§395.3 Maximum Driving and On-duty Time

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: May a motor carrier switch from a 60-hour/7-day limit to a 70-hour/8-day limit or vice versa?

Guidance: Yes. The only restriction regarding the use of the 70- hour/8-day rule is that the motor carrier must have CMVs operating every day of the week. The 70-hour/8-day rule is a permissive provision in that a motor carrier with vehicles operating every day of the week is not required to use the 70-hour/8-day rules for calculating its drivers' hours of service. The motor carrier may, however, assign some or all of its drivers to operate under the 70-hour/8-day rule if it so chooses. The assignment of individual drivers to the 60-hour/7- day or the 70-hour/8-day time rule is left to the discretion of the motor carrier.

Question 2: Does a driver, employed full time by one motor carrier using the 60-hours in 7-days rule, and part-time by another motor carrier using the 70-hours in 8-days rule, have the option of using either rule in computing his hours of service?

Guidance: No. The motor carrier that employs the driver on a full- time basis determines which rule it will use to comply with §395.3(b). The driver does not have the option to select the rule he/she wishes to use.

Question 3: May a carrier which provides occasional, but not regular service on every day of the week, have the option of the 60 hours in 7 days or 70 hours in 8 days with respect to all drivers, during the period in which it operates one or more vehicles on each day of the week?

Guidance: Yes.

Question 4: A Canadian driver is subjected to a log book inspection in the U.S. The driver has logged one or more 13-hour driving periods while in Canada during the previous 7 days, but has complied with all the FMCSRs while operating in the U.S. Has the driver violated the 10- hour driving requirement in the U.S.?

Guidance: No. Canadian drivers are required to comply with the FMCSRs only when operating in the U.S.

Question 5: May a driver domiciled in the United States comply with the Canadian hours of service regulations while driving in Canada? If so, would the driving and on-duty time accumulated in Canada be counted toward compliance with one or more of the limits imposed by part 395 when the driver re-enters the United States?

Guidance: A driver domiciled in the United States may comply with the Canadian hours of service regulations while driving in Canada. Upon re-entering the United States, however, the driver is subject to all of the requirements of part 395, including the 10- and 15-hour rules, and the 60- or 70- hour rules applicable to the previous 7 or 8 consecutive days.

In other words, a driver who takes full advantage of Canadian law may have to stop driving for a time immediately after returning to the U.S. in order to restore compliance with part 395. Despite its possible effect on decisions a U.S. driver must make while in Canada, this interpretation does not involve an exercise of extraterritorial jurisdiction.

Question 6: If a motor carrier operates under the 70-hour/8-day rule, does any aspect of the 60-hour rule apply to its operations? If a motor carrier operates under the 60-hour/7-day rule, does any part of the 70-hour rule apply to its operations?

Guidance: If a motor carrier operates 7 days per week and chooses to require all of its drivers to comply with the 70-hour/8-day rule, the 60-hour/7-day rule would not be applicable to these drivers. If this carrier chooses to assign some or all of its drivers to the 60- hour/7-day rule, the 70-hour rule would not be applicable to these drivers. Conversely, if a motor carrier does not operate 7 days per week, it must operate under the 60-hour/7-day rule and the 70-hour rule would not apply to its operations.

Question 7: What is the liability of a motor carrier for hours of service violations?

Guidance: The carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the FMCSRs does not depend upon actual knowledge of the violations.

Question 8: Are carriers liable for the actions of their employees even though the carrier contends that it did not require or permit the violations to occur?

Guidance: Yes. Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers "permit" violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.

Question 9: May time spent in resting or sleeping in motor homes being delivered be recorded as off-duty time?

Guidance: The Federal Highway Administration believes the time drivers spend resting or sleeping in the motor homes while stopped or parked (e.g., at a rest area or parking lot) could be considered off-duty time.   Drivers may take at least eight consecutive hours off-duty for the purpose of obtaining restorative sleep.  The driver may also take less than eight hours off-duty and take a nap.  This time would not count toward the required eight consecutive hours off-duty. There are certain conditions which must be met in order for this time (less than eight consecutive hours) to qualify as off-duty time.

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 commercial motor vehicle 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 onboard 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. [Editor's Note]