Regulatory Guidance on Hours of Service of Drivers Rest Break Requirement; Drivers Who Become Ineligible for the ``Short-Haul'' Exception During the Duty Day

Anne S. Ferro
Federal Motor Carrier Safety Administration
December 19, 2013

[Federal Register Volume 78, Number 244 (Thursday, December 19, 2013)]
[Rules and Regulations]
[Pages 76757-76758]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30205]



[[Page 76757]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395


Regulatory Guidance on Hours of Service of Drivers Rest Break 
Requirement; Drivers Who Become Ineligible for the ``Short-Haul'' 
Exception During the Duty Day

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

ACTION: Regulatory guidance.

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SUMMARY: This regulatory guidance addresses application of the 30-
minute break rule to interstate drivers of commercial motor vehicles 
(CMVs) who begin their duty days as ``short haul'' drivers exempt from 
the break rule, but who occasionally exceed the short haul distance or 
time limits. Such drivers are then subject to the break requirement and 
must prepare a record-of-duty-status (RODS) for the day. The intent of 
the break rule would be satisfied if drivers in these situations take a 
break at the earliest safe opportunity after exceeding the short haul 
limits and explain in a RODS annotation why the rest break was not 
taken within the required 8 hours of the last off-duty break of at 
least 30 minutes.

DATES: Effective Date: This regulatory guidance is effective December 
19, 2013.

FOR FURTHER INFORMATION CONTACT: Thomas L. Yager, Chief, Driver and 
Carrier Operations Division, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Ave. SE., Washington, DC 20590. Email: 
MCPSD@dot.gov. Phone (202) 366-4325.

SUPPLEMENTARY INFORMATION:

Legal Basis

    The Motor Carrier Act of 1935 provides that ``The Secretary of 
Transportation may prescribe requirements for (1) qualifications and 
maximum hours of service of employees of, and safety of operation and 
equipment of, a motor carrier; and (2) qualifications and maximum hours 
of service of employees of, and standards for equipment of, a motor 
private carrier, when needed to promote safety of operation'' [49 
U.S.C. 31502(b)]. This guidance is based on the Secretary's authority 
to regulate maximum hours of service.
    The Motor Carrier Safety Act of 1984 (MCSA) requires the Secretary 
to prescribe safety standards for CMVs. At a minimum, the regulations 
must ensure that (1) CMVs are maintained, equipped, loaded, and 
operated safely; (2) the responsibilities imposed on operators of CMVs 
do not impair their ability to operate the vehicles safely; (3) the 
physical condition of operators of CMVs is adequate to enable them to 
operate the vehicles safely; and (4) the operation of CMVs does not 
have a deleterious effect on the physical condition of the operator [49 
U.S.C. 31136(a)(1)-(4)]. Section 32911 of the Moving Ahead for Progress 
in the 21st Century Act (MAP-21) [Pub. L. 112-141, 126 Stat. 405, 818, 
July 6, 2012] enacted a fifth requirement, i.e., that the regulations 
ensure that (5) an operator of a CMV is not coerced by a motor carrier, 
shipper, receiver, or transportation intermediary to operate a CMV in 
violation of a regulation promulgated under Sec.  31136, Chapter 51 
[Transportation of Hazardous Material], or chapter 313 [Commercial 
Vehicle Operators]. This guidance clarifies the applicability of a 
portion of the hours-of-service (HOS) regulations based on authority of 
Sec.  31136(a)(1), (2) and (4); it is unrelated to Sec.  31136(a)(5) 
and only peripherally related to Sec.  31136(a)(3).
    The MCSA also gives the Secretary broad power to ``prescribe 
recordkeeping and reporting requirements'' and to ``perform other acts 
the Secretary considers appropriate'' [49 U.S.C. 31133(a)(8) and (10)]. 
Clarification of the regulations is an ``appropriate'' act. The 
functions vested in the Secretary by the Motor Carrier Act of 1935 and 
the MCSA have been delegated to the FMCSA Administrator by 49 CFR 
1.87(i) and (f), respectively.

Background

    On December 27, 2011 (76 FR 81133), FMCSA published a final rule 
amending its HOS regulations for drivers of property-carrying 
commercial motor vehicles (CMVs). The final rule adopted several 
changes to the HOS regulations, including a new provision requiring 
drivers to take a rest break during the work day under certain 
circumstances. Drivers may drive a CMV only if 8 hours or less have 
passed since the end of the driver's last off-duty or sleeper-berth 
period of at least 30 minutes. FMCSA did not specify when drivers must 
take the 30-minute break, but the rule requires that they wait no 
longer than 8 hours after the last off-duty or sleeper-berth period of 
that length or longer to take the break. Drivers who already take 
shorter breaks during the work day could comply with the rule by taking 
one of the shorter breaks and extending it to 30 minutes. The new 
requirement took effect on July 1, 2013.
    On August 2, 2013, the U.S. Court of Appeals for the District of 
Columbia Circuit issued its opinion on petitions for review of the 2011 
HOS rule filed by the American Trucking Associations, Public Citizen, 
and others [American Trucking Associations, Inc., v. Federal Motor 
Carrier Safety Administration, No. 12-1092 (D.C. Cir. Aug. 2, 2013)]. 
The Court upheld the 2011 HOS regulations in all respects except for 
the 30-minute break provision as it applies to short haul drivers. By 
guidance effective August 2, 2013, FMCSA has declared that it would no 
longer enforce the break rule against any driver that qualifies for 
either of the ``short-haul operation'' exceptions in 49 CFR 395.1(e)(1) 
or (2) [See www.fmcsa.dot.gov/documents/HOS/30-minute-guidance.pdf]. 
Section 395.1(e) defines two categories of drivers who qualify as being 
engaged in short-haul operations: the ``100 air-mile radius driver'' 
and ``operators of property-carrying CMVs not requiring a commercial 
driver's license (CDL).'' To qualify for the exception, the 100 air-
mile radius driver must remain within a 100 air-mile radius of the 
normal work reporting location, return to that location at the end of 
the duty day, and be released from duty within 12 consecutive hours of 
the beginning of the duty day. The operator of a property-carrying CMV 
not requiring a CDL must remain within a 150 air-mile radius of the 
normal work reporting location and must return to that location at the 
end of the duty day.
    Drivers meeting the requirements to qualify for the short haul 
exception in Sec.  395.1(e) are not required to maintain the standard 
RODS (``logbooks'') described in Sec.  395.8.

Reason for This Guidance

    Occasionally, a CMV driver will begin the duty day fully expecting 
to meet all the requirements of ``short-haul operations'' as defined by 
Sec.  395.1(e). Nevertheless, circumstances beyond the driver's control 
may arise and result in operations that do not meet those requirements. 
For example, a driver engaged in short-haul operations would no longer 
qualify for that exception if he or she is unable to remain within the 
required radius of operation (100 or 150 air-miles), or, in the case of 
the 100 air-mile radius driver, when a CMV driver cannot complete the 
duty day within 12 hours of its start.
    When the driver first learns of the changes to his or her itinerary 
and subsequent ineligibility for the short-haul exemption, the driver 
may have already missed the first mandatory rest break of the break 
rule; i.e., more than 8 hours may have elapsed since the driver was 
last off duty, or in the sleeper

[[Page 76758]]

berth, for at least 30 minutes. To address this issue, FMCSA advises 
that in such situations, the driver should not be considered to be in 
violation of the break rule. The driver should annotate the RODS to 
indicate why the required rest break was not taken earlier, and should 
take the break at the earliest safe opportunity. Ideally, this would be 
prior to preparing the RODS or immediately following the preparation of 
the RODS. Under FMCSA's existing HOS requirements and guidance, drivers 
would begin preparing the RODS as soon as they determine they are no 
longer eligible for the RODS exemption.

Guidance

    For the reasons explained above, FMCSA issues Regulatory Guidance 
Question 33 to Sec.  395.1 of the FMCSRs:

PART 395--HOURS OF SERVICE OF DRIVERS


Sec.  395.1  Scope of rules in this part.

    Question 33. If a driver using either short-haul exception in Sec.  
395.1(e) finds it necessary to exceed the exception limitations for 
unforeseen reasons, is the driver in violation of the Sec.  395.3 rest 
break provision if more than 8 hours have passed without having taken 
the required rest break?
    Guidance. No. A driver using a Sec.  395.1(e) short-haul exception 
who finds it necessary to exceed the exception limitations for 
unforeseen reasons, is not in violation of the Sec.  395.3 rest-break 
requirements if 8 or more hours have passed at the time the driver 
becomes aware of the inability to use the short-haul exception. The 
driver should annotate the record-of-duty-status to indicate why the 
required rest break was not taken earlier, and should take the break at 
the earliest safe opportunity.

    Issued on: December 12, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-30205 Filed 12-18-13; 8:45 am]
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