Ol' Blue at odds with FMCSA expert!
#12
09-12-2008, 05:31 AM
Originally Posted by belpre122
Originally Posted by Rev.Vassago
Mike, you're my new best friend. :lol:
Expect golfhobo to bring up the "spirit" of the regs in 3......2.......1...... 
#13
09-12-2008, 08:06 AM
Originally Posted by Myth_Buster
http://www.olblueusa.org/AskTheLaw/Ask_The_Law_Sept_08.pdf
Sgt. Brokaw answered in the usual and frustrating manner by quoting a reg instead of explaining it. At any rate, his answer was that YES... the driver can eat lunch in his daycab and log it as off duty. That is why I said he disagrees with you. In fact, I made a brief reference in another thread to the fact that Sgt. Brokaw's answer in fact was in contention with Trooper Dial's answer to another question, BECAUSE Dial quoted the "on duty" reg in doing so, and it would seem that the on-duty reg would invalidate Sgt. Brokaw's answer to Sam in Montana. Do you see my point?
Sgt Brokaw provided a reference where there was a possibility of a driver logging off duty provided all other conditions were met. If your read 395,2 you’ll see the loop hole closing:
Question 2: What conditions must be met for a CMV driver to record meal and other routine stops made during a tour of duty as offduty time?
Guidance: 1. The 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.
§395.2 Definitions.
As used in this part, the following words and terms are construed to mean: On duty time means all time from the time a driver begins to work or is required to be in readiness to work until the time the driver is relieved from work and all responsibility for performing work. On duty time shall include: (4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth;
If Trooper Dial's (and your) interpretation of the on-duty reg is correct, then Sam CANNOT be off duty to eat lunch in his daycab. Ergo, the somewhat joking title of this thread.
Now, let ME take one a bit further. Let's say Sam is 100 miles from nowhere, in a blizzard in Nebraska, and is about to starve. He brings his lunch with him every day, and he has no sleeper. He has a card with him that ROD's him for lunchbreaks.
Are you saying he has to get out of his daycab and eat his lunch in freezing temps? Or that he must stay on line 4 while eating? Or line 3 if he stays at the controls?
Question 25: When a driver experiences a delay on an impassable highway, should the time he/she is delayed be entered on the record of duty status as driving time or on-duty (not driving)?
Guidance: Delays on impassable highways must be recorded as driving time because §395.2 defines "driving time" as all time spent at the driving controls of a CMV in operation.
If so.... YOU are at odds with Sgt. Brokaw of the Nebraska H.P. who answers questions for Ol' Blue.
Guidance: 1. The 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.
IMHO you didn’t fully read Sgt Brokaw’s response and skipped some crucial words, i.e. custody.
You see... Sgt. Brokaw interprets the regs and gudance to say that when ROD, a driver must be free to pursue activities of his own choosing. Furthermore, he must be free to leave the premises (including his laden rig) but is not REQUIRED to do so.
And THEN.... quotes question 26 of the guidance, which doesn't apply at all to this discussion:
Quote: Question 26: If a driver is permitted to use a CMV for personal reasons, how must the driving time be recorded? Do you SEE the words "Driving time" there? No one is talking about driving while eating lunch. I'm assuming you included that because you THINK Sam is using the CMV for personal reasons while eating lunch. This is in NO WAY what the reg is about. It is about DRIVING the CMV for personal conveyance. Let's try to stay focused here, okay?
Sorry, but you are mistaken. Admittedly, when I started THIS thread, I had not heard your answers.... but, I KNEW how you would interpret the on-duty reg. So, I KNEW you would be opposed to the answer Sgt. Brokaw gave to Sam.
 This is going to be a long one……
In other words... ONCE a driver goes on duty, any time spent on a CMV must be logged as on duty (along with all those other things) unless, of course, he is in the sleeper which would be logged as sleeper.... OR in the case of being "temporarily" ROD for a lunch break, etc. [which would support Sgt. Brokaw's answer.]
You seem to be repeating your self, please provide Sgt Brokaw’s interpretation. The FMCSR interpretation indicates the driver must be relieved of custody of the vehicle.
I choose to sit in the cab of my CMV, which is NOT "in operation" but rather parked in a truckstop with the brakes "popped" and listen to music or eat my lunch. I may even nap a bit, or read the newspaper, and all total, I have received let's say 2 hours which the regs consider an adequate amount of time to get some part of the "restorative rest" I need. I was FREE to leave the premises, but I don't see where it said I was REQUIRED to dismount from my vehicle.
By definition, the FHWA does NOT "regulate" any other place a driver chooses to REST other than a sleeper.
Question 22: A motor carrier relieves a driver from duty. What is a suitable facility for resting?
Guidance: The only resting facility which the FHWA regulates is the sleeper berth. The sleeper berth requirements can be found in §393.76.
The point here is that IF a driver is going to log line 2 (and particularly for the purpose of splitting) then the S/B must conform to certain requirements to ensure a suitable place to get that rest.
But, if not logging sleeper berth, there is NO regulation on what a suitable resting place would be. i.e: they can't say that you can't be playing video games for hours.
You can't log time spent in the RV you are hauling on your stepdeck trailer as sleeper berth.... but you can certainly log it as OFF DUTY.
§395.2 Definitions.
On duty time means all time from the time a driver begins to work or is required to be in readiness to work until the time the driver is relieved from work and all responsibility for performing work. On duty time shall include: (4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth;
And I contend, and Sgt Brokaw's answer would support, that you are not REQUIRED to dismount from the cab of your CMV to be considered off duty. If that were the case, the answer above should have read: "Any facility OTHER than the cab of your CMV." And Sam in Montana has to eat his lunch out in the freezing cold.
Guidance: 1. The 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.
Question 4: A driver has been given written permission by his/her employer to record meal and other routine stops made during a tour of duty as off-duty time. Is the driver allowed to record his stops during a tour of duty as off-duty time when the CMV is laden with HM and the CMV is parked in a truck stop parking lot?
Guidance: Drivers may record meal and other routine stops made during a tour of duty as off-duty time, except when a CMV is laden with explosive HM classified as hazard divisions 1.1, 1.2, or 1.3 (formerly Class A or B explosives). In addition, when HM classified under hazard divisions 1.1, 1.2, or 1.3 are on a CMV, the employer and the driver must comply with §397.5 of the FMCSRs.
§390.3 General applicability.
(d) Additional requirements. Nothing in Subchapter B of this chapter shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health. Be safe. keeping, preservation, or security. the drivers company has relieved him of all this by giving him a ROD card. For that time period his company has relieved him of ALL responsibility.
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#14
09-12-2008, 08:17 AM
Originally Posted by got mud?
myth_buster custody has no relation to where a person is geographically in this instance. it applies more to responsibility. Custody is defined as. A keeping or guarding; care, watch, inspection, for
keeping, preservation, or security. the drivers company has relieved him of all this by giving him a ROD card. For that time period his company has relieved him of ALL responsibility. If the driver is in a CMV, they are On Duty, unless that vehicle is being used for personal conveyance or sleeper berth. A company giving permission to a driver to log meal stops as Off Duty does not change or negate this regulation.
#15
09-12-2008, 04:29 PM
Originally Posted by Rev.Vassago
Originally Posted by got mud?
myth_buster custody has no relation to where a person is geographically in this instance. it applies more to responsibility. Custody is defined as. A keeping or guarding; care, watch, inspection, for
keeping, preservation, or security. the drivers company has relieved him of all this by giving him a ROD card. For that time period his company has relieved him of ALL responsibility. If the driver is in a CMV, they are On Duty, unless that vehicle is being used for personal conveyance or sleeper berth. A company giving permission to a driver to log meal stops as Off Duty does not change or negate this regulation.
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#16
09-12-2008, 04:33 PM
Originally Posted by got mud?
so how do you use a CMV for personal conveyance? that's right, permission from the company. sorry sir but your argument is not valid. with what you are saying a driver would have to log his personal conveyance as on duty simply because he is in the CMV and not in the sleeper, but you stated that he didn't have to if he was using it for personal conveyance. surly sir if the law allows a driver to actually drive the CMV off duty for personal conveyance then he should be able to use it as a picnic table.
#17
09-13-2008, 04:25 AM
Originally Posted by Rev.Vassago
Originally Posted by got mud?
so how do you use a CMV for personal conveyance? that's right, permission from the company. sorry sir but your argument is not valid. with what you are saying a driver would have to log his personal conveyance as on duty simply because he is in the CMV and not in the sleeper, but you stated that he didn't have to if he was using it for personal conveyance. surly sir if the law allows a driver to actually drive the CMV off duty for personal conveyance then he should be able to use it as a picnic table.
(1) All time at a plant, terminal, facility, or other property of a motor carrier or shipper, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier; (2) All time inspecting, servicing, or conditioning any commercial motor vehicle at any time; (3) All driving time as defined in the term driving time; (4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth; (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; (6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled commercial motor vehicle; (7) All time spent providing a breath sample or urine specimen, including travel time to and from the collection site, in order to comply with the random, reasonable suspicion, post-accident, or follow-up testing required by part 382 of this subchapter when directed by a motor carrier. (8) Performing any other work in the capacity, employ, or service of a motor carrier; and (9) Performing any compensated work for a person who is not a motor carrier. :roll: the way you guys are reading this then anytime you sit in the front seat and not in the sleeper you would have to go back to on duty status. so every driver you have ever seen in a truck stop smoking a cig or enjoying a cup of coffee not in the sleeper would be in violation of their ten hour break. hardly the case
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work harder, millions on welfare are counting on you !
#18
09-13-2008, 04:43 AM
Originally Posted by got mud?
Originally Posted by Rev.Vassago
Originally Posted by got mud?
so how do you use a CMV for personal conveyance? that's right, permission from the company. sorry sir but your argument is not valid. with what you are saying a driver would have to log his personal conveyance as on duty simply because he is in the CMV and not in the sleeper, but you stated that he didn't have to if he was using it for personal conveyance. surly sir if the law allows a driver to actually drive the CMV off duty for personal conveyance then he should be able to use it as a picnic table.
(1) All time at a plant, terminal, facility, or other property of a motor carrier or shipper, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier; (2) All time inspecting, servicing, or conditioning any commercial motor vehicle at any time; (3) All driving time as defined in the term driving time; (4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth; (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; (6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled commercial motor vehicle; (7) All time spent providing a breath sample or urine specimen, including travel time to and from the collection site, in order to comply with the random, reasonable suspicion, post-accident, or follow-up testing required by part 382 of this subchapter when directed by a motor carrier. (8) Performing any other work in the capacity, employ, or service of a motor carrier; and (9) Performing any compensated work for a person who is not a motor carrier. :roll: the way you guys are reading this then anytime you sit in the front seat and not in the sleeper you would have to go back to on duty status. so every driver you have ever seen in a truck stop smoking a cig or enjoying a cup of coffee not in the sleeper would be in violation of their ten hour break. hardly the case
__________________
work harder, millions on welfare are counting on you !
#19
09-13-2008, 04:58 AM
Originally Posted by got mud?
On duty time means all time from the time a driver begins to work or is required to be in readiness to work until the time the driver is relieved from work and all responsibility for performing work. On duty time shall include:
(1) All time at a plant, terminal, facility, or other property of a motor carrier or shipper, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier; (2) All time inspecting, servicing, or conditioning any commercial motor vehicle at any time; (3) All driving time as defined in the term driving time; (4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth; (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; (6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled commercial motor vehicle; (7) All time spent providing a breath sample or urine specimen, including travel time to and from the collection site, in order to comply with the random, reasonable suspicion, post-accident, or follow-up testing required by part 382 of this subchapter when directed by a motor carrier. (8 ) Performing any other work in the capacity, employ, or service of a motor carrier; and (9) Performing any compensated work for a person who is not a motor carrier. :roll:
the way you guys are reading this then anytime you sit in the front seat and not in the sleeper you would have to go back to on duty status.
so every driver you have ever seen in a truck stop smoking a cig or enjoying a cup of coffee not in the sleeper would be in violation of their ten hour break.
#20
09-13-2008, 07:37 AM
myth_buster custody has no relation to where a person is geographically in this instance. it applies more to responsibility. Custody is defined as. A keeping or guarding; care, watch, inspection, for keeping, preservation, or security. the drivers company has relieved him of all this by giving him a ROD card. For that time period his company has relieved him of ALL responsibility.
§390.3 General Applicability
Question 6: How does one distinguish between intra- and interstate commerce for the purposes of applicability of the FMCSRs? Guidance: Interstate commerce is determined by the essential character of the movement, manifested by the shipper's fixed and persistent intent at the time of shipment, and is ascertained from all of the facts and circumstances surrounding the transportation. When the intent of the transportation being performed is interstate in nature, even when the route is within the boundaries of a single State, the driver and CMV are subject to the FMCSRs. Question 13: A motor carrier dispatches an empty CMV from State A into adjoining State B in order to transport cargo or passengers between two points in State B, and then to return empty to State A. Does the transportation of cargo or passengers within State B constitute interstate commerce? Guidance: Yes. The courts and the ICC developed a test that clarifies the legal status of intrastate portions of interstate trips. The character of the intrastate leg depends on the shipper's fixed and persistent intent when the transportation began. The fixed and persistent intent in this case was to move property--the vehicle itself--across State lines and between two points in State B where it was used to haul cargo or passengers. The transportation within State B, therefore, constitutes interstate commerce. In some cases the motor carrier may be the shipper. A driver who departs a terminal empty in route to the first pick-up is in commerce, same would apply to a driver who unloaded and is destined for a new load. The carrier may provide the driver with written permission to go off-duty for lunch; however, the driver would have to meet the requirements, i.e. exit the vehicle to enjoy the off-duty status. The rules regarding empty trucks moving to acquire freight and constituting the continuation of interstate commerce dates back to at least 1958:
"Merchandising by motortruck, whether actual or pretended, over long distances is increasing to such an extent that it is becoming a major factor in the transportation of freight between distant points. Manufacturers and mercantile establishments, which deliver in their own trucks articles which they manufacture or sell, are increasingly purchasing merchandise at or near their point of delivery and transporting such articles to their own terminal for sale to others. Such transportation is performed for the purpose of receiving compensation for the otherwise empty return of their trucks. Sometimes the [377 U.S. 311, 318] purchase and sale is a bona fide merchandising venture. In other cases, arrangements are made with the consignee of such merchandise for the `buy-and-sell' arrangement in order that the consignee may receive transportation at a reduced cost." Compare H. R. Rep. No. 1922, 85th Cong., 2d Sess., 18 (1958).
The fact the movement of the vehicle is intended to benefit the motor carrier constitutes commerce. The fact is discussed in other court cases:
On April 20, 2000, Singh completed an interstate hauling operation for BIR with his Tractor. Four days later, on April 24, 2000, he hired a third party to drive the Tractor and its empty trailer from Harrisburg, Pennsylvania, to a Kenworth truck dealership in Chester, Pennsylvania, in order to attempt a sale or trade-in for a new tractor. Although BIR was made aware of the plan to go to the dealership, it is undisputed BIR did not dispatch the Tractor. In the event a hauling load from BIR became available in the Chester area, however, Singh directed his driver to make the trip with an empty trailer attached.
En route to the dealership, Singh's truck collided with a vehicle owned and driven by Espenshade. As a result of the accident, Espenshade filed a lawsuit in Philadelphia, Pennsylvania, against all potential tortfeasors. Underwriters expressly refused either to defend the defendants or to indemnify Canal in the state action on the ground that the use of the Tractor on the day of the accident did not fall under the provisions of its non-trucking liability policy. Canal, on the other hand, defended and indemnified Singh, his driver, and BIR in the lawsuit. Ultimately, Canal settled the Espenshade suit, agreeing to pay $58,500 compensation in exchange for full liability releases for all three defendants. It is undisputed that Canal incurred an additional $27,459 in litigation expenses to resolve the matter, resulting in a total indemnification and defense cost of $85,959. Canal filed a declaratory action pursuant to 28 U.S.C. § 2201 in the Eastern District of Pennsylvania seeking indemnification from Underwriters for the monies Canal spent defending and insuring the defendants in the Espenshade lawsuit. Canal Ins. Co. v. Underwriters at Lloyd's London, 333 F.Supp.2d 352 (E.D.Pa.2004). Subsequent to discovery, the parties filed cross-motions for summary judgment. Id. at 352. The District Court determined that Singh's act of hiring an employee to drive his Tractor to a dealership in order to trade the vehicle or otherwise attempt a sale was an activity promoting the "business purposes of the [i]nsured" under the terms of Underwriters' business use exclusion. Id. at 355-56. As a result, the Court concluded that coverage was properly denied by Underwriters. Id. at 357. Judgment was entered granting Underwriters' motion for summary judgment and denying Canal's cross-motion for summary judgment. This appeal followed. [FN1] Case law on several fronts broadly define commerce, thereby severely narrowing the occasions when a driver “is relieved of all responsibility.” If the driver tried to exit the vehicle, slipped and fell there would be a workman’s comp claim. The issue of a driver logging off-duty is a topic of many court cases and most court cases narrow the driver’s off-duty time while in and around CMVs. The FMCSR is based on law, the guidance used to enforce the federal regulations is documented in Supreme Court decisions, not a driver's or motor carrier's interpretation. Attorneys have prepared 100 page briefs regarding the use of the word "if" when used in a regulation. As mentioned earlier, the lunch break counts toward the 14 hour rule, the only item left to be determined is whether the time counts toward the 60/70 hour rule. It is the investigator's responsibility to prove the case, s=using case law and interpretations allows an investigator to show precendence of their findings and how the regulation was previous interpreted by the courts. Be safe. |
