The New Federal Motor Carrier Regulations Governing a Driver’s Hours-of-Service:

Proving Compliance and Managing Document Preservation Letters

John L. McKinley, Jr. is a partner at Mozley, Finlayson & Loggins LLP and defends businesses, including commercial trucking and transportation companies, and insurers against claims involving alleged wrongful death and catastrophic injury. He also serves as the Chair of GDLA’s Trucking Subcommittee.Bridgette E. Eckerson is a partner at Mozley, Finlayson & Loggins LLP and defends businesses and insurers against wrongful death and personal injury claims. She also serves as the Chair of GDLA’s Trucking Subcommittee.

New Federal Motor Carrier Safety Regulations govern the hours-of-service requirements for commercial motor vehicle drivers.  This article covers:

  • changes in the regulations
  • the purpose behind the changes
  • and the relevance of the regulations to civil litigation arising out of a collision

I. Compliance with New Hours of Service Rules In 2011, the Federal Motor Carrier Safety Administration (“FMCSA”) promulgated new regulations governing the hours of service of commercial motor vehicle (“CMV”) drivers, requiring full compliance by July 1, 2013. 1 The overarching purpose of the new hours-of-service regulations is twofold: (1) to prevent accidents related to driver fatigue, and (2) to protect the long-term health of drivers who may be chronically overworked. The net effect of the new rules is to reduce the total number of hours per day and per week that a driver may be on-duty.

In an effort to find evidence that drivers are exceeding their hours of service and are driving while fatigued (and also to set up spoliation claims), claimant attorneys routinely send document preservation letters to motor carriers, requesting the preservation of driver logs and other documents reflecting a driver’s hours of service. The recordkeeping requirements for a driver’s record-of-duty status remain the same, and driver logs are the primary method of recording a driver’s hours of service. This article sets forth the primary changes in the Federal Motor Carrier Safety Regulations (“FMCSR”) related to a driver’s hours of service, methods of proving compliance with the same, and the relevance of a driver’s hours of service to civil litigation arising out of a collision.

A. New Rules v. Old Rules

It remains the rule that a driver may not operate a CMV beyond the 14th consecutive hour after coming on-duty after a period 25 Georgia Defense Lawyers Association – 2014 Law Journal of 10 consecutive hours of off-duty and/or sleeper-berth time.2 It also remains the rule that a driver is limited to 11 hours of driving during that 14-hour period.3 The new regulations, however, redefine on-duty time and create more restrictive limitations on restarts and rest breaks. The provisions redefining on-duty time and the penalties for violations became effective on February 27, 2012, and the compliance date for the remaining provisions, including those governing restarts and rest breaks, began July 1, 2013. Consequently, counsel can expect the prior rules to be at issue for collisions occurring prior to the above dates. It is critical that any analysis of these and other regulations be placed in the context of the rules in effect on the date of the accident, and that corporate representatives, drivers, and counsel be fully aware of the applicable regulations during litigation, especially when presenting for depositions.

1. On-Duty Time

On-duty time is defined as “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.” 4 Previously, the rules required a driver to count any time spent in a CMV, except any time in the sleeper berth, as on-duty time. This included time in a parked CMV and time in the passenger seat when traveling as a co-driver. Consequently, a driver could not count any of that time toward his rest breaks. The new rule, by contrast, does not permit a driver to count any time resting in a parked vehicle toward on-duty time. 5 Otherwise, a driver may have no choice but to spend time out of the CMV when taking a required break, even if it is not feasible or safe to do so. This time is now considered off-duty and may be counted toward the required rest breaks. In addition to allowing time spent resting in a parked vehicle to be considered off-duty, the rules now allow a driver to count up to two hours in the passenger seat of a moving CMV as off-duty if that time immediately precedes and/or follows eight consecutive hours in the sleeper berth. 6 Otherwise, a co-driver would be required to spend the entire ten-hour off-duty period in the sleeper berth. Any time in the passenger seat over that two-hour period is considered on-duty/not driving time.

2. Restarts

Under the new rules, a driver must be off-duty for a period of thirty-four consecutive hours before beginning a new period for purposes of calculating the on-duty time (commonly known as a thirty-four hour “restart”). 7 The new rules limit 34-hour restarts to once per week or once per every 168 hours. For motor carriers that do not operate CMVs every day of the week, a driver is limited to an average of sixty hours of driving time in seven consecutive days. 8 For motor carriers that do operate CMVs every day of the week, a driver is limited to an average of seventy hours of driving time in eight consecutive days. 9 Previously, 26 Georgia Defense Lawyers Association – 2014 Law Journal a driver could conceivably take two thirty-four-hour restarts in a week, and therefore average eighty-two hours of driving time per week, potentially resulting in overwork and fatigue. In addition, a thirty-four-hour restart must include at least two periods between 1:00 a.m. and 5:00 a.m.10 Again, this provision is intended to prevent driver fatigue by forcing the thirty-four-hour restart period to encompass at least two full nights.

3. Rest Breaks

To further prevent driver fatigue, the new rules now require drivers to take at least one off-duty or sleeper-berth break of thirty minutes or more after on-duty time of up to eight consecutive hours.11 This eight-hour period is not simply driving time; it encompasses all on-duty time, which may include such non-driving activities as attending, loading, unloading, or servicing the CMV, or simply waiting to be dispatched. 12 The new rule does not require a driver to “rest” during the thirty-minute break; the driver simply cannot be performing any activity that would be encompassed within the definition of on-duty time. Meal breaks are included as well as off-duty or sleeper-berth time. One notable exception to this rule applies to drivers who are required to attend the CMV at all times, so long as that is the only activity they perform. 13

4. Penalties

Motor carriers may be subject to the maximum penalties if drivers exceed the allowed eleven hours of driving time by a mere three hours. Exceeding this limit by only three hours may be considered an “egregious” violation. A motor carrier that violates the hours-of-service requirements may be subject to a civil penalty of not more than $10,000 for each offense, and an individual employee of a motor carrier may be subject to a civil penalty of not more than $2,500 for each offense. 14 The Secretary of Transportation may also order a vehicle or a motor carrier’s employee out of service or order a motor carrier to cease all commercial motor vehicle operations, if it makes a finding that any violation poses an “imminent hazard to safety.” 15 An out-of-service order must be narrowly tailored to abate the violation, and must be supported by a finding that the individual, vehicle, or motor carrier poses an imminent hazard. 16 A motor carrier may also be subject to criminal penalties for such violations, and for each offense, the penalty may not exceed $25,000 or imprisonment for a term not to exceed one year, or both. 17 Individual employees are subject to a fine not to exceed $2,500 only if their activities while operating a CMV “have led or could have led to death or serious injury.” 18

B. Methods for Proving Compliance with Hours-of-Service Rules

In addition to driver logs, a motor carrier may have other documents available to prove that its driver complied with the hours-of-service requirements. Drivers often physically or electronically 27 Georgia Defense Lawyers Association – 2014 Law Journal punch time cards as they arrive to and from work or as they exit and enter a distribution facility. Trip reports or bills of lading may reflect the time a driver picks up a load, starts driving, or arrives at his destination. Automatic on-board recording devices are an alternative method for recording a driver’s hours of service. 19 GPS may provide coordinates to track a CMV’s location at certain times, providing information about the movement of a particular CMV. Payroll records may also reflect a driver’s hours of service, depending on how that driver is paid. Fuel receipts, hotel bills, toll tickets, or other records of expenses may also allow a motor carrier or its counsel to reconstruct a timeline for a driver’s trip. These methods may be inexact and are not a perfect substitute for a properly completed driver log, but they may provide enough of an estimate of a driver’s hours of service to demonstrate that a driver was in compliance with the FMCSR and thereby rebut any inference that he was fatigued at the time of the collision.