Operational Policy 15 - Previous Seven Days RODS Guidance

The case: A driver was stopped for a roadside inspection. The driver only had the day of the stop and the previous two days’ RODs in his ELD. The driver stated he switched companies three days prior and has no RODs for the remainder of his previous 7 days because that stayed with his previous company. The driver confirmed he was operating over the road and was required to have RODs during his entire previous 7 days. The driver was placed OOS for not having his previous 7 days. A data q was sent from the company and their argument for the violation to be removed was because he worked for a different company, that they, as a carrier, were not required to have the driver’s RODs from the previous 7 days, only a summary of his hours worked. This issue has come up multiple times in Missouri, and the guidance the company used, and the guidance presented by FMCSA contacts and research the regulations conflict. We have been told that according to the regulations 395.8(j)(2) - "Motor carriers, when using a driver for the first time or intermittently, shall obtain from the driver a signed statement giving the total time on duty during the immediately preceding 7 days and the time which the driver was last relieved from duty prior to beginning work for the motor carriers. And we have also been referenced FMCSA ELD Guidance FAQ 15 that quotes 395.8(j)(2) and adds, "In the alternative, the driver may present copies of the prior 7 days' records of duty status or a print-out of the prior 7 days from the prior carrier's ELD system." We have been told that based on the 395.8(j)(2) and the FAQ, the driver is not required to have the previous 7 days worked for the other carrier(s) to made available for a roadside inspection. Because this was the guidance provided, the violation was told to be removed from the inspection report. The research and counter to this guidance that has been attempted to be used is 395.8(k)(2) reads – “The driver shall retain a copy of each record of duty status for the previous 7 consecutive days which shall be in his/her possession and available for inspection while on duty.” It was mentioned that (j)(2) references the carrier responsibilities, (k)(2) references the driver’s responsibilities. The rebuttal received from this is that 395.8(j)(2) comes before 395.8(k)(2), so (j)(2) takes presidents over (k)(2). The other factor used is to combat this thinking is ELD Guidance FAQ 14 Question 14: How must a driver reflect their record of duty status for the previous 7 days during a roadside inspection, if he or she is employed by multiple motor carriers that are using ELDs? Guidance: The driver can either, (1) print out their hours-of-service from the other motor carrier, (2) if operating with compatible devices the ELD data can be transferred between the motor carriers with the driver’s approval, or (3) manually add the hours of service while operating for that motor carrier into the current ELD using the editing and annotation functions of the ELD. The response to this ELD FAQ question 14 is from 2017, and ELD FAQ 15 was last updated March, 2022, therefore FAQ 15 takes presidents over FAQ 14. Ultimately, during a roadside enforcement check, when a driver has switched companies completely, or is being utilized by multiple companies (aka quits/fired and gets rehired for a new company, or operates for a moving company or hotshot that has multiple subsidiary companies), is the driver required to have in their possession their previous 7 days record of duty status? If the guidance given to be used is what is required, ultimately a driver being utilized by a company with multiple subsidiary companies, using multiple USDOT #’s would never need to retain their previous 7 days for roadside inspections. When drivers’ bounce from carrier to carrier using, for example, Atlas World Group, or UniGroup, or even a hotshot driver using multiple companies to broker loads, they would rarely be required to present their previous 7 days.

This request is to issue guidance for consistent enforcement of a potential out of service violation. This question seeks clarification of does 395.8(j)(2) take president over 395.8(k)(2) and does ELD guidance FAQ 15 supersede ELD guidance FAQ 14.

Be given definitive guidance for roadside inspections on if a driver is OOS for not having his previous 7 days when the driver worked for a previous carrier during the preceding 7 days and does not have the RODs in his possession when worked for a different carrier during the eligible time period for an inspection. This question seeks clarification of does 395.8(j)(2) take president over 395.8(k)(2) and does ELD guidance FAQ 15 supersede ELD guidance FAQ 14.