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FMCSA TO PUBLISH FINAL RULE ON ELECTRONIC LOGGING DEVICES

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On Monday, April 5, the Federal Motor Carrier Safety Administration (FMCSA) will publish a Final Rule in the Federal Register on the use of electronic logging devices for tracking hours-of-service compliance by the trucking industry. The Final Rule went on public display today.

(FMCSA refers to such devices as electronic on-board recording devices, or EOBRs. However, this term is commonly used to describe comprehensive fleet management systems that do far more than simply monitor hours of service compliance. To distinguish these more comprehensive systems from the ones that FMCSA addresses in this final rule, ATA uses the term electronic logging devices to describe devices that merely track hours of service compliance.)

 

FMCSA's final rule differs from the 2007 proposed rule in that it includes broader criteria for identifying non-compliant carriers that will be required to install such devices. With the use of broader criteria, more carriers will be required to install electronic logging devices. The Final Rule has three major components:

  1. Regulatory Incentives - to encourage greater voluntary adoption of devices;
  2. Mandatory Adoption - for those motor carriers with a pattern of hours-of-service violations found during a single compliance review;
  3. Device Specifications - that address how the devices must work and what data they must collect.

A summary of each of these components follows:

 

  1. Regulatory Incentives to Encourage Greater Voluntary Adoption of Electronic Logging Devices

 

The rule does not mandate the use of devices by safe and compliant motor carriers, but instead attempts to encourage voluntary adoption. FMCSA has offered two primary incentives for motor carriers to voluntarily adopt electronic logging devices for HOS compliance.

 

a) Compliance Review Record Sampling - When conducting a Compliance Review on carriers that have voluntarily adopted electronic logging devices, FMCSA will permit its investigators to review a random sample of hours of service records after reviewing an initial, selective, sample of drivers' records. Under the current process, investigators deliberately choose a selective sample for review in an attempt to find violations. If 10 percent or more of the records examined show a pattern of violations of the same regulation (the 11 hours of driving rule, for instance) the carrier is found to have violated a "critical" regulation. Under the new rule, a motor carrier voluntarily using electronic logging devices could request that FMCSA examine a random sample of records that provides a representative picture of its entire operation, not just selected terminals, locations, or drivers.

 

b) Partial Relief from HOS Supporting Documents Requirements - Since electronic logging devices will capture sufficient data on vehicle movement required for verification of HOS compliance, some of the currently required, voluminous, supporting documents will be rendered redundant and unnecessary. Hence, FMCSA will relieve motor carriers voluntarily adopting the use of the devices from having to retain supporting documents that are retained to verify driving time. These carriers would still be required to retain supporting documents to verify non-driving time.

 

  1. Mandatory Adoption of Electronic Logging Devices for Motor Carriers with a Documented History of Severe Non-Compliance with Hours of Service Rules

 

While the new rule does not mandate electronic logging devices for all motor carriers, those who are found by FMCSA to have a pattern of non-compliance with a critical HOS regulation (10 percent or more of records checked reflect the same violation) during a single compliance review would be required by FMCSA to install and use electronic logging devices for two years. This requirement would also extend to owner-operators under lease to the non-compliant motor carrier. FMCSA's intent is to focus on carriers with severe problems, while at the same time encouraging others to adopt and use this new technology.

 

 

  1. Device Performance Specifications

 

The final rule includes technical specifications/performance standards setting forth what data the electronic logging devices need to capture, how frequently, with what degree of accuracy, and how the data will be available for law enforcement review. Under these standards, the devices must include Global Positioning System technology or other location tracking system technology to automatically identify the location of each truck and must be "integrally synchronized with the" CMVs in which they are installed in order to record engine use, road speed, and miles driven. As with the requirements for systems in use today, the new rules require that electronic logging devices record the basic information needed to document a driver and his or her workday, such as: the identity of the driver, duty status time data, location of the truck, distance traveled during operation, etc.

 

Current FMCSA regulations already allow the use of certain recording devices for HOS compliance. Under the new rule, existing devices can continue to be used for the life of the vehicles in which they are installed. However, new devices must meet updated technical specifications consistent with into today's electronic engine and digital/wireless communication systems.

 

The rule includes a few other matters that will be of particular interest to motor carriers:

 

  1. While this rule only mandates electronic logging devices for a relatively small number of motor carriers, FMCSA intends to initiate a rulemaking later this year that will consider a mandate for a broader population of motor carriers. In particular, FMCSA will likely propose a mandate for carriers it feels have "higher potential risks," such as passenger carriers, hazardous materials carriers, and new motor carriers initiating operations.

 

  1. Supporting Documents - In addition to including violations of the 11, 14, and 60/70 hour rule, the list of violations that could trigger a mandate also includes "failing to preserve driver's records of duty status supporting documents for six months." As a result, a carrier not found to have violated the driving and on-duty time regulations (e.g., 11 hour driving rule) could still be required to install electronic logging devices in its vehicles, merely for improper recordkeeping.

 

  1. Existing Fleet Management Devices - It is important to note that the final rule addresses the use of devices that can capture the data necessary for verification of HOS compliance. It does not speak to more comprehensive fleet management systems that also capture engine and driver performance data. However, motor carriers can use such devices to meet the requirements and conditions of the Final Rule if their devices also include a component that meets the specifications for capturing required HOS compliance information.

 

Compliance is mandated beginning on June 4th, 2012. The two-year phase-in period will allow motor carriers, manufacturers, and law enforcement groups time to make adjustments and conduct training before the final rule is enforced.