The ABCs of ELDs

Once upon a time, in 1988 to be precise, the Federal Motor Carrier Safety Administration (FMCSA) began what will turn out to be an almost 30-year rulemaking odyssey to arrive at last at a regulation mandating the use of electronic logging devices (ELD) to monitor hours-of-service (HOS) compliance for regulated carriers.  Like other epic journeys, this one has been fraught with setbacks and conflicts, with fierce battles, with alliances made and broken.  Even now, skirmishes continue.  On May 7, for example, the Commercial Vehicle Safety Alliance, a group representing state law enforcement agencies, asked FMCSA to extend the comment period by 30 days “to [give it time to] fully understand the technology options [concerning transmission of data on the roadside] put forth in the rule and to gather input from the states on their functional capabilities.”

FMCSA agreed, extending the deadline for comments on the supplemental notice of proposed rulemaking (SNPRM) to June 26.  As of presstime, more than 900 individuals and groups have already offered their perspectives on this latest 268-page effort to bring the ELD rulemaking process home.

The Trucking Alliance, a national coalition of businesses “committed to safer highways, a cleaner environment, and an improved economy for the freight transportation industry,” for instance, has even produced two videos to deliver its perspective on the ELD rule.  You can find the videos on YouTube. 

“Our primary objective during this comment period is to target our messaging to two audiences: policymakers/congressional leaders and the industry,” says Lane Kidd, managing director at The Trucking Alliance.  “There remain detractors to the ELD rule, those who would like to delay it beyond the two-year window for full implementation, others we expect may want to call for hearings after the final rule is published, still others who could attempt to slip defunding mechanisms in the next transportation bill.  The second audience is the industry—to attempt to dispel rumors and other negative information about ELDs.”

In spite of all the last-minute activities, pro and con, the day is still coming (some say by 2017) when the final rule will have been published for two years and the compliance deadline is at hand.  Following is a short look at some of the most important elements of the rulemaking that you will want to monitor carefully to make sure you are ready to comply with the final version of the regulation. 

In this article, we use the word “will” instead of “would” in describing specific requirements, e.g.,“Drivers will be required to...”  You realize, of course, that some of these “wills” may not make it in tact across the regulatory finish line, but it makes for easier reading than an endless series of “woulds,” “coulds” and “maybes.”  You’ve had enough of those already, right?

• A is for AOBRD.  The current regulation (49 CFR 395.15) refers to automatic onboard recording devices (AOBRDs) rather than electronic logging devices (ELD).  In discussion of the proposed rulemaking, FMCSA notes that some “minimally compliant” AOBRDs will have to be replaced, while others “could be easily and cheaply made to fit the requirements for an ELD.”  These are referred to as “ELD-like devices” in the current SNPRM.

Grandfather clause

For fleets fortunate enough to have AOBRD devices already in operation, this is good news for two reasons: 1) you may be able to modify the AOBRDs you already have to meet the new standards and save some money, time and effort, and 2) if you required your drivers to use AOBRDs that met the requirements of 395.15 before the compliance date for the ELD final rule, you may continue to use those devices for two years after the compliance deadline set in the final rule.  Nothing prohibits you from voluntarily switching to ELDs early.

“For us, and I suspect most vendors, the grandfathering is good as it doesn’t discourage fleets from adopting technology prior to the rule…” says Eric Witty, vice president of product management for Cadec Global Inc.  “The bigger concern on timing that vendors have is ensuring that from the time that the rule is final until the compliance date, there is enough time to make product changes, test and deploy changes to current fleets’ [AOBRDs] and also prepare for new fleets as well.”

• B is for back-up documentation. Under the new regulation, for every 24 hours a driver is on duty, the motor carrier will be required to maintain not more than 10 supporting documents from these five categories:

1. Bills of lading, itineraries, schedules or equivalent documents that indicate the origin and destination of each trip;
2. Dispatch records, trip records or equivalent documents;
3. Expense receipts;
4. Electronic mobile communication records;
5. Payroll records for the driver’s 24-hour duty day, settlement sheets or equivalent records that indicate what and how a driver was paid.

Carriers will not have to retain supporting documents to verify driving time because the ELD will capture this information.

• C is for conveyance—of a personal kind.  One of the most confusing elements of the new regulation for fleets and suppliers alike is the section on use of a commercial vehicle for what FMCSA calls “personal conveyance,” i.e., using the vehicle (sans load) during off-duty time solely for a non-work purpose such as going to a store, restaurant or movie and having that use recorded as off-duty rather than as driving time.

Defining conveyance

All providers are still looking for guidance on the definitions for personal conveyance—how far, how long, etc.” says Ryan Barnett, director of market development for XRS.  “FMCSA wants to account for all of the time the vehicle is in motion; however, [the agency] understands that vehicles are used for personal use and wants to remove any potential for harassment.  In this scenario, FMCSA is requiring device manufacturers to reduce the clarity of GPS tracking while on personal conveyance to a 10-mi. radius.

“Fleets need to have their own policy for personal conveyance, as some private fleets do not allow it at all,” Barnett adds.  “That brings up the separation of a fleet management system from an electronic logging device.  Features like asset tracking are vital for fleet management systems, but we need to be aware that these trucks can also be homes, and while used for personal use, we as vendors need to [be accommodating].”

“Right now, there is no limit on personal conveyance,” Fred Fakkema, vice president of compliance for Zonar Systems Inc., said during the company’s recent user group meeting.  “For example, if they drive from the terminal yard to dinner or a movie, the device will not record that as ‘on-duty drive time’ as long as they are not getting paid.  For authorized in-yard moves…the time would be recorded as ‘on-duty not driving.’ 

If the driver gets paid during lunch, however, the trip to the diner counts as on-duty drive time.  “That’s one of the difficulties with this rule; it’s open to multiple interpretations,” Fakkema said.

• E is for edits. Oh those log edits!  FMCSA is proposing to revise current editing allowances to “better protect the integrity of these records and to prevent related instances of driver harassment.”  Under the proposed regulation, edits can still be made by fleets or drivers, but all edits will have to reflect authorship and you cannot do something like convert driving time into non-driving time.  The reason for all edits will also have to be noted.
• H is for harassment. The two main goals of the harassment regulations are to address problems of  “drivers being pressured to exceed HOS limitations and inappropriate communications that affect drivers’ rest periods.”

A lawsuit over the issue of harassment derailed the preceding attempt to create a final rulemaking on ELDs, so the subject gets plenty of attention in this SNPRM, which covers procedures to help guard against harassment, such as allowing drivers access to their own ELD records and to file complaints.

Harassment is defined in the new SNPRM as “an action by a motor carrier towards a driver employed by the motor carrier (including an independent contractor while in the course of operating a commercial motor vehicle on behalf of the motor carrier) involving the use of an ELD…or through other technology used in combination with and not separate from the ELD, that the motor carrier knew, or should have known, would result in the driver violating Section 392.3 or Part 395 [of 49 CFR].”  It will constitute an “acute violation” under Part 395.

A separate rulemaking will specifically cover the related subject of  “coercion” of drivers—by carriers, shippers, receivers or transportation intermediaries.  In other words, everyone will have skin in the game when it comes to assuring that drivers are not pressured to violate regulations or falsify records.

Driver-focused

Overall, the SNPRM for ELDs is built around the driver’s use of the ELD,” notes Barnett.  “It is imperative for firms to work with drivers to encourage proper usage of ELDs following hours-of-service rules.”

• M is for malfunction. When the worst befalls a driver’s ELD and it fails, FMCSA is going to allow the driver to keep operating the vehicle and switch to paper logs as a make-do solution; however, the driver will be required to give the carrier written notice of the ELD failure, either electronically or by some other written means within 24 hours. The motor carrier is required to repair the ELD within eight days.  You will be able to ask for an extension of time from FMCSA, but unless it is granted, the driver could receive a citation for the malfunctioning ELD and have to provide the authorized safety official with manually prepared logs for further assessment.  
• M is also for mute. While your own bedside phone may ring at all hours with work-related “emergencies,” drivers on the road deserve a little more dependable shut-eye, according to FMCSA.  Accordingly, the administration is requiring that, if a driver puts the ELD into a sleeper berth status (and in the case of team drivers no other driver has logged into the ELD as “on-duty driving”), then the ELD “must automatically mute the ELD’s volume, turn off the ELD’s audible output, or allow the driver to do so.”
• P is for paper. Contrary to popular belief, this regulation is not the death knell for paper logs at all regulated fleets—close, but not all.  “Drivers who need to use RODS [records of duty status] infrequently or intermittently would be allowed to continue to use paper RODS,” notes FMCSA, “provided they are not required to use RODS more than eight days in any 30-day period.”

Carriers whose drivers use paper logs will also be required to keep toll receipts in addition to the other supporting documents required of ELD users.

• V is for violations. You always know where the buck stops when it comes to regulatory violations, but just in case, Section 395.7 will add procedural provisions that will apply during any proceeding involving the enforcement of 49 CFR, Part 395.  If this element of the new regulation makes it into the final rule unaltered, motor carriers will be liable for “an employee’s acting or failing to act in a manner that violates Part 395 as long as the action was within the course of the motor carrier’s operation.”

Furthermore, “the burden of proving that the employee acted outside the scope of the motor carrier’s operation would be on the motor carrier.”

Wait and hurry up

Since the Federal Motor Carrier Safety Administration has been puttering away on a regulation mandating electronic logs since about 1988, a certain lethargy and aimlessness seems to hang around the subject now like a cloud of dust.  Still, the day will come when regulated vehicles will have to be equipped with approved electronic logging devices (ELDs), and truck operators won’t have nearly 30 years to get the job done, either.

Eric Manegold, vice president of business development at Zonar Systems, was one of the first people to ask aloud: “Just how long will it really take fleets to get through the ELD compliance implementation process?”  Whether your company is already using an electronic logging system or still working with paper logs, it is the big question of the day, and this is a good time to begin putting together a compliance action plan if you do not have one.

Here is a short checklist of the key elements of such a plan.  Some may be able to take place at the same time or at least overlap, like hardware installation and driver training; other steps will have to take place in a particular order.

A good supplier can be your best ally as you move through this process.  They should be able to offer guidance at every critical juncture from selecting the right system to calculating ROI and payback, planning installation and user training.

1. Make sure your company will have to comply. (If you currently have to keep records of duty status, you will.)
2. Decide whether you want to do the bare minimum to achieve regulatory compliance or whether this represents an opportunity to make some of the other safety and efficiency improvements that certain ELD solutions enable. Ryan Barnett, director of market development for XRS, cautions that the purchase decision process alone “could take one day or one year, based on defining your needs.  If you want to integrate your ELD to other systems and use a fleet management solution, add more time for vendor consideration and selection.” Eric Witty, vice president of product management for Cadec Global Inc., says that fleet size is the biggest single factor affecting this step in the process.  “For single drivers and smaller fleets, the whole process could be a month or less.  For larger fleets, it may be a longer buying cycle because they won’t be purchasing just for the ELD functionality, so six months to a year for a buying decision and another six months to a year for implementation…”
3. Prepare a list of tasks you want to accomplish, such as track assets, plan routes, automate dispatch, capture signatures, manage fueling, monitor driver and vehicle performance, improve maintenance, and integrate operations with back office functions.
4. Determine a budget and, if necessary, financing options.
5. Prepare your initial list of possible ELD supplier choices.
6. Get input from other fleets similar to your own about their experiences with the suppliers on your list.  
7. Evaluate suppliers and shorten your list.  
8. Conduct a test of your top two choices with a few drivers and customers and ask for input, good and otherwise.  “A test protects against having to start over and having all of your drivers learn yet another new system,” says Elise Chianelli, product manager of safety and compliance for PeopleNet.  
9. Determine who will handle installation and where.  If your own techs will be handling this, will they need training?
10. Calculate installation time and cost for your fleet based on the time required to install an individual unit.  Can this be done as you cycle trucks through regularly scheduled PMs?  How long will it really take to get all vehicles equipped?  Will there be disruptions to service for any customers?
11. Determine when and how you will handle training of drivers, fleet managers and others impacted by this change.  Create and disseminate the schedule and your expectations for mastery.  Barnett notes that XRS “often sees fleets struggle with training dispatch more than with training drivers.”
12. Ask yourself: “Is there anything else specific to my own organization that we should do or might do to help assure success?” Add those steps to the implementation list.
13. As soon as possible, begin sharing information about the regulation, your plans for compliance, why it matters to everyone in the organization, and how work groups will be affected.  Consider some sort of shared, company-wide countdown to compliance clock.  Then deal with questions all along the way.
14. Share information with customers about how they may be impacted, including benefits they will realize, especially if you are rolling out additional efficiency/safety systems at the same time.
15. Plan to implement your solution company-wide well before the compliance deadline to allow for unexpected problems.
16. Create a system for tracking results.
17. Celebrate your success with all employees involved and with your customers. 

For each of these actions, assign a time period in terms of total number of days—best case and worse case.  Then look for places where actions can be concurrent.  Finally, add up your total non-overlapping implementation days and count back from the compliance deadline to find your latest start date to assure compliance readiness.

Finally, pad that date a little.  You’ll be glad you did.