ELDs: Time to plan

ELDs: Time to plan

“Switching from a paper log was easy because it’s actually better with an e-log. You can get your rest because you don’t have anyone pushing you. Your time is right there for everyone to see. I still make my money and get my miles. You have to plan. You can’t stop at every truck stop and mess around. You’ve got to get down the road and do what you’re supposed to.” —Pat Dunn, driver   “We’re seeing a lot of these ‘garage’ providers: little, tiny companies that say they’re building an ELD, but I don’t think they’re going to be remotely compliant. We’re just urging caution. Nobody needs to jump in right away, but we still need to see more from FMCSA on what kind of testing protocols it would expect.”  —Annette Sandberg, former FMCSA administrator   “I think a lot of carriers were under the initial perception that once they convert to electronic logs, they don’t need to audit logs anymore because the system itself audits them. But that’s not true at all. You still need to make sure the driver is not mischaracterizing his on-duty and off-duty time.” —Tim Wiseman, attorney and regulatory compliance specialist

The new electronic logging device (ELD)  rule is finally here—now what? For starters, the Federal Motor Carrier Safety Administration (FMCSA) has built in a transition window to make sure everyone involved is on the same page. And for the time being, FMCSA, roadside enforcement, and ELD providers are still working out exactly how the policy specifics will be converted to day-to-day operational reality.

“Roadside enforcement is a wild card. I don’t think even FMCSA knows what that’s going to look like for the next two years,” says Annette Sandberg, CEO of TransSafe Consulting and a former FMCSA administrator. “It’s hugely problematic because they don’t know how quickly the state enforcement agencies are going to adopt—I’m told they don’t even have the e-ROD (electronic records of duty) software going. It’s a very heavy lift that FMCSA has to do in the next several months to address the technical considerations.”

Along with official policy and guidance on the FMCSA website and upcoming informational sessions, ELD providers have rolled out numerous white papers and presentations.

“It really is top of mind for our customers,” says Tom Reader, director of marketing—ELDs, forms, & services, for J.J. Keller. “Inevitably, the big deal is about how these fleets are going to implement this big change with their drivers. They’re going from paper-based recordkeeping to electronic—and that’s a huge change. You’re putting drivers in the middle of this where they have to adapt to a new method of work.”

With an estimated 3 million drivers who fall under HOS limits, Reader suggests that more than half have used some sort of electronic logging technology. But that still means more than a million drivers, or their companies, will now be actively looking for ELD solutions for the first time.

But even drivers new to e-logs shouldn’t sweat the change, says CalArk driver Pat Dunn. He’s been trucking for 16 years—including several as an owner-operator—and made the transition two years ago.

Pat Dunn

“It’s been amazing,” Dunn says. “It was easy because it’s actually better with an e-log. You can get your rest because you don’t have anyone pushing you. Your time is right there for everyone to see. I still make my money and get my miles.”

Dunn does acknowledge that the clock stops for nothing, so drivers accustomed to fudging a paper log now and again to make up for unexpected delays will have to get used to working a little differently.

“You have to plan,” he says. “You can’t stop at every truck stop and mess around. You’ve got to get down the road and do what you’re supposed to.”

For company drivers, Dunn emphasizes the importance of communication—of letting dispatch know if anything unexpected has come up.

Indeed, being proactive will save a driver a possibly unpleasant chat later.

“They know we manage the program,” explains CalArk vice president of safety and compliance Dennis Hilton, who reports the 250-truck fleet has an HOS compliance score near the top 10%. “If there is a violation, we’re going to call and ask the driver about it.”

CalArk advises drivers to enter a note in the system if a situation forces them to push the driving time limits. Hilton emphasizes the importance of the new driver coercion rule and suggests shippers will now have to get on board with the efficient management of truckers’ time at the dock.

“Planning is the whole deal,” he says. “Murphy always raises his ugly head. What you have to do is just regroup  and redesign your plan.”

Simply, ELDs will make drivers “more conscientious,” Hilton believes. And good drivers should appreciate the precise recordkeeping.

“You could be as honest as can be and keep your paper log just like you would an electronic log—and nobody would believe it,” he says. “Just overcoming that hurdle is a big relief.”

Still, the Owner-Operator Independent Drivers Assn. (OOIDA) is no fan of the new rule, even with the procedural and technical provisions to prevent harassment resulting from ELD-generated information. OOIDA argues that use of an ELD should be an option, not a requirement. And the association once again has filed suit to block the rule, saying it has the potential to have “the largest, most negative impact on the industry” of any regulation FMCSA has imposed.

While OOIDA successfully argued that FMCSA had not addressed driver harassment in the 2010 rule, that argument will be tougher to make this time, suggests Tim Wiseman, managing partner of Scopelitis, Garvin, Light, Hanson & Feary, a law firm that focuses on regulatory compliance.

“I think the agency has done a pretty good job of considering and taking into account driver harassment and driver privacy,” Wiseman says, and he notes numerous other groups, including the American Trucking Assns., will be filing briefs in support of the rule. “I think the odds of the 7th Circuit sending FMCSA back to the drawing board this time, given the breadth of research and analysis, is unlikely. It’ll be interesting to see how the litigation goes.”

And even the doubters will come around, adds Sandberg. “The reality is, once we get these things installed and the technology evolves, it’s going to be fine,” Sandberg says. “There are still a lot of folks who aren’t using them and I think they’re leery. That’s what led to some of the concerns.”

To kick off the transition to ELDs, below is a basic Q&A.

What are the key dates?

The effective date is Feb. 16, 2016—60 days after the rule’s publication in the Federal Register on Dec. 16, 2015.
The compliance date is Dec. 18, 2017, two years from the publication date. FMCSA is calling the time between now and then the “awareness-and-transition” phase. Paper logs, logging software, automatic onboard recording devices
(AOBRDs) and ELDs that are registered and listed on the FMCSA website may be used for records of duty status (RODS).

The two-year period from the compliance date to the full compliance phase (four years following ELD rule publication) runs to Dec. 16, 2019. During this period, carriers and drivers subject to the rule can use either AOBRDs that were installed prior to Dec. 18, 2017, or certified, registered ELDs following rule publication on Dec. 16, 2015.

After Dec. 16, 2019, in the full compliance phase, all drivers and carriers subject to the rule must use certified, registered ELDs that comply with requirements of the ELD regulations.

What should a driver do first?

First and foremost, the ELD rule doesn’t change hours-of-service requirements, so every driver needs a thorough understanding of the regulation (§ 395.8).

For those drivers who have not yet begun to use e-logs, the first step to a successful transition isn’t choosing the right ELD system; it’s making sure operations are compliant with HOS regulations.

ELDs will very quickly identify and record violations so, without a good compliance management plan in place, the transition could be a costly one.

The secret to complying is to be compliant before the switch to ELDs, according to J.J. Keller. Simply introducing e-logs to your current operation can result in increased violations and greater risk.

What are the exceptions to the ELD requirement?

Essentially, any driver who currently has to keep a log will be required to use an ELD. Officially, the following are not required to use ELDs (but carriers may choose to use ELDs even if they are not required):

  • Drivers who use paper logs no more than 8 days during any 30-day period;
  • Driveaway-towaway drivers (transporting an empty vehicle for sale, lease, or repair);  
  • Drivers of vehicles manufactured before model-year 2000 because not all engines built before then have an electronic control module (ECM) suitable to ELD compliance; and
  • Drivers who do not use RODS because of the timecard exception (i.e., short-haul drivers).

Is an AOBRD the same thing as an ELD?

No, but some devices will be capable of making the transition with a software upgrade and others will have to be replaced.

Reader expects that, even though the FMCSA certification site isn’t up and running yet, J.J. Keller’s ELD solution will be certified with a software upgrade of its current electronic logging package—and that other providers should already have a good idea of what needs to be done for certification under the new rule.

“Some people are going to wait for the certified list to come out, but folks are going to look at the vendors that have been in the industry for a number of years,” Reader says. “They’ll make decisions based on believing the vendor has a solution that’s going to be compliant.”

Both Wiseman and Sandberg express concerns about providers promoting uncertified solutions. “There are a lot of AOBRD vendors out there now that are offering what they say are compliant devices that really don’t meet the technical requirements,” Wiseman says. “So do your due diligence. Don’t just rely on a supplier’s blanket statement that a device meets the requirements.”

Sandberg anticipates the certification website will not be fully functional until mid-February. She notes that
FMCSA is developing software to test ELD compliance—yet the rule doesn’t require that providers use the test software. Still, Sandberg suggests that carriers should ask providers if they used the software before self-certifying—and  if not, why not?

“We’re seeing a lot of these ‘garage’ providers: little, tiny companies that say they’re building an ELD, but I don’t think they’re going to be remotely compliant,” Sandberg says. “We’re just urging caution. Nobody needs to jump in right away, but we still need to see more from FMCSA on what kind of testing protocols it would expect.”

How do you decide which ELD to buy?

The easy part is that the rule requires use of a certified ELD, and while providers are allowed to self-certify, only those units listed online by FMCSA meet the requirement.  

In the new rule, FMCSA has allowed for two different types of devices. Electronic data transfer must be made by either (1) wireless web services and email or (2) Bluetooth and USB 2.0. The former would include units with additional telematics capabilities, typically used in conjunction with fleet management systems. The latter would be a less expensive design for local data transfer, with only the essential functionality built in.

Furthermore, to facilitate roadside inspections, an ELD must provide either a display (and be removable so that an enforcement officer can see it at roadside) or a printout. Standardized display information must include the daily header, graph grid, and log details for the current 24-hour period and previous seven consecutive days.

Sandberg has some concerns about the more affordable local devices, specifically that there’s no real-time communication between the ELD and dispatch—only a requirement that the data must be provided to the carrier within 13 days.

“It’s an electronic log that’s tied to the truck, but a carrier still has no visibility into what that log actually says," she explains. “I know some carriers will pick them because they’re going to be the low-cost device. The log is locked down, but you don’t know if your drivers are any more compliant until after the fact—and you’re accumulating violations in the meantime.”

How are unusual operations logged?

Along with questioning how rigorously the ELD provider has tested the system, truck operators should ask specifically about implementing different rule sets for operations that run under HOS special exceptions.

“If I’m a carrier that has a tendency to use a couple of those exceptions on a regular basis, does the ELD provider offer the software to accommodate those exceptions?” Sandberg asks. “Carriers need to think about their operations and then ask questions of the ELD provider about the way they’ve written their software. If the vendor is providing a solution to your business, you shouldn’t have to change your operations to meet the ELD’s limitations.”

Reader adds that operators need to be cautious. “If you have exceptions and if the vendor doesn’t support that unique rule set, then you’re going to be out of compliance and subject to fines and penalties,” he says. “That’s what folks have to be aware of.”

How much will ELDs cost?

FMCSA estimates the annualized cost for an ELD with telematics to be $419, compared to $166 for an ELD with USB 2.0 and Bluetooth. Prices will vary based on features.

But the agency points out that the use of ELDs will significantly reduce the “paperwork and recordkeeping burden” associated with HOS regulations. Drivers’ time spent completing RODS and forwarding RODS to their employers will be reduced by more than $600. Further, the agency’s

analysis estimates that the savings in clerical time spent retaining paper RODS and eliminating the need to purchase paper log books is almost $200. All told, this amounts to a total annual paperwork savings of $809 per driver, according to FMCSA.

Adds Reader, “It’s not so much about the equipment. It’s really about the HOS compliance and the auditing infrastructure that’s in the application.”

How is driver harassment and/or coercion addressed?

Harassment is very specific: It applies if a carrier uses ELD data to pressure a driver to take action that results in an HOS violation or to drive when ill or fatigued. In the new rule, FMCSA establishes a process for filing harassment reports. Carriers will be subject to a penalty for harassment as well as the penalty for the HOS violation.

Additionally, the ELDs will come with a mute function to silence communication or alerts when the driver is in the sleeper berth, for instance.

Coercion is much broader and is not limited to HOS violations. Coercion is subject to a separate FMCSA rule published at the end of last November and effective Jan. 29.

What supporting documents are required now?

ELDs are designed to verify driving time, so supporting documents will be used to verify on-duty not driving time. A carrier must retain up to eight supporting documents from five general categories per driver for each 24-hour period [§ 395.11(c)]:

  • Bills of lading, itineraries, schedules, or equivalent documents that indicate the origin and destination of each trip;
  • Dispatch records, trip records, or equivalent documents;
  • Expense receipts;
  • Electronic mobile communication records reflecting communications transmitted through a fleet management system (FMS); and
  • Payroll records, settlement sheets, or equivalent documents that indicate payment to a driver.

“I think a lot of carriers were under the initial perception that once they convert to electronic logs, they don’t need to audit logs anymore because the system itself audits them,” Wiseman explains. “But that’s not true at all. You still need to make sure the driver is not mischaracterizing his on-duty and off-duty time.”

May ELD records be edited?

Limited editing is allowed to correct mistakes, enter missing information, and provide notes or explanations (annotations) for ELD records, according to FMCSA. Driving time and other information that is automatically captured cannot be edited.

Driver edits must be accompanied by an annotation, and the ELD prompts the driver to annotate edits. A carrier can suggest or request edits for accuracy, but the driver must confirm these changes and then recertify and resubmit the RODS.

Carriers must retain original ELD information (on the device, or on a separate backup system) for at least six months, along with the associated required supporting documents. Drivers must also be provided access to six months of their log data, including drivers who have left the carrier.

“Some of the ELD providers have said they’re going to set up a site where a driver would be able to log in and access the data,” Sandberg explains. “But some carriers don’t want to do that because they’re worried about a driver who’s been fired trying to hack into a site. So some providers are planning for carriers to be able to give a driver six months’ worth of logs on a jump drive when they leave.”

What are the technical specs?

Because every FMCSA-certified unit will meet the technical requirements, operators shouldn’t have to fret over these details. Nonetheless, the basic elements include date, time, location information (GPS accuracy within 1 mi. while on duty, 10 mi. during a driver’s personal use), engine hours, vehicle, and motor carrier.

These elements are captured at change of duty status; intermediate recording; change in special driving category; certification of driver’s daily record; log in/log out; engine power up/shut down; authorized personal use; and malfunction and data diagnostic event.

What happens if an ELD malfunctions?

If an ELD malfunctions, a motor carrier must either repair or replace the ELD within eight days of a driver’s notification or carrier’s discovery of the malfunction, whichever comes first. A carrier may request an extension, if needed, by notifying the carrier’s state FMCSA division administrator within five days of the driver’s notification.

Similarly, the driver still must be able to provide data or documents for the current 24-hour period and the past seven days in that vehicle, either as RODS loaded into the new or reset ELD or in paper format.

Again, ELD providers need to have answers to a carrier’s questions. “How hard is it to set a driver up in the system? How long will it take to get another device?” Sandberg asks. “If a driver is out on the road, can he or she replace it, or does [the truck need] to come back to the terminal?”

How are special driving categories designated?

There will be only two automatic duty statuses under the new rule: driving once the truck begins moving; and on-duty, not driving after five minutes of not moving (unless a driver responds to the pop-up alert to confirm he or she is still driving).

“For any driver currently using an electronic system, this shouldn’t be that foreign to them,” Sandberg says.
ELDs also will allow drivers to indicate periods of authorized personal use (personal conveyance) or yard moves. A driver can use an annotation for other special driving categories such as bad weather that cause adverse driving conditions or oil field operations.

Wiseman notes that he was “somewhat disappointed” that FMCSA didn’t define what exactly is permitted under personal conveyance and that he anticipates further guidance.

Will the ELDs come with instructions?

Not only is it a good idea to keep a user’s manual in the cab, it will be required after the compliance date. The following will also be required:

  • Instruction sheet for transferring HOS records to safety officials;
  • Instruction sheet on reporting ELD malfunctions and recordkeeping procedures during ELD malfunctions; and
  • A supply of paper tracking forms (grid graphs) for at least eight days in case of ELD malfunction.

When will the new, compliant ELDs be available?

Procedurally, the ELD final rule is not actually final until 60 days after publication. So while the industry may be rapidly gearing up, nothing is official quite yet.

“We’re in that waiting period,” says Elise Chianelli, director of safety and compliance at PeopleNet, when asked about a product development timetable. “Most of the supplier industry feels that it will take 12-24 months to comply with all the details included in the rule.”

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