By Brandon Howard, Esq.
Update - The comment period on personal conveyance has been extended by 30 days. Here is a link to the proposed guidance. Comments were previously due by January 18, 2018, and may be submitted through the Federal Docket Management System. The biggest issue at hand is allowing laden CMV vehicles to be used for personal conveyance vs. only unladen CMV's to be used as personal conveyance. See the article below for a more in-depth look at the issue.
ELD Enforcement 90 Day Waiver for Transporting Agricultural Commodities
Agricultural commodity transporters were granted a 90 day waiver from having ELD's implemented and working, from the 12/18/17 compliance date. The comment period is open on this as well. The waiver will also allows notice and public comment to provide the FMCSA with time to consider certain exemption applications from segments of the agricultural industry concerning the use of ELDs to document drivers' hours of service. Important to be noted ONLY agricultural motor carriers with SATISFACTORY safety ratings are eligible for this exemption. You can read and comment on the agricultural exemption here.
With the implementation of mandated ELDs, the FMCSA has proposed removing the “unladen” requirement for personal conveyance. The reason for the proposed change is the inadvertent effect on drivers of single-unit, or straight trucks, not being able to utilize personal conveyance because the trailer cannot be detached.
Under the current FMCSA guidelines, a driver may use his or her CMV for personal conveyance when (1) he has been relieved from all responsibility for performing work; (2) he only needs to travel a short distance and (3) is not laden with freight. Clearly this works for combination vehicles where the trailer can be readily detached but fails to address those drivers who are unable to leave their loads.
The new guidance focuses on the reason the driver is operating a CMV while off duty and discards the “laden” and “short distance” requirements. The proposed guidance states:
A driver may record time operating a CMV for personal conveyance (i.e., for personal use or reasons) as off-duty only when the driver is relieved from work and all responsibility for performing work.
(a) Examples of appropriate uses of a CMV while off-duty for personal conveyance include, but not limited to:
1. Time spent traveling from a driver’s en route lodging (such as a motel or truck stop) to restaurants and entertainment facilities and back to the lodging.
2. Commuting from the last location where on-duty activity occurred to the driver’s permanent residence and back to the last on-duty location. This would include commuting between the driver’s terminal and his or her residence, between trailer-drop lots and the driver’s residence, and between work sites and his or her residence.
(b) Examples of use of a CMV that would not qualify as personal conveyance include, but are not limited to, the following:
1. The movement of a CMV to enhance the operational readiness of a motor carrier. For example, moving the CMV closer to its next loading or unloading point or other motor carrier-scheduled destination, regardless of other factors.
2. After delivering a towed unit, and the towing unit no longer meets the definition of a CMV, the driver returns to the point of origin under the direction of the motor carrier in order to pick up another towed unit.
3. Continuation of a CMV trip in interstate commerce, even after the vehicle is unloaded. In this scenario, on-duty time does not end until the driver reaches a location designated or authorized by the carrier for parking or storage of the CMV, such as a permanent residence, authorized lodging, or home terminal.
4. Bobtailing or operating with an empty trailer to retrieve another load.
5. Repositioning a CMV and or trailer at the direction of the motor carrier.
The CMV may be used for personal conveyance even if it is laden, since the load is not being transported for the commercial benefit of the carrier at that time.
The guidance as currently proposed gives discretion to drivers as to when to use their CMV as a “personal conveyance”. However, it is ultimately the motor carriers’ decision as to whether or not allow personal conveyance to be used by its employee drivers. Without set times or distances, there are opportunities to circumvent hours of service requirements, especially if a CMV operating as a personal conveyance can be laden. This can leave a carrier in a precarious position where it has reservations regarding whether a driver properly used a CMV when logged as personal conveyance as well as being subject to violations affecting CSA scores if the driver is found in violation of not using personal conveyance as intended. Though a carrier may propose edits to a driver’s logs, ultimately the driver has final say on ELD log submissions. This issue becomes even more complicated for carriers using owner-operators. Crossing the line of “control” by restricting a driver’s use of his vehicle can expose a carrier to the risk of being found misclassifying employees.
In a broader sense, allowing drivers to operate their CMVs as a personal conveyance while laden can cause potential legal and insurance quandaries should the driver be in an accident. For example, under the proposed guidance, the carrier is receiving no benefit from a driver operating a vehicle as a personal conveyance. However, it would be difficult for a carrier to argue that driver was not in the course and scope of his or her employment when the driver was laden with the carrier’s load. It is a tough pill to swallow from a motor carrier perspective to be held liable where the company had no control over the driver’s use of personal conveyance, yet they had allowed for personal conveyance to be used.
Though most drivers and companies will likely use the personal conveyance guidance as intended, the guidance is far from perfect and opens the door for a litany of other issues for carriers. If you have any questions regarding personal conveyance please feel free to contact Roberts Perryman, P.C. We can help you to identify and implement strategies to avoid the pitfalls of personal conveyance.
Brandon Howard is an associate at Roberts Perryman. Brandon’s practice is focused on Transportation Law & Litigation. Brandon is in the Springfield office