83_FR_26487 83 FR 26377 - Hours of Service of Drivers of Commercial Motor Vehicles: Regulatory Guidance Concerning the Use of a Commercial Motor Vehicle for Personal Conveyance

83 FR 26377 - Hours of Service of Drivers of Commercial Motor Vehicles: Regulatory Guidance Concerning the Use of a Commercial Motor Vehicle for Personal Conveyance

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration

Federal Register Volume 83, Issue 110 (June 7, 2018)

Page Range26377-26380
FR Document2018-12256

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 Over 380 comments were received in response to the draft guidance.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.

Federal Register, Volume 83 Issue 110 (Thursday, June 7, 2018) 
[Federal Register Volume 83, Number 110 (Thursday, June 7, 2018)]
[Rules and Regulations]
[Pages 26377-26380]
From the Federal Register Online  [www.thefederalregister.org]
[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 Over 380 comments were received in response to the draft 
guidance.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 [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, 
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

Federal Register / Vol. 83, No. 110 / Thursday, June 7, 2018 / Rules and Regulations 26377 agricultural products. It would be Question 35: Does the agricultural VI. Review Date for the Regulatory inefficient to operate below capacity, commodity exception (§ 395.1(k)(1)) Guidance and one stop may not have enough apply if the destination for the In accordance with section product to fill a truck. commodity is beyond the 150 air-mile 5203(a)(2)(A) and (a)(3) of the Fixing CVSA applauded efforts to update radius from the source? America’s Surface Transportation Agency guidance. It believes greater Guidance: Yes, the exception applies (FAST) Act, Public Law 114–94, 129 clarity is needed regarding the loading to transportation during the initial 150 Stat. 1312, 1535 (Dec. 4, 2015), this of agricultural commodities at multiple air-miles from the source of the regulatory guidance will be posted on sources. It states that the exception commodity, regardless of the distance to should begin with the first source, and FMCSA’s website, www.fmcsa.dot.gov. the final destination. Once a driver It expires June 7, 2023. The Agency will that stopping after that initial source operates beyond the 150 air-mile radius should not restart the exception. In its consider whether the guidance should of the source, 49 CFR part 395 applies. be withdrawn, reissued for another view, the exception and the 150 air-mile The driver is then subject to the limits radius should be applied from the period up to five years, or incorporated under the hours-of-service rules and into the safety regulations. original source only. must record those hours. Once the FMCSA Response: Question 37 to hours-of-service rules begin to apply on Issued on: May 31, 2018. § 395.1 has been added to clarify that a given trip, they continue to apply for Raymond P. Martinez, multiple pick-ups are permissible but the duration of that trip, until the driver Administrator. that the 150 air-mile radius continues to crosses back into the area within 150 [FR Doc. 2018–12250 Filed 6–6–18; 8:45 am] be measured from the first pick-up point air-miles of the original source of the BILLING CODE 4910–EX–P regardless of the number of times commodities. commodities are loaded or offloaded. Question 36: How is the ‘‘source’’ of The Agency agrees with CVSA’s the agricultural commodities in DEPARTMENT OF TRANSPORTATION position that the exception should begin § 395.1(k)(1) determined? with the first source only. FMCSA notes Federal Motor Carrier Safety Guidance: The ‘‘source’’ of an in the interest of safety that, under a Administration agricultural commodity, as the term is contrary interpretation that restarts the used in § 395.1(k)(1), is the point at 150-mile exception with each new 49 CFR Part 395 which an agricultural commodity is source, a motor carrier could effectively loaded onto an unladen commercial [Docket No. FMCSA–2017–0108] extend the exception indefinitely. The motor vehicle. The location may be any Agency did not intend to imply that a intermediate storage or handling Hours of Service of Drivers of carrier would be limited to one ‘‘trip’’ location away from the original source Commercial Motor Vehicles: per day. A trip terminates when all of at the farm or field, provided the Regulatory Guidance Concerning the the commodity has been offloaded or non-exempt freight or products are commodity retains its original form and Use of a Commercial Motor Vehicle for added to the load. Thereafter, a new trip is not significantly changed by any Personal Conveyance under the agricultural exception could processing or packing. If a driver is making multiple trips, the first trip, and AGENCY: Federal Motor Carrier Safety be started the same day by loading a Administration (FMCSA), DOT. shipment of agricultural commodities at the 150 air-mile exception around that source, terminate once all agricultural ACTION: Regulatory guidance. a different source. The 150 air-mile radius would then be measured from products are offloaded at a delivery SUMMARY: On December 19, 2017, this new trip initiation point. point. A new source for a new trip may FMCSA proposed revisions to the then be identified, and the 150 air-mile V. Regulatory Guidance regulatory guidance concerning driving radius for the exception will be around a commercial motor vehicle (CMV) for FMCSA issues Regulatory Guidance, that source. personal use while off-duty, referred to Questions 34, 35, 36, and 37 to 49 CFR For example, a sales barn where cattle as ‘‘personal conveyance.’’ Over 380 395.1 as follows: are loaded may be treated as a ‘‘source,’’ comments were received in response to in addition to the location at which they PART 395—Hours of Service of Drivers the draft guidance. This document were raised, since cattle remain provides revised guidance and § 395.1 Scope of the rules in this part livestock. As another example, a place addresses issues raised by commenters. Question 34: Does the agricultural where heads of lettuce are stored may This guidance applies to all CMV commodity exception (§ 395.1(k)(1)) become a ‘‘source,’’ provided they retain drivers required to record their hours of apply to drivers while driving unloaded their original form. An elevator where service (HOS) who are permitted by within 150 air-miles of the place where grain is collected and dried may be a their carrier to use the vehicle for an agricultural commodity will be new ‘‘source,’’ again assuming that the personal use. loaded, and to that portion of an grain is not milled or similarly processed at the elevator. DATES: This guidance is applicable on unloaded return trip which occurs June 7, 2018 and expires June 7, 2023. within a 150 air-mile radius of the place Question 37: How is the ‘‘source of where the agricultural commodity was the agricultural commodities’’ FOR FURTHER INFORMATION CONTACT: For loaded? determined if the driver makes multiple information concerning this notice Guidance: Yes, provided that the trip pick-ups of the commodity en route to contact Ms. LaTonya Mimms, does not involve transporting any non- the final destination? Transportation Specialist, Enforcement sradovich on DSK3GMQ082PROD with RULES agricultural cargo and the sole purpose Guidance: When a driver loads some Division, FMCSA. Ms. Mimms may be of the trip is to make a pick-up or of an agricultural commodity at a reached at 202–366–0991 and by email delivery of agricultural commodities, as ‘‘source’’ and then loads more of that at LaTonya.Mimms@dot.gov. If you have defined in § 395.2. In that case, driving commodity at additional stops, the first questions on viewing or submitting and on-duty time are not limited, nor do place where the commodity was loaded material to the docket, contact Docket other requirements of 49 CFR part 395 is the measuring point for the 150 air- Services, telephone (202) 366–9826. apply. mile radius. SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 15:41 Jun 06, 2018 Jkt 244001 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 E:\FR\FM\07JNR1.SGM 07JNR1

26378 Federal Register / Vol. 83, No. 110 / Thursday, June 7, 2018 / Rules and Regulations Background comments. (82 FR 60269) In changing personal conveyance should remain The Federal Motor Carrier Safety the guidance, the Agency focused on the with the company. Regulations (FMCSRs) require drivers to reason the driver is operating a CMV FMCSA Response document their HOS on records of duty while off-duty, without regard to whether the CMV is laden. The purpose of the guidance is to status (RODS), identifying one of four provide additional clarity on the use of This notice clarifies issues raised such duty status options: (1) On-duty not personal conveyance as a type of off- as using personal conveyance to leave a driving, (2) driving, (3) sleeper berth, duty status. The guidance provides shipper or receiver and travel to a safe and (4) off-duty (49 CFR 395.8). The use additional details to determine if a location for rest, the fact that the use of of personal conveyance is a tool used to movement of the CMV is an appropriate personal conveyance does not impact account for the movement of a CMV off-duty use. The new guidance will on-duty time, and provides additional while the driver is off-duty. improve uniformity for the industry and scenarios in the guidance as to when the Motor carriers are responsible for the enforcement communities. The use of personal conveyance is allowable, ensuring that drivers are not operating clarity provided in this notice will lead and, includes passenger carrier specific while ill or fatigued. However, motor to greater uniformity in the enforcement scenarios. carriers, at their discretion, may of the HOS rules. authorize their drivers to use a CMV Comments on the Proposed Guidance In response to concerns that this while off-duty for personal conveyance. FMCSA received over 380 comments guidance will somehow increase fatigue, When this occurs, drivers are required on the proposed guidance. Over 300 of FMCSA notes that there are no changes to document such use as off-duty on the comments were from individuals, to the HOS rules in this document. In their RODS, irrespective of the method with approximately 240 representing fact, because the current requirement to used to record the driver’s HOS (e.g., drivers of property-carrying CMVs. The record HOS using ELDs makes the time paper logs, automatic on-board remaining comments came from spent driving a CMV as personal recording device, electronic logging companies, associations, safety conveyance transparent to the motor devices (ELDs), etc.) organizations, and two States. carrier and enforcement, the Agency The minimum performance and Companies included Cowboy Up believes that consistency and uniformity design standards for ELDs in the Transport, Boyle Transportation, Crete in the application of the guidance by Agency’s final rule on ‘‘Implementation Carrier, C.H. Robinson, and Schneider both the industry and enforcement will of Electronic Logging Devices and Hours National. The associations included the be increased. FMCSA recognizes that of Service Supporting Documents’’ (ELD American Bus Association, the much of the pressure on drivers rule) (80 FR 78292, December 15, 2015) American Trucking Associations, the referenced in the comments results from include the automatic recording of data Owner Operator Independent Drivers delays during the loading or unloading related to the off-duty movement and Association, the Truckload Carriers process causing a driver to run out of location of the CMV. As part of the ELD Association, and Western States hours. This guidance will have a rule, ELD manufacturers are required to Trucking Association. The safety positive impact on the concerns include a special driving category for organizations included the Commercial expressed by the Truck Safety Coalition, personal conveyance. This may be used Vehicle Safety Alliance, Advocates for Road Safe America, and AHAS by by drivers at the motor carriers’ Highway and Auto Safety (AHAS), the giving drivers the flexibility to locate discretion. Truck Safety Coalition and Road Safe and obtain adequate rest as this would The previous guidance on personal America. be off-duty time in personal conveyance conveyance (49 CFR 395.8, Question 26) The majority of commenters status. In addition, as described above, was issued by the Federal Highway supported expanding the definition to this guidance, used in conjunction with Administration (FHWA), FMCSA’s include laden vehicles. However, the the ELD rule will lead to greater predecessor agency, in a memorandum Truck Safety Coalition and Road Safe uniformity in enforcement. dated November 18, 1996, and later America opposed this change, According to the FMCSA’s records in published in a compilation of guidance expressing concern that FMCSA was the Motor Carrier Management (62 FR 16370, 16426, April 4, 1997). The proposing to replace an objective Information System, there are guidance reiterated the basic principle standard with a subjective standard and approximately 2.3 million straight that a driver in off-duty status must be that it would be difficult for law trucks that operate in interstate relieved from work and all enforcement to assess a driver’s intent to commerce. Under the previous responsibility for performing work. It determine if the CMV is being used for guidance, the drivers of many straight highlighted the use of the CMV as a personal conveyance. In addition, the trucks were not permitted to operate in personal conveyance in traveling to and Truck Safety Coalition and Road Safe an off-duty status for personal from the place of employment (e.g., the America noted studies conducted by the conveyance because they were laden. normal work reporting location). The FMCSA, National Institute of The revised guidance allows these 1997 guidance included discussion of Occupational Safety and Health, Federal vehicles, under the circumstances CMVs used to travel short distances Highway Administration and National described in the guidance to be driven from a driver’s en route lodgings to Highway Traffic Safety Administration, as a personal conveyance. restaurants in the vicinity of such relating to the incidence of fatigue Other recurring issues or questions lodgings. In addition, the 1997 guidance reported by long haul truck drivers and raised are discussed individually below. explicitly excluded the use of laden impact of pressures from the shipping Some commenters provided vehicles as personal conveyance and the community on fatigue. suggestions or requests that are outside sradovich on DSK3GMQ082PROD with RULES operation of the CMV as personal AHAS also opposed this change for of the scope of guidance. Those conveyance by drivers who have been similar reasons and questioned the included modifying the HOS regulations placed out of service for HOS violations. disparate impact on drivers of single so that there is a definition of personal The guidance has remained unchanged unit trucks that FMCSA noted in the conveyance consistent with the since 1997. December 2017 notice. Canadian HOS regulation and On December 19, 2017. FMCSA Also, several motor carriers reiterated establishing mileage or time limits for issued revised guidance and requested that the decision to allow the use of the use of personal conveyance. VerDate Sep<11>2014 15:41 Jun 06, 2018 Jkt 244001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\07JNR1.SGM 07JNR1

Federal Register / Vol. 83, No. 110 / Thursday, June 7, 2018 / Rules and Regulations 26379 In addition, some motor carriers and FMCSA also notes that the Coercion the motor carrier. For example, if the drivers questioned who would be liable Rule is intended to protect drivers from movement places the load closer to the in a crash when the driver is operating motor carriers, shippers, receivers, or destination, it may not be considered in the personal conveyance mode. transportation intermediaries who personal conveyance, except under FMCSA notes that this issue is outside threaten to withhold work from, take circumstances outlined specifically in of its authority and would be employment action against, or punish a the examples provided in the guidance. determined based on the contract or driver for refusing to operate in Additionally, if a driver who is under agreement between the motor carrier or violation the FMCSRs, Hazardous dispatch stops at a location such as his/ owner of the commercial motor vehicle Materials Regulations, and the Federal her home, because the driver’s home is and the liability insurance provider as Motor Carrier Commercial Regulations. closer to the next destination or pick up well as principles of State tort law. Crete Carrier’s reference to the coercion location, then this would not be rule in the context of having to leave a personal conveyance. Clarification of Impact to On-Duty shipper’s/receiver’s property is not Hours Application of Guidance to Passenger accurate, provided that the shipper or Numerous commenters asked for Carrying Vehicles receiver does not threaten to retaliate or clarification on how the use of personal take adverse action against the driver in The American Bus Association (ABA) conveyance impacts on-duty hours. violation of the rule. stated that the proposed guidance did FMCSA Response not mention motorcoaches. ABA and Movement Required by Safety Officials others requested examples that Personal conveyance is an off-duty Jeff Muzik asked about the impacts to specifically reference motorcoach status. Therefore, there are no impacts the 10-hour break if a safety official operations. The United Motorcoach to the 11- or 14-hour limitations for requires the driver to move the CMV. Association provided examples of truck drivers, the 10- or 15-hour personal conveyance, including use of a limitations for bus drivers, the 60/70- FMCSA Response motorcoach to reach restaurants or hour limitations, the 34-hour restart If a Federal, State or local law pursue personal activities after dropping provisions, or any other on-duty status. enforcement official requires a driver to off passengers at a hotel or when a Leaving a Shipper or Receiver to go to relocate the CMV during the 10-hour driver is using a motorcoach to transport a Safe Place for Required Rest break period for truck drivers or the 8- drivers who are off-duty to pursue hour break period for bus drivers, personal activities. Crete Carrier, Vilma Kuprescenko, personal conveyance may be used to Desiree Wood, Paul Tyler and many In addition, Michael Letlow requested document the movement. Again, as this confirmation that motorcoaches with others suggested that a driver should be is off-duty time, this does not require a allowed to identify movement from a luggage only are not considered laden. restart of the rest period. However, the receiver or shipper, after exhausting his CMV must be moved no farther than the FMCSA Response or her HOS, as personal conveyance, if nearest reasonable and safe area to that movement is to allow the driver to Examples have been added to the complete the rest period. arrive at a safe location to obtain the final guidance that make clear that required rest. Crete Carrier believes that Returning to the Last On-Duty Location drivers of passenger-carrying operations not allowing the driver to identify such Schneider National noted that the may also use their vehicles for personal a movement as personal conveyance draft scenarios in section (a) of the conveyance in appropriate would be contrary to the coercion rule guidance to Question 26 implied that circumstances. In addition, FMCSA (49 CFR 390.6), as the shipper is forcing the driver must return to the last on- reminds commenters that this guidance a driver to leave the premises even after duty location but that other scenarios in now applies regardless of whether the exhausting his or her hours of service the same section indicate otherwise. vehicle is laden. However, the limits. Schneider National also asked for Allen England and Billy Barnes requirement for the driver to be off-duty clarification on this issue. Enterprises expressed disagreement still exists. Therefore, if a driver is with any requirement to return to the taking luggage to a hotel and is on-duty, FMCSA Response personal conveyance would not apply. last on-duty location. The movement from a shipper or However, if the driver is off-duty and receiver to the nearest safe resting area FMCSA Response using a motorcoach with luggage on may be identified as personal The driver is not required to return to board to get lunch, personal conveyance conveyance, regardless of whether the the previous on-duty location. A driver would be appropriate. driver exhausted his or her HOS, as long may resume on-duty status immediately New Guidance Language as the CMV is being moved solely to after an off-duty status regardless of the enable the driver to obtain the required location of the CMV. FMCSA replaces Question 26 as noted rest at a safe location. The Agency below. In accordance with the recognizes that the driver may not be Enhancing Operational Readiness requirement in Section 5203(a)(2)(A) of aware of the direction of the next Danny Schnautz, Brian Ausloos, and the Fixing America’s Surface dispatch and that in some instances the Doug Pope questioned FMCSA’s Transportation (FAST) Act, Public Law nearest safe resting location may be in description of ‘‘enhancing operational 114–94, 129 Stat. 1312, 1535, Dec. 4, the direction of that dispatch. If the readiness.’’ Other carriers also provided 2015, the guidance above will be posted driver proceeds to the nearest examples of movements that they on FMCSA’s website, http:// sradovich on DSK3GMQ082PROD with RULES reasonable and safe location and takes believed are personal conveyance but www.fmcsa.dot.gov and expires no later the required rest, this would qualify as enhance operational readiness. than June 7, 2023. The Agency will then personal conveyance. FMCSA consider whether the guidance should recommends that the driver annotate on FMCSA Response be withdrawn, reissued for another the log if he/she cannot park at the Enhancing operational readiness period of up to five years, or nearest location and must proceed to includes on-duty movement of a CMV incorporated into the safety regulations another location. that provides a commercial benefit to at that time. VerDate Sep<11>2014 15:41 Jun 06, 2018 Jkt 244001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\07JNR1.SGM 07JNR1

26380 Federal Register / Vol. 83, No. 110 / Thursday, June 7, 2018 / Rules and Regulations FMCSA reminds motor carriers and sites and his or her residence. In these available resting locations in order to get drivers that additional information scenarios, the commuting distance closer to the next loading or unloading about ELDs is available at combined with the release from work point or other scheduled motor carrier www.fmcsa.dot.gov/eld. and start to work times must allow the destination. FMCSA updates the guidance for driver enough time to obtain the 2. After delivering a towed unit, and § 395.8 Driver’s Record of Duty Status to required restorative rest as to ensure the the towing unit no longer meets the read as follows: driver is not fatigued. definition of a CMV, the driver returns Question 26: Under what 3. Time spent traveling to a nearby, to the point of origin under the direction circumstances may a driver operate a reasonable, safe location to obtain of the motor carrier to pick up another commercial motor vehicle (CMV) as a required rest after loading or unloading. towed unit. personal conveyance? The time driving under personal 3. Continuation of a CMV trip in Guidance: A driver may record time conveyance must allow the driver interstate commerce in order to fulfill a operating a CMV for personal adequate time to obtain the required rest business purpose, including bobtailing conveyance (i.e., for personal use or in accordance with minimum off-duty or operating with an empty trailer in reasons) as off-duty only when the periods under 49 CFR 395.3(a)(1) order to retrieve another load or driver is relieved from work and all (property-carrying vehicles) or 395.5(a) repositioning a CMV (tractor or trailer) responsibility for performing work by (passenger-carrying vehicles) before at the direction of the motor carrier. the motor carrier. The CMV may be used returning to on-duty driving, and the 4. Time spent driving a passenger- for personal conveyance even if it is resting location must be the first such carrying CMV while passenger(s) are on laden, since the load is not being location reasonably available. board. Off-duty drivers are not transported for the commercial benefit 4. Moving a CMV at the request of a considered passengers when traveling to of the carrier at that time. Personal safety official during the driver’s off- a common destination of their own conveyance does not reduce a driver’s duty time choice within the scope of this or motor carrier’s responsibility to 5. Time spent traveling in a guidance. operate a CMV safely. Motor carriers can motorcoach without passengers to en 5. Time spent transporting a CMV to establish personal conveyance route lodging (such as motel or truck a facility to have vehicle maintenance limitations either within the scope of, or stop), or to restaurants and performed. more restrictive than, this guidance, entertainment facilities and back to the 6. After being placed out of service for such as banning use of a CMV for lodging. In this scenario, the driver of exceeding the maximum periods personal conveyance purposes, the motorcoach can claim personal permitted under part 395, time spent imposing a distance limitation on conveyance provided the driver is off- driving to a location to obtain required personal conveyance, or prohibiting duty. Other off-duty drivers may be on rest, unless so directed by an personal conveyance while the CMV is board the vehicle, and are not enforcement officer at the scene. laden. considered passengers. 7. Time spent traveling to a motor (a) Examples of appropriate uses of a 6. Time spent transporting personal carrier’s terminal after loading or CMV while off-duty for personal property while off-duty. unloading from a shipper or a receiver. conveyance include, but are not limited 7. Authorized use of a CMV to travel 8. Time spent operating a motorcoach to: home after working at an offsite when luggage is stowed, the passengers 1. Time spent traveling from a driver’s location. have disembarked and the driver has en route lodging (such as a motel or (b) Examples of uses of a CMV that been directed to deliver the luggage. truck stop) to restaurants and would not qualify as personal entertainment facilities. conveyance include, but are not limited Issued on: May 31, 2018. 2. Commuting between the driver’s to, the following: Raymond P. Martinez, terminal and his or her residence, 1. The movement of a CMV in order Administrator. between trailer-drop lots and the to enhance the operational readiness of [FR Doc. 2018–12256 Filed 6–6–18; 8:45 am] driver’s residence, and between work a motor carrier. For example, bypassing BILLING CODE 4910–EX–P sradovich on DSK3GMQ082PROD with RULES VerDate Sep<11>2014 15:41 Jun 06, 2018 Jkt 244001 PO 00000 Frm 00034 Fmt 4700 Sfmt 9990 E:\FR\FM\07JNR1.SGM 07JNR1


Document Created: 2018-06-07 00:50:13
Document Modified: 2018-06-07 00:50:13
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionRegulatory guidance.
DatesThis guidance is applicable on June 7, 2018 and expires June 7, 2023.
ContactFor 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.
FR Citation83 FR 26377 
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