DOT Issues Electronic Log Proposal

On March 28, 2014, the Federal Motor Carrier Safety Administration (FMCSA) published in the Federal Register its long-awaited supplemental notice of proposed rulemaking to mandate the use of Electronic Logging Devices (ELDs) for driver hours of service (HOS) compliance.

This rulemaking is a top priority for the FMCSA, and the agency is expected to publish a final rule sometime in early 2015. The mandate would become effective two years after the effective date of a final rule. But the FMCSA would allow continued use of Automatic On-Board Recording Devices, installed voluntarily by companies before the compliance date, for an additional two years beyond the compliance date of a final rule.

As expected, the proposed rule would mandate that interstate motor carriers install ELDs in all commercial motor vehicles (CMVs) operated by drivers who are now required to prepare paper Records of Duty Status (RODS), 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 HOS rules, but are not required to do so. Furthermore, under the proposal, drivers currently allowed to use timecards to document HOS compliance could continue that practice.

Most important for GAWDA members, however, 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, a CDL driver who is exempt from completing a paper log because he does not operate a commercial vehicle beyond the 100 air-mile limit and returns to the normal work reporting location within 12 hours would still be exempt from the ELD requirement and would complete a paper log for each day that he goes beyond the 100 air-mile limit or is on duty for more than 12 hours, as long as he did not exceed the exemption limits more than 8 days in any rolling 30-day period.

The proposed rule would prohibit companies from using the information provided in ELDs to harass drivers, including drivers being pressured to exceed HOS 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 be able to use only 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 motor carrier would be required to maintain not more than 10 supporting documents. If the company does not create at least 10 supporting documents during a 24-hour period for a driver, the company would not be required to create additional supporting documents. In addition, companies whose drivers use paper logs would also need to maintain toll receipts.

GAWDA submitted comments generally supporting the proposed rule. In particular, GAWDA supported the flexibility afforded by the “intermittent use” exception to the ELD requirement. This will exempt many CDL drivers for GAWDA members from having to use ELDs because they stay within the 100-mile, 12-hour limits during their delivery runs.

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