Hours of Service of Drivers: Proposed Regulatory Guidance Concerning the Use of a Commercial Motor Vehicle for Yard Moves |
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James W. Deck
Federal Motor Carrier Safety Administration
4 January 2021
[Federal Register Volume 86, Number 1 (Monday, January 4, 2021)]
[Notices]
[Pages 179-181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29062]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2020-0118]
Hours of Service of Drivers: Proposed Regulatory Guidance
Concerning the Use of a Commercial Motor Vehicle for Yard Moves
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed regulatory guidance; request for comments.
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SUMMARY: FMCSA is proposing to revise the regulatory guidance
concerning recording time operating a commercial motor vehicle as a
``yard move.'' This guidance applies to all commercial motor vehicle
(CMV) drivers required to record their hours of service. The Agency
requests public comments on the proposed guidance, which includes
examples of properties that are and are not ``yards.'' Movements of
CMVs in ``yards'' would be considered ``yard moves'' and could be
recorded as on-duty not driving time rather than driving time.
DATES: Comments are due by February 3, 2021.
ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket ID FMCSA-2020-0118 using any of the
following methods:
Federal eRulemaking Portal: Go to www.regulations.gov.
Follow the on-line instructions for submitting comments.
Mail: Docket Operations; U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: Deliver comments to Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC, between 9:00 a.m. and 5:00 p.m., ET, Monday
through Friday, except Federal Holidays.
Fax: 1-202-493-2251.
Each submission must include the Agency name and the docket number
for this notice. Note that DOT posts all comments received without
change to www.regulations.gov, including any personal information
included in a comment. Please see the Privacy Act heading below.
Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time or visit Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE,
Washington, DC, between 9:00 a.m. and 5:00 p.m., ET, Monday through
Friday, except Federal holidays. To be sure someone is there to help
you, please call (202) 366-9317 or (202) 366-9826 before visiting
Docket Operations. Regulations.gov is available 24 hours each day, 365
days each year. If you would like acknowledgement that we received your
comments, please include a self-addressed stamped envelope or postcard
or print the acknowledgement page that appears after submitting
comments on-line.
Privacy Act: DOT solicits comments from the public to better inform
its guidance process. DOT posts these comments, without edit, including
any personal information the commenter provides, to
www.regulations.gov, as
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described in the system of records notice (DOT/ALL-14 FDMS), which can
be reviewed at www.dot.gov/privacy.
FOR FURTHER INFORMATION CONTACT: Mr. Bill Mahorney, Chief, Enforcement
Division, FMCSA, 202-493-0001, bill.mahorney@dot.gov. If you have
questions about viewing or submitting material to the docket, contact
Docket Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
FMCSA encourages you to participate by submitting comments and
related materials.
A. Submitting Comments
If you submit a comment, please include the docket number for this
notice (FMCSA-2020-0118), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by fax, mail, or hand delivery, but please use only one of
these means. FMCSA recommends that you include your name and a mailing
address, an email address, or a phone number in the body of your
document so the Agency can contact you if it has questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov and
put the docket number, ``FMCSA-2020-0118'' in the ``Keyword'' box, and
click ``Search.'' When the new screen appears, click on ``Comment
Now!'' button and type your comment into the text box in the following
screen. Choose whether you are submitting your comment as an individual
or on behalf of a third party and then submit. If you submit your
comments by mail or hand delivery, submit them in an unbound format, no
larger than 8\1/2\ by 11 inches, suitable for copying and electronic
filing. If you submit comments by mail and would like to know that they
reached the facility, please enclose a stamped, self-addressed postcard
or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this notice based on your comments.
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this notice contain
commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this notice, it is important that you clearly designate
the submitted comments as CBI. FMCSA will treat such marked submissions
as confidential under the Freedom of Information Act, and they will not
be placed in the public docket for this guidance publication. Please
mark each page of your submission that constitutes CBI as ``PROPIN'' to
indicate it contains proprietary information. Submissions containing
CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis
Division, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590. Any
comments FMCSA receives that are not specifically designated as CBI
will be placed in the public docket for this guidance publication.
FMCSA will consider all comments and material received during the
comment period and may make changes based on your comments.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov and
insert the docket number, ``FMCSA-2020-0118'' in the ``Keyword'' box
and click ``Search.'' Next, click ``Open Docket Folder'' button and
choose the document listed to review. If you do not have access to the
internet, you may view the docket online by visiting Docket Operations
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590, between 9:00 a.m. and 5:00 p.m.
ET, Monday through Friday, except Federal holidays. To be sure someone
is there to help you, please call (202) 366-9317 or (202) 366-9826
before visiting Docket Operations.
II. Background
The Federal Motor Carrier Safety Regulations require most drivers
of commercial motor vehicles (CMVs) to document their hours of service
(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). Drivers are required to
document their duty status on their RODS irrespective of the method
used to record the driver's HOS (i.e., whether paper logs or electronic
logging devices (ELDs)).
The minimum performance and design standards for ELDs in the
Agency's December 16, 2015, final rule, ``Electronic Logging Devices
and Hours of Service Supporting Documents'' (80 FR 78292), require
manufacturers to include two special driving categories: Authorized
personal use (``personal conveyance'') and ``yard moves.'' These
categories may be used by drivers at the motor carrier's discretion (49
CFR 395.28). FMCSA stated in its Supplemental Notice of Proposed
Rulemaking that the intent of the ``yard move'' category was to capture
time ``where the CMV may be in motion but a driver is not necessarily
in a `driving' duty status'' (79 FR 17656, 17668, March 28, 2014). Some
commenters asked that the term ``yard move'' be defined. Commenters
generally viewed ``yard moves'' as an on-duty not driving activity
occurring on private property.
The Agency declined to define the term ``yard move'' in its final
rule, noting that ``yard moves'' relate broadly to the HOS rules, not
just to CMV operations using ELDs. The final rule, however, provides
that ELDs will record ``yard moves'' as on-duty not driving time (49
CFR part 395, subpart B, appendix A, section 4.4.1.1(b)).
FMCSA published revised regulatory guidance concerning operating a
CMV as a ``personal conveyance'' on June 7, 2018 (83 FR 26377). On
February 28, 2020, FMCSA updated its guidance on ``yard moves'' in the
U.S. Department of Transportation's guidance portal (85 FR 12663, March
3, 2020).
The Federal Highway Administration, FMCSA's predecessor agency,
issued guidance on ``yard moves'' in a compilation of regulatory
guidance published on April 4, 1997 (49 CFR 395.2, Question 9, 62 FR
16370, 16422). The 1997 guidance stated that a driver who jockeys CMVs
in the yard (private property) on weekends should record that time as
on-duty (driving) time. The 1997 guidance is no longer in effect.
FMCSA's revised 2020 guidance provides that the time jockeying CMVs in
the yard is not driving time. The driver should record that time as on-
duty (not driving) time.
The 2020 updated guidance is consistent with the principle in the
ELD rule that time spent performing ``yard moves'' should be recorded
as on-duty not driving time. Because ``yard moves'' occur on private
property within the confines of a yard and not on a public road, this
time does not constitute ``driving time'' within the meaning of 49 CFR
395.2. The updated guidance is available on the Agency's website in the
guidance portal at https://www.fmcsa.dot.gov/guidance as FMCSA-HOS-
395.2-Q09 and reads as follows:
Question 9: A driver drives on streets and highways during the week
and jockeys commercial motor vehicles in
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the yard (private property) on weekends. How is the yard time to be
recorded?
Guidance: On-duty (not driving).
FMCSA also published guidance in the guidance portal on February
28, 2020, that distinguishes between movements of the CMV that may be
considered as off-duty ``personal conveyance'' and movements that are
on-duty ``yard moves.'' This guidance is available on the Agency's
website in the guidance portal at https://www.fmcsa.dot.gov/hours-service/elds/when-can-movement-cmv-during-duty-period-be-considered-personal-conveyance and reads as follows:
FAQ 12: When can a movement of a CMV during an off-duty period be
considered personal conveyance?
Answer: A move may be considered as personal conveyance if the
driver is off-duty and the movement is not for the motor carrier,
shipper or receiver's commercial benefit. Examples include moving a CMV
from one parking space to another at a shipper or port, or driving to a
truck stop, rest area or any other location. In these situations, the
CMV movement is made in the off-duty period. However, the CMV should be
moved no farther than the nearest reasonable and safe location to
complete the rest period.
An on-duty yard move, such as moving the vehicle a short distance
while waiting to load, would not qualify as personal conveyance.
III. Proposed Guidance Language
FMCSA proposes to clarify when a driver may record time performing
``yard moves'' as on-duty not driving time by providing examples of
properties that qualify as yards. Therefore, the movement of a CMV on
these properties would qualify as a ``yard move'' and be recorded as
on-duty not driving time.
FMCSA proposes to replace Question 9 to 49 CFR 395.2 at https://www.fmcsa.dot.gov/regulations/hours-service/ss3952-definitions with the
following revised Question 9 and seeks comments on this proposed
guidance.
This guidance, if finalized, lacks the force and effect of law and
is not meant to bind the public in any way. This guidance document is
intended only to provide clarity to the public regarding the Agency's
interpretation of its existing regulations.
Question 9: Under what circumstances may a driver classify the
operation of a commercial motor vehicle (CMV) as a yard move and record
it as on-duty not driving time?
(a) Guidance: A driver may record time operating a CMV for yard
moves as on-duty not driving under 49 CFR 395.8(b) only if the movement
of the CMV occurs in a confined area on private property (or intermodal
facility or briefly on public roads, as described below). Examples of
properties that may qualify as yards include, but are not limited to:
1. An intermodal yard or port facility.
2. A motor carrier's place of business.
3. A shipper's privately-owned parking lot.
4. A public road, but only if and while public access to the road
is restricted through traffic control measures such as lights, gates,
flaggers or other means. For example, if a driver must operate on a
public road briefly to reach different parts of a private property, the
movement may be considered a yard move if public access is restricted
during the move.
(b) Examples of properties that do not qualify as yards, include,
but are not limited to:
1. A public road without the traffic control measures in paragraph
(a)(4) above.
2. Public rest areas.
IV. Expiration Date of the Proposed Regulatory Guidance
In accordance with section 5203(a)(2)(A) and (a)(3) of the Fixing
America's Surface Transportation (FAST) Act, Public Law 114-94, 129
Stat. 1312, 1535 (Dec. 4, 2015), 49 CFR part 5, subpart C, and
Executive Order 13891, the proposed regulatory guidance will be posted
on FMCSA's website in the guidance portal, https://www.fmcsa.dot.gov/guidance, if finalized. It would be reviewed by the Agency no later
than 5 years after it is finalized. The Agency would consider at that
time whether the guidance should be withdrawn, reissued for another
period up to 5 years, or incorporated into the safety regulations.
V. Request for Comments
Refer to the ADDRESSES section above for instructions on submitting
comments to the public docket concerning this regulatory guidance.
FMCSA will consider comments received by the closing date of the
comment period to determine whether any further clarification of these
regulatory provisions is necessary. In addition to general comments
concerning the guidance, the Agency requests responses to the following
questions:
1. Would defining ``yard moves'' in the Agency's regulations
provide necessary clarification and therefore benefit carriers and
drivers?
2. Are there other properties or situations where drivers may be in
a ``yard move'' status that should be included as examples in this
guidance?
3. Would adding examples of ``yard moves'' be beneficial for this
guidance (e.g., moving a CMV for maintenance)? If so, please provide
examples for consideration.
4. How should ``yard'' be defined for the purposes of this
guidance?
James W. Deck,
Deputy Administrator.
[FR Doc. 2020-29062 Filed 12-31-20; 8:45 am]
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