§395.1 Scope of the Rules in This Part

Editor’s Note:  The FMCSA is currently updating and revising its regulatory guidance to Part 395 of the Federal Motor Carrier Safety Regulations (FMCSRs) to conform to the provisions of the new hours-of-service regulations, and to provide additional guidance concerning the application of the new regulations.  All prior interpretations and regulatory guidance relating to Part 395 of the FMCSRs, as well as FMCSA and FHWA memoranda and letters concerning Part 395, may no longer be relied upon as authoritative to the extent they are inconsistent with the final rule published April 28, 2003 and the Technical Amendments published September 30, 2003.  All interpretations and guidance for Parts other than Part 395 remain valid.

Question 1: What hours-of-service regulations apply to drivers operating between the United States and Mexico or between the United States and Canada?

Guidance: When operating CMVs, as defined in §390.5, in the United States, all hours-of-service provisions apply to all drivers of CMVs, regardless of nationality, point of origin, or where the driving time or on-duty time was accrued.

Question 2: If a driver invokes the exception for adverse driving conditions, does a supervisor need to sign the driver's record of duty status when he/she arrives at the destination?

Guidance: No.

Question 3: May a driver use the adverse driving conditions exception if he/she has accumulated driving time and on-duty (not driving) time, that would put the driver over 15 hours or over 70 hours in 8 consecutive days?

Guidance: No. The adverse driving conditions exception applies only to the 10-hour rule.

Question 4: Are there allowances made in the FMCSRs for delays caused by loading and unloading?

Guidance: No. Although the regulations do make some allowances for unforeseen contingencies such as in §395.1(b), adverse driving conditions, and §395.1(b)(2), emergency conditions, loading and unloading delays are not covered by these sections.

Question 5: How may a driver utilize the adverse driving conditions exception or the emergency conditions exception as found in §395.1(b), to preclude an hours of service violation?

Guidance: An absolute prerequisite for any such claim must be that the trip involved is one which could normally and reasonably have been completed without a violation and that the unforeseen event occurred after the driver began the trip.

Drivers who are dispatched after the motor carrier has been notified or should have known of adverse driving conditions are not eligible for the two hours additional driving time provided for under §395.1(b), adverse driving conditions. The term "in any emergency" shall not be construed as encompassing such situations as a driver's desire to get home, shippers' demands, market declines, shortage of drivers, or mechanical failures.

Question 6: What does "servicing" of the field operations of the natural gas and oil industry cover?

Guidance: Servicing of field operations, as described by the ICC report issued with this exemption, covers those services generally performed by specialized companies supporting the petroleum drilling and producing industry, "including testing, mudfilling, cementing, hydraulic fracturing, voltage, logging, and resistivity measurements, and cleaning of industrial equipment, as the particular requirement might arise in the normal course of well digging or maintenance operations * * *" (89 M.C.C. 19, at 28, March 29, 1962). Water servicing companies, whose operations are exclusive to servicing the natural gas and oil industry, are also covered by the provisions of §395.1(d).

§395.1(d) applies only to situations involving drilling or the operation of wells. It does not apply to exploration activities.

Question 7: What is considered "oilfield equipment" for the purposes of 395.1(d)(1)?

Guidance: Oilfield equipment is not specifically defined in this section. However, its meaning is broader than the "specially constructed" commercial motor vehicles referred to in §395.1(d)(2), and may encompass a spectrum of equipment ranging from an entire vehicle to hand-held devices.

Question 8: What kinds of oilfield equipment may drivers operate while taking advantage of the special rule in §395.1(d)(2)?

Guidance: The special rule in §395.1(d)(2) applies only to drivers transporting the equipment identified by the former Interstate Commerce Commission (now part of the Federal Highway Administration) in a 1962 report to accompany the oilfield rule. The report indicated the specialized equipment normally consists of heavy machinery permanently mounted on commercial motor vehicles, designed to fill a specific need.

Question 9: Are drivers required to be dedicated permanently to the oilfield industry, or must they exclusively transport oilfield equipment or service the field operations of the industry only for each eight-day (or shorter) period ended by an off-duty period of 24 or more consecutive hours?

Guidance: A driver must exclusively transport oilfield equipment or service the field operations of the industry for each eight-day (or shorter) period before his/her off-duty period of 24 or more consecutive hours. However, he/she must be in full compliance with the requirements of 395.3(b) before driving other commercial motor vehicles not used to service the field operations of the natural gas or oil industry.

Question 10: A driver is used exclusively to transport materials (such as sand or water) which are used exclusively to service the field operations of the natural gas or oil industry. Occasionally, the driver has leftover materials that must be transported back to a motor carrier facility or service depot. Would such a return trip be covered by §395.1(d)(1)?

Guidance: Yes. Transporting excess materials back to a facility from the well site is part of the servicing operations. However, such servicing operations are limited to transportation back and forth between the service depot or motor carrier facility and the field site. Transportation of materials from one depot to another, from a railhead to a depot, or from a motor carrier terminal to a depot, is not considered to be in direct support of field operations.

Question 11: May specially trained drivers of specially constructed oil well servicing vehicles cumulate the 8 consecutive hours off duty required by §395.3 by combining off-duty time or sleeper-berth time at a natural gas or oil well site with off-duty time or sleeper-berth time while en route to or from the well?

Guidance: These drivers may cumulate the required 8 consecutive hours off duty by combining two separate periods, each at least 2 hours long, of off-duty time or sleeper-berth time at a natural gas or oil well location with sleeper-berth time in a CMV while en route to or from such a location. They may also cumulate the required 8 consecutive hours off duty by combining an off-duty period of at least 2 hours at a well site with: (1) Another off-duty period at the well site that, when added to the first such period, equals at least 8 hours, or (2) a period in a sleeper-berth, either at or away from the well site, or in other sleeping accommodations at the well site, that, when added to the first off-duty period, equals at least 8 hours.

However, such drivers may not combine a period of less than 8 hours off duty away from a natural gas or oil well site with another period of less than 8 hours off duty at such well sites. The special provisions for drivers at well sites are strictly limited to those locations.

The following table indicates what types of off-site and on-site time periods may be combined.

	On Site Off Duty Time	On Site Sleeper Berth	On Site Other Sleeping Accommodation
Away from Site Off Duty Time
Away from Site Sleeper Berth Time	X Combination must be 8 or more hours.	X Combination must be 8 or more hours.	X Combination must be 8 or more hours.
Away from Site Other Sleeping Accommodation

Question 12: What constitutes the 100-air-mile radius exemption?

Guidance: The term "air mile" is internationally defined as a "nautical mile" which is equivalent to 6,076 feet or 1,852 meters. Thus, the 100 air miles are equivalent to 115.08 statute miles or 185.2 kilometers.

Question 13: What documentation must a driver claiming the 100-air- mile radius exemption [§395.1(e)] have in his/her possession?

Guidance: None.

Question 14: Must a motor carrier retain 100-air-mile driver time records at its principal place of business?

Guidance: No. However, upon request by an authorized representative of the FHWA or State official, the records must be produced within a reasonable period of time (2 working days) at the location where the review takes place.

Question 15: May an operation that changes its normal work- reporting location on an intermittent basis utilize the 100-air-mile radius exemption?

Guidance: Yes. However, when the motor carrier changes the normal reporting location to a new reporting location, that trip (from the old location to the new location) must be recorded on the record of duty status because the driver has not returned to his/her normal work reporting location.

Question 16: May a driver use a record of duty status form as a time record to meet the requirement contained in the 100-air-mile radius exemption?

Guidance: Yes, provided the form contains the mandatory information.

Question 17: Is the "mandatory information" referred to in the previous guidance that required of a normal RODS under §395.8(d) or that of the 100-air-mile radius exemption under §395.1(e)(5)?

Guidance: The "mandatory information" referred to is the time records specified by §395.1(e)(5) which must show: (1) The time the driver reports for duty each day; (2) the total number of hours the driver is on duty each day; (3) the time the driver is released from duty each day; and (4) the total time for the preceding 7 days in accordance with §395.8(j)(2) for drivers used for the first time or intermittently.

Using the RODS to comply with §395.1(e)(5) is not prohibited as long as the RODS contains driver identification, the date, the time the driver began work, the time the driver ended work, and the total hours on duty.

Question 18: Must the driver's name and each date worked appear on the time record prepared to comply with §395.1(e), 100-air-mile radius driver?

Guidance: Yes. The driver's name or other identification and date worked must be shown on the time record.

Question 19: May drivers who work split shifts take advantage of the 100-air-mile radius exemption found at §395.1(e)?

Guidance: Yes. Drivers who work split shifts may take advantage of the 100-air-mile radius exemption if: 1. The drivers operate within a 100-air-mile radius of their normal work-reporting locations; 2. The drivers return to their work-reporting locations and are released from work at the end of each shift and each shift is less than 12 consecutive hours; 3. The drivers are off-duty for more than 8 consecutive hours before reporting for their first shift of the day and spend less than 12 hours, in the aggregate, on-duty each day; 4. The drivers do not exceed a total of 10 hours driving time and are afforded 8 or more consecutive hours off-duty prior to their first shift of the day; and 5. The employing motor carriers maintain and retain the time records required by 395.1(e)(5).

Question 20: May a driver who is taking advantage of the 100-air- mile radius exemption in §395.1(e) be intermittently off-duty during the period away from the work-reporting location?

Guidance: Yes, a driver may be intermittently off-duty during the period away from the work-reporting location provided the driver meets all requirements for being off-duty. If the driver's period away from the work-reporting location includes periods of off-duty time, the time record must show both total on-duty time and total off-duty time during his/her tour of duty. In any event, the driver must return to the work- reporting location and be released from work within 12 consecutive hours.

Question 21: When a driver fails to meet the provisions of the 100- air-mile radius exemption (§395.1(e)), is the driver required to have copies of his/her records of duty status for the previous seven days? Must the driver prepare daily records of duty status for the next seven days?

Guidance: The driver must only have in his/her possession a record of duty status for the day he/she does not qualify for the exemption. A driver must begin to prepare the record of duty status for the day immediately after he/she becomes aware that the terms of the exemption cannot be met. The record of duty status must cover the entire day, even if the driver has to record retroactively changes in status that occurred between the time that the driver reported for duty and the time in which he/she no longer qualified for the 100 air-mile radius exemption. This is the only way to ensure that a driver does not claim the right to drive 10 hours after leaving his/her exempt status, in addition to the hours already driven under the 100-air-mile exemption.

Question 22: A driver returns to his/her normal work reporting location from a location beyond the 100-air-mile radius and goes off duty for 7 hours. May the driver return to duty after being off-duty for 7 hours and utilize the 100-air-mile radius exemption?

Guidance: No. The 7-hour off-duty period has not met the requirement of 8 consecutive hours separating each 12-hour on-duty period. The driver must first accumulate 8 consecutive hours off-duty before operating under the 100-air-mile radius exemption.

Question 23: Is the exemption contained in §395.1(f) concerning department store deliveries during the period from December 10 to December 25 limited to only drivers employed by department stores?

Guidance: No. The exemption applies to all drivers engaged solely in making local deliveries from retail stores and/or retail catalog businesses to the ultimate consumer, when driving solely within a 100- air-mile radius of the driver's work-reporting location, during the dates specified.

Question 24: May time spent in sleeping facilities being transported as cargo (e.g., boats, campers, travel trailers) be recorded as sleeper berth time?

Guidance: No, it cannot be recorded as sleeper berth time.

Question 25: May sleeper berth time and off-duty periods be combined to meet the 8-hour off-duty requirement?

Guidance: Yes, as long as the 8-hour period is consecutive and not broken by on-duty or driving activities. This does not apply to drivers at natural gas or oil well locations who may separate the periods.

Question 26: May a driver record sleeper berth time as off-duty time on line one of the record of duty status?

Guidance: No. The driver's record of duty status must accurately reflect the driver's activities.

Question 27: After accumulating 8 consecutive hours of off-duty time, a driver spends 2 hours in the sleeper berth. The driver then drives a CMV for 10 hours, then spends 6 hours in the sleeper berth. May the driver combine the two sleeper berth periods to meet the required 8 consecutive hours of off-duty time per §395.1(h), then drive for up to 10 more hours?

Guidance: No. The 10 hours of driving time between the first and second sleeper berth periods must be considered in determining the amount of time that the driver may drive after the second sleeper berth period. Sleeper berths are intended to be used between periods of on- duty time. When a driver has already been off duty for more than 8 consecutive hours, and has therefore had adequate opportunity to rest, he/she may not "save" additional hours before going on duty and add them to the next sleeper berth period. In short, a driver must be on duty before he/she begins to accumulate sleeper berth time. The driver in your scenario is operating in violation of the hours of service regulations for the entire second 10-hour driving period until that driver is able to secure at least 8 consecutive hours of off-duty time.

Question 28: Does the emergency conditions exception in 49 CFR 395.1(b)(2) apply to a driver who planned on arriving at a specific rest area to complete his 10 hours driving and found the rest area full, forcing the driver to continue past the ten hours driving looking for another safe parking area?

Guidance: No. The emergency conditions exception does not apply to the driver. It is general knowledge that rest areas have become increasingly crowded for commercial motor vehicle parking, thus, it is incumbent on drivers to look for a parking spot before the last few minutes of a 10 hour driving period. The driver should provide the reason for exceeding the 10 hours driving in the Remarks section of the record of duty status.

Question 29: Must a motor carrier that uses a 100-air-mile radius driver write zero (0) hours on the time record for each day the driver is off duty (not working for the motor car­rier)?

Guidance: No. Section 395.1(e)(5) requires a motor carrier to maintain “accurate and true time records” for each driver. These records must show the time the driver goes on and off duty, as well as the total number of hours on duty, each day. The lack of a time record for a 100-air-mile radius driver on any given day is therefore a state­ment by the motor carrier that the driver was not on duty that day. If an investigator discovers that the driver was in fact on duty, despite the absence of a time record, the motor carrier has violated §395.1(e)(5) because it has not maintained “true and accurate time records.” Appropriate enforcement action may then be taken.

Question 30: Does the exception in §395.1(k) for “drivers transporting agricultural commodities or farm supplies for agricultural purposes” cover the transportation of poultry or poultry feed?

Guidance: No. The exception was created by Sec. 345(a)(1) of the National Highway System Designation Act of 1995 [Public Law 104-50, 109 Stat. 568, at 613], which pro­vides in part that the hours of service regulations “shall not apply to drivers trans­porting agricultural commodities or farm supplies for agricultural purposes...” The terms “agricultural commodities or farm supplies for agricultural purposes” were not defined, but the context clarifies their meaning. Because the statute made the exception available only “during the planting and harvesting seasons” in each State, Congress obviously intended to restrict it to agriculture in the traditional (and etymological) sense, i.e., the cultivation of fields. “Agricultural commodities” therefore means products grown on and harvested from the land, and “farm sup­plies for agricultural purposes” means products directly related to the growing or harvesting of agricultural commodities.

Drivers transporting livestock or slaughtered animals, or the grain, corn, hay, etc., used to feed animals, may not use the “agricultural operations” exception.

Question 31: Does fuel used in the production of agricultural commodities qualify as “farm sup­plies” under 49 CFR 395.1(k)?

Guidance: Fuel qualifies as a farm supply if (1) it is “for agricultural purposes,” e.g. used in tractors or other equipment that cultivate agricultural commodities or trucks that haul them, but not in automobiles, station wagons, SUVs or other vehicles designed primarily to carry passengers, or for residential heating or cooking; (2) it is trans­ported within the planting and harvesting season, as determined by the State, and within a 100 air-mile radius of the distribution point for fuel; (3) the motor carrier is operating in interstate commerce; and (4) the entire fuel load on the vehicle is to be delivered to one or more farms. A carrier may not use the exemption if any por­tion of the fuel load is to be delivered to a non-farm customer.

Question 32: Can a for-hire motor carrier located in Canada transport farm supplies and/or equipment for agricultural purposes to a location in the U.S. without having to comply with Part 395?

Guidance: Yes, if a Canadian driver meets all of the requirements of the 49 CFR 395.1(k) definition of "agricultural operations," the provisions of Part 395 do not apply so long as the trip occurs only during the official "planting and harvesting season" as designated by each State.

Question 33: How is "point of origin" defined for the purpose of § 395.1(k)?

Guidance: The term "point of origin" is not used in the NHS Designation Act; the statutory term is "source of the [agricultural] commodities." The exemption created by the Act applies to two types of transportation. The first type is transportation from the source of the agricultural commodity - where the product is grown or raised - to a location within a 100 air-mile radius of the source. The second type is transportation from a retail distribution point of the farm supply to a location (farm or other location where the farm supply product would be used) within a 100 air-mile radius of the retail distribution point. 

The legislative history of the agricultural exemption indicates it was intended to only apply to retail store deliveries. Thus, it is clear Congress intended to limit this exemption to retail distributors of farm supplies. 

Second-stage movements, such as grain hauled from an elevator (or sugar beets from a cold storage facility) to a processing plant, are more likely to fall outside the exempt radius.  Similarly, the exemption does not apply to a wholesaler's transportation of an agricultural chemical to a local cooperative because this is not a retail delivery to an ultimate consumer, even if it is within the 100 air-mile radius.