(Close this window when you are finished reading to return to - www.dieselboss.com -)
US Department Of
Transportation
Federal Motor Carrier Safety Administration
Subject Hours of Service
Enforcement Policy
From: John H. Hill
Assistant Administrator and Chief
Safety Officer
Field Administrators
Division Administrators
Date:
NOV 25 2003
In Reply: MC-EC
The purpose of this memorandum is to outline interim enforcement policies for certain sections of the new hours-of-service (HOS) regulations to be implemented on January 4, 2004. The American Trucking Associations (ATA) has petitioned FMCSA for rulemaking to amend the sleeper berth portion of the new rules. ATA's request has raised genuine issues in need of resolution. Until FMCSA has the opportunity to address these remaining ambiguities in the regulations, the policies outlined below will remain in effect. Please communicate those positions to all safety investigators, safety auditors, inspectors, and State partners involved in HOS enforcement. This information should also be incorporated into outreach to the industry and any training on the new HOS regulations.
Issue 1: Calculating the 14 hour rule following two qualifying sleeper berth periods totaling 10-hours.
Agency Policy: The 14-hour rule is calculated by counting the time from the end of the prior qualifying sleeper berth period to the beginning of a subsequent qualifying sleeper berth period. Said another way the 14-hour rule is calculated by counting the time on each side of the first qualifying sleeper berth period.
Discussion: Questions
have arisen over whether the new rule and accompanying technical amendment
permit a full restart of the 14-hour on-duty period following two qualifying
sleeper berth periods- Although that is a possible reading of the new rule, it
conflicts with the traditional interpretation of the current I5-hour rule and is
Iikely to cause confusion among motor carriers and the enforcement community.
The 14-hour period will be calculated by counting the time from the end of the
prior qualifying sleeper berth period to the beginning of a subsequent
qualifying sleeper berth period. This is how the new 11-hour rule is calculated,
and is similar to the manner in which the agency has always treated the
calculation of the 10- and
I5-hour rules.
Issue 2: Combining sleeper berth and off-duty time.
Agency Policy: If a driver, or a member of a driving team, has at least two qualifying sleeper berth periods totaling at least 10 hours immediately prior to taking 10 or more consecutive hours off-duty, the driver may combine the last sleeper berth period with the 10 consecutive hour off-duty period.
Discussion: The current
rule states that two qualifying sleeper berth periods will extend the 14-hour
period. Questions have arisen as to how to treat a situation in which a driver,
or it member or a member of a driving team, appropriately accumulates the 10
hours off-duty using sleeper berth in over-the-road trips, and then goes
off-duty for 10 or more consecutive hours. The agency believes if sleeper berths
are being used appropriately, drivers should not have to spend time in the
sleeper berth upon going off-duty for 10 or more consecutive hours in order to
remain in compliance. Therefore, the agency will allow the last sleeper berth
period to be combined with the off-duty period; however, it is important
to prevent drivers who do not regularly use sleeper berths from extending their
day by taking a single sleeper berth period. Therefore, if a driver has only
used one sleeper berth period, it may not be combined with the 10 or more
consecutive hour
off-duty period, and the sleeper berth time would count
toward calculation of the I4-hour rule.
Issue 3: Use of the 34-hour restart provision.
Agency Policy: A driver may restart the 60/70-hour period by taking 34 or more consecutive hours off-duty provided at the beginning of the 34-hour period, the driver has not accumulated more than 60 or 70 on-duty hours in the prior 6 or 7 days.
Discussion: The 34-hour restart provision was designed to give carriers and drivers operational flexibility while still providing the driver opportunity for adequate rest. There is no discussion in the regulatory history of the HOS rule indicating a driver may exceed the 60/7O-hour rue and then use a 34-hour restart to begin a new 60/7O-hour period Without regard to the number of on-duty hours in the prior 6 or 7 days. If a driver has exceeded the 60/70-hour rule, the driver may not utilize the 34-hour restart and must continue to operate under the provisions of section 395.3(b) to calculate the hours available under the 60/7O-hour rule.
Issue 4: Length of out-of-service time required when a driver has violated the 11- or 14-hour rules in a sleeper berth operation.
Agency Policy: In order to regain compliance with Part 395, sleeper berth drivers who have violated the 11- or 14-hour rules must be placed out-of-service (OOS) for the minimum amount of time necessary to bring the driver into compliance with section 395.3. This OOS period will be determined using the number of hours in the driver's prior qualifying sleeper berth period.
Discussion: Questions
have arisen concerning whether a sleeper berth driver who has violated the 11-
or 14~hour rule must be placed OOS for a period of 10 consecutive hours or only
the minimum amount of time necessary to achieve 10 hours off-duty in
combination with the prior qualifying sleeper berth period. The length of an OOS
period required to bring a driver pack into compliance is currently determined
by taking the driver's prior qualifying sleeper berth period into consideration, The agency did not intend to change
this practice under the new HOS rule, and the agency does not read 395. 1 (g)( I
)(ii) and (iii) as invalidating a prior sleeper berth period. Therefore, a
driver should be placed OOS only for the minimum amount of time necessary to
bring the driver into compliance under section 395.3. If a driver is using the
sleeper berth exception, this time is calculated by reference to the number of
hours in the prior qualifying sleeper berth period. Furthermore, the time the
driver has spent in the prior qualifying sleeper berth is not counted toward
determining whether or not the driver is in violation of the 14-hour rule (in
this case, a qualifying sleeper berth period is a sleeper berth period of
at least 2 hours that when combined with an additional sleeper berth period
will result in the driver having legal
hours to drive).
Issue 5: Length of OOS time required when a driver has exceeded 60/70 hours in 7/8 days.
Agency Policy: In order to regain compliance with Part 395, a driver who has exceeded 60/70 hours in 7/8 days, must be placed OOS for the minimum amount of time necessary to bring the driver into compliance. Said another way, the driver must be placed OOS until the beginning of the next 24-hour period when the driver would begin the day under the 60/70-hour limit.
Discussion: Questions have arisen concerning the appropriate amount of time a driver must be placed OOS for exceeding 60/70 hours in 7/8 days prior to driving again. The length of an OOS period required to bring a driver back into compliance is currently determined based on the number of hours the driver is in excess of the rule. The agency did not intend to chaIlenge this practice under the new HOS regulations. The driver should be placed OOS for the minimum amount of time necessary to bring the driver into compliance. If a driver has exceeded the 60/7O-hour rule, the driver may not utilize the 34-hour restart, and must continue to operate under the provisions of-section 395.3(b) to calculate the hours available under the 60/7O-hour rule.
Some of the policies outlined above will be subjected to public review and discussion in the course of the petition for rulemaking already mentioned. The agency cannot predict the outcome of this petition. For the moment however, this memorandum represents the agency's best judgment on fair and reasonable enforcement policies. Thank you for your professionalism as the agency moves to implement these ground breaking safety measures.
cc:
Chief
Counsel
Associate Administrator for Enforcement and Program Delivery
Associate Administrator for Policy and Program Development
Director, Office of
Public and Consumer Affairs
Director, Office of Safety Programs
Director,
Office of Enforcement and Compliance
Director, Office of Bus and Truck
Standards and Operations
Director, Office of Information Management
Chief,
Enforcement and Compliance Division
Chief, State Programs Division
Chief,
Vehicle and Roadside Operations Division
Chief, Driver and Carrier Operations
Division
Chief, International Motor Carrier Learning and Development Division
Chief, Information Systems Division