[Federal Register Volume 78, Number 208 (Monday, October 28, 2013)]
[Rules and Regulations]
[Pages 64179-64181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25380]



Federal Motor Carrier Safety Administration

49 CFR Part 395

[Docket no. FMCSA-2004-19608]
RIN 2126-AB65

Hours of Service of Drivers; Amendment of the 30-Minute Rest 
Break Requirement

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

ACTION: Final rule.


SUMMARY: The FMCSA amends its December 27, 2011, final rule entitled 
``Hours of Service of Drivers'' to provide an exception from the 30-
minute rest break requirement for short-haul drivers who are not 
required to prepare records of duty status (RODS). The Agency also 
removes regulatory text made obsolete by the passing of the July 1, 
2013, compliance date for the final rule. This action responds to a 
decision of the United States Court of Appeals for the District of 
Columbia Circuit (the Court).

DATES: Effective October 28, 2013.

ADDRESSES: For access to the docket to read background documents, 
including those referenced in this document, go to:
     Regulations.gov, http://www.regulations.gov, at any time 
and insert FMCSA-2004-19608 in the ``Keyword'' box, and then click 
     Docket Management Facility, Room W12-140, DOT Building, 
1200 New Jersey Avenue SE., Washington, DC 20590. You may view the 
docket online by visiting the facility between 9 a.m. and 5 p.m. e.t., 
Monday through Friday except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, Driver and 
Carrier Operations Division, Federal Motor Carrier Safety 
Administration, U.S. Department of Transportation, 1200 New Jersey 
Avenue SE., Washington, DC 20590; telephone (202) 366-4325.


I. Legal Basis for Rulemaking

    The legal basis for the December 27, 2011, final rule (76 FR 81134, 
at 81140) is fully addressed there; it is also applicable to this rule. 
This final rule is necessary because of the Court's vacatur of 49 CFR 
395.3(a)(3)(ii) as it applies to short-haul drivers operating under 49 
CFR 395.1(e)(1)-(2).
    While the Administrative Procedure Act (APA) normally requires 
issuance of a notice of proposed rulemaking (NPRM) and an opportunity 
for public comment prior to publication of a final rule, the APA 
provides an exception when an agency ``for good cause finds . . . that 
notice and public procedure . . . are impracticable, unnecessary, or 
contrary to the public interest.'' 5 U.S.C. 553(b)(B). Because this 
final rule makes only the changes necessary to conform the hours-of-
service (HOS) regulations to the Court's decision, FMCSA finds that 
notice and comment are both unnecessary and contrary to the public 
interest. For the same reason, the Agency finds good cause pursuant to 
49 U.S.C. 553(d)(3) to make this rule effective upon publication.

II. Background Information

    On December 27, 2011, FMCSA published a final rule amending its HOS 
regulations for drivers of property-carrying commercial motor vehicles 
(CMVs). The final rule included a new provision requiring drivers to 
take a rest break during the work day under certain circumstances. 
Drivers may drive a CMV only if a period of 8 hours or less has passed 
since the end of their last off-duty or sleeper-berth period of at 
least 30 minutes. FMCSA did not specify

[[Page 64180]]

when drivers must take the 30-minute break but the rule requires that 
they wait no longer than 8 hours after the last off-duty or sleeper-
berth period of that length or longer to take the break. Drivers who 
already take shorter breaks during the work day could comply with the 
rule by taking one of the shorter breaks and extending it to 30 
minutes. The new requirement took effect on July 1, 2013.
    On August 2, 2013, the U.S. Court of Appeals for the District of 
Columbia Circuit issued its opinion on petitions for review of the 2011 
HOS rule filed by the American Trucking Associations, Public Citizen, 
and others [American Trucking Associations, Inc., v. Federal Motor 
Carrier Safety Administration, No. 12-1092 (D.C. Cir. Aug. 2, 2013)]. 
The Court upheld the 2011 HOS regulations in all respects except for 
the 30-minute break provision as it applies to short haul drivers. 
While the Court's mandate would not have issued until 52 days after 
entry of judgment (unless a party files a petition for rehearing, 
either by the panel or en banc, or moves to stay the mandate pending 
the filing of a petition for certiorari in the Supreme Court), the 
Agency ceased enforcement of the 30-minute rest break provision against 
short-haul operations effective August 5, 2013.
    The Agency also requested that its State enforcement partners cease 
enforcement of the State versions of this provision beginning August 5, 
2013, with the understanding that they would not be found in violation 
of the Motor Carrier Safety Assistance Program (MCSAP) regulations (49 
CFR Part 350) for doing so.

III. Impact of Court's Decision

    The Court vacated the rest-break requirement of 49 CFR 
395.3(a)(3)(ii) with respect to any driver qualified to operate under 
either of the ``short haul'' exceptions outlined in 49 CFR 395.1(e)(1) 
or (2). An introductory clause excluding those drivers has been added 
to 49 CFR 395.3(a)(3)(ii). Specifically, the following drivers are no 
longer subject to the 30-minute break requirement:
     All drivers (whether they hold a commercial driver's 
license (CDL) or not) who operate within 100 air-miles of their normal 
work reporting location and satisfy the time limitations and 
recordkeeping requirements of Sec.  395.1(e)(1).
     All non-CDL drivers who operate within a 150 air-mile 
radius of the location where the driver reports for duty and satisfy 
the time limitations and recordkeeping requirements of Sec.  

IV. Regulatory Analyses

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    FMCSA has determined that this action does not meet the criteria 
for a ``significant regulatory action'' as specified in Executive Order 
12866, as supplemented by Executive Order 13563, or within the meaning 
of the Department of Transportation regulatory policies and procedures 
(44 FR 11034, Feb. 26, 1979). While the December 27, 2011, final rule 
was an economically significant regulatory action, this final rule, as 
explained above, is necessary to implement the Court's opinion vacating 
part of the December 2011 rule. The rule simply codifies the effect of 
the Court's decision.

Regulatory Flexibility Act

    FMCSA is not required to prepare a final regulatory flexibility 
analysis for this final rule under the Regulatory Flexibility Act, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, 5 U.S.C. 601, et seq., because the Agency has not issued an NPRM 
prior to this action. This final rule also complies with the 
President's memorandum of January 18, 2011, entitled Regulatory 
Flexibility, Small Business, and Job Creation (76 FR 3827). As 
explained above, promulgation of this final rule is required by the 
Court's decision. Additionally, Sec.  395.3(a)(3)(ii), as it applies to 
short-haul drivers, was vacated approximately one month after it took 
effect so very little of the costs and benefits of the break 
requirement for these drivers were ever realized.

Unfunded Mandates Reform Act of 1995

    FMCSA is not required to prepare an assessment under the Unfunded 
Mandates Reform Act of 1995, 2 U.S.C. 1531, et seq., evaluating a 
discretionary regulatory action because the Agency has not issued an 
NPRM prior to this action. Further, as addressed above, promulgation of 
this final rule is required as a result of the Court's decision.

Paperwork Reduction Act

    This rule includes no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). It neither 
increases nor decreases the hours for FMCSA's information collection 
burden for 49 CFR Part 395, as approved by OMB under Control Number 

National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this final rule for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined under our environmental procedures Order 5610.1, issued 
March 1, 2004 (69 FR 9680), that the results of this analysis, and the 
supporting 2011 hours-of-service environmental assessment, show that 
this final rule will have no impact on the environment and associated 
areas FMCSA analyzes within NEPA documents. Thus, FMCSA finds no 
significant impact to the environment from this action and will not 
conduct an environmental impact statement.
    FMCSA also analyzed this action under section 176(c) of the Clean 
Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's general conformity 
requirement since it would result in either no emissions increase, or 
an increase in emissions that is clearly de minimis.

Executive Order 12372 (Intergovernmental Review of Federal Programs)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this action.

Executive Order 12630 (Constitutionally Protected Property Rights)

    This final rule does not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630.

Executive Order 12898 (Environmental Justice)

    This final rule raises no environmental justice issues nor is there 
any collective environmental impact resulting from its promulgation.

Executive Order 12988 (Civil Justice Reform)

    This final rule meets applicable standards in section 3(a) and 
3(b)(2) of Executive Order 12988 to minimize litigation, eliminate 
ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    This final rule does not pose an environmental risk to health or 
safety that may disproportionately affect children.

[[Page 64181]]

Executive Order 13132 (Federalism)

    A rulemaking has implications for Federalism under Executive Order 
13132, Federalism, if it has a substantial direct effect on State or 
local governments and would either preempt State law or impose a 
substantial direct cost of compliance on State or local governments. 
FMCSA analyzed this action in accordance with Executive Order 13132. 
This final rule does not preempt or modify any provision of State law, 
impose substantial direct unreimbursed compliance costs on any State, 
or diminish the power of any State to enforce its own laws. 
Accordingly, this rulemaking does not have Federalism implications.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    FMCSA analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. FMCSA determined that it is not a ``significant 
energy action'' under that Executive Order because it is not 
economically significant and is not likely to have an adverse effect on 
the supply, distribution, or use of energy.

List of Subjects in 49 CFR Part 395

    Highway safety, Motor carriers, Reporting and recordkeeping 

    For the reasons discussed in the preamble, FMCSA amends 49 CFR 
chapter III as set forth below:


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

    Authority:  49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 
113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-
159 (as transferred by sec. 4115 and amended by secs. 4130-4132, 
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. 
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 
Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; 
and 49 CFR 1.73.

2. Revise Sec.  395.3(a)(3)(ii), (c), and (d) to read as follows:

Sec.  395.3  Maximum driving time for property-carrying vehicles.

    (a) * * *
    (3) * * *
    (ii) Rest breaks. Except for drivers who qualify for either of the 
short-haul exceptions in Sec.  395.1(e)(1) or (2), driving is not 
permitted if more than 8 hours have passed since the end of the 
driver's last off-duty or sleeper-berth period of at least 30 minutes.
* * * * *
    (c)(1) Any period of 7 consecutive days may end with the beginning 
of an off-duty period of 34 or more consecutive hours that includes two 
periods from 1:00 a.m. to 5:00 a.m.
    (2) Any period of 8 consecutive days may end with the beginning of 
an off-duty period of 34 or more consecutive hours that includes two 
periods from 1:00 a.m. to 5:00 a.m.
    (d) A driver may not take an off-duty period allowed by paragraph 
(c) of this section to restart the calculation of 60 hours in 7 
consecutive days or 70 hours in 8 consecutive days until 168 or more 
consecutive hours have passed since the beginning of the last such off-
duty period. When a driver takes more than one off-duty period of 34 or 
more consecutive hours within a period of 168 consecutive hours, he or 
she must indicate in the Remarks section of the record of duty status 
which such off-duty period is being used to restart the calculation of 
60 hours in 7 consecutive days or 70 hours in 8 consecutive days.

    Issued in Washington, DC, on October 22, 2013, under authority 
delegated in 49 CFR 1.87.
Anne S. Ferro,
[FR Doc. 2013-25380 Filed 10-25-13; 8:45 am]