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FMCSA Proposes Rule to Require Use of Electronic Logging Devices

Wednesday, January 20, 2016
FMCSA Proposes Rule to Require Use of Electronic Logging Devices
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The Federal Motor Carrier Safety Administration issued on March 28, 2014 a proposed rule to require certain interstate commercial truck drivers and bus companies to use electronic logging devices (ELDs). The proposed rule aims to improve commercial motor vehicle (CMV) compliance with the rules that regulate how many hours a driver can work each day.

Background

This proposal is the continuation of the agency’s effort to improve its assessment of hours of service (HOS) violations in the transportation industry. In 2010, the FMCSA issued a final rule requiring the use of electronic on-board recorders (EOBRs) in certain CMVs. The rule would have required interstate motor carriers with serious patterns of HOS violations to install EOBRs in all of their vehicles. Commercial motor carriers were required to comply with the final rule by June 4, 2012.
However, in August 2011, the 7th Circuit Court of Appeals vacated the final rule. In October 2011, the FMCSA announced it would not appeal the court’s decision. On May 14, 2012, the agency issued a new final rule to return its regulations to their pre-2010 form.   

The ELD Proposal

This proposed rule has many of the same objectives as the 2010 rule. However, it also presents standards and provisions that would correct the deficiencies in the agency’s 2010 rule. Specifically, the proposed rule:

  • Establishes minimum performance and design standards for ELDs;
  • Requires the use of ELDs for drivers who are already required to prepare HOS records of duty status reports (RODS);
  • Clarifies supporting document requirements; and
  • Provides measures to prevent harassment resulting from mandatory ELD use.

ELD Recording Standards

The proposed rule requires ELDs to be recording-only devices. Nevertheless, ELDs would still need to be able to transfer recorded data to authorized safety officials.
The proposal does not require ELDs to analyze or review RODS for any purpose. This includes data analysis ELDs could use to warn a driver who is nearing an HOS violation or information carriers could use to prevent other compliance issues. However, because an objective of this proposed rule is to increase compliance with HOS regulations, ELD providers are free to use or build ELDs that enable compliance capabilities.

Damaged, Outdated or Malfunctioning ELDs

In the event of an ELD failure, the proposed rule allows drivers to comply with the ELD mandate by using temporary paper RODS while the ELD remains inoperative. The proposed rule would also require drivers to provide a written notice of defective ELDs to their employers within 24 hours.
The proposed rule would require motor carriers to repair a defective ELD within 8 days of discovering its condition, although motor carriers could request an extension to the 8-day period. Any driver caught operating a vehicle with a defective ELD beyond the 8-day period (unless an extension is granted), would be subject to citations and a requirement to prepare and submit paper RODS.

Proposed ELD Mandate

Consistent with the requirements of the Moving Ahead for Progress in the 21st Century Act (MAP-21), the proposed rule would require motor carriers to install ELDs in all CMVs operated by drivers who are already under an obligation to prepare paper RODS.
The proposal also considers some exceptions to the mandate for:

  • All motor carriers transporting bulk quantities of hazardous materials or all carriers subject to part 395 (the “true universal” approach);
  • Drivers who are rarely required to keep RODS; or
  • Drivers who use timecards instead of RODs.

However, the FMCSA is not proposing any exceptions for:

  • Specific sectors of the industry;
  • Specific CMV types;
  • Specific CMV sizes; or
  • A CMV’s history of HOS compliance.

Finally, under the proposed rule, the FMCSA would not use an ELD mandate as part of administrative sanctions against carriers that violate HOS regulations.

Proposed Supporting Document Provisions

The FMCSA recognizes that while under MAP-21 ELDs are required to “accurately record commercial driver HOS, there is no current technology that can automatically differentiate between a driver’s on-duty not driving (ODND) status versus off-duty or sleeper berth status.”
For this reason, while properly functioning ELDs eliminate the need for supporting documents demonstrating driving time, some supporting documents may still be necessary to ensure HOS compliance. The proposed rule would limit the number, category and required elements of reports a motor carrier must maintain to reflect accurate driving time.

Preventing ELD-derived Harassment

The proposed rule includes the following provisions intended to prevent driver harassment:
Access to records: The proposed rule would require carries to provide drivers access to and copies of their own ELD records.

Limited Vehicle Tracking: The proposed rule requires that ELDs do not transmit real time tracking information to a driver’s employer or to enforcement officials in order to avoid privacy violations but limits tracking to certain specified situations.

Explicit Prohibition: The proposed rule would also add a new provision to prohibit carriers from harassing drivers to operate a motor vehicle when impaired or to commit any other violation. The proposed rule suggests a procedure for drivers to file harassment complaints with the FMCSA.

Mute Function: The proposed rule would require ELDs to automatically go mute if the driver puts the ELD into a sleeper berth status and no other driver has logged into the ELD in an on-duty driving status.

Editing Rights: Because of the possibility that some current ELD can make changes to a driver’s record without the driver’s input, the proposed rule would grant drivers the right to edit their ELD records. However, editing under the proposed rule does not allow a driver to overwrite the original record.

Enhanced Penalties: The proposed rule includes new penalties for carriers that harass their drivers, in addition to existing penalties for HOS violations.

PROPOSED COMPLIANCE DATES

Provision

Compliance Date

Implications for Employers and Notes

Technical Specifications

On the final rule’s effective date (30 days after publication in the Federal Register)

ELDs meeting the requirements of this rulemaking could be both manufactured and used to comply voluntarily with this rule soon after the date of the final rule’s publication and establishment of the FMCSA’s public website.

ELD Mandate

Two years after the final rule’s effective date

Motor carriers that require use of AOBRDs that met the requirements of section 395.15 before the ELDs’ compliance date could continue using AOBRDs for two years after the final rule’s effective date. Prevent motor carriers from electing to adopt ELDs before the compliance deadline.

Supporting Documents

Two years after the final rule’s effective date

The final rule would supersede the policy on retention of supporting documents and the use of electronic mobile communications/tracking technology issued June 10, 2010.

Preventing Harassment

No specific compliance date. Compliance is tied to the presence of a compliant ELD in a commercial motor vehicle.

A driver who works for a motor carrier that voluntarily implements ELDs before the two-year compliance date could make a complaint before the ELD compliance date.

A driver working for a motor carrier using AOBRDs before the compliance date would be unable to use the proposed complaint process until a compliant ELD device was in place.

Current avenues to submit complaints remain available to drivers.

Two-year Transition Period

Continued use of AOBRDs installed before the compliance date is allowed for up to two years after the compliance date.

To enhance enforcement, all motor carriers that use RODS—including those who used AOBRDs before the compliance date—would be required to use compliant ELDs within two years of the compliance date. The Agency does not propose to require use of ELDs based on a vehicle’s manufacture date.

 

More Information

The Horton Group will continue to monitor the progress of this proposed rule and inform you of any relevant developments. In the meantime, please visit the FMCSA website or contact The Horton Group, Inc.  for more information on FMCSA regulations.

 

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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