Hours of Service of Drivers of Commercial Motor Vehicles: Regulatory Guidance Concerning the Use of a Commercial Motor Vehicle for Personal Conveyance |
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Raymond P. Martinez
Federal Motor Carrier Safety Administration
7 June 2018
[Federal Register Volume 83, Number 110 (Thursday, June 7, 2018)]
[Rules and Regulations]
[Pages 26377-26380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12256]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 395
[Docket No. FMCSA-2017-0108]
Hours of Service of Drivers of Commercial Motor Vehicles:
Regulatory Guidance Concerning the Use of a Commercial Motor Vehicle
for Personal Conveyance
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Regulatory guidance.
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SUMMARY: On December 19, 2017, FMCSA proposed revisions to the
regulatory guidance concerning driving a commercial motor vehicle (CMV)
for personal use while off-duty, referred to as ``personal
conveyance.'' Over 380 comments were received in response to the draft
guidance. This document provides revised guidance and addresses issues
raised by commenters. This guidance applies to all CMV drivers required
to record their hours of service (HOS) who are permitted by their
carrier to use the vehicle for personal use.
DATES: This guidance is applicable on June 7, 2018 and expires June 7,
2023.
FOR FURTHER INFORMATION CONTACT: For information concerning this notice
contact Ms. LaTonya Mimms, Transportation Specialist, Enforcement
Division, FMCSA. Ms. Mimms may be reached at 202-366-0991 and by email
at LaTonya.Mimms@dot.gov. If you have questions on viewing or
submitting material to the docket, contact Docket Services, telephone
(202) 366-9826.
SUPPLEMENTARY INFORMATION:
[[Page 26378]]
Background
The Federal Motor Carrier Safety Regulations (FMCSRs) require
drivers to document their HOS on records of duty status (RODS),
identifying one of four duty status options: (1) On-duty not driving,
(2) driving, (3) sleeper berth, and (4) off-duty (49 CFR 395.8). The
use of personal conveyance is a tool used to account for the movement
of a CMV while the driver is off-duty.
Motor carriers are responsible for ensuring that drivers are not
operating while ill or fatigued. However, motor carriers, at their
discretion, may authorize their drivers to use a CMV while off-duty for
personal conveyance. When this occurs, drivers are required to document
such use as off-duty on their RODS, irrespective of the method used to
record the driver's HOS (e.g., paper logs, automatic on-board recording
device, electronic logging devices (ELDs), etc.)
The minimum performance and design standards for ELDs in the
Agency's final rule on ``Implementation of Electronic Logging Devices
and Hours of Service Supporting Documents'' (ELD rule) (80 FR 78292,
December 15, 2015) include the automatic recording of data related to
the off-duty movement and location of the CMV. As part of the ELD rule,
ELD manufacturers are required to include a special driving category
for personal conveyance. This may be used by drivers at the motor
carriers' discretion.
The previous guidance on personal conveyance (49 CFR 395.8,
Question 26) was issued by the Federal Highway Administration (FHWA),
FMCSA's predecessor agency, in a memorandum dated November 18, 1996,
and later published in a compilation of guidance (62 FR 16370, 16426,
April 4, 1997). The guidance reiterated the basic principle that a
driver in off-duty status must be relieved from work and all
responsibility for performing work. It highlighted the use of the CMV
as a personal conveyance in traveling to and from the place of
employment (e.g., the normal work reporting location). The 1997
guidance included discussion of CMVs used to travel short distances
from a driver's en route lodgings to restaurants in the vicinity of
such lodgings. In addition, the 1997 guidance explicitly excluded the
use of laden vehicles as personal conveyance and the operation of the
CMV as personal conveyance by drivers who have been placed out of
service for HOS violations. The guidance has remained unchanged since
1997.
On December 19, 2017. FMCSA issued revised guidance and requested
comments. (82 FR 60269) In changing the guidance, the Agency focused on
the reason the driver is operating a CMV while off-duty, without regard
to whether the CMV is laden.
This notice clarifies issues raised such as using personal
conveyance to leave a shipper or receiver and travel to a safe location
for rest, the fact that the use of personal conveyance does not impact
on-duty time, and provides additional scenarios in the guidance as to
when the use of personal conveyance is allowable, and, includes
passenger carrier specific scenarios.
Comments on the Proposed Guidance
FMCSA received over 380 comments on the proposed guidance. Over 300
of the comments were from individuals, with approximately 240
representing drivers of property-carrying CMVs. The remaining comments
came from companies, associations, safety organizations, and two
States. Companies included Cowboy Up Transport, Boyle Transportation,
Crete Carrier, C.H. Robinson, and Schneider National. The associations
included the American Bus Association, the American Trucking
Associations, the Owner Operator Independent Drivers Association, the
Truckload Carriers Association, and Western States Trucking
Association. The safety organizations included the Commercial Vehicle
Safety Alliance, Advocates for Highway and Auto Safety (AHAS), the
Truck Safety Coalition and Road Safe America.
The majority of commenters supported expanding the definition to
include laden vehicles. However, the Truck Safety Coalition and Road
Safe America opposed this change, expressing concern that FMCSA was
proposing to replace an objective standard with a subjective standard
and that it would be difficult for law enforcement to assess a driver's
intent to determine if the CMV is being used for personal conveyance.
In addition, the Truck Safety Coalition and Road Safe America noted
studies conducted by the FMCSA, National Institute of Occupational
Safety and Health, Federal Highway Administration and National Highway
Traffic Safety Administration, relating to the incidence of fatigue
reported by long haul truck drivers and impact of pressures from the
shipping community on fatigue.
AHAS also opposed this change for similar reasons and questioned
the disparate impact on drivers of single unit trucks that FMCSA noted
in the December 2017 notice.
Also, several motor carriers reiterated that the decision to allow
the use of personal conveyance should remain with the company.
FMCSA Response?>
The purpose of the guidance is to provide additional clarity on the
use of personal conveyance as a type of off-duty status. The guidance
provides additional details to determine if a movement of the CMV is an
appropriate off-duty use. The new guidance will improve uniformity for
the industry and the enforcement communities. The clarity provided in
this notice will lead to greater uniformity in the enforcement of the
HOS rules.
In response to concerns that this guidance will somehow increase
fatigue, FMCSA notes that there are no changes to the HOS rules in this
document. In fact, because the current requirement to record HOS using
ELDs makes the time spent driving a CMV as personal conveyance
transparent to the motor carrier and enforcement, the Agency believes
that consistency and uniformity in the application of the guidance by
both the industry and enforcement will be increased. FMCSA recognizes
that much of the pressure on drivers referenced in the comments results
from delays during the loading or unloading process causing a driver to
run out of hours. This guidance will have a positive impact on the
concerns expressed by the Truck Safety Coalition, Road Safe America,
and AHAS by giving drivers the flexibility to locate and obtain
adequate rest as this would be off-duty time in personal conveyance
status. In addition, as described above, this guidance, used in
conjunction with the ELD rule will lead to greater uniformity in
enforcement.
According to the FMCSA's records in the Motor Carrier Management
Information System, there are approximately 2.3 million straight trucks
that operate in interstate commerce. Under the previous guidance, the
drivers of many straight trucks were not permitted to operate in an
off-duty status for personal conveyance because they were laden. The
revised guidance allows these vehicles, under the circumstances
described in the guidance to be driven as a personal conveyance.
Other recurring issues or questions raised are discussed
individually below.
Some commenters provided suggestions or requests that are outside
of the scope of guidance. Those included modifying the HOS regulations
so that there is a definition of personal conveyance consistent with
the Canadian HOS regulation and establishing mileage or time limits for
the use of personal conveyance.
[[Page 26379]]
In addition, some motor carriers and drivers questioned who would
be liable in a crash when the driver is operating in the personal
conveyance mode. FMCSA notes that this issue is outside of its
authority and would be determined based on the contract or agreement
between the motor carrier or owner of the commercial motor vehicle and
the liability insurance provider as well as principles of State tort
law.
Clarification of Impact to On-Duty Hours
Numerous commenters asked for clarification on how the use of
personal conveyance impacts on-duty hours.
FMCSA Response
Personal conveyance is an off-duty status. Therefore, there are no
impacts to the 11- or 14-hour limitations for truck drivers, the 10- or
15-hour limitations for bus drivers, the 60/70-hour limitations, the
34-hour restart provisions, or any other on-duty status.
Leaving a Shipper or Receiver to go to a Safe Place for Required Rest
Crete Carrier, Vilma Kuprescenko, Desiree Wood, Paul Tyler and many
others suggested that a driver should be allowed to identify movement
from a receiver or shipper, after exhausting his or her HOS, as
personal conveyance, if that movement is to allow the driver to arrive
at a safe location to obtain the required rest. Crete Carrier believes
that not allowing the driver to identify such a movement as personal
conveyance would be contrary to the coercion rule (49 CFR 390.6), as
the shipper is forcing a driver to leave the premises even after
exhausting his or her hours of service limits. Schneider National also
asked for clarification on this issue.
FMCSA Response
The movement from a shipper or receiver to the nearest safe resting
area may be identified as personal conveyance, regardless of whether
the driver exhausted his or her HOS, as long as the CMV is being moved
solely to enable the driver to obtain the required rest at a safe
location. The Agency recognizes that the driver may not be aware of the
direction of the next dispatch and that in some instances the nearest
safe resting location may be in the direction of that dispatch. If the
driver proceeds to the nearest reasonable and safe location and takes
the required rest, this would qualify as personal conveyance. FMCSA
recommends that the driver annotate on the log if he/she cannot park at
the nearest location and must proceed to another location.
FMCSA also notes that the Coercion Rule is intended to protect
drivers from motor carriers, shippers, receivers, or transportation
intermediaries who threaten to withhold work from, take employment
action against, or punish a driver for refusing to operate in violation
the FMCSRs, Hazardous Materials Regulations, and the Federal Motor
Carrier Commercial Regulations. Crete Carrier's reference to the
coercion rule in the context of having to leave a shipper's/receiver's
property is not accurate, provided that the shipper or receiver does
not threaten to retaliate or take adverse action against the driver in
violation of the rule.
Movement Required by Safety Officials
Jeff Muzik asked about the impacts to the 10-hour break if a safety
official requires the driver to move the CMV.
FMCSA Response
If a Federal, State or local law enforcement official requires a
driver to relocate the CMV during the 10-hour break period for truck
drivers or the 8-hour break period for bus drivers, personal conveyance
may be used to document the movement. Again, as this is off-duty time,
this does not require a restart of the rest period. However, the CMV
must be moved no farther than the nearest reasonable and safe area to
complete the rest period.
Returning to the Last On-Duty Location
Schneider National noted that the draft scenarios in section (a) of
the guidance to Question 26 implied that the driver must return to the
last on-duty location but that other scenarios in the same section
indicate otherwise. Allen England and Billy Barnes Enterprises
expressed disagreement with any requirement to return to the last on-
duty location.
FMCSA Response
The driver is not required to return to the previous on-duty
location. A driver may resume on-duty status immediately after an off-
duty status regardless of the location of the CMV.
Enhancing Operational Readiness
Danny Schnautz, Brian Ausloos, and Doug Pope questioned FMCSA's
description of ``enhancing operational readiness.'' Other carriers also
provided examples of movements that they believed are personal
conveyance but enhance operational readiness.?>
FMCSA Response
Enhancing operational readiness includes on-duty movement of a CMV
that provides a commercial benefit to the motor carrier. For example,
if the movement places the load closer to the destination, it may not
be considered personal conveyance, except under circumstances outlined
specifically in the examples provided in the guidance. Additionally, if
a driver who is under dispatch stops at a location such as his/her
home, because the driver's home is closer to the next destination or
pick up location, then this would not be personal conveyance.
Application of Guidance to Passenger Carrying Vehicles
The American Bus Association (ABA) stated that the proposed
guidance did not mention motorcoaches. ABA and others requested
examples that specifically reference motorcoach operations. The United
Motorcoach Association provided examples of personal conveyance,
including use of a motorcoach to reach restaurants or pursue personal
activities after dropping off passengers at a hotel or when a driver is
using a motorcoach to transport drivers who are off-duty to pursue
personal activities.
In addition, Michael Letlow requested confirmation that
motorcoaches with luggage only are not considered laden.
FMCSA Response
Examples have been added to the final guidance that make clear that
drivers of passenger-carrying operations may also use their vehicles
for personal conveyance in appropriate circumstances. In addition,
FMCSA reminds commenters that this guidance now applies regardless of
whether the vehicle is laden. However, the requirement for the driver
to be off-duty still exists. Therefore, if a driver is taking luggage
to a hotel and is on-duty, personal conveyance would not apply.
However, if the driver is off-duty and using a motorcoach with luggage
on board to get lunch, personal conveyance would be appropriate.
New Guidance Language
FMCSA replaces Question 26 as noted below. In accordance with the
requirement in Section 5203(a)(2)(A) of the Fixing America's Surface
Transportation (FAST) Act, Public Law 114-94, 129 Stat. 1312, 1535,
Dec. 4, 2015, the guidance above will be posted on FMCSA's website,
http://www.fmcsa.dot.gov and expires no later than June 7, 2023. The
Agency will then consider whether the guidance should be withdrawn,
reissued for another period of up to five years, or incorporated into
the safety regulations at that time.
[[Page 26380]]
FMCSA reminds motor carriers and drivers that additional
information about ELDs is available at www.fmcsa.dot.gov/eld.
FMCSA updates the guidance for Sec. 395.8 Driver's Record of Duty
Status to read as follows:
Question 26: Under what circumstances may a driver operate a
commercial motor vehicle (CMV) as a personal conveyance?
Guidance: A driver may record time operating a CMV for personal
conveyance (i.e., for personal use or reasons) as off-duty only when
the driver is relieved from work and all responsibility for performing
work by the motor carrier. The CMV may be used for personal conveyance
even if it is laden, since the load is not being transported for the
commercial benefit of the carrier at that time. Personal conveyance
does not reduce a driver's or motor carrier's responsibility to operate
a CMV safely. Motor carriers can establish personal conveyance
limitations either within the scope of, or more restrictive than, this
guidance, such as banning use of a CMV for personal conveyance
purposes, imposing a distance limitation on personal conveyance, or
prohibiting personal conveyance while the CMV is laden.
(a) Examples of appropriate uses of a CMV while off-duty for
personal conveyance include, but are not limited to:
1. Time spent traveling from a driver's en route lodging (such as a
motel or truck stop) to restaurants and entertainment facilities.
2. Commuting between the driver's terminal and his or her
residence, between trailer-drop lots and the driver's residence, and
between work sites and his or her residence. In these scenarios, the
commuting distance combined with the release from work and start to
work times must allow the driver enough time to obtain the required
restorative rest as to ensure the driver is not fatigued.
3. Time spent traveling to a nearby, reasonable, safe location to
obtain required rest after loading or unloading. The time driving under
personal conveyance must allow the driver adequate time to obtain the
required rest in accordance with minimum off-duty periods under 49 CFR
395.3(a)(1) (property-carrying vehicles) or 395.5(a) (passenger-
carrying vehicles) before returning to on-duty driving, and the resting
location must be the first such location reasonably available.
4. Moving a CMV at the request of a safety official during the
driver's off-duty time
5. Time spent traveling in a motorcoach without passengers to en
route lodging (such as motel or truck stop), or to restaurants and
entertainment facilities and back to the lodging. In this scenario, the
driver of the motorcoach can claim personal conveyance provided the
driver is off-duty. Other off-duty drivers may be on board the vehicle,
and are not considered passengers.
6. Time spent transporting personal property while off-duty.
7. Authorized use of a CMV to travel home after working at an
offsite location.
(b) Examples of uses of a CMV that would not qualify as personal
conveyance include, but are not limited to, the following:
1. The movement of a CMV in order to enhance the operational
readiness of a motor carrier. For example, bypassing available resting
locations in order to get closer to the next loading or unloading point
or other scheduled motor carrier destination.
2. After delivering a towed unit, and the towing unit no longer
meets the definition of a CMV, the driver returns to the point of
origin under the direction of the motor carrier to pick up another
towed unit.
3. Continuation of a CMV trip in interstate commerce in order to
fulfill a business purpose, including bobtailing or operating with an
empty trailer in order to retrieve another load or repositioning a CMV
(tractor or trailer) at the direction of the motor carrier.
4. Time spent driving a passenger-carrying CMV while passenger(s)
are on board. Off-duty drivers are not considered passengers when
traveling to a common destination of their own choice within the scope
of this guidance.
5. Time spent transporting a CMV to a facility to have vehicle
maintenance performed.
6. After being placed out of service for exceeding the maximum
periods permitted under part 395, time spent driving to a location to
obtain required rest, unless so directed by an enforcement officer at
the scene.
7. Time spent traveling to a motor carrier's terminal after loading
or unloading from a shipper or a receiver.
8. Time spent operating a motorcoach when luggage is stowed, the
passengers have disembarked and the driver has been directed to deliver
the luggage.
Issued on: May 31, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-12256 Filed 6-6-18; 8:45 am]
BILLING CODE 4910-EX-P