With active enforcement of the electronic logging device rule under way now for several months, “there are some things you really want to focus on and make sure your drivers can communicate when they have a roadside enforcement,” advised Tom Cuthbertson, Omnitracs’ vice president of Regulatory Compliance, during a recent HDT webinar on the ELD mandate, which was presented by Omnitracs.
“There are some challenges [at roadside],” he continued. “Make sure that the driver communicates if they're on an AOBRD or an ELD. They have to make sure that enforcement understands that, because some devices are registered as ELD-certified, but you can still run as AOBRD-based with the [ELD rule’s] grandfather clause.”
He recommended that fleets make sure their drivers have the correct cab card—which is required-- and that they present theirs to enforcement officers. “There's an enforcement cab card for an AOBRD and it's a requirement to say that the device is certified under a specific regulation like AOBRD is 395.15. But what’s important is that the driver has one or the other and presents it to enforcement.”
Cuthbertson also advised that the Commercial Vehicle Safety Alliance has been carrying out additional training since the ELD rule was finalized last year. “They've also updated guidance at CVSA for inspection bulletins at roadside and those have been out for several months now, so people have an understanding of the grandfather clause and how you distinguish between AOBRDs and ELDs.
“And don't forget,” he adds, “that even though you have an ELD or AOBRD in your vehicle, you're still required to have sufficient pages to create a [paper] log book for the previous seven days. We've seen quite a bit of confusion on the roadside [since enforcement began] about whether an AOBRD or an ELD is in there. So, that's why we wanted to bring this up and remind you to make sure your drivers are communicating effectively at roadside.”
Annette Sandberg, CEO of TransSafe Consulting and a former administrator of the Federal Motor Carrier Safety Administration, pointed out that fleets invoking the two-year grandfather clause have to syart that clock back on Dec. 18, 2017 when the ELD mandate actually took effect; that is they should not start counting the extension for full compliance when full enforcement began in April of this year.
“Since we have had full enforcement in place and even during that soft enforcement period, we did see a number of very significant challenges in 2018,” said Sandberg. “The first is that it's been very apparent that there has been inadequate training of drivers. So, it's important that motor carriers appropriately train their drivers so that the drivers know, as Tom mentioned, what system they're on, whether it's an AOBRD or an ELD, and that the driver be able to articulate that.
“The second problem is there really has been a pretty significant challenge of getting all the enforcement personnel trained,” she continued. “FMCSA did try to train a lot of state enforcement people at the end of last year. However, like any training, just like carriers had difficulty training, not all enforcement personnel were trained equally.”
Sandberg said the upshot is there has been “a real amount of confusion about, ‘Is the device an AOBRD or an ELD? What can I demand from the driver? What can I demand from the motor carrier?’ Those kinds of things. I know that FMCSA is continuing to do ongoing training of enforcement personnel.”
The confusion over AOBRD vs. ELD has gone like this, said Sandberg: “The driver presents an AOBRD but the enforcement person demands an ELD file from that AOBRD. That's not possible. So, there are quite a few challenges there.”
Other enforcement issues noted by Sandberg include both FMCSA and state investigators “continuing to struggle to understand what data is available during a compliance review and how to retrieve it. This is going to be a learning process, probably for the next year, as carriers switch from either AOBRD systems to ELD, or just have an ELD system, on what can be made available during a compliance review.
“Obviously, there's far more data available to investigators and even roadside inspectors than was previously available,” she continued. “If you're using an ELD and you transfer that ELD file, that officer has a lot more information about what the driver's been doing for the last eight days than they ever had before, such as unassigned drive events and violation summaries, those kinds of things.”
Sandberg also advised that “investigators are reaching out to ELD manufacturers instead of to the motor carrier for data and information. We're seeing this quite a bit. I work with quite a few different ELD vendors and routinely enforcement people will call the vendor up and say, ‘I need this trucking company's information.’ Well, I'll tell you as a lawyer, the vendor should never be giving that [kind of information] to enforcement personnel. That's the trucking company's responsibility. And so, I'm telling vendors to tell the enforcement officer to go back to the trucking company.”
Lastly, Sandberg recommended strongly that carriers not forget to retain supporting documents. “This requirement really helps support the on duty, not-drive time. With supporting documents, you must make sure that your drivers keep those, save them, and then you must retain those for six months in order to support a compliance review downstream.”