[Federal Register Volume 68, Number 189 (Tuesday, September 30, 2003)]
[Rules and Regulations]
[Pages 56208-56212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24765]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket No. FMCSA-97-2350]
RIN 2126-AA23


Hours of Service of Drivers

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule; technical amendments.

-----------------------------------------------------------------------

[[Page 56209]]

SUMMARY: This rule makes technical amendments to the hours of service 
(HOS) regulations. These technical amendments are needed to correct 
inadvertent errors and omissions, and make minor editorial changes to 
improve clarity and consistency. The amendments do not make substantive 
changes. The corrections are minor and will not have a significant 
impact on a substantial number of small entities.

DATE: The technical amendments in this final rule are effective 
September 30, 2003.

FOR FURTHER INFORMATION CONTACT: Ms. Mary Moehring, Office of Bus and 
Truck Standards and Operations (MC-PSD), U.S. Department of 
Transportation, FMCSA, 400 Seventh Street, SW., Washington, DC 20590-
0001. Telephone (202) 366-4001.

SUPPLEMENTARY INFORMATION:
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.
    The term ``current rules,'' as used in this document, refers to the 
HOS regulations in effect before April 28, 2003, and ``final rule'' 
means the HOS regulations adopted on April 28, 2003 (68 FR 22456).

Sleeper Berth Provisions Relating to the 14-Hour Limit

    Confusion has arisen among motor carriers and enforcement officials 
over the provision of the final rule on hours of service (68 FR 22456, 
April 28, 2003) relating to the use of sleeper berths to accumulate 10 
hours of off-duty time.
    More specifically, the issue is how to apply the general 
prohibition on driving ``[f]or any period after the end of the 14th 
hour after coming on duty following 10 consecutive hours off duty * * 
*'' [49 CFR 395.3(a)(2)] in the context of the sleeper berth rule, 
which allows drivers to accumulate 10 hours off duty in two periods in 
the berth.
    Under the current rule, off-duty time (including sleeper berth 
time) is not counted in calculating the 15-hour limit, thus allowing 
drivers to take for example, 2 hours off-duty during their work shift 
to drive up to the 17th hour after coming on duty. The new rule reduces 
the 15-hour limit to 14 hours, but it also adds a general prohibition 
on driving ``[f]or any period after the end of the 14th hour after 
coming on duty following 10 consecutive hours off duty * * *'' [49 CFR 
395.3(a)(2)].
    Under the new rule, off-duty time is included in calculating the 
14th hour since coming on duty. The only exception is sleeper berth 
time. When taken in 2 periods, each of which must be at least 2 hours 
long, sleeper berth time does not count toward the 14-hour limit. The 
final rule, however, attempted to incorporate a modified 14-hour limit 
by providing that ``The on-duty time in the period immediately before 
and after each rest period, when added together, does not include any 
driving time after the 14th hour'' [Sec.  395.1(g)(1)(iii)].
    Although counting on-duty time toward the 14-hour limit is 
obviously consistent with the general principle of Sec.  395.3(a)(2), 
the modified sleeper-berth provision inadvertently omitted reference to 
off-duty time not spent in a sleeper berth and sleeper berth time of 
less than 2 hours, neither of which qualifies for exclusion from the 
14-hour limit. The agency is therefore amending Sec.  395.1(g)(1)(iii) 
to clarify that drivers and motor carriers are required to count on-
duty time, off-duty time not spent in a sleeper berth and sleeper berth 
time of less than two hours toward the 14-hour limit.
    The final rule also overlooked the need to spell out the underlying 
principle for dealing with situations in which a driver takes more than 
2 sleeper berth periods, all of which are more than 2 hours long. For 
example, after having been off-duty for 10 hours a driver drives for 4 
hours, takes 2 hours in the sleeper berth, drives for another 3 hours, 
takes 3 more hours in the sleeper berth, drives for 5 hours, and then 
goes into the sleeper berth for 7 hours. In this case, the second and 
third sleeper-berth periods (3 hours plus 7 hours, respectively) meet 
the requirements of the rule (10 hours off duty in two periods, each at 
least 2 hours long), while the first and second (2 hours plus 3 hours, 
respectively) do not. Although the previous sentence suggests how this 
hypothetical should be treated, the amendment to Sec.  395.1(g)(1)(iii) 
makes it explicit: any 2 sleeper-berth periods totaling 10 hours may be 
used in calculating the 10-hour limit, and sleeper-berth periods not 
used in calculating the 10-hour limit will be included in calculating 
the 14-hour limit.
    Section 395.1(g)(2) restates the principle of Sec.  395.1(g) of the 
current rule. Since 1963, that rule has allowed drivers who are off 
duty at a natural gas or oil well location to accumulate the then-
required 8 hours off duty in two off-duty periods, each at least 2 
hours long, in ``other sleeping accommodations at a natural gas or oil 
well location'' [49 CFR 195.3(a), 28 FR 2236, March 7, 1963]. State and 
Federal officials have understood and enforced that provision for 40 
years. The agency is amending the introductory phrase of Sec.  
395.1(g)(2) to clarify that although drivers must now take 10 rather 
than 8 hours off duty, drivers at wellheads may continue to accumulate 
their off-duty time in two periods. The periods may be taken in sleeper 
berths, other sleeping accommodations, or both. This technical 
amendment imposes no added burdens, and simply clarifies the intent of 
the final rule.
    Finally, while Sec. Sec.  395.1(g)(1)(iv), 395.1(g)(2)(iv), and 
395.1(g)(3)(iv) of the new rule provide that a combination of 
consecutive sleeper berth time and off-duty time totaling 10 hours 
satisfies the 10 hour-off-duty requirement when a driver changes from a 
sleeper berth mode of operation to a non-sleeper-berth mode, it 
inadvertently failed to provide the same option to drivers continuing 
in the sleeper berth mode. This amendment corrects that oversight.
    In summary, the sleeper berth provision is clarified as follows:
    For purposes of determining the 14-hour limit in a sleeper berth 
operation, the following are included in calculating that limit: on-
duty time; non-sleeper-berth off-duty time; sleeper berth time of less 
than 2 hours; and sleeper berth time of 2 hours or more that is not 
used to accumulate 10 hours of off-duty time.
    A combination of consecutive sleeper berth time and off-duty time 
totaling 8 for passenger-carrying operations or 10 hours for property-
carrying and natural gas/oil well operations may be used to comply with 
either the 8-or the 10-hour off-duty requirement in sleeper berth 
operations, in addition to situations in which a driver moves from a 
sleeper berth to a non-sleeper berth operation.
    Any two sleeper-berth periods (each at least two hours long) 
totaling 10 hours may be used in calculating the 10-hour limit, and 
sleeper-berth periods not used in calculating the 10-hour limit will be 
included in calculating the 14-hour limit.

[[Page 56210]]

Drivers of Oil Well Servicing Vehicles

    Section 395.1(g) currently permits drivers with sleeper berths who 
are off duty at a natural gas or oil well location to accumulate the 
required 8 hours of off-duty time ``in a sleeper berth in two separate 
periods totaling 8 hours, neither period to be less than 2 hours, or 
resting while off duty in other sleeping accommodations at a natural 
gas or oil well location.'' These ``other sleeping accommodations'' are 
routinely provided at oil and gas well sites.
    In the final rule adopted on April 28, 2003 [68 FR 22456 at 22515], 
the agency intended to continue to permit these drivers to accumulate 
the required off-duty time--extended from 8 hours to 10 hours--in 2 
periods in either a sleeper berth or other sleeping accommodations. In 
fact, the new Sec.  395.1(g)(2) specifically permits this conduct. The 
new rule, however, also included an additional provision [Sec.  
395.1(g)(2)(iv)], relating to the off-duty requirements a driver must 
meet when going from sleeper berth to non-sleeper berth operations. 
This additional provision inadvertently omitted the specific reference 
to ``other sleeping accommodations'' for these drivers. FMCSA is 
therefore restoring this phrase to Sec.  395.1(g)(2)(iv).
    Also, Sec.  395.1(g)(2)(iv) is being amended to match Sec.  
395.1(g)(1)(iv), again for the same reason. Because a combination of 
consecutive sleeper berth time, time in other sleeping accommodations, 
and off-duty time totaling 10 hours satisfies the 10 hour-off-duty 
requirement when a driver changes from a sleeper berth mode of 
operation to a non-sleeper berth mode, that same option should have 
been provided to a driver continuing in the sleeper berth mode. This 
amendment corrects the oversight.
    Finally, like the general sleeper berth rule, the special provision 
for drivers of oil-well-servicing vehicles inadvertently omitted any 
reference to off-duty time not spent in a sleeper berth and sleeper 
berth time of less than 2 hours. The agency is therefore adopting the 
same language for Sec.  395.1(g)(2)(iii) as for Sec.  395.1(g)(1)(iii), 
and for the same reason.

16-Hour Short-Haul Exception

    Section 395.1(o) of the April 28 final rule [68 FR 22456 at 22516] 
was intended to give short-haul drivers one 16-hour on-duty limit in a 
7-day period. In describing this provision, the Executive Summary (page 
1) to the Regulatory Impact Analysis prepared for the rule (item 
 23302 in the docket) states ``This option allows short haul 
and local drivers (drivers who sleep at home all evenings and who have 
limited range of operations) the flexibility to work up to 16 hours up 
to one day per work week.'' Page 9-9 of the Regulatory Impact Analysis 
also describes Sec.  395.1(o) as ``allowing one 16-hour shift per 
week.''
    As published in the final rule, however, Sec.  395.1(o)(3) provides 
that the driver may not have taken this exemption ``within the previous 
7 consecutive days.'' The previous 7 days and the current day (when the 
exemption could again be used) constitute an 8-day cycle, not the 7-day 
cycle intended by the agency. FMCSA is correcting the erroneous 
reference to ``the previous 7 consecutive days'' to ``the previous 6 
consecutive days.'' The exemption will therefore be available once a 
week, as originally intended.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    We have determined these amendments do not meet the criteria for a 
``significant regulatory action'' as specified in Executive Order 12866 
or within the meaning of DOT regulatory policies and procedures. This 
document was not reviewed by the Office of Management and Budget.

Exception to Notice and Comment Rulemaking

    The Administrative Procedure Act (APA) allows agencies to dispense 
with prior notice and an opportunity for comment if it finds them 
impracticable, unnecessary, or contrary to the public interest [5 
U.S.C. 553(b)(B)]. FMCSA finds good cause to publish these technical 
amendments without prior notice. These amendments do not increase the 
regulatory burden on the motor carrier industry, nor do they alter the 
substantive rights or obligations of any party. They merely clarify the 
intent of the final rule.
Sleeper Berth Provisions
    As indicated by the preamble to the final rule, ``[t]his rule 
requires that taking off-duty time, including meal stops and other rest 
breaks, of less than 10 hours duration, other than sleeper berth time, 
will not extend the work day.'' [68 FR 22504, April 28, 2003]. FMCSA 
inadvertently failed to articulate clearly in Sec.  395.1(g)(1)(iii) 
the full implications of combining the sleeper-berth provisions with 
the 14-hour limit, and is therefore amending the provision to clarify 
that off-duty time and sleeper-berth time of less than two hours are 
counted toward the 14-hour limit. Because these requirements were 
spelled out in other portions of the final rule, FMCSA finds prior 
notice and opportunity for comment on this clarifying amendment 
unnecessary.
    In finalizing the general sleeper berth provisions, FMCSA also 
failed to articulate with adequate specificity how the rule would work 
if a driver took not just 2 sleeper berth periods (each at least 2 
hours long), but 3 or even more such periods. The agency is therefore 
amending Sec.  395.1(g)(1)(iii) to make completely clear that any two 
sleeper berth periods totaling 10 hours will be counted, while any 
other sleeper berth periods (even those more than 2 hours long) will 
simply be treated as off-duty time for purposes of the 14-hour limit. 
The change merely states in detail a result already required by the 
final rule. Therefore, notice and comment are unnecessary.
    The so-called ``oil well exception,'' which has been in effect for 
40 years, allows drivers of trucks specially constructed to service oil 
and gas wells to cumulate the required 8 hours (now 10 hours) of off-
duty time in two periods in ``other sleeping accommodations'' at oil 
and gas wells. That exception is embodied in Sec.  395.1(g)(2) of the 
final rule. However, in the course of combining the ``oil well 
exception'' with the more detailed requirements of the sleeper-berth 
provisions for the final rule, the clarity of the exception was 
obscured. FMCSA has therefore clarified the wording of Sec.  
395.1(g)(2) to recapture the original and unchanged meaning of this 
provision and to ensure that both enforcement personnel and the 
regulated community understand the purpose and effect of this 
provision. Because the changes do not alter the meaning of the rule and 
impose no additional obligations on anyone, FMCSA has determined that 
these technical amendments do not require notice and comment.
    For decades, FMCSA and State enforcement personnel treated the 
current sleeper berth rule as allowing a driver to satisfy the 
requirement for 8 hours off duty by taking either two sleeper berth 
periods totaling 8 hours, or a combination of consecutive sleeper berth 
time and other off-duty time totaling 8 hours. The agency intended to 
ratify this practice in the new rule, but failed to include the 
necessary text in all of the relevant places. Sections 395.1(g)(1)(iv), 
395.1(g)(2)(iv), and 395.1(g)(3)(iv) were correctly drafted, and FMCSA 
is therefore inserting that language in the introductory phrase of 
Sec. Sec.  395.1(g)(1), 395.1(g)(2), and 395.1(g)(3) as well. Because 
this

[[Page 56211]]

represents a corrected restatement of a principle already incorporated 
into the final rule, and long enforced by FMCSA and State officials, 
the agency has determined that notice and comment are unnecessary.
Drivers of Oil Well Servicing Vehicles
    The current sleeper-berth rule allows drivers ``who are off duty at 
a natural gas or oil well location'' to rest ``in a sleeper berth in 
two separate periods totaling 8 hours, neither period to be less than 2 
hours, or resting while off duty in other sleeping accommodations at a 
natural gas or oil well location.'' [Sec.  395.1(g) (emphasis added)]. 
The final rule was intended to retain the ``other sleeping 
accommodations'' option; as contained in Sec.  395.1(g)(2). The agency 
is correcting an inadvertent omission by adding a reference to ``other 
sleeping accommodations'' to Sec.  395.1(g)(2)(iv). Because this change 
merely applies a principle allowed for decades by the previous rule and 
explicitly endorsed by the new rule, to drivers leaving--in addition to 
those engaged in--sleeper berth operations, the agency has determined 
that notice and comment are unnecessary.
16-Hour Exception for Short-Haul Drivers
    FMCSA decided short-haul operations should be granted a weekly 
exception to the prohibition on driving after the 14th hour after 
coming on duty. Page 9-9 of the Regulatory Impact Analysis clearly 
states that the analysis concerned ``the flexibility to work up to 16 
hours up to one day per work week.'' The final rule, however, 
erroneously provided that the 16-hour exemption could not be taken 
``within the previous 7 consecutive days'' [Sec.  395.1(o)(3)], which 
created an 8-day cycle. FMCSA has therefore determined that notice and 
comment are unnecessary to correct the drafting error and amend Sec.  
395.1(o) to allow the exception if not taken ``within the previous 6 
consecutive days.''

Regulatory Flexibility Act of 1980 (RFA)

    The RFA generally requires a description and analysis of final 
rules that will have a significant economic impact on a substantial 
number of small entities. Since this rule is not subject to the notice 
and public comment requirements of 5 U.S.C. 553, it is not subject to 
the provisions of the RFA.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires Federal agencies 
to assess the regulatory actions that may result in the expenditure by 
a State, local, or tribal government, in the aggregate, or by the 
private sector of $100 million or more in any one year. There are no 
costs associated with this rule.

Federalism

    This rule has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (Federalism). This rule 
does not impose any new requirement that: (1) has substantial direct 
effects on the States, the relationship between the Federal government 
and the States, or the distribution of power among the various levels 
of government; (2) imposes substantial direct compliance costs on State 
and local governments; or (3) preempts State law. This rule does not 
have any federalism implications.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in section 3 of Executive 
Order 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not concern an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Intergovernmental Review

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this action.

Collection of Information

    This rule contains no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Environmental Impact

    We have analyzed this action for purposes of the National 
Environmental Policy Act and have determined that this action does not 
have any effect on the quality of the environment.

Submission to Congress and the Comptroller General

    This final rule is also exempt from congressional review under 5 
U.S.C. 801 et seq., as added by the Small Business Regulatory 
Enforcement Fairness Act of 1996, since it only makes minor technical 
corrections to existing regulations.

List of Subjects in 49 CFR part 395

    Highway safety, Motor carriers, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, FMCSA amends title 49 of the 
Code of Federal Regulations, chapter III, subchapter B, as set forth 
below.

PART 395--HOURS OF SERVICE OF DRIVERS

0
1. The authority citation for Part 395 continues to read as follows:

    Authority: 49 U.S.C. 504, 14122, 31133, 31136, and 31502; sec. 
113, Pub. L. 103-311, 108 Stat. 1673, 1676; and 49 CFR 1.73.


0
2. Section 395.1 is amended by revising paragraphs (g)(1), (g)(2), and 
(o)(3), and revising the introductory paragraph (g)(3) to read as 
follows:


Sec.  395.1  Scope of rules in this part.

* * * * *
    (g) * * *
    (1) General property-carrying commercial motor vehicle. A driver 
who is driving a property-carrying commercial motor vehicle that is 
equipped with a sleeper berth, as defined in Sec. Sec.  395.2 and 
393.76 of this subchapter, may accumulate the equivalent of 10 
consecutive hours of off-duty time by taking a combination of at least 
10 consecutive hours off-duty and sleeper berth time; or by taking two 
periods of rest in the sleeper berth, providing:
    (i) Neither rest period is shorter than two hours;
    (ii) The driving time in the period immediately before and after 
each rest period, when added together, does not exceed 11 hours;
    (iii) The driver does not drive after the 14th hour after coming on 
duty following 10 hours off duty, where the 14th hour is calculated:
    (A) by excluding any sleeper berth period of at least 2 hours 
which, when added to a subsequent sleeper berth period, totals at least 
10 hours, and
    (B) by including all on-duty time, all off-duty time not spent in 
the sleeper berth, all sleeper berth periods of less than 2 hours, and 
any sleeper berth period not described in paragraph (g)(1)(iii)(A); and

[[Page 56212]]

    (iv) The driver may not return to driving subject to the normal 
limits under Sec.  395.3 without taking at least 10 consecutive hours 
off duty, at least 10 consecutive hours in the sleeper berth, or a 
combination of at least 10 consecutive hours off duty and sleeper berth 
time.
    (2) Specially trained driver of a specially constructed oil well 
servicing commercial motor vehicle at a natural gas or oil well 
location. A specially trained driver who operates a commercial motor 
vehicle specially constructed to service natural gas or oil wells that 
is equipped with a sleeper berth, as defined in Sec. Sec.  395.2 and 
393.76 of this subchapter, or who is off duty at a natural gas or oil 
well location, may accumulate the equivalent of 10 consecutive hours 
off duty by taking a combination of at least 10 consecutive hours of 
off-duty time, sleeper-berth time, or time in other sleeping 
accommodations at a natural gas or oil well location; or by taking two 
periods of rest in a sleeper berth, or other sleeping accommodation at 
a natural gas or oil well location, providing:
    (i) Neither rest period is shorter than two hours;
    (ii) The driving time in the period immediately before and after 
each rest period, when added together, does not exceed 11 hours;
    (iii) The driver does not drive after the 14th hour after coming on 
duty following 10 hours off duty, where the 14th hour is calculated:
    (A) by excluding any sleeper berth or other sleeping accommodation 
period of at least 2 hours which, when added to a subsequent sleeper 
berth or other sleeping accommodation period, totals at least 10 hours, 
and
    (B) by including all on-duty time, all off-duty time not spent in 
the sleeper berth or other sleeping accommodations, all such periods of 
less than 2 hours, and any period not described in paragraph 
(g)(2)(iii)(A); and
    (iv) The driver may not return to driving subject to the normal 
limits under Sec.  395.3 without taking at least 10 consecutive hours 
off duty, at least 10 consecutive hours in the sleeper berth or other 
sleeping accommodations, or a combination of at least 10 consecutive 
hours off duty, sleeper berth time, or time in other sleeping 
accommodations.
    (3) Passenger-carrying commercial motor vehicles. A driver who is 
driving a passenger-carrying commercial motor vehicle that is equipped 
with a sleeper berth, as defined in Sec. Sec.  395.2 and 393.76 of this 
subchapter, may accumulate the equivalent of 8 consecutive hours of 
off-duty time by taking a combination of at least 8 consecutive hours 
off-duty and sleeper berth time; or by taking two periods of rest in 
the sleeper berth, providing:
* * * * *
    (o) * * *
    (3) The driver has not taken this exemption within the previous 6 
consecutive days, except when the driver has begun a new 7- or 8-
consecutive day period with the beginning of any off duty period of 34 
or more consecutive hours as allowed by Sec.  395.3(c).

    Issued on: September 25, 2003.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. 03-24765 Filed 9-29-03; 8:45 am]
BILLING CODE 4910-EX-P