FMCSA declines to define ‘personal conveyance’ but knows it when it sees it
July 10, 2018
July 10, 2018
A U.S. Supreme Court Justice declined to define “pornography”, instead noting, “But I know it when we see it”. This appears to the FMCSA’s approach to “personal conveyance” in their guidance. Important clarification includes movement when laden, when HOS exhausted after loading/unloading, and when at the direction of safety official when “off duty”.
However, while not defining the distance or time limits of “personal conveyance”, the guidance provides examples of what it does, and does not, mean. These examples and the explanation provide major insights and changes. You can find the guidance at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/regulations/404421/cmv-personal-conveyance-regulatory-guidance.pdf
“Personal conveyance” has long been an issue in our industry. How far? How much time? From where? To where?
“Personal conveyance” has had as many definitions as there have been trucking companies and drivers that use it. It has been construed in a way to reconcile the limits of driving and “on duty” time to meet the needs of a particular type of activity.
The advent of ELD’s has made the meaning of the term even more important. Having to account for all movements of a commercial motor vehicle (“CMV”), the time allocated to “personal conveyance” will be important to account for time that is not “on-duty” or “driving”.
As with the prior guidance, the recent guidance still does not give us a definition. Instead, the FMCSA still takes the approach that it will “know it when it sees it”.
“Personal conveyance”, that is.
For more than two decades, we have lived with a guidance rather than a definition. That guidance made “personal conveyance” hinge on whether or not the CMV was “laden”. A “laden” vehicle did not qualify for “personal conveyance.” Period.
If the CMV was “unladen”, the guidance then looked at the activity involved. “Personal conveyance” would be considered to include from home to the terminal and vice versa. It would also include a short distance to a restaurant or entertainment while en route. If, of course, the CMV was unladen.
The new guidance makes a major change in that does not require the CMV to be “unladen.” The reason for the removal of the “laden” exclusion is to make “personal conveyance” available to straight trucks and work vehicles from which loads and equipment cannot be removed. Whether “laden” or “unladen”, the guidance then looks at the nature of the activity of the CMV in determining whether it constitutes “personal conveyance.”
There are two other major clarifications. Frequently waits to load or unload drain a driver’s HOS, but they are then forced by the shipper or receiver to leave their premises.
Under the new guidance, “[t]ime spent traveling to a nearby, reasonable, safe location to required rest after loading or unloading” is “personal conveyance”. The time driving must allow adequate time for required rest and must be to the first resting location reasonably available. The commentary notes that if the driver cannot park at the nearest location their record of duty status (log, ABORD, ELD) should note and explain this.
Another major clarification of the guidance is that “personal conveyance” includes “[m]oving at the request of a safety official during the driver’s off duty time.”
However, the CMV must be moved to the no further than the nearest reasonable rest and safe area to complete the rest break.
Other types of travel that qualifies if also framed by examples rather than established by definition. Those examples are travel as follows:
From en route lodging to a restaurant or entertainment and back;
From the last on-duty location to the driver’s permanent residence and back;
Time spent transporting personal property while off-duty;
Authorized use of a CMV to travel home after working at an offsite location.
These are examples of what will be considered “personal conveyance”, not a starting point for creativity.
Conversely, the guidance gives examples of what is NOT “personal conveyance”. Those examples are as follows:
Movement that improves it work-related position, such as closer to a loading/unloading location;
A towing unit that no longer meets the definition of a cmv after delivering the towed unit and is directed to return to pick up another unit;
Continuing a trip in interstate commerce, even if unloaded, until the driver reaches their permanent residence, lodging, or terminal;
Bobtailing or pulling an empty trailer to retrieve another load;
Time spent driving a CMV to a facility for maintenance;
After put out-of-service for exceeding maximum HOS unless directed to location by law enforcement at the scene;
Travel to terminal after loading or unloading;
Review the examples of what it is and what it is not. And you, too, will “know it when you see it.” And I’m still talking about “personal conveyance.”
Doug Marcello is a transportation attorney who has earned his CDL. His law practices focuses upon serving the trucking industry. Based in Central Pennsylvania, he has represented trucking companies in cases throughout the US, having been specially admitted in 35 states. He is a frequent speaker at industry events and driver safety meetings. He has also written numerous articles concerning issues confronting the industry and has produced several DVDs relating to accident response and aggressive defense of claims. All posts by Doug Marcello