OOIDA ELD delay Photo: Aaron Marsh/Fleet Owner

ELD mandate still a ‘moving target,’ FTR says

According to analysts, ELD exemptions, enforcement and how insurers will handle carrier premiums going forward are still undetermined.

The trucking industry has yet to really feel the full effects of the electronic logging device (ELD) mandate. According to Avery Vise, FTR’s vice president of trucking research, the mandate itself is still a “moving target in many ways,” meaning uncertainties surrounding exemptions, enforcement, and carriers’ insurance premiums continue to linger.

During FTR’s State of Freight: ELD Implementation Impacts webinar on Feb. 8, Vise reiterated that violations for failure to have electronic hours of service (HOS) logs won’t go into effect until April 1. And when it comes to the private sector, he noted shippers and brokers in most cases will not single out ELD compliance as opposed to general HOS compliance under the Federal Motor Carrier Safety Administration (FMCSA).

“Most contracts between carriers and the people who give them freight require that they certify they are going to follow the regulations,” Vise explained. “And most people in the shipping industry have decided it’s neither wise nor necessary to single out ELDs.”

In addition, insurers for the small carriers are not likely to ensure those carriers comply with the mandate, either. But that won’t necessarily be the case for larger carriers.

“We expect there might be some more aggressive involvement in loss control as it comes into play with larger carriers, but for small carriers, there just aren’t the resources to do that,” he explained. “Their insurance premiums are pretty high to cover that risk, so they will of course have to certify compliance with the hours of service regulations, but there won’t be much involvement by their insurers in ensuring that they actually comply.”

Clay Slaughter, senior analyst at FTR, pointed out that insurers are going to want to see some hard proof that larger carriers are complying with applicable laws as part of their loss-control processes.

“The insurer is going to build into the premium an expectation that some people aren’t going to comply and then they’ll have to reevaluate whether or not they’ll continue to use them as a client,” Slaughter explained. “Obviously any carrier that’s going to have multiple violations is going to see a change in that insurance premium, or they’re no longer going to be covered.”

Enforcement and violations

Even though the mandate has been in effect for about two months now, Vise noted there is still a substantial portion of the nation where there is either no enforcement going on, or there is” inconsistent or spotty enforcement.”

States are capturing violation data though it doesn’t yet count against CSA scores, and they do so by using a particular code: 39522A, Vise explained. However, based on FTR’s research of public uploads over the last two months that violation code does not appear in the data.

“That’s not such a big deal necessarily, except that we are seeing there has been an increases in two classes of violations: One is the 3958A, which is basically the driver didn’t have logs, or the 39515 violation, which is basically the existing AOBRD standard,” Vise said, noting both violations have increased, but not necessarily in large numbers.

“The important thing here is that these do have severity weights assigned to them,” he added. “If an inspector is giving a carrier one of these violations, that’s actually going to affect their CSA scores. It’s something that FMCSA is on record, in writing, saying, ‘This should not affect CSA scores.’”

Vise said carriers who have been logged as a 3958A violation when they should have been logged as a 39522A violation, will have to file a DataQs challenge so it doesn’t impact their CSA scores.

Pending exemption applications

The industry currently has two guidance documents that have been put out for comment: One on personal conveyance and the other is agricultural commodities hours of service exception.

In addition, the Owner Operator Independent Driver Association (OOIDA) recently filed a substantial exemption request that is still pending. OOIDA’s request is for small businesses that earn less than $27.5 million in annual revenue and that do not have an unsatisfactory safety rating, which Vise said comprises virtually all carriers.

“If you have an unsatisfactory safety rating that you do not correct, you’re out of business,” he pointed out. “So that’s sort of a throwaway … I think clearly OOIDA has in mind something that is more favorable to the carrier perhaps than what we see in the crash-preventability program that we have in place now.”

More than 4,000 comments have been filed regarding this exemption, which the American Trucking Assns. (ATA), safety advocate groups, and various individual large carriers have opposed.

“My personal feeling is it’s not likely to succeed, but it’s a nonzero chance,” Vise explained. “There is some chance that this could succeed, so we’ll have to watch.”

According to FTR data, 93% of one-truck-operating over-the-road (OTR) companies had no DOT-recordable crashes in the past two years. And 81% of all OTR trucking companies had no DOT-recordable crashes in the past two years. If this exemption does succeed, in theory, a vast majority of the industry would not have to comply with the mandate.

“At some point in time when an executive branch makes an exemption of a legislative mandate we get into a legal issue where we simply undermine the will of the legislature,” Slaughter noted. “Even if this does comes to pass, we will have a legal argument rather than just an undermining of a legislative mandate.”

Vise also pointed out that this pitch was made during the rulemaking process, and ATA rejected it then.

“It’s not like this hasn’t been raised before,” he contended. “But it will be an interesting battle and certainly it’s not inconceivable that we could see it crop up in Congress as part of a funding bill down the road.”

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