Eobr - "off duty/driving" fmsca feedback

[layoutshooter]

I have no doubt that this will get resolved. I am disapointed that this was not thought out better before this new contract was sent out. When I inquired about some of these things we are discussing the person I spoke to in contractor relations was not aware that the 7/10th rule was not a DOT requirement. (no need to mention names in here) We also have many questions about the charges for the TVAL equipment. It was explained to my satisfaction over the phone but they seemed reluctant to re-write the contract to match what I was told over the phone. That bothers me.

 

[MYGIA]

It may help to remember that no decision our carrier makes is made in a vacuum. With an in-house legal department, a complex body of law to deal with, the unknown territory being created by the new devices, over 1,000 trucks on the road, and the infinite set of variables this all creates, there is more to consider than a laid over contractor's desire to log him or herself off duty while driving to the grocery store.

I expect answers to the questions raised here will come. It just may take longer than us grocery-store-going contractors would like (such rebels we are...going to the grocery store and maybe even a movie!). We see it as a simple question. I believe those in the office have more to consider before they answer.

ATEAM: This is a good point. Thank you for the tactful reminder. Patience has never been my strong suit and forever remains a developmental need. I do, however, at least think an acknowledgement of e-mails received would be appropriate by all. Many do, but unfortunately, all in the office do not extend this courtesy. Even a simple – “ I have received your message and will get back to you in as timely a manner possible” would be a good step in the right direction.

 

[BigRed32771]

I believe DOT truck inspections are required once a year by the law. Some carriers impose the same requirement on its contractors. Our carrier requires DOT truck inspections twice a year. I know of at least one carrier that requires them every three months.

Just because a carrier has the right to impose more stringent requirements than the law requires, it does not mean that it must or that it will.

I don't see this as a case where our carrier has us by the short hairs and is imposing the 0.7 personal conveyance rule for no good reason. I see this as a case where the rule was decided upon for reasons that seemed good at the time.

With contractors now objecting and becoming well informed about what the law actually says regarding personal conveyance, I would expect the rule to be re-visited or at least fully explained to the fleet.

It may help to remember that no decision our carrier makes is made in a vacuum. With an in-house legal department, a complex body of law to deal with, the unknown territory being created by the new devices, over 1,000 trucks on the road, and the infinite set of variables this all creates, there is more to consider than a laid over contractor's desire to log him or herself off duty while driving to the grocery store.

I expect answers to the questions raised here will come. It just may take longer than us grocery-store-going contractors would like (such rebels we are...going to the grocery store and maybe even a movie!). We see it as a simple question. I believe those in the office have more to consider before they answer.

Phil, you are correct. I did have a conversation with a Southern Region representative of FMCSA this morning, and she affirmed my understanding of the rules. She has referred me to a national office person to obtain written interpretations, and I am attempting to provide that person with a detailed specific situation and related questions which may generate the specific information we need to take to FDCC.

I also had a conversation with Bob in logging. I shared with him a specific reference which was posted in the beginning of this thread, and he indicated that he had not seen that one before (49 CFR 395.8, Question 26) and that he would take it up the ladder.

The most important thing I got from Bob, though, is that the issue seems to boil down to one of "paper trail." They are concerned about liability if the EOBR indicates you were driving the truck prior to beginning a 14-hour clock. I compared it to driving my personal vehicle for hours before getting in the truck and the response was that since there was no paper trail it wasn't an issue.

If I can get something in writing from FMCSA I will post relevant information here.

 

[ATeam]

Well, at least there is a sign someone is listening and he admits to not knowing the whole story. That 0.7 rule is looking more and more arbitrary all the time, and unecessary. As our carrier office people get more educated about the rules the paper trail issue should go away.

As I read the rules, we could be waiting for freight all weekend long and drive our trucks to ten different places over a hundred miles total and log all of that driving off duty if the vehicle was being used as a personal conveyance. The rules seem to provide a great deal more latitude in this that our carrier as so far acknowledged.

Here's hoping that as our carrier gets familiar with the legal latitude the law provides, concerns about a paper trail will go away. Its not that the off-duty, personal conveyance driving will be hidden. It won't. It will be fully documented and it will be fully legal. Since it is legal, the liability concerns should also fade.

Good job, drivers, in researching the rules and bringing them to our attention here and to our carrier's attention. Because of your efforts, a ray of hope is shining where it did not shine before!

 

[layoutshooter]

This is business, it is our responsiblity to look our for ourselves. It helps when we look out for each other.

 

[BigRed32771]

Ok, I had a conversation with Tom Yager, Division Chief of the Driver and Carrier Operations Division in DC. I have supplied him with a written situation description and specific questions and requested clarification and guidance on this issue. He indicated it would be a week or so to get a reply, and when I get it I'll post the relevant portions here, as well as taking them to FDCC.

I got 2 things generally from him in our conversations. Regarding the point about having met sleep requirements, he indicated that they would probably not put that into writing because there is no way to verify what someone has done in their off-duty or sleeper berth time. I took it from this comment that for the purposes of FMCSA, off-duty is off-duty. This would, in fact, be consistent with the guidance we have already seen regarding being allowed to drive "off-duty" too and from a terminal before and after a work day and not including it as part of the duty time.

The other thing he said which caught my attention is that technically there are no such things as EOBR's, because the agency has not issued rules regarding them yet. What we will have is an electronic logging software which is outside the scope of current regs. He indicated that he expected that when rules regarding EOBR's are finally issued, there will be something in them to cover a "driving off-duty" status. I compared it to a "5th line" on the log and, subject to the observation that the grid we use for logging will not necessarily be a part of the electronic logging when the time comes, he agreed that the comparison is a reasonable analogy.

Final comment at this time is that Mr. Yager thought that their guidance would probably turn on the point we've already seen, i.e. 49 CFR 395.8, Question 26, which is cited in the opening message of this thread.

Further as this story continues to develop.

 

[ATeam]

Thank you, Doug. I appreciate the good work you are doing. I'm sure others do too.

 

[layoutshooter]

Count me in on that Phil, it is a great help to all of us.

 

[Special K]

Since I was the one who quoted the .7 mi limit initially, I thought I'd add this. About 10 days ago, Doc and I had breakfast with Terry O'Connell in St. Louis. When I mentioned the .7 mi., he said that the system has a variable range, he thought it was .7 to 3 miles, and that FedEx had just chosen the .7 as a more or less arbitrary number. So it's not cast in stone, as it seemed to be during the conference call.

 

[BigRed32771]

Since I was the one who quoted the .7 mi limit initially, I thought I'd add this. About 10 days ago, Doc and I had breakfast with Terry O'Connell in St. Louis. When I mentioned the .7 mi., he said that the system has a variable range, he thought it was .7 to 3 miles, and that FedEx had just chosen the .7 as a more or less arbitrary number. So it's not cast in stone, as it seemed to be during the conference call.

From info we've seen here and that I've been given in conversations with FMCSA reps, it's clear that ANY mileage limit for "off-duty personal use" is an arbitrary number. FMCSA has no requirement or limitation at all for this situation.

 

[BigRed32771]

I received a response to my request for clarification from FMCSA in Washington, DC. I post it here below. Please note the comment specifically as to what constitutes off-duty as in "relieved of responsibility." I found that enlightening and helpful.

Begin:

Thank you for contacting the Federal Motor Carrier Safety Administration (FMCSA) at the U.S. Department of Transportation for information. In your attached letter, dated 10 March, you have provided a very specific scenario in which you are requesting guidance for a series of questions related to FMCSA's Hours of Service (HOS) rules as they apply to the use of a commercial motor vehicle (CMV) for personal reasons when off-duty.

It may be helpful to first establish what constitutes "off-duty" under this rule. To be considered off-duty a 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. Therefore, in the scenarios you presented you were considered off-duty as you had delivered the load and you are the owner operator of the CMV.

When a driver is relieved from work and all responsibility for performing work, time spent traveling from a driver’s home to his/her terminal (normal work reporting location), or from a driver’s terminal to his/her home, may be considered off-duty time. Similarly, time spent traveling short distances from a driver’s lodgings to restaurants in the vicinity of such lodgings may be considered off-duty time. Although there is no specific guidance defining what constitutes "short distances" one should determine this distance as what a typical person may consider it to be. For example, traveling 100 miles to go to dinner would not be considered a short distance by a reasonable person. This specific topic is discussed in section 395.8, question #26, of the Federal Motor Carrier Safety Regulations (FMCSRs). You can review all FMCSR by visiting our website at Federal Motor Carrier Safety Administration In regards to logging requirements while taking these short trips, there are no special log entries to be entered as it would be a continuation of off-duty. If you accepted a pick-up on Monday morning your on-duty time begins at the time you leave the truck stop to pick up the load. Additional information regarding how to properly record driving statuses on your driver record can be found at 49 CFR 395.8(a)(2)(B).

In response to your last scenario, as you were off from Friday at noon until Sunday morning (34+ hours) you are able to begin a "full 14 hour clock". For more information pertaining to these HOS regulations, the HOURS OF SERVICE TRUCK DRIVER'S GUIDE is available on the Agency's HOS webpage at: http://www.fmcsa.dot.gov/rules-regulations/truck/driver/hos/fmcsa-guide-to-hos.pdf

I hope this information will be of assistance to you.


Christine Hydock
Driver and Carrier Operations Division
Federal Motor Carrier Safety Administration Department of Transportation [email protected]

END

Hope this is helpful. I will be printing it out with my original letter describing the scenario addressed and forwarding to Bob at Safety for his consideration in the near future (i.e., when I get near a printer again).

 

[ATeam]

It is very helpful. Thank you again for the good work you are doing with this and for the interesting and informative information.

 

[BigRed32771]

For those who are following this discussion, here is the scenario and related questions which generated the response from FMCSA posted earlier.

Begin:

An example of the specific situation would be as follows: a driver has delivered a load and driven to a truck stop to wait for his next load. The truck is owned by the driver, leased to a carrier for exclusive use. The driver is an independent contractor, operating his own (leased out) vehicle. The carrier does not have terminals and drivers are on their own regarding where and how to spend their time between loads. He arrives at the truck stop at noon on Friday, marks himself off-duty, and leaves the truck to get some lunch. He is carrying his cell phone because he will either receive a phone call from a dispatcher informing him of a load which he might want to place on his truck or a notification that an offer for such load is available either on the in-truck communication equipment or by calling in to dispatch to get the information. After lunch the driver goes to the TV lounge for awhile, and then he goes back to his truck to read and/or nap while waiting for a load offer, marking himself into the sleeper berth. If he returns to the truck stop to eat, watch TV, shower or do laundry, he will again mark himself off-duty, and then back into the sleeper berth when he returns to the truck. On Saturday the driver decides to go to a mall where he can do some shopping, watch a movie, and eat at a different restaurant choice before returning later to the truck stop to sleep again. On Sunday he wants to leave the truck stop and attend worship services at a local church, then take in some local tourist sites, and then return to the truck stop again. On Monday he marks himself on-duty and leaves the truck stop to go to a shipper location and pick up a load and depart for the consignee location.

Questions:
1) In the above situation, is the driver permitted to mark himself off-duty when leaving the truck stop to go to the mall, church or sight-seeing, and consider the time and miles driving the truck to be personal use of the CMV and log that time as off-duty? How should this be indicated on his log? Does distance to and from the chosen recreational destinations make a difference and if so how does the driver determine and log the situation?

2) If the driver had received a dispatch offer for that Monday pickup while sitting in the TV lounge on Friday afternoon are his Saturday and Sunday excursions away from the truck stop considered off-duty as long as the load has not been picked up yet?

3) If the driver had received the dispatch offer for that Monday pickup while at the mall on Saturday afternoon can he still consider the trip to and from the mall as off-duty? Will it affect the status of his Sunday activities and use of the vehicle?

4) If the driver had received a dispatch offer just as he arrived back at the truck stop from the mall on Saturday evening for an urgent load which required an immediate pick-up and departure towards the consignee for a Sunday morning delivery, may the driver accept the load and mark himself on-duty and begin a full 14-hour clock? If so, how should this be marked on the log?

End.

Note that only the 4th question generated a specific responding comment, but that the response did not address the question as presented. I interpret the response to indicate that the standard 14-hour clock would apply, but that there would not be a restart due to the lack of 34 hours off-duty.

 

[BigRed32771]

I had a chance to talk to Bob in logging this past week, and he indicated that management was indeed looking at the info which we have been providing and that he understood that a revision of the policy was in the works. We'll see what time brings.

 

[TeamCaffee]

Jason talked about 45 minutes personal time for each driver if you are not under a load at the breakfast at MATS. The details are still being worked out on how to go about implementation.

 

[ATeam]

I suggest that if you are off duty and not under load, FedEx Custom Critical should allow as much personal conveyance freedom as the law allows. Why be more restrictive?

The carrier would get no more brownie points in any arena I know. I can't see insurance rates being affected one way or another as the personal conveyance rules have been in effect for a long time and do not change when a new device is placed in the truck. Driver behavior will not change. The same miles will likely be driven The change will be in the inability to reset one's log book, thereby making the truck less available in certain scenarios.

On a recent layover in Texas, we waited for freight a couple days. In that time we drove just under 100 miles to move about between the delivery that brought us into the area, a truck stop, bookstore, park, and a favorite restaurant. Doing so off duty as personal conveyance enables us to reset our log book hours. Being forced to go on duty for personal conveyance trips serves no purpose that I see.

I am open to the possibility that I am blind to something important. Can someone explain exactly: (1) what purpose would be served, (2) what benefits would accrue, and (3) to whom the benefits accrue, when contractors are forced to log on duty time when the law allows them to log the same time as off duty, and account for miles driven as personal conveyance?