Hours of Service for Commercial Motor Vehicle Drivers; Regulatory Guidance Concerning Off-Duty Time

Anne S. Ferro
Federal Motor Carrier Safety Administration
July 12, 2013

[Federal Register Volume 78, Number 134 (Friday, July 12, 2013)]
[Rules and Regulations]
[Pages 41852-41853]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16687]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395


Hours of Service for Commercial Motor Vehicle Drivers; Regulatory 
Guidance Concerning Off-Duty Time

AGENCY: Federal Motor Carrier Safety Administration, DOT.

ACTION: Regulatory guidance.

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SUMMARY: FMCSA revises its April 4, 1997, regulatory guidance 
concerning the conditions that must be met in order for a commercial 
motor vehicle (CMV) driver to record meal and other routine stops made 
during a work shift as off-duty time. The Agency has reviewed the 
guidance and determined that it includes language that is overly 
restrictive and inconsistent with the hours-of-service regulations. The 
1997 guidance has the effect of discouraging drivers from taking breaks 
during the work day, or documenting such breaks in their logbooks.

DATES: This guidance is effective July 12, 2013.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas L. Yager, Chief, Driver and 
Carrier Operations Division, Office of Bus and Truck Standards and 
Operations; 1200 New Jersey Ave. SE., Washington, DC 20590, Telephone 
202-366-4325, Email: MCPSD@dot.gov.

SUPPLEMENTARY INFORMATION: 

Legal Basis

    The Secretary of Transportation has statutory authority to set 
minimum standards for commercial motor vehicle safety. These minimum 
standards 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; (4) the operation of CMVs does not have 
a deleterious effect on the physical condition of the operators; and 
(5) an operator of a commercial motor vehicle is not coerced by a motor 
carrier, shipper, receiver, or transportation intermediary to operate a 
commercial motor vehicle in violation of a regulation. (49 U.S.C. 
31136(a)(1)-(5), as amended). The Secretary also has broad power in 
carrying out motor carrier safety statutes and regulations to 
``prescribe recordkeeping and reporting requirements'' and to ``perform 
other acts the Secretary considers appropriate.'' (49 U.S.C. 
31133(a)(8) and (10)).
    The Administrator of FMCSA has been delegated authority under 49 
CFR 1.87(f) to carry out the functions vested in the Secretary of 
Transportation by 49 U.S.C. chapter 311, subchapters I and III, 
relating to commercial motor vehicle programs and safety regulation.

Background

    On April 4, 1997 (62 FR 16370), the Federal Highway Administration 
(FHWA) published ``Regulatory Guidance for the Federal Motor Carrier 
Safety Regulations.'' The notice presented interpretive guidance 
material for the Federal Motor Carrier Safety Regulations (FMCSRs) 
based on the FHWA's consolidation or previously issued interpretations 
and regulatory guidance materials. The FHWA developed concise 
interpretive guidance in question-and-answer form for each part of the 
FMCSRs.
    The 1997 notice included the following guidance to 49 CFR 395.2 on 
page 16422 (62 FR 16422):
    Question 2: What conditions must be met for a Commercial Motor 
Vehicle (CMV) driver to record meal and other routine stops made during 
a tour of duty as off-duty time?
    Guidance: 1. The driver must have been relieved of all duty and 
responsibility for the care and custody of the vehicle, its 
accessories, and any cargo or passengers it may be carrying.
    2. The duration of the driver's relief from duty must be a finite 
period of time which is of sufficient duration to ensure that the 
accumulated fatigue resulting from operating a Commercial Motor Vehicle 
(CMV) will be significantly reduced.
    3. If the driver has been relieved from duty, as noted in (1) 
above, the duration of the relief from duty must have been made known 
to the driver prior to the driver's departure in written instructions 
from the employer. There are no record retention requirements for these 
instructions on board a vehicle or at a motor carrier's principal place 
of business.
    4. During the stop, and for the duration of the stop, the driver 
must be at liberty to pursue activities of his/her own choosing and to 
leave the premises where the vehicle is situated.
    While FMCSA has not received any requests for clarification of the 
guidance, the Agency believes it is out-of-date and no longer provides 
practical assistance to motor carriers attempting to achieve compliance 
with the HOS rules. As currently written, the guidance lays out 
requirements for written instructions from drivers' employers 
concerning the duration of breaks during the work shift which is 
inconsistent with the requirements of 49

[[Page 41853]]

CFR part 395. The guidance implicitly imposes a recordkeeping 
requirement, but relieves both the carrier and the driver of any 
responsibility for maintaining a copy of the instructions at the 
principal place of business or on the CMV.
    In addition, the current guidance includes an unenforceable 
performance standard for assessing the validity of a break that will be 
recorded as off-duty. The guidance states the break must be long enough 
to ensure that the accumulated fatigue resulting from driving the CMV 
will be significantly reduced.

FMCSA's Decision To Revise the Regulatory Guidance

    In consideration of the above, FMCSA has determined the 1997 
regulatory guidance should be revised to eliminate language that has 
the effect of discouraging drivers from taking breaks during the work 
day, or documenting such breaks in their logbooks. The FMCSA revises 
Question 2 to 49 CFR 395.2, to read as follows:

Hours of Service for Commercial Motor Vehicle Drivers Regulatory 
Guidance for 49 CFR 395.2, Definitions

    Question 2: What conditions must be met for a commercial motor 
vehicle (CMV) driver to record meal and other routine stops made during 
a work shift as off-duty time?
    Guidance: Drivers may record meal and other routine stops, 
including a rest break of at least 30 minutes intended to satisfy 49 
CFR 395.3(a)(3)(ii), as off-duty time provided:
    1. The driver is relieved of all duty and responsibility for the 
care and custody of the vehicle, its accessories, and any cargo or 
passengers it may be carrying.
    2. During the stop, and for the duration of the stop, the driver 
must be at liberty to pursue activities of his/her own choosing.
    Through the revision of the regulatory guidance, FMCSA makes clear 
that the motor carrier need not provide formal guidance, either verbal 
or written, to drivers with regard to the specific times and locations 
where rest break may be taken. The revised guidance also emphasizes 
that periods of time during which the driver is free to stop working, 
and engage in activities of his/her choosing, may be recorded as off-
duty time, irrespective of whether the driver has the means or 
opportunity to leave a particular facility or location. All previously 
issued guidance on this matter should be disregarded if inconsistent 
with today's notice.

    Issued on: July 5, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-16687 Filed 7-11-13; 8:45 am]
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