Part 391

Section § 391.63: Multiple-employer drivers.

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View regulations for Part 391 [11]

Question 1: Is a person employed by a nonmotor carrier in his normal duties considered an intermittent, casual, or occasional driver when employed by a motor carrier as a driver on apart-time basis?

Guidance: No. A person who drives for one motor carrier (even if it is only one day per month) would not meet the definition of an intermittent, casual or occasional driver in §390.5 [17] since he/she is employed by only one motor carrier. The motor carrier must fully qualify the driver and maintain a qualification file on the employee as a regularly employed driver.

Question 2: How does §391.63 [18] apply when motor carriers obtain, from a driver leasing service, intermittent, casual, or occasional drivers who are on temporary assignments to multiple motor carriers?

Guidance: If an intermittent, casual, or occasional driver has only been fully qualified by a driver leasing service or similar non-motor carrier entity, and has never been fully qualified by a motor carrier, the first motor carrier employing such a driver must ensure that the driver is fully qualified, and must keep a complete driver qualification file for that driver. It was the intention of §§391.63 [18] and 391.65 [19] to require that a driver, before entering the status of an "intermittent, casual, or occasional" driver, be fully qualified by a motor carrier. In a contractual relationship between a motor carrier and a driver leasing service, this may be accomplished by a motor carrier designating a driver leasing service as its agent to perform the qualification procedures in accordance with parts 383 [20] and 391 [21]. However, in such a case, the motor carrier will be held liable for any violations of the FMCSRs committed by its agent.

Question 3: Must a motor carrier that employs an intermittent, casual, or occasional driver to operate a CMV, as defined in §383.5 [22], (1) require the driver to prepare and submit an employment application in accordance with §391.21 [23] and (2) conduct the background investigation of the driver’s previous employers required by §391.23 [24]?

Guidance:

§391.63(a) (1) [18]-(2) [18] exempts from compliance with §§391.21 [23] and 391.23 [24] motor carriers that use intermittent, casual or occasional drivers to operate CMVs with a gross vehicle (or combination) weight rating (GVWR/GCWR) of 10,001 pounds or more. These exemptions also apply to carriers operating the heavier CMVs subject to parts 382 [25] and 383 [20].

However, the more limited driver information and motor carrier investigation required by parts 382 [25] and 383 [20] are not covered by §391.63 [18]. Therefore, a carrier using intermittent, casual or occasional drivers to operate CMVs with a GVWR/GCWR of 26,001 pounds or more need not require an employment application in accordance with §391.21 [23], but the driver must furnish the information required by §383.35(c) [26]. The carrier may conduct a background investigation of the driver’s previous employers (§383.35(f) [26]), and it must investigate his/her previous alcohol and controlled substance test results (§382.413 [27]).