Regulatory guidance comment period focuses on personal conveyance

The pocketbook version of the Federal Motor Carrier Safety Regulations, or The Green Book, includes hundreds of pages of rules that truckers must follow.

But it doesn’t end there. Many of those rules require clarification so that law enforcement, truckers and motor carriers know how to ensure compliance.

That’s where regulatory guidance documents come in. The Federal Motor Carrier Safety Administration has issued about 1,300 of these guidance documents in hopes of providing clarity. Regulatory guidance isn’t legally binding because it doesn’t go through the rulemaking process. However, that fact doesn’t stop it from being important. The reality is that law enforcement officers often rely on this guidance to determine whether they believe a trucker is compliant with a regulation.

The Fixing America’s Surface Transportation Act of 2015 requires the agency to conduct a comprehensive review at least once every five years to ensure that all of its guidance documents are “consistent and clear, uniformly and consistently enforced and still necessary.”

In August, FMCSA followed this Congressional mandate by asking the public to provide feedback on which existing guidance documents need to be revised.

“The Federal Motor Carrier Safety Administration will be reviewing its existing guidance documents to evaluate their continued necessity and determine whether they should be updated or eliminated,” the agency wrote. “As part of this review, FMCSA invites the public to identify and provide input on existing guidance documents that are good candidates for revision or rescission.”

According to the Regulations.gov website, 25 comments were filed to the docket. Those comments came from trucking organizations such as the Owner-Operator Independent Drivers Association, as well as from law enforcement and individual truck drivers.

OOIDA, which represents small-business truckers, focused its comments on the agency’s guidance surrounding personal conveyance, the Medical Examiner’s Handbook, electronic logging devices and broker reform.

“We believe FMCSA’s guidance generally serves its purpose in helping regulated entities and the public better understand the agency’s regulations,” OOIDA President Todd Spencer wrote in comments filed in late September. “However, improvements should be made to the guidance portal along with other amendments to the Medical Examiner Handbook and implementing guidance that would enhance broker transparency.”

Personal conveyance

Personal conveyance is the movement of a commercial motor vehicle for personal use while off-duty.

The Commercial Vehicle Safety Alliance has petitioned FMCSA on multiple occasions to create mileage or time limits for personal conveyance. Each time, the petition has been denied.

OOIDA encouraged FMCSA to maintain its stance.

“A commercial motor vehicle driver’s time is already overregulated in terms of when they can drive and when they can rest,” Spencer wrote. “There should not be any additional restrictions on how a driver can use his or her own personal time. We have supported FMCSA’s denial of petitions that would establish personal conveyance limits. We urge the agency to uphold this guidance and protect the use of personal conveyance moving forward.”

Nick Wright, a trooper with the Kansas Highway Patrol, pointed out multiple guidance documents that may need to be revised or removed. Among those, Wright suggested that additional clarification was needed regarding personal conveyance.

“A driver may record time operating a (commercial motor vehicle) for personal conveyance (i.e., for personal use or reasons) as off-duty only when the driver is relieved from work and all responsibility for performing work by the motor carrier,” the guidance states. “The CMV may be used for personal conveyance even if it is laden, since the load is not being transported for the commercial benefit of the carrier at that time. Personal conveyance does not reduce a driver’s or motor carrier’s responsibility to operate a CMV safely. Motor carriers can establish personal conveyance limitations either within the scope of, or more restrictive than, this guidance, such as banning use of a CMV for personal conveyance purposes, imposing a distance limitation on personal conveyance or prohibiting personal conveyance while the CMV is laden.”

Lewis Britton told the agency that personal conveyance is one of its worst examples of regulatory guidance.

“It is left to (so) many interpretations that it fails to be easy to understand for drivers and open to unfair application by enforcement,” Britton wrote. The entire (personal conveyance) guidance needs revision and updating to be fair and impartial. For example, a driver is allowed to use personal conveyance to get to the “nearest safe place.” However, with truck parking having become a problem, many of the so-called “safe places” have begun charging a great deal of money to park for a few hours. This creates a revenue niche off of drivers who either are too tired to be driving or drivers running out of driving or on-duty time. FMCSA should better explain when such a conflict exists, what a driver should do.”

Certified Medical Examiner’s Handbook

For years, OOIDA has called out FMCSA for the failure of the handbook to distinguish between regulation and guidance. The Association said that while the 2024 version improved in that area, more work needs to be done.

Guidance involving obstructive sleep apnea remains a problem area, OOIDA said.

“The updated handbook still includes sections, such as obstructive sleep apnea, that remain overly reliant on recommendations instead of approved regulatory standards,” Spencer wrote. “The Medical Examiner’s Handbook should not reference the 2016 Medical Review Board recommendations on certification of drivers with moderate-to-severe obstructive sleep apnea. The inclusion of these recommendations empowers medical examiners to continue forcing needless obstructive sleep apnea screening/testing upon drivers.”

ELDs

Pre-2000 trucks are exempt from the ELD mandate. FMCSA guidance clarifies that the exemption also applies to rebuilt pre-2000 engines that are placed into a newer truck model.

“This guidance clarifies questions from motor carriers, drivers and law enforcement about ELD compliance if the model year reflected on the vehicle registration is not the same as the engine model year,” Spencer wrote. “OOIDA has supported FMCSA’s interpretation.”

OOIDA added that there is no evidence that the ELD mandate has improved highway safety.

Broker reform

Although most of the feedback focuses on existing guidance documents, OOIDA used the public comment period to suggest a topic that requires guidance from the agency.

OOIDA petitioned FMCSA in 2020 to create a rule aimed at addressing the lack of broker transparency in the trucking industry. FMCSA granted the petition and, as of press time, was expected to release a notice of proposed rulemaking in October. While truckers wait for the slow-moving rulemaking process, OOIDA suggested that FMCSA should issue guidance to improve compliance with existing broker transparency regulations. LL