ELD and AOBRD: The unanswered questions

Will there be another extension on ELD compliance as has happened in the past?

“I believe the answer is no,” Osiecki said. “At least at this point there is no appetite at the Federal Motor Carrier Safety Administration to extend the ELD compliance date, which at this point is mid-December of this year.”

At a recent meeting, he said the Commercial Vehicle Safety Alliance, an agency made up of state enforcement agencies charged with enforcing the ELD mandate, made it clear to both FMCSA and industry representatives “that [the agency] had no interest in seeing an extension of the compliance date.”

Truckers who were forced to run ELDS from paper logs in December 2017 were given a reprieve by CVSA as the agency pushed out the enforcement date to April 1, 2018. Those transferring from AOBRDs to ELDs won’t be given an extension, Osiecki said.

When drivers run out of hours at a shipper or receiver, how can they make it to a parking space without being in violation?

Drivers can use the personal conveyance status, special driving category, to make it to a safe, reasonably located parking space without being in violation. The driver has to select the personal conveyance status on their ELD device, then deselect it when they are done, Osiecki said.

FMCSA issued a revised guidance regarding personal conveyance late May 2018 that provided examples of “appropriate uses” of a commercial vehicle while off-duty for personal conveyance:

• Time spent traveling from a driver’s en route lodging (such as a motel or truck stop) to restaurants and entertainment facilities;
• 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;
• 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;
• Moving a CMV at the request of a safety official during the driver’s off-duty time;
• Time spent transporting personal property while off-duty; and,
• Authorized use of a CMV to travel home after working at an offsite location.

Osiecki said two examples of inappropriate uses of the personal conveyance include:

• If there’s any continuation of the interstate commerce trip in order to fulfill a business purpose to get further down the road, that’s illegal.
• The movement of the truck in order to enhance operational readiness of the carrier to stage closer to the next pickup location is an inappropriate use.

We see a lot of trucks crawling along in traffic, around parking lots and at distribution centers under 5 mph, why is this?

“An ELD has to automatically switch to driving mode once the truck is moving at a speed threshold of 5 mph or greater, Osiecki said. “Anything under 5 mph, the ELD doesn’t pick up that the ELD is in driving mode.”

The ELD regulation does not allow for driving time to be edited to any non-driving status. However, there are three driving “types” listed in the regulation: normal driving, yard movement and personal use. Is there a possibility that the regulation may change so that driving time can be edited between the three driving types?

The answer is no based on Osiecki’s recent conversations with regulators.

“I asked if [regulators] had any near-term intention of going back to rule-making particularly as it relates to editing driving time and their answer is no,” he said.

However, drivers can add to their driving time if they use personal conveyance inappropriately and it should be listed as on-duty driving time, which can be added on Line 3 of the electronic log.

“You can add to a driver’s time, but you can’t shorten the driving time,” Osiecki said.

Any knowledge on how the feds and states are training their inspectors on the ELD mandate?

Most of the inspections on the roadside inspections are done by state agency personnel that are trained consistent with CVSA’s recommendations and standards.

Has hours of service compliance improved? Are inspectors not writing citations because of their own bias against the technology and ELD mandate that may be causing compliance numbers to decrease due to lack of accurate DOT enforcement data?

“I don’t have any data to dispute what FMCSA puts out on its website,” Osiecki said. “I don’t have any first-hand knowledge that enforcement officers are ignoring [hours of service] at inspection locations. I am not aware of any persistent approach to letting drivers pass at inspections.”

Our company is logging company, days only, home at night in a 100-mile radius. Are we required to use ELD?

“The answer is probably not,” Osiecki said. “It sounds like you are a 100-air-mile radius operation.”

Short-haul companies have an exemption from ELDs as long as they meet the following five conditions:

• Company driver has to operate within a 100 air-mile radius of the driver’s normal work reporting location;
• The driver has to start and return to that work reporting location and be released from duty within 12 consecutive hours;
• The driver has to have at least 10 consecutive hours off duty between each on-duty period;
• The driver can’t exceed the maximum driving time of 11 hours; and
• The company has to maintain time records showing that the time the driver reported to duty each day, the total number of hours the driver is on-duty each day, the time the driver is released from duty each day and the time record has to be kept for six months.

Does the ELD compliance regulation vary by fleet size?

“No, there is no fleet size distinction in the ELD rules,” Osiecki said.  

As of December 16, 2019, every carrier and driver that the rule is applicable must make the switch over to electronic logs.

How easy is it to convert from AOBRDs to ELDs?

Osiecki said it depends on the size of the company and the size of the vendor.

“It gets more difficult the larger you are particularly if you have multiple locations,” he said. “Most of the AOBRDs can be upgraded by a software upgrade that happens over the air to the device.

In some cases, the ELD device might need a license that may need to be activated by the vendor, “so that the carrier can basically convert it to a ELD when the over-the-air software is made,” he said.

There are some differences in the rules regarding driver usernames and passwords.

“There are limitations on the ELD user names that weren’t there before for AOBRD users,” he said.

Because of the software changes, training needs to be rolled out to drivers prior to the mandate “because the ELDs look different, they transfer data differently,” Osiecki said.

The devices our company purchased that were branded as ELDs are really AOBRDs. The manufacturer has to upload new software by Dec. 2019 to make it an ELD device. Why would a manufacturer sell a device branded as an ELD that is really an AOBRD?

“It could be that the AOBRD manufacturer was trying to take advantage of the ELD mandate and try to gain market share and just get their technology out there,” Osiecki said. “It simply could have been a mistake that the manufacturer truly didn’t understand the differences between an AOBRD and ELD. There are a lot of new entrants, a lot of new players, in the ELD market that don’t have a lot of experience in the trucking industry.”

FreightWaves’ Croke answered questions concerning detention time and delays at facilities as motor carriers switch over to ELDs.

What is the baseline for detention? In other words, is it two hours free and then the increase is averaging 25-plus minutes past the two-hour mark?

“There is no real baseline or industry standard,” Croke said. “What I can tell you is that most people tend to use two hours of free time for a shipper to unload or load a trailer and then after that detention is going to be incurred at somewhere around $50 per hour on average.”

However, he said it doesn’t take two hours to unload and load a truck.

“I would really question the basic premise of why we give two hours of free time for shippers to load or load freight,” Croke said. “There are appointment time issues and sometimes drivers turn up late, sometimes they turn up early and sometimes the shipper isn’t ready for the load to be unloaded or loaded.”

There are also production line issues, he said.

“There are all sorts of things that go on, but with ELDs now, essentially, anytime a driver spends on the dock where he’s not being paid, is what I call an opportunity cost,” Croke said. “So, think about a driver that runs 50 miles an hour and they earn 40 cents a mile. For every hour that a driver spends on a loading dock where he or she’s not being paid, the opportunity cost is $20 to them for every hour. So, a two-hour free period is essentially a lost opportunity to earn $40 out on the road.

Using paper logs, motor carriers could absorb all of the inefficiencies in the supply chain by simply by logging off-duty and not having it impact their 60 or 70-hour maximum weekly hours. This isn’t the case as the industry switches over to ELDs.

Long wait times impact driver turnover and pay, he said.

Will individual shippers’ detention findings be publicly available? Do you think if that data is available you will see shippers become more stringent about loading times?

“Yes, it’s been made public,” Croke said. “We’ve produced a number of reports that talk about shipper wait times.

In FreightWaves’ SONAR freight market data and analytics platform, it lists every one of the 135 key market areas in terms of how long trucks spend waiting to load and unload, he said.

Some people choose to name shippers, while others don’t.

“We are in the latter category because it doesn’t serve anyone interest to take an adversarial position on this — it’s a joint effort,” Croke said. “Drivers have to do their part, just like carriers and shippers to address this problem.”

Market forces are going to dictate what shippers do regarding detention time.

“We’ve seen capacity increase considerably from where it was last year until today,” he said.

Carriers are accepting close to 96 percent of loads tendered today, according to SONAR’s outbound tender rejection index, “which tells you that capacity is quite loose and carriers are sort of hauling whatever freight they can just to cover operating costs,” Croke said.

Over the same 12-month period where capacity has increased substantially, wait times at shippers has increased 20 percent.

“What that tells me is that shippers have found more capacity in the market and more trucks,” he said. “It won’t be until the market rebalances itself with some of the capacity being absorbed through higher freight volumes where we see shippers start to change their behavior.”

The average wait time for a truck to load and unload in the U.S. right now is 146 minutes, Croke said.

Now we have ELDs and the breadcrumb of data, trucking companies now have objective data to not only quantify detention, but also quantify the impact on driver pay. What’s the impact of shipper detention on driver pay?

The impact on driver pay hasn’t been quantified just yet, according to Croke.

“I do know it’s a significant factor in voluntary terminations and drivers quitting the industry because of the inability to run miles,” he said.

The average driver in the over-the-road sector is only running approximately 7 hours and 40 minutes out of a maximum of 11 hours. Regional drivers are only running about 7 hours and 15 minutes and short-haul drivers are running less than 5 hours per day, Croke said.

“All sectors are leaving a lot of money on the table in terms of possible driving hours,” he said.

FreightWaves has rolled out its Shipper of Choice program that recognizes companies through a proactive program to deal with the detention issue.

“Our message is that capacity will tighten and they will need to address driver detention times on docks and add assistance where they can,” Croke said. “I do know of carriers that are going to their shippers and quantifying the actual rate component of detention time in their rate discussions.”

The experts addressed questions about the future of ELDs

Have ELDs/AOBRDs improved safety? If there is no data to show improvement, will we return to regular logs?

“We are not going back to paper logs — that ship has sailed,” Osiecki said. “It is premature to understand whether there is data to see if these devices have improved safety yet. Most drivers who have already gone to electronic logging don’t want to go back to paper.

Proposed changes to the federal hours-of-service rules may improve safety, he said.

The U.S. Department of Transportation submitted a Notice of Proposed Rulemaking to the White House for review on March 29 after FMCSA officials hosted a series of listening sessions with drivers and industry stakeholders to discuss problems with the 14-hour rule.

“Any way we can encourage drivers to have more rest breaks and still run miles will actually help improve safety,” Osiecki said. “My evidence would suggest that you could have adverse outcomes if you don’t have the flexibility that the notice of proposed rulemaking is looking to address.”

However, if the proposed hours of service changes become finalized, the ELD mandate will already be in effect for everyone who is subject to the mandate. If there are final HOS changes, each of the vendors will have to reprogram their ELD systems to provide for the different rule sets, he said.