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: A company told all of its drivers that
it would no longer pay for driving from the last stop to home and that this
time should not be shown on the time cards. Is it a violation of the FMCSRs
to operate a CMV from the last stop
to home and not show that time on the time cards?
Guidance: The FMCSRs
do not address questions of pay. All the time spent operating a CMV for, or at the
direction of, a motor carrier must be recorded as driving time.
Question 2: What conditions must be
met for a CMV driver to record meal and
other routine stops made during a tour of duty as off-duty time?
Guidance: 1. The driver
must have been relieved of all duty and responsibility for the care and custody
of the vehicle, its accessories, and any cargo or passengers it may be carrying.
2. The duration of the driver's relief from duty must be a
finite period of time which is of sufficient duration to ensure that the
accumulated fatigue resulting from operating a CMV will be significantly
reduced.
3. If the driver has been relieved from duty, as noted in
(1) above, the duration of the relief from duty must have been made known to
the driver prior to the driver's departure in written instructions from the
employer. There are no record retention requirements for these instructions on
board a vehicle or at a motor carrier's principal place of business.
4. During the stop, and for the duration of the stop, the
driver must be at liberty to pursue activities of his/her own choosing and to
leave the premises where the vehicle is situated.
Question 3: A driver has been given
written permission by his/her employer to record meal and other routine stops
made during a tour of duty as off-duty time. Is the driver required to record such
time as off-duty, or is it the driver's decision whether such time is recorded
as off-duty?
Guidance: It is the employer's choice whether the
driver shall record stops made during a tour of duty as off-duty time. However,
employers may permit drivers to make the decision as to how the time will be
recorded.
Question 4: A driver has been given
written permission by his/her employer to record meal and other routine stops
made during a tour of duty as off-duty time. Is the driver allowed to record
his stops during a tour of duty as off-duty time when the CMV is laden with HM and
the CMV is parked in a truck stop
parking lot?
Guidance: Drivers may record meal and other routine
stops made during a tour of duty as off-duty time, except when a CMV is laden with
explosive HM classified as hazard divisions 1.1, 1.2, or 1.3 (formerly Class A
or B explosives). In addition, when HM classified under hazard divisions 1.1,
1.2, or 1.3 are on a CMV, the employer and the
driver must comply with §397.5
of the FMCSRs.
Question 5: Do telephone calls to or
from the motor carrier that momentarily interrupt a
driver's rest period constitute a change of the driver's duty status?
Guidance: Telephone calls of this type do not
prevent the driver from obtaining adequate rest. Therefore, the FHWA does not consider these brief
telephone calls to be a break in the driver's off-duty status.
Question 6: If a driver is required
by a motor carrier to carry a pager/beeper to receive notification to contact
the motor carrier for a duty assignment, how should this time be recorded?
Guidance: The time is to be recorded as off-duty.
Question 7: May a sleeper berth be
used for a period of less than 2 hours' duration?
Guidance: Yes. The sleeper berth may be used for
such periods of inactivity. Periods of time of less than 2 hours spent in a
sleeper berth may not be used to accumulate the 8 hours of off-duty time
required by §395.3 of the
FMCSRs.
Question 8: If a "driver
trainer" occasionally drives a CMV, thereby becoming a
"driver" (regardless of whether he/she is paid for driving), must the
driver record all nondriving (training) time as on-
duty (not driving)?
Guidance: Yes.
Question 9: A driver drives on streets
and highways during the week and jockeys CMVs in the yard (private
property) on weekends. How is the yard time to be recorded?
Guidance: On-duty (driving).
Question 10: How does compensation
relate to on-duty time?
Guidance: The fact that a driver is paid for a
period of time does not always establish that the driver was on-duty for the
purposes of part 395 during that period of time. A driver may be relieved of
duty under certain conditions and still be paid.
Question 11: Must nontransportation-related work for a motor carrier be
recorded as on-duty time?
Guidance: Yes. All work for a motor carrier,
whether compensated or not, must be recorded as on-duty time. The term
"work" as used in the definition of "on-duty time" in §395.2 of the
FMCSRs
is not limited to driving or other nontransportation-related
employment.
Question 12: How should time spent
in transit on a ferry boat be recorded?
Guidance: Time spent on a ferry by drivers may be
recorded as off- duty time if they are completely relieved from work and all
responsibility and obligation to the motor carriers for which they drive. This
relief must be consistent with existing regulations of the ferry company and
the U.S. Coast Guard.
Question 13: What is the duty
status of a co-driver (truck) who is riding seated next to the driver?
Guidance: On-duty (not driving).
Question 14: How must a CMV driver driving a non-CMV at the direction of a motor
carrier record this time?
Guidance: If CMV drivers operate motor
vehicles with GVWRs of 10,000 pounds or
less at the direction of a motor carrier, the FHWA requires those drivers to
maintain records of duty status and record such time operating as on-duty (not
driving).
Question 15: How must the time
spent operating a motor vehicle on the rails (roadrailers)
be recorded?
Guidance: On-duty (not driving).
Question 16: Must a driver engaged
in union activities affecting the employing motor carrier record such time as
on-duty (not driving) time?
Guidance: The union activities of a driver employed
by a unionized motor carrier must be recorded as on-duty (not driving) time if
the collective bargaining agreement requires the motor carrier to pay the driver
for time engaged in such activities. Otherwise these activities may be recorded
as off duty time unless they are combined with normal duties performed for the
carrier.
Efforts by a driver to organize co-workers employed by a
non- unionized motor carrier, either on the carrier's premises or elsewhere,
may be recorded as off duty time unless the organizing activities are combined
with normal duties performed for the carrier.
Question 17: How is the 50 percent
driving time in the definition of "driver-salesperson" in §395.2 determined?
Guidance: The driving time is determined on a
weekly basis. The driver must be employed solely as a driver-salesperson. The
driver- salesperson may not participate in any other type of work activity.
Question 18: May a driver change to
and from a driver-salesman status at any time?
Guidance: Yes, if the change is made on a weekly
basis.
Question 19: May the time a driver
spends attending safety meetings, ceremonies, celebrations, or other
company-sponsored safety events be recorded as off-duty time?
Guidance: Yes, if attendance is voluntary.
Question 20: How must a driver
record time spent on-call awaiting dispatch?
Guidance: The time that a driver is free from
obligations to the employer and is able to use that time to secure appropriate
rest may be recorded as off-duty time. The fact that a driver must also be
available to receive a call in the event the driver is needed at work, even
under the threat of discipline for non-availability, does not by itself impair
the ability of the driver to use this time for rest.
If the employer generally requires its drivers to be
available for call after a mandatory rest period which complies with the
regulatory requirement, the time spent standing by for a work-related call,
following the required off-duty period, may be properly recorded as off-duty
time.
Question 21: How does a driver
record the hours spent driving in a school bus operation when he/she also
drives a CMV for a company subject to the FMCSRs?
Guidance: If the school bus meets the definition of
a CMV, it must be recorded as
driving time.
Question 22: A motor carrier
relieves a driver from duty. What is a suitable facility for resting?
Guidance: The only resting facility which the FHWA regulates is the sleeper berth.
The sleeper berth requirements can be found in §393.76.
Question 23: How many times may a
motor carrier relieve a driver from duty within a tour of duty?
Guidance: There is no limitation on the number of
times a driver can be relieved from duty during a tour of duty.
Question 24: If a driver is
transported by automobile from the point of a breakdown to a terminal, and then
dispatched on another run, how is the time spent in the automobile entered on
the record of duty status? How is the time entered if the driver goes off-duty
once he reaches the terminal?
Guidance: The time spent in the automobile would be
on-duty (not driving) if dispatched on another run once he/she reaches the terminal, and off-duty if he/she is given 8 consecutive
hours off-duty upon reaching the terminal.
Question 25: When a driver
experiences a delay on an impassable highway, should the time he/she is delayed
be entered on the record of duty status as driving time or on-duty (not
driving)?
Guidance: Delays on impassable highways must be
recorded as driving time because §395.2 defines "driving
time" as all time spent at the driving controls of a
CMV in operation.
Question 26: Is time spent
operating controls in a CMV to perform an
auxiliary, non-driving function (e.g., lifting a loaded container, compacting
waste, etc.) considered driving time? Does the location of the controls have a
bearing on the answer?
Guidance: The location of the controls does have a
bearing on the answer. §395.2
defines "driving time" as all time spent at the driving controls of a CMV in operation. If a driver,
seated at the driving controls of the vehicle, is able to simultaneously
perform the driving and auxiliary function (for example, one hand on the
steering wheel and one hand on a control mechanism), the time spent performing
the auxiliary function must be recorded as "driving time." If a
driver, seated at the driving controls of the vehicle, is unable to
simultaneously perform the driving and auxiliary function, the time spent
performing the auxiliary function may be recorded as "on-duty not driving
time."
Question 27: A motor carrier has
full-time drivers who are also volunteer fire fighters. Some of the drivers
carry pagers and leave their normal activities only when notified of a fire.
Others consistently work 3 to 4 non-consecutive 24-hour shifts at a fire
station each month, resting between calls. The drivers receive no monetary
compensation for their work. How should the time spent on these activities be
logged on the record of duty status when the drivers return to work?
Guidance: When drivers are free from obligations to
their employers, that time may be recorded as off-duty time. Drivers who are
allowed by the motor carrier to leave their normal activities to fight fires
and those who spend full days in a fire station are clearly off duty. Their
time should be recorded as such.
Question 28: How should time spent
at National Guard meetings and training sessions be recorded for the
hours-of-service requirements?
Guidance: A member of a military reserve component,
serving in either an inactive duty status, such as weekend drills, or in an
active duty status, such as annual training, may log that time as
"off-duty time" regardless of whether such duty time is paid or
unpaid. This is consistent with the rights and benefit entitlements
provided in the Uniformed Services Employment and Reemployment Rights Act (38
U.S.C. 4301 et seq.)
Question 29: Although firefighters, emergency medical technicians, paramedics and other public safety professionals are often exempt from the hours-of-service (HOS) regulations under the governmental exception [49 CFR 390.3(f)(2)], they sometimes have second jobs with interstate motor carriers for which they are required to comply with the HOS rules. When one of these individuals has a second job with an interstate motor carrier and works a 24-hour shift for the fire/rescue/emergency services department, is all of the time spent during the shift considered on-duty time?
Guidance: No. Firefighters and
other public safety professionals working 24-hour shifts may record time during
which they are required or permitted to rest as off-duty time. However, all
time that the public safety specialist is required to perform work (e.g.,
administrative work, cleaning/repairing equipment, operating equipment, etc.)
would be considered on-duty time. [Editor's
Note]
Question
30: If a driver is required repeatedly to respond to satellite or similar
communications received during his or her sleeper berth period, does this
activity affect a driver’s duty status?
Guidance: Yes.
The driver cannot be required to do any work for the motor carrier
during sleeper berth time. A driver who
is required to access a communications system for the purpose of reading
messages from the carrier, responding to certain messages (either verbally or
by typing a message), or otherwise acknowledging them, is performing work. For the purpose of this guidance,
“repeatedly” means a pattern or series of interruptions that prevent a driver
from obtaining restorative sleep during the sleeper berth period. [Editor's Note]
Question 31: If a driver is required repeatedly to respond
to satellite or similar communications received during a 10-hour (8-hour for
passenger transportation) off-duty period, does this activity affect a driver’s
duty status?
Guidance: Yes. The driver cannot be required to do any work for the motor carrier during the 10-hour or the 8-hour off-duty period. A driver who is required to access a communications system for the purpose of reading messages from the carrier, responding to certain messages (either verbally or by typing a message), or otherwise acknowledging them, is performing work. For the purpose of this guidance, “repeatedly” means a pattern or series of interruptions that prevent a driver from obtaining restorative sleep during the off-duty period. [Editor's Note]
Question 32: If a driver drives in
a non-commercial vehicle to take a physical examination, should the duty status
be recorded as on-duty not driving, or as off-duty? Would the answer change if
the motor carrier directs the driver to go for the examination?
Guidance: So
long as the driver schedules and attends the physical examination at a time of
his or her own choosing, the time may be recorded as off-duty. If, however, the
motor carrier directs the driver to attend at a specific time, the time is to
be recorded as on-duty not driving.