[Code of Federal Regulations]

[Title 49, Volume 5]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR395.13]



[Page 460-461]

 

                        TITLE 49--TRANSPORTATION

 

                      DEPARTMENT OF TRANSPORTATION

 

PART 395_HOURS OF SERVICE OF DRIVERS--Table of Contents

 

Sec. 395.13  Drivers declared out of service.



    (a) Authority to declare drivers out of service. Every special agent 

of the Federal Motor Carrier Safety Administration (as defined in 

appendix B to this subchapter) is authorized to declare a driver out of 

service and to notify the motor carrier of that declaration, upon 

finding at the time and place of examination that the driver has 

violated the out of service criteria as set forth in paragraph (b) of 

this section.

    (b) Out of service criteria. (1) No driver shall drive after being 

on duty in excess of the maximum periods permitted by this part.

    (2) No driver required to maintain a record of duty status under 

Sec. 395.8 or Sec. 395.15 of this part shall fail to have a record of 

duty status current on the day of examination and for the prior seven 

consecutive days.

    (3) Exception. A driver failing only to have possession of a record 

of duty status current on the day of examination and the prior day, but 

has completed records of duty status up to that time (previous 6 days), 

will be given the opportunity to make the duty status record current.

    (c) Responsibilities of motor carriers. (1) No motor carrier shall:

    (i) Require or permit a driver who has been declared out of service 

to operate a commercial motor vehicle until that driver may lawfully do 

so under the rules in this part.



[[Page 461]]



    (ii) Require a driver who has been declared out of service for 

failure to prepare a record of duty status to operate a commercial motor 

vehicle until that driver has been off duty for the appropriate number 

of consecutive hours required by this part and is in compliance with 

this section. The appropriate consecutive hours off-duty may include 

sleeper berth time.

    (2) A motor carrier shall complete the ``Motor Carrier Certification 

of Action Taken'' portion of the form MCS-63 (Driver-Vehicle Examination 

Report) and deliver the copy of the form either personally or by mail to 

the Division Administrator or State Director Federal Motor Carrier 

Safety Administration, at the address specified upon the form within 15 

days following the date of examination. If the motor carrier mails the 

form, delivery is made on the date it is postmarked.

    (d) Responsibilities of the driver. (1) No driver who has been 

declared out of service shall operate a commercial motor vehicle until 

that driver may lawfully do so under the rules of this part.

    (2) No driver who has been declared out of service, for failing to 

prepare a record of duty status, shall operate a commercial motor 

vehicle until the driver has been off duty for the appropriate number of 

consecutive hours required by this part and is in compliance with this 

section.

    (3) A driver to whom a form has been tendered declaring the driver 

out of service shall within 24 hours thereafter deliver or mail the copy 

to a person or place designated by motor carrier to receive it.

    (4) Section 395.13 does not alter the hazardous materials 

requirements prescribed in Sec. 397.5 pertaining to attendance and 

surveillance of commercial motor vehicles.



[44 FR 34963, June 18, 1979, as amended at 47 FR 53392, Nov. 26, 1982; 

51 FR 12622, Apr. 14, 1986; 53 FR 18058, May 19, 1988; 53 FR 38670, 

Sept. 30, 1988; 53 FR 47544, Nov. 23, 1988; 60 FR 38748, July 28, 1995; 

68 FR 22516, Apr. 28, 2003; 70 FR 50073, Aug. 25, 2005]