ELD mandate takes effect in three months, ready or not

WASHINGTON — Ready or not, the federal electronic logging device mandate becomes a reality on December 18.

Despite some last-ditch efforts to delay the rule, “There will not be any further delays. That is my belief,” said John Gaither, regional sales manager for GPS Insight, an electronics vendor in High Point, N.C.

Gaither, who led an education session on ELD selection and usage at UMA Motorcoach Expo in St. Louis last February, has worked in the industry since 1990.

“The ELD requirement is a major change and many operators are still trying to grasp it while many are just hoping there is a delay,” said Ken Presley, vice president of industry relations and chief operating officer at the United Motorcoach Association. “While we have had many inquiries here at UMA, nobody has asked us to support a delay and even as the final rule was going through the rulemaking process we did not receive any opposition to an ELD mandate.”

Court challenges have been exhausted. A bill filed in the U.S. House of Representatives in July that would have delayed implementation of the ELD rule for two years was defeated by a House committee last week.

It is uncertain whether the electronics industry will be able to supply enough ELDs to equip the two to three million commercial motor vehicles covered by the mandate.

“Considering you can comply with the rule by buying tablets and downloading software, it seems unlikely that vendors will run out of inventory or capacity,” Presley said.

Gaither added, “We believe the real constriction in the funnel will be the availability of adequate professional installation labor.”

Larger carriers appear to be more proactive in outfitting fleets in advance of the deadline.

All 3,700 coaches in the Coach USA/Megabus fleets should be compliant by late October, said Mike Waters, service delivery director based in Moss Beach, Calif.

“The first installations and go-live were done about April last year,” Waters said. “Driver acceptance has been very positive.”

But some motorcoach operators who are not technically inclined might have to scramble to meet the deadline.

“We estimate that approximately 30 percent of UMA members have installed ELDs or AOBRDs (automatic on-board recording devices),” Presley said. “Based on the calls we are receiving that number should be increasing daily.”

Still some confusion

Mary Presley, executive administrator of the Maryland Motorcoach Association, said there is still some confusion, especially among the smaller operators.

“Some are even under the impression that FMCSA is not going through with the deadline,” she said. “There have been a few comments that equipment is harder to acquire as suppliers scramble to fill the orders.”

Selection of an ELD supplier is a vexing dilemma. By mid-August, about 90 vendors had registered with FMCSA as “self-certified by the manufacturer” on the agency’s ELD website, https://csa.fmcsa.dot.gov/ELD/List.

While the companies and their contact information are listed on the site, it states at the top of the list, “The Federal Motor Carrier Safety Administration does not endorse any electronic logging device.”

About a dozen vendors have significant experience in the ELD business, Gaither said.

“The vast majority (of companies) are new to this business. There really aren’t that many established companies out there. A lot of these companies have no customers. We think there is going to be a significant level of buyers’ remorse in the next 12 months.”

In July, FMCSA posted on its website a “validator tool” that vendors can use to verify that their ELD devices can transfer data files to the portable computers of law enforcement officials.

“The entire industry had been waiting on FMCSA to release the testing procedure,” Gaither said. “There has been a long wait. They wanted all of us to do it and have given us no time to do it.”

Some vendors have delayed their self-certification listing on the FMCSA site until they could work with the validator tool.

“We have taken a very conservative approach because we wanted to do the validation testing,” Gaither said.

FMCSA administrators have made it clear that they will not be evaluating or certifying device vendors.

“FMCSA is not testing anybody and will not validate any certification for a long time,” Gaither said. “They will not start on that until next year, and then only if an inspector finds a problem or if an unsatisfied customer complains long and loudly.”

FMCSA issued its final ELD rule on Dec. 16, 2015, with the goal of reducing accidents caused by driver fatigue and hours-of-service violations. The 126-page document published in the Federal Register described the reasoning, legal grounds and technical details for requiring automated record-keeping for commercial bus and truck drivers who are required to prepare hours-of-service records of duty status.

“This rule improves commercial motor vehicle (CMV) safety and reduces the overall paperwork burden for both motor carriers and drivers by increasing the use of ELDs within the motor carrier industry, which will, in turn, improve compliance with the applicable HOS rules,” the filing stated. “Under today’s rule, FMCSA estimates 1,844 crashes avoided annually and 26 lives saved annually.”

The agency estimated the rule’s industry costs at around $2.2 billion. Due to $3.1 billion in savings from reduced crashes and paperwork, total benefits were placed at $850 million.

The announcement set the rule’s compliance date at Dec. 18, 2017.

The Owner Operator Independent Driver’s Association (OOIDA) filed suit against the mandate, arguing, “(a) ELDs will not record enough information automatically; (b) the rule fails to protect drivers sufficiently from harassment; (c) the rule’s benefits will not outweigh its costs; (d) the rule fails to protect the confidentiality of personal data collected by ELDs; and (e) the rule violates the Fourth Amendment’s prohibition against unreasonable searches and seizures.”

The OOIDA effort reached the U.S. Supreme Court, which announced June 12 that it would not consider the association’s petition to hear a case against the ELD mandate. That appeal followed the Oct. 31, 2016, rejection of the OOIDA challenge from the U.S. Court of Appeals for the Seventh District.

Congressional action

The independent truckers vowed to continue their battle in Congress. On July 19 U.S. Rep. Brian Babin, R-Texas, introduced the ELD Extension Act of 2017. The bill, co-sponsored by 38 Republicans, would delay the ELD rule compliance date until December 2019. It was referred to the House Committee on Transportation and Infrastructure. No other action has been taken.

“While technology like ELDs have great promise, I didn’t come to Washington to force those ideas on small businesses — and neither did President Trump,” Babin said in a press release. “If trucking companies want to continue implementing and using ELDs, they should go right ahead. But for those who don’t want the burden, expense and uncertainty of putting one of these devices into every truck they own by the end of the year, we can and should offer relief.”

The American Trucking Associations, a heavyweight in the transportation lobbying arena, wrote a letter to FMCSA on July 21 urging it to “oppose any effort to delay the December implementation of the fully-litigated, widely debated and Congressionally mandated use of electronic logging devices. Supporters of a delay are attempting to accomplish, at the 11th hour, what they’ve been unable to do in the courts, Congress or with the agency: roll back this common sense, data-supported regulation based on at best specious and at worst outright dishonest arguments.”

Waters said Coach USA and Megabus benefited greatly from the early start on installations.

“Finding a few key mentor drivers to push the positives for the other drivers was an important part of it,” he said. “Also, while we ran ELD and logs to begin with, our operations or safety people monitored driver performance, coached the drivers and judged when the driver was allowed to drop the logbooks.”

As for other carriers, “Those who are already in compliance are comfortable with their decision to be proactive in their company versus reactive at the last minute,” said Mary Presley of the Maryland association.

Deep breath

Gaither said carriers need a minimum of four to five weeks to install devices and train drivers and staff.

“It is more a question of motivation and dedication than anything else,” he said. “Others will take longer due to lack of resources and lack of effort.”

Elaine Farrell, executive director of the Pennsylvania Bus Association, said most member companies are reporting good experiences with ELDs.

“I don’t know of any procrastinators at the moment,” Farrell said. “They are going to have a rude awakening when December comes and they have not purchased ELDs and had them installed.”

Concerns about the lack of computer savvy among drivers have been overblown, Gaither said.

“He is driving a half-million-dollar vehicle with 55 passengers. If he can’t learn how to use this system in five weeks, why are you letting him drive your motorcoach?

“Take a deep breath. It is going to be okay.”

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