Electronic Logging Rule Allows Flexibility For Short-Haul Deliveries

The Federal Motor Carrier Safety Administration (FMCSA) has published a proposed rule to mandate the use of Electronic Logging Devices (ELDs) for driver hours of service compliance. The proposal has a key exception that, if adopted, will prove beneficial to many GAWDA members.

The mandate would become effective two years after the effective date of a final rule, except for Automatic On-Board Recording Devices installed before the compliance date, which would be authorized for an additional two years beyond the compliance date of a final rule.

As expected, the proposed rule would mandate that companies operating commercial motor vehicles (CMVs) in interstate commerce install ELDs in all CMVs operated by drivers who are now required to prepare paper Records of Duty Status (RODS, also known as driver logs), subject to a limited exception for drivers who are rarely required to keep RODS.

If a driver is required to use an ELD, the motor carrier must not require or allow the driver to operate a CMV in interstate commerce without using the device. Drivers in operations not requiring RODS may use ELDs to document their compliance with the hours of service (HOS) rules, but are not required to do so. Furthermore, under the proposal, drivers currently allowed to use timecards to document hours of service compliance could continue that practice.

Drivers who need to use RODS infrequently or intermittently would be allowed to continue using paper RODS, provided they are not required to use RODS more than 8 days in any 30-day period. For example, many GAWDA members have CDL drivers who are exempt from completing a paper log because they do not operate beyond a 100 air-mile radius and return to the normal work reporting location within 12 hours. These drivers would also be exempt from the ELD requirement. They would have to complete a paper log for any day that they go beyond the 100 air-mile limit or are on duty for more than 12 hours, as long as they did not exceed the exemption limits more than 8 days in any rolling 30-day period.

This flexibility should mean that many, if not most, GAWDA members will be exempt from the requirement to use ELDs for at least part of their delivery operations.

The proposed rule would also prohibit carriers from using the information provided in ELDs to harass drivers, including drivers being pressured to exceed hours of service limitations and inappropriate communications that affect drivers’ rest periods. But the FMCSA said that carriers may use the devices “to improve productivity or for other appropriate business practices.”

Manufacturers of ELDs would have to certify that their devices meet FMCSA technical requirements, and register certified devices with the agency. The FMCSA would publish a list of certified devices on its website, and carriers would only be able to use certified ELDs listed on the FMCSA website.

In addition, the proposal would limit the supporting documents that a company must maintain by specifying the number, category and required elements for a supporting document and, subject to a limited exception, would not require supporting documents that reflect driving time. Companies would still need to retain documents to certify a driver’s on-duty, not driving periods, however.

For every 24-hour period a driver is on duty, the company would be required to maintain not more than 10 supporting documents from the following five categories:

  1. Bills of lading, itineraries, schedules or equivalent documents that indicate the origin and destination of each trip
  2. Dispatch records, trip records or equivalent documents
  3. Expense receipts
  4. Electronic mobile communication records, reflecting communications transmitted through an FMS for the driver’s 24-hour duty day
  5. Payroll records for the driver’s 24-hour duty day, settlement sheets or equivalent documents that indicate what and how a driver was paid.

Companies are not required to generate supporting documents in each of these categories; the FMCSA uses them merely as examples. Additionally, if the company does not create at least 10 supporting documents during a 24-hour period for a driver, the carrier would not be required to create additional supporting documents. Finally, those companies whose drivers use paper logs would also need to maintain toll receipts.

The FMCSA is not expected to make this proposal a final rule until sometime in 2015.

Gases and Welding Distributors Association
Richard P. Schweitzer, Esq. Meet the Author
GAWDA’s Government Affairs & Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC in Washington, D.C. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com.