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The Latest On The ELD Rule From Washington And Beyond

A new day brings a new slew of movements in Washington regarding the ELD mandate. Congress has been toying with the idea of doing away with it in committee for some time, but it still wasn’t clear whether the rule would survive or not.

The fact is, many trucking companies have already been preparing, partnering with ELD providers, and getting their fleets ready for the coming mandate. Still, all that could change depending on what happens in our nation’s capital.

We recently reported on an amendment sponsored by Rep. Brian Babin (R.-TX) which aimed to prevent funding of the electronic logging device (ELD) rule for almost one year. That amendment was voted down on September 6 by a House floor vote of 246-173.

Considering the House is the less deliberative and more unpredictable chamber of Congress, it could have gone either way. With only four months to go, measures are still being introduced to derail the rule.

The first rule under consideration was H.R. 3282, the ELD Extension Act of 2017. This measure was first put to table back in July and was initially designed to delay the full implementation of the ELD mandate for two years. While it attracted 45 co-sponsors, it was still voted down.

The next shot across the bow of the ELD rule came from Representative Babin in early September. This anti-ELD amendment was attached to an unrelated bill, H.R. 3354, the Make America Secure and Prosperous Appropriations Act of 2018.

This measure would defund the ELD mandate, thus delaying its rollout through September 30 of 2018. The rider specifically mentions prohibiting funds from implementing or enforcing the rule during the time.

Since the amendment has been cleared by the House Rules Committee, it will be scheduled for consideration in mid-September.

Trucking Groups Weigh In

What is notable about these attempts is that nearly every stakeholder group is in favor of the ELD rule. The only outlier is the Owner Operator Independent Drivers Association. What does this mean? There is likely to be a lot of lobbying to keep the effective date where it currently stands, at December 18.

A representative from the Truckload Carriers Association (TCA) recently stated that delaying the ELD mandate would “further interrupt the actions of a progressive trucking industry that continually places safety at its forefront and stresses continued compliance with its daily operations. The truckload industry does not support this bill or any delay in ELD implementation.”

The Trucking Alliance also sent a letter to Congress, arguing that the Babin amendment “ignores federal court rulings (all the way to the U.S. Supreme Court) upholding the ELD mandate and ignores thousands of comments in support of this new technology. These ELDs accurately track the number of hours that drivers operate their trucks, replacing the paper logbooks that are easily falsified.”

The American Trucking Associations (ATA) bluntly came out and said that the “ATA strongly opposes efforts to delay this important rule.” The President of the ATA even went so far as to pen an op-ed on the website of the Huffington Post arguing that the rule should be implemented as planned without further delay to the present implementation date in December.

In the op-ed ATA President and CEO Chris Spear stated that the ELD rule has been “debated for nearly a decade. It has been approved by Congress three times, and upheld by federal courts. Any attempt to mislabel this as a ‘bad regulation’ in the final weeks before implementation is intentionally misleading.”

The article goes on to say that delaying or squashing the rule could “create more uncertainty for the trucking industry as we seek to plan and make investments in this important new technology.”

Most trucking advocacy groups expect to see bipartisan opposition to any major changes to the ELD mandate as it currently exists.

More notable is that there has been no companion legislation or attempts to delay or defund the mandate in the Senate. So even if the House does pass a measure, it will have to carry through reconciliation and make it through the Senate, which is not guaranteed.

As it stands, it looks like the ELD mandate will go into effect as planned in December. Now the question is how will the mandate be enforced. Trucking companies need to know that enforcement will be fair across the board. Let’s dig a little deeper.

Looking at the ELD Mandate Enforcement

Whether you already have ELD devices installed, they are on order or you are still considering the different options available on the market, you likely still have plenty of questions regarding what exactly will happen once the mandate drops on December 18.

According to Joe DeLorenzo, director of the Federal Motor Carrier Safety Administration’s (FMCSA) Office of Enforcement and Compliance, the government is ready to start enforcing the rule once it goes into effect.

There is a misconception out there that the government may not be ready to fully enforce the amendment. The Commercial Vehicle Safety Alliance (CVFA) and the FMCSA have been working together on announcing how they will approach truck drivers who are running without an ELD.

Each jurisdiction will have a say on how strictly they will enforce the rule and how they will enforce it, whether they are put out of service or simply fined or cited. The FMCSA recognizes that this is a big change and has allowed time for organizations to get up to speed before doing any major enforcement operations.

Of course, the FMCSA will be looking to see if motor carriers are showing persistent violations, in which case it is up to them on whether they will leverage penalties or open an investigation. This doesn’t mean motor carriers should be taking advantage of the FMCSA’s initial easygoing approach.

Looking at State Rules and eRODS

When the OOIDA filed a petition asking the FMCSA to delay implementing the rule, they specifically stated that “26 states have not yet incorporated an electronic logging regulation into state law and are not authorized to enforce the rule until they do so.”

According to the FMCSA, in response to that petition, states have rules by which they must operate under the program. With every new rulemaking, states must work closely with the government on enforcement.

Still, that isn’t the only concern. Some have openly wondered if roadside inspection officials will have the electronic records of duty status (eRODS) in place to interpret the data from the ELDs. While ELD providers have been testing to make sure their data files can communicate with roadside inspection systems, it looks as though full integration is cutting it close.

According to the FMCSA, they are working on the final issues of deployment. States are currently working on training plans that the FMCSA expects to be in place by November and fully ready for the December 18 deadline.

The FMCSA has stated that they recognized the use of data transfer may not work every time, so the ELD specification should always contain a backup, whether it can be printed out or displayed on the ELD itself. Either way, if data transfer fails, there should always be a secondary way of delivering the necessary information.

Since the ELD rule is primarily meant to address hours of service compliance, the electronic data transfer will make it easy to enforce, but will not be necessary should there be a complication.

What’s more important to consider is that there are exemptions to the ELD rule. In some circumstances, your fleet may not be required to adhere to them. Let’s look at when those circumstances are.

When You’re Exempt

There are many different exemptions to the ELD rule, all you need to do is know them. Generally, the ELD exemptions fall under two categories:

  • Existing rule exemptions: The 100-air-mile radius and agricultural exemptions.
  • New rule exemptions: The eight-in-30 rule and older engine exemption.

The new rule exemption category is unique to the ELD rule. The agency placed a pre-2000 exemption into the mandate because there are a number of older engines and vehicle types that may not have the onboard technology necessary to support ELD installation.

The exemption refers to the engine model year, as opposed to the vehicle model year. So if you are running an older engine on a newer chassis, you still may qualify for the exemption, depending on the age of the engine.

The 8-in-30 rule refers to the fact that some operators are only required to prepare paper logs fewer than 8 days out of every 30. In this case, due to the limited nature of reporting, the operator will not be required to have an ELD. It is important that operators pay very close attention to this exemption. It is easy to think you may qualify for it, but perhaps you don’t. It requires preparation to be sure.

In the end, the ELD mandate looks to be landing on December 18, regardless of what representatives in the House try to do. Fleets must be prepared and aware of exemptions they may or may not be qualified for.

An August Regulatory And Enforcement Update From Washington For Trucking

The trucking landscape has been changing, both from within and through regulatory action taken on the outside. As enforcement actions change, part of our job is to keep you informed on anything that could impact the industry we all know and love.

This month’s regulatory update from Washington is no less full of intriguing information as past updates. Each month, new moves from Congress, the Trump Administration, states and/or other major players keep the industry on its toes. Motor carriers have learned to become quick on their feet in adjusting to a new normal.

Let’s first look at the ELD mandate and the new adjustment period announced by the Commercial Vehicle Safety Alliance (CVSA).

The New Adjustment Period

While commercial motor vehicle inspectors can still issue a citation to a truck driver who is not operating with an electronic logging device (ELD) beginning on December 18, they cannot place a vehicle out of service until at least April 1, according to the new guidance.

Of course, even if the vehicle is not taken out of service, the mark would still be notated under the Compliance, Safety, Accountability program and recorded in said carrier’s safety measurement system (SMS) profile.

According to the CVSA, the new phase-in timeframe is designed to encourage compliance, but not in an unreasonable way. While enforcement is still a tool, the agency wants to allow fleets to adjust without creating unnecessary traffic problems or supply chain disruptions.

It is also important to consider that certain aspects of the phase-in plan differ from state to state. When local law enforcement gets involved, it adds to the question of who has final jurisdiction.

Yet, when you’re at the receiving end of a violation, jurisdiction matters little. That this will be noted in the record and followed up on in future inspections matters far more. The last thing a motor carrier wants is a stain of a violation, no matter what that violation is for.

The issue of jurisdiction came up when the CVSA sent a letter to the Federal Motor Carrier Safety Administration raising the question. Specifically, they advocated for a phased-in approach to addressing jurisdiction.

In their letter, the CVSA used the 2004 cargo securement rule as an example of a phased-in approach to enforcement in this case, an approach that likely saved many lives.

Meanwhile, as is often the case in so many of these debates, other industry participants seek an altogether different outcome. In this debate, the Owner-Operator Independent Drivers Association (OOIDA) has come out openly petitioning the FMCSA to delay it even longer than April.

The group points out that many states – a full 26, to be precise – have not yet codified or incorporated the E-log enforcement language into state law. Until then, the OOIDA asserts that there is no enforcement mechanism in place.

According to OOIDA’s Todd Spencer, “We are concerned about numerous states issuing citations for the violation of non-existent state laws. State law enforcement should not be implementing the ELD mandate until they actually adopt the mandate into state law and train and equip their enforcement personnel to enforce it properly.”

It’s no secret that OOIDA has made many attempts in court to block the ELD mandate. Not only has it failed in federal courts, but the Supreme Court has also declined to review it. For these reasons alone, the FMCSA has confidently moved forward with ELDs and coming enforcement and fleets should be too, whether through a phased-in approach or not.

The CVSA asserts that the enforcement community is ready to begin enforcement of the rule on December 18, 2017. Still, will the ELD mandate even take effect?

If so, FMCSA will require that all interstate motor carriers use ELDs instead of paper logbooks. Fleets who are using older ELDs that don’t conform to the new standard – such as AOBRDs or automatic recording devices – will be forced to upgrade, but will have a two-year window in which to do so.

Since the ELD mandate is built upon a congressional component, any major changes to the mandate will have to be passed through Congress. The question now is: How likely is that?

Republicans Breathe New Life into An ELD Delay

Who would have thought, this close to the deadline, even as fleets prepare for it, the ELD mandate might be back on the chopping block? Yet here we are.

When we last reported on it, an ELD mandate was slowly making its way through committee. Now, it appears there is some taste in the House for such a stall after all.

Republican Reps. Brian Babin of Texas, Lloyd Smucker of Pennsylvania and Doug LaMalfa of California recently offered an amendment to the must-pass 2018 fiscal funding bill that would prohibit the Department of Transportation (DOT) from funding any regulation relating to or mandating ELD usage.

Congressman Babin has also recently proposed legislation that would delay the ELD mandate by two years and claims 43 co-sponsors on that bill. How likely is it that the Congressman’s efforts will bear fruit?

When he first introduced the amendment, Babin stated that, “If trucking companies want to continue implementing and using ELDs, they should go right ahead. But for those who don’t want the burden, expense and uncertainty of putting one of these devices into every truck they own by the end of the year, we can and should offer relief.”

Well, to see this amendment go anywhere, the House must first vote to adopt it and then advance the funding bill to the Senate. The Senate would then have to sign off on the House version of the bill and get it to President Trump’s desk for a signature.

If the Senate were to amend the legislation and leave the ELD mandate in place, the House would then have to clear the Senate’s version of the bill and send it on for a presidential signature.

Will It Happen?

While the legislative calendar looks bloated, Congress has until September 30 to get a government funding bill on President Trump’s desk and avoid a costly government shutdown. With House Speaker Paul Ryan recently admitting his conference would “need more time,” it increasingly looks like a stopgap measure will be adopted until something more permanent can be put into place.

President Trump himself has signaled that he would not be particularly opposed to a shut down if there is no funding in the bill to build a border wall with Mexico.

The only thing that is currently known are the number of unknowns. With the ELD mandate looming a scant 3 months away, the regulatory outlook needs to come into focus rather quickly.

A Look at Post-ELD Spot Rates

When the ELD mandate does go into effect in December, there is one thing that many analysts pretty much agree on and that’s a tightening spot market. What’s the result? A likely rise in rates, at least in the short-term.

Further analysis shows that the ELD mandate could result in up to a 7% loss of capacity in the for-hire carrier segment. Overall industry capacity loss is said to total almost 4%. The main driver of this change is the inability of motor carriers to fudge the numbers and spend less time on the road.

This essential “re-benchmarking” of the industry could result in a total of 5 to 15% increase in overall spot rates. Whatever the number is, almost everyone agrees that capacity and spot rates will tighten.

One online survey points to a 2 to 4% rate increase, with some over-the-top “doomsday” scenarios saying we could see a 20 to 25% year-over-year increase during peak season.

In fact, the ELD mandate is already having an impact on the spot market before the implementation deadline happens. As shippers and brokers do their best to procure more capacity, they find it in scarce supply.

The global supply chain has become so fragmented that disruptive events can have lasting impacts. While the ELD mandate – should it pass – could be one of those disruptors, it is likely the spot market would follow more long-term trends.

Motor carriers will become far more precise in how they operate. While some truck drivers and small companies may be priced out of the market, for the most part, large players and companies who have been in the game for a long time will be well-positioned to make the adjustment.

Fortunately, if you look at history as a guide, fluctuations in spot market pricing aren’t entirely new. As an example, tightened HOS rules in 2013 resulted in a 4% capacity squeeze. The polar vortex weather event earlier in 2014 created another capacity problem in the spot market.

Point is, the market has survived volatility before, so there’s no reason to think we won’t come out on the other side of this one in good shape. No matter how you look at it, from the ELD mandate to spot rates and more, it’s been a busy August. Thanks for taking this journey with us and we’ll see you next time with our next update from Washington.

What To Do If Your ELD Is Not Compliant

As the mandated December deadline approaches, it is more important than ever to ensure your ELD devices are compliant with FMCSA regulations. And yet, that doesn’t mean it’s easy to ensure.

The fact is, if your fleet invests in an ELD and it is found to not be in compliance, the carrier will be stuck dealing with a difficult option. While truckers on the fleet payroll will be able to temporarily use paper logs, motor carriers will have a scant eight days from the moment they receive the non-compliance notification to replace the non-compliant devices.

In a situation where a large fleet has outfitted a lot of vehicles with non-compliant devices, the FMCSA will work with the carrier to develop a reasonable timeframe to get the devices replaced. Still, this provides minor comfort for a carrier doing their best to stay within the bounds of the law.

Also, consider the business relationship at stake. If a motor carrier has invested large sums in equipment that is found to not be in compliance, they need to evaluate who they are working with, lest they get caught in a rip-and-replace situation that doesn’t actually resolve the problem.

Looking For Verified Vendors

Consider this: There are no more than 36 ELDs currently on the FMCSA-approved list. Even more interesting – and perhaps puzzling to some – is that some of the largest names in trucking telematics are still absent from the list.

Whether you are referring to Omnitracs or PeopleNet, these big vendors are notably absent. The primary reason for their absence lies in the fact that they are still going through a rigorous self-certification process.

The FMCSA ELD-certification guidelines comprise a whopping 500+ page document. There’s a slew of technical details to consider and major players want to make sure they get it right before arbitrarily placing their equipment on the list.

Whether you are referring to HOS rulesets, California ag rules or Texas oil field rules, there are a lot of different aspects to consider. Vendors must weigh all of this together and ensure their devices are compliant.

What is ERODS?

One of the primary issues vendors are reporting is with the law enforcement data reporting aspect. The majority of enforcement officers will be using a software called Electronic Record of Duty Status, or ERODS. This software will be designed to translate data from a file in the ELD to the enforcement officer’s own system.

The officer can make the transfer one of a few different ways:

  • Telematics
  • Uploaded via a web service
  • Sent as an attachment in an email
  • Peer-to-peer short distance transfer
  • Bluetooth transfer
  • USB File transfer

Still not every state will do a file transfer to ERODS. In those cases, a truck driver can either print a copy of the log and hand it to the officer or the actual ELD device itself can be given to the officer. The device display would then mimic how a traditional paper log grid looks.

The Fleet Recourse

With these disparate forces at play, what is a fleet to do to ensure the equipment they are using meets federal requirements? The simplest option is to initiate a dialog with the ELD vendor to ensure they have done their due diligence in ensuring the device is compliant.

They can also request that a provision be written into their supply agreement that requires compensation for damages should the device being used be delisted. This is especially important if fleet truck drivers have experienced lost time.

Consider that an ELD provider who does not meet the requirements likely won’t agree to that provision within the contract. In the end, it is vitally important that you go with a vendor who solidly stands behind their product without question.

Are You Sure Your ELD Meets FMCSA Regulations?

As the ELD mandate continues to make its headlong march to full implementation on December 17, it’s important to not be fooled into thinking that the term “FMCSA Certified” means that the FMCSA has done some type of testing to ensure that the ELD complies with specific regulations surrounding their build and use. Be forewarned against making that assumption, however.

The fact is, per the FMCSA, some device manufacturers are improperly placing a sticker or marking on their devices claiming that they are certified by the FMCSA, when, in fact, this is not true. Remember, the FMCSA keeps a registry of devices that are certified. Always make sure to check the registry before assuming that a particular device fits the bill.

Know the Difference

One thing to keep in mind is that there’s a difference between registration and verification. Although manufacturers conduct tests to certify the product, it doesn’t necessarily mean that the product was manufactured and performs per FMCSA specifications.

It doesn’t take much for a system to be compliant today, but removed from the list tomorrow. An even more important consideration is that there isn’t even a set-in-stone guarantee that the ones on the list will be compliant.

Why? Because the bar to get on the list is pretty low. It pretty much includes the manufacturer reporting that the device is a compliant ELD… and that’s it. Getting on the list is more of a registration process than a certification process. The FMCSA is not vetting documentation or conducting any of their own tests.

But is it as easy as throwing some terms into a document and then getting certified? Perhaps not.

The Process

There is a pretty comprehensive list of documents that a manufacturer must upload to the website to get registered. Currently that list includes:

  • Driver user card
  • Law enforcement data transfer instructions
  • Malfunction and diagnostics data
  • Equipment photos
  • Serial numbers

Still, there is some wiggle room for less scrupulous device manufacturers. Why? Mainly because there is an assumption of compliance, rather than a mandate. As with any rule issuance, there is an expectation of compliance, with consequences on the back end, rather than an enforcement aspect on the front end.

That fact is this: It will be up to the carrier to ensure that the device’s specs conform to what the FMCSA expects.

Some argue that the FMCSA has not fully considered that vendors may self-certify even if their products are not compliant. There is a major self-interest component at stake here.

Consider that some ELD manufacturers appeared on the list within a week or two of the list being made available. Is it possible that these manufacturers went through a rigorous vetting process within such a short period?

Doing Your Own Verification

So, what’s the answer? In many cases, it will be to conduct your own, independent verification of the device you plan on outfitting onto your vehicles. Fortunately, there are groups out there that now offer independent device testing.

Whether it be a large accounting auditing firm like KPMG, or smaller outfits, like Canada’s PIT Group, companies and organizations are stepping up to the plate to ensure there no discrepancies between what an ELD manufacturer says their device conforms to and what it conforms to.

Does this mean that there are no challenges with utilizing a third-party certification process? Certainly not. If a third-party tester is using one version of a software, yet the device ships with a different version, or an update occurs, it could entirely be possible that the results become skewed.

Therefore, it is important to not just verify, but double-check. As with anyone getting a medical diagnosis, a second opinion never hurts.

What You Need To Know About FMCSA Compliance Review Trends

When it comes to pre-trip inspections, it is now far easier for a safety auditor to see when a driver is not properly doing their job. Why? Consider that the FMCSA has now changed the process for completing a compliance review.

The revamped compliance review – which has been in place for some time – expands the interviews the FMCSA completes with specific members of the organization. Still, this doesn’t mean there has been a major overhaul in how the FMCSA completes a compliance review.

For some time now, the FMCSA has been moving away from full reviews and closer to focused reviews. Still, new trends are emerging as the FMCSA slightly shifts its focus.

CSA Scores or Complaints?

If you look at historical trends, the FMCSA has generally put complaints below CSA scores on their list of review priorities. Up until now, a BASIC alert was the primary factor for whether the FMCSA decided to complete a compliance review. Now, that is changing.

The main reason for the shift is in two areas. One is the truck driver coercion rule and another is how easy it has become for a complaint to be filed, which has dramatically increased the volume of complaints flooding into the office.

Many complaints are now treated as though some form of coercion has taken place, even if little to no evidence of coercion is found. This is leading to carriers who have no BASIC score alerts undergoing a focused review.

Hours of Service

Despite a move away from paper logs and toward electronic logging, hours of service violations still abound. This is especially the case where false logs are concerned.

Therefore, it is so important for fleets to ensure that the time being reported is cross referenced with the truck driver’s log. And this must go beyond a simple accounting for the date.

Whether the fleet looks at fuel reports, tolls or reimbursements receipts, there are several ways to cross-reference what is being reported.

Medical Card Changes

With the “grace” period ending, it is more important than ever that a motor carrier verify a physician’s license utilizing a national registry or running a CDLIS report.

Should you run a report from an arbitrary fleet system or utilize the CDLIS report? To avoid a potential focused review, it is very important to utilize a CDLIS report.

Consider that on your own internal report, you may not have all the necessary information at hand. The fact is, you don’t want to risk it, so why not run the report that you know will ensure you have all the boxes checked?

Managing Your DVIR Process

It is now easier than ever for an inspector to make a case against a truck driver who doesn’t have a proper vehicle inspection report on hand. The new rule now requires that a DVIR must be filled out when a defect has occurred, which makes it easier for an inspector to make a case for a focused audit.

This essentially means inspectors can use a roadside inspection with a maintenance issue listed and corroborate that issue with a DVIR that correspond with the date listed. It’s also important to pay close attention to breakdown reports, repair orders and maintenance records. If these show obvious problems that the truck driver should have been aware of – but weren’t listed – you could find yourself on the receiving end of a review.

Finally, it’s important to ensure your operators are not operating with a suspended or invalid CDL. While this may seem like a very basic requirement, it is resulting in even more violations than ever. Ensure an internal process is set up to monitor each of your truck drivers’ CDL statuses.

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