March 9, 2018
On Dec. 16, 2015, the Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) published a Final Rule on Electronic Logging Devices and Hours of Service Supporting Documents. The rule requires that motor carriers and drivers retain supporting documents to verify their driving hours. But, the biggest change that the rule instituted is to require that hours of service (HOS) drivers track their hours using an electronic logging device (ELD).
Previously, FMCSA mandated that all drivers track their HOS using Records of Duty Status (RODS), which required drivers to record hours on graph grid paper by hand and retain those papers. Times have changed, and the new ELD Rule requires drivers of Commercial Motor Vehicles (CMV) to install ELDs in certain vehicles — model years 2000 and newer. The rule established a timeline to phase in requirements for use of ELDs. By Dec. 16, 2019, the rule enters its third and final phase and will be fully effective.
The first phase, which ended on Dec. 16, 2017, was the “awareness and transition” phase. It only required voluntary use of ELDs while FMCSA conducted presentations, webinars, and other outreach programs to raise awareness and explain the ELD Rule’s requirements. During this first phase, FMCSA touted the safety benefits that ELDs promote by correctly tracking hours, but also highlighted that ELDs would eliminate paper and make the process easier for drivers and motor carriers.
The second phase, which began on Dec. 17, 2017, initiated mandatory use of ELDs. During this phase, the rule requires all HOS drivers to track hours using ELDs. The rule provides a temporary reprieve to those currently using grandfathered “Automatic On Board Recording Devices” and allows them until Dec. 16, 2019, to comply with ELD use. The familiar, handwritten grid graph sheets will no longer comply with the HOS standard.
Although the rule changes how drivers record hours, the most important thing for drivers and motor carriers to understand is that the rule does not change who must record their hours. The rule did not change any of the existing exceptions to the HOS rule. If the regulations did not require a driver/motor carrier to track hours using RODS, then they are not required to use ELDs.
The HOS rule still only applies to CMV that travel in interstate commerce. Drivers who cross state borders qualify as interstate commerce. However, motor carriers should be aware that FMCSA’s definition of interstate is quite broad. FMCSA looks to the initial shipper’s intent to determine whether cargo is interstate. Therefore, a driver operates in interstate commerce even without crossing state borders when the original shipper of the hauled cargo intended that the cargo cross state lines.
Even for CMV that travel in interstate commerce, there are a few exceptions to the HOS and new ELD mandate, including short-haul exceptions, as the ELD rule did not change existing exceptions. The most common exception is the short-haul 100 air-mile radius exception, which requires:
Other air radius exceptions relax the 100 air-mile radius further by allowing vehicles that do not require drivers to hold a CDL to operate in a 150 air-mile radius. The non-CDL, short-haul exception also extends driving windows.
Many other exceptions exist, among them exceptions specifically applying to ready-mix drivers, road construction drivers, and agricultural drivers. Drivers and motor carriers should review all exceptions to determine whether they must comply with the HOS rule. Drivers and motor carriers should also review the requirements in each exception. The short haul exceptions exempt drivers from the HOS requirements to fill out logs, keep supporting documents, and use ELDs, but still require some recordkeeping.
The HOS rules have provisions and exclusions that can confuse anyone. It is important to understand that the ELD rule does not change the HOS rule. It fits into the current rules by changing the manner in which drivers track hours. Affected motor carriers should have already installed ELDs in commercial motor vehicles, trained drivers and employees to use ELDs, begun retaining documents, and ensured that their practices and policies comply with the new rule.
Although compliance of the ELD rule has already phased in for most motor carriers, it is not too late to understand and comply with the ELD Rule. It may be daunting, but using ELDs is required and should eventually make tracking HOS easier.
Benjamin J. Ross is an associate in Jackson Kelly’s Occupational Safety and Health Litigation Practice Group and is based in the firm’s Denver office, where he focuses his practice on the Federal Mine Safety and Health Act, Occupational Safety and Health Act, and Motor Carrier Safety Improvement Act, among others. He can be reached at 303-390-0026 or email@example.com.