Snowman, What's Your 20? – Loaded Up and Trucking in the New Age of the Electronic Logging Device.

Imagine if Sheriff Buford T. Justice could instantly see Cledus Snow's every time-stamped movement during his 28 hour run to deliver a frosty Rocky Mountain brewed beverage from Texarkana to Atlanta. Such would certainly subject the eccentric owner-operator to a myriad of legal woes under a new federal regulation. With just a matter of days before the December 18, 2017 federal mandate will require most motor carriers to utilize electronic logging devices ("ELD"), many of our transportation industry clients are seeking guidance on the new regulation and how it will be enforced.

An ELD links to a commercial motor vehicle's engine and automatically records date; time; location information; as well as identification information for the driver, vehicle, and motor carrier. Further, an ELD must be integrally synchronized with the engine of the commercial motor vehicle to automatically record engine operation data such as engine power status, vehicle motion status, engine hours, and miles driven. Location data must be recorded by an ELD at 60 minute intervals when the vehicle is in motion, and also when the driver powers up and shuts down the engine, changes duty status, and indicates personal use or yard moves. Just as before, all of the driver's hours of service must be accounted for; including on-duty but not driving service. To reflect this service, the driver can manually add any on-duty but not driving time prior to operating the ELD equipped commercial motor vehicle. The driver and motor carrier share responsibility for the integrity of the records.

In addition to the use of the ELD, a driver must have onboard the commercial motor vehicle an ELD information packet containing the following items:

• A user’s manual for the driver describing how to operate the ELD;
• An instruction sheet describing the data transfer mechanisms supported by the ELD;
• Instructions on how to produce and transfer the driver’s hours-of-service records to an authorized safety official;
• An instruction sheet for the driver describing ELD malfunction reporting requirements and recordkeeping procedures during ELD malfunctions; and
• Blank driver record of duty status grids sufficient to record the driver’s duty status for a minimum of 8 days.

A motor carrier must keep both the ELD record of duty status data and a back-up copy of that data on a separate device for 6 months. The new regulation also includes a provision for drivers to file a complaint if a carrier has a driver operate a commercial motor vehicle while fatigued or ill, or work more than 70 hours of service a week. This provision subjects a motor carrier to a civil penalty up to $16,000.

The ELD mandate will make the tracking of drivers' hours of service easier and more accurate. Upon request, a driver must provide any supporting document in the driver’s possession for an authorized safety official’s review. In fact, former United States Secretary of Transportation Anthony Foxx stated that this technology will allow roadside safety inspectors to unmask violations of federal law that puts lives at risk. Currently, the U.S. Department of Transportation reports that about 4 million commercial motor vehicle inspections are conducted every year. With the new efficiency of this electronic technology, we expect that the volume of commercial motor vehicle inspections will increase significantly.

There are a few exemptions to the ELD requirement. Any drivers who are exempt from the hours-of-service (such as the timecard exception) are not required to use ELD. However, the ELD rule will apply to most drivers who are currently required to maintain records of duty status pursuant to Part 395, 49 CFR 395.8(a). The rule applies to commercial buses.

The transportation industry must navigate ever increasing regulation, and the Federal Motor Carrier Safety Regulations rapidly change. We recommend that the prudent motor carrier retain counsel to assist them in navigating existing and emerging areas of law. The attorneys at KRCL assist our transportation clients with these, as well as other matters that affect the industry.