Roadmap to the ELD Mandate
ROADMAP TO THE ELD MANDATE This comprehensive guide explains the regulatory aspects of the Electronic Logging Device (ELD) mandate, with articles designed to give your fleet’s drivers and back office personnel information about new policies and procedures related to the mandate. 1
Table of Contents 1 Training Training Your Team is Critical for a Successful ELD Implementation .............................................. 3 Updating Company Policies & Procedures – An Important Step in ELD Implementation ..........4 2 New, ELD-Specific Duty Statuses Personal Conveyance & ELDs – How Does It Work? ............................................................................ 6 Yard Moves: Understanding ELD Mandate Rules ..................................................................................7 FMCSA Issues “New & Improved” Guidance on Personal Conveyance Operating Status ...........8 Deeper Understanding – Interaction of ELD and The 100 Air-Mile Radius Exception .................9 3 Enforcement A Glimpse Into Roadside Enforcement of the ELD Rules ..................................................................10 Short-Term Rental Trucks and ELDs ...................................................................................................... 11 CVSA Updates ELD Inspection Bulletin…For The Benefit of All .......................................................12 Repeat ELD Offenders – How Will CVSA Roadside Inspectors & FMCSA Handle Them? ...........13 Challenging Roadside Inspection Violations Using DataQs .............................................................14 How Do I Request a Time Extension to Repair or Replace a Malfunctioning ELD? ......................15 IMPORTANT DISCLAIMER: © 2019 Trimble. All rights reserved. Unauthorized duplication prohibited. Trimble and the Globe & Triangle logo are trademarks of Trimble Inc. registered in the United States and other countries. All other trademarks are the property of their respective owners. This guide is for informational purposes only and reflects our opinions on Electronic Logging Device (ELD) regulations as of the publication date. FMCSA rules and guidance may change following publication, and information in this guide is subject to change. We do not make any warranties, express or implied, concerning the content of this guide and disclaim any liability for its use. This guide does not constitute legal advice. Consult your own legal counsel to determine ELD compliance requirements for your own business operations. 2
1 Training Training Your Team is Critical for a Successful ELD Implementation Surprisingly, the ELD regulations do not require carriers to formally train drivers on ELDs. However, it’s a practical reality and a very good idea. The technology is new to many drivers and office personnel, the rules are detailed, and each company will have compliance policies and operational procedures related to ELD use. Even if a carrier has been using some type of electronic logging system for years, ELDs capture more data, and the rules governing ELD use are new and complex. TRAINING IS CRITICAL UTILIZING FMCSA RESOURCES ► the look, feel and functions of the selected ELD technology The Federal Motor Carrier Safety Administration (FMCSA) has a ► the login and logout processes list of Frequently Asked Questions that can be used to supplement ► the methods for changing duty status from the automatically the training materials used. For example, the following two FAQs captured driving time to on-duty, not driving (line 4), off-duty could be weaved in to a training program: (line 1), and, if applicable, sleeper berth status (line 2) ► how the special driving categories of “personal conveyance” and Q: Who can edit an electronic logging device (ELD) record? “yard moves” are activated, if authorized by the carrier A: Both the driver and authorized carrier staff can make limited edits to an ELD record to correct mistakes or add missing SAFETY, COMPLIANCE, DISPATCH, information. All edits must include a note (annotation) to explain OPERATIONS AND MAINTENANCE the reason for the edit. In addition, the driver must confirm (certify) Safety, Compliance, Dispatch, Operations and Maintenance that any carrier edit is accurate, and resubmit the records. If personnel will need to become familiar with certain items, too: the driver chooses not to re-certify his or her RODS, this is also ► the look, feel and functions of the selected ELD technology reflected in the ELD record. The ELD keeps the original, unedited ► the look, feel and functions of the office software associated record, along with the edits. with ELDs Example: a carrier edits a record to switch a period of time from ► the data captured, and the reports generated by the ELD “off-duty” to “on-duty not driving”, with a note that explains office software “Driver logged training time incorrectly as off-duty.” The edit and ► how to edit and annotate the ELD record when driver mistakes annotation are sent to the driver to verify. The edit is not accepted are made until the driver confirms it and resubmits the RODS. It’s hard to overstate the importance of training. Simply put, it’s Q: What are the options for ELDs to electronically critical to successfully implementing ELDs. And, carriers should transfer data? consider providing multiple training sessions for all affected drivers A: According to the ELD rule technical specifications, an ELD must and personnel. Keep in mind that many people learn by doing. support one of two options for electronic data transfer: Consider having an ELD set up in the training room to facilitate The first option is a “telematics” transfer type ELD. At a minimum, it ‘hands-on’ use of the device. Trimble has an entire training team must electronically transfer data to an authorized safety official on with expertise in developing information and materials to help demand via wireless Web services and email. customers with their training needs. No need to reinvent the The second option is a “local” transfer type ELD. At a minimum, it training wheel! must electronically transfer data to an authorized safety official on demand via USB2.0 and Bluetooth®. 3
1 Training Updating Company Policies & Procedures – An Important Step in ELD Implementation Reviewing and updating company policies and procedures is an important and necessary step toward successful electronic logging device (ELD) implementation. Most carriers have formal safety and compliance-related policies and procedures, and they should be reviewed and updated as part of the transition to ELDs. Here are some issues to consider during the review process: 1. USE OF TRUCKS BY DRIVERS 3. UNASSIGNED DRIVING TIME WHILE OFF-DUTY One of the newer concepts with ELDs is “unassigned driving time.” Professional truck drivers operating their trucks (unladen) for As mentioned in B above, ELDs will capture truck movement, even personal reasons while on-the-road, and off-the-clock, is nothing if no one is logged in to the ELD. Each one of these “unassigned new. In fact, personal use (called “personal conveyance” or “PC” driving time” events must be reviewed by the driver of that truck by government regulators) is a common and accepted industry during his/her next login, and that time must either be accepted or practice. As a result, the ELD rules accommodate this type of off- rejected by the driver. If the driver rejects the time, the rules require duty truck use. For employee drivers and company owned trucks, carrier staff to review all “unassigned driving time” events, and it’s the carrier’s choice on whether it will allow use of PC. Does assign them to the appropriate driver, or explain in a note on the your company have a policy allowing it? If so, does it need to be ELD record why it is unassigned. Does your company have a policy updated? If not, should your company consider having a policy? Is and procedure on who will handle this responsibility? Does your your company aware of FMCSA’s guidance on PC? company have or need a policy designed to limit the number and type of “unassigned driving time” events? 2. MOVING TRUCKS ON A YARD 4. EDITING OF ELD RECORDS Before ELDs, when a driver moved a truck on a yard, the hours of service rules required the driver to record that time on his paper Drivers will make mistakes while using ELDs, and many of them log. It was an honor system. ELDs will automatically capture every will be honest mistakes. The new rules accommodate this reality, truck move on a yard, and record it as driving time, unless the and allow both drivers and carrier staff to make needed edits. Does driver pushes the “yard moves” button. If the yard moves button is your company have a policy regarding whether you prefer drivers pushed, the ELD will record that time as on-duty not driving time make needed edits, or company staff? Should you consider how (line 4). If a mechanic or other non-driver moves a truck on a yard quickly edits must be made? What if a driver wants to edit his/her (or on a highway to road test a truck), and doesn’t log in to the ELD record days after it was submitted? ELD device, the ELD label the person as an “unidentified driver”, and it will capture the time as “unassigned driving time.” Does your 5. ELD MALFUNCTIONS company have a policy on non-drivers moving trucks on a yard, or ELDs are computers, and computers can and do fail. When they on the road? Does your company have a policy on whether non- do, the ELD rules require drivers to notify the carrier in writing drivers, who move trucks on a yard/road, are given an ELD user within 24 hours, and default to a paper log during the malfunction account? If not, you’ll need a policy. time- period. Also, the rules require malfunctioning ELDs be fixed or replaced within 8 days. Companies may want to consider 4
1 Training maintaining a “safety stock” of backup ELDs which can be 10 or more hour off-duty between work shifts. Does your company swapped for malfunctioning units during the 8-day grace period. policy address this as well? Does your company have policies and procedure covering these 8. ANTI-HARASSMENT new requirements? What is the preferred company procedure for The new ELD rules include language that strictly prohibits a carrier drivers to communicate a malfunction in writing within 24 hours from using information obtained from the ELD to force a driver to (i.e., an email, a text message, listing it on a DVIR)? Who in the violate applicable hours of service rules, or drive while either ill or company is responsible for working with your ELD vendor when an fatigued. This rule is separate and distinct from FMCSA’s anti- ELD malfunctions? If your vendor cannot provide a solution within coercion rule. Does your company have a policy designed to ensure 8 days, who in the company is responsible for working with FMCSA compliance with this new anti-harassment rule? And, if a driver on an extension? believes the company may be in violation of this rule, does your company have a procedure in place to handle this type of driver 6. SAFETY & COMPLIANCE BONUSES complaint? Are drivers aware of the process to file such complaints If you have a bonus program for drivers tied to safety and/ with FMCSA? or compliance performance, does it address hours of service compliance and ELD use? If not, should you consider it to help This list is not exhaustive, and is intended to get carrier personnel facilitate driver acceptance of ELDs, and proper use? thinking about current policies and procedures that may need to be updated, and new company policies that may be needed. 7. DISCIPLINARY POLICIES Paper logs allowed, and required, drivers to log all working and off-duty time in 15 minutes increments. With this paper log limitation, a driver, who may have been a few minutes past the maximum driving time, likely reflected it on the paper log as exactly 11 hours of driving time. ELDs will capture every minute of driving time, which means 11 hours and 5 minutes of driving time will be reflected as just that. And, it is a violation. Does your company’s disciplinary policy for hours of service violations address this new ELD reality? A similar scenario could develop for drivers not taking 5
2 ELD-Specific Duty Statuses Personal Conveyance & ELDs – How Does It Work? Professional truck drivers operating their trucks (unladen) for personal reasons while on-the-road, and off-the-clock, is nothing new. In fact, personal use (also called “personal conveyance” or PC by government regulators) has been a common and accepted industry practice for many years. As a result, the Federal Motor Carrier Safety Administration button on the display screen. At this point, when the truck starts (FMCSA) included and accommodated this type of off-duty truck moving, the ELD will automatically capture and place this off-duty use in its ELD mandate rule, and labeled it as one of two “special driving time on line 1 of the ELD record (the off-duty line), and not driving categories,” along with truck moves in a yard. So, while PC on the line 3 driving line. And, under the ELD rule, this off-duty is not new, it’s garnered a fair amount of recent attention in the driving time must look different on the electronic record, that trucking industry since it comes with new procedures under the is, it must be programmed by the supplier to be either a dotted, ELD rule. So, how does this longstanding practice work with ELDs? dashed or shaded line so that it can be easily seen/viewed as off- Is it still considered off-duty time and, if so, how is it reflected on duty PC driving. When a driver is finished using the truck for PC, the driver’s ELD record? And, can PC time be edited by the carrier the driver must deselect PC by again pushing a soft button on the staff if it’s used improperly by a driver? Let’s take each one of these display screen. questions in turn. WHAT NOW? PERSONAL CONVEYANCE & ELD – HOW DO Most drivers and companies will use the PC line as intended and THEY WORK TOGETHER? consistent with FMCSA’s longstanding guidance (i.e., short driving Under the ELD rule, a carrier that allows its drivers to use their distances, driver not under dispatch, has no work responsibilities, trucks as a personal conveyance may configure the ELD to is truly off-duty, and truck is unladen). However, it’s likely there provide this special driving category as an option. This means, in will be occasions when the PC line is used improperly by a driver. most cases with most suppliers, the ELD software will include a When a carrier becomes aware of improper PC use by a driver, functioning PC ‘soft button’ on the display screen to give drivers the an office person with ELD administrative rights will be able (and ability to select this category of driving when they are off-duty, and is encouraged) to propose an edit to the driver, along with the their truck is unladen. Keep in mind that, generally speaking, it’s required annotation. If accepted, the edit will move the PC time the carrier’s choice on whether it will allow use of PC. A carrier may from the off-duty line (line 1) and properly place that time back on also choose to disable the PC button. [Note: this carrier choice gets the driving time line (line 3). This edit will help avoid potential false a little more complicated for carriers with owner-operators (i.e., log violations. independent contractors).] As mentioned, PC is a common and accepted industry practice MEETING FMCSA REQUIREMENTS that will continue under the ELD rules. While the criteria for using When drivers meet the FMCSA criteria (and perhaps additional PC is not clearly spelled out in the ELD rule, FMCSA’s longstanding company criteria) to use the PC category, they must first change PC guidance still applies. That guidance can be found here at their duty status to “off-duty,” and then select PC using the soft Question 26. 6
2 ELD-Specific Duty Statuses Yard Moves: Understanding ELD Mandate Rules As most in the trucking industry know by now, the federal ELD mandate rules create two separate special driving categories called “authorized personal use” of a commercial motor vehicle (CMV), and “yard moves.” Use of these driving categories is both authorized and regulated under the ELD rules, but their use is not required. “AUTHORIZED PERSONAL USE” OF A A yard could be limited by a trucking company to its own terminals COMMERCIAL MOTOR VEHICLE (CMV) or company facilities. Or, a yard could be expanded beyond that AND “YARD MOVES” to include: ► a customer’s yard; These two categories provide some needed flexibility by allowing ► a receiver’s facility; “authorized personal use” of a CMV to be electronically recorded ► a maritime terminal; as off-duty time on line 1, when that category is allowed by a ► a rail ramp; company and selected by one of its drivers. And, the “yard moves” ► a drop yard; or, category is authorized by the rules to be electronically recorded as ► any other similar location or facility on-duty, not driving time on line 4. No matter how each trucking company defines a yard, and uses It’s clear that much of the industry will use these categories the “yard moves” category, a critical item to address with drivers is because they are both common and central to how the industry that they must remember to select and unselect the “yard moves” operates. And, while the discussion (perhaps even debate) will category on the ELD for it to properly record the driving time on a likely continue about just what is “authorized personal use” (more yard as on-duty, not driving time. commonly called “personal conveyance”), the question over what constitutes a “yard” under the ELD rules was answered by FMCSA. And, the answer might not be what you expected. SO, WHAT IS A “YARD”? During the rulemaking process, FMCSA considered but then chose not to provide a definition of a “yard.” And, importantly, in follow up questions to FMCSA, the agency chose not to provide any thoughts or guidance on the term “yard”. Wait…what? It probably bears repeating and emphasizing—FMCSA chose not to define or provide any guidance on the term “yard” for the purposes of the “yard moves” driving category. So, without a federal definition or guidance, trucking companies have the opportunity to define a “yard” for their own operations, and they should also consider providing instructions and training to their drivers on whether, where and when they may select and use the “yard moves” driving category. 7
2 ELD-Specific Duty Statuses FMCSA Issues “New & Improved” Guidance on Personal Conveyance Operating Status On May 31, 2018, the Federal Motor Carrier Safety Administration issued its long-awaited, revised guidance on personal conveyance (PC)—an operating status that allows a driver to record time operating a CMV for personal reasons as off-duty when the driver is relieved from work and all responsibility for performing work by the motor carrier. The first thing many will notice is the ability of drivers to use the 1. The movement of a CMV in order to enhance the operational PC status even if the CMV is laden. This new, and significantly readiness of a carrier. For example, bypassing available resting longer guidance replaces the Agency’s advice and direction of locations in order to get closer to the next loading or unloading the topic originally issued way back in the mid-1990s. It’s likely to point or other scheduled carrier destination; be more helpful than past guidance since it provides examples to 2. After delivering a towed unit, and the towing unit no longer drivers, carrier safety personnel and the enforcement community meets the definition of a CMV, the driver returns to the point that are designed to help determine if a “…movement of a CMV of origin under the direction of the carrier to pick up another is an appropriate off-duty use.” A link to FMCSA’s new guidance is towed unit; provided at the bottom of this article. Below are FMCSA’s examples 3. Continuation of a CMV trip in interstate commerce in order to of what it calls “appropriate uses” of a CMV while off-duty for PC: fulfill a business purpose, including bobtailing or operating with an empty trailer in order to retrieve another load or repositioning 1. Time spent traveling from a driver’s en route lodging (such as a a CMV (tractor or trailer) at the direction of the carrier; motel or truck stop) to restaurants and entertainment facilities; 4. Time spent transporting a CMV to a facility to have 2. Commuting between the driver’s terminal and his or her maintenance performed; residence, between trailer drop lots and the driver’s residence, 5. After being placed out of service for exceeding the maximum and between work sites and his or her residence; periods permitted under Part 395, time spent driving to a 3. Time spent traveling to a nearby, reasonable, safe location to location to obtain required rest, unless so directed by an obtain required rest after loading or unloading. The resting enforcement officer at the scene; and, location must be the first such location reasonably available; 6. Time spent traveling to a motor carrier’s terminal after loading 4. Moving a CMV at the request of a safety official during the or unloading from a shipper or a receiver. driver’s off-duty time; 5. Time spent transporting personal property while off-duty; and, While FMCSA’s new guidance is clearly intended to help drivers 6. Authorized use of a CMV to travel home after working at an better understand the PC operating status, and when it can be offsite location. legally used, the Agency also makes clear that carriers can establish “personal conveyance limitations either within the scope of, or Numbers 3 & 4 above are likely to be welcomed by many more restrictive than, this guidance, such as banning use of a CMV professional drivers since they address commonly encountered for personal conveyance purposes, imposing a distance limitation situations with shippers, receivers and law enforcement officials on personal conveyance, or prohibiting personal conveyance while the CMV is laden.” In other words, carriers still have discretion on in some States. Examples of uses of a CMV that, according to whether, and what, it will allow for PC use by employee drivers. FMCSA, “would not qualify” as PC, are: 8
2 ELD-Specific Duty Statuses Deeper Understanding – Interaction of ELD and The 100 Air-Mile Radius Exception If you’ve spent time in or around the trucking industry, you know that many professional drivers operate under the longstanding “100 air-mile radius exception.” In 2012, when Congress passed a law requiring the USDOT to HERE’S WHAT YOU NEED TO KNOW mandate ELD use by professional truck drivers, they recognized But, after FMCSA published its ELD mandate rules, an important that many drivers operate locally, they don’t work long hours and, question remained unanswered. That is, if a driver operates outside ** as a result, they don’t complete a daily paper log. This recognition the 100 air-mile radius exception for 9 or more days within any led Congress to allow the USDOT to exempt from the ELD mandate 30-day period, how long must this short haul driver use an ELD ‘short haul’ drivers not required to complete a daily paper log. But, when operating his/her truck in the future. Forever? For a year? For as simple as that may sound, the application of this paper logbook a month? Until the cows come home? In March, 2017, in response exception to the ELD mandate got a bit more complicated when it to an industry inquiry, FMCSA answered this question in writing with came to ‘rule writing’ time at FMCSA. the following, short response: “Yes, the driver can return to recording his/her records of duty status on a paper log when the operation BREAKING DOWN THE RULES meets the requirements of a short haul operation.” What does that answer mean? It means that the “any 30-day period” is a rolling 30 FMCSA realized that many short haul drivers who regularly operate days. As soon as the driver is back within the “not more than 8 days ** under the 100 air-mile radius exception are also faced with a within any 30-day period” rule, he/she can return to using a paper common trucking reality—that is, any given load may take a driver log. If it helps, think of this new ‘8 days within any 30-days’ rule just outside the 100 air-mile radius, or the delivery location coupled with as you would think of the ’70 hours in any 8-day period’ rule. an increasingly congested road system, may cause a driver to return to his work location more than 12 hours after departing. In either of these cases, a driver is ineligible for the 100 air-mile radius logbook exception that day, and must prepare a paper log for that day. ** Note: There is also a similar 150 air-mile radius exception from paper logs for During ELD rule-writing time, FMCSA had to answer the following non-CDL drivers. FMCSA’s new ‘8 days within any 30-days’ rule also applies to question—how many times may a driver operate outside of the drivers regularly operating under the 150 air-mile exception. 100 air-mile radius exception before that driver is required to use an ELD? After receiving and considering input from the trucking industry on this question, FMCSA decided the ELD rule should allow a ‘100 air-mile radius driver’** to operate outside the 100 air-mile radius exception for not more 8 days within any 30-day period, and still be exempt from use of an ELD. This means that, under the new ELD rules, a typical ‘100 air-mile radius driver’ is still only required to complete a paper log for those days (up to 8) when reality hits and he/she exceeds the 100 air miles or the 12-consecutive hour limitation. This also means that a driver is required to use an ELD if he/she operates outside the 100 air-mile radius exception for 9 or more days within any 30-day period. 9
3 Enforcement A Glimpse Into Roadside Enforcement of the ELD Rules An important aspect of any new regulation is its enforcement. Carriers and drivers need to know how certain hours of service and ELD-related violations will be treated, particularly during roadside inspections. ROADSIDE ENFORCEMENT AND THE A CLOSER LOOK AT VIOLATIONS OUT-OF-SERVICE CRITERIA (OOS CRITERIA) In 2017, CVSA added ELD violation information to its OOS criteria. FMCSA and its State enforcement partners are preparing materials To do this, CVSA reviewed existing paper logbook violations, and and conducting training for their compliance and enforcement staff. added information explaining how these OOS logbook violations For State and Canadian Provincial enforcement, the Commercial will be enforced on drivers with ELDs. These CVSA explanations are provided in the table below. Keep in mind that the violations included Vehicle Safety Alliance (CVSA), an organization dedicated in the table are only those that will result in an OOS order. There are to improving the uniformity of roadside CMV inspection and other ELD-related violations that could be cited during a roadside enforcement efforts in North America, recently added ELD-related inspection, but would not result in the driver being placed OOS. For information to its “North American Standard Out-of-Service Criteria” example, these include missing ELD record information such as a (OOS criteria), the pass-fail criteria for driver and vehicle inspections. shipping document number, a truck or tractor identification number, The purpose of the OOS criteria is to identify critical violations or a trailer number. These non-OOS violations will not be included in that render the driver, vehicle and/or cargo out of service until the CVSA’s OOS criteria. condition(s) or defect(s) can be corrected or fixed. Paper Logbook Corresponding ELD Out-of-Service Violation Out-of-Service Violation 1. If a driver is required to have an ELD and the vehicle is not equipped with an ELD (or AOBRD until Dec 17, 2019), the driver is considered to have no record of duty status 2. If a driver does not log into the ELD as required (see 395.22(e)), the driver is considered to have no record of duty status 1. No record of duty status (i.e., log) 3. If a driver is unable to produce or transfer the data from and AOBRD or ELD to an authorized safety official as required by 395.15(b) or 395.24(d), the driver is considered to have no record of duty status 4. If a driver/carrier is using an ELD that is not authorized by the FMCSA per 395.22(a), the driver/carrier is considered to have no record of duty status 5. If a carrier does not repair a malfunctioning ELD within 8 days, or obtain an extension from the FMCSA Division Administrator as required by 395.34(d), the driver is considered to have no record of duty status 2. False log If a driver is required to have an ELD and the vehicle is not equipped with an ELD (or AOBRD until Dec 17, 2019), the driver is considered to have no record of duty status Driver not in possession of If a driver with a malfunctioning AOBRD or ELD fails to reconstruct logs for the current 24-hour period and the 3. previous seven (7) days of logs previous 7 days as required by 395.15(f) or 395.34(a)(2), the driver is considered to not have the previous 7 days of logs 10
3 Enforcement Short-Term Rental Trucks and ELDs On October 11, 2017, FMCSA issued a favorable decision on a Truck Rental and Leasing Association (TRALA) request for a 5-year exemption from ELD use by drivers and carriers operating short-term rental trucks for 30 days or less. Although TRALA requested the exemption for 30-days or less truck rentals, FMCSA agreed to grant the ELD exemption for CMVs (i.e., trucks) rented for 8 days or less. Clearly an important and significant difference, but one that will provide relief for many carriers and drivers renting trucks for unexpected breakdowns, short-term additional capacity, etc. Below are some of the important details of FMCSA’s decision that carriers and drivers need to know and follow, when using this newly-granted exemption. THE EXEMPTION & ITS EFFECTIVE DATE UNIFORM ENFORCEMENT THROUGH STATE FMCSA’s decision provides a “limited exemption” for the driver and PREEMPTION carrier of a CMV rented for 8 days or less, regardless of the reason FMCSA’s notice also makes clear that during the 5-year period for the rental. The exemption is effective on October 11, 2017, and is this exemption is in effect, no State “shall enforce any law or available for 5 years through October 11, 2022. regulation applicable to interstate commerce that conflicts with or is inconsistent with this exemption with respect to a firm or person THREE BASIC CONDITIONS REQUIRED FOR operating under the exemption.” USE OF THE EXEMPTION 1. Drivers must have a copy of the FMCSA exemption notice in AN ACCIDENT REPORTING REQUIREMENT their possession while operating the rental CMV, and must Carriers must notify FMCSA via email (at [email protected]) within present it to law enforcement upon request. The Notice can be 5 business days of any DOT-recordable accident involving any of found and printed from this page on the FMCSA website. its drivers operating under this rental truck ELD exemption. In its 2. Drivers must have a copy of the rental agreement in the rental notice at the link above, FMCSA specifies 11 different items that CMV, and must present it to law enforcement upon request. The must be reported to the Agency (e.g., date, location, driver’s name agreement must clearly identify the parties to the agreement, and license number, etc.) the vehicle, and the dates of the rental period. 3. Drivers must possess copies of their paper logs for the current NOT SURE WHICH TRUCKS ARE IMPACTED? day, and the prior 7 days (if required on those days). While the exemption and its conditions are fairly clear on their face, there will likely be questions posed by carriers and drivers, as A CLEAR & CONCISE PROHIBITION has been the case for most parts of the ELD mandate rules. It’s a FMCSA makes clear that any evidence a carrier has replaced one good idea to check FMCSA ELD website regularly for the Agency’s rental CMV with another on 8-day cycles, or attempted to renew a responses to the inevitable questions about application of this rental agreement for the same CMV for an additional 8 days, will be exemption. For example, someone is likely to pose a question regarded as a violation of the exemption, and subject the carrier to concerning use of the exemption for the first 8 days of a 30-day penalties for failure to use an ELD. rental agreement. 11
3 Enforcement CVSA Updates ELD Inspection Bulletin… For The Benefit of All During the first week of April 2018, CVSA staff learned that some The primary method to verify a driver’s hours-of-service is electronic inspectors did not fully understand when they should place a driver data transfer. out-of-service if the driver’s ELD failed to electronically transfer ► Telematics (web services and email); or the hours-of-service record during an inspection. One of the main ► Local (USB and Bluetooth) reasons for the lack of certainty on the part of some roadside inspectors was language or, maybe better described as lack of If the data transfer does not work, use the display screen of the ELD language, in CVSA’s w“ELD Inspection Bulletin.” CVSA finalized that or a print out from the ELD to verify the driver’s hours of service. Bulletin in December 2017, and widely distributed it to the 12,000+ inspectors in North America at that time. Note: Retrieve instruction manual/ instruction sheets from the driver or the FMCSA ELD registration list describing the ERODS Under the “Electronic Data Transfer” section, there was only transfer process.” one sentence that briefly described the electronic data transfer requirement in FMCSA’s rules. This sentence, and the lack of Three final thoughts about this recent CVSA action: understanding of it by some inspectors, likely resulted in some 1. It demonstrates the value of CVSA, and sheds light on its ability drivers being placed out-of-service in early April, even when there to gather information on enforcement-related issues and was a good reason for an electronic data transfer failure (e.g., there address them in a timely fashion; was no network available at the location). 2. It should result in greater inspector awareness and more To their credit, CVSA staff realized that clarifying language was uniform enforcement of the ELD mandate throughout North needed in the Bulletin, and brought it to the attention of the America; and, membership at the Portland conference. A small committee was 3. The updated Bulletin can be used as a training tool by carriers quickly assembled on-site to draft additional, clarifying language to further educate drivers on the ELD data transfer process, and for the Bulletin, which was then approved by the committee of under what circumstances an out-of-service order will issued. jurisdiction, followed by a favorable vote of the CVSA Board on April 13, 2018. The ELD Inspection Bulletin now contains the following, For more information from the CVSA, you can access the updated more comprehensive language designed to provide more clarity on “ELD Inspection Bulletin” here. when a driver should be placed out-of-service for failing to produce an ELD hours-of-service record: “ELD Inspection Guidance” If a driver cannot produce hours of service records using any of the options described below, and the device is not in an active malfunction, the driver shall be placed out of service for no record of duty status. See footnote 12 in the CVSA out of service criteria before citing or placing a driver out of service. 12
3 Enforcement CVSA Updates ELD Inspection Bulletin… Repeat ELD Offenders – How Will CVSA Roadside For The Benefit of AllInspectors & FMCSA Handle Them? The Commercial Vehicle Safety Alliance’s out-of- service (OOS) criteria advises State and Canadian Provincial roadside inspectors to place a driver OOS for 10 consecutive hours at the inspection location if that driver is found to be operating without an ELD, when one is required. This CVSA OOS provision, and several others related to ELD use, went into effect on April 1, 2018. In this scenario, after a driver completes the 10-hour off-duty OOS period, the driver is allowed to complete the trip on which he/she is currently dispatched. Both CVSA and FMCSA have made clear, however, that the carrier may not legally dispatch this driver again until the truck being operated is equipped with a compliant ELD. This raises an interesting question: what happens if this same Some also questioned whether this might be a theoretical concern driver is discovered during a subsequent roadside inspection that wouldn’t play out in reality. An FMCSA representative reacted (in the same State or in a different State/Province) to again be to the proposal by stating that the Agency is planning to regularly operating without an ELD? generate internal reports to determine whether there are repeat ELD This question about ‘repeat ELD offenders’ was the subject of offenders. If discovered, the carriers would be placed at or near the an interesting discussion/debate at CVSA’s recent Spring 2018 top of FMCSA’s on-site compliance review list. This FMCSA official conference and workshop in Portland, OR. also encouraged State and Provincial officials to communicate directly with FMCSA officials when repeat ELD offenders are Currently, there is no additional OOS provision for repeat ELD discovered during roadside inspections, which will also help FMCSA offenders, and some believe there should be. At the Portland prioritize ELD non-compliant carriers for on-site interventions, conference, representatives from two states pushed for an potential civil penalties, and perhaps even criminal investigations. amendment to the OOS criteria that would require repeat ELD offenders to remain at the inspection location until a compliant ELD Following the lively and interesting discussion, the Chairman of the is installed in the truck. These State representatives argued that, committee (where the proposal was raised) tabled the proposal. In without this type of additional OOS provision, repeat offenders could tabling it, he requested that the FMCSA representative bring data to continue to be dispatched and, if inspected, they would simply serve the next CVSA meeting in September 2018 reflecting (1) the number the mandatory 10-hour OOS period, and continue to operate until of repeat ELD offenders identified by FMCSA, and (2) the number they were inspected again. In effect, these State officials argued that of carriers prioritized for compliance audits based on the data. The the only way to change the non-compliant ELD behavior of repeat FMCSA official agreed to do so. This data will likely drive another offenders (drivers and carriers) is to force the on-site installation of discussion of the proposal in September, and could result in change an ELD. in the ELD portion of the OOS criteria. If FMCSA’s internal monitoring and reports find that repeat ELD offenders are a significant problem, Some in the meeting supported the idea as a means to change CVSA action before September is possible. behavior and get more immediate ELD compliance. Few in the meeting spoke directly against the idea, but rather raised questions about the practicality of having ELDs installed on-site, the likely challenges the driver would face if an installation could not be completed in a reasonable amount of time (e.g., within 24 hours), and whether repeat offenders are better addressed during compliance audits. 13
3 Enforcement Challenging Roadside Inspection Violations Using DataQs In anticipation of the risk that some of our grandfathered AOBRD customers could be improperly cited with certain ELD violations (e.g., screen cannot be viewed from outside of the truck or ELD data file transfer), below is a guide to help explain how customers can use the FMCSA DataQs system to challenge improper roadside inspection violations. WHAT IS DATAQS? and provide a brief explanation of why you’re challenging the DataQs is an online, electronic system designed for CMV drivers and violation. Once fully completed, click “Enter Violation”, and then motor carriers to file challenges to Federal and State truck and bus the “Next” button at bottom right. safety data (e.g., roadside inspection or crash-related data) released 6. On the “Add a Request – Step 5” page, read the information, to the public by FMCSA. The DataQs system is an FMCSA system and then attach any documents you have that support your that automatically forwards data challenges to the appropriate challenge. Click the “Next” button at bottom right. Federal or State office for review and resolution. 7. On the “Add a Request – Step 6” page, review the information and, if correct, confirm your request (i.e, your MUST I REGISTER TO USE DATAQS? challenge) by clicking the orange “Submit” button. You will Yes, to use DataQs, you must register and create an account. If you receive a confirmation email that the request has been have not done so, go to https://dataqs.fmcsa.dot.gov and first create properly submitted. an “FMCSA Portal Account.” Once created, you can login to your portal account to use DataQs. WHAT HAPPENS NEXT, AND HOW LONG HOW DO I SUBMIT A CHALLENGE USING WILL IT TAKE? DATAQS? Your request will be automatically routed to the correct State for action. FMCSA’s goal for a response time is 10 business days. 1. On the main “My DataQs” page click on the orange “Add a Request” button. Depending on the State, the number of requests in the queue in that 2. On the “Add a Request – Step 1” page, click on “Inspections/ State, and the complexity of your request, it could take longer than Violations” under the “Roadside” category; to go to the next 10 business days for it to be handled, and a decision rendered. page, click on “Next” at bottom right. 3. On the “Add a Request – Step 2” page, click on “Violation If you’re logged in to the DataQs system, you can view the status is incorrect, listed multiple times, or missing Intermodal of your request/challenge on the “My DataQs” dashboard. There Equipment Provider (IEP)/shipper information”; to go to the are numerous ‘status’ types a user might see as a request moves next page, click on the “Next” at bottom right. through the review process. Examples of the status include: “Open 4. On the “Add a Request – Step 3” page, read the information – In Review,” “Open– Pending Officer Comments,” “Open – Pending presented then click on the “Next” at bottom right. Court/Administrative Comments,” “Closed – No Data Correction Made,” and “Closed – Data Correction Made.” These are examples, 5. On the “Add a Request – Step 4” page, you must enter and there are several other status types. information from the inspection report that you’re challenging. Enter information in the “Report Number” date fields and, if You will receive email notifications each time the status of your the inspection report is in the FMCSA system, much of the request changes, and when a decision is made and your request page should be automatically populated with information. You is closed. will also need to manually enter some requested information, 14
3 Enforcement How Do I Request a Time Extension to Repair or Replace a Malfunctioning ELD? Section 395.34(d) of FMCSA’s ELD mandate rules requires a motor carrier to repair or replace a malfunctioning ELD “within 8 days of discovery of the condition or a driver’s notification to the carrier, whichever occurs first.” Section 395.34(d) of FMCSA’s rules also provides an opportunity for a motor carrier to seek an extension of the 8-day period, if the carrier is unable to repair or replace the ELD within the 8 day period. NOW, WHAT’S THE PROCESS FOR WHAT HAPPENS NEXT REQUESTING AN EXTENSION OF THE 1. Whether your request is granted or not, the FMCSA will email you 8-DAY REPAIR OR REPLACE WINDOW? a short letter. 2. According to FMCSA’s rules, this letter is a “final agency action,” 1. Per Sec. 395.34(d), you must submit a request, within 5 days which means there is no appeals process. of a driver notifying you of the ELD malfunction, to the FMCSA 3. If your request is granted, the letter will likely include a Division Administrator in the State where you maintain your requirement that your driver carry a copy of the letter in the truck principal place of business (for FMCSA compliance purposes). with the malfunctioning ELD, and that you keep a copy of the A State-by-State list of FMCSA offices, including address and letter at your place of business. phone number, is found at this link: https://www.fmcsa.dot.gov/ 4. If your request is granted, there is no requirement for you to mission/field-offices notify FMCSA when your ELD is repaired or replaced (unless the 2. Your request must include: FMCSA letter includes that condition, which is unlikely). a. The motor carrier name, your name, company address and company phone number. WHAT HAPPENS IF FMCSA DOESN’T b. The make, model and serial number of each malfunctioning QUICKLY RESPOND TO MY REQUEST FOR ELD. A TIME EXTENSION? c. The date and geographical location of each ELD It is almost certain that some FMCSA offices won’t be able to quickly malfunction, as reported by your driver to you. respond to extension requests. Fortunately, Section 395.34(d)(5) of d. A short statement describing the actions you’ve taken FMCSA’s rules says that if a carrier’s extension request is timely filed to make a ‘good faith effort’ to repair, replace or service the and complete, then they are “deemed in compliance” until FMCSA broken ELD(s), including why you need additional time. A makes an extension determination. This section clearly anticipates good description of your good faith effort is critical. that there will be times when an FMCSA office won’t be able to 3. There is no FMCSA form for making this request. It can be made respond within the 8-day period. verbally (e.g., on the phone) and then followed up with an email message. Given the time-sensitive nature of your request, you should call the FMCSA office to explain your situation, and to obtain the name and email address of the person to whom your email request should be sent. 4. Send your short email message. Be concise, respectful and professional. 15
4 AOBRDs v. ELDs AOBRDs v. ELDs – Highlighting Some Differences DEVICE FUNCTIONALITY AOBRDs ELDs Integral synchronization required. ELD must interface with “Integral Synchronization” Required but term is not defined in FMCSA rules CMV engine control module to automatically capture engine with Vehicle power status, vehicle motion, miles driven, engine hours. (CMVs older than MY 2000 exempted) Automated entry required at each change of duty status, at Recording CMV Location Required at each change of duty status. Manual or 60-minute intervals while CMV in motion, at engine on and automated off, and at beginning and end of personal use and yard moves Not required. Only time and sequence of duty Required. Must be able to show a graph grid of driver’s day Graph Grid Display status changes must be shown, including starting either on display or on a printout time of each day HOS Advisory or Not required or addressed Not required. “Unassigned driving time/miles” warning Warning Messages must be provided upon login On-duty not driving status, when CMV has not been in-mo- “Default” Duty Status Not required or addressed tion for 5 consecutive minutes, and driver has not respond- ed to required ELD prompt within one minute. No other non-driver initiated status change is allowed Required. Two Options: 1. Telematics-must transfer data via both wireless web Communication/ Not addressed – some interface between AOBRD services and wireless email Data Transfer Methods support system and printer 2. Local Transfer-must transfer data via both USB 2.0 to Law Enforcement and Bluetooth. Both types of ELDs must be capable of displaying standardized ELD data set to authorized safety officials via display or printout Must not permit alteration or erasure of original information Resistance AOBRD and support systems must be collected concerning driver’s record, or alteration of the to Tampering tamperproof to maximum extent practical source data streams used to provide that information. ELD must support data integrity check functions Must have capability to monitor its compliance Sensor Failures Must identify sensor failures and edited data (engine connectivity, timing, location, etc) for detectable and Edited Data malfunctions and data inconsistencies. ELD must record these occurrences. Information originally compiled by Scopelitis Transportation Consulting, LLC 16
4 AOBRDs v. ELDs AOBRDs v. ELDs – Highlighting Some Differences DEVICE DISPLAY AOBRDs ELDs Driver CDL Information Not required or addressed Must be displayed in header of daily ELD record CMV VIN Number Not required or addressed Must be displayed in header of daily ELD record Carrier DOT Number Not required or addressed Must be displayed in header of daily ELD record Information originally compiled by Scopelitis Transportation Consulting, LLC 17
4 AOBRDs v. ELDs AOBRDs v. ELDs – Highlighting Some Differences OPERATIONAL & AOBRDs ELDs MISCELLANEOUS ISSUES Must be captured and driver must approve or reject at time “Unassigned Driving” Time Not required or addressed of login. If rejected, back office staff must reconcile and retain Defined under new “special driving categories” section. If “Special Driving Not required or addressed by rule. Market has used, must be selected and deselected manually by driver, Categories - Yard Moves” resulted in vendor inclusion in AOBRDs and is captured as “on-duty not driving” while in private yard. No mileage or time limits prescribed. Carrier may elect not to use special category “Special Driving Defined under new “special driving categories” section. If Categories – Authorized Not required or addressed by rule. Market has used, must be selected and deselected manually by driver, Personal Use” of CMV resulted in vendor inclusion in AOBRDs is shown on graph grid as driving time but is, by definition, “off duty” time. Carrier may elect not to use special category Editing function must be provided to driver for mistakes. All Driver Edits Not required or addressed edits must also be “annotated.” Driving time may not be edited by driver. Office Support Staff Edits Not required or addressed Edits by office staff allowed. All edits must be “annotated” and all office staff edits are pending until accepted by driver. Driver Certification Not required or addressed Required driver certification after the final required entry of Daily Record has been made or corrected for each 24-hour period. User Accounts Not required or addressed. Market has resulted Unique username (and other required driver information) in user IDs and passwords required for all authenticated drivers/users. Device Malfunctions – Driver must notify company in writing within 24 hours of Time Period to Not addressed device malfunction. ELDs must be repaired or replaced by Repair or Replace company within 8 days. Driver must revert to paper logs during ELD malfunction period. All ELDs must be registered with FMCSA, and self-certified Device Registration Not addressed by each vendor as compliant. Registered and certified ELDs & Certification are listed on FMCSA ELD website. Carriers may only select and use certified ELDs. Information originally compiled by Scopelitis Transportation Consulting, LLC 18
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UNITED STATES CANADA CONTACT Trimble Transportation Trimble Transportation Phone: +1-888.346.3486 4400 Baker Road 1100 Burloak Drive Fax: +1-952.908.6129 Minnetonka Suite 300 Burlington Email: [email protected] MN 55343-8684 Ontario Canada L71 6B2 Web: www.transportation.trimble.com IMPORTANT DISCLAIMER: © 2019 Trimble. All rights reserved. Unauthorized duplication prohibited. Trimble and the Globe & Triangle logo are trademarks of Trimble Inc. registered in the United States and other countries. All other trademarks are the property of their respective owners. This guide is for informational purposes only and reflects our opinions on Electronic Logging Device (ELD) regulations as of the publication date. FMCSA rules and guidance may change following publication, and information in this guide is subject to change. We do not make any warranties, express or implied, concerning the content of this guide and disclaim any liability for its use. This guide does not constitute legal advice. Consult your own legal counsel to determine ELD compliance requirements for your own business operations. TRANSFORMING THE WAY THE WORLD WORKS