Truckload Authority - Winter 2015-16

CapItol recap
A review of important news coming out of our nation’s capital.
By Lyndon Finney and Dorothy Cox
ELD rule final
A fter more than seven years of efforts that
included a controversy, lawsuits and Congressional
intervention, the commercial vehicle industry finally
has been issued the long-awaited mandate.
Beginning December 16, 2017, all commercial
motor vehicles operated by drivers who are subject
to maintaining a record-of-duty status (RODS) must
be equipped with an electronic logging device (ELD)
per the Federal Motor Carrier Safety Administration’s
Final Rule on Electronic Logging Devices and Supporting
Documents.
To ease the burden on carriers and independent
contractors who have already installed a device that
satisfies the regulatory burden of an automatic onboard
recording device (AOBRD), but does not necessarily
satisfy the regulatory burden of an ELD, the
final rule includes a grandfather clause giving them
an extra two years to comply.
The Department of Transportation first started
talking about the need for commercial vehicles to be
equipped with some type of electronic logging device
in late 1994, but it wasn’t until 2007 that the
effort really left the starting block.
That was the year the FMCSA first began floating
the idea of requiring companies determined to
be non-compliant with Hours of Service to equip
their trucks with what were then called electronic onboard
recording devices (EOBRs).
On January 18, 2007, the FMCSA issued a Notice
of Proposed Rulemaking that would require
truck and bus companies with serious patterns of
Hours of Service violations to install EOBRs; it also
offered incentives for the voluntary installation of the
devices by motor carriers.
Controversy swirled around that NPRM for
months, with lawmakers and safety advocates calling
for an industry-wide mandate instead of what the
FMCSA had proposed, but nothing was ever put on
paper.
When the Bush administration left office without
issuing a final rule, the Obama administration took
up the mantle and on April 5, 2010, issued a final
rule, saying that it estimated that 5,700 carriers
would have to install EOBRs.
However, the Owner-Operator Independent Drivers
Association filed suit against the final rule on
June 3, 2010, claiming FMCSA failed to address the
issue of driver harassment.
In August 2011 the U.S. Court of Appeals for the Seventh
Circuit sided with OOIDA, declaring that EOBRs could
be used to harass drivers and vacated the entire 2010 rule.
Over the intervening next few months, there was
a lot of talk coming out of FMCSA about EOBRs, but
nothing concrete.
Congress got fed up with the lack of action and
when lawmakers passed MAP-21 in mid-2012, it
mandated the FMCSA to come up with a new rule regarding
the use of what were by this time called electronic
logging devices (ELDs) by October 1, 2013.
The FMCSA missed the deadline by six months, issuing
in April 2014 a Supplemental Notice of Proposed
Rulemaking mandating use of ELDs by all carriers.
And on December 11, 2015, that rulemaking became
final.
“Obviously, it’s a long-awaited rule. I don’t often
like to quote another source but I think that source
hit it on the head calling it ‘a legally sustainable electronic
logging device rule,’” said Dave Heller, director
of at the Truckload Carriers Association. “I think
that’s the biggest thing right now, the idea of it being
legally sustainable because that’s what got us here
in the first place,” he said in reference to the OOIDA
lawsuit.
In a statement, the FMCSA predicted the new
rule will improve roadway safety by employing technology
to strengthen commercial truck and bus drivers’
compliance with HOS regulations that prevent
fatigue.
The FMCSA said the monetary benefits of the
rule will be $3 billion with a net benefit of $1 billion.
The agency estimated the cost of carriers purchasing
and installing the ELDs at just over $1 billion.
On an annual average basis, the rule is estimated
to save 26 lives and prevent 562 injuries resulting
from crashes involving large commercial motor vehicles,
the agency said.
According to the agency, the new rule adequately
addresses previous concerns about harassment.
FMCSA said the new rule strictly prohibits commercial
driver harassment. It provides both procedural
and technical provisions designed to protect
commercial truck and bus drivers from harassment
resulting from information generated by ELDs, the
agency said, noting that a separate rulemaking released
last month is designed to further safeguard
commercial drivers from being coerced to violate
federal safety regulations and provides the agency
with the authority to take enforcement actions not
only against motor carriers, but also against shippers,
receivers and transportation intermediaries.
In addition to the harassment issue, FMCSA said
other main elements of the ELD Final Rule include:
• Requiring commercial truck and bus drivers
who currently use paper logbooks to maintain HOS
records to adopt ELDs within two years. It is anticipated
that approximately three million drivers will be
impacted.
• Setting technology specifications detailing performance
and design requirements for ELDs so that
manufacturers are able to produce compliant devices
and systems — and purchasers are enabled to
make informed decisions.
• Establishing new HOS supporting document
(shipping documents, fuel purchase receipts, etc.)
requirements that will result in additional paperwork
reductions. In most cases, a motor carrier would not
be required to retain supporting documents verifying
on-duty driving time.
In developing the ELD Final Rule, FMCSA relied
on input from its Motor Carrier Safety Advisory Committee,
feedback from two public listening sessions,
comments filed during an extended comment period
following the 2011 proposed rule, and comments to
the 2014 supplementary proposed rule.
The rule permits the use of smartphones and other
wireless devices as ELDs, so long as they satisfy
technical specifications and are certified. Canadaand
Mexico-domiciled drivers will also be required to
use ELDs when operating on U.S. roadways.
There are three exceptions to the all-carrier mandate:
• Drivers who use paper RODS for not more than
eight days in any 30-day period.
• Drivers who conduct drive-away or tow-away operations
where the vehicle being driven is the commodity
being delivered.
• Drivers of vehicles manufactured before model
year 2000.
“We as an industry and as an association have
not been shy about wanting and expecting the rule
for several years now,” Heller said. “We were hoping
to get this rule last year and the year before that
but again the court of appeals basically eliminated
that from happening, which brought us to where we
are today, a rule that combats driver coercion and
harassment, helps carriers in compliance with HOS
regulations as well as easing the burden of supporting
documents.”
Heller said the fact that the FMCSA will list compliant
equipment will go a long way to helping combat
fraudulent equipment that exists in the marketplace.
“Our carriers have seen ads all over the place
with faulty pieces of equipment that advertise themselves
as being FMSCA-compliant and until that list
becomes available, there really isn’t an FMCSAcompliant
piece of equipment until FMCSA approves
it. So that will also be a good thing.”
Heller pointed out that a lot of the equipment
costs included in the benefits section of the rule had
already been invested by the industry in a step forward
as a precursor to the new rule.
“Carriers knew what to expect when the rule first
came down the pike (as a SNPRM). A lot of carriers
have either started down this road or have fully
adopted this rule and it goes a long way to having
the backs of those carriers who have done this and
the majority of those are TCA members.”
10 Truckload Authority | www.Truckload.org TCA 2015-16 T