This is part of a FreightWaves series on the electronic logging device mandate. Federal regulators began enforcing the mandate on April 1, 2018. Check back at freightwaves.com this week for more.
ELDs — those devices meant to keep truckers and the companies they drive for “honest” when logging in hours of service — have been one of the most controversial pieces of equipment in the industry over the last five years.
That’s one reason why the Federal Motor Carrier Safety Administration is currently combing through more than 1,300 public comments responding to its proposal to modify the ELD regulation in an effort to make them easier to use.
Specifically, FMCSA is considering changes in five areas: applicability to pre-2000 engines, addressing ELD malfunctions, the process for removing ELDs from the agency’s certification list, technical specifications and ELD certification.
The question is, will the changes — if the agency decides to make any — actually help?
“There needs to be more safeguards in place to keep ELDs from recording hours of service that actually go against my drivers,” John Mallory, director of safety for Sapulpa, Oklahoma-based John Christner Trucking, told FreightWaves.
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“The driver is supposed to log out of the ELD and put it in ‘shop’ status when they return to our facility, but they don’t always do that or know that they need to do it,” Mallory said. “Also, a lot of times my team drivers will forget to make the driver switch on the ELD, and there’s no way to fix that. That leaves me with a driver breaking the 11-hour [driving limit per day] rule because his wife drove on his log-in time.”
In fact, FMCSA is looking at several changes to the current regulation that might address Mallory’s problem of drivers remaining in driving status while they’re out of the vehicles, including a requirement that ELDs automatically record an on-duty not-driving event following the recording of an engine shutdown.
Applicability to pre-2000 engines/glider kits
While the current ELD rule does not require drivers to use ELDs when operating trucks older than model year 2000, FMCSA points out in its proposal that many vehicles with pre-2000 engines — and most vehicles with rebuilt pre-2000 engines (known as “glider” trucks) — have engine control modules installed that could accommodate an ELD. The agency is therefore considering making the regulation apply to these engines as well.
Making such a requirement, however, received mixed reviews, based on a sampling of responses to the proposal.
“Expanding the ELD requirement to include these types of vehicles would bring more vehicles under the ELD requirement and help improve hours-of-service compliance and roadway safety for those vehicles,” wrote Collin Mooney, executive director of the Commercial Vehicle Safety Alliance, which represents state DOTs and highway patrols.
However, he added, “this change would be difficult to enforce, eroding any intended safety benefit. It is very difficult to verify roadside whether or not a vehicle is subject to the ELD regulations based on the engine manufacture date. Expanding the ELD requirements to include these vehicles will result in confusion and inconsistencies in enforcement of the regulations.”
But the Truckload Carriers Association, which lobbies on behalf of major carriers such as Werner and Knight-Swift, had the opposite view.
“ELDs should be required on as many trucks as possible, including rebuilt or remanufactured engines or glider kits that can accommodate ELD technology,” according to TCA President Jim Ward. “FMCSA should push for expanded ELD adoption because it is an important tool to track compliance for the hours-of-service regulations, which were designed to improve safety.”
Joe Rajkovacz, government affairs director for the Western States Trucking Association, made the point that FMCSA’s proposal failed to take into account whether trucks operating without an ELD were overrepresented in crash data.
“If not, why would the agency want to needlessly inflict more harm on highway safety by needlessly expanding the mandate?” Rajkovacz stated. “FMCSA should more closely analyze whether a safety issue factually exists before considering any alteration” to the current exemption for pre-2000 engines, he asserted.
Addressing ELD malfunctions
The ELD regulation currently requires a driver documenting his or her record of duty status to switch to paper logs when an ELD malfunctions so that law enforcement is still able to review the driver’s work-hour status. But an ELD can malfunction while continuing to accurately record the driver’s hours — in which case the driver should not switch to paper logs. Because this has resulted in confusion as to when a driver is required to switch from electronic to paper logs, FMCSA is considering making the regulation more explicit.
The ELD malfunction issues raised by FMCSA “lead to confusion for both fleets and enforcement,” according to Dan Horvath, vice president for safety policy at the American Trucking Associations.
“When clarifying, FMCSA should consider flexibility for when hours of service are still being recorded correctly, including when there are formatting issues. It would be helpful for FMCSA to create categories for when a malfunction leads to inaccuracy with records and for when malfunctions do not impact accuracy of records. It is also important that the driver has a clear indication of the situation and what actions they need to take, if any.”
The Owner-Operator Independent Drivers Association agreed. “However, the agency must also work with enforcement to ensure motor carriers and drivers are not penalized when ELD failures and malfunctions beyond their control lead to inconsistencies in records,” stated OOIDA President and CEO Todd Spencer.
The current ELD regulation does not address what happens in the case of a certified ELD listed on FMCSA’s website going out of business — so FMCSA is considering whether it should immediately remove the device from its certified device list.
The agency is also considering cutting in half (from 60 days to 30 days) the amount of time that an ELD provider has to respond to a notice warning that its device is not compliant “in order to more timely remove an ELD … that could adversely impact highway safety,” the agency stated in its proposal.
“If an ELD [provider] goes out of business with no plan to provide support through a third party, the ELD should be removed from the registered ELD list,” contends David Brillon and Nicolas Guerin, chief technology officer and product manager, respectively, for Isaac Instruments, a Montreal, Canada-based ELD maker serving Canada and the U.S. “However, the carriers using the ELD should be given sufficient time to find a suitable replacement — one year, for example.”
Dawn King, president of the Truck Safety Coalition, which routinely opposes relaxation of trucking regulations, commented that highway safety is “adversely impacted” by the current response time.
“FMCSA should require that ELD manufacturers respond to a written notice of non-compliance in 30 days instead of 60 days,” King wrote. “Failure to do so creates an opportunity for carriers and drivers to potentially utilize an ELD that is unable to confirm the legitimacy of the device readings and unable to validate compliance with HOS requirements for an extra 30 days, unnecessarily putting public safety at-risk.”
Among a handful of technical specification changes FMCSA is considering — including the driving status issue noted above by John Christner Trucking’s Mallory — is allowing a driver, rather than the motor carrier, to change his or her ELD configuration to an “exempt” status when appropriate to reduce administrative burdens raised by the trucking industry.
“FMCSA should provide motor carriers with the option of letting drivers select their own exempt status in their ELD configuration,” according to Meera Bhaskar, policy counsel for ELD provider Samsara.
“Allowing this would alleviate the administrative burden … particularly for carriers where drivers frequently switch between short-haul and regional operations, requiring the carrier to perform the administrative function of sending a configuration to the ELD each time, so that a driver can operate in an exempt status.”
OOIDA’s Spencer disagreed, concerned that such a change “would lead to greater coercion of drivers by motor carriers.”
FMCSA also sought public feedback on doing away with the current self-certification process by ELD providers and instead move to a third-party certification regime, as is the case in Canada.
Such a process would alleviate cost and driver delay issues currently experienced in Oregon, according to the state’s motor carrier enforcement manager, Carla Phelps. Phelps told FreightWaves in November that the large number of nonstandard ELD devices translates into longer roadside inspection times.
“If a dynamic certification process is implemented to validate ELDs and their providers, inspection times should begin to drop back down,” she said.
But CVSA, whose members conduct roadside inspections, is not convinced that third-party certification would improve the cost and delay issues that Oregon or other states are experiencing.
“If inspectors are finding drivers with a malfunctioning device, whether or not the device is certified is not going to change the time frame that it takes inspectors to do inspections at roadside,” Kerri Wirachowsky, CVSA’s director of inspection programs, told FreightWaves.
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