Even as the focus shifts to enforcement of the still highly-controversial electronic logging device (ELD) mandate, changes are being proposed to the guidance surrounding some of its particulars, especially where “personal conveyance” is concerned – when drivers use the commercial motor vehicle (CMV) assigned to them for “personal needs, such as when going to a restaurant or heading home.
On top of that, experts warn that staying compliant with the ELD mandate will require drivers and motor carriers alike to pay closer attention to items such as supporting documents, instructional materials, and especially “form and manner” details when logging on- and off-duty status with the devices.
“The shipment ID number and trailer number, where applicable, are both required elements and you need to manually enter them unless your ELD is integrated into a transportation management,” John Seidl, a transportation consultant and account executivewith Integrated Risk Solutions, explained during a conference call this week hosted by Stifel Capital Markets.
“If you don’t, you will get cited for a form and manner violation,” he explained. “You also need to keep instruction cards and a blank set of logbooks on the truck. This has been a requirement since 1988. But if you are using an AOBRD [automatic onboard recording device] the instruction cards are different compared to an ELD – and if you fail to change the instruction card you will be cited for that.”
Under previous guidance, he explained that if a driver is relieved from all responsibility for performing work, only needs to travel a “short distance,” and is not “laden” with freight, time spent traveling from a driver’s home to his/her terminal and vice versa, or from “en route” lodgings to restaurants in the vicinity of such lodgings, using a CMV may be considered off-duty time.
However, under new guidance being proposed in the federal register, the “short distance” and “laden” requirements would go away; whether or not a CMV is loaded with freight would no longer be relevant. Instead, FMCSA would focus on what the “purpose” of the vehicle movement is – and if it's solely for the driver's benefit and not for the movement of goods, then it would considered “personal conveyance.”
“Yard moves” is another tricky area, noted Seidl, because the government “has not specifically defined what a yard is.” He said that motor carriers have submitted comments to the FMCSA requesting that the agency define the nature of a “yard” in the regulations, and not in its guidance, so there is a more “uniform understanding” as to when drivers can record it in their electronic logs.
When it comes to enforcement of the ELD mandate, Siedl – who served a goodly number of years with the Wisconsin State Patrol as a motor carrier inspector – reiterated that the industry is now in a period of “soft enforcement” and inspectors won’t place drivers or vehicles out-of-service for violating the ELD rule until April 1, 2018.
He added that having a false ELD or no record of duty status via an ELD after April 1 will result in a driver and their vehicle being placed out of service for 10 consecutive hours.
However that doesn’t mean failure to comply with the ELD rule won’t have consequences over the next three and half months, he warned.
The states set their own fines for violations, too, he stressed, meaning tickets could cost anywhere from “a couple hundred bucks” to “over a thousand” for not having an ELD, instructional materials, supporting documents, and blank logbooks.
“Some states rely on the revenues” from such fines to fund various highway safety programs as well, Sield added: “I’m not so sure they suspend them until April 1.”
He also pointed out that trucking company insurance underwriters will see such tickets and will care a lot about them, as well. “And litigators will care, too. If you are cited 52 times for not having an ELD and you are in a crash, you are potentially liable,” Siedl warned. “So a lot of things can hurt carriers and drivers if you do not put them [ELDs] in.”
When it comes to enforcement of the ELD rule, here’s is what he thinks will become the most problematic enforcement issues both motor carriers and drivers will face:
- Visibility of ELD data at the roadside
- ELD malfunctions and data diagnostic events
- Personal conveyance and yard moves
- Form and Manner
- Lack of instruction card and/ or supply of blank paper logbooks
Those issues aside, some industry advocates believe ELDs will ultimately benefit trucking companies and drivers.
“The benefits of this rule exceed the costs by more than $1 billion, making it a rule we can firmly support and easily adopt,” noted Chris Spear, president and CEO of the American Trucking Associations (ATA) trade group, in a statement.
“We firmly believe that America’s truck drivers – if they were operating legally within the hours-of-service (HOS) rules before today – will see tremendous benefits in using an ELD. Whether in reduced crashes, less time spent on paperwork or in fewer errors in their logbooks,” he added. “The data, as well as our members’ experiences, with this technology tells us that ELDs reduce crashes, increase compliance with the [HOS] rules and ultimately benefit our industry and the motoring public.”
“Having good data from the use of ELDs will make it easier for ATA to make the case for technical corrections to the hours-of-service rules in areas like detention time, split sleeper berth and more,” added Bill Sullivan, ATA executive vice president for advocacy.
“The mandate provides no safety, economic, or productivity benefits for most ensnared by the mandate,” stressed Todd Spencer, executive vice president of the Owner Operator Independent Drivers Association (OOIDA).
One “chief concern” expressed by OOIDA is the self-certification rules regarding ELDs, meaning the makers of the devices themselves and not FMCSA or a third-party testing firm validates their functionality.
“Most small-businesses can ill afford to make these purchases only to learn later that the ELD is non-compliant. Yet they are required to do so or risk violation,” Spencer said.
If an ELD malfunctions, a lot of work will need to be completed in short order, Integrated’s Siedl emphasized:
- If the ELD fails to work, a driver must immediately complete a paper log.
- The driver must also provide logs for each of the past seven days by either re-constructing the logs on paper immediately, possessing data from the logs, or getting access to ELD data via the device or via his or her company.
- ELDs must be repaired within eight days or be granted an FMCSA extension for repairs.
- Important note: so-called “data diagnostic events” need correction but do not rise to the level of an ELD malfunction.
He added that there are several instances where improper or inoperable ELDs could lead to out-of-service violations for drivers and fleets after April 1 of 2018:
- If a driver or carrier using ELD not authorized by FMCSA, the driver and carrier are considered to have no record of duty status;
- If a driver is unable to produce or transfer data from ELD, the driver has no record of duty status;
- If a driver using a special driving category but is not involved in that activity, the ELD is considered false;
- A driver failing to reconstruct logs for a malfunctioning ELD for the current day and previous seven days is considered to have no record of duty status;
- A motor carrier failing to repair an ELD within eight days or obtain extension from FMCSA then has no record of duty status and is in violation of the mandate;
- If a driver fails to log into an ELD, then they have no record of duty status;
- If a driver is required to have an ELD but the vehicle is not equipped with an ELD, then they have no record of duty status.
And, as a reminder, post-April 1, Siedl said having a false ELD or no record of duty status place both vehicle and driver out of service for 10 consecutive hours.