§ 1:1-10.5 Sanctions
By motion of a party or on his or her own motion, a judge may impose sanctions pursuant to N.J.A.C. 1:1-14.14 and 14.15 for failure to comply with the requirements of this subchapter. Before imposing sanctions, the judge shall provide an opportunity to be heard.
Thursday, May 27, 2010
1:1-10.4 Time for discovery; relief from discovery; motions to compel
1:1-10.4 Time for discovery; relief from discovery; motions to compel
(a) The parties in any contested case shall commence immediately to exchange information voluntarily, to seek access as provided by law to public documents and to exhaust other informal means of obtaining discoverable material.
(b) Parties shall immediately serve discovery requests.
(c) No later than 15 days from receipt of a notice requesting discovery, the receiving party shall provide the requested information, material or access or offer a schedule for reasonable compliance with the notice; or, in the case of a notice requesting admissions, each matter therein shall be admitted unless within the 15 days the receiving party answers, admits or denies the request or objects to it pursuant to N.J.A.C. 1:1-10.4(d).
(d) A party who wishes to object to a discovery request or to compel discovery shall, prior to the filing of any motion regarding discovery, place a telephone conference call to the judge and to all other parties no later than 10 days of receipt of the discovery request or the response to a discovery request. If a party fails without good reason to place a timely telephone call, the judge may deny that party‘s objection or decline to compel the discovery.
(e) The parties shall complete all discovery no later than 10 days before the first scheduled evidentiary hearing or by such date ordered by the judge.
(a) The parties in any contested case shall commence immediately to exchange information voluntarily, to seek access as provided by law to public documents and to exhaust other informal means of obtaining discoverable material.
(b) Parties shall immediately serve discovery requests.
(c) No later than 15 days from receipt of a notice requesting discovery, the receiving party shall provide the requested information, material or access or offer a schedule for reasonable compliance with the notice; or, in the case of a notice requesting admissions, each matter therein shall be admitted unless within the 15 days the receiving party answers, admits or denies the request or objects to it pursuant to N.J.A.C. 1:1-10.4(d).
(d) A party who wishes to object to a discovery request or to compel discovery shall, prior to the filing of any motion regarding discovery, place a telephone conference call to the judge and to all other parties no later than 10 days of receipt of the discovery request or the response to a discovery request. If a party fails without good reason to place a timely telephone call, the judge may deny that party‘s objection or decline to compel the discovery.
(e) The parties shall complete all discovery no later than 10 days before the first scheduled evidentiary hearing or by such date ordered by the judge.
1:1-10.2 Discovery by notice or motion; depositions; physical and mental examinations
1:1-10.2 Discovery by notice or motion; depositions; physical and mental examinations
(a) Any party may notify another party to provide discovery by one or more of the following methods:
1. Written interrogatories;
2. Production of documents or things, including electronically stored information provided that a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. The party from whom discovery is sought shall demonstrate that the electronically stored information is not reasonably accessible because of undue burden or cost;
3. Permission to enter upon land or other property for inspection or other purposes; and
4. Requests for admissions.
(b) Any party may request an informal, nontranscribed meeting with witnesses for another party in order to facilitate the purposes of discovery as described in N.J.A.C. 1:1-10.1. The other party and his or her representative must be given notice and the opportunity to be present. Such meetings are voluntary and cannot be compelled. Failure to agree to such meetings will not be considered good cause for permitting depositions pursuant to (c) below.
(c) Depositions upon oral examination or written questions and physical and mental examinations are available only on motion for good cause. In deciding any such motion, the judge shall consider the policy governing discovery as stated in N.J.A.C. 1:1-10.1 and shall weigh the specific need for the deposition or examination; the extent to which the information sought cannot be obtained in other ways; the requested location and time for the deposition or examination; undue hardship; and matters of expense, privilege, trade secret or oppressiveness. An order granting a deposition or an examination shall specify a reasonable time during which the deposition or examination shall be concluded. The parties may agree to conduct depositions without the necessity of filing a motion; however, the taking of any depositions shall not interfere with the scheduled hearing date.
(d) A party taking a deposition or having an examination conducted who orders a transcript or a report shall promptly, without charge, furnish a copy of the transcript or report to the witness deposed or examined, if an adverse party, and, if not, to any adverse party. The copy so furnished shall be made available to all other parties for their inspection and copying.
(a) Any party may notify another party to provide discovery by one or more of the following methods:
1. Written interrogatories;
2. Production of documents or things, including electronically stored information provided that a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. The party from whom discovery is sought shall demonstrate that the electronically stored information is not reasonably accessible because of undue burden or cost;
3. Permission to enter upon land or other property for inspection or other purposes; and
4. Requests for admissions.
(b) Any party may request an informal, nontranscribed meeting with witnesses for another party in order to facilitate the purposes of discovery as described in N.J.A.C. 1:1-10.1. The other party and his or her representative must be given notice and the opportunity to be present. Such meetings are voluntary and cannot be compelled. Failure to agree to such meetings will not be considered good cause for permitting depositions pursuant to (c) below.
(c) Depositions upon oral examination or written questions and physical and mental examinations are available only on motion for good cause. In deciding any such motion, the judge shall consider the policy governing discovery as stated in N.J.A.C. 1:1-10.1 and shall weigh the specific need for the deposition or examination; the extent to which the information sought cannot be obtained in other ways; the requested location and time for the deposition or examination; undue hardship; and matters of expense, privilege, trade secret or oppressiveness. An order granting a deposition or an examination shall specify a reasonable time during which the deposition or examination shall be concluded. The parties may agree to conduct depositions without the necessity of filing a motion; however, the taking of any depositions shall not interfere with the scheduled hearing date.
(d) A party taking a deposition or having an examination conducted who orders a transcript or a report shall promptly, without charge, furnish a copy of the transcript or report to the witness deposed or examined, if an adverse party, and, if not, to any adverse party. The copy so furnished shall be made available to all other parties for their inspection and copying.
1:1-11.1 Subpoenas for attendance of witnesses; production of documentary evidence; issuance; contents
1:1-11.1 Subpoenas for attendance of witnesses; production of documentary evidence; issuance; contents
(a) Subpoenas may be issued by the Clerk, any judge, or by pro se parties, attorneys-at-law or non-lawyer representatives, in the name of the Clerk, to compel the attendance of a person to testify or to produce books, papers, documents, electronically stored information or other objects at a hearing, provided, however, that a subpoena to compel the attendance of the Governor, an agency head, Assistant Commissioner, Deputy Commissioner, or Division Director may be issued only by a judge. A subpoena for the Governor, an agency head, Assistant Commissioner, Deputy Commissioner, or Division Director shall be issued only if the requesting party makes a showing that the subpoenaed individual has firsthand knowledge of, or direct involvement in, the events giving rise to the contested case, or that the testimony is essential to prevent injustice.
(b) The subpoena shall contain the title and docket number of the case, the name of the person to whom it has been issued, the time and place at which the person subpoenaed must appear, the name and telephone number of the party who has requested the subpoena and a statement that all inquiries concerning the subpoena should be directed to the requesting party. The subpoena shall command the person to whom it is directed to attend and give testimony or to produce books, papers, documents or other designated objects at the time and place specified therein and on any continued dates.
(c) Subpoenas to compel the attendance of a person to testify at a deposition may be issued by a judge pursuant to N.J.A.C. 1:1-10.2(c).
(d) A subpoena which requires production of books, papers, documents or other objects designated therein shall not be used as a discovery device in place of discovery procedures otherwise available under this chapter, nor as a means of avoiding discovery deadlines established by this chapter or by the judge in a particular case.
(e) Subpoena forms shall be available free of charge from the Office of Administrative Law. Subpoena forms may be obtained from the Clerk of the Office of Administrative Law or on the State of New Jersey Office of Administrative Law website www.state.nj.us/oal/.
(f) Upon request by a party, subpoena issued by the Clerk or by a judge may be forwarded to that party by facsimile transmission. Facsimile transmitted subpoenas shall be served in the same manner and shall have the same force and effect as any other subpoena pursuant to this subchapter. A party requesting a facsimile transmittal shall be charged for such transmittal pursuant to N.J.A.C. 1:1-7.5(e).
(a) Subpoenas may be issued by the Clerk, any judge, or by pro se parties, attorneys-at-law or non-lawyer representatives, in the name of the Clerk, to compel the attendance of a person to testify or to produce books, papers, documents, electronically stored information or other objects at a hearing, provided, however, that a subpoena to compel the attendance of the Governor, an agency head, Assistant Commissioner, Deputy Commissioner, or Division Director may be issued only by a judge. A subpoena for the Governor, an agency head, Assistant Commissioner, Deputy Commissioner, or Division Director shall be issued only if the requesting party makes a showing that the subpoenaed individual has firsthand knowledge of, or direct involvement in, the events giving rise to the contested case, or that the testimony is essential to prevent injustice.
(b) The subpoena shall contain the title and docket number of the case, the name of the person to whom it has been issued, the time and place at which the person subpoenaed must appear, the name and telephone number of the party who has requested the subpoena and a statement that all inquiries concerning the subpoena should be directed to the requesting party. The subpoena shall command the person to whom it is directed to attend and give testimony or to produce books, papers, documents or other designated objects at the time and place specified therein and on any continued dates.
(c) Subpoenas to compel the attendance of a person to testify at a deposition may be issued by a judge pursuant to N.J.A.C. 1:1-10.2(c).
(d) A subpoena which requires production of books, papers, documents or other objects designated therein shall not be used as a discovery device in place of discovery procedures otherwise available under this chapter, nor as a means of avoiding discovery deadlines established by this chapter or by the judge in a particular case.
(e) Subpoena forms shall be available free of charge from the Office of Administrative Law. Subpoena forms may be obtained from the Clerk of the Office of Administrative Law or on the State of New Jersey Office of Administrative Law website www.state.nj.us/oal/.
(f) Upon request by a party, subpoena issued by the Clerk or by a judge may be forwarded to that party by facsimile transmission. Facsimile transmitted subpoenas shall be served in the same manner and shall have the same force and effect as any other subpoena pursuant to this subchapter. A party requesting a facsimile transmittal shall be charged for such transmittal pursuant to N.J.A.C. 1:1-7.5(e).
Wednesday, May 26, 2010
13:60-2.1 Adoption and incorporation, by reference, of Federal Motor Carrier Safety Regulations and Appendices to Federal Motor Carrier Safety Reg
13:60-2.1 Adoption and incorporation, by reference, of Federal Motor Carrier Safety Regulations and Appendices to Federal Motor Carrier Safety Regulations
(a) Except as may be indicated in this chapter and appendix, the Superintendent, pursuant to N.J.S.A. 39:5B-32, hereby adopts and incorporates, by reference:
1. The Federal Motor Carrier Safety Regulations, and all supplements and amendments thereto, adopted as final rule action by the Federal Highway Administration, U.S. Department of Transportation (49 C.F.R., Parts 40, 325, 350, 355, 380, 382, 383, 384, 385, 387, 388, and 390 through 398, inclusive); and
2. Appendices F and G to the Federal Motor Carrier Safety Regulations, and all supplements and amendments hereto, adopted as a final rule action by the Federal Highway Administration, U.S. Department of Transportation (49 C.F.R. Ch. III, Subch. B, App. F and G).
(b) The Parts and Appendices of the Federal Motor Carrier Safety Regulations and all supplements and amendments thereto, adopted as final rule action by the Federal Administration, United States Department of Transportation, and adopted and incorporated, by reference, herein, by the Superintendent, are summarized below. A more detailed list of the sections in the Parts and Appendices is found in the appendix to this chapter (“Appendix to the Regulations Regarding Motor Carrier Safety Regulations”). Within that list some sections, subparts, or parts may have been modified, revised, amended, made subject to a different effective date, and/or intentionally omitted by the Superintendent. Those sections, subparts, or parts are clearly identified in the text of the appendix to this chapter.
1. Part 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs.
2. Part 325, Compliance with Interstate Motor Carrier Noise Emission Standards.
3. Part 350, Commercial Motor Carrier Safety Assistance Program.
4. Part 355, Compatibility of State Laws and Regulations Affecting Interstate Motor Carrier Operations.
5. Part 380, Special Training Requirements.
6. Part 382, Controlled Substances and Alcohol Use and Testing.
7. Part 383, Commercial Driver‘s License Standards; Requirements and Penalties.
8. Part 384, State Compliance with Commercial Driver‘s License Program.
9. Part 385, Safety Fitness Procedures.
10. Part 387, Minimum Levels of Financial Responsibility for Motor Carriers.
11. Part 388, Cooperative Agreements with States.
12. Part 390, Federal Motor Carrier Safety Regulations: General.
13. Part 391, Qualifications of Drivers.
14. Part 392, Driving of Motor Vehicles.
15. Part 393, Parts and Accessories Necessary for Safe Operation.
16. Part 394, (Removed and Reserved)
17. Part 395, Hours of Service of Drivers.
18. Part 396, Inspection, Repair, and Maintenance.
19. Part 397, Transportation of Hazardous Materials: Driving and Parking Rules.
20. Part 398, Transportation of Migrant Workers.
21. Appendix F to Subchapter B-Commercial Zones, Sections 1, 6, 11, 12, 43, and 44.
22. Appendix G to Subchapter B-Minimum Periodic Inspection Standards.
(c) Supplements and amendments to the Federal Motor Carrier Safety Regulations and Appendices to the Federal Motor Carrier Safety Regulations which have been adopted as a final rule action by the Federal Highway Administration and become effective after October 1, 1996, are not listed in the appendix to this chapter. Those supplements and amendments are, pursuant to the (a) above, adopted and incorporated, by reference, herein, as if set forth in full. The full text of such supplements and amendments can be found by examining the Federal Register published after the above noted date. See also, N.J.A.C. 13:60-1.5, Document availability, and N.J.A.C. 13:60-1.6, Assistance.
(a) Except as may be indicated in this chapter and appendix, the Superintendent, pursuant to N.J.S.A. 39:5B-32, hereby adopts and incorporates, by reference:
1. The Federal Motor Carrier Safety Regulations, and all supplements and amendments thereto, adopted as final rule action by the Federal Highway Administration, U.S. Department of Transportation (49 C.F.R., Parts 40, 325, 350, 355, 380, 382, 383, 384, 385, 387, 388, and 390 through 398, inclusive); and
2. Appendices F and G to the Federal Motor Carrier Safety Regulations, and all supplements and amendments hereto, adopted as a final rule action by the Federal Highway Administration, U.S. Department of Transportation (49 C.F.R. Ch. III, Subch. B, App. F and G).
(b) The Parts and Appendices of the Federal Motor Carrier Safety Regulations and all supplements and amendments thereto, adopted as final rule action by the Federal Administration, United States Department of Transportation, and adopted and incorporated, by reference, herein, by the Superintendent, are summarized below. A more detailed list of the sections in the Parts and Appendices is found in the appendix to this chapter (“Appendix to the Regulations Regarding Motor Carrier Safety Regulations”). Within that list some sections, subparts, or parts may have been modified, revised, amended, made subject to a different effective date, and/or intentionally omitted by the Superintendent. Those sections, subparts, or parts are clearly identified in the text of the appendix to this chapter.
1. Part 40, Procedures for Transportation Workplace Drug and Alcohol Testing Programs.
2. Part 325, Compliance with Interstate Motor Carrier Noise Emission Standards.
3. Part 350, Commercial Motor Carrier Safety Assistance Program.
4. Part 355, Compatibility of State Laws and Regulations Affecting Interstate Motor Carrier Operations.
5. Part 380, Special Training Requirements.
6. Part 382, Controlled Substances and Alcohol Use and Testing.
7. Part 383, Commercial Driver‘s License Standards; Requirements and Penalties.
8. Part 384, State Compliance with Commercial Driver‘s License Program.
9. Part 385, Safety Fitness Procedures.
10. Part 387, Minimum Levels of Financial Responsibility for Motor Carriers.
11. Part 388, Cooperative Agreements with States.
12. Part 390, Federal Motor Carrier Safety Regulations: General.
13. Part 391, Qualifications of Drivers.
14. Part 392, Driving of Motor Vehicles.
15. Part 393, Parts and Accessories Necessary for Safe Operation.
16. Part 394, (Removed and Reserved)
17. Part 395, Hours of Service of Drivers.
18. Part 396, Inspection, Repair, and Maintenance.
19. Part 397, Transportation of Hazardous Materials: Driving and Parking Rules.
20. Part 398, Transportation of Migrant Workers.
21. Appendix F to Subchapter B-Commercial Zones, Sections 1, 6, 11, 12, 43, and 44.
22. Appendix G to Subchapter B-Minimum Periodic Inspection Standards.
(c) Supplements and amendments to the Federal Motor Carrier Safety Regulations and Appendices to the Federal Motor Carrier Safety Regulations which have been adopted as a final rule action by the Federal Highway Administration and become effective after October 1, 1996, are not listed in the appendix to this chapter. Those supplements and amendments are, pursuant to the (a) above, adopted and incorporated, by reference, herein, as if set forth in full. The full text of such supplements and amendments can be found by examining the Federal Register published after the above noted date. See also, N.J.A.C. 13:60-1.5, Document availability, and N.J.A.C. 13:60-1.6, Assistance.
49 CFR 391.41: Physical qualifications for drivers.
Part 391.41: Physical qualifications for drivers.
Print
Search for
Examples: Medical Form, 391.53, 391
All Regulations
Part 391
< 391.33 391.43 >
Related Links
Disclaimer
Interpretation
Help
Physical qualifications and examinations
§391.41 Physical qualifications for drivers.
(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, the FMCSA Administrator determined that the new 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.
(a)(1)(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.
(a)(2) CDL exception. (i) Beginning January 30, 2012, 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 §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 §391.43(h), or a copy. If there is no medical certification information on that driver’s CDLIS motor vehicle record defined at 49 CFR 384.105, a current medical examiner’s certificate issued prior to January 30, 2012, will be accepted until January 30, 2014. After January 30, 2014, a driver may use the date-stamped receipt (given to the driver by the State driver licensing agency) for up to 15 days after the date stamped on that receipt as proof of medical certification.
(a)(2)(ii) A CDL driver required by §383.71(h) 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.
(a)(3) A person is physically qualified to drive a commercial motor vehicle if:
(a)(3)(i) That person meets the physical qualification standards in paragraph (b) of this section and has complied with the medical examination requirements in §391.43; or
(a)(3)(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 §391.43.[Change Notice][Previous Text]
(b) A person is physically qualified to drive a commercial motor vehicle if that person—
(b)(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 §391.49;
(b)(2) Has no impairment of:
(b)(2)(i) A hand or finger which interferes with prehension or power grasping; or
(b)(2)(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 §391.49.
(b)(3) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control;
(b)(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;
(b)(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;
(b)(6) Has no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial motor vehicle safely;
(b)(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;
(b)(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;
(b) (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;
(b)(10) 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 70ยบ 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;
(b)(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) Z24.5–1951;
(b) (12)(i) Does not use a controlled substance identified in 21 CFR 1308.11 Schedule I, an amphetamine, a narcotic, or any other habit-forming drug.
(b)(12)(ii) Exception. A driver may use such a substance or drug, if the substance or drug is prescribed by a licensed medical practitioner who:
(b)(12)(ii)(A) Is familiar with the driver’s medical history and assigned duties; and
(b)(12)(ii)(B) Has advised the driver that the prescribed substance or drug will not adversely affect the driver’s ability to safely operate a commercial motor vehicle; and
(b) (13) Has no current clinical diagnosis of alcoholism.
[35 FR 6460, Apr. 22, 1970, as amended at 35 FR 17420, Nov. 13, 1970; 36 FR 223, Jan. 7, 1971; 36 FR 12857, July 8, 1971; 43 FR 56900, Dec. 5, 1978; 55 FR 3554, Feb. 1, 1990; 60 FR 38744, July 28, 1995; 62 FR 37152, July 11, 1997; 65 FR 59369, Oct. 5, 2000; 67 FR 61824, Oct. 2, 2002; 73 FR 73127, Dec. 1, 2008]
Search for
Examples: Medical Form, 391.53, 391
All Regulations
Part 391
< 391.33 391.43 >
Related Links
Disclaimer
Interpretation
Help
Physical qualifications and examinations
§391.41 Physical qualifications for drivers.
(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, the FMCSA Administrator determined that the new 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.
(a)(1)(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.
(a)(2) CDL exception. (i) Beginning January 30, 2012, 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 §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 §391.43(h), or a copy. If there is no medical certification information on that driver’s CDLIS motor vehicle record defined at 49 CFR 384.105, a current medical examiner’s certificate issued prior to January 30, 2012, will be accepted until January 30, 2014. After January 30, 2014, a driver may use the date-stamped receipt (given to the driver by the State driver licensing agency) for up to 15 days after the date stamped on that receipt as proof of medical certification.
(a)(2)(ii) A CDL driver required by §383.71(h) 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.
(a)(3) A person is physically qualified to drive a commercial motor vehicle if:
(a)(3)(i) That person meets the physical qualification standards in paragraph (b) of this section and has complied with the medical examination requirements in §391.43; or
(a)(3)(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 §391.43.[Change Notice][Previous Text]
(b) A person is physically qualified to drive a commercial motor vehicle if that person—
(b)(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 §391.49;
(b)(2) Has no impairment of:
(b)(2)(i) A hand or finger which interferes with prehension or power grasping; or
(b)(2)(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 §391.49.
(b)(3) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control;
(b)(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;
(b)(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;
(b)(6) Has no current clinical diagnosis of high blood pressure likely to interfere with his/her ability to operate a commercial motor vehicle safely;
(b)(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;
(b)(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;
(b) (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;
(b)(10) 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 70ยบ 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;
(b)(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) Z24.5–1951;
(b) (12)(i) Does not use a controlled substance identified in 21 CFR 1308.11 Schedule I, an amphetamine, a narcotic, or any other habit-forming drug.
(b)(12)(ii) Exception. A driver may use such a substance or drug, if the substance or drug is prescribed by a licensed medical practitioner who:
(b)(12)(ii)(A) Is familiar with the driver’s medical history and assigned duties; and
(b)(12)(ii)(B) Has advised the driver that the prescribed substance or drug will not adversely affect the driver’s ability to safely operate a commercial motor vehicle; and
(b) (13) Has no current clinical diagnosis of alcoholism.
[35 FR 6460, Apr. 22, 1970, as amended at 35 FR 17420, Nov. 13, 1970; 36 FR 223, Jan. 7, 1971; 36 FR 12857, July 8, 1971; 43 FR 56900, Dec. 5, 1978; 55 FR 3554, Feb. 1, 1990; 60 FR 38744, July 28, 1995; 62 FR 37152, July 11, 1997; 65 FR 59369, Oct. 5, 2000; 67 FR 61824, Oct. 2, 2002; 73 FR 73127, Dec. 1, 2008]
Thursday, May 20, 2010
2A:23C-4 Privilege against disclosure; admissibility; discovery.
2A:23C-4 Privilege against disclosure; admissibility; discovery.
4.Privilege against Disclosure; Admissibility; Discovery.
a.Except as otherwise provided in section 6 of P.L. 2004, c.157 (C.2A:23C-6), a mediation communication is privileged as provided in subsection b. of this section and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by section 5 of P.L. 2004, c.157 (C.2A:23C-5).
b.In a proceeding, the following privileges shall apply:
(1)a mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
(2)a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.
(3)a nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
c.Evidence or information that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.
L.2004,c.157,s.4.
2A:23C-5 Waiver and preclusion of privilege.
5.Waiver and Preclusion of Privilege.
a.A privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:
(1)in the case of the privilege of a mediator, it is expressly waived by the mediator; and
(2)in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.
b.A person who discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting a privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4), but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
c.A person who intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4).
L.2004,c.157,s.5.
2A:23C-6 Exceptions to privilege.
6.Exceptions to Privilege.
a.There is no privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) for a mediation communication that is:
(1)in an agreement evidenced by a record signed by all parties to the agreement;
(2)made during a session of a mediation that is open, or is required by law to be open, to the public;
(3)a threat or statement of a plan to inflict bodily injury or commit a crime;
(4)intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
(5)sought or offered to prove or disprove a claim or complaint filed against a mediator arising out of a mediation;
(6)except as otherwise provided in subsection c., sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
(7)sought or offered to prove or disprove child abuse or neglect in a proceeding in which the Division of Youth and Family Services in the Department of Children and Families is a party, unless the Division of Youth and Family Services participates in the mediation.
b.There is no privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:
(1)a court proceeding involving a crime as defined in the "New Jersey Code of Criminal Justice," N.J.S. 2C:1-1 et seq.; or
(2) except as otherwise provided in subsection c., a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.
c.A mediator may not be compelled to provide evidence of a mediation communication referred to in paragraph (6) of subsection a. or paragraph (2) of subsection b.
d.If a mediation communication is not privileged under subsection a. or b., only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection a. or b. does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.
L.2004, c.157, s.6; amended 2006, c.47, s.22.
2A:23C-7 Prohibited mediator reports.
7.Prohibited mediator reports.
a.Except as required in subsection b., a mediator may not make a report, assessment, evaluation, recommendation, finding, or other oral or written communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation.
b.A mediator may disclose:
(1)whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; or
(2)a mediation communication as permitted under section 6 of P.L.2004, c.157 (C.2A:23C-6);
c.A communication made in violation of subsection a. may not be considered by a court, administrative agency, or arbitrator.
L.2004,c.157,s.7.
2A:23C-8 Confidentiality.
8.Confidentiality.
Unless made during a session of a mediation which is open, or is required by law to be open, to the public, mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.
L.2004,c.157,s.8.
2A:23C-9 Mediator's disclosure of conflicts of interest; background.
9.Mediator's Disclosure of Conflicts of Interest; Background.
a.Before accepting a mediation, an individual who is requested to serve as a mediator shall:
(1)make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and
(2)disclose any such known fact to the mediation parties as soon as is practicable before accepting a mediation.
b.If a mediator learns any fact described in paragraph (1) of subsection a. after accepting a mediation, the mediator shall disclose it as soon as is practicable.
c.At the request of a mediation party, an individual who is requested to serve as a mediator shall disclose the mediator's qualifications to mediate a dispute.
d.A person who violates subsection a., b., or g. shall be precluded by the violation from asserting a privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4), but only to the extent necessary to prove the violation.
e.Subsections a, b., c., and g. do not apply to a judge of any court of this State acting as a mediator.
f.This act does not require that a mediator have a special qualification by background or profession.
g.A mediator shall be impartial, notwithstanding disclosure of the facts required in subsections a. and b.
L.2004,c.157,s.9.
2A:23C-10 Participation in mediation.
10. Participation in Mediation.
An attorney or other individual designated by a party may accompany the party to and participate in a mediation. A waiver of representation or participation given before the mediation may be rescinded.
L.2004,c.157,s.10.
2A:23C-11 Relation to Electronic Signatures in Global and National Commerce Act.
11. Relation to Electronic Signatures in Global and National Commerce Act.
This act modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. s.7001 et seq., but this act does not modify, limit, or supersede s.101(c) of that act or authorize electronic delivery of any of the notices described in s.103(b) of that act.
L.2004,c.157,s.11.
2A:23C-12 Uniformity of application and construction.
12. Uniformity of application and construction.
In applying and construing this act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
L.2004,c.157,s.12.
2A:23C-13 Severability clause.
13. Severability clause.
If any provision of P.L.2004, c.157 (C.2A:23C-1 et seq.) or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
L.2004,c.157,s.13.
4.Privilege against Disclosure; Admissibility; Discovery.
a.Except as otherwise provided in section 6 of P.L. 2004, c.157 (C.2A:23C-6), a mediation communication is privileged as provided in subsection b. of this section and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by section 5 of P.L. 2004, c.157 (C.2A:23C-5).
b.In a proceeding, the following privileges shall apply:
(1)a mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
(2)a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.
(3)a nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
c.Evidence or information that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.
L.2004,c.157,s.4.
2A:23C-5 Waiver and preclusion of privilege.
5.Waiver and Preclusion of Privilege.
a.A privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:
(1)in the case of the privilege of a mediator, it is expressly waived by the mediator; and
(2)in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.
b.A person who discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting a privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4), but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.
c.A person who intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4).
L.2004,c.157,s.5.
2A:23C-6 Exceptions to privilege.
6.Exceptions to Privilege.
a.There is no privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) for a mediation communication that is:
(1)in an agreement evidenced by a record signed by all parties to the agreement;
(2)made during a session of a mediation that is open, or is required by law to be open, to the public;
(3)a threat or statement of a plan to inflict bodily injury or commit a crime;
(4)intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
(5)sought or offered to prove or disprove a claim or complaint filed against a mediator arising out of a mediation;
(6)except as otherwise provided in subsection c., sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or
(7)sought or offered to prove or disprove child abuse or neglect in a proceeding in which the Division of Youth and Family Services in the Department of Children and Families is a party, unless the Division of Youth and Family Services participates in the mediation.
b.There is no privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4) if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:
(1)a court proceeding involving a crime as defined in the "New Jersey Code of Criminal Justice," N.J.S. 2C:1-1 et seq.; or
(2) except as otherwise provided in subsection c., a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.
c.A mediator may not be compelled to provide evidence of a mediation communication referred to in paragraph (6) of subsection a. or paragraph (2) of subsection b.
d.If a mediation communication is not privileged under subsection a. or b., only the portion of the communication necessary for the application of the exception from nondisclosure may be admitted. Admission of evidence under subsection a. or b. does not render the evidence, or any other mediation communication, discoverable or admissible for any other purpose.
L.2004, c.157, s.6; amended 2006, c.47, s.22.
2A:23C-7 Prohibited mediator reports.
7.Prohibited mediator reports.
a.Except as required in subsection b., a mediator may not make a report, assessment, evaluation, recommendation, finding, or other oral or written communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation.
b.A mediator may disclose:
(1)whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; or
(2)a mediation communication as permitted under section 6 of P.L.2004, c.157 (C.2A:23C-6);
c.A communication made in violation of subsection a. may not be considered by a court, administrative agency, or arbitrator.
L.2004,c.157,s.7.
2A:23C-8 Confidentiality.
8.Confidentiality.
Unless made during a session of a mediation which is open, or is required by law to be open, to the public, mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this State.
L.2004,c.157,s.8.
2A:23C-9 Mediator's disclosure of conflicts of interest; background.
9.Mediator's Disclosure of Conflicts of Interest; Background.
a.Before accepting a mediation, an individual who is requested to serve as a mediator shall:
(1)make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and
(2)disclose any such known fact to the mediation parties as soon as is practicable before accepting a mediation.
b.If a mediator learns any fact described in paragraph (1) of subsection a. after accepting a mediation, the mediator shall disclose it as soon as is practicable.
c.At the request of a mediation party, an individual who is requested to serve as a mediator shall disclose the mediator's qualifications to mediate a dispute.
d.A person who violates subsection a., b., or g. shall be precluded by the violation from asserting a privilege under section 4 of P.L.2004, c.157 (C.2A:23C-4), but only to the extent necessary to prove the violation.
e.Subsections a, b., c., and g. do not apply to a judge of any court of this State acting as a mediator.
f.This act does not require that a mediator have a special qualification by background or profession.
g.A mediator shall be impartial, notwithstanding disclosure of the facts required in subsections a. and b.
L.2004,c.157,s.9.
2A:23C-10 Participation in mediation.
10. Participation in Mediation.
An attorney or other individual designated by a party may accompany the party to and participate in a mediation. A waiver of representation or participation given before the mediation may be rescinded.
L.2004,c.157,s.10.
2A:23C-11 Relation to Electronic Signatures in Global and National Commerce Act.
11. Relation to Electronic Signatures in Global and National Commerce Act.
This act modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. s.7001 et seq., but this act does not modify, limit, or supersede s.101(c) of that act or authorize electronic delivery of any of the notices described in s.103(b) of that act.
L.2004,c.157,s.11.
2A:23C-12 Uniformity of application and construction.
12. Uniformity of application and construction.
In applying and construing this act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
L.2004,c.157,s.12.
2A:23C-13 Severability clause.
13. Severability clause.
If any provision of P.L.2004, c.157 (C.2A:23C-1 et seq.) or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
L.2004,c.157,s.13.
Subscribe to:
Posts (Atom)