UNDERSTANDING AND COMPLYING WITH THE ELD MANDATE

Transcription

1 UNDERSTANDING AND COMPLYING WITH THE ELD MANDATE July 18, 2017 Presented by: Rob Moseley 2 West Washington Street, Suite 1100 Greenville, SC rob.moseley@smithmoorelaw.com Moderated by: Kurt Rozelsky 2 West Washington Street, Suite 1100 Greenville, SC kurt.rozelsky@smithmoorelaw.com

2 ROADMAP The OOIDA lawsuit The basics The details Implementation Practical considerations Questions

3 IS IT GOING TO HAPPEN? OOIDA LAWSUIT Focuses on privacy issues October 31, th Circuit Court of Appeals Concluded ELD rule was reasonable, not arbitrary or capricious, and enforceable Rejected all arguments put forth by OOIDA April 13, 2017 OOIDA appealed the decision of the 7 th Circuit to the United States Supreme Court US Supreme Court denied the appeal

4 THE BASICS MAP 21 required DOT to: Adopt regulations requiring that CMVs involved in interstate commerce operated by drivers who are required to keep RODS be equipped with ELDs Ensure that information from an ELD is not used to harass a driver Consider how the need for supporting documents might be reduced, without diminishing HOS enforcement Not all CMV drivers will be required to use ELDs

5 THE BASICS Published December 10, 2015 Effective date February 2016 Compliance date December 18, 2017 December 2017 through December 2019 grandfather period December 2019 full compliance

6 THE BASICS The ELD mandate DOES NOT modify the HOS rules

7 THE BASICS Fleets and drivers required to complete paper logs to adopt and use compliant ELDs by December 18, 2017 Unless they are currently using automatic on-board recording devices that are grandfathered (more on that below).

8 THE BASICS FMCSA will create a public (i.e. Internet) registry of compliant devices and conduct tests to verify manufacturers claims Manufacturers are required to test and certify to FMCSA that their devices meet the new standards

9 December 18, 2017 COMPLIANCE Only registered and certified ELDs may be used What about your AOBRDs? Grandfathering provision for AOBRDs

10 GRANDFATHERING FMCSA will allow fleets and drivers using ELD-like devices meeting the current standards for Automatic On-Board Recording Devices (49 CFR ) to continue to use such devices until December 2019 If these devices can be modified to meet the ELD specifications (e.g., with a software upgrade) they may continue to be used after December 2019 Supporting documentation requirements as to AOBRDs and ELDs start on December 18, 2017

11 AOBRD V. ELD

12 AOBRD V. ELD

13 EXCEPTIONS TO THE RULE The final rule allows limited exceptions to the ELD mandate, including: Drivers who use paper logs for not more than 8 days during any 30 day period Drivers who conduct driveawaytowaway operations, where the vehicle is the product being delivered Drivers of vehicles manufactured before model year 2000 Rental Trucks not so fast

14 EXCEPTIONS TO THE RULE Drivers who operate using the logbook timecard exception (i.e. short-haul 100-air mile drivers) This is a logbook book exception Stays within 100 air mile radius of work reporting location Reports and returns to work reporting location within 12 consecutive hours Has at least 10 hours off duty between work shifts Company keeps time records showing time in, time out, and total number of hours worked Driver can be outside of this exception 8 days in any 30 day period, complete a paper log, and still be excepted from the ELD rule The 9 th day outside of this exception = ELD compliance

15 EXCEPTIONS TO THE RULE Authorized use of a commercial motor vehicle (CMV) for personal conveyance will not be recorded as onduty driving, but rather off-duty time Similarly, authorized use of a CMV in a closed facility with restricted access (e.g., a yard) will be recorded as on-duty not driving time

16 WHAT ABOUT...? If a CMV is equipped with a glider kit that is newer than model year 2000, but the connections and motor vehicle components (such as the engine) are older than model year 2000, is the vehicle exempt from the ELD rule? No. ELD use is required for vehicles whose VINs reflect a model year of 2000 or newer

17 TECHNICAL SPECIFICATIONS ELDS must be integrally synchronized with the vehicle s engine and must automatically record all driver time ELDs must automatically record on an intermittent basis Date Time Location (1 mile or 10 miles depending on status) Engine hours Vehicle miles Identification information for the driver, vehicle, and carrier

18 TECHNICAL SPECIFICATIONS What is an intermittent basis Login and logout Engine power up and down A change in duty status or a change to a special driving category Driver s daily certification Malfunction or data diagnostic event Every 60 minutes during driving time

19 ELD ACCOUNTS Set up by the carrier For drivers and support personnel ELD accounts may be created for individual ELDs or ELD support systems One driver, one account Driver accounts must include CDL number and state Separate accounts for driving and administrative functions

20 TRANSFER OF DATA All ELDs must be capable of exporting data in a standard file format to facilitate importing by other systems However, devices and systems are not required to be capable of importing these records

21 TRANSFER OF DATA ELDs must be able to transfer data electronically via either a) a telematics approach capable of wireless Web service or b) a local method capable of Bluetooth and USB 2.0 transfer Drivers must be able to show a roadside inspection officer a graph-grid of his/her hours of service compliance, either on the ELD s display or on a hardcopy paper printout

22 TRANSFER OF DATA Telematics transfer method = web services or Local transfer method = USB or Bluetooth Roadside enforcement official will select the method Enforcement must be capable of one from each

23 WHAT ABOUT...? Can an electronic logging device (ELD) be on a smartphone or other wireless device? Yes. An ELD can be on a smartphone or other wireless device if the device meets the ELD rule s technical specifications

24 WHAT IS NOT REQUIRED Track the driver or CMV in real time Include communications capability between the driver and carrier Include a monthly cellular and data plan Include an integrated printer Vehicle performance

25 LOCATION MONITORING ELDs are required to record vehicle location at every change of duty status and at a minimum of 60-minute intervals To ensure against harassment and protect driver privacy, the devices will record location during on-duty time at a precision of approximately one mile, and during off- duty time of within ten miles (i.e., will not record exact location but generally where the vehicle is located when used for personal conveyance) Fleets may employ devices that record location more precisely

26 SUPPORTING DOCUMENTATION Fleets must retain up to eight supporting documents from several categories per driver for each 24-hour period: Bills of lading, itineraries, schedules or equivalent documents indicating the origin and destination of a trip Dispatch records, trip records, or equivalent documents

27 SUPPORTING DOCUMENTATION CONT. Expense receipts related to on-duty not driving time; Text messages, messages, instant messages, or other electronic mobile communications transmitted through a fleet management system; and Payroll records, settlement sheets, or other documents reflecting driver payments.

28 SUPPORTING DOCUMENTATION CONT. In order to qualify as a supporting document, a document must contain the following content: driver identification, date, vehicle location, and time If the motor carrier has more than eight documents containing these data elements, they must retain the supporting documents nearest the beginning and the end of the driver s shift

29 SUPPORTING DOCUMENTATION CONT. Drivers are required to submit such documents within 13 days of receipt and produce those in their possession to law enforcement upon request Fleets are required to maintain documents in a manner which would facilitate their being easily matched to the logs

30 WHAT ABOUT...? Are drivers required to show supporting documents during roadside inspections? Upon request, a driver must provide any supporting document in the driver s possession for an authorized safety official s review

31 PERSONAL AND YARD TIME ELDs will allow drivers to indicate periods of authorized personal use (personal conveyance) or yard moves Driver must input change of duty status Driver must select on the ELD the applicable special driving category before the start of the status and deselect when the indicated status ends and when prompted by the ELD, annotate the driver s ELD record describing the driver s activity

32 Yard time PERSONAL AND YARD TIME No restriction on length or time of use in yard moves ELD will record it as on duty Driver must select/deselect yard move category and must annotate record Non-drivers performing yard moves should have ELD account and ID Address in your policies and procedures

33 PERSONAL AND YARD TIME Driver must be able to mute ELD while in sleeper berth Driver must review all unassigned driving time If unassigned time does not belong to the driver, the driver must indicate so in the ELD record

34 PERSONAL AND YARD TIME FMCSA personal conveyance guidance still applies Guidance: If a driver is relieved from work and all responsibility for performing work, time spent traveling from a driver s home to his/her terminal (normal work reporting location), or from a driver s terminal to his/her home, may be considered off-duty time. Similarly, time spent traveling short distances from a driver s en route lodgings (such as en route terminals or motels) to restaurants in the vicinity of such lodgings may be considered off-duty time. The type of conveyance used from the terminal to the driver s home, from the driver s home to the terminal, or to restaurants in the vicinity of en route lodgings would not alter the situation unless the vehicle is laden. A driver may not operate a laden CMV as a personal conveyance. The driver who uses a motor carrier s Commercial Motor Vehicle (CMV) for transportation home, and is subsequently called by the employing carrier and is then dispatched from home, would be on-duty from the time the driver leaves home. A driver placed out of service for exceeding the requirements of the hours of service regulations may not drive a Commercial Motor Vehicle (CMV) to any location to obtain rest.

35 HARASSMENT The rule prohibits motor carriers from using information from ELDs to pressure drivers into violating regulations (coercion) and other leverage (harassment) The rule also requires ELDs to either automatically mute or allow a driver to turn off or mute the volume on the ELD when they have logged into the sleeper berth status in the ELD FMCSA places restrictions on location precision and establishes a process for drivers to file harassment complaints related to ELDs

36 PROBLEMS? In the event that an ELD malfunctions, the driver is required to immediately begin completing a paper log and to reconstruct logs for each of the past 7 days, unless the driver already possesses the records or the records are retrievable from the ELD ELDs must be repaired within 8 days, subject to an FMCSA-approved extension

37 PROBLEMS? Drivers must know how to complete paper logs If ELD malfunctions, driver must revert back to paper logs Must continue to train and ensure drivers know how to complete paper logs

38 EDITS AND ANNOTATIONS Drivers must have direct access to ELD record Driver edits and annotations Drivers will be able to make edits and annotations to their electronic logs Employers will be able to request edits or annotations, but those must be approved by the driver

39 YOU SAY TOMATO, I SAY TOMAHTO An edit is a change to an ELD record that does not overwrite the original record An annotation is a note related to a record, update, or edit that a driver or authorized support personnel may input to the ELD All edits must be annotated to document the reason for the change

40 EDITS AND ANNOTATIONS ELD reflects the drivers RODs Driver and carrier share responsibility for the integrity of the records If a driver is unavailable or unwilling to recertify the record, the carrier s proposed edit and annotation would remain part of the record Original ELD records are retained even when allowed edits and annotations are made

41 OTHER STUFF In truck requirements ELD user s manual for driver Instruction sheet for data transfer Instruction sheet for driver during ELD malfunctions Supply of blank paper logs

42 IMPLEMENTATION EASIER SAID THAN DONE

43 IMPLEMENTATION Immediate benefits Increased productivity Analysis of data HOS violations are down Form and Manner violations

44 HOS VIOLATIONS

45 IMPLEMENTATION Management must communicate to all employees the benefits associated with the use of technology Improved compliance Improved safety Reduced paperwork Time savings Shorter inspections Management must create the proper culture

46 IMPLEMENTATION Who is responsible for implementation Implementation team Policies and procedures Training materials Identify person to monitor implementation and makes suggested changes Responsibility for selection of ELD, malfunctions, maintenance, etc

47 Implement in stages Training Include staff Dispatch Drivers IMPLEMENTATION Pro ELD drivers will convince other drivers Younger drivers who are not familiar with paper logs Younger drivers more comfortable with technology

48 IMPLEMENTATION How to encourage acceptance and implementation Incentives Bonuses Leverage other drivers Provide extra assistance and training when necessary Be patient

49 Office and dispatch IMPLEMENTATION Dispatchers have to determine whether driver will run out of time Dispatch must have basic HOS understanding Dispatch must understand the driver s situation Allow dispatchers to do ride-a-longs Improved communications between drivers and dispatch

50 Training IMPLEMENTATION Not required by regulations Strongly recommended New technology New policies New procedures Include as part of new driver orientation HOS training/review sessions

51 IMPLEMENTATION ISSUES What about independent contractors? Your independent contractors must adopt ELDs Compliance with regulation should not compromise independent contractor status Must be mindful during training and/or orientation to minimize risk of treating as employee Communicate same benefits of ELDs to independent contractors as you would to your employees Independent contractor agreements MUST address the use of ELDs and any related privacy issues Purchase of ELDs Incentives

52 IMPLEMENTATION ISSUES Independent contractor agreements MUST address the use of ELDs and any related privacy issues Purchase of ELDs Incentives

53 IMPLEMENTATION ISSUES Maintenance and calibration In accordance with ELD manufacturer s specifications Designate individual to be responsible for all maintenance related issues Proper maintenance will reduce the chance of an on the road malfunction Consider having spare or extra ELDs available

54 IMPLEMENTATION ISSUES Rental vehicles They are not exempt for ELD rules Rental vehicles must have ELDs Plan ahead Know what kind of ELD system the rental vehicles use This issue is the subject of an ongoing effort in D.C.

55 WHAT ABOUT...? Can a driver use a portable electronic logging device (ELD)? Yes. A driver may use a portable ELD. A portable ELD must be mounted in a fixed position during commercial motor vehicle (CMV) operation and visible to the driver from a normal seated driving position. This information can be found in the ELD Rule section (g).

56 IMPLEMENTATION ISSUES Use of vehicles by a mechanic If no login, ELD records it as unassigned driving time Driver must accept/reject time and annotate record If driver rejects driving time, carrier must annotate record to explain why the time is unassigned Best practice assign mechanics an account and ID

57 SHIPPER/CUSTOMER RELATIONS Customer relations Shipper forces driver out of facility when driver is out of hours Have a policy and procedure addressing this situation Annotate ELD record before departing and documenting circumstances Train drivers what to record Work with shippers/customers Educate regarding issues Identify areas where drivers can park

58 DOCUMENT RETENTION Carriers must retain ELD records for 6 months Carriers must also retain for 6 months backup copy of the ELD records on a device separate from that on which original data are stored Weave ELD records into document retention policies and procedures Regulations are the minimum Circumstances may dictate retaining records for longer period of time

59 DOCUMENT RETENTION Supporting documents Maintain in a manner so that they can be easily matched to a driver s ELD record Staff should regularly compare supporting documents to ELD records on a regular basis Random audit policy and procedure Anticipate and prepare for a visit from a FMCSA auditor

60 PROBLEM SOLVED? ELDs will not eliminate all violations Drivers and staff must work together Drivers will incorrectly record information Staff should be trained to review, identify, and correct potential errors Policies and procedures Violations of the rules Consequences

61 PROBLEM SOLVED? Anticipate and minimize implementation loss of productivity Transition time Training Time management Teamwork (internal and external) Track and analyze data

62 ELD SELECTION Must use a certified ELD FMCSA certified ELD website

63 ELD SELECTION There are a multitude of options Select the right device for your business

64 *WARNING* You must select a certified ELD ELD certification process is self certification Anyone can register and claim certification There is a 444 page FMCSA issued test process for certification Vendor contract considerations YOU MUST PERFORM YOUR OWN DUE DILIGENCE

65 FMCSA COMMENT ON ELD WEBSITE HERE YOU MAY VIEW A LIST OF ELECTRONIC LOGGING DEVICES REGISTERED WITH THIS SITE. THESE DEVICES ARE SELF-CERTIFIED BY THE MANUFACTURER AND NOT BY THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

66 Presented by: Rob Moseley 2 West Washington Street, Suite 1100 Greenville, SC rob.moseley@smithmoorelaw.com Moderated by: Kurt Rozelsky 2 West Washington Street, Suite 1100 Greenville, SC kurt.rozelsky@smithmoorelaw.com