When is it appropriate for drivers to claim adverse driving condition exemption?
There's nothing quite as frustrating as being stuck in traffic for lengthy periods. Now multiply that frustration by at least ten when you're a commercial driver faced with the pressure of timely and safely delivering freight to an expectant customer on the one hand and staying within your allotted hours-of-service on the other. It's maddening!
Fortunately, the Federal Motor Carrier Safety Regulations offer some regulatory relief to drivers faced with so-called "adverse driving conditions," at least on the hours-of-service front. But what exactly qualifies as "adverse driving conditions?" That's what we're addressing in this article, but broadly speaking:
"Adverse driving conditions" is a term used within the federal safety regulations to describe situations where commercial drivers encounter unforeseeable traffic conditions caused by ice, sleet, fog, etc. The regulations allow drivers to extend their daily 11-hour driving limit and 14-hour on-duty window by up to 2 hours to complete their run or find a safe resting location when they encounter an adverse driving condition.
What qualifies as an "adverse driving condition?"
Section 395.2 of the FMCSRs defines the term "adverse driving condition" as follows:
Adverse driving conditions means snow, ice, sleet, fog, or other adverse weather conditions or unusual road or traffic conditions that were not known, or could not reasonably be known, to a driver immediately prior to beginning the duty day or immediately before beginning driving after a qualifying rest break or sleeper berth period, or to a motor carrier immediately prior to dispatching the driver.
Drivers who encounter such a condition are eligible to extend their 11-hour driving limit (10 hours for passenger carrying drivers) and 14-hour window (15 hours for passenger carrying drivers) by up to "two additional hours" when they "cannot, because of those conditions, safely complete the run within the maximum driving time or duty time." See 49 CFR 395.1(b)(1). In those situations, they are eligible to claim the "adverse driving conditions" exemption "to complete that run or to reach a place offering safety for the occupants of the commercial motor vehicle and security for the commercial motor vehicle and its cargo."
By way of example, let's say driver John Doe has driven 10 hours when he encounters stopped traffic due to a road closure caused by white out blizzard conditions. He runs out of available hours while stopped in traffic until the white out condition clears. Normally, this would be an 11-hour violation when the driver continues operating once the traffic clears; however, the adverse driving condition exemption allows him to continue operating for up to two hours (i.e., 13 hours) to complete the run or to find a safe resting location.
Importantly, this exemption is not a free pass for drivers or carriers to extend duty limits! It is only for unique and rare situations where drivers encounter unforeseeable traffic conditions that impede their ability to safely complete a run or find a safe resting place in light of their available hours. In our experience, this is where drivers and carriers tend to get themselves into trouble.
Note that the regulatory definition of an "adverse driving condition" specifically states that in order to qualify for relief, the condition must not have been reasonably known or foreseeable to the driver or the carrier immediately before the trip or dispatch. Accordingly, typical delays caused by everyday traffic situations or weather events that were foreseeable (i.e., via weather reports) prior to dispatch do NOT qualify for the exemption. Drivers and carriers who attempt to use the exemption in those situations face log falsification violations, which are more serious than the underlying HOS violations they would have incurred otherwise.
The FMCSA has addressed some important FAQs related to the adverse driving conditions exemption on its website:
Q: If it only takes an hour for a driver to get through the adverse driving conditions, do they still get to use the full 2 hours of the exception?
A: No. Drivers are allowed up to an additional two hours. If it only took an hour for the driver to get through the adverse driving condition, then that is all the additional time the driver is allowed.
Q: May a driver use the adverse driving conditions provision even if the adverse conditions have cleared when the driver arrives at the location where the condition occurred?
A: Yes, but only if the adverse driving condition inhibited a driver's ability to proceed. For example, if a rock slide blocks the road and causes traffic to back-up, and the rock slide is cleared off the road before the driver gets there, but the driver is inhibited by the traffic back-up, the driver may use the adverse driving condition exception.
Q: Are drivers required to annotate an adverse driving condition they encountered on their electronic logging device (ELD)?
A: Yes. A driver is required to annotate the use of the adverse driving conditions exception on the electronic logging device under 49 CFR Section 395.28(c). If the roadside officer can prove there was no adverse driving condition, the driver should be cited for the applicable violation of 49 CFR 395.3 or 395.5.
Q: May the adverse driving conditions exception be used in concert with the revised short-haul provisions?
A: Yes. However, if the adverse driving condition caused the driver to not return to the normal work reporting location within 14 hours, a record of duty status would need to be completed for that day.
Q: Are there allowances made in the Federal Motor Carrier Safety Regulations (FMCSRs) for delays caused by loading and unloading?
A: No. Although the regulations do make some allowances for unforeseen contingencies such as in §395.1(b), adverse driving conditions, and §395.1(b)(2), emergency conditions, loading and unloading delays are not covered by these sections.
Tips for adverse driving conditions
In light of the problems that can arise due to improper use of the "adverse driving conditions" exemption, drivers and carriers should use it sparingly and with caution. Here are some tips:
Make sure drivers are annotating their logs when claiming the adverse driving condition exemption, and ensure the annotation provides sufficient detail about the qualifying condition (e.g., adverse driving condition due to road closure from white out condition)
Plan ahead of each trip to ensure there are no foreseeable adverse conditions that could cause delay. These foreseeable conditions do NOT qualify for the exemption, so you should allow extra time for the run.
Use the exemption sparingly. Overuse will undoubtedly draw increased scrutiny and could lead to log falsification violations.
Do not push the exemption past its limits. The exemption can only be used to complete the current run or reach the next safe resting location.
Conclusion
The adverse driving condition exemption provides some flexibility to commercial drivers who encounter unforeseeable traffic conditions due to ice, fog, sleet, snow, etc. But it is not and should not be used as an end run around the HOS rules. Misuse of the exemption frequently leads to log falsification violations and other problems. For even more comprehensive content on the federal safety regulations, check out our online courses for safety managers and drivers at Trucksafe Academy.
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.