Unassigned Miles And Managing AOBRD And ELD Data

Unassigned Miles and Managing AOBRD and ELD Data

The primary purpose behind the new Electronic Logging Device (ELD) rule is to ensure that every time the wheels on a truck move – the movement is captured by the ELD and assigned to the appropriate driver. The Federal Motor Carrier Safety Administration’s (FMCSA) goal is to prevent drivers from exceeding Hours of Service (HOS) limits by hiding or not recording drive time. Therefore, any drive time that is not assigned to a driver will be one of the main focuses of the FMCSA or state enforcement agencies during an audit or compliance review.

Unassigned drive time can quickly accumulate if not managed daily. Although drivers may have various reasons for not logging into a device, one motive may be to evade the rules in an attempt to drive more than the HOS limits allow. While ELDs are required to show unassigned drive time – drivers are not required to “accept” that time. If the proper driver does not assume “unassigned” drive time, the burden to track and assign that time falls on the motor carrier.

Motor carriers should select an ELD system that produces appropriate reports showing all unassigned drive time for every ELD and Automatic Onboard Recording Device (AOBRD) in use in their fleet. Motor carriers should work with drivers to quickly address all unassigned drive time to ensure the drivers’ logs are correct. If a motor carrier does not assign all drive time, FMCSA or a state enforcement agency will ask to review all unassigned time and investigate why it was not assigned. Failure to assign the drive time will likely result in “false log” violations for those drivers that should have accepted drive time and may result in a downgrade of a carrier’s safety rating.

There are other ELD data requirements a motor carrier is required to monitor. These include malfunctions, data diagnostic issues, other information the systems capture that may signal a problem or tampering by a driver.

In addition to addressing unassigned drive time and other ELD outputs, there is also the “supporting document” requirement. This requirement verifies if drivers are properly logging activities such as fueling, roadside inspections and other tasks as “on-duty” time.

The Scopelitis Regulatory Compliance Team regularly works with and counsels motor carriers on ELD and AOBRD systems and how best to manage the data and potential violations found in the systems.

FMCSA Exemptions to the ELD Mandate

The FMCSA has recently announced two exemptions to the new ELD mandate. In the first exemption, the FMCSA stated that drivers of a property-carrying commercial motor vehicle (CMV), rented for eight days or less, are not required to use an ELD. Drivers using this exemption must comply with the Hours of Service (HOS) regulations and keep a paper record of duty status. Drivers using this “rental-truck” exemption must also keep a copy of the CMV rental agreement in the vehicle.

The second exemption granted by the FMCSA came in response to a request by UPS regarding its drivers’ use of the “yard move” status. The FMCSA established an exemption that allows an ELD’s software configuration to have a driver in “yard move” status and to remain in that status after every ignition on/off cycle. To qualify for this exemption, the ELD must automatically switch from “yard move” status to “driving” status if the truck exceeds 20 mph, or the vehicle exits a geo-fenced motor carrier facility. The FMCSA has granted this exemption to the entire motor carrier industry for a period of five years.

Scopelitis Welcomed New Attorneys

Scopelitis welcomed new attorneys Tyler Biddle and James Eckhart, who began their law practice this fall in the Firm’s Indianapolis office.

Tyler Biddle will work with the Firm’s International Transportation & Logistics Law and Air and Ocean Regulation, Transactions, & Litigation PracticeAreas. Read Tyler’s full bio here.

James Eckhart will work with the Firm’s Class Action Defense & Complex Litigation, Independent Contractor Issues, Labor & Employment, and Litigation & Appellate Practice Areas. Read Jim’s full bio here.

Spotlight on Regulatory Compliance Practice Area’s ELD Review and Audits

With the ELD mandate set to take effect on December 18, 2017, motor carriers must be certain the ELD platform they choose is compliant with federal regulations. Although ELD manufacturers are required to self-certify that their device is compliant, the FMCSA has commented that it will not actively police the list of self-certified ELD manufacturers. The FMCSA has stated it will only provide a motor carrier with eight days to remedy a non-compliant device that may require an immediate replacement with a new ELD system. As such, it is critical for motor carriers to proactively ensure the device they have chosen is compliant in order to avoid the burden of an 8-day timeline.

At the request of ELD manufacturers, Scopelitis Attorney and Former FMCSA Administrator Annette Sandberg and Scopelitis Attorney Jerad Childress have reviewed numerous ELD platforms over the past year. Their third-party review of the manufacturer’s ELD platform is conducted in two phases and is designed to assess compliance with the technical specifications of the ELD regulations. Phase one involves back-office or administrative testing while phase two is aimed at in-truck testing of the device. The ultimate goal is to provide the ELD manufacturer with regulatory insights, and once all regulatory requirements have been satisfied, a third-party verification of compliance is issued for the device.

Sandberg and Childress have also utilized their extensive knowledge of ELD regulations to provide motor carriers with guidance on various ELD requirements. Similar to a manufacturer audit of an ELD device, the approach for a motor carrier ELD audit consists of back-office/administrative and in-truck testing. “Based on our report and recommendations, motor carriers may be able to resolve areas of non-compliance during early implementation phases,” said Sandberg. “We can decrease the chances of unfavorable roadside inspections or DOT audit results.”

In addition to Sandberg and Childress, Indianapolis-based Scopelitis Attorneys Tim Wiseman and Brandon Wiseman have extensive knowledge of ELD regulations and best practices, as well as Mt. Ephriam-based Attorney Tom O’Donnell.

For more information or to contact a member of the team, please visit our Regulatory Compliance Practice Area’s page

ELDs Present Unique Opportunities and Challenges for Shippers and Intermediaries

The ELD mandate, although not directly applicable to anyone other than regulated motor carriers and their drivers, may have a ripple effect on other industry stakeholders, including shippers and third-party intermediaries. ELDs may benefit shippers and third-party intermediaries through heightened visibility about the whereabouts and timing of their freight, especially when they engage carriers that have implemented ELDs with non-mandated telematics capabilities.

On the other hand, ELDs may pose unique risks. In an effort to obtain detailed data, shippers and intermediaries may be inclined to require motor carriers to adopt ELDs with specific tracking and functionality features. This is a slippery slope with joint-employment implications, because shippers and intermediaries may have increased access to driver-level decision making. This may lead to accusations that shippers or intermediaries are misusing ELDs and may open the door to FMCSA enforcement actions under the agency’s rule that prohibits coercing drivers to violate the safety regulations, including Hours-of-Service limits.

AOBRD v. ELD

Fleets using AOBRDs prior to the ELD compliance date may continue using AOBRDs until December 16, 2019. Thereafter, any trucks added to a fleet must be outfitted with a compliant ELD, unless a truck that was operating with an AOBRD is retired from the fleet. In this instance, the retired truck’s AOBRD may be used on the replacement truck. There are a number of added requirements (or benefits) associated with outfitting a fleet with ELDs versus AOBRDs.

Both devices must record data pulled from the vehicle’s engine control module (ECM), but an AOBRD records less data. ELDs automatically capture engine power status, vehicle motion status, miles driven, and engine hours while an AOBRD only requires “integral synchronization”
or a connection to the ECM.

In addition to differences in the mandatory electronic data transfer capabilities, another key distinction when comparing ELDs and AOBRDs is the manner in which unassigned drive time is handled. ELDs must account for all drive time and warn drivers about unassigned drive time and miles recorded when logging into the device. AOBRDs, on the other hand, are not required to prompt drivers about unassigned drive time. Motor carriers should take great care to ensure unassigned drive time is not allowed to remain on devices because roadside enforcement will likely require an explanation for each instance of unassigned drive time.

With the additional data captured by ELDs, fleets can better track and plan loads and monitor driver safety compliance efforts in accordance with the regulations. However, this additional data requires greater diligence on the part of motor carriers because it may expose more detail of possible violations during an onsite or roadside investigation.