00a7 391.31 if the motor carrier responsible for completing the road test under \u00a7 391.31(b) determines the individual possessed a valid commercial driver's license or non-commercial driver's license to operate, and did operate, a commercial motor vehicle in either intrastate commerce or in interstate commerce excepted by \u00a7 390.3T(f) of this subchapter or \u00a7 391.2 from the requirements of this subpart with the vision deficiency for the 3-year period immediately preceding the date of physical qualification under this section for the first time.\n\n(i) The individual must certify in writing to the motor carrier the date the vision deficiency began.\n\n(ii) If the motor carrier determines the individual possessed a valid commercial driver's license or non-commercial driver's license to operate, and did operate, a commercial motor vehicle in either intrastate commerce or in interstate commerce excepted by either \u00a7 390.3T(f) of this subchapter or \u00a7 391.2 from the requirements of this subpart with the vision deficiency for the 3-year period immediately preceding the date of physical qualification in accordance with this section for the first time, the motor carrier must\u2014\n\n(A) Prepare a written statement to the effect that the motor carrier determined the individual possessed a valid license and operated a commercial motor vehicle in intrastate or in the specific excepted interstate commerce (as applicable) with the vision deficiency for the 3-year period immediately preceding the date of physical qualification in accordance with this section for the first time and, therefore, is not required by paragraph (d) of this section to complete a road test;\n\n(B) Give the individual a copy of the written statement; and\n\n(C) Retain in the individual's driver qualification file the original of the written statement and the original, or a copy, of the individual's certification regarding the date the vision deficiency began.\n\n(4) An individual physically qualified under this section for the first time is not required to complete a road test in accordance with \u00a7 391.31 if the individual held on March 22, 2022, a valid exemption from the vision standard in \u00a7 391.41(b)(10)(i) issued by FMCSA under 49 CFR part 381. Such an individual is not required to inform the motor carrier that the individual is excepted from the requirement in paragraph (d)(1) of this section to have a road test.\n\n(5) An individual physically qualified under this section for the first time is not required to complete a road test in accordance with \u00a7 391.31 if the individual was medically certified on March 22, 2022, under the provisions of \u00a7 391.64(b) for drivers who participated in a previous vision waiver study program. Such an individual is not required to inform the motor carrier that the individual is excepted from the requirement in paragraph (d)(1) of this section to have a road test."], ["49:49:5.1.1.2.33.5.15.4", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "E", "Subpart E\u2014Physical Qualifications and Examinations", "", "\u00a7 391.45 Persons who must be medically examined and certified.", "FHWA", "", "", "[83 FR 47520, Sept. 19, 2018, as amended at 86 FR 32651, June 22, 2021; 87 FR 3419, Jan. 21, 2022; 88 FR 80192, Nov. 17, 2023; 89 FR 90623, Nov. 18, 2024]", "The following persons must be medically examined and certified in accordance with \u00a7 391.43 as physically qualified to operate a commercial motor vehicle:\n\n(a) Any person who has not been medically examined and certified as physically qualified to operate a commercial motor vehicle;\n\n(b) Any driver who has not been medically examined and certified as qualified to operate a commercial motor vehicle during the preceding 24 months, unless the driver is required to be examined and certified in accordance with paragraph (c), (d), (e), (f), (g), or (h) of this section;\n\n(c) Any driver authorized to operate a commercial motor vehicle only within an exempt intracity zone pursuant to \u00a7 391.62, if such driver has not been medically examined and certified as qualified to drive in such zone during the preceding 12 months;\n\n(d) [Reserved]\n\n(e) Any driver who has diabetes mellitus treated with insulin for control and who has obtained a medical examiner's certificate under the standards in \u00a7 391.46, if such driver's most recent medical examination and certification as qualified to drive did not occur during the preceding 12 months;\n\n(f) Any driver who does not satisfy, with the worse eye, either the distant visual acuity standard with corrective lenses or the field of vision standard, or both, in \u00a7 391.41(b)(10)(i) and who has obtained a medical examiner's certificate under the standards in \u00a7 391.44, if such driver's most recent medical examination and certification as qualified to drive did not occur during the preceding 12 months;\n\n(g) Any driver whose ability to perform his or her normal duties has been impaired by a physical or mental injury or disease; and\n\n(h) On or after June 23, 2025, any person found by a medical examiner not to be physically qualified to operate a commercial motor vehicle under the provisions of paragraph (g)(3) of \u00a7 391.43."], ["49:49:5.1.1.2.33.5.15.5", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "E", "Subpart E\u2014Physical Qualifications and Examinations", "", "\u00a7 391.46 Physical qualification standards for an individual with diabetes mellitus treated with insulin for control.", "FHWA", "", "", "[83 FR 47520, Sept. 19, 2018, as amended at 84 FR 51434, Sept. 30, 2019]", "(a)  Diabetes mellitus treated with insulin.  An individual with diabetes mellitus treated with insulin for control is physically qualified to operate a commercial motor vehicle provided:\n\n(1) The individual otherwise meets the physical qualification standards in \u00a7 391.41 or has an exemption or skill performance evaluation certificate, if required; and\n\n(2) The individual has the evaluation required by paragraph (b) and the medical examination required by paragraph (c) of this section.\n\n(b)  Evaluation by the treating clinician.  Prior to the examination required by \u00a7 391.45 or the expiration of a medical examiner's certificate, the individual must be evaluated by his or her \u201ctreating clinician.\u201d For purposes of this section, \u201ctreating clinician\u201d means a healthcare professional who manages, and prescribes insulin for, the treatment of the individual's diabetes mellitus as authorized by the healthcare professional's State licensing authority.\n\n(1) During the evaluation of the individual, the treating clinician must complete the Insulin-Treated Diabetes Mellitus Assessment Form, MCSA-5870.\n\n(2) Upon completion of the Insulin-Treated Diabetes Mellitus Assessment Form, MCSA-5870, the treating clinician must sign and date the Form and provide his or her full name, office address, and telephone number on the Form.\n\n(c)  Medical examiner's examination.  At least annually, but no later than 45 days after the treating clinician signs and dates the Insulin-Treated Diabetes Mellitus Assessment Form, MCSA-5870, an individual with diabetes mellitus treated with insulin for control must be medically examined and certified by a medical examiner as physically qualified in accordance with \u00a7 391.43 and as free of complications from diabetes mellitus that might impair his or her ability to operate a commercial motor vehicle safely.\n\n(1) The medical examiner must receive a completed Insulin-Treated Diabetes Mellitus Assessment Form, MCSA-5870, signed and dated by the individual's treating clinician for each required examination. This Form shall be treated and retained as part of the Medical Examination Report Form, MCSA-5875.\n\n(2) The medical examiner must determine whether the individual meets the physical qualification standards in \u00a7 391.41 to operate a commercial motor vehicle. In making that determination, the medical examiner must consider the information in the Insulin-Treated Diabetes Mellitus Assessment Form, MCSA-5870, signed by the treating clinician and, utilizing independent medical judgment, apply the following qualification standards in determining whether the individual with diabetes mellitus treated with insulin for control may be certified as physically qualified to operate a commercial motor vehicle.\n\n(i) The individual is not physically qualified to operate a commercial motor vehicle if he or she is not maintaining a stable insulin regimen and not properly controlling his or her diabetes mellitus.\n\n(ii) The individual is not physically qualified on a permanent basis to operate a commercial motor vehicle if he or she has either severe non-proliferative diabetic retinopathy or proliferative diabetic retinopathy.\n\n(iii) The individual is not physically qualified to operate a commercial motor vehicle up to the maximum 12-month period under \u00a7 391.45(e) until he or she provides the treating clinician with at least the preceding 3 months of electronic blood glucose self-monitoring records while being treated with insulin that are generated in accordance with paragraph (d) of this section.\n\n(iv) The individual who does not provide the treating clinician with at least the preceding 3 months of electronic blood glucose self-monitoring records while being treated with insulin that are generated in accordance with paragraph (d) of this section is not physically qualified to operate a commercial motor vehicle for more than 3 months. If 3 months of compliant electronic blood glucose self-monitoring records are then provided by the individual to the treating clinician and the treating clinician completes a new Insulin-Treated Diabetes Mellitus Assessment Form, MCSA-5870, the medical examiner may issue a medical examiner's certificate that is valid for up to the maximum 12-month period allowed by \u00a7 391.45(e) and paragraph (c)(2)(iii) of this section.\n\n(d)  Blood glucose self-monitoring records.  Individuals with diabetes mellitus treated with insulin for control must self-monitor blood glucose in accordance with the specific treatment plan prescribed by the treating clinician. Such individuals must maintain blood glucose records measured with an electronic glucometer that stores all readings, that records the date and time of readings, and from which data can be electronically downloaded. A printout of the electronic blood glucose records or the glucometer must be provided to the treating clinician at the time of any of the evaluations required by this section.\n\n(e) S evere hypoglycemic episodes.  (1) An individual with diabetes mellitus treated with insulin for control who experiences a severe hypoglycemic episode after being certified as physically qualified to operate a commercial motor vehicle is prohibited from operating a commercial motor vehicle, and must report such occurrence to and be evaluated by a treating clinician as soon as is reasonably practicable. A severe hypoglycemic episode is one that requires the assistance of others, or results in loss of consciousness, seizure, or coma. The prohibition on operating a commercial motor vehicle continues until a treating clinician:\n\n(i) Has determined that the cause of the severe hypoglycemic episode has been addressed;\n\n(ii) Has determined that the individual is maintaining a stable insulin regimen and proper control of his or her diabetes mellitus; and\n\n(iii) Completes a new Insulin-Treated Diabetes Mellitus Assessment Form, MCSA-5870.\n\n(2) The individual must retain the Form and provide it to the medical examiner at the individual's next medical examination."], ["49:49:5.1.1.2.33.5.15.6", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "E", "Subpart E\u2014Physical Qualifications and Examinations", "", "\u00a7 391.47 Resolution of conflicts of medical evaluation.", "FHWA", "", "", "[42 FR 18081, Apr. 5, 1977, as amended at 42 FR 53966, Oct. 4, 1977; 60 FR 38746, July 28, 1995; 66 FR 49874, Oct. 1, 2001; 78 FR 58483, Sept. 24, 2013; 80 FR 59075, Oct. 1, 2015; 86 FR 57074, Oct. 14, 2021; 88 FR 80192, Nov. 17, 2023]", "(a)  Applications.  Applications for determination of a driver's medical qualifications under standards in this part will only be accepted if they conform to the requirements of this section.\n\n(b)  Content.  Applications will be accepted for consideration only if the following conditions are met.\n\n(1) The application must contain the name and address of the driver, motor carrier, and all medical examiners and medical specialists involved in the proceeding.\n\n(2) The applicant must submit proof that there is a disagreement between the medical examiner for the driver and the medical examiner for the motor carrier concerning the driver's qualifications.\n\n(3) The applicant must submit a copy of an opinion and report including results of all tests of an impartial medical specialist in the field in which the medical conflict arose. The specialist should be one agreed to by the motor carrier and the driver.\n\n(i) In cases where the driver refuses to agree on a specialist and the applicant is the motor carrier, the applicant must submit a statement of his/her agreement to submit the matter to an impartial medical specialist in the field, proof that he/she has requested the driver to submit to the medical specialist, and the response, if any, of the driver to his/her request.\n\n(ii) In cases where the motor carrier refuses to agree on a medical specialist, the driver must submit an opinion and test results of an impartial medical specialist, proof that he/she has requested the motor carrier to agree to submit the matter to the medical specialist and the response, if any, of the motor carrier to his/her request.\n\n(4) The applicant must include a statement explaining in detail why the decision of the medical specialist identified in paragraph (b)(3) of this section, is unacceptable.\n\n(5) The applicant must submit proof that the medical specialist mentioned in paragraph (b)(3) of this section was provided, prior to his/her determination, the medical history of the driver and an agreed-upon statement of the work the driver performs.\n\n(6) The applicant must submit the medical history and statement of work provided to the medical specialist under paragraph (b)(5) of this section.\n\n(7) The applicant must submit all medical records and statements of the medical examiners and medical specialists who have given opinions on the driver's qualifications.\n\n(8) The applicant must submit a description and a copy of all written and documentary evidence upon which the party making application relies in the form set out in 49 CFR 386.37.\n\n(9) The application must be accompanied by a statement of the driver that he/she intends to drive in interstate commerce not subject to the commercial zone exemption or a statement of the carrier that he/she has used or intends to use the driver for such work.\n\n(10) The applicant must submit three copies of the application and all records.\n\n(c)  Information.  FMCSA may request further information from the applicant if he/she determines that a decision cannot be made on the evidence submitted. If the applicant fails to submit the information requested, FMCSA may refuse to issue a determination.\n\n(d)(1)  Action.  Upon receiving a satisfactory application FMCSA shall notify the parties (the driver, motor carrier, or any other interested party) that the application has been accepted and that a determination will be made. A copy of all evidence received shall be attached to the notice.\n\n(2)  Reply.  Any party may submit a reply to the notification within 15 days after service. Such reply must be accompanied by all evidence the party wants FMCSA to consider in making his/her determination. Evidence submitted should include all medical records and test results upon which the party relies.\n\n(3)  Parties.  A party for the purposes of this section includes the motor carrier and the driver, or anyone else submitting an application.\n\n(e)  Petitions to review, burden of proof.  The driver or motor carrier may petition to review the FMCSA's determination. Such petition must be submitted in accordance with \u00a7 386.13(a) of this chapter. The burden of proof in such a proceeding is on the petitioner.\n\n(f)  Status of driver.  Once an application is submitted to FMCSA, the driver shall be deemed disqualified until such time as FMCSA makes a determination, or until FMCSA orders otherwise."], ["49:49:5.1.1.2.33.5.15.7", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "E", "Subpart E\u2014Physical Qualifications and Examinations", "", "\u00a7 391.49 Alternative physical qualification standards for the loss or impairment of limbs.", "FHWA", "", "", "[65 FR 25287, May 1, 2000, as amended at 65 FR 59380, Oct. 5, 2000; 67 FR 61824, Oct. 2, 2002; 78 FR 58483, Sept. 24, 2013; 86 FR 57075, Oct. 14, 2021; 89 FR 90623, Nov. 18, 2024]", "(a) A person who is not physically qualified to drive under \u00a7 391.41(b)(1) or (2) and who is otherwise qualified to drive a commercial motor vehicle, may drive a commercial motor vehicle if FMCSA has granted a Skill Performance Evaluation (SPE) Certificate to that person.\n\n(b)(1)  Application.  A letter of application for an SPE certificate may be submitted jointly by the person (driver applicant) who seeks an SPE certificate and by the motor carrier that will employ the driver applicant, if the application is accepted.\n\n(2)  Application address.  The application must be addressed to the SPE Certificate Program at the applicable FMCSA service center for the State in which the co-applicant motor carrier's principal place of business is located. The address of each, and the States serviced, are listed in \u00a7 390.27 of this chapter.\n\n(3)  Exception.  A letter of application for an SPE certificate may be submitted unilaterally by a driver applicant. The application must be addressed to the field service center, FMCSA, for the State in which the driver has legal residence. The driver applicant must comply with all the requirements of paragraph (c) of this section except those in (c)(1)(i) and (iii). The driver applicant shall respond to the requirements of paragraphs (c)(2)(i) to (v) of this section, if the information is known.\n\n(c) A letter of application for an SPE certificate shall contain:\n\n(1) Identification of the applicant(s):\n\n(i) Name and complete address of the motor carrier co-applicant;\n\n(ii) Name and complete address of the driver applicant;\n\n(iii) The U.S. DOT Motor Carrier Identification Number, if known; and\n\n(iv) A description of the driver applicant's limb impairment for which SPE certificate is requested.\n\n(2) Description of the type of operation the driver will be employed to perform:\n\n(i) State(s) in which the driver will operate for the motor carrier co-applicant (if more than 10 States, designate general geographic area only);\n\n(ii) Average period of time the driver will be driving and/or on duty, per day;\n\n(iii) Type of commodities or cargo to be transported;\n\n(iv) Type of driver operation ( i.e.,  sleeper team, relay, owner operator, etc.); and\n\n(v) Number of years experience operating the type of commercial motor vehicle(s) requested in the letter of application and total years of experience operating all types of commercial motor vehicles.\n\n(3) Description of the commercial motor vehicle(s) the driver applicant intends to drive:\n\n(i) Truck, truck tractor, or bus make, model, and year (if known);\n\n(ii) Drive train;\n\n(A) Transmission type (automatic or manual\u2014if manual, designate number of forward speeds);\n\n(B) Auxiliary transmission (if any) and number of forward speeds; and\n\n(C) Rear axle (designate single speed, 2 speed, or 3 speed).\n\n(iii) Type of brake system;\n\n(iv) Steering, manual or power assisted;\n\n(v) Description of type of trailer(s) ( i.e.,  van, flatbed, cargo tank, drop frame, lowboy, or pole);\n\n(vi) Number of semitrailers or full trailers to be towed at one time;\n\n(vii) For commercial motor vehicles designed to transport passengers, indicate the seating capacity of commercial motor vehicle; and\n\n(viii) Description of any modification(s) made to the commercial motor vehicle for the driver applicant; attach photograph(s) where applicable.\n\n(4) Otherwise qualified:\n\n(i) The co-applicant motor carrier must certify that the driver applicant is otherwise qualified under the regulations of this part;\n\n(ii) In the case of a unilateral application, the driver applicant must certify that he/she is otherwise qualified under the regulations of this part.\n\n(5) Signature of applicant(s):\n\n(i) Driver applicant's signature and date signed;\n\n(ii) Motor carrier official's signature (if application has a co-applicant), title, and date signed. Depending upon the motor carrier's organizational structure (corporation, partnership, or proprietorship), the signer of the application shall be an officer, partner, or the proprietor.\n\n(d) The letter of application for an SPE certificate shall be accompanied by:\n\n(1) A copy of the Medical Examination Report Form, MCSA-5875, documenting the results of the medical examination performed pursuant to \u00a7 391.43;\n\n(2) A copy of the Medical Examiner's Certificate, Form MCSA-5876, completed pursuant to \u00a7 391.43(h);\n\n(3) A medical evaluation summary completed by either a board qualified or board certified physiatrist (doctor of physical medicine) or orthopedic surgeon. The co-applicant motor carrier or the driver applicant shall provide the physiatrist or orthopedic surgeon with a description of the job-related tasks the driver applicant will be required to perform;\n\n(i) The medical evaluation summary for a driver applicant disqualified under \u00a7 391.41(b)(1) shall include:\n\n(A) An assessment of the functional capabilities of the driver as they relate to the ability of the driver to perform normal tasks associated with operating a commercial motor vehicle; and\n\n(B) A statement by the examiner that the applicant is capable of demonstrating precision prehension ( e.g.,  grasping and manipulating knobs and switches using the fingers/thumb) and power grasp prehension ( e.g.,  grasping, holding, and maneuvering the steering wheel using a hand) with each hand separately. Prior to applying for an SPE certificate, an applicant with loss of a hand or arm must be fitted and proficient with a proper prosthesis that enables the applicant to demonstrate precision prehension and power grasp prehension with each hand separately. This requirement does not apply to an individual who was granted a waiver, absent a prosthetic device, prior to January 6, 1986, the effective date of the requirement.\n\n(ii) The medical evaluation summary for a driver applicant disqualified under \u00a7 391.41(b)(2) shall include:\n\n(A) An explanation as to how and why the impairment interferes with the ability of the applicant to perform normal tasks associated with operating a commercial motor vehicle;\n\n(B) An assessment and medical opinion of whether the condition will likely remain medically stable over the lifetime of the driver applicant; and\n\n(C) A statement by the examiner that the applicant is capable of demonstrating precision prehension ( e.g.,  grasping and manipulating knobs and switches using the fingers/thumb) and power grasp prehension ( e.g.,  grasping, holding, and maneuvering the steering wheel using a hand) with each hand separately. Prior to applying for an SPE certificate, an applicant with upper limb impairment must be fitted and proficient with a proper prosthesis or orthotic device, if the applicant is not capable of demonstrating precision prehension and power grasp prehension with each hand separately without a prosthesis or orthotic device. This requirement does not apply to an individual who was granted a waiver, absent an orthotic device, prior to January 6, 1986, the effective date of the requirement.\n\n(4) A description of the driver applicant's prosthetic or orthotic device worn, if any;\n\n(5) Road test:\n\n(i) A copy of the driver applicant's road test administered by the motor carrier co-applicant and the certificate issued pursuant to \u00a7 391.31(b) through (g); or\n\n(ii) A unilateral applicant shall be responsible for having a road test administered by a motor carrier or a person who is competent to administer the test and evaluate its results.\n\n(6) Application for employment:\n\n(i) A copy of the driver applicant's application for employment completed pursuant to \u00a7 391.21; or\n\n(ii) A unilateral applicant shall be responsible for submitting a copy of the last commercial driving position's employment application he/she held. If not previously employed as a commercial driver, so state.\n\n(7) A copy of the driver applicant's SPE certificate of certain physical defects issued by the individual State(s), where applicable; and\n\n(8) A copy of the driver applicant's State Motor Vehicle Driving Record for the past 3 years from each State in which a motor vehicle driver's license or permit has been obtained.\n\n(e) A motor carrier that employs a driver with an SPE certificate agrees to:\n\n(1) File promptly (within 30 days of the involved incident) with the SPE Certificate Program, FMCSA service center, such documents and information as may be required about driving activities, accidents, arrests, license suspensions, revocations, or withdrawals, and convictions which involve the driver applicant. This paragraph (e)(1) applies whether the driver SPE certificate is a unilateral one or has a co-applicant motor carrier;\n\n(i) A motor carrier who is a co-applicant must file the required documents with the SPE Certificate Program, FMCSA service center, for the State in which the carrier's principal place of business is located; or\n\n(ii) A motor carrier who employs a driver who has been issued a unilateral SPE certificate must file the required documents with the SPE Certificate Program, FMCSA service center, for the State in which the driver has legal residence.\n\n(2) Evaluate the driver with a road test using the trailer the motor carrier intends the driver to transport or, in lieu of, accept a certificate of a trailer road test from another motor carrier if the trailer type(s) is similar, or accept the trailer road test done during the Skill Performance Evaluation if it is a similar trailer type(s) to that of the prospective motor carrier. Job tasks, as stated in paragraph (e)(3) of this section, are not evaluated in the Skill Performance Evaluation;\n\n(3) Evaluate the driver for those nondriving safety related job tasks associated with whatever type of trailer(s) will be used and any other nondriving safety related or job related tasks unique to the operations of the employing motor carrier; and\n\n(4) Use the driver to operate the type of commercial motor vehicle defined in the SPE certificate only when the driver is in compliance with the conditions and limitations of the SPE certificate.\n\n(f) The driver shall supply each employing motor carrier with a copy of the SPE certificate.\n\n(g) FMCSA may require the driver applicant to demonstrate his or her ability to safely operate the commercial motor vehicle(s) the driver intends to drive to an agent of FMCSA. The SPE certificate form will identify the power unit (bus, truck, truck tractor) for which the SPE certificate has been granted. The SPE certificate forms will also identify the trailer type used in the Skill Performance Evaluation; however, the SPE certificate is not limited to that specific trailer type. A driver may use the SPE certificate with other trailer types if a successful trailer road test is completed in accordance with paragraph (e)(2) of this section. Job tasks, as stated in paragraph (e)(3) of this section, are not evaluated during the Skill Performance Evaluation.\n\n(h) FMCSA may deny the application for SPE certificate or may grant it totally or in part and issue the SPE certificate subject to such terms, conditions, and limitations as deemed consistent with the public interest. The SPE certificate is valid for a period not to exceed 2 years from date of issue, and may be renewed 30 days prior to the expiration date.\n\n(i) The SPE certificate renewal application shall be submitted to the SPE Certificate Program, FMCSA service center, for the State in which the driver has legal residence, if the SPE certificate was issued unilaterally. If the SPE certificate has a co-applicant, then the renewal application is submitted to the SPE Certificate Program, FMCSA service center, for the State in which the co-applicant motor carrier's principal place of business is located. The SPE certificate renewal application shall contain the following:\n\n(1) Name and complete address of motor carrier currently employing the applicant;\n\n(2) Name and complete address of the driver;\n\n(3) Effective date of the current SPE certificate;\n\n(4) Expiration date of the current SPE certificate;\n\n(5) Total miles driven under the current SPE certificate;\n\n(6) Number of accidents incurred while driving under the current SPE certificate, including date of the accident(s), number of fatalities, number of injuries, and the estimated dollar amount of property damage;\n\n(7) A current Medical Examination Report Form, MCSA-5875;\n\n(8) A medical evaluation summary pursuant to paragraph (d)(3) of this section, if an unstable medical condition exists. All handicapped conditions classified under \u00a7 391.41(b)(1) are considered unstable. Refer to paragraph (d)(3)(ii) of this section for the condition under \u00a7 391.41(b)(2) which may be considered medically stable.\n\n(9) A copy of driver's current State motor vehicle driving record for the period of time the current SPE certificate has been in effect;\n\n(10) Notification of any change in the type of tractor the driver will operate;\n\n(11) Driver's signature and date signed; and\n\n(12) Motor carrier coapplicant's signature and date signed.\n\n(j)(1) Upon granting an SPE certificate, FMCSA will notify the driver applicant and co-applicant motor carrier (if applicable) by letter. The terms, conditions, and limitations of the SPE certificate will be set forth. A motor carrier shall maintain a copy of the SPE certificate in its driver qualification file. A copy of the SPE certificate shall be retained in the motor carrier's file for a period of 3 years after the driver's employment is terminated. The driver applicant shall have the SPE certificate (or a legible copy) in his/her possession whenever on duty.\n\n(2) Upon successful completion of the skill performance evaluation, FMCSA must notify the driver by letter and enclose an SPE certificate substantially in the following form:\n\nSkill Performance Evaluation Certificate\n \n Name of Issuing Agency:\n \n Agency Address:\n \n Telephone Number: (  )\n \n Issued Under 49 CFR 391.49, subchapter B of the Federal Motor Carrier Safety Regulations\n \n Driver's Name:\n \n Effective Date:\n \n SSN:\n \n DOB:\n \n Expiration Date:\n \n Address:\n \n Driver Disability:\n \n Check One: ______New ______Renewal\n \n Driver's License:\n \n (State) (Number)\n \n In accordance with 49 CFR 391.49, subchapter B of the Federal Motor Carrier Safety Regulations (FMCSRs), the driver application for a skill performance evaluation (SPE) certificate is hereby granted authorizing the above-named driver to operate in interstate or foreign commerce under the provisions set forth below. This certificate is granted for the period shown above, not to exceed 2 years, subject to periodic review as may be found necessary. This certificate may be renewed upon submission of a renewal application. Continuation of this certificate is dependent upon strict adherence by the above-named driver to the provisions set forth below and compliance with the FMCSRs. Any failure to comply with provisions herein may be cause for cancellation.\n \n CONDITIONS: As a condition of this certificate, reports of all accidents, arrests, suspensions, revocations, withdrawals of driver licenses or permits, and convictions involving the above-named driver shall be reported in writing to the Issuing Agency by the EMPLOYING MOTOR CARRIER within 30 days after occurrence.\n \n LIMITATIONS:\n \n 1. Vehicle Type (power unit):*\n \n 2. Vehicle modification(s):\n \n 3. Prosthetic or Orthotic device(s) (Required to be Worn While Driving):\n \n 4. Additional Provision(s):\n \n NOTICE: To all MOTOR CARRIERS employing a driver with an SPE certificate. This certificate is granted for the operation of the  power unit only.  It is the responsibility of the employing motor carrier to evaluate the driver with a road test using the trailer type(s) the motor carrier intends the driver to transport, or in lieu of, accept the trailer road test done during the SPE if it is a similar trailer type(s) to that of the prospective motor carrier. Also, it is the responsibility of the employing motor carrier to evaluate the driver for those non-driving safety-related job tasks associated with the type of trailer(s) utilized, as well as, any other non-driving safety-related or job-related tasks unique to the operations of the employing motor carrier.\n \n The SPE of the above-named driver was given by an SPE Evaluator. It was successfully completed utilizing the above-named power unit and ________ (trailer, if applicable)\n \n The tractor or truck had a ________ transmission.\n \n Please read the  NOTICE  paragraph above.\n \n Name:\n \n Signature:\n \n Title:\n \n Date:\n\nSkill Performance Evaluation Certificate\n\nIssued Under 49 CFR 391.49, subchapter B of the Federal Motor Carrier Safety Regulations\n\nCheck One: ______New ______Renewal\n\n(State) (Number)\n\nIn accordance with 49 CFR 391.49, subchapter B of the Federal Motor Carrier Safety Regulations (FMCSRs), the driver application for a skill performance evaluation (SPE) certificate is hereby granted authorizing the above-named driver to operate in interstate or foreign commerce under the provisions set forth below. This certificate is granted for the period shown above, not to exceed 2 years, subject to periodic review as may be found necessary. This certificate may be renewed upon submission of a renewal application. Continuation of this certificate is dependent upon strict adherence by the above-named driver to the provisions set forth below and compliance with the FMCSRs. Any failure to comply with provisions herein may be cause for cancellation.\n\nCONDITIONS: As a condition of this certificate, reports of all accidents, arrests, suspensions, revocations, withdrawals of driver licenses or permits, and convictions involving the above-named driver shall be reported in writing to the Issuing Agency by the EMPLOYING MOTOR CARRIER within 30 days after occurrence.\n\nLIMITATIONS:\n\nNOTICE: To all MOTOR CARRIERS employing a driver with an SPE certificate. This certificate is granted for the operation of the  power unit only.  It is the responsibility of the employing motor carrier to evaluate the driver with a road test using the trailer type(s) the motor carrier intends the driver to transport, or in lieu of, accept the trailer road test done during the SPE if it is a similar trailer type(s) to that of the prospective motor carrier. Also, it is the responsibility of the employing motor carrier to evaluate the driver for those non-driving safety-related job tasks associated with the type of trailer(s) utilized, as well as, any other non-driving safety-related or job-related tasks unique to the operations of the employing motor carrier.\n\nThe SPE of the above-named driver was given by an SPE Evaluator. It was successfully completed utilizing the above-named power unit and ________ (trailer, if applicable)\n\nThe tractor or truck had a ________ transmission.\n\nPlease read the  NOTICE  paragraph above.\n\n(k) FMCSA may revoke an SPE certificate after the person to whom it was issued is given notice of the proposed revocation and has been allowed a reasonable opportunity to appeal.\n\n(l) Falsifying information in the letter of application, the renewal application, or falsifying information required by this section by either the applicant or motor carrier is prohibited."], ["49:49:5.1.1.2.33.6.15.1", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "F", "Subpart F\u2014Files and Records", "", "\u00a7 391.51 General requirements for driver qualification files.", "FHWA", "", "", "[63 FR 33277, June 18, 1998, as amended at 66 FR 49874, Oct. 1, 2001; 69 FR 16721, Mar. 30, 2004; 73 FR 73127, Dec. 1, 2008; 75 FR 28502, May 21, 2010; 77 FR 24133, Apr. 20, 2012; 79 FR 2380, Jan. 14, 2014; 80 FR 22822, Apr. 23, 2015; 83 FR 28782, June 21, 2018; 84 FR 51434, Sept. 30, 2019; 86 FR 32651, June 22, 2021; 86 FR 57076, Oct. 14, 2021; 87 FR 3419, Jan. 21, 2022; 87 FR 13209, Mar. 9, 2022]", "(a) Each motor carrier shall maintain a driver qualification file for each driver it employs. A driver's qualification file may be combined with his/her personnel file.\n\n(b) The qualification file for a driver must include:\n\n(1) The driver's application for employment completed in accordance with \u00a7 391.21;\n\n(2) A copy of the motor vehicle record received from each driver's licensing authority pursuant to \u00a7 391.23(a)(1);\n\n(3) The certificate of driver's road test issued to the driver pursuant to \u00a7 391.31(e), a copy of the license or certificate which the motor carrier accepted as equivalent to the driver's road test pursuant to \u00a7 391.33, or the original of the written statement providing that the motor carrier determined the driver is not required by \u00a7 391.44(d) to complete a road test pursuant to \u00a7 391.44(d)(3)(ii)(A) and the original, or a copy, of the driver's certification required by \u00a7 391.44(d)(3)(i);\n\n(4) The motor vehicle record received from each driver's licensing authority to the annual driver record inquiry required by \u00a7 391.25(a);\n\n(5) A note relating to the annual review of the driver's driving record as required by \u00a7 391.25(c)(2);\n\n(6)(i) The medical examiner's certificate as required by \u00a7 391.43(g) or a legible copy of the certificate.\n\n(ii) For CDL holders, beginning January 30, 2012, if the CDLIS motor vehicle record contains medical certification status information, the motor carrier employer must meet this requirement by obtaining the CDLIS motor vehicle record defined at \u00a7 384.105 of this chapter. That record must be obtained from the current licensing State and placed in the driver qualification file. After January 30, 2015, a non-excepted, interstate CDL holder without medical certification status information on the CDLIS motor vehicle record is designated \u201cnot-certified\u201d to operate a CMV in interstate commerce. After January 30, 2015, and through June 22, 2025, a motor carrier may use a copy of the driver's current medical examiner's certificate that was submitted to the State for up to 15 days from the date it was issued as proof of medical certification.\n\n(iii) If that driver obtained the medical certification based on having obtained a medical variance from FMCSA, the motor carrier must also include a copy of the medical variance documentation in the driver qualification file in accordance with paragraph (b)(7) of this section;\n\n(7) A Skill Performance Evaluation Certificate issued by FMCSA in accordance with \u00a7 391.49; or the Medical Exemption document issued by a Federal medical program in accordance with part 381 of this chapter; and\n\n(8)(i) For drivers not required to have a CDL, a note relating to verification of medical examiner listing on the National Registry of Certified Medical Examiners required by \u00a7 391.23(m)(1).\n\n(ii) Through June 22, 2025, for drivers required to have a CDL, a note relating to verification of medical examiner listing on the National Registry of Certified Medical Examiners required by \u00a7 391.23(m)(2).\n\n(c) Except as provided in paragraph (d) of this section, each driver's qualification file shall be retained for as long as a driver is employed by that motor carrier and for three years thereafter.\n\n(d) The following records may be removed from a driver's qualification file three years after the date of execution:\n\n(1) The motor vehicle record received from each driver's licensing authority to the annual driver record inquiry required by \u00a7 391.25(a);\n\n(2) The note relating to the annual review of the driver's driving record as required by \u00a7 391.25(c)(2);\n\n(3) The medical examiner's certificate required by \u00a7 391.43(g), a legible copy of the certificate, or, for CDL drivers, any CDLIS MVR obtained as required by paragraph (b)(6)(ii) of this section;\n\n(4) Any medical variance issued by FMCSA, including a Skill Performance Evaluation Certificate issued in accordance with \u00a7 391.49; or the Medical Exemption letter issued by a Federal medical program in accordance with part 381 of this chapter; and\n\n(5) The note relating to verification of medical examiner listing on the National Registry of Certified Medical Examiners required by \u00a7 391.23(m)."], ["49:49:5.1.1.2.33.6.15.2", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "F", "Subpart F\u2014Files and Records", "", "\u00a7 391.53 Driver investigation history file.", "FHWA", "", "", "[69 FR 16721, Mar. 30, 2004, as amended at 84 FR 51434, Sept. 30, 2019]", "(a) Each motor carrier must maintain records relating to the investigation into the safety performance history of a new or prospective driver pursuant to \u00a7 391.23(d) and (e). This file must be maintained in a secure location with controlled access.\n\n(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.\n\n(2) This data must only be used for the hiring decision.\n\n(b) The file must include:\n\n(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 \u00a7 391.23(f)(1).\n\n(2) A copy of the response(s) received for investigations required by paragraphs (d) and (e) of \u00a7 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.\n\n(c) The safety performance histories received from 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.\n\n(d) A motor carrier must make all records and information in this file available to 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."], ["49:49:5.1.1.2.33.6.15.3", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "F", "Subpart F\u2014Files and Records", "", "\u00a7 391.55 LCV Driver-Instructor qualification files.", "FHWA", "", "", "[69 FR 16738, Mar. 30, 2004; 69 FR 28846, May 19, 2004; 83 FR 16227, Apr. 16, 2018]", "(a) Each motor carrier must maintain a qualification file for each LCV driver-instructor it employs or uses. The LCV driver-instructor qualification file may be combined with his/her personnel file.\n\n(b) The LCV driver-instructor qualification file must include the information in paragraphs (b)(1) and (b)(2) of this section for a skills instructor or the information in paragraph (b)(1) of this section for a classroom instructor, as follows:\n\n(1) Evidence that the instructor has met the requirements of 49 CFR 380.301 or 380.303;\n\n(2) A copy of the individual's currently valid CDL with the appropriate endorsements."], ["49:49:5.1.1.2.33.7.15.1", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "G", "Subpart G\u2014Limited Exemptions", "", "\u00a7 391.61 Drivers who were regularly employed before January 1, 1971.", "FHWA", "", "", "[86 FR 57076, Oct. 14, 2021]", "The provisions of \u00a7\u00a7 391.21 (relating to applications for employment), 391.23 (relating to investigations and inquiries), and 391.31 (relating to road tests) do not apply to a driver who has been a single-employer driver (as defined in \u00a7 390.5 of this subchapter) of a motor carrier for a continuous period which began before January 1, 1971, as long as he/she continues to be a single-employer driver of that motor carrier."], ["49:49:5.1.1.2.33.7.15.2", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "G", "Subpart G\u2014Limited Exemptions", "", "\u00a7 391.62 Limited exemptions for intracity zone drivers.", "FHWA", "", "", "[61 FR 13346, Mar. 26, 1996; 61 FR 17253, Apr. 19, 1996]", "The provisions of \u00a7\u00a7 391.11(b)(1) and 391.41(b)(1) through (b)(11) do not apply to a person who:\n\n(a) Was otherwise qualified to operate and operated a commercial motor vehicle in a municipality or exempt intracity zone thereof throughout the one-year period ending November 18, 1988;\n\n(b) Meets all the other requirements of this section;\n\n(c) Operates wholly within the exempt intracity zone (as defined in 49 CFR 390.5);\n\n(d) Does not operate a vehicle used in the transportation of hazardous materials in a quantity requiring placarding under regulations issued by the Secretary under 49 U.S.C. chapter 51.; and\n\n(e) Has a medical or physical condition which:\n\n(1) Would have prevented such person from operating a commercial motor vehicle under the Federal Motor Carrier Safety Regulations contained in this subchapter;\n\n(2) Existed on July 1, 1988, or at the time of the first required physical examination after that date; and\n\n(3) The examining physician has determined this condition has not substantially worsened since July 1, 1988, or at the time of the first required physical examination after that date."], ["49:49:5.1.1.2.33.7.15.3", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "G", "Subpart G\u2014Limited Exemptions", "", "\u00a7 391.63 Multiple-employer drivers.", "FHWA", "", "", "[63 FR 33278, June 18, 1998, as amended at 79 FR 59457, Oct. 2, 2014; 87 FR 13209, Mar. 9, 2022]", "(a) If a motor carrier employs a person as a multiple-employer driver (as defined in \u00a7 390.5 of this subchapter), the motor carrier shall comply with all requirements of this part, except that the motor carrier need not\u2014\n\n(1) Require the person to furnish an application for employment in accordance with \u00a7 391.21;\n\n(2) Make the investigations and inquiries specified in \u00a7 391.23 with respect to that person;\n\n(3) Perform the annual driving record inquiry required by \u00a7 391.25(a); or\n\n(4) Perform the annual review of the person's driving record required by \u00a7 391.25(b).\n\n(b) Before a motor carrier permits a multiple-employer driver to drive a commercial motor vehicle, the motor carrier must obtain the driver's name, the driver's social security number, and the identification number, type, and issuing driver's licensing authority of the driver's commercial motor vehicle operator's license. The motor carrier must maintain this information for three years after employment of the multiple-employer driver ceases."], ["49:49:5.1.1.2.33.7.15.4", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "G", "Subpart G\u2014Limited Exemptions", "", "\u00a7 391.64 Grandfathering for certain drivers who participated in a vision waiver study program.", "FHWA", "", "", "[61 FR 13346, Mar. 26, 1996, as amended at 83 FR 47521, Sept. 19, 2018; 87 FR 3419, Jan. 21, 2022; 87 FR 7756, Feb. 10, 2022]", "(a) [Reserved]\n\n(b) Until March 22, 2023, the provisions of \u00a7 391.41(b)(10) do not apply to a driver who was a participant in good standing on March 31, 1996, in a waiver study program concerning the operation of commercial motor vehicles by drivers with visual impairment in one eye;  provided:\n\n(1) The driver is physically examined every year, including an examination by an ophthalmologist or optometrist attesting to the fact that the driver:\n\n(i) Is otherwise qualified under \u00a7 391.41; and\n\n(ii) Continues to measure at least 20/40 (Snellen) in the better eye.\n\n(2) The driver provides a copy of the ophthalmologist or optometrist report to the medical examiner at the time of the annual medical examination.\n\n(3) The driver provides a copy of the annual medical certification to the employer for retention in the driver's qualification file and retains a copy of the certification on his/her person while driving for presentation to a duly authorized federal, state or local enforcement official.\n\n(4) On March 22, 2023, the provisions of paragraph (b) of this section are no longer in effect, and any medical examiner's certificate issued under \u00a7 391.43 on the basis that the driver is qualified by operation of the provisions of paragraph (b) of this section, related to drivers with visual impairment in one eye, is void."], ["49:49:5.1.1.2.33.7.15.5", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "G", "Subpart G\u2014Limited Exemptions", "", "\u00a7 391.65 Drivers furnished by other motor carriers.", "FHWA", "", "", "[41 FR 36656, Aug. 31, 1976, as amended at 53 FR 18057, May 19, 1988; 60 FR 38745, July 28, 1995; 63 FR 33278, June 18, 1998; 67 FR 61824, Oct. 2, 2002; 78 FR 58483, Sept. 24, 2013]", "(a) A motor carrier may employ a driver who is not a single-employer driver, as defined in \u00a7 390.5, of that motor carrier without complying with the generally applicable driver qualification file requirements in this part, if\u2014\n\n(1) The driver is a single-employer driver for another motor carrier; and\n\n(2) That other motor carrier certifies that the driver is fully qualified to drive a commercial motor vehicle in a written statement which\u2014\n\n(i) Is signed and dated by an officer or authorized employee of the motor carrier that employs the single-employer driver;\n\n(ii) Contains the driver's name and signature;\n\n(iii) Certifies that the driver has been employed as a single-employer driver.\n\n(iv) Certifies that the driver is fully qualified to drive a commercial motor vehicle under the rules in part 391 of the Federal Motor Carrier Safety Regulations;\n\n(v) States the expiration date of the driver's medical examiner's certificate;\n\n(vi) Specifies an expiration date for the certificate, which shall be not longer than 2 years or, if earlier, the expiration date of the driver's current medical examiner's certificate; and\n\n(vii) Is substantially in accordance with the following form:\n\n____________________(Name of driver)\n\n____________________(SS No.)\n\n____________________(Signature of driver)\n\nI certify that the above named driver, as defined in \u00a7 390.5, is a single-employer driver driving a commercial motor vehicle operated by the below named carrier and is fully qualified under part 391, Federal Motor Carrier Safety Regulations. His/her current medical examiner's certificate expires on ______(Date).\n\nThis certificate expires:\n\n(Date not later than expiration date of medical certificate)\n\nIssued on______(date)\n\nIssued by__________\n\n(Name of carrier)\n\n(Address)\n\n(Signature)\n\n(Title)\n\n(b) A motor carrier that obtains a certificate in accordance with paragraph (a)(2) of this section shall:\n\n(1) Contact the motor carrier which certified the driver's qualifications under this section to verify the validity of the certificate. This contact may be made in person, by telephone, or by letter.\n\n(2) Retain a copy of that certificate in its files for three years.\n\n(c) A motor carrier which certifies a driver's qualifications under this section shall be responsible for the accuracy of the certificate. The certificate is no longer valid if the driver leaves the employment of the motor carrier which issued the certificate or is no longer qualified under the rules in this part."], ["49:49:5.1.1.2.33.7.15.6", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "G", "Subpart G\u2014Limited Exemptions", "", "\u00a7 391.67 Farm vehicle drivers of articulated commercial motor vehicles.", "FHWA", "", "", "[63 FR 33278, June 18, 1998, as amended at 87 FR 13209, Mar. 9, 2022]", "The following rules in this part do not apply to a farm vehicle driver (as defined in \u00a7 390.5 of this subchapter) who is 18 years of age or older and who drives an articulated commercial motor vehicle:\n\n(a) Section 391.11(b)(1) and (7) (relating to general qualifications of drivers);\n\n(b) Subpart C (relating to disclosure of, investigation into, and inquiries about the background, character, and driving record of drivers);\n\n(c) Subpart D (relating to road tests); and\n\n(d) Subpart F (relating to maintenance of files and records)."], ["49:49:5.1.1.2.33.7.15.7", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "G", "Subpart G\u2014Limited Exemptions", "", "\u00a7 391.68 Private motor carrier of passengers (nonbusiness).", "FHWA", "", "", "[63 FR 33278, June 18, 1998, as amended at 87 FR 13209, Mar. 9, 2022]", "The following rules in this part do not apply to a private motor carrier of passengers (nonbusiness) and its drivers:\n\n(a) Section 391.11(b)(1) and (7) (relating to general qualifications of drivers);\n\n(b) Subpart C (relating to disclosure of, investigation into, and inquiries about the background, character, and driving record of, drivers);\n\n(c) So much of \u00a7\u00a7 391.41 and 391.45 as require a driver to be medically examined and to have a medical examiner's certificate on his/her person; and\n\n(d) Subpart F (relating to maintenance of files and records)."], ["49:49:5.1.1.2.33.7.15.8", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "G", "Subpart G\u2014Limited Exemptions", "", "\u00a7 391.69 Private motor carrier of passengers (business).", "FHWA", "", "", "[63 FR 33278, June 18, 1998]", "The provisions of \u00a7 391.21 (relating to applications for employment), \u00a7 391.23 (relating to investigations and inquiries), and \u00a7 391.31 (relating to road tests) do not apply to a driver who was a single-employer driver (as defined in \u00a7 390.5 of this subchapter) of a private motor carrier of passengers (business) as of July 1, 1994, so long as the driver continues to be a single-employer driver of that motor carrier."], ["49:49:5.1.1.2.33.7.15.9", 49, "Transportation", "III", "B", "391", "PART 391\u2014QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS", "G", "Subpart G\u2014Limited Exemptions", "", "\u00a7 391.71 [Reserved]", "FHWA", "", "", "", ""], ["9:9:2.0.2.3.37.0.40.1", 9, "Animals and Animal Products", "III", "D", "391", "PART 391\u2014FEES AND CHARGES FOR INSPECTION SERVICES AND LABORATORY ACCREDITATION", "", "", "", "\u00a7 391.1 Scope and purpose.", "FSIS", "", "", "[54 FR 6390, Feb. 10, 1989]", "Fees shall be charged by the Agency for certain specified inspection services provided on a holiday, on an overtime basis, and/or which are voluntary inspection services."], ["9:9:2.0.2.3.37.0.40.2", 9, "Animals and Animal Products", "III", "D", "391", "PART 391\u2014FEES AND CHARGES FOR INSPECTION SERVICES AND LABORATORY ACCREDITATION", "", "", "", "\u00a7 391.2 Basetime rate.", "FSIS", "", "", "[76 FR 20227, Apr. 12, 2011]", "(a) For each calendar year, FSIS will calculate the basetime rate for inspection services, per hour per program employee, provided pursuant to \u00a7\u00a7 350.7, 351.8, 351.9, 352.5, 354.101, 355.12, and 362.5 of this chapter, using the following formula: The quotient of dividing the Office of Field Operations plus Office of International Affairs inspection program personnel's previous fiscal year's regular direct pay by the previous fiscal year's regular hours, plus the quotient multiplied by the calendar year's percentage of cost of living increase, plus the benefits rate, plus the travel and operating rate, plus the overhead rate, plus the allowance for bad debt rate.\n\n(b) FSIS will calculate the benefits, travel and operating, overhead, and allowance for bad debt rate components of the basetime rate, using the following formulas:\n\n(1)  Benefits rate.  The quotient of dividing the previous fiscal year's direct benefits costs by the previous fiscal year's total hours (regular, overtime, and holiday), plus the quotient multiplied by the calendar year's percentage cost of living increase. Some examples of direct benefits are health insurance, retirement, life insurance, and Thrift Savings Plan basic and matching contributions.\n\n(2)  Travel and operating rate.  The quotient of dividing the previous fiscal year's total direct travel and operating costs by the previous fiscal year's total hours (regular, overtime, and holiday), plus the quotient multiplied by the calendar year's percentage of inflation.\n\n(3)  Overhead rate.  The quotient of dividing the previous fiscal year's indirect costs plus the previous fiscal year's information technology (IT) costs in the Public Health Data Communication Infrastructure System Fund plus the previous fiscal year's Office of Management Program cost in the Reimbursable and Voluntary Funds plus the provision for the operating balance less any Greenbook costs (i.e., costs of USDA support services prorated to the service component for which the fees are charged) that are not related to food inspection, by the previous fiscal year's total hours (regular, overtime, and holiday) worked across all funds, plus the quotient multiplied by the calendar year's percentage of inflation.\n\n(4)  Allowance for bad debt rate.  Previous fiscal year's allowance for bad debt (for example, debt owed that is not paid in full by plants and establishments that declare bankruptcy) divided by the previous fiscal year's total hours (regular, overtime, and holiday) worked.\n\n(c) The calendar year's cost of living increases and percentage of inflation factors used in the formulas in this section are based on the Office of Management and Budget's Presidential Economic Assumptions."], ["9:9:2.0.2.3.37.0.40.3", 9, "Animals and Animal Products", "III", "D", "391", "PART 391\u2014FEES AND CHARGES FOR INSPECTION SERVICES AND LABORATORY ACCREDITATION", "", "", "", "\u00a7 391.3 Overtime and holiday rates.", "FSIS", "", "", "[76 FR 20227, Apr. 12, 2011]", "For each calendar year, FSIS will calculate the overtime and holiday rates, per hour per program employee, provided pursuant to \u00a7\u00a7 307.5, 350.7, 351.8, 351.9, 352.5, 354.101, 355.12, 362.5, and 381.38 of this chapter, using the following formulas:\n\n(a)  Overtime rate.  The quotient of dividing the Office of Field Operations plus Office of International Affairs inspection program personnel's previous fiscal year's regular direct pay by the previous fiscal year's regular hours, plus the quotient multiplied by the calendar year's percentage of cost of living increase, multiplied by 1.5, plus the benefits rate, plus the travel and operating rate, plus the overhead rate, plus the allowance for bad debt rate.\n\n(b)  Holiday rate.  The quotient of dividing the Office of Field Operations plus Office of International Affairs inspection program personnel's previous fiscal year's regular direct pay by the previous fiscal year's regular hours, plus the quotient multiplied by the calendar year's percentage of cost of living increase, multiplied by 2, plus the benefits rate, plus the travel and operating rate, plus the overhead rate, plus the allowance for bad debt rate.\n\n(c) FSIS will calculate the benefits rate, the travel and operating rate, the overhead rate, and the allowance for bad debt rate using the formulas set forth in \u00a7 391.2(b), and the cost of living increases and percentage of inflation factors set forth in \u00a7 391.2(c)."], ["9:9:2.0.2.3.37.0.40.4", 9, "Animals and Animal Products", "III", "D", "391", "PART 391\u2014FEES AND CHARGES FOR INSPECTION SERVICES AND LABORATORY ACCREDITATION", "", "", "", "\u00a7 391.4 Laboratory services rate.", "FSIS", "", "", "[76 FR 20228, Apr. 12, 2011]", "(a) For each calendar year, FSIS will calculate the laboratory services rate, per hour per program employee, provided pursuant to \u00a7\u00a7 350.7, 351.9, 352.5, 354.101, 355.12, and 362.5 of this chapter, using the following formula: The quotient of dividing the Office of Public Health Science (OPHS) previous fiscal year's regular direct pay by OPHS previous fiscal year's regular hours, plus the quotient multiplied by the calendar year's percentage cost of living increase, plus the benefits rate, plus the travel and operating rate, plus the overhead rate, plus the allowance for bad debt rate.\n\n(b) FSIS will calculate the benefits rate, the travel and operating rate, the overhead rate, and the allowance for bad debt rate using the formulas set forth in \u00a7 391.2(b), and the cost of living increases and percentage of inflation factors set forth in \u00a7 391.2(c)."], ["9:9:2.0.2.3.37.0.40.5", 9, "Animals and Animal Products", "III", "D", "391", "PART 391\u2014FEES AND CHARGES FOR INSPECTION SERVICES AND LABORATORY ACCREDITATION", "", "", "", "\u00a7 391.5 Laboratory accreditation fees.", "FSIS", "", "", "[58 FR 65269, Dec. 13, 1993, as amended at 59 FR 66449, Dec. 27, 1994; 64 FR 19868, Apr. 23, 1999; 71 FR 2143, Jan. 13, 2006; 76 FR 20228, Apr. 12, 2011; 78 FR 59622, Sept. 27, 2013; 79 FR 56238, Sept. 19, 2014]", "(a) The annual fee for the accreditation and maintenance of accreditation provided pursuant to \u00a7 439.5 of this chapter shall be $5,000 for the first analyte class, $2,900 for the second analyte class, and $2,100 for each additional analyte class.\n\n(b) Laboratories that request special onsite inspections shall pay FSIS the actual cost of reasonable travel and other expenses necessary to perform the unscheduled or non-routine onsite inspections."]], "truncated": false, "filtered_table_rows_count": 47, "expanded_columns": [], "expandable_columns": [], "columns": ["section_id", "title_number", "title_name", "chapter", "subchapter", "part_number", "part_name", "subpart", "subpart_name", "section_number", "section_heading", "agency", "authority", "source_citation", "amendment_citations", "full_text"], "primary_keys": ["section_id"], "units": {}, "query": {"sql": "select section_id, title_number, title_name, chapter, subchapter, part_number, part_name, subpart, subpart_name, section_number, section_heading, agency, authority, source_citation, amendment_citations, full_text from cfr_sections where \"part_number\" = :p0 order by section_id limit 101", "params": {"p0": "391"}}, "facet_results": {"title_number": {"name": "title_number", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=391", "results": [{"value": 49, "label": 49, "count": 30, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&title_number=49", "selected": false}, {"value": 46, "label": 46, "count": 12, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&title_number=46", "selected": false}, {"value": 9, "label": 9, "count": 5, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&title_number=9", "selected": false}], "truncated": false}, "agency": {"name": "agency", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=391", "results": [{"value": "FHWA", "label": "FHWA", "count": 30, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&agency=FHWA", "selected": false}, {"value": "FMC", "label": "FMC", "count": 12, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&agency=FMC", "selected": false}, {"value": "FSIS", "label": "FSIS", "count": 5, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&agency=FSIS", "selected": false}], "truncated": false}, "part_number": {"name": "part_number", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=391", "results": [{"value": "391", "label": "391", "count": 47, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json", "selected": true}], "truncated": false}}, "suggested_facets": [{"name": "title_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&_facet=title_name"}, {"name": "chapter", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&_facet=chapter"}, {"name": "subchapter", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&_facet=subchapter"}, {"name": "part_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&_facet=part_name"}, {"name": "subpart", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&_facet=subpart"}, {"name": "subpart_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=391&_facet=subpart_name"}], "next": null, "next_url": null, "private": false, "allow_execute_sql": true, "query_ms": 1417.155154980719, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}