It39s been awhile since Fleet Owner caught up with Joe DeLorenzo director of the FMCSA Office of Enforcement and Compliance for an update on ELDs He recently discussed a practical approach to what39s turned out to be one of the ELD mandate39s most confounding issues for carriers personal conveyance Aaron Marsh/Fleet Owner

It's been awhile since Fleet Owner caught up with Joe DeLorenzo, director of the FMCSA Office of Enforcement and Compliance, for an update on ELDs. He recently discussed a practical approach to what's turned out to be one of the ELD mandate's most confounding issues for carriers: personal conveyance.

Getting at the ELD rule's mystifying byproduct: personal conveyance

The 126 text-laden pages of the electronic logging device (ELD) final rule are full of specs and particulars, but the ones that consistently seem to raise the most questions with motor carriers deal with personal conveyance. The Federal Motor Carrier Safety Administration's (FMCSA) enforcement and compliance chief discussed the topic and made an important announcement in that regard.

Note that the ELD mandate didn't create personal conveyance — the rule just brought it into the spotlight. "It's not really an ELD issue, but it does become an issue because of ELDs," pointed out Joe DeLorenzo, director of the FMCSA Office of Enforcement and Compliance, at one of the final sessions of PeopleNet's and TMW Systems' in.sight conference.

Concerning that FMCSA announcement, DeLorenzo said that so many questions have come up from carriers about personal conveyance, the agency is going to release additional guidance on the topic. He said that's been in process now for some time and that he's "hoping within a couple of months we'll have something out there."

However, DeLorenzo asked that certain elements of the discussion not be published because they're being addressed officially in the coming, and not yet finished, guidance document. That information will not be included here. But he also outlined a common sense approach to personal conveyance to help shed some light on the issue, and it's one that many fleets clearly have questions about.

What's personal conveyance?

You can start by simplifying things and cutting some syllables: "personal conveyance" also appears in the ELD final rule more plainly as "personal use."

Personal conveyance is one of a few special driving instances that don't count against a commercial truck driver's available hours of service. An ELD is meant to capture all movement of a commercial motor vehicle and assign it to a driver — thereby recording when and how long that driver is behind the wheel — but there are exceptions, such as a truck being moved around a terminal's yard.

So "yard movement," which is more straightforward, is another special driving instance that could be selectable in an ELD and doesn't tick down a driver's available on-duty hours. "Personal conveyance," however, first has to be allowed by the motor carrier, and it refers to a driver doing things like taking the commercial truck to his or her home while off duty.

DeLorenzo emphasized that personal conveyance isn't new. It's just that prior to it coming up in new regulations — and becoming more measureable — with ELDs, no one paid it this much attention and it wasn't as scrutinized.

"Suddenly, this has become a big issue," he told listeners. "When you just put down 'personal conveyance' on a line in your [paper] log, there's no way to really tell — but now we're going to be able to tell. So, suddenly, we're getting a lot of questions about this."

ELD specifications in FMCSA's final rule call for GPS data to be accurate to within 1 mi. indicating where a truck is while a driver is on duty. To allow some privacy around a driver's personal whereabouts, GPS data must be accurate only to within approximately 10 mi. showing the truck's location while the driver is off duty/ in personal conveyance.

How do you tell if it's...?

Prior to FMCSA's guidance on the topic being issued, DeLorenzo discussed with the in.sight audience his own informal method of telling whether drive time is personal conveyance or not.

"I'll give you my common sense approach to personal conveyance," he said. "If the driver is operating at the direction of the motor carrier, it is not personal conveyance." That is, if a commercial driver is under dispatch, that's "on duty" time, not personal conveyance.

DeLorenzo gave an example of a driver driving the truck from being off duty at home in to work at the carrier's terminal, picking up a load, then driving the load on to its destination. He explained that in that particular case, only the part of driving the truck from home to the terminal would be personal conveyance.

However, things can get subtle with personal conveyance, and that's where some confusion arises — for instance, a trip home isn't always necessarily personal use/ conveyance. "So if the driver gets dispatched from the terminal but heads home on the way to wherever he or she is going and then continues on, that's not personal conveyance," DeLorenzo emphasized.

That's the basic setup he advised following. "If the driver is off duty and decides to go to a restaurant, visit a relative there or whatever — again, not at your direction — that's okay, that's personal conveyance," he said. "But if the [truck] move is done at the direction of the motor carrier, then that is not personal conveyance."

By this method, note that if a driver is deadheading from one delivery location some distance to pick up the next load, that's not personal conveyance — the driver has been dispatched to both the locations and is on duty the whole time.

Further points

A number of questions came up from the audience, with most laying out this or that outlier-type scenario and asking if the truck's movement would be personal conveyance or not. DeLorenzo fielded them, but reinforced that those exact scenarios will be addressed in FMCSA's forthcoming guidance.

::But a few further "matter of fact" elements did come up with personal conveyance:

(1) Personal conveyance does not need to start and stop at the same location. An audience member posed this question: "If the truck driver takes the truck home [under personal conveyance], does he have to start his day at the same point where he ended his day [on duty]? Or could he deadhead from home on to a shipper [to pick up a load]?"

To that, DeLorenzo said that personal conveyance need not start and stop at the same point. In the above scenario, he said the driver indeed could begin on-duty hours straight from home, having been dispatched to a shipper. "He's under dispatch at that point in time" and is going on to pick up a load, DeLorenzo pointed out.

(2) U.S. rules do not specify a distance or time limit to personal conveyance. As it stands, the ELD final rule places no such limit on what a carrier can allow for personal conveyance, but does note that the carrier can choose (1) whether to allow it in the first place and (2) that the carrier's authorized safety personnel and safety officials will need to determine if specific examples of personal conveyance are appropriate. And that's another point that could create some confusion, particularly for cross-border trucking: DeLorenzo noted that Canada's equivalent rules covering personal conveyance actually do place distance and time limits on it.

Right to the source

It's not hard to see that in the day-to-day of commercial trucking, the issue of personal conveyance is full of nuance and could create confusion. It might be worth a look at the reference material — the ELD final rule, in this case — to see what it says. Read on if you'd like to explore some government regulatory lingo: here's what the rule actually contains on the matter, with the term in bold and emphasis added on some key points.

1. Personal conveyance can be a manually selectable driving category on the ELD:

"In addition to the information that the ELD records automatically, both the motor carrier and the driver must input manually some information in the ELD. The driver may select on the ELD an applicable special driving category, or annotate the ELD record to explain driving under applicable exceptions, including personal conveyance if configured by the motor carrier."

(IV: Overview; A. Today's Final Rule; 3. Technical Specifications: Implementation Period)

2. The ELD rule does not change hours of service (HOS) regulations allowing for things like personal conveyance:

"With regard to comments about flexibility, today's final rule concerns ELDs and supporting documents and does not involve any changes to the underlying HOS requirements or the various duty status options available under the HOS rules. Therefore, the use of ELDs does not preclude any of the flexibility provided under the HOS rules, such as the use of the CMV for personal conveyance."

(VI: Discussion of Comments—Overview; B. An Overview of Comments; 3. FMCSA Response)

3. Commenters — Knight Transportation, this this case — urged that drivers be allowed to edit ELD records at any time, anticipating that drivers may forget to identify or change driving status:

"Knight commented that the rule should clearly allow drivers to edit their ELD records at any time before, during, or after having confirmed a record. Knight wrote that FMCSA should allow drivers to flag personal conveyance or yard moves segments even after they occur. Knight believed the most common error made with ELDs is that drivers forget to change duty status."

(IX: Discussion of Comments Related to Harassment; G. Drivers' Control over RODS; 1. Comments to the 2014 SNPRM)

4. If a motor carrier allows for it, a driver can indicate the start and stop of yard moves and personal conveyance on the ELD, rather than making annotations on the device as with other special driving statuses:

"Today's rule permits the driver to indicate the beginning and end of yard moves and personal conveyance, as allowed by the motor carrier. All other special driving categories, such as adverse driving conditions (§ 395.1(b)) or oilfield operations (§ 395.1(d)), would be annotated by the driver, similar to the way they are now."

(X. Discussion of Comments Related to the Technical Specifications; 2. FMCSA Response; G. Special Driving Categories)

5. FMCSA addresses its proposals regarding yard moves and personal conveyance — the latter is also referred to more simply here as "personal use" — in the agency's second notice of proposed rulemaking in 2014.

Notably, FMCSA emphasizes that it called for no limits, time-wise or distance-wise, for either personal use or yard moves, and left that instead to the discretion of the motor carrier's authorized safety personnel and "authorized safety officials" — i.e., enforcement officers. The American Trucking Assns. (ATA) deemed this a reasonable position, and the possibility of yard moves or personal conveyance becoming excessive is also noted:

"FMCSA proposed that the ELD would provide the capability for a driver to indicate the beginning and end of two specific categories: Personal use of a CMV and yard moves, where the CMV may be in motion but a driver is not necessarily in a 'driving' duty status. If a motor carrier allowed drivers to use a CMV for personal conveyance or yard moves, the SNPRM proposed that a driver's indication of the start and end of such occurrences would record a dataset, but the ELD would not indicate these as separate duty statuses. If a driver used a CMV for personal conveyance, the ELD would not record that time as on-duty driving.

"FMCSA did not define a specific threshold of distance or time traveled for a driver to be able to use the personal conveyance or the yard movement provisions. Instead, authorized motor carrier safety personnel and authorized safety officials would use the ELD data to further explore and determine whether the driver appropriately used the indicated special category.

"ATA stated that FMCSA's modified proposal represents a reasonable middle ground. Carriers will have a record of all vehicle movements but will be able to distinguish those that should be legitimately recorded as driving time from those should not. Further, it will help law enforcement identify true driving time violations, while at the same time providing visibility to yard and personal conveyance movements in the event they are unreasonable or excessive."

(XII. Discussion of Comments Related to Procedures, Studies, Etc.; N. Short Movements or Movements Under a Certain Speed and Personal Use of a CMV; 2. Comments to the 2014 SNPRM)

6. Also in feedback on the 2014 second notice of proposed rulemaking, FMCSA points to comments from the Commercial Vehicle Safety Alliance (CVSA) and trucking company Schneider calling for a definition of personal conveyance that would require that a truck be unloaded, used for personal transport and only for a short distance not exceeding 25 mi. or half an hour, whichever comes first (FMCSA later declines to make such further restrictions — see No. 8 below):

"CVSA recommended that FMCSA define the term 'personal conveyance' in 49 CFR 395.2 as 'an unladen commercial motor vehicle (CMV) . . . used by a driver, while in an 'off-duty' status and when the utilization of a motor carrier's CMV is necessary for personal transportation, and for a short distance.' CVSA would consider 'short distance' travel to and from the nearest lodging or restaurant facilities in the immediate vicinity. 'Personal conveyance' would also include use of a motor carrier's CMV to travel from a driver's home to his/her terminal (normal work reporting location), or from a driver's terminal (normal work reporting location) to his/her home. In any case, this distance could not exceed the lesser of 25 miles or 30 minutes. Schneider supported this definition."

(XII. Discussion of Comments Related to Procedures, Studies, Etc.; N. Short Movements or Movements Under a Certain Speed and Personal Use of a CMV; 2. Comments to the 2014 SNPRM; Defining Yard Moves and Personal Conveyance)

7. Here's more discussion of feedback on the 2014 proposed rulemaking from a number of entities regarding personal use/ conveyance. In these, the Truck Rental and Leasing Assn. (TRALA) referred to confusion about recording all movement of the commercial motor vehicle, while Zonar called for some means built into ELDs for a driver to indicate the start and stop of yard moves and personal conveyance.

Eclipse Software Systems made a similar point and suggested ELDs should automatically switch to "off duty/ not driving," or ODND, status during personal conveyance if a truck is stopped for more than 5 mins. Others including the Truckload Carriers Assn. (TCA) called for a clearer definition of personal conveyance and when it's appropriate, or cautioned that personal conveyance could potentially be abused:

"TRALA stated that, at the very least, there is some confusion as to whether all miles, including personal and yard miles, must be recorded. Zonar stated that an ELD must provide the means for a driver to indicate the beginning and end of a period when the driver uses the CMV for personal use or yard moves. Zonar asked how the driver will end the yard move if the CMV is moved in the yard and then continues out of the yard to a road move.

"While the SNPRM does not subscribe to a specific threshold of miles or time, the TCA stated that it is important that personal conveyance be distinguished from true driving time. TCA wrote that FMCSA should more clearly define the principals and parameters of personal conveyance so that it can avoid any misinterpretation. ATA supported FMCSA's proposed treatment and recording of personal conveyance and movements within closed facilities (i.e., yards). NAFA Fleet Management Association concurred that authorized use of a CMV for personal conveyance would not be recorded as driving, but rather off-duty time. Eclipse Software Systems agreed that the driver needs to indicate when he or she begins personal use.

"However, just as the proposed rules allow the driver to be placed in ODND [off duty/ not driving] after 5 minutes with no vehicle movement, Eclipse would like to enable the same automatic functionality for the end of Personal Use time. A number of individual commenters asked FMCSA to clarify when it is appropriate to use a CMV for personal conveyance. One asked that the guidance be rewritten. Another commenter suggested that personal conveyance could be used to disguise moves in the local delivery area of a terminal. Several individual commenters asked that allowances be made for maintenance driving, for example, when a CMV was being tested."

(XII. Discussion of Comments Related to Procedures, Studies, Etc.; N. Short Movements or Movements Under a Certain Speed and Personal Use of a CMV; 2. Comments to the 2014 SNPRM; Comments on the Practical Application of the Rule)

8. Here's a critical entry: FMCSA here acknowledges concern about personal conveyance and yard moves, but essentially leaves flexibility for and definition of those special driving instances to existing federal hours of service regulations:

"FMCSA acknowledges and agrees with the commenters who stated that ELDs, by virtue of recording all movements, will create a visible consistent record of all actions taken in the CMV.

"The Agency is aware that there are concerns about personal conveyance and yard moves, as some commenters would like clear-cut limits on the mileage or time thresholds for CMV usage acceptable under personal conveyance and yard moves. However, the Agency does not think it is appropriate to include these definitions in the ELD rulemaking, as both clearly fall under the HOS rules and are applicable to a wide variety of CMV operations, not just those using ELDs. Thus, the Agency declines to address these matters at this time.

"Additionally, the Agency does not create any new provisions for either status, instead requiring only that they each be recorded. By making specific requirements on how these statuses must be recorded, but not specifying limits in mileage or time, FMCSA has purposely left these guidelines as open as they are today, to suit the diversity of operations across the country.

"FMCSA wishes to clarify that all miles driven, regardless of the status the driver has selected, are recorded. However, when a personal conveyance status is selected, the CMV's location is recorded with a lower level of precision, i.e., an approximate 10-mile radius. FMCSA believes that the recording of these miles is essential to HOS compliance, but balances this requirement with protections on the privacy of location data when drivers are not on-duty.

"If a driver selects the yard moves status and then begins regular driving, the driver simply switches statuses. If there is no break, and the driver forgets to add the new status, the driver can annotate his or her record to explain this, and can switch the time between the two statuses, as both are driving statuses.

"At the end of a personal conveyance status, FMCSA does not require that the ELD automatically switch to an off-duty status. Again, the driver can annotate his or her record to explain if the driver forgets to record an off-duty status at the end of the driving time.

"FMCSA understands the potential for abuse of the personal conveyance status, and has purposely required that all movements of the CMV be recorded (with a less precise location requirement). The rules do not allow driving statuses, including off-duty driving, to be edited to say they are non-driving time. These protections will directly address the falsification of HOS records, making it significantly harder. FMCSA believes that recording all the time that a CMV is in motion will limit significantly the amount of falsified time."

(XII. Discussion of Comments Related to Procedures, Studies, Etc.; N. Short Movements or Movements Under a Certain Speed and Personal Use of a CMV; 3. FMCSA Response)

9. A final reference to personal conveyance is seen in an input specification regarding an ELD's function, and while it reads like the output on a calculator, it's an important item. This spells out the device's input allowing a driver or authorized personnel to enter a comment or annotation on driver logs (of note, the entry would be limited to 60 characters):

"Comment/Annotation
Description: This is a textual note related to a record, update, or edit capturing the comment or annotation a driver or authorized support personnel may input to the ELD.
Purpose: Provides ability for a driver to offer explanations to records, selections, edits, or entries.
Source: Driver or authorized support personnel.
Used in: ELD events; ELD outputs. Data Type: Entered by the authenticated user via ELD's interface.
Data Range: Free form text of any alphanumeric combination.
Data Length: 0–60 characters if optionally entered; 4–60 characters if annotation is required and driver is prompted by the ELD.
Data Format: <Comment/Annotation> as in <[blank]> or <C> to <CCC. . . . . .CCC>.
Disposition: Optional in general; Mandatory if prompted by ELD.
Examples: [], [Personal Conveyance. Driving to Restaurant in bobtail mode], [Forgot to switch to SB. Correcting here]."

(Appendix A to Subpart B of Part 395—Functional Specifications for All Electronic Logging Devices (ELDs); 7.6. Comment/Annotation)"

 

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