Channel 19

Todd Dills

Looking for flexibility in the hours revision’s on-duty definitions change

| July 23, 2013
Sitting in a freight yard waiting for a trailer -- does such constitution total relief from duty? With new FMCSA guidance on off-duty time, the answers to such questions may increasingly be up to you, the driver.

Sitting in a freight yard waiting for a trailer — does such constitute total relief from duty? With new FMCSA guidance on off-duty time, the answers to such questions may increasingly be up to you, the driver.

I’ve written about this provision of the new hours rule before, of course: in the recent rewrite of the hours of service regulations that went into effect July 1, FMCSA excluded time spent resting in a parked truck from the definition of on-duty time. Some viewed it as a mere technicality, a bone thrown to daycab or pickup drivers to force the 30-minute off-duty rest break to make sense if there happened to be nowhere else palatable to go during said break other than the front seat of the parked truck. Attempting to harmonize, as it were, the letter of the law with the reality of life out on the road, given the new break requirement.

But, as I wrote briefly in this story on the hours regs, the exclusion might also be seen as a flexibility-enhancing measure that could mitigate against long delays at shippers/receivers eating up cumulative on-duty hours.

Leading into the July 1 enforcement date, FMCSA would only reiterate their general guidance on what would constitute off-duty time, though they admitted that such time would be next to impossible to enforce as long as the truck was actually parked during whatever off-duty period was logged.

Just days after the July 1 implementation date of the new rules, I had this back-and-forth in response to a query from an advisor to a fleet, his comments in italics:

In the last edition you said that in the new hours rules, FMCSA says time spent in a parked truck waiting to load or unload can be shown legally off duty. Where do I find this in writing? We’re being told this is wrong, can you help me? I really need clarification on this — our safety director is saying different.

It’s a gray area, David – talking to FMCSA, basically they acknowledge that it depends on the circumstances, generally, of waiting time to load or unload. If a driver is “released from all responsibility” for the truck while sitting at a shipper/receiver facility, which you could read as analogous to, say, sitting in a parking lot waiting for the place to open or waiting for an appointment time or something of this nature (i.e. you’re not sitting in a line of trucks with the truck running, waiting for an open dock, etc.), then it seems reasonable to log that time off-duty and permissible under the new on-duty definition. Here’s how it reads:

“FMCSA  proposed to exclude from the definition of on-duty time any time resting in a parked CMV…. FMCSA is adopting the changes as proposed. FMCSA emphasizes that the changes to the definition do not alter the existing parts of the definition that define, as on duty, ‘(5) All time loading or unloading a commercial motor vehicle, supervising, or assisting in the loading or unloading, attending a commercial motor vehicle being loaded or unloaded, remaining in readiness to operate the commercial motor vehicle, or in giving or receiving receipts for shipments loaded or unloaded.’ Unless a driver is released from all responsibility for the vehicle while waiting to be loaded or unloaded, time spent waiting is still considered on duty time.”

The text above is from the Final Rule. Here’s a link to the full text if it helps. 

As FMCSA basically put their interpretation of this to me (and I feel like that’s how this reads): in circumstances where you can reasonably say, “Hey, I know basically how long it’s going to take them to get to me so I’m going to go off-duty for that time and sit here in the driver seat and rest,” you can log it off-duty. Definitely a gray area, and FMCSA acknowledges as much – they also say, “We’re aware how nearly impossible this is to enforce,” essentially.

I’d be interested to hear your safety director’s thoughts on it if he/she thinks the scenario I’ve described or similar scenarios wouldn’t be legal to log off-duty – it could be an item to further discuss if folks are really reading the rule quite differently.

Yes, everybody I have spoken to is going to take advantage of the gray area due to the fact that productivity and driver wages continue to slip…. I have been driving [our safety director] nuts because everything you read says carriers are really going after the advantage of using off duty while sitting at a customer to help the drivers with available work hours. The issue I see is when a driver arrives at a location and he is not responsible for loading or unloading, just waiting, is he considered relieved of duty until he is finished? And it reads both ways. Thanks for your time and concern on this. I’m positive all companies are really concerned about how this will be handled.

[END EXCHANGE]

The problem comes in with these phrases in the on-duty definition to include time spent “attending a commercial motor vehicle being loaded or unloaded, remaining in readiness to operate the commercial motor vehicle, or in giving or receiving receipts for shipments loaded or unloaded.” So you’re on-duty when you’re walking in to hand over the paperwork but could potentially be off-duty if you’re just waiting for the truck to be loaded but aren’t attending the vehicle. And if you’re waiting for a call that could come at any time to tell you a dock is ready but are otherwise doing absolutely nothing, are you “in readiness” to drive or just resting, off-duty?

It depends on what your definition of is is, right? In any case, just one week following that exchange, FMCSA went farther with off-duty guidance in a way that I think moves closer to making the gray areas less so, but not entirely white or black or at least non-gray, expressly giving drivers latitude to determine when they are and aren’t off duty.

The old off-duty guidance stretched back to 1997, and given the fact of the 30-minute mandatory break today, the agency noted in new guidance issued a week and a half ago now, the old off-duty guidance was in contradiction with current rules. Below see how they changed it: language cut from the guidance is striken, while language added is in [/] and italicized. Keep in mind that the context for the guidance is logging off-duty breaks in light of the 30-minute mandatory break requirement, but if “routine stops” can be interpreted to include stops at shipper/receiver facilities, wouldn’t delays there where the “driver is at liberty to pursue activities of his/her own choosing” qualify as off-duty time (note that FMCSA removed the requirement for off-duty time that the driver must be able to leave the vehicle and premises)?

Tell me your thoughts on it and/or what you may or may not have been hearing from safety directors and law enforcement out there here in the comments. There’s some related discussion about some of the seeming contradictions in all of this under the news story about the revised guidance here.

 

[GUIDANCE TEXT BEGINS -- DOWNLOAD THE FULL FEDERAL REGISTER NOTICE HERE]

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:
[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 must have been[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. 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.[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 and to leave the premises where the vehicle is situated.

  • EF McHenry

    The motivation behind all this frustration about off-duty and on-duty not driving time and definitions, has nothing to do with the mandatory 30min off duty break! It is being driven by the desire to log hours upon hours of on-duty not driving(line 4)as off-duty(line 1 or line 2 sleeper berth). Carriers are trying to circumvent their worst nightmare where drivers on EOBRs/ELDs log all dock time, load or unload, as on-duty not driving and eat up a significant % of the 70hrs/week! The goal is to redefine what it means to be on-duty and off-duty. That’s the prize and large ATA carriers know this. If they can get a robust redefinition of on-duty not driving, carriers can and will compel all hrs loading/unloading to be logged as off-duty.

    This is also where harassement occurs as well! The reason is because as I’ve said time and time again they want as much of the 70hrs/week to be dedicated to line 3 or on-duty driving. The reason is to maximize drive time at the expense of accounting for all on-duty not driving work, especially since the new 34hr restart for all intents & purposes amounts to a 2day affair!

    So what’s the problem? All these large ATA carriers have local drivers who pickup and deliver loads dropped on their yards. And they are paid anywhere between $12-$18/hr average! Why are their line drivers not worthy of similiar compensations. Is their something different here? Well I think not! It is simply a way to maximize unpaid work!

    So what does being off-duty mean in general anyway?

    Well here are some ideas I found:

    A.) Off-duty-not at one’s post or work: at liberty
    B.) Off-duty-not working, on leave, at leisure
    C.) Off-duty personal time, leave, or pass
    D.) Off-duty-you’re own time, you are not reporting to anyone and you are not obligated to work or be on-duty
    E.) Off-duty-not responsible
    F.) Off-duty-a period when a person is not at work
    So what does attending a motor vehicle mean?
    I found attending a motor vehicle means the following under FMCSA
    -Attendance and surveillance of motor vehicle-
    Part 397
    , 397.3
    Subpart A – General
    * Attendance and surveillance of motor 397.5 vehicles
    (1)A motor vehicle is attended when the person in charge of the vehicle is on the vehicle, awake, and not in a sleeper berth, or is within 100 feet of the vehicle and has it within his/her unobstructed field of view.
    (2)A qualified representative of a motor carrier is a person who–
    (iv) Is authorized to move the vehicle and has the means and ability to do so.
    Regulations current to Apr 12th 2013
    Can anyone actually think or believe a driver at a shpr or rcvr can really be off-duty? Come on! What driver out their is really relieved of obligation? What driver at a shpr or rcvr can really be able to be relief and have no obligation so as to be able to go whatever on their own leisure or liberty or be on leave or pass or not be obligated in any way, ready to respond at a moments notice when loading or unloading is complete! How much more are we gonna try to pretend a driver on a dock can actually be off-duty? If any of that is possible why on earth do large carriers who are member carriers of the American Trucking Association continue to pay hourly wage to their local truck drivers and consider all their hours as on-duty??
    Please Someone Explain This To Me!! I’m Desperate For A Answer Here!! This is the perennial question in trucking today. Refine this and you will find yourself asking and dealing with this all over again when people continue to die on the highways and drivers are still working unpaid, attending and ready, around the clock on and on and on…….. Available in the morning waiting for a load and rcvg loads late in the day that must be run throughout the night! I see greed from all side standing in the way of real change! Economist Peter Schiff one said something like this: one regulation leads to another regulation which leads to more regulations to correct prior ones ad infinitum… Right now the govt and corporate trucking interest are just getting warmed up! Like Ayn Rands opiate talk, they are all foaming at the mouth, with law enforcement providing a moral framework justification! And It will never stop unless we decide today to draw that line in the sand and say enough is enough and stop! I’m just saying…….

  • Todd Dills

    I hear you, E.F., but they did change the on-duty definitions with the new rules to exclude time spent resting in a parked truck, of course, which then opened up the current on-duty/off-duty gray area we’re talking about here. But sure, all told, I hear you on the connection to EOBRs — if you’re going to get an hours rewrite that reduces drivers’ time driving, see how much revision you can get to maximize off-duty time, redefining what it is.

  • EF McHenry

    Todd I don’t accept FMCSAs recent declaration in the HOS change saying that off-duty status includes resting in a parked commercial vehicle somehow negates all prior on-duty not driving definitions listed under *395.2 If fact FMCSA says as much in particular definition (5) . My take is that FMCSA is simply making clear, a driver under no obligation, say parked @ a Walmart or Target, after shopping, where the driver is clearly under no obligation or duty, yet, for lack of a better word, is in attendance of the vehicle, can be considered off-duty. Such a driver is not standing in readiness to perform a obligatory task! Such a driver could be found sitting @ a truck stop resting etc. The ambiguity is coming from those carrier advisors and representatives who are obfuscating with this to effect further change! Clearly there is endless dissatisfaction with those stake-holders not getting their desired results!

    I’m waiting for another acticle on EOBRs/ELDs, I have more to say on it. Thanks for your response!

  • Todd Dills

    Thanks for all your thoughts on this, E.F., no doubt — I’m revisiting this in another post soon, given some other responses I’ve gotten as well. Appreciate all the input, as always. So, ultimately, you don’t see big holes in this, really, other than in the way some of the folks around trucking “want to” interpret it, eh? I’ve got an example from law enforcement that suggests the opposite of that interpretation that I’ll share soon. Again, thanks for the thoughts.

  • EF McHenry

    Yes Todd that is correct! Let me as you this over this public forum: how do you get a driver @ a shpr or rcvr relieved of duty but that same driver is always standing in readiness?? Any driver @ anytime and @ all time @ a shpr or rcvr is always standing in readiness!! This is the key right here! If you have a girl assigned to a cash register @ the front of a dept store with no customers to take care of, is she not still on-duty working?? We are acting like a truck driver must have laborious exertion to be considered on-duty! And this can lead to a discussion of what it means to do work. Is it physical or mental? Maybe you are trying to suggest that a driver in readiness is like a tow truck driver waiting on-call! #1 I’d disagree with that since I already likened a trucker standing in readiness to a cashier waiting for her next customer when there aren’t any. #2 Recall those on-call Dr’s, tow truck driver, dentists, rolling mobile mechanics get paid a exorbitant amount of money since they are often rousted at a moments notice. So no analogy there.

    As for law enforcement, they are often part of the problem! Consider HOS log enforcement; they like large motor carriers have made it all about line 3 and almost never scrutinize when or not a driver is logging all time online 4(on-duty not driving)!
    How can a law enforcement officer look @ a logbook that show 15min insp and 15min unload or drop & hook and the rest is all line 3 time and not suspect falsification?? The is just unexceptable and I reject it! Add any rate nice exchange with you and I welcome much more of this. Good Day To You!!

  • EF McHenry

    Two mistakes. At the beginning I was trying to say ”let me ask you this over this public forum.”

    And @ the end I meant to say ”At any rate nice exchange, I welcome much more of this.” Sorry about the typo’s…..
    Floyd

  • Todd Dills

    No problem on the typos, Floyd. I know I’ve got plenty of those myself. To sum this up, would you say, ultimately, that FMCSA sort of opened up a wormhole with the mandated “off-duty” breaks in the middle of the duty day? They specified a minimum duration of the break, as they like to do, but not a maximum. How many new changes do you think will have to occur before they get this one right? (One regulation leads to another leads to…) In any case, yes, good back and forth here, I hope it helps folks figure out all the intricacies of this.

  • Todd Dills

    Another way of looking at the holes, I meant lastly, perhaps an invitation to all that “wanting to” we talked about above.

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