Ol' Blue at odds with FMCSA expert!
#1
09-10-2008, 12:21 AM
Ol' Blue at odds with FMCSA expert!
Lunch in day cab
Q: What is required in order to log meal breaks off duty? I drive a day cab in a regional operation and take a lunch. I usually pull off onto the side of the road in a safe place to eat. Can this be logged as off duty? Thank you. Sam in Montana A: Provided by Jim Brokaw, formerly a staff sergeant with Nebraska State Patrol, Carrier Enforcement Division, Lincoln, Neb. You’ll find the answer to your question in the following FMCSA interpretation for 49 CFR 395.2: 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 off-duty 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. 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 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 onboard a vehicle or at a motor carrier's principal place of business. 4. 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. Copied from TheTrucker.com online edition
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#2
09-10-2008, 12:57 AM
Ol' Blue at odds with FMCSA expert!
Neither Ol' Blue or an FMCSA expert are referenced in that article, which you clearly violated Fair Use copyright law in posting.
#3
09-10-2008, 01:55 AM
Originally Posted by Rev.Vassago
Ol' Blue at odds with FMCSA expert!
Neither Ol' Blue or an FMCSA expert are referenced in that article, which you clearly violated Fair Use copyright law in posting. No I didn't.
One of the more important limitations[on copyrights] is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: 1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; a question and answer fourm for public information purposes 3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and ONE question and answer from an entire column or volume spanning several years 4. the effect of the use upon the potential market for or value of the copyrighted work. as Ol' Blue is not compensated for this column, there is no effect upon such. :lol: :lol:
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Remember... friends are few and far between. TRUCKIN' AIN'T FOR WUSSES!!! "I am willing to admit that I was wrong." The Rev.
#4
09-10-2008, 03:41 PM
Golfhobo:
Lunch in day cab
Q: What is required in order to log meal breaks off duty? I drive a day cab in a regional operation and take a lunch. I usually pull off onto the side of the road in a safe place to eat. Can this be logged as off duty? Thank you. Sam in Montana You’ll find the answer to your question in the following FMCSA interpretation for 49 CFR 395.2: 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 off-duty 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. 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 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 onboard a vehicle or at a motor carrier's principal place of business. 4. 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. Copied from TheTrucker.com online edition
§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: (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; (4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth;
Question 26: If a driver is permitted to use a CMV for personal reasons, how must the driving time be recorded?
Guidance: 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 en route lodgings (such as en route terminals or motels) to restaurants in the vicinity of such lodgings may be considered off-duty time. The type of conveyance used from the terminal to the driver's home, from the driver's home to the terminal, or to restaurants in the vicinity of en route lodgings would not alter the situation unless the vehicle is laden. A driver may not operate a laden CMV as a personal conveyance. The driver who uses a motor carrier's CMV for transportation home, and is subsequently called by the employing carrier and is then dispatched from home, would be on-duty from the time the driver leaves home. A driver placed out of service for exceeding the requirements of the hours of service regulations may not drive a CMV to any location to obtain rest. Be safe.
#5
09-10-2008, 04:17 PM
You see, Mike, the issue is that golfhobo thinks that if a driver is relieved of duty to have lunch, or to sleep, or to do whatever by the motor carrier, then the FMCSA rules regarding on duty time no longer apply, and the driver can go off duty wherever he so chooses.
#6
09-10-2008, 09:53 PM
Myth_Buster said to Golfhobo:
You're comparing two different things, off-duty for lunch has limits and sitting in the cab of a laden truck is one of the limits that exclude you from eating lunch in a day cab off-duty:
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? 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? If so.... YOU are at odds with Sgt. Brokaw of the Nebraska H.P. who answers questions for Ol' Blue. 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. Rev hates when I mention the "spirit" of the regs, but I don't believe it is the spirit of the reg to force Sam to eat his lunch in a snowbank! THEN.... MythBuster quotes the on-duty reg (which we will discuss later.) And THEN.... quotes question 26 of the guidance, which doesn't apply at all to this discussion:
Question 26: If a driver is permitted to use a CMV for personal reasons, how must the driving time be recorded?
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? :wink:
It not the FMCSA and Nebraska HP disagree, it's you have two different questions.
Just ask the Rev.... I am "psychic" that way! :lol: If Sgt. Brokaw is correct, then being ROD "trumps" subpara (4) of the 395.2 Definitions (what I call the "on-duty reg.") And if you look at the TOPIC SENTENCE of the definition of ON DUTY, it clearly states that on-duty time is all time OTHER than when a driver is ROD..... and then proceeds to give a list of examples of what IS "on duty" ONCE one comes off his 10 hour break or 34 hour reset. 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.]
On duty time means all time from the time a driver begins to work ...... until the time the driver is relieved from work .......
On duty time shall include: Subpara (4) is part of a list of activities that are considered part of that ON DUTY time..... ONCE a driver is no longer on his 10 hour or 34 hour break. This is my interpretation of the reg AS WRITTEN based on years of experience with the WRITTEN language. The paragraph structure, including the Topic sentence of that paragraph DEMANDS it. It also appears to be the way Sgt. Brokaw would interpret it. If I am wrong about my interpretation, or the "spirit" of that reg, then I will admit it and be glad to have this settled. But ONLY when I see a revision of that definition by the writers of the FMCSR's to make it conform with the rules of English composition. More for your consideration....
4. 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.
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. You said:
You're comparing two different things, off-duty for lunch has limits and sitting in the cab of a LADEN truck is one of the limits that exclude you from eating lunch in a day cab off-duty:
Me and Sam are stuck in the same blizzard, but he has a load on and I am empty. I sit and eat my lunch in my nice warm daycab, and laugh at poor Sam as he stands outside in the freezing cold to eat his??
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Remember... friends are few and far between. TRUCKIN' AIN'T FOR WUSSES!!! "I am willing to admit that I was wrong." The Rev.
#7
09-11-2008, 03:59 PM
http://www.olblueusa.org/AskTheLaw/A...aw_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.
#8
09-11-2008, 04:19 PM
Mike, you're my new best friend. :lol:
Expect golfhobo to bring up the "spirit" of the regs in 3......2.......1...... 
#9
09-11-2008, 05:40 PM
Dang! I just lost my whole post! Oh well, I was only able to address a few segments anyway. As I was saying, I wish you'd gotten to this sooner (although I'm sure you were working) but now I must get some sleep so I can go out tomorrow. I may not be able to get back to this until sometime next week. I do hope you will stick around.
Hobo
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Remember... friends are few and far between. TRUCKIN' AIN'T FOR WUSSES!!! "I am willing to admit that I was wrong." The Rev.
#10
09-11-2008, 06:33 PM
Join Date: Jul 2004
Location: Speedway Indiana
Posts: 1,751
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...... 
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