BY KATIE JEREMIAH AND JACOB ZAHNISERThis article originally appeared in the July 25, 2016, edition of the Daily Journal of Commerce
Transporting supplies and materials to a build-site is the lifeblood of a successful construction project. To meet this end, contractors big and small own and operate a fleet of commercial motor vehicles to carry out their construction activities. Many contractors, however, may not realize their fleet of vehicles may fall under the Federal Motor Carrier Safety Administration’s (“FMSCA”) jurisdiction. This article highlights some of the key aspects of FMSCA rules impacting the construction industry. The following list is not exhaustive, but describes some of the ways in which the FMSCA’s regulatory scheme impacts the construction industry.
1. Does your fleet of pickups fall under the definition of a Commercial Motor Vehicle?Under FMSCA rules, a Commercial Motor Vehicle (“CMV”) includes any vehicle with a gross vehicle weight rating or gross combination weight rating of 10,001 or more pounds and is used in commerce to transport people or property. Many full-size pickups and certainly heavy-duty pickups fall under this definition. Furthermore, full-size trucks with a manufacturer’s gross vehicle weight of fewer than 10,001 pounds that have been modified to carry a heavier load also fall under the definition of a CMV subject to FMSCA rules. Any contractor using vehicles for their work that fit this definition should become familiar with FMSCA rules.
2. The Electronic Logging Device RuleIn 2015, the FMCSA published its electronic logging device rule requiring drivers of CMVs to electronically monitor their hours of driving. This rule takes effect starting on December 18, 2017. This rule applies to vehicles requiring a commercial driver’s license (“CDL”) to operate and non-CDL vehicles if the driver is operating outside a 150 air-mile radius of his or her normal work location or does not return to the normal work location at the end of each day. Of course there are certain exceptions to this new rule. For example, for CDL-vehicles, an electronic logging device is not required for drivers who operate within 100 air miles of their daily starting location, return back to the same location, go off duty within 12 hours, drive no more than 11 hours, and have at least 10 consecutive hours off before starting their next on-duty period. For non-CDL vehicles, an electronic logging device is not required for drivers who operate within 150 air miles of their daily starting location, report back to the same work location every day, and do not drive after the 14th hour of coming on duty. In either case, accurate time records must be maintained for a period of six months showing the time the driver reports for duty each day, the total number of hours the driver is on duty each day, the time the driver is released from duty each day, and, for intermittent drivers, the total driving time for the preceding seven days.
Nevertheless, starting in December 2017, a Bend contractor with coastal projects south of Coos Bay or North of Pacific City or east of Boardman through Pendleton, La Grande and Baker City should consider installing in their fleet of trucks weighing over 10,000 pounds a device that automatically records hours of operation.
3. Hours of Service LimitationAs noted above, FMSCA has differing hours of service limitations depending on numerous factors. Generally speaking, however, FMCSA rules prohibit driving more than 11 hours or to drive after having been on duty for 14 hours. This 3-hour difference is designed to give the drivers an opportunity to take care of non-driving working duties such as loading and unloading cargo, fueling the vehicle, and required vehicle inspections, as well as non-working duties such as meals and rest breaks. After completing an 11- to 14-hour on-duty period, the driver must be allowed 10 hours off duty. These hours of service limitations can create unforeseen schedule delays and unanticipated additional costs, as historically drivers could work through delivery problems, but now the drivers are required to stop work and possibly have an overnight hotel stay in order to keep within the hours of service limits. Further, contractors no longer have the same freedoms they once had to offer drivers additional overtime when unexpected problems occur. Instead, they must either delay work for the driver to rest or hire additional drivers.
Again, this list is by no means exhaustive. FMSCA’s rules and regulations are extensive. If you are a contractor concerned your fleet of trucks may fall under FMSCA’s jurisdiction, you should consult experienced counsel.