Fleet Management

ELD Mandate: Exemptions, Uneven Enforcement Obscure Impact

February 08, 2018

By Deborah Lockridge

SHARING TOOLS        | Print Subscribe
Citations have increased for violations related to AOBRDs during ELD transition. Graph courtesy FTR.
Citations have increased for violations related to AOBRDs during ELD transition. Graph courtesy FTR.

It’s impossible to gauge the full impact of the electronic logging device mandate yet, between temporary exemptions and a phased-in enforcement period, and in fact we may not know the true effect on the industry until rates soften significantly, according to FTR analysts.

The ELD mandate went into effect Dec. 18 and requires most interstate commercial drivers to use devices meeting Federal Motor Carrier Safety Administration specifications to track their hours of service and ensure they're not exceeding federal limits.

How many exemptions does it take to gut a rule?

In the forecasting firm’s monthly State of Freight webinar, Avery Vise, vice president of trucking research, summarized the exemptions currently in place, including a technical reprieve for UPS and one for the Motion Picture Association of America, and noted the many exemption applications that are still pending, from agriculture retailers to power and communication contractors.

The big question, he noted, is the Owner-Operator Independent Drivers Association’s petition to exempt “small business” trucking operations of less than $27.5 million in annual revenue, which would be in fact the majority, some 95% or more, of trucking companies, Vise said.

While OOIDA’s petition includes a couple of qualifiers, in reality those would not reduce the number of fleet exempted by very many, Vise said. One was that to be exempt, carriers could not have an unsatisfactory safety rating. Vise noted that if you have an unsatisfactory safety rating and aren’t implementing a plan to correct it, “you’re out of business.”

The other qualification in the OOIDA petition was that exempt carriers would have to be able to document a proven history of safety performance with no at-fault crashes. Vise said even putting aside the fact that there’s no concrete definition of what constitutes an at-fault crash, just looking at all DOT-reportable crashes, it still would only remove a small number of companies from the equation. Currently 93% of one-truck over-the-road trucking operations have had no DOT-reportable crashes in the past two years. “When you take that into account, you’re talking about an exemption that can affect tens of thousands of carriers.”

Vise said his personal feelings are that OOIDA’s petition is unlikely to succeed, but he did say it is possible, noting that a letter from 25 members of Congress went to FMCSA supporting OOIDA’s petition.

As the Trucking Alliance noted in its comments filed in opposition to the exemption, this would essentially “gut” the ELD rule.

Clay Slaughter, FTR’s new senior analyst, noted that if FMCSA were to grant OOIDA’s exemption, it might well result in a legal battle, since the ELD rules are the result of a Congressional mandate. “When an executive branch makes an exemption of a legislative mandate, we undermine the rule, and can get into a legal battle.” So such an exemption could be reversed fairly quickly by the courts.

ELD enforcement issues

While some 17 states reportedly have decided to not do any enforcement until April 1, another dozen are leaving it up to the individual officer, leaving 19 that are currently writing ELD tickets.

FMCSA asked states to use a specific violation code, 39522A, between Dec. 18 and April 1 to indicate ELD violations, which would not affect CSA scores, but would allow FMCSA to gather data on ELD use. Vise says in looking at publicly available data, that code is not appearing. Whether that means officers aren’t using it, whether FMCSA is not making that information public, or whether there’s an IT problem, he didn’t know.

Instead, Vise pointed out, data shows an increase in 3958A (no logs available) and 39515 (violations related to use of e-logs meeting the previous government spec for automatic onboard recording devices, or AOBRDs.) Those apparently will affect carrier CSA scores, unless they are challenged through the DataQs process. This tracks with what J.J. Keller reported a few weeks ago, when it noted that there are reports of drivers with AOBRDs being cited (but not fined) for ELD-related violations.

So enforcement is uneven and spotty, making it hard to get a solid picture of ELD compliance at this point in time. In addition, some operators, knowing that enforcement may be scarce and that if they do get a ticket they won’t be put out of service or have CSA points assessed, are waiting until the very last minute to comply.

This is not what the Commercial Vehicle Safety Alliance and FMCSA had in mind when they announced the phased-in enforcement, CVSA Executive Director Collin Mooney recently told Today’s Trucking.

“We are disappointed that our implementation process — our delay in implementing out-of-service conditions until April 1 — has been taken by many in the industry as the new implementation date. That wasn’t the intent,” said Mooney. “I’m disappointed in the handful of people electing to install their ELDs so they meet the regulatory definition, but then still using paper. It’s not meeting the regulatory intent.”

ELDs and capacity questions

From a broader logistics standpoint, FTR sees three principal potential effects, which have been discussed for some time:

  1. Lost productivity due to longer transit times, as loads take longer to deliver once drivers are forced to comply with hours of service limits. This will be very lane-specific and will vary from shipper to shipper, but it will be severe in some cases.
  2. Lost productivity due to inefficiencies such as excessive detention and driver-unfriendly shipper and receiver schedule. “This one is endemic in a lot of areas,” Vise said, especially in the refrigerated/grocery sector.
  3. Lost capacity due to drivers/carriers leaving the market. “This could be significant, but what we’ve seen to this point is all anecdotal,” Vise noted.

It’s that third area where we may not see significant effects until A, full enforcement kicks in come April 1, and B, freight rates come down.

“I’ve had the opportunity to talk to some small carriers,” Slaughter said, “and the basic sentiment was they’re going to do what they’re doing until they’re forced to comply.”

However, Vise noted, the current high spot market rates could mitigate the impact of ELD productivity losses for small carriers. He posted an example of an owner-operator running 120,000 miles a year, 10% of those empty, at a $1.58 spot rate a year ago. Assuming a 9% productivity loss running legal under ELDs, he said, that would mean about a $15,000 penalty for that owner-operator. But looking at today’s rate of $2.05, he said, and given the same productivity penalty, that owner-operator would actually be making $30,000 more than a year ago.

“Until spot market rates drop below $1.75 a mile, the owner-operator would be better off financially” than a year ago, even being forced to abide by hours of service rules under mandatory ELDs. And that’s assuming no improvement in the empty-mile percentage, and with today’s tight capacity, it’s likely those empty miles would be less.

“We may not see the impact of ELD compliance until we get some softness” in the market, Vise said.

The dangers of beyond-ELD data

Vise also covered the shortcomings of the FMCSA’s “safe harbor” provision barring the agency from using ELD data for any purpose other than ensuring hours of service compliance. That prohibition does not apply to data from AOBRDs, nor to data carriers use from their ELD device for other business purposes.

“So FMCSA can demand that data, and they do – and they train inspectors how to go in and retrieve data from carrier GPS systems and match that against logs and other things,” Vise said.

Speeding is a good example. “We have seen instances where carriers have been given a part 392.2 violation – a catch-all for state and local violations, predominantly speeding – and in compliance reviews [fleets] have gotten substantial fines.” One carrier, he said, was assigned three of these violations, with a penalty of $17,000.

Unknown, Vise and Slaughter said, is whether enforcement officials could do the same at roadside inspections.

In the future, they added, expect others to be looking to do things with this data, such as insurance companies wanting to use it to help make decisions.

 

Comments

  1. 1. Marvin [ February 09, 2018 @ 05:29AM ]

    Yep........it's going to be just fine! Don't worry about a thing! What could possibly go wrong with everyone eventually having access with all that information? And don't even worry about some state enforcement officers taking it over the top, at roadside inspections, to use the opportunity for a slam-dunk at more 'enforcement' money. No problems there.......nope!

  2. 2. Steve [ February 09, 2018 @ 07:04AM ]

    Well put marvin !!

  3. 3. Richard Davis [ February 09, 2018 @ 09:47AM ]

    The article I read yesterday about drivers, said on average they lost $1200- $1500.00 a year in lost wages sitting at docks. Now that was after the " STANDARD " 2- hours that drivers give shipper/receivers, " FREE "of their time. How much money will drivers now lose on top of that with the miles they will be losing with ELDs? The DOT study said that accidents go up by 6.2% after driver sit at a dock for 2 hrs.-15 minutes. With ELDs, how much higher does that 6.2% go up, with drivers now being in a bigger hurry, ELDs forcing them to be in a rush?

  4. 4. Richard Davis [ February 09, 2018 @ 09:58AM ]

    These weak-minded people keep saying drivers on paper logs run illegal. I keep hearing drivers tell how there companies allow them to do certain things on ELDs, that can't be legal, just to save a minute here and there. Keep driving, we will go back and find you an extra 5-10 minutes. I've heard that a bunch of times from drivers saying that's what there company tells them. How you going to find those minutes, legally? Drivers on paper logs had a little leeway legally, because they are in 15 minute increments. ELDs are exact.

  5. 5. Steve [ February 09, 2018 @ 11:39AM ]

    The Hitler ELDs don't work good on Americans. The stress the ELDs have created in the transportation of America is going to destroy the U.S.After all ,that was the obvious plan,wasn't it ?

  6. 6. Steve [ February 09, 2018 @ 11:43AM ]

    A couple of days ago,Missouri had 650 crashes. Were they caused by trucks without ELDs or the MODOT Not doing their job because they are too busy telling truckers how to do their job ?

  7. 7. Jeff Clark [ February 10, 2018 @ 03:32PM ]

    I have been on an ELD/AOBRD for a little over 5 years. We really can not “edit” logs or find extra minutes. My edits have been mostly because I did not get the machine to flip to off duty on a 30 minute break. There are a lot of myths out there about going back and doing edits. We don’t. Anytime an edit is made it leaves a mark that can draw attention from auditors. Simply put, log it as you do it.

  8. 8. Dean D Hughson [ February 11, 2018 @ 12:50PM ]

    I'm afraid I have come to the conclusion that I will not be turned on/off like a machine. If that makes me an "outlaw", so be it. I have a couple million miles without an at fault accident. Sure, I have a few violations. B/S clerical errors. I'm glad it works for some of you. But I pity those willing to give up your liberties. I'm very good at what I do.

  9. 9. Mildred Lee [ February 12, 2018 @ 09:20AM ]

    Great little blog! We're hoping after enough attention is brought to them, they will further delay the requirements of having an E.L.D until they are at least 90% fixed and ready to work correctly. They also need to be understood better. We’re actually an experienced safety group, called NEST (National Enforcement Safety Training) and believe our services offered, outweigh ANY in house safety director. We go out of our way to make sure the companies we have, have great scores, and minimal accidents. If you’d like to see the services we offer, you can review them here:

    https://mysafenest.com/pricing/

  10. 10. Richard Davis [ February 12, 2018 @ 01:35PM ]

    Let's wait till April - July comes around to see how great ELDs are doing. December-January is kinda the slow time of the year for freight.

 

Comment On This Story

Name:  
Email:  
Comment: (Maximum 2000 characters)  
Leave this field empty:
* Please note that every comment is moderated.

Newsletter

We offer e-newsletters that deliver targeted news and information for the entire fleet industry.

GotQuestions?

ELDs and Telematics

sponsored by
sponsor logo

Scott Sutarik from Geotab will answer your questions and challenges

View All

Sleeper Cab Power

Steve Carlson from Xantrex will answer your questions and challenges

View All