FMCSA Revises ‘Overly Restrictive’ Language Concerning Breaks

HOS

HOSYesterday, the FMCSA announced changes will be made to the “overly restrictive and inconsistent” language concerning breaks within the hours of service guidelines.

According to the FMCSA, the language outlining what constitutes a break and how to document breaks in logbooks is inconsistent with HOS regulations and the agency feels the language discourages drivers “from taking breaks during the work day.”

In 1997, the FMCSA issued these guidelines for breaks:

Question 2: What conditions must be met for a Commercial Motor Vehicle (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 Commercial Motor Vehicle (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.

The FMCSA states that the agency has not received any requests for clarification, however, the agency believes the out-of-date guidelines no longer provide practical assistance to drivers who are attempting to comply with the new HOS rules.

The 1997 guidelines included “unenforceable performance standards for assessing the validity of the break,” the FMCSA stated.  Furthermore, the 1997 guidelines relieved the carrier and the driver of the responsibility of maintaining a copy of the instructions concerning breaks and record keeping.

The FMCSA has issued the following updated guidelines for breaks and record keeping:

Hours of Service for Commercial Motor Vehicle Drivers Regulatory Guidance for 49 CFR 395.2, Definitions

Question 2: What conditions must be met for a commercial motor vehicle (CMV) driver to record meal and other routine stops made during a work shift as off-duty time?

Guidance: Drivers may record meal and other routine stops, including a rest break of at least 30 minutes intended to satisfy 49 CFR 395.3(a)(3)(ii), as off- duty time provided:

1. The driver is 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. During the stop, and for the duration of the stop, the driver must be at liberty to pursue activities of his/her own choosing.

Through the revision of the regulatory guidance, FMCSA makes clear that the motor carrier need not provide formal guidance, either verbal or written, to drivers with regard to the specific times and locations where rest break may be taken. The revised guidance also emphasizes that periods of time during which the driver is free to stop working, and engage in activities of his/her choosing, may be recorded as off-duty time, irrespective of whether the driver has the means or opportunity to leave a particular facility or location. All previously issued guidance on this matter should be disregarded if inconsistent with today’s notice.