Hours of Service of Drivers of Commercial Motor Vehicles: Regulatory Guidance Concerning the Use of a Commercial Motor Vehicle for Personal Conveyance, 26377-26380 [2018-12256]
Download as PDF
<![CDATA[
Federal Register / Vol. 83, No. 110 / Thursday, June 7, 2018 / Rules and Regulations
agricultural products. It would be
inefficient to operate below capacity,
and one stop may not have enough
product to fill a truck.
CVSA applauded efforts to update
Agency guidance. It believes greater
clarity is needed regarding the loading
of agricultural commodities at multiple
sources. It states that the exception
should begin with the first source, and
that stopping after that initial source
should not restart the exception. In its
view, the exception and the 150 air-mile
radius should be applied from the
original source only.
FMCSA Response: Question 37 to
§ 395.1 has been added to clarify that
multiple pick-ups are permissible but
that the 150 air-mile radius continues to
be measured from the first pick-up point
regardless of the number of times
commodities are loaded or offloaded.
The Agency agrees with CVSA’s
position that the exception should begin
with the first source only. FMCSA notes
in the interest of safety that, under a
contrary interpretation that restarts the
150-mile exception with each new
source, a motor carrier could effectively
extend the exception indefinitely. The
Agency did not intend to imply that a
carrier would be limited to one ‘‘trip’’
per day. A trip terminates when all of
the commodity has been offloaded or
non-exempt freight or products are
added to the load. Thereafter, a new trip
under the agricultural exception could
be started the same day by loading a
shipment of agricultural commodities at
a different source. The 150 air-mile
radius would then be measured from
this new trip initiation point.
V. Regulatory Guidance
FMCSA issues Regulatory Guidance,
Questions 34, 35, 36, and 37 to 49 CFR
395.1 as follows:
PART 395—Hours of Service of Drivers
sradovich on DSK3GMQ082PROD with RULES
§ 395.1
Scope of the rules in this part
Question 34: Does the agricultural
commodity exception (§ 395.1(k)(1))
apply to drivers while driving unloaded
within 150 air-miles of the place where
an agricultural commodity will be
loaded, and to that portion of an
unloaded return trip which occurs
within a 150 air-mile radius of the place
where the agricultural commodity was
loaded?
Guidance: Yes, provided that the trip
does not involve transporting any nonagricultural cargo and the sole purpose
of the trip is to make a pick-up or
delivery of agricultural commodities, as
defined in § 395.2. In that case, driving
and on-duty time are not limited, nor do
other requirements of 49 CFR part 395
apply.
VerDate Sep<11>2014
15:41 Jun 06, 2018
Jkt 244001
Question 35: Does the agricultural
commodity exception (§ 395.1(k)(1))
apply if the destination for the
commodity is beyond the 150 air-mile
radius from the source?
Guidance: Yes, the exception applies
to transportation during the initial 150
air-miles from the source of the
commodity, regardless of the distance to
the final destination. Once a driver
operates beyond the 150 air-mile radius
of the source, 49 CFR part 395 applies.
The driver is then subject to the limits
under the hours-of-service rules and
must record those hours. Once the
hours-of-service rules begin to apply on
a given trip, they continue to apply for
the duration of that trip, until the driver
crosses back into the area within 150
air-miles of the original source of the
commodities.
Question 36: How is the ‘‘source’’ of
the agricultural commodities in
§ 395.1(k)(1) determined?
Guidance: The ‘‘source’’ of an
agricultural commodity, as the term is
used in § 395.1(k)(1), is the point at
which an agricultural commodity is
loaded onto an unladen commercial
motor vehicle. The location may be any
intermediate storage or handling
location away from the original source
at the farm or field, provided the
commodity retains its original form and
is not significantly changed by any
processing or packing. If a driver is
making multiple trips, the first trip, and
the 150 air-mile exception around that
source, terminate once all agricultural
products are offloaded at a delivery
point. A new source for a new trip may
then be identified, and the 150 air-mile
radius for the exception will be around
that source.
For example, a sales barn where cattle
are loaded may be treated as a ‘‘source,’’
in addition to the location at which they
were raised, since cattle remain
livestock. As another example, a place
where heads of lettuce are stored may
become a ‘‘source,’’ provided they retain
their original form. An elevator where
grain is collected and dried may be a
new ‘‘source,’’ again assuming that the
grain is not milled or similarly
processed at the elevator.
Question 37: How is the ‘‘source of
the agricultural commodities’’
determined if the driver makes multiple
pick-ups of the commodity en route to
the final destination?
Guidance: When a driver loads some
of an agricultural commodity at a
‘‘source’’ and then loads more of that
commodity at additional stops, the first
place where the commodity was loaded
is the measuring point for the 150 airmile radius.
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
26377
VI. Review Date for the 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), this
regulatory guidance will be posted on
FMCSA’s website, www.fmcsa.dot.gov.
It expires June 7, 2023. The Agency will
consider whether the guidance should
be withdrawn, reissued for another
period up to five years, or incorporated
into the safety regulations.
Issued on: May 31, 2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018–12250 Filed 6–6–18; 8:45 am]
BILLING CODE 4910–EX–P
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
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Regulatory guidance.
AGENCY:
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:
SUMMARY:
E:\FR\FM\07JNR1.SGM
07JNR1
26378
Federal Register / Vol. 83, No. 110 / Thursday, June 7, 2018 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES
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
VerDate Sep<11>2014
15:41 Jun 06, 2018
Jkt 244001
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
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
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 offduty 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.
E:\FR\FM\07JNR1.SGM
07JNR1
Federal Register / Vol. 83, No. 110 / Thursday, June 7, 2018 / Rules and Regulations
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 60/70hour limitations, the 34-hour restart
provisions, or any other on-duty status.
sradovich on DSK3GMQ082PROD with RULES
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.
VerDate Sep<11>2014
15:41 Jun 06, 2018
Jkt 244001
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 8hour 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 onduty 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
PO 00000
Frm 00033
Fmt 4700
Sfmt 4700
26379
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, https://
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.
E:\FR\FM\07JNR1.SGM
07JNR1
26380
Federal Register / Vol. 83, No. 110 / Thursday, June 7, 2018 / Rules and Regulations
sradovich on DSK3GMQ082PROD with RULES
FMCSA reminds motor carriers and
drivers that additional information
about ELDs is available at
www.fmcsa.dot.gov/eld.
FMCSA updates the guidance for
§ 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
VerDate Sep<11>2014
15:41 Jun 06, 2018
Jkt 244001
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 offduty 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 offduty. 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
PO 00000
Frm 00034
Fmt 4700
Sfmt 9990
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 passengercarrying 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
E:\FR\FM\07JNR1.SGM
07JNR1
]]>Agencies
[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 [email protected]. 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,
https://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
