The Electronic Logging Device (ELD) Controversy

[kscarbel2]

Trump’s Nominee to Lead FMCSA Backs ELD Mandate

Transport Topics  /  October 31, 2017

WASHINGTON — The nominee to become the country’s top trucking regulator said he would review potential hardships an upcoming mandate on electronic logging devices could have on smaller carriers, while ensuring the agency he would oversee would carry out the mandate.

“I would look forward to working with industry and all stakeholders: safety, advocates and particularly impacted sectors of commerce,” Ray Martinez, picked by President Donald Trump to lead the Federal Motor Carrier Safety Administration, told the Senate Commerce Committee on Oct. 31.

“I’ve heard that this rule could cause serious hardship to some small independent truckers, particularly those working in the agricultural sector. So I’d want to meet with those involved in those areas who oppose the rule to learn more about their concerns,” he added, reaffirming the administration’s position on a mandate that has pitted large carriers in favor of ELDs against smaller trucking operators who oppose the devices.

Martinez, who is chief administrator of the New Jersey Motor Vehicle Commission, went on to explain to N.J. Sen. Cory Booker (D) that ELDs are necessary for promoting accurate record-keeping of a trucker’s on-duty hours of service. As he put it, “What we experienced in the past was that it was paper-based, which means it was very susceptible to fraudulent entries.”

The mandate was advanced by Congress several years ago. Lawmakers followed up with FMCSA to ensure it would be finalized. The rule requires carriers to equip their trucks with ELDs starting Dec. 18.

Regulators have traveled the country to explain the rule to truckers and executives.

American Trucking Associations and other industry groups have emphasized they are ready execute the mandate. At his state of the industry address Oct. 23, ATA President Chris Spear said, “This issue has been legislated, promulgated and litigated. And it is now time to move forward.”

Opponents continue to press for a delay to the mandate, arguing ELDs would add to costs and violate their privacy.

Martinez also told Booker that it was critical for regulators to examine the role fatigue plays in highway crashes. And, he argued data analytics could be a useful tool for enhancing safety.

“We have to be a data-driven organization,” he said of FMCSA. “We rely on 13,000 partners in the state level who are also stretched. We have to be focused in our efforts, and we need data to do that; appropriate data to do that.”

The agency is adhering to a congressional requirement and updating its Compliance, Safety, Accountability scoring program, a data-centric safety metric for carriers.

In written answers to a questionnaire required by the committee, Martinez said he would engage the agency in the integration of self-driving technologies.

“FMCSA must ensure appropriate, balanced regulation and seamless integration of any new and developing technologies into the existing highway safety landscape without hindering innovation,” Martinez indicated.

The Commerce Committee is expected to vote on Martinez’s nomination before the end of the year. If confirmed, he would succeed acting Administrator Daphne Jefferson.

Before leading the N.J. Motor Vehicle Commission, Martinez was commissioner of the New York State Department of Motor Vehicles. Prior to that, he worked on White House advance teams for domestic and international trips for Republican presidents, according to background on the state commission’s website.

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[B-42]

On Monday, October 30, 2017 at 4:02 PM, HeavyGunner said:

I’ve had enough but unfortunately I have another 31 years until I’m 67. I’d love to go do something else but it’s hard to give up a great paying job with bennies even if I don’t like it. Just the thought of starting at the bottom again is what keeps me from quitting...for now.  

HeavyGunner, 

Your age is definitely a factor.  At my age, the choice is very clear.  I don't enjoy any part of this career anymore and it is time to step away. I'm not sure what I'll be stepping in when I step away but I am willing to scrape it off my shoe and move on. Seems like every day something happens that validates my decision. Today was no exception. 

[david wild]

ELD will go on just like the rest of the BS that was to bring trucking to it's knees, and here we are trucking along and the great shut down has yet to happen, remember the CDL program ? that was going to end trucking, Y2K, end all life on earth, rewrite of loggable time and so on, nothing will happen and life will go on, grumble grumble piss and moan get up and go to work the next Obama needs your tax money help the worthless.

[mackey58]

Like the rate cutters truck for free keep the junk on the road to say there an  o/o

[kscarbel2]

DOT website suffers ‘bot’ attack over ELDs

Larry Kahaner, Fleet Owner  /  November 13, 2017

Internet robots or ‘bots’ inundate transportation department’s website in support of electronic logging device (ELD) mandate

When the Department of Transportation (DOT) in early October asked for the public's help with identifying regulations that should be repealed, replaced or suspended, it didn't expect to be inundated by “bots.”

Federal agencies are used to receiving large numbers of comments from people who are part of well-organized, grassroots write-in campaigns, but this time it was different. Instead of responses from real people concerned about a particular issue, internet robots or “bots,” inundated DOT's website with the exact same wording showing support for keeping the pending mandate imposing electronic logging devices (ELDs) on trucking companies and truck drivers on track.

In fact, 477 comments, or about one-third of the 1,483 responses that DOT received by November 1, contained the following message:

The ELD rule should proceed as planned this December. The rule is not a change to hours of service, it's simply a change in how professional drivers record hours of service. Delaying the ELD rule will endorse drivers to operate outside of their current hours of service, and that is simply not safe to the motoring public. The industry needs to embrace legal and safe operations with ELD use. This issue has been legislated, promulgated, and litigated. The time to move forward is now.

Another dozen or so comments were so closely worded as to be almost identical.

“Bots” are actually software – sometimes called spiders or crawlers – that can be used to perform repetitive tasks such as indexing a search or filling out on-line forms like those found in the DOT comment web page.

A DOT official involved in the proposal would not discuss particular responses until they studied the comments. (The comment period has been extended from November 1 to December 1.) "We will explain later how we will evaluate the comments - their volume and relevance," the official added.

The official did note, however, that some agency staffers were taken aback that of all the regulations imposed upon the transportation industry – not just trucking – that almost all of the responses from bots and real commenters focused on ELDs.

"Clearly, it's on people's minds," the official noted, with only a smattering of comments discussed air travel issues.

With few exceptions, federal agencies and members of Congress dismiss write-in campaigns as nothing more than public relations ploys. Lawmakers and regulators are more swayed by legitimate and personal comments from constituents, according to many Washington lobbyists.

"People do it [write-in campaigns] because a lobbying group or whoever is leading their grassroots campaign gives them [stakeholders] a boilerplate message. All they simply do is cut and paste. They may change a few words around here or there, but the key points are exactly the same," explained Laurence L. Socci, who has represented clients before Congress and federal agencies for more than 20 years.

"When it goes to members of congress or policy makers in federal agencies they can recognize it,” he said. “When you see 300 comments that are exactly alike you know where they came from. They are less accepted and agencies give them less credit than those from somebody who they can tell took the time to understand the issue and work through it."

Added Socci: "If you've been around a while and understand how the system really operates then you know that boilerplate doesn't work. Policy makers and the agency folks don't give high regard to them."

If the strategy doesn't work, why would lobbyists or others employ bots?

"I don't think that a person who is actually working for an agency or an in-house person would do something like that [bot responses] but an outside consultant may,” he said. “You take the money, show that you tried to do something and then when it doesn't work say, 'Oh, well I tried my best.'"

Aside from blatantly ripping off clients, Socci and others suggested that the bot perpetrators in this instance may have simply been “rookies” to Washington politics and dazzled by the high tech nature of this effort.

Kevin O'Neill, partner at Arnold & Porter Kaye Scholer, an international law firm based in Washington, D.C., that’s involved in government affairs offered another explanation for write-in campaigns.

He suggested that a small, special interest group can use their “cut-and-paste” messages as a way to show an agency that they have power to mobilize their members.

"It allows them to say 'look how big we are. Look at all the influence we have. We can generate this kind of response. You should meet with us the next time we want to meet with you.' It's all part of a circular effort to build the organization's credibility inside the agency that they care to influence," O'Neill explained.

Internally, the group also can use the 'pull' they seem to have to raise funds from existing members and to entice potential members to join, he said.

Those involved in helping legitimate constituents construct comments for public agencies say that those using bots make up names to go with boilerplate comments.

On the DOT website, commenters were not required to identify themselves, their cities, or companies. They could even list their name as “anonymous.” A random check of names offering the above boilerplate did not reveal any real people who commented on this docket.

DOT is not the only agency to have experienced a bot attack after soliciting comments. The Federal Communications Commission (FCC), in a request for public comments about net neutrality, found itself deluged this past summer by 22 million responses, about 80% of which were determined to have been sent by bots including those sent after the deadline.

Who launched this bot attack on DOT? Nobody has come forward in public to claim it. However, an internet search of the bot message found the same wording in both the last lines of the boilerplate and parts of a speech given by Chris Spear, president and CEO of the American Trucking Associations (ATA) trade group during its Management Conference & Exhibition in Orlando this past October.

Addressing the audience, Spear said of ELDs: "This issue has been legislated, promulgated, and litigated. The time to move forward is now." When asked about the same wording appearing in the last part of the bot message and Spear's speech, Sean McNally, ATA’s vice president of public affairs and press secretary responded by email: "ATA, as part of our efforts to keep our members informed about issues that affect their businesses, alerted them to the Department of Transportation’s request for comment and information on their ongoing regulatory review efforts. We did not provide scripted or prepared comments for their use.”

[kscarbel2]

Indiana Wants ELD Rule Delayed

David Cullen, Heavy Duty Trucking (HDT)  /  November 30, 2017

In an 11th-hour request, the attorney general of Indiana has proposed that the Federal Motor Carrier Safety Administration delay implementation of the electronic logging device rule set for Dec. 18 — less than 3 weeks from today.

While numerous attempts to halt or delay the rollout of the ELD rule have been made in federal courts and on Capitol Hill, this request marks the first time a state official — and in this case, a very high-ranking official in a top trucking state — has advocated taking such action.

Attorney General Curtis T. Hill Jr. (R) stated in a Nov. 29 letter to FMCSA Chief Counsel Randi Hutchison that a delay was needed because to “immediately begin requiring drivers to use ELDs exclusively (except, as the new rule allows, for those with on-board recording devices installed before Dec. 18, 2017) would place undue burdens on drivers and operators.” 

His chief concern is that there is no government or third-party verification in place for the ELD device self-certification process FMCSA has suppliers using in order to be registered with the agency.  

“With manufacturers of ELDs currently responsible for ‘self-certifying’ their compliance with government standards — with no effective procedures seemingly yet developed to provide oversight over such ‘self-certifying’ — drivers and operators are left without any way of ascertaining which brands and models of devices ultimately will pass muster,” wrote Hill. “They must ‘fly blindly’ into investing in products they are being required to purchase.” 

He then argued in detail that several crucial issues may result from the device certification and registration protocol now in place, including but not limited to the following:

• “Certain steps outlined in the Plan and Procedures Manual are ‘not required to be completed’ because they cannot be completed. The actual data transfer has not and cannot be trialed with a safety official — and the Web Services Portal as of this writing is not fully operational. Manufacturers are left with a statement that data transfer via email, USB and Bluetooth can still be tested in the manufacturers’ testing environments and if the required output file can be generated per the technical specifications in that manner and environment that it ‘will work in FMCSA Web Services.’

• “Further, manufacturers are to rely on the most recent version of the manual published to the website; yet the most recent version, Version 2.0, remains incomplete, including but not limited to, suggested testing schedules and quality assurance programs. FMCSA’s website continues to maintain that the email and web services testing environments are ‘coming soon.’ This is particularly concerning considering the number of registered devices on the list currently who have yet to utilize these tools and the pressing compliance date of Dec. 18, 2017.”

• “Even if a particular ELD appears on the list of registered ELDs, it is still possible for the device to not ultimately be compliant or conform to the required technical specifications of the ELD Rule — which could result in significant harm to the consumer as the device would likely already be deployed at the time non-compliance would be discovered and countless resources wasted.”

• “While a driver will be permitted to use paper logs temporarily if a device is found to be non-compliant, it has been reported that the motor carrier will only have eight (8) days from notification to replace the noncompliant device with a compliant one. If the problem is widespread throughout a large fleet, the FMCSA has suggested it would be ‘flexible’ but has provided no further guidance. This could have a detrimental effect on smaller carrier companies should the device they select run afoul of guidelines. In fact, the costs associated with such an occurrence have the potential to put some carriers out of business and negatively impact competition and interstate commerce.”

• “Compliance with the ELD rule will only be determined by individual enforcement personnel’s interpretation of the data after it has successfully transferred through FMCSA’s systems. It remains unclear whether any guidelines or regulations have been developed and/or implemented for said interpretation and whether or not a particular device will even be able to transmit the data successfully. This will inevitably lead to a great deal of ambiguity and differing interpretations. FMCSA has stated that some but not all enforcement agencies will be utilizing Electronic Record of Duty Status Systems (ERODS) to determine compliance with federal regulations. FMCSA is ultimately not providing the manufacturers with access to that platform to test their devices to date. It has been reported in the industry that some larger manufacturers believe the only way to truly test compliance would be through use of ERODS or through the use of further technical resources and information – none of which are yet available or promised.”

• “The technical specifications as laid out in the ELD final rule are extremely complex and can be interpreted differently by individual manufacturers, who are the entities certifying compliance, yet the testing procedures laid out by FMCSA are not binding on said entities. Further, there is no set manner of testing that must be conducted, much less passed, before deployment of a particular device to consumers.”

• “Consumers may assume that if a device is certified and registered that it bears the approval of FMCSA and is in fact compliant with the ELD Rule. They may purchase a particular device on that premise. However, there is no guarantee or way to verify that the device is actually compliant with the said technical specifications until said compliance is called into question.”

In closing, Hill requested that FMCSA hold off on implementing the ELD rule until the agency can “develop guidelines that offer greater clarity to the individuals you expect to follow them.”

In a Nov. 30 press release, the Owner-Operator Independent Drivers Association said it applauds the request made by the Indiana attorney general. "This request from a state agency is a prime example how states are beginning to understand the reality of this broadly written mandate and its negative consequences," said Todd Spencer, executive vice president of OOIDA. "Law enforcement is simply not ready for this.

“Most small-business truckers can ill afford to make these purchases only to learn later that their ELD is non-compliant," he added. "Yet they are required to do so or risk violation."

In confirming to HDT that the agency has received Attorney General Hill’s letter and is reviewing its contents, FMCSA Director of External Affairs Sharon Worthy noted that “FMCSA is operating under a statutorily designated deadline for ELD implementation.” 

In other words, don’t expect the request from Indiana to trigger any stay on the roll out of the mandate.

[kscarbel2]

Indiana Attorney General Curtis Hill’s Request for ELD Delay Draws Rebuke

Eleanor Lamb, Transport Topics  /  December 1, 2017

Indiana Attorney General Curtis Hill published a letter Nov. 29 asking the Federal Motor Carrier Safety Administration to delay the electronic logging device rule, a move that prompted a quick response from the trucking industry.

The ELD rule mandates that commercial drivers who are required to record their hours of service do so with the devices. Hill said that “to immediately” require drivers to use ELDs “would place undue burdens on drivers and operators.” FMCSA divided ELD migration into three periods, beginning in 2016.

Since February of that year, ELD manufacturers have been able to register and certify their devices with FMCSA, and motor carriers could elect to use ELDs listed on the agency’s website. However, Hill said that the government has not established guidance on the self-certifying process, forcing drivers to “fly blindly” as they research what products they are required to purchase.

Jennifer Hall, general counsel and executive vice president of American Trucking Associations, wrote a letter of response to Hill on Dec. 1. In it, Hall expressed full confidence that ELD vendors are ready for the mandate, and FMCSA and the Commercial Vehicle Safety Alliance have worked to make the transition as smooth as possible.

For example, CVSA has announced that it will not place any drivers operating without an ELD out of service until April 1. Furthermore, the letter notes that the final ELD rule has been “on the books” for almost two years and has received bipartisan congressional support.

“Your recommendation that FMCSA immediately delay the ELD implementation date is unnecessary,” Hall said in her letter.

In his request, Hill also urged FMCSA to clarify certain guidelines before proceeding with the mandate. For example, he said the agency’s Plan and Procedures Manual lacks information on testing schedules and quality assurance programs. Also, he said FMCSA’s website states that e-mail and web services testing environments are “coming soon.”

“This is particularly concerning considering the number of registered devices on the list currently who have yet to utilize these tools and the pressing compliance date,” Hill said. Furthermore, Hill stated that the technical specifications laid out in the ELD final rule are too complex and leave certain points open to interpretation. There also are no set testing standards that must be conducted prior to use, according to Hill.

He said trucking is important to Indiana, noting that almost 200,000 of the nation’s 3.5 million truckers are estimated to live there.

“As the deadline for compliance quickly nears, even a cursory perusal of industry trade publications provides clear evidence that many drivers and operators are completely unprepared for the proposed changes,” Hill said. “I urge your agency to put on hold the new requirements until you are able to develop guidelines that offer greater clarity to the individuals you expect to follow them.”

In her letter, ATA’s Hall said, “Delaying the implementation date will reward non-compliance while punishing law-abiding drivers and carriers, is contrary to the rule of law, and would redirect FMCSA resources away from the agency’s obligation to carry out existing laws and pursue its mission of safety.”

[kscarbel2]

ELD compliance among smaller fleets sees uptick as mandate looms

James Jaillet, Commercial Carrier Journal (CCJ)  /  December 7, 2017

The number of small carriers, including owner-operators running fewer than five trucks, who report being in compliance with the U.S. DOT’s electronic logging device mandate spiked in recent weeks, according to polling figures from CarrierLists. The numbers published by CarrierLists this week show a sharp rise in adoption of ELDs from a similar survey conducted a month prior, somewhat expected with the mandate’s compliance date less than two weeks out.

In a report issued December 4, CarrierLists says 72 percent of the 959 fleets surveyed report they’ve adopted ELDs. Of the 19 carriers surveyed operating between one and five trucks 79 percent report being in compliance with the mandate’s coming December 18 deadline. While that’s a small sample size of the tens of thousands of carriers operating between one and five trucks, it’s still a sharp uptick from the 40 percent adoption rate reported in early November.

Of carriers operating between five and 100 trucks, 75 percent reported use of ELDs. That’s also up from the 40 percent reported for carriers running between 1 and 100 trucks from November’s report.

The bulk of the survey’s respondents operate between six and 35 trucks, with their adoption rates ranging from 63 percent (for carriers operating between 11 and 15 trucks) to 75 percent (those operating between 26 and 30 units). See the chart above for the adoption rates among the carriers surveyed.

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[kscarbel2]

Senators back provision for one-year ELD mandate waiver for livestock haulers

James Jaillet, Commercial Carrier Journal (CCJ)  /  December 7, 2017

A bi-partisan group of 20 U.S. Senators has filed a letter with Senate leaders Mitch McConnell (R-Kentucky) and Chuck Schumer (D-New York) expressing their support for a Congressional measure to give livestock haulers and insect haulers at least an extra 10 months to comply with the federal government’s electronic logging device mandate.

The Senators say the move would give the Federal Motor Carrier Safety Administration “time to make necessary adjustments to hours of service rules to address animal welfare concerns” that livestock haulers say are presented by current hours regulations.

The December 5 letter comes two and a half weeks after the Federal Motor Carrier Safety Administration announced it is giving livestock haulers and other drivers haul agriculture loads an extra 90 days to adopt an ELD, which extends the compliance deadline for such drivers into mid-March. The agency also said it plans to tweak hours of service regulations for livestock haulers to better fit their operations. Detailed plans for both measures are expected to be published any day in the Federal Register.

The U.S. House earlier this year passed a measure as part of a larger spending bill that would provide livestock haulers a relief from ELD mandate compliance at least through the 2018 fiscal year, which ends September 30, 2018. However, the bill and the livestock haulers provision has not been passed by the Senate. Both chambers continue to work on a appropriations packages for the 2018 fiscal year, and both chambers are expected to pass a short-term spending bill this week to prevent a government shutdown. The Senators argue their chamber should include the same provision in its 2018 spending bill.

Livestock haulers already have a reprieve from the 30-minute break required by the current hours of service rule. But the trade groups representing livestockers contend there’s more work to be done to adapt the regulations to fit their specialized operations.

The group of Senators expressing support for the ELD reprieve agree. “While some commercial operators without live cargo may have the ability to more easily transition from paper logbooks to ELDs, the pending mandate will have negative consequences on livestock haulers and hinder the ability of this unique subset of the industry to humanely deliver healthy livestock,” the Senators wrote.

See the full letter and its signatories at this link.

[kscarbel2]

Dozens of Congressmen Go to Bat for OOIDA ELD Exemption Request

Heavy Duty Trucking (HDT)  /  February 2, 2018

The Owner-Operator Independent Drivers Association has garnered the support of over two dozen Congressmen in the form of a letter from them to the Federal Motor Carrier Safety Administration that encourages the agency to grant OOIDA’s pending application for a 5-year exemption from the electronic logging device mandate for small trucking businesses with exemplary safety records.

Specifically, OOIDA has requested at least a 5-year exemption for motor carriers classified as small businesses, according to the Small Business Administration, and that have a proven safety history with no attributable at-fault crashes, and that do not have a Carrier Safety Rating of “Unsatisfactory.”

The Feb 1 letter to FMCSA by Reps. Brian Babin (R-TX) and Steve King (R-IA) and co-signed by another 23 Representatives, calls OOIDA's request “responsibly constructed” as it focuses “only on carriers defined by the Small Business Administration as a small-trucking business” and that have “a record of no at-fault crashes would be exempted. 

“By sustaining impeccable safety records, the motor carriers that would qualify have already demonstrated the use of an ELD will do nothing to improve their operations,” continue Babin and King. “Futhermore, OOIDA's request would prevent small trucking businesses, who operate on the slimmest of margins, from maintaining costly fleet management devices that provide them no economic or productivity benefits.” 

The Congressmen also make something of an all-for-one and one-for-all argument, pointing out that “FMCSA has already granted several requests for exemption from the ELD mandate. Clearly, the agency is capable and willing to provide relief for industries who have demonstrated that exemptions will not decrease safety. In this regard, OOIDA's application for exemption is unquestionably consistent with those previously granted and merits the agency's approval.”

In addition, Babin and King note that they view OOIDA’s request as “wholly consistent with the Trump Administration's goal of providing relief from costly and burdensome federal regulations to American small businesses.”

Reading the Political Tea Leaves

It should be noted, too, that, at least in the letter, they give no indication that they currently support or would support or introduce any ELD-related legislation at this time. That begs the question of whether the Congressmen’s advocacy is the vanguard of a groundswell of support within the Republican-controlled Congress to amend or discard the ELD rule that was put on the books during another majority GOP Congress. 

Given that much of the trucking industry’s lobbying power was behind getting the ELD rule put in place in the first place and everything else that’s on Capitol Hill’s plate for the rest of this year— including immigration reform and infrastructure spending— it’s highly doubtful any legislation to reform the ELD rule will make any headway in 2018.

What is even more certain is that if the Democrats take back control of just one chamber or even just sharply cut the Republican edge in the House in this year’s midterm elections, trucking won’t see any safety regulations getting rolled back for at least the next two years, if not longer.

[HeavyGunner]

What a farse, if the FMCSA is going to keep giving everyone exemptions (UPS, Livestock haulers and now owner operators possibly) they'd might as well do away with ELDs completely. At some point the fmcsa should be sued for not enforcing the law equally.