roadmap to the eld mandate...1 roadmap to the eld mandate this comprehensive guide explains the...

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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.

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Table of Contents

Training Your Team is Critical for a Successful ELD Implementation .............................................. 3

Updating Company Policies & Procedures – An Important Step in ELD Implementation .......... 4

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

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

1 Training

2 New, ELD-Specific Duty Statuses

3 Enforcement

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.

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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 Your Team is Critical for a Successful ELD Implementation

TRAINING IS CRITICAL ► the look, feel and functions of the selected ELD technology ► the login and logout processes ► the methods for changing duty status from the automatically

captured driving time to on-duty, not driving (line 4), off-duty

(line 1), and, if applicable, sleeper berth status (line 2) ► how the special driving categories of “personal conveyance” and

“yard moves” are activated, if authorized by the carrier

SAFETY, COMPLIANCE, DISPATCH, OPERATIONS AND MAINTENANCESafety, Compliance, Dispatch, Operations and Maintenance

personnel will need to become familiar with certain items, too: ► the look, feel and functions of the selected ELD technology ► the look, feel and functions of the office software associated

with ELDs ► the data captured, and the reports generated by the ELD

office software ► how to edit and annotate the ELD record when driver mistakes

are made

It’s hard to overstate the importance of training. Simply put, it’s

critical to successfully implementing ELDs. And, carriers should

consider providing multiple training sessions for all affected drivers

and personnel. Keep in mind that many people learn by doing.

Consider having an ELD set up in the training room to facilitate

‘hands-on’ use of the device. Trimble has an entire training team

with expertise in developing information and materials to help

customers with their training needs. No need to reinvent the

training wheel!

UTILIZING FMCSA RESOURCESThe Federal Motor Carrier Safety Administration (FMCSA) has a

list of Frequently Asked Questions that can be used to supplement

the training materials used. For example, the following two FAQs

could be weaved in to a training program:

Q: Who can edit an electronic logging device (ELD) record?A: Both the driver and authorized carrier staff can make limited

edits to an ELD record to correct mistakes or add missing

information. All edits must include a note (annotation) to explain

the reason for the edit. In addition, the driver must confirm (certify)

that any carrier edit is accurate, and resubmit the records. If

the driver chooses not to re-certify his or her RODS, this is also

reflected in the ELD record. The ELD keeps the original, unedited

record, along with the edits.

Example: a carrier edits a record to switch a period of time from

“off-duty” to “on-duty not driving”, with a note that explains

“Driver logged training time incorrectly as off-duty.” The edit and

annotation are sent to the driver to verify. The edit is not accepted

until the driver confirms it and resubmits the RODS.

Q: What are the options for ELDs to electronically transfer data?A: According to the ELD rule technical specifications, an ELD must

support one of two options for electronic data transfer:

The first option is a “telematics” transfer type ELD. At a minimum, it

must electronically transfer data to an authorized safety official on

demand via wireless Web services and email.

The second option is a “local” transfer type ELD. At a minimum, it

must electronically transfer data to an authorized safety official on

demand via USB2.0 and Bluetooth®.

1 Training

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1. USE OF TRUCKS BY DRIVERS WHILE OFF-DUTYProfessional truck drivers operating their trucks (unladen) for

personal reasons while on-the-road, and off-the-clock, is nothing

new. In fact, personal use (called “personal conveyance” or “PC”

by government regulators) is a common and accepted industry

practice. As a result, the ELD rules accommodate this type of off-

duty truck use. For employee drivers and company owned trucks,

it’s the carrier’s choice on whether it will allow use of PC. Does

your company have a policy allowing it? If so, does it need to be

updated? If not, should your company consider having a policy? Is

your company aware of FMCSA’s guidance on PC?

2. MOVING TRUCKS ON A YARDBefore 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

log. It was an honor system. ELDs will automatically capture every

truck move on a yard, and record it as driving time, unless the

driver pushes the “yard moves” button. If the yard moves button is

pushed, the ELD will record that time as on-duty not driving time

(line 4). If a mechanic or other non-driver moves a truck on a yard

(or on a highway to road test a truck), and doesn’t log in to the

ELD device, the ELD label the person as an “unidentified driver”,

and it will capture the time as “unassigned driving time.” Does your

company have a policy on non-drivers moving trucks on a yard, or

on the road? Does your company have a policy on whether non-

drivers, who move trucks on a yard/road, are given an ELD user

account? If not, you’ll need a policy.

3. UNASSIGNED DRIVING TIMEOne of the newer concepts with ELDs is “unassigned driving time.”

As mentioned in B above, ELDs will capture truck movement, even

if no one is logged in to the ELD. Each one of these “unassigned

driving time” events must be reviewed by the driver of that truck

during his/her next login, and that time must either be accepted or

rejected by the driver. If the driver rejects the time, the rules require

carrier staff to review all “unassigned driving time” events, and

assign them to the appropriate driver, or explain in a note on the

ELD record why it is unassigned. Does your company have a policy

and procedure on who will handle this responsibility? Does your

company have or need a policy designed to limit the number and

type of “unassigned driving time” events?

4. EDITING OF ELD RECORDSDrivers will make mistakes while using ELDs, and many of them

will be honest mistakes. The new rules accommodate this reality,

and allow both drivers and carrier staff to make needed edits. Does

your company have a policy regarding whether you prefer drivers

make needed edits, or company staff? Should you consider how

quickly edits must be made? What if a driver wants to edit his/her

ELD record days after it was submitted?

5. ELD MALFUNCTIONSELDs are computers, and computers can and do fail. When they

do, the ELD rules require drivers to notify the carrier in writing

within 24 hours, and default to a paper log during the malfunction

time- period. Also, the rules require malfunctioning ELDs be fixed

or replaced within 8 days. Companies may want to consider

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 Training

Updating Company Policies & Procedures – An Important Step in ELD Implementation

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maintaining a “safety stock” of backup ELDs which can be

swapped for malfunctioning units during the 8-day grace period.

Does your company have policies and procedure covering these

new requirements? What is the preferred company procedure for

drivers to communicate a malfunction in writing within 24 hours

(i.e., an email, a text message, listing it on a DVIR)? Who in the

company is responsible for working with your ELD vendor when an

ELD malfunctions? If your vendor cannot provide a solution within

8 days, who in the company is responsible for working with FMCSA

on an extension?

6. SAFETY & COMPLIANCE BONUSESIf you have a bonus program for drivers tied to safety and/

or compliance performance, does it address hours of service

compliance and ELD use? If not, should you consider it to help

facilitate driver acceptance of ELDs, and proper use?

7. DISCIPLINARY POLICIESPaper 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

10 or more hour off-duty between work shifts. Does your company

policy address this as well?

8. ANTI-HARASSMENTThe new ELD rules include language that strictly prohibits a carrier

from using information obtained from the ELD to force a driver to

violate applicable hours of service rules, or drive while either ill or

fatigued. This rule is separate and distinct from FMCSA’s anti-

coercion rule. Does your company have a policy designed to ensure

compliance with this new anti-harassment rule? And, if a driver

believes the company may be in violation of this rule, does your

company have a procedure in place to handle this type of driver

complaint? Are drivers aware of the process to file such complaints

with FMCSA?

This list is not exhaustive, and is intended to get carrier personnel

thinking about current policies and procedures that may need to

be updated, and new company policies that may be needed.

1 Training

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2 ELD-Specific Duty Statuses

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.

Personal Conveyance & ELDs – How Does It Work?

As a result, the Federal Motor Carrier Safety Administration

(FMCSA) included and accommodated this type of off-duty truck

use in its ELD mandate rule, and labeled it as one of two “special

driving categories,” along with truck moves in a yard. So, while PC

is not new, it’s garnered a fair amount of recent attention in the

trucking industry since it comes with new procedures under the

ELD rule. So, how does this longstanding practice work with ELDs?

Is it still considered off-duty time and, if so, how is it reflected on

the driver’s ELD record? And, can PC time be edited by the carrier

staff if it’s used improperly by a driver? Let’s take each one of these

questions in turn.

PERSONAL CONVEYANCE & ELD – HOW DO THEY WORK TOGETHER?Under the ELD rule, a carrier that allows its drivers to use their

trucks as a personal conveyance may configure the ELD to

provide this special driving category as an option. This means, in

most cases with most suppliers, the ELD software will include a

functioning PC ‘soft button’ on the display screen to give drivers the

ability to select this category of driving when they are off-duty, and

their truck is unladen. Keep in mind that, generally speaking, it’s

the carrier’s choice on whether it will allow use of PC. A carrier may

also choose to disable the PC button. [Note: this carrier choice gets

a little more complicated for carriers with owner-operators (i.e.,

independent contractors).]

MEETING FMCSA REQUIREMENTSWhen drivers meet the FMCSA criteria (and perhaps additional

company criteria) to use the PC category, they must first change

their duty status to “off-duty,” and then select PC using the soft

button on the display screen. At this point, when the truck starts

moving, the ELD will automatically capture and place this off-duty

driving time on line 1 of the ELD record (the off-duty line), and not

on the line 3 driving line. And, under the ELD rule, this off-duty

driving time must look different on the electronic record, that

is, it must be programmed by the supplier to be either a dotted,

dashed or shaded line so that it can be easily seen/viewed as off-

duty PC driving. When a driver is finished using the truck for PC,

the driver must deselect PC by again pushing a soft button on the

display screen.

WHAT NOW?Most drivers and companies will use the PC line as intended and

consistent with FMCSA’s longstanding guidance (i.e., short driving

distances, driver not under dispatch, has no work responsibilities,

is truly off-duty, and truck is unladen). However, it’s likely there

will be occasions when the PC line is used improperly by a driver.

When a carrier becomes aware of improper PC use by a driver,

an office person with ELD administrative rights will be able (and

is encouraged) to propose an edit to the driver, along with the

required annotation. If accepted, the edit will move the PC time

from the off-duty line (line 1) and properly place that time back on

the driving time line (line 3). This edit will help avoid potential false

log violations.

As mentioned, PC is a common and accepted industry practice

that will continue under the ELD rules. While the criteria for using

PC is not clearly spelled out in the ELD rule, FMCSA’s longstanding

PC guidance still applies. That guidance can be found here at

Question 26.

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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.

Yard Moves: Understanding ELD Mandate Rules

“AUTHORIZED PERSONAL USE” OF A COMMERCIAL MOTOR VEHICLE (CMV) AND “YARD MOVES”These two categories provide some needed flexibility by allowing

“authorized personal use” of a CMV to be electronically recorded

as off-duty time on line 1, when that category is allowed by a

company and selected by one of its drivers. And, the “yard moves”

category is authorized by the rules to be electronically recorded as

on-duty, not driving time on line 4.

It’s clear that much of the industry will use these categories

because they are both common and central to how the industry

operates. And, while the discussion (perhaps even debate) will

likely continue about just what is “authorized personal use” (more

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.

A yard could be limited by a trucking company to its own terminals

or company facilities. Or, a yard could be expanded beyond that

to include: ► a customer’s yard; ► a receiver’s facility; ► a maritime terminal; ► a rail ramp; ► a drop yard; or, ► any other similar location or facility

No matter how each trucking company defines a yard, and uses

the “yard moves” category, a critical item to address with drivers is

that they must remember to select and unselect the “yard moves”

category on the ELD for it to properly record the driving time on a

yard as on-duty, not driving time.


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The first thing many will notice is the ability of drivers to use the

PC status even if the CMV is laden. This new, and significantly

longer guidance replaces the Agency’s advice and direction of

the topic originally issued way back in the mid-1990s. It’s likely to

be more helpful than past guidance since it provides examples to

drivers, carrier safety personnel and the enforcement community

that are designed to help determine if a “…movement of a CMV

is an appropriate off-duty use.” A link to FMCSA’s new guidance is

provided at the bottom of this article. Below are FMCSA’s examples

of what it calls “appropriate uses” of a CMV while off-duty for PC:

1. Time spent traveling from a driver’s en route lodging (such as a

motel or truck stop) to restaurants and entertainment facilities;

2. Commuting between the driver’s terminal and his or her

residence, between trailer drop lots and the driver’s residence,

and between work sites and his or her residence;

3. Time spent traveling to a nearby, reasonable, safe location to

obtain required rest after loading or unloading. The resting

location must be the first such location reasonably available;

4. Moving a CMV at the request of a safety official during the

driver’s off-duty time;

5. Time spent transporting personal property while off-duty; and,

6. Authorized use of a CMV to travel home after working at an

offsite location.

Numbers 3 & 4 above are likely to be welcomed by many

professional drivers since they address commonly encountered

situations with shippers, receivers and law enforcement officials

in some States. Examples of uses of a CMV that, according to

FMCSA, “would not qualify” as PC, are:

1. The movement of a CMV in order to enhance the operational

readiness of a carrier. For example, bypassing available resting

locations in order to get closer to the next loading or unloading

point or other scheduled carrier destination;

2. After delivering a towed unit, and the towing unit no longer

meets the definition of a CMV, the driver returns to the point

of origin under the direction of the carrier to pick up another

towed unit;

3. Continuation of a CMV trip in interstate commerce in order to

fulfill a business purpose, including bobtailing or operating with

an empty trailer in order to retrieve another load or repositioning

a CMV (tractor or trailer) at the direction of the carrier;

4. Time spent transporting a CMV to a facility to have

maintenance performed;

5. After being placed out of service for exceeding the maximum

periods permitted under Part 395, time spent driving to a

location to obtain required rest, unless so directed by an

enforcement officer at the scene; and,

6. Time spent traveling to a motor carrier’s terminal after loading

or unloading from a shipper or a receiver.

While FMCSA’s new guidance is clearly intended to help drivers better understand the PC operating status, and when it can be legally used, the Agency also makes clear that carriers can establish “personal conveyance limitations either within the scope of, or more restrictive than, this guidance, such as banning use of a CMV for personal conveyance purposes, imposing a distance limitation on personal conveyance, or prohibiting personal conveyance while the CMV is laden.” In other words, carriers still have discretion on whether, and what, it will allow for PC use by employee drivers.

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.

FMCSA Issues “New & Improved” Guidance on Personal Conveyance Operating Status

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In 2012, when Congress passed a law requiring the USDOT to

mandate ELD use by professional truck drivers, they recognized

that many drivers operate locally, they don’t work long hours and,

as a result, they don’t complete a daily paper log. This recognition

led Congress to allow the USDOT to exempt from the ELD mandate

‘short haul’ drivers not required to complete a daily paper log. But,

as simple as that may sound, the application of this paper logbook

exception to the ELD mandate got a bit more complicated when it

came to ‘rule writing’ time at FMCSA.

BREAKING DOWN THE RULESFMCSA realized that many short haul drivers who regularly operate under the 100 air-mile radius exception** are also faced with a common trucking reality—that is, any given load may take a driver outside the 100 air-mile radius, or the delivery location coupled with 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.During ELD rule-writing time, FMCSA had to answer the following question—how many times may a driver operate outside of the 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.

HERE’S WHAT YOU NEED TO KNOWBut, after FMCSA published its ELD mandate rules, an important question remained unanswered. That is, if a driver operates outside the 100 air-mile radius exception** for 9 or more days within any 30-day period, how long must this short haul driver use an ELD when operating his/her truck in the future. Forever? For a year? For a month? Until the cows come home? In March, 2017, in response to an industry inquiry, FMCSA answered this question in writing with the following, short response: “Yes, the driver can return to recording his/her records of duty status on a paper log when the operation 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 days. As soon as the driver is back within the “not more than 8 days within any 30-day period” rule, he/she can return to using a paper log. If it helps, think of this new ‘8 days within any 30-days’ rule just as you would think of the ’70 hours in any 8-day period’ rule.

** Note: There is also a similar 150 air-mile radius exception from paper logs for

non-CDL drivers. FMCSA’s new ‘8 days within any 30-days’ rule also applies to

drivers regularly operating under the 150 air-mile 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.”

Deeper Understanding – Interaction of ELD and The 100 Air-Mile Radius Exception

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3 Enforcement

ROADSIDE ENFORCEMENT AND THE OUT-OF-SERVICE CRITERIA (OOS CRITERIA)FMCSA and its State enforcement partners are preparing materials

and conducting training for their compliance and enforcement staff.

For State and Canadian Provincial enforcement, the Commercial

Vehicle Safety Alliance (CVSA), an organization dedicated

to improving the uniformity of roadside CMV inspection and

enforcement efforts in North America, recently added ELD-related

information to its “North American Standard Out-of-Service Criteria”

(OOS criteria), the pass-fail criteria for driver and vehicle inspections.

The purpose of the OOS criteria is to identify critical violations

that render the driver, vehicle and/or cargo out of service until the

condition(s) or defect(s) can be corrected or fixed.

A CLOSER LOOK AT VIOLATIONSIn 2017, CVSA added ELD violation information to its OOS criteria. To do this, CVSA reviewed existing paper logbook violations, and added information explaining how these OOS logbook violations will be enforced on drivers with ELDs. These CVSA explanations are provided in the table below. Keep in mind that the violations included in the table are only those that will result in an OOS order. There are other ELD-related violations that could be cited during a roadside inspection, but would not result in the driver being placed OOS. For example, these include missing ELD record information such as a shipping document number, a truck or tractor identification number, or a trailer number. These non-OOS violations will not be included in CVSA’s OOS criteria.

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.

A Glimpse Into Roadside Enforcement of the ELD Rules

Paper Logbook Out-of-Service Violation

Corresponding ELD Out-of-Service Violation

No record of duty status (i.e., log)

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

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

False logIf 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 previous seven (7) days of logs

If a driver with a malfunctioning AOBRD or ELD fails to reconstruct logs for the current 24-hour period and the 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

1.

2.

3.

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3 Enforcement

THE EXEMPTION & ITS EFFECTIVE DATEFMCSA’s decision provides a “limited exemption” for the driver and

carrier of a CMV rented for 8 days or less, regardless of the reason

for the rental. The exemption is effective on October 11, 2017, and is

available for 5 years through October 11, 2022.

THREE BASIC CONDITIONS REQUIRED FOR USE OF THE EXEMPTION1. Drivers must have a copy of the FMCSA exemption notice in

their possession while operating the rental CMV, and must

present it to law enforcement upon request. The Notice can be

found and printed from this page on the FMCSA website.

2. Drivers must have a copy of the rental agreement in the rental

CMV, and must present it to law enforcement upon request. The

agreement must clearly identify the parties to the agreement,

the vehicle, and the dates of the rental period.

3. Drivers must possess copies of their paper logs for the current

day, and the prior 7 days (if required on those days).

A CLEAR & CONCISE PROHIBITIONFMCSA makes clear that any evidence a carrier has replaced one

rental CMV with another on 8-day cycles, or attempted to renew a

rental agreement for the same CMV for an additional 8 days, will be

regarded as a violation of the exemption, and subject the carrier to

penalties for failure to use an ELD.

UNIFORM ENFORCEMENT THROUGH STATE PREEMPTIONFMCSA’s notice also makes clear that during the 5-year period

this exemption is in effect, no State “shall enforce any law or

regulation applicable to interstate commerce that conflicts with or

is inconsistent with this exemption with respect to a firm or person

operating under the exemption.”

AN ACCIDENT REPORTING REQUIREMENTCarriers must notify FMCSA via email (at [email protected]) within

5 business days of any DOT-recordable accident involving any of

its drivers operating under this rental truck ELD exemption. In its

notice at the link above, FMCSA specifies 11 different items that

must be reported to the Agency (e.g., date, location, driver’s name

and license number, etc.)

NOT SURE WHICH TRUCKS ARE IMPACTED?While the exemption and its conditions are fairly clear on their

face, there will likely be questions posed by carriers and drivers, as

has been the case for most parts of the ELD mandate rules. It’s a

good idea to check FMCSA ELD website regularly for the Agency’s

responses to the inevitable questions about application of this

exemption. For example, someone is likely to pose a question

concerning use of the exemption for the first 8 days of a 30-day

rental agreement.

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.

Short-Term Rental Trucks and ELDs

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3 Enforcement

During the first week of April 2018, CVSA staff learned that some inspectors did not fully understand when they should place a driver out-of-service if the driver’s ELD failed to electronically transfer the hours-of-service record during an inspection. One of the main reasons for the lack of certainty on the part of some roadside inspectors was language or, maybe better described as lack of language, in CVSA’s w“ELD Inspection Bulletin.” CVSA finalized that Bulletin in December 2017, and widely distributed it to the 12,000+ inspectors in North America at that time.

Under the “Electronic Data Transfer” section, there was only one sentence that briefly described the electronic data transfer requirement in FMCSA’s rules. This sentence, and the lack of understanding of it by some inspectors, likely resulted in some drivers being placed out-of-service in early April, even when there was a good reason for an electronic data transfer failure (e.g., there was no network available at the location).

To their credit, CVSA staff realized that clarifying language was needed in the Bulletin, and brought it to the attention of the membership at the Portland conference. A small committee was quickly assembled on-site to draft additional, clarifying language for the Bulletin, which was then approved by the committee of jurisdiction, followed by a favorable vote of the CVSA Board on April 13, 2018. The ELD Inspection Bulletin now contains the following, more comprehensive language designed to provide more clarity on 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.

The primary method to verify a driver’s hours-of-service is electronic data transfer.

► Telematics (web services and email); or ► Local (USB and Bluetooth)

If the data transfer does not work, use the display screen of the ELD or a print out from the ELD to verify the driver’s hours of service.

Note: Retrieve instruction manual/ instruction sheets from the driver or the FMCSA ELD registration list describing the ERODS transfer process.”

Three final thoughts about this recent CVSA action:

1. It demonstrates the value of CVSA, and sheds light on its ability

to gather information on enforcement-related issues and

address them in a timely fashion;

2. It should result in greater inspector awareness and more

uniform enforcement of the ELD mandate throughout North

America; and,

3. The updated Bulletin can be used as a training tool by carriers

to further educate drivers on the ELD data transfer process, and

under what circumstances an out-of-service order will issued.

For more information from the CVSA, you can access the updated “ELD Inspection Bulletin” here.

CVSA Updates ELD Inspection Bulletin… For The Benefit of All

13

CVSA Updates ELD Inspection Bulletin… For The Benefit of All

3 Enforcement

This raises an interesting question: what happens if this same driver is discovered during a subsequent roadside inspection (in the same State or in a different State/Province) to again be operating without an ELD? This question about ‘repeat ELD offenders’ was the subject of an interesting discussion/debate at CVSA’s recent Spring 2018 conference and workshop in Portland, OR.

Currently, there is no additional OOS provision for repeat ELD offenders, and some believe there should be. At the Portland conference, representatives from two states pushed for an amendment to the OOS criteria that would require repeat ELD offenders to remain at the inspection location until a compliant ELD is installed in the truck. These State representatives argued that, without this type of additional OOS provision, repeat offenders could continue to be dispatched and, if inspected, they would simply serve the mandatory 10-hour OOS period, and continue to operate until they were inspected again. In effect, these State officials argued that the only way to change the non-compliant ELD behavior of repeat offenders (drivers and carriers) is to force the on-site installation of an ELD.

Some in the meeting supported the idea as a means to change 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.

Some also questioned whether this might be a theoretical concern that wouldn’t play out in reality. An FMCSA representative reacted to the proposal by stating that the Agency is planning to regularly generate internal reports to determine whether there are repeat ELD offenders. If discovered, the carriers would be placed at or near the top of FMCSA’s on-site compliance review list. This FMCSA official also encouraged State and Provincial officials to communicate directly with FMCSA officials when repeat ELD offenders are discovered during roadside inspections, which will also help FMCSA prioritize ELD non-compliant carriers for on-site interventions, potential civil penalties, and perhaps even criminal investigations.

Following the lively and interesting discussion, the Chairman of the committee (where the proposal was raised) tabled the proposal. In tabling it, he requested that the FMCSA representative bring data to the next CVSA meeting in September 2018 reflecting (1) the number of repeat ELD offenders identified by FMCSA, and (2) the number of carriers prioritized for compliance audits based on the data. The FMCSA official agreed to do so. This data will likely drive another discussion of the proposal in September, and could result in change in the ELD portion of the OOS criteria. If FMCSA’s internal monitoring and reports find that repeat ELD offenders are a significant problem, CVSA action before September is possible.

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.

Repeat ELD Offenders – How Will CVSA Roadside Inspectors & FMCSA Handle Them?

14

3 Enforcement

WHAT IS DATAQS?DataQs is an online, electronic system designed for CMV drivers and motor carriers to file challenges to Federal and State truck and bus safety data (e.g., roadside inspection or crash-related data) released to the public by FMCSA. The DataQs system is an FMCSA system that automatically forwards data challenges to the appropriate Federal or State office for review and resolution.

MUST I REGISTER TO USE DATAQS?Yes, to use DataQs, you must register and create an account. If you have not done so, go to https://dataqs.fmcsa.dot.gov and first create an “FMCSA Portal Account.” Once created, you can login to your portal account to use DataQs.

HOW DO I SUBMIT A CHALLENGE USING DATAQS?1. On the main “My DataQs” page click on the orange “Add a

Request” button.

2. On the “Add a Request – Step 1” page, click on “Inspections/

Violations” under the “Roadside” category; to go to the next

page, click on “Next” at bottom right.

3. On the “Add a Request – Step 2” page, click on “Violation

is incorrect, listed multiple times, or missing Intermodal

Equipment Provider (IEP)/shipper information”; to go to the

next page, click on the “Next” at bottom right.

4. On the “Add a Request – Step 3” page, read the information

presented then click on the “Next” at bottom right.

5. On the “Add a Request – Step 4” page, you must enter

information from the inspection report that you’re challenging.

Enter information in the “Report Number” date fields and, if

the inspection report is in the FMCSA system, much of the

page should be automatically populated with information. You

will also need to manually enter some requested information,

and provide a brief explanation of why you’re challenging the

violation. Once fully completed, click “Enter Violation”, and then

the “Next” button at bottom right.

6. On the “Add a Request – Step 5” page, read the information,

and then attach any documents you have that support your

challenge. Click the “Next” button at bottom right.

7. On the “Add a Request – Step 6” page, review the

information and, if correct, confirm your request (i.e, your

challenge) by clicking the orange “Submit” button. You will

receive a confirmation email that the request has been

properly submitted.

WHAT HAPPENS NEXT, AND HOW LONG WILL IT TAKE?Your request will be automatically routed to the correct State for action. FMCSA’s goal for a response time is 10 business days.

Depending on the State, the number of requests in the queue in that State, and the complexity of your request, it could take longer than 10 business days for it to be handled, and a decision rendered.

If you’re logged in to the DataQs system, you can view the status of your request/challenge on the “My DataQs” dashboard. There are numerous ‘status’ types a user might see as a request moves through the review process. Examples of the status include: “Open – In Review,” “Open– Pending Officer Comments,” “Open – Pending Court/Administrative Comments,” “Closed – No Data Correction Made,” and “Closed – Data Correction Made.” These are examples, and there are several other status types.

You will receive email notifications each time the status of your request changes, and when a decision is made and your request is closed.

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.

15

3 Enforcement

NOW, WHAT’S THE PROCESS FOR REQUESTING AN EXTENSION OF THE 8-DAY REPAIR OR REPLACE WINDOW?1. Per Sec. 395.34(d), you must submit a request, within 5 days

of a driver notifying you of the ELD malfunction, to the FMCSA

Division Administrator in the State where you maintain your

principal place of business (for FMCSA compliance purposes).

A State-by-State list of FMCSA offices, including address and

phone number, is found at this link: https://www.fmcsa.dot.gov/

mission/field-offices

2. Your request must include:

a. The motor carrier name, your name, company address and

company phone number.

b. The make, model and serial number of each malfunctioning

ELD.

c. The date and geographical location of each ELD

malfunction, as reported by your driver to you.

d. A short statement describing the actions you’ve taken

to make a ‘good faith effort’ to repair, replace or service the

broken ELD(s), including why you need additional time. A

good description of your good faith effort is critical.

3. There is no FMCSA form for making this request. It can be made

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.

WHAT HAPPENS NEXT1. Whether your request is granted or not, the FMCSA will email you

a short letter.2. According to FMCSA’s rules, this letter is a “final agency action,”

which means there is no appeals process.3. If your request is granted, the letter will likely include a

requirement that your driver carry a copy of the letter in the truck with the malfunctioning ELD, and that you keep a copy of the letter at your place of business.

4. If your request is granted, there is no requirement for you to notify FMCSA when your ELD is repaired or replaced (unless the FMCSA letter includes that condition, which is unlikely).

WHAT HAPPENS IF FMCSA DOESN’T QUICKLY RESPOND TO MY REQUEST FOR A TIME EXTENSION?It is almost certain that some FMCSA offices won’t be able to quickly respond to extension requests. Fortunately, Section 395.34(d)(5) of FMCSA’s rules says that if a carrier’s extension request is timely filed and complete, then they are “deemed in compliance” until FMCSA makes an extension determination. This section clearly anticipates that there will be times when an FMCSA office won’t be able to respond within the 8-day period.

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.

How Do I Request a Time Extension to Repair or Replace a Malfunctioning ELD?

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4 AOBRDs v. ELDs

AOBRDs v. ELDs – Highlighting Some Differences

DEVICE FUNCTIONALITY AOBRDs ELDs

“Integral Synchronization” with Vehicle

Required but term is not defined in FMCSA rules

Integral synchronization required. ELD must interface with CMV engine control module to automatically capture engine power status, vehicle motion, miles driven, engine hours. (CMVs older than MY 2000 exempted)

Recording CMV LocationRequired at each change of duty status. Manual or automated

Automated entry required at each change of duty status, at 60-minute intervals while CMV in motion, at engine on and off, and at beginning and end of personal use and yard moves

Graph Grid DisplayNot required. Only time and sequence of duty status changes must be shown, including starting time of each day

Required. Must be able to show a graph grid of driver’s day either on display or on a printout

HOS Advisory or Warning Messages

Not required or addressedNot required. “Unassigned driving time/miles” warning must be provided upon login

“Default” Duty Status Not required or addressed

On-duty not driving status, when CMV has not been in-mo-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

Communication/ Data Transfer Methods to Law Enforcement

Not addressed – some interface between AOBRD support system and printer

Required. Two Options:

1. Telematics-must transfer data via both wireless web services and wireless email

2. Local Transfer-must transfer data via both USB 2.0 and Bluetooth. Both types of ELDs must be capable of displaying standardized ELD data set to authorized safety officials via display or printout

Resistance to Tampering

AOBRD and support systems must be tamperproof to maximum extent practical

Must not permit alteration or erasure of original information collected concerning driver’s record, or alteration of the source data streams used to provide that information. ELD must support data integrity check functions

Sensor Failures and Edited Data

Must identify sensor failures and edited data

Must have capability to monitor its compliance (engine connectivity, timing, location, etc) for detectable malfunctions and data inconsistencies. ELD must record these occurrences.

Information originally compiled by Scopelitis Transportation Consulting, LLC

17


4 AOBRDs v. ELDs

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


18

4 AOBRDs v. ELDs


OPERATIONAL & MISCELLANEOUS ISSUES AOBRDs ELDs

“Unassigned Driving” Time Not required or addressedMust be captured and driver must approve or reject at time of login. If rejected, back office staff must reconcile and retain

“Special Driving Categories - Yard Moves”

Not required or addressed by rule. Market has resulted in vendor inclusion in AOBRDs

Defined under new “special driving categories” section. If used, must be selected and deselected manually by driver, 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 Categories – Authorized Personal Use” of CMV

Not required or addressed by rule. Market has resulted in vendor inclusion in AOBRDs

Defined under new “special driving categories” section. If used, must be selected and deselected manually by driver, is shown on graph grid as driving time but is, by definition, “off duty” time. Carrier may elect not to use special category

Driver Edits Not required or addressedEditing function must be provided to driver for mistakes. All edits must also be “annotated.” Driving time may not be edited by driver.

Office Support Staff Edits Not required or addressedEdits by office staff allowed. All edits must be “annotated” and all office staff edits are pending until accepted by driver.

Driver Certification of Daily Record

Not required or addressedRequired driver certification after the final required entry has been made or corrected for each 24-hour period.

User AccountsNot required or addressed. Market has resulted in user IDs and passwords

Unique username (and other required driver information) required for all authenticated drivers/users.

Device Malfunctions – Time Period to Repair or Replace

Not addressed

Driver must notify company in writing within 24 hours of device malfunction. ELDs must be repaired or replaced by company within 8 days. Driver must revert to paper logs during ELD malfunction period.

Device Registration & Certification

Not addressed

All ELDs must be registered with FMCSA, and self-certified by each vendor as compliant. Registered and certified ELDs are listed on FMCSA ELD website. Carriers may only select and use certified ELDs.


TRANSFORMING THE WAY THE WORLD WORKS

UNITED STATESTrimble Transportation4400 Baker RoadMinnetonkaMN 55343-8684

CANADATrimble Transportation1100 Burloak DriveSuite 300 BurlingtonOntario Canada L71 6B2

CONTACTPhone: +1-888.346.3486Fax: +1-952.908.6129Email: [email protected]: 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.

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