Every fall the Centers for Disease Control and Prevention publishes seasonal admonitions for segments of the population to get their flu vaccine. But another condition has been on the rise this year for which there is no vaccine — exemption fever. Symptoms include increased heart rate, blood pressure, sweaty palms, and emotional exclamations of “Surely, there must be an exemption for me!”
The source of the condition is well known — the initial compliance date for the Federal Motor Carrier Safety Administration’s final rule known as the electronic logging device mandate. By December 18, 2017, all non-exempted interstate drivers will be using some form of electronic logging device to track hours of service. Either the affected driver will already be using a device that meets the current electronic logging requirements of §395.15, or will use a device that meets the new technical ELD standards.
The mandate does not impose any new record of duty or logging requirements on a driver who is already exempt from the hours of service rules of Part 395. Drivers who are completely exempt from HOS due to a general exemption in §390.3(f), engaged in emergency support relief under §390.23, or are excused completely from Part 395 by an exemption in §395.1, will not need to use an ELD while in an exempt status.
The mandate offered a few limited exemptions, outlining when some drivers could continue to use paper logs instead of an ELD. Last December, Congress intervened on behalf of a specific industry to grant a fourth exemption. This exemption has since been added to §395.8(a)(1)(iii)(A). The four exemptions are:
- Drivers who log eight or fewer days out of any 30-day period;
- Drivers operating a vehicle that is part of a driveaway/towaway shipment;
- Drivers operating or towing a recreational vehicle (RV) that is part of a driveaway/towaway shipment (the Congressional directive); or
- Drivers operating a vehicle older than model year 2000.
From a high elevation, the exemptions may seem clear enough, but what do they mean for a specific driver or operation? All of the exemptions are at the driver level, not the operation level. This means that within a fleet, some drivers may need to use ELDs all of the time, while other drivers never do — and still others have a mix of paper and electronic records.
The exemption for drivers who log eight or fewer days out of a 30-day period could include “short-haul” drivers who use time records in lieu of logs under §395.1(e) or other intermittent-logging drivers. Qualifying short-haul drivers are able to use time records in lieu of logs. The FMCSA had never previously set a specific number of days that a driver needed to operate in a short-haul capacity in order to qualify for the exemption. A driver could qualify for a single occasional day and be exempt from completing a paper log for the qualifying day. Any day currently that the driver does not qualify for the exemption, he or she just needs to complete a paper log for the non-qualifying day.
This is changing. If the driver does not qualify for the exemption and therefore needs to complete a paper log more than eight times in any 30-day period, he or she will need to switch over to using an ELD and continue using the ELD until once again under the threshold.
The text in the ELD mandate refers to these exempt drivers as “drivers who need to use records of duty service (RODS) infrequently or intermittently.” This might include drivers who often operate a vehicle that is not typically regulated, such as a pick-up truck, but occasionally the vehicle becomes a CMV due to having a trailer attached. Other examples could include mechanics, flex capacity drivers, or driver managers.
An important note about this exemption: if the driver works for more than one carrier, the threshold is based on the driver level — he or she may be under the threshold when working for only one operation, but needs to use an ELD because of the total number of days that required a RODS from both carriers over the 30-day period.
With the two driveaway-towaway exemptions, it is necessary to understand the FMCSA’s definition of a “driveaway-towaway operation,” which is found in §390.5: An operation in which an empty or unladen motor vehicle with one or more sets of wheels on the surface of the roadway is being transported:
- Between vehicle manufacturers’ facilities;
- Between a vehicle manufacturer and a dealership or purchaser;
- Between a dealership, or other entity selling or leasing the vehicle, and a purchaser or lessee;
- To a motor carrier’s terminal or repair facility for the repair of disabling damage (as defined in §390.5) following a crash; or
- To a motor carrier’s terminal or repair facility for repairs associated with the failure of a vehicle component or system; or
- By means of a saddle-mount or tow-bar.
The first exemption is for general driveaway-towaway operations, but only if and when the vehicle being driven is part of the shipment being delivered. At all other times while operating a CMV, the driveaway-towaway driver must use an ELD unless another exemption applies. For the second recreation vehicle driveaway-towaway operation exemption, the carrier may use its own vehicle for the delivery and have the driver complete a paper log. Keep in mind, though, that neither Congress nor the FMCSA gave RV dealers a full ELD exemption; the vehicle and driver are only exempt when involved in a covered “driveaway-towaway” movement as defined in the regulations. Other movements, such as repositioning equipment, require an ELD unless otherwise exempted.
Pre-model year 2000 vehicles
Since, as determined by the FMCSA, “the most practical and cost-effective means of achieving compliance is the use of the [electronic control module] or ECM connectivity” and that “generally these options are available in all the vehicles manufactured beginning with model year 2000 and on many pre-2000 vehicles,” the FMCSA exempted all pre-model year 2000 vehicles from using ELDs. The litmus test that the FMCSA decided on for the model year was to use the vehicle identification number (VIN). The FMCSA received many questions regarding the use of the VIN and as a result recently changed the determining factor to be the registered date of the CMV rather than the VIN.
The headache remains
In a mixed fleet, it is possible that some drivers may have a compliant but confusing blend of exempt time, time records, paper logs, and electronic records. To alleviate the headache, a carrier that has a mixed fleet may decide to exceed the requirements and use electronic records for all drivers in all vehicles.
Some electronic logging systems provide telematics data along with HOS compliance. Carriers that choose to use an all-electronic solution often realize other stress reducers that may be incorporated, such as knowing where their assets are located, getting data on how safely the vehicles are being operated, estimating arrival times, managing driver productivity, documenting driver vehicle inspections, and automatically completing driver trip reports for International Fuel Tax Agreement and International Registration Plan compliance. In the end, an effective change-management approach will alleviate all symptoms of ELD exemption fever, including any lingering headaches.
Rick Malchow is a transport editor at J.J. Keller & Associates, which offers products and services to help ensure safety and compliance. This article was authored under HDT editorial standards to provide useful information to our readers.