RAILROADS (FRA Statement of Agency Policy on Hours of Service) / Federal Railroad Administration (FRA) offers “interim statement of agency policy” and seeks public comment in regard to specified Federal railroad safety laws governing employees’ hours of service, especially as to, “the maximum on-duty periods and minimum off-duty periods for railroad employees performing certain functions” under two statutes enacted in 2008.

“Second Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended in 2008”

Interim Statement Of Agency Policy And Interpretation, Hours Of Service Laws As Amended In 2008; Request For Public Comment. September 24, 2013. 

“The hours of service laws are Federal railroad safety laws that govern such matters as the maximum on-duty periods and minimum off-duty periods for railroad employees performing certain functions. In this document FRA supplements its existing interpretations of the hours of service laws by stating the agency’s interim position on some additional interpretive questions primarily involving two provisions of those laws that were added in 2008. First, this document further interprets the hours of service laws related to train employees, particularly the “consecutive-days” provision of those laws. Although the consecutive-days provision was also discussed in FRA’s June 2009 interim interpretations and February 2012 final interpretations, this document addresses the application of that provision to certain circumstances that were not specifically addressed in those interpretations. Second, this document further interprets the provision of the hours of service laws that makes signal employees operating motor vehicles subject to the hours of service laws and other hours of service requirements administered by FRA and exempt from the hours of service requirements promulgated by any other Federal authority. FRA invites public comment on these additional interim interpretations.”

MOTOR CARRIERS (HOURS OF SERVICE – HOW TO FILL OUT LOGBOOKS) / With new Hours of Service regulation taking effect as of July 1, 2013, the Federal Motor Carrier Safety Administration updates regulatory guidance about how truck drivers should make logbook entries about their rest and meal breaks. The FMCSA expresses its belief that the former (1997) guidance had, “the effect of discouraging drivers from taking breaks during the work day, or documenting such breaks in their logbooks”.

Hours of Service for Commercial Motor Vehicle Drivers; Regulatory Guidance Concerning Off-Duty Time.”

Regulatory Guidance. July 12, 2013.

“FMCSA revises its April 4, 1997, regulatory guidance concerning the conditions that must be met in order for a commercial motor vehicle (CMV) driver to record meal and other routine stops made during a work shift as off-duty time. The Agency has reviewed the guidance and determined that it includes language that is overly restrictive and inconsistent with the hours-of-service regulations. The 1997 guidance has the effect of discouraging drivers from taking breaks during the work day, or documenting such breaks in their logbooks.”

“On April 4, 1997 (62 FR 16370), the Federal Highway Administration (FHWA) published “Regulatory Guidance for the Federal Motor Carrier Safety Regulations.” The notice presented interpretive guidance material for the Federal Motor Carrier Safety Regulations (FMCSRs) based on the FHWA’s consolidation or previously issued interpretations and regulatory guidance materials. The FHWA developed concise interpretive guidance in question-and-answer form for each part of the FMCSRs.

“…

“In consideration of the above, FMCSA has determined the 1997 regulatory guidance should be revised to eliminate language that has the effect of discouraging drivers from taking breaks during the work day, or documenting such breaks in their logbooks. The FMCSA revises Question 2 to 49 CFR 395.2, to read as follows:

Question 2: What conditions must be met for a commercial motor vehicle (CMV) driver to record meal and other routine stops made during a work shift 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 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. During the stop, and for the duration of the stop, the driver must be at liberty to pursue activities of his/her own choosing.

“Through the revision of the regulatory guidance, FMCSA makes clear that the motor carrier need not provide formal guidance, either verbal or written, to drivers with regard to the specific times and locations where rest break may be taken. The revised guidance also emphasizes that periods of time during which the driver is free to stop working, and engage in activities of his/her choosing, may be recorded as off-duty time, irrespective of whether the driver has the means or opportunity to leave a particular facility or location. All previously issued guidance on this matter should be disregarded if inconsistent with today’s notice.”

MOTOR CARRIER (HOURS OF SERVICE & LIVESTOCK) – Federal Motor Carrier Safety Administration grants 90-day waiver from 30-minute rest break requirement for the transportation of livestock. That’s restricted to July, August and September 2013.

“Hours of Service; Limited 90-Day Waiver From the 30-Minute Rest Break Requirement for the Transportation of Livestock.”

Notice of Waiver. July 11, 2013.

Premise of this is that the 30-minute rest break requirement for the new (effective July 1, 2013) Hours of Service regulations for motor carriers from the Federal Motor Carrier Safety Administration will exacerbate harm to livestock transported by truck during the seasonally hotter months of July, August and September.

This preempts inconsistent state and local requirements.

But this is just a waiver.

No word on next year.

FMCSA maintains that there is no safety trade-off or penalty for this concession to the health and wellbeing of livestock: “The Agency has determined that the waiver, based on the terms and conditions imposed, would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such waiver.”

TORTS / What method for tort plaintiff to prove that driver of truck that hit him had violated Federal Motor Carrier Safety Regulations by “driving beyond the allowable number of hours”? (1) Evidentiary method held probative: Distance driven versus time of driving; (2) Held not probative: Mere fact that driver did not make required logbook entries (though such failure itself WAS a violation though NOT of hours of service regulation).

Markham v. Hall Worldwide Transportation, LLC, 2012 WL 6041816 (U.S. District Court, S.D. Georgia, December 4, 2012. Free copy available here.

Who is affected? Motor carriers and truck drivers subject to FMCSA hours of service rules.

Background

“This lawsuit arises out of a traffic accident between Plaintiff, who was driving a log truck, and Jeremy Hancock (“Mr.Hancock”), who was driving a tractor-trailer owned by Defendant Hall Worldwide Transportation, LLC (“Hall”). Mr. Hancock allegedly rear-ended Continue reading

REMARKS: MOTOR CARRIER & TORTS / “ ‘How-to’ primer on suing a truck carrier for negligence of its driver – especially where evidence that driver exceeded FMCSA hours of service regulations and where access to engine data about extent of usage during defined – here these claims ‘reached the jury’ ”.

From New Rules & Decisions week of November 26, 2012.

Davis v. Edwards Oil Co. of Lawrenceburg, Inc., 2012 WL 5954139 (N.D. Ala. November 28, 2012). Free copy available here.

Hours of service requirements present motor carrier risks from two threat vectors: (1) regulatory (FMCSA HOS rule), and (2) tort litigation. 

The years-long battle between FMCSA and litigants in various federal courts of appeals over the hours of service regulations manifest one obvious source of risk to motor carriers in regard to driver’s hours.

Litigation on this represents a threat from the same activity and management issue – driver’s hours – but one that comes from a distinct direction. 

Ed Regan of Tranzact Technologies made this point recently in his “Two Minute Warning” series, noting motor carrier management estimating loss of productivity percentage to the extent of 7 to 9 percent. Click for video blog box on this page.  

Legal and business factors combine to present three-fold constraint for management:

1. Regulatory – FMCSA enforcement of HOS rule;

2. Litigation – Tort lawsuit based on violation of HOS limits as negligence per se – with respondeat superior or other vicarious liability exposure for motor carrier; and

3. Productivity pressures from reduced available driver hours.

TORTS & MOTOR CARRIER / “How-to” primer on suing a truck carrier for negligence of its driver – especially where evidence that driver exceeded FMCSA hours of service regulations and where access to engine data about extent of usage during defined – here these claims “reached the jury”.

Davis v. Edwards Oil Co. of Lawrenceburg, Inc., 2012 WL 5954139 (N.D. Ala. November 28, 2012). Free copy available here.

Who is affected? Any employer of a truck driver accused in a court filing of having acted negligently or wantonly – especially in context of exceeding the hours of service regulations of FMCSA. Any tort victim in a traffic collision or otherwise victimized by negligent or wanton truck driver.

In context where plaintiffs in automobile allege harm by tank truck collision, they bring lawsuit against the “deep pocket” in the form of the tank truck driver’s employer on the following theories of recovery based on fatigue due to exceeding FMCSA’s hours of service regulation:

1. Wantonness (Use of FMCSA hours of service regulation to show driver’s hours excessive).

2. Negligent and wanton entrustment (Proof that motor carrier management “should have known better” in light of driver’s record).

3. Negligent supervision (Again, exceeding federally mandated hours of service limits to make out cause of action).