Whether you’ve got your electronic logging devices in the trucks already, on order, or you’re still researching your options, there are many questions out there regarding just what’s going to happen at the roadside when the ELD mandate goes into effect Dec. 18.
So we talked to Joe DeLorenzo, director of the Federal Motor Carrier Safety Administration’s Office of Enforcement and Compliance, about some of the most important aspects of enforcement that fleets and drivers need to know.
First of all, he emphasized that the government is ready and able to start enforcing the new rule.
One of the most common misconceptions about the ELD mandate is that the government is not ready to begin enforcement, DeLorenzo said. The Commercial Vehicle Safety Alliance and FMCSA together decided recently to announce a phased-in approach in the first six months, where drivers will not be put out of service if they don’t have an ELD. However, they could still be cited and fined; each jurisdiction will decide on its own how strict that initial enforcement will be.
The move is “a recognition of the fact that this is a big change,” DeLorenzo said. “We’ve done this type of enforcement on other major rules to allow everyone some time.”
However, he also cautioned carriers not to take unfair advantage of that approach. “If FMCSA sees we’re seeing persistent violations by a major carrier taking advantage, they could be subject to an investigation and penalties.”
But What About State Rules and eRODS?
The Owner-Operator Independent Drivers Association recently filed a petition with the FMCSA asking it to delay implementation, contending that “26 states have not yet incorporated an electronic logging regulation into state law and are not authorized to enforce the rule until they do so.”
When asked about the petition, DeLorenzo said, “There are rules about how the states under the program have to incorporate our rules, and how that works, this happens with every rulemaking out there… at this point, I can say that we’re looking at the petition and we are going to respond to it.”
Another concern has been whether roadside officials will have in place the eRODS (electronic records of duty status) program that is needed to interpret the data file transfer from ELDs. Only in the past couple of months have ELD providers had a test available to make sure their data files will be read properly, and it appears that the agency is cutting it close on getting the systems to the end users.
“Right now we’re working on the final issues of development and we’re working with the states on developing the training plan we expect that will all be ready and rolled out in November,” DeLorenzo said.
While FMCSA believes it will have the eRODS program in place before the deadline, DeLorenzo said even if it’s not, officers can still enforce the rules.
“The question is can we enforce whether a driver is compliant with HOS if they have an ELD and the answer is yes, because when we wrote this rule we recognized that while the use of data transfer is beneficial to everybody, there were going to be times even under the best of circumstances that they might not work.” So the ELD specification contains a backup – either the logs can be printed out, or the officer can look at the ELD display.
“It’s important to remember that the ELD rule is about hours of service compliance,” he said. And the HOS rules are not changing. The electronic data transfer from the ELDs, he said, will simply make the enforcement process more accurate, efficient, and faster.
Know Your Exemptions
There are several exemptions to the ELD rule, and DeLorenzo says they fall into one of two categories: Exemptions that were already in existence, such as the 100-air-mile-radius exemption and agricultural exemptions; and exemptions that are new and specific to ELDs, such as the eight-in-30 rule and the exemption for older engines.
The 100-air-mile radius exception has been around for a long time, so if you operate in accordance with all the criteria in that exemption, the exact same thing is the case under ELDs,” DeLorenzo explained. If you don’t have to have paper logs today, generally you won’t be required to use ELDs.
The second category is exemptions unique to the ELD rule.
The pre-2000 exemption was put into the rule because the agency realized older engines with fewer electronics may make it more expensive or difficult to install an ELD. The FMCSA recently clarified that exemption to reflect that it refers to the engine model year, not the model year in the VIN number. So, for instance, if you’re using a 2018 glider kit with a 1998 Detroit Diesel engine, you don’t have to have an ELD.
“The main issue there is our training for the roadside officers,” DeLorenzo said. “We’re going to try to go by the model year that is on the engine tag.” While the carrier is required to maintain that documentation at their place of business, he recommends that drivers be able to explain the exemption when questioned by roadside enforcement officers.
Another ELD-specific exemption is the 8 in 30 rule. If you’re only required to prepare paper logs fewer than 8 days out of every 30, you’re not required to have an ELD. “So if you operate under exemption most of the time, say you’re a 100-air-mile radius driver that on occasion works longer than 12 hours or more than 100 air miles, as long as it doesn’t happen more than 8 times in 30 days, you're not required to have an ELD.”
So what happens if they do need a logbook more than 8 times?
“My recommendation is if you’re planning on using the 8 in 30 exemption, really pay attention to it," DeLorenzo said. "It is going to require some advance planning. It is by driver, so my number one answer is don’t get caught in that situation, making sure you’re planning ahead, and if you see one of your drivers getting close to that, the next run you have that exits that [radius], then that load goes to a different driver.”
No matter what type of exemption you’re operating under, it’s important that your drivers be able to explain to any enforcement officers what that exemption is and why they qualify, DeLorenzo said.
AOBRDs vs. ELDs
Another big exemption is that if you’re already operating an electronic log under the FMCSA’s current AOBRD (automatic on-board recording device) standard, you have another two years before you have to switch over to ELDs.
However, that only refers to AOBRDs that are in use as of the Dec. 17 deadline. You can't stockpile AOBRD devices to install in any new trucks you buy after Dec. 18. Those new trucks will need ELDs.
So what exactly is the difference between an AOBRD and an ELD? They’re both electronic ways of tracking driver hours of service.
“From a carrier perspective they may not see a whole lot of difference depending on the system they’re using,” DeLorenzo said. Some ELD providers will convert their existing systems to ELDs with very few visible differences.
“My simplistic explanation is, one, it’s a consistent and more standardized specification,” DeLorenzo said. “Right now all the devices that are AOBRDs are a little bit different. Under the ELD specification, they all may look different, but they all are producing the same output file as required by the specifications.
“Second, there is more information being captured, but again all uniform, like engine hours, that are part of the ELD specifications.
“The third thing is the biggest difference -- that the ELD specification incorporates what we call edits and annotations, and does it in such as way that if a driver’s record of duty status needs to be corrected or edited they can do that under certain situations. The ELD specification allows them to put notes in as to why that happened, but also retains the original. It’s good accountability for the driver and the carrier if they have to make an adjustment in the driver’s hours,” for instance if they need to adjust the on-duty not driving time, or if a driver forgets to log out, or if a technician takes the truck out for a test drive.
And one of the biggest differences is that ability to provide data transfer to inspectors at roadside and during compliance reviews. This process, DeLorenzo said, will be more accurate and faster than enforcement officials deciphering handwritten logbooks.
Because there are not always obvious differences between AOBRDs and ELDs visible to the eye, enforcement officials won’t necessarily know when they do a roadside inspection which type of device a driver is using, or if they put in that “grandfathered” AOBRD last year or a week after the deadline. However, that information can be determined in a compliance review.
Again, drivers need to know what type of device they are using. Is it an AOBRD or an ELD? In addition, if it’s an ELD, there’s additional documentation drivers must have – a manual and information on data transfer.
Other Things Drivers Should Know
Two other areas that have been the source of a lot of questions include the “personal conveyance” driving status and the issue of drivers using rental trucks.
Personal conveyance, DeLorenzo said, “is one of those things that is not really an ELD issue, but it sort of is. The rules about personal conveyance haven’t changed. But now that we have ELDs all of those miles are going to be recorded.”
For instance, if a carrier allows a driver to drive the truck home from the terminal for the weekend once he’s off duty, the driver can choose “personal conveyance” instead of the regular driving category.
“If a driver is using the vehicle in such a way that it’s going to further the operational position of the carrier, then it’s not personal conveyance,” DeLorenzo said.
“The most important recommendation is that whatever [carriers] decide to do about personal conveyance, that they document that and have some kind of policy they train the drivers on, so it is very clear whether they are or are not operating under personal conveyance.”
Another area of concern has been rental trucks. What happens if a truck is down and you’re using a rental while it’s in the shop? Interoperability of ELDs is not required by the rule.
“If you’re required to have an ELD it doesn’t matter what vehicle you’re driving,” DeLorenzo said. “If you end up operating a vehicle that has a different system, that’s OK, as long as at the time of the inspection whichever vehicle you're in you have the current day and previous 7 records of duty status.”
So depending on what type of ELD you use in your regular vehicle, you might be able to show the inspecting officer your previous days on your phone or tablet, or you might have to print out those logs to keep in the truck. “It’s all about being able to track hours of service,” he said.
Another thing to keep in mind for roadside inspection: under the ELD rule, drivers are required to have with them the manual and an instruction sheet about data transfer they need to be able to produce for the officer.
Whether we’re talking exemptions or rental trucks, or AOBRDs vs. ELDs, the more the driver knows and can articulate to the officer, the better. DeLorenzo says. “The more training the companies can do and whatever kind of aids they can have for drivers, the easier the roadside inspection process will be.”