Compliance and Regulatory Update: February, 2018

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Compliance and Regulatory Update: February, 2018

ELD Waiver Granted

Affects Short Term Truck Rentals

In order for the system to work the ELD mounted in the truck must be able to communicate with the motor carrier’s back office software. That’s not a problem if all of the motor carrier’s truck are equipped equally and the drivers are trained to operate them. Unfortunately, that’s not the case when a truck is rented to meet short term fleet needs.

Although there are some basic standards that ELD devices must meet, the sheer volume of the different types and manufacturers makes for a pretty complicated landscape. To avoid potential problems, the Truck Rental and Leasing Association (TRALA) asked for and was granted a waiver. As a result, trucks rented for 30 days or less are not required to be equipped with ELDs. However, this waiver does have conditions:

(1)	This waiver is effective through April 19, 2018.
(2)	This exemption covers rental of any property-carrying CMV for a period of 30 days or less, regardless of the reason for the rental. Evidence that a carrier has replaced one rental CMV with another on 30-day cycles or attempted to renew a rental agreement for the same CMV for a period beyond 30 days will be regarded as a violation of the waiver.
(3)	Carriers and drivers operating under this waiver must comply with all other applicable requirements of the Federal Motor Carrier Safety Regulations, including the preparation of paper records of duty status (RODS) for operations which are currently considered to be subject to the HOS rules and the record retention requirements associated with those RODs and supporting documents.
(4)	Motor carriers operating under this waiver must have a ”satisfactory” safety rating from FMCSA or be unrated; motor carriers with ”conditional” or ”unsatisfactory” safety ratings are prohibited from taking advantage of the waiver.
(5)	Carriers operating under this waiver must ensure that their drivers carry a copy of this Federal Register notice in the vehicle and present it to motor carrier safety enforcement officials upon request.
(6)	Carriers operating under this waiver must notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5), involving any of the motor carrier’s drivers operating under the terms of this waiver. The notification must include the following information:
	— Identity of Waiver: ”TRALA,” — Date of the accident, — City or town, and State closest to the accident scene, — Driver’s name and license number, — Co-driver’s name and license number (if applicable), — Vehicle number and State license number, — Number of individuals suffering physical injury, — Number of fatalities, — The police-reported cause of the accident, — Whether the driver was cited for violation of any traffic laws or motor carrier safety regulations, and — The total driving time and total on duty time period prior to the accident.
	Accident notifications must be emailed to MCPSD@dot.gov.
(7)	FMCSA expects that any drivers and their employing motor carrier operating under the terms and conditions of this waiver will maintain their safety record. Should any safety problems be discovered, however, FMCSA will take all steps necessary to protect the public interest. Use of this waiver is voluntary, and FMCSA will immediately revoke the waiver for any interstate driver or motor carrier for failure to comply with the terms.

TRALA has applied to extend this waiver through the end of 2018.

ELD Usage Scenarios

Short Haul Exemption Problematic

Scenario: If a driver operates outside of the short-haul exemption greater than 8 times in a 30-day period, is the driver required to continue using an ELD on days when he/she would have otherwise been considered a short-haul operator?

Guidance: No, an ELD is the required method of recording a driver’s hours-of-service only when he/she is not otherwise exempt. In the scenario outlined, the driver would be required to use an ELD only on the days beyond 8 in a 30-day period when he/she doesn’t meet the definition of a short-haul operator (i.e. over 100 air miles or over 12 hours).

This is an interesting case. Let’s say that a driver has had 8 days where he/she went beyond the short haul exemption and completed a RODS. On succeeding days the driver is not required to use an ELD unless they fall outside the exemption. The problem here is that at the beginning of the day it appears to the dispatcher and driver that the day will end before exceeding the short haul exemption, so the driver takes off in a truck without an ELD. Unfortunately, events don’t work out as planned and the driver exceeds 12 hours which means he/she must use an ELD, but the truck is not equipped. After the 8th day, unless everyone is absolutely certain the driver will not exceed the exemption, the driver should be in a truck equipped with an ELD and use it to record hours of service just in case. To do otherwise could result in a violation.

Scenario: A driver is stopped for a roadside inspection on a day in which he/she is considered a short-haul operator. Thus, the driver does not have a record of duty status (RODS) in the vehicle and a timecard is stored at the terminal. However, the said driver often travels beyond the terms of a short-haul operator and uses and ELD when required. At the time of the inspection, the driver used an ELD to prepare his/her RODS for the two days prior to the day of the inspection. Is the driver required to have copies of the RODS from the 2 previous days despite the vehicle being operated at the time of the inspection not being fitted with an ELD?

Guidance: Yes, per interpretation #20 of 49 CFR Part 395.8, the driver must possess the RODS from days in which he/she is not considered a short-haul operator. Given the scenario above, the driver could accomplish this via printed ELD records for the previous 2 days available for the inspector to review.

Scenario: The ELD is not always capturing the odometer reading. Should the company officials manually input data as the result of a malfunction or data error?

Guidance: Yes, the company officials should input the missing data if it is required to be captured by the ELD. There is not currently guidance for enforcement personnel outlining the number of errors or malfunctions which would deem the device no longer a valid ELD for use.

Clean Inspections Increase

Compliance or Enforcement Change?

The Commercial Vehicle Safety Alliance believes that the increase in clean inspections is due at least in part to inspectors completing the violation report even if there were no violations found during the inspection. Another contributor is the fact that hours of service violations have shown a steady decline as the industry approached the mandated use of ELD devices. The problem created when a “clean” inspection is not submitted is that it skews the CSA scoring system.

However, Arizona Captain Brian Preston has stated that incentivizing clean inspections as a general rule isn’t something he wants to actively encourage among his state’s Department of Public Safety Officers. He views his department’s priority to be finding problems that need correction.

The answer seems to be that the increase in clean inspections is both the result of enforcement changes (completing and submitting reports of all inspections) as well as a general reduction of violations, particularly in the area of hours of service.

However, the challenges will continue through 2018 and carrier’s must continue proactive programs designed to reduce all violations and also remain aware that enforcement activities may be refocused, but will not necessarily decrease.