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ELDs: Vetting and Certification

Aaron Huff in CCJ

In April, the Federal Motor Carrier Safety Administration published a 440-page document that contains specific instructions and step-by-step testing procedures for electronic logging devices.

The document is supposed to help ELD manufacturers register and self-certify their products with the technical standards of the ELD rule.

The agency’s ELD rule went into effect December, 2015, and enforcement is set to begin Dec. 18, 2017. After this deadline, all carriers and truck drivers — with some exceptions — will be required to use “certified” ELD devices in the agency’s online registry.

Getting in the registry is a marketing opportunity for ELD suppliers, especially those who are relatively new and unknown in the industry. The registration and self-certification process is raising some eyebrows, however.

Currently, five ELD suppliers and their products are listed in the ELD registry, but neither the FMCSA nor any independent third party has conducted tests to verify they meet the requirements in the 440-page document.

One requirement is that ELDs can transfer a raw data file to an external application called Electronic Record of Duty Status (ERODS). The ERODS application is currently being developed by the FMCSA, and may not be available for testing until late 2017, says Elise Chianelli, director of safety and compliance for PeopleNet.

Per the ELD rule, the file transfer has to be done using wireless or local methods. The transfer will make roadside inspections more efficient and accurate for law officers. Rather than looking at a driver’s ELD display, officers will use ERODS to audit a driver’s hours-of-service data and quickly detect any violations in their current 8-day duty cycle.

Being listed in the ELD registry without verifying the capability to transfer files to ERODS raises “a lot of questions,” Chianelli says.

Tom Cuthberson, vice president of regulatory compliance for Omnitracs, agrees that suppliers should have to comply with this and other ELD requirements before they are listed in the FMCSA’s online registry.

Like many other suppliers, Omnitracs has AOBRD-compliant applications for in-cab and mobile platforms as it works on adding new features to its products to offer a fully compliant ELD version.

Because of the delay from ERODS, “it’s going to take some time” for Omnitracs to register and self-certify ELD products, he says. “There is quite a bit of work to do to make sure we vet out our product properly.”

As reported by Todd Dills, senior editor of CCJ’s sister publication, Overdrive, the FMCSA has started to reach out to several providers listed in the registry to conduct additional vetting.

During an online listening session with ELD manufacturers, a spokesperson for the FMCSA said the certification of ELD products can be challenged. After reviewing a challenge, the agency would remove a product from the ELD registry and give the manufacturer 30 days to respond, Cuthberson says.

The FMCSA also raised the possibility that if manufacturers do not reconcile a challenge within 30 days, the manufacturer would have to be vetted by an independent third party to ensure their product meets the ELD test requirements in the 440-page document before they can be re-listed, he says.

Studies show that about half of motor carriers are currently using electronic logs that meet the AOBRD standard. The ELD rule grants a two-year extension for AOBRD users to convert to the new ELD specifications. In most cases the conversion will only require a software update.

Both Chianelli and Cuthberson agreed that fleets that currently use AOBRDs might decide to delay implementation of a full ELD version until 2019, as some required features could add complexity to their operations.

For instance, the new ELD rule requires that all unassigned drive time – the time that is recorded to the vehicle but not assigned to a driver ID – be presented to drivers during the ELD login process.

The driver has the first right to reconcile these events before management steps in.

Presenting unassigned events to a driver at login could be especially difficult for fleets with slip-seat operations, Chianelli says. What if drivers reject driving activities that belong to them?

“If you have supporting documents stating that a driver is in the cab, moving a load, but they are rejecting a driving activity, what does that mean?” she adds. “I see a lot of company policies that need to be put into place to support that piece.”

Cuthberson advises that fleets create login credentials for the primary driver as well as logins for mechanics and other associates that drive short distances but who are exempt from hours-of-service rules. Defining the types of movements in the fleet, and assigning logins for exempt drivers, will help to eliminate the unassigned driving events that are presented to primary drivers at login, he says.

Frequently Asked Questions: Crash Preventability

Q: What are the two crash preventability notices published in July 2016?

One notice provides the Agency’s responses to comments received in response to our January 23, 2015, notice releasing the results of our crash preventability research. That notice explains that FMCSA conducted additional analysis, in response to comments, on how the Agency uses crash information.

The second Federal Register notice proposes developing and implementing a demonstration program to determine the efficacy of conducting preventability determinations on certain types of crashes that generally are less complex. This notice provides FMCSA’s proposal for a demonstration program and seeks additional comments.

Q: What crash information is currently available on the Safety Measurement System (SMS)?

The public SMS website provides information on the recordable crashes of motor carriers. The Crash Indicator BASIC percentiles have always been available only to motor carriers who log in to view their own data, as well as to Agency and law enforcement users.

Q: Why has FMCSA taken so long to take action on this issue?

Research on this issue conducted by FMCSA, as well as independent organizations, has demonstrated that crash involvement is a strong indicator of future crash risk, regardless of role in the crash. FMCSA’s recently completed SMS Effectiveness Test shows that motor carriers with high percentiles in the Crash Indicator BASIC have crash rates that are 85 percent higher than the national average.

The Agency took time to carefully study the issue carefully and gather public input before determining a path forward. Earlier this year the Agency published its report and asked for comments. The proposals in these notices are based on the comments received in response.

Q: The Fixing America’s Surface Transportation (FAST) Act does not require this program. Why is FMCSA doing this now?

The FAST Act only requires the Agency’s Motor Carrier Safety Advisory Committee (MCSAC) to review the treatment of preventability in the SMS once the National Academies of Science complete their study. However, in response to the Federal Register notice published on January 23, 2015, describing the Crash Weighting Study, the Agency continues to receive feedback from stakeholders expressing concerns about this issue. Proposing this program is a first step toward addressing those comments. By gathering data at this time, FMCSA will be able to provide the MCSAC with more data when considering a broader crash preventability program. By testing these limited crash scenarios, the Agency will be able to determine how often they are deemed “Not Preventable” and will be able to get experience operating a program to develop cost and resource estimates for any larger program.

Q: What is the Agency proposing?

On an effective date to be named in a future Federal Register notice, the Agency proposes to begin a demonstration program under which it would accept requests for data review (RDRs) through FMCSA’s DataQs system. The Agency would accept an RDR as part of this program when documentation proved that the crash was not preventable by the motor carrier or commercial driver.

A crash would be considered “not preventable” if the commercial motor vehicle (CMV) was struck by a motorist who was convicted of one of the four following offenses or a related offense:

  1. Driving under the influence;
  2. Driving the wrong direction;
  3. Striking the CMV in the rear; or
  4. Striking the CMV while it was legally stopped.

The demonstration program would also test the impacts of determining a crash to be “not preventable” when it was the result of a suicide, an animal strike, or an infrastructure failure.

Q: How long would the demonstration program run?

FMCSA proposes that the minimum time period for this crash preventability test would be 24 months.

Q: What would need to be submitted through the DataQs system?

The Agency proposes that evidence of a conviction must be submitted with the RDR to document that the crash was not preventable by the motor carrier or driver. In addition to documentation of the conviction, these RDRs would include all available law enforcement reports, insurance reports from all parties involved in the crash, and any other relevant information. For events that did not that did not result in a conviction (e.g., animal strikes and suicides), police reports and insurance information would be submitted.

Q: Why isn’t the Agency’s list of crash scenarios the same as those listed in the American Trucking Associations (ATA) proposal?

Because some of the crash scenarios submitted by ATA were too broadly defined and/or may not result in convictions, the Agency is not using the suggested standard of “was found responsible by law enforcement for the crash.” Previous research by the Agency showed that Police Accident Reports do not generally provide a clear determination as to the preventability of a crash. Relying on a conviction related to one of the crash scenarios described ensures all parties involved receive adequate due process.

Q: Who will be reviewing the Requests for Data Review during the demonstration program?

FMCSA is considering a process in DataQs that would direct these types of requests to a group of reviewers under the Agency’s direct supervision. This would be FMCSA staff and a third party under contract to FMCSA. During the test period, these RDRs would not be directed to the States.

Q: What are the potential outcomes from a crash preventability review?

The Agency proposes that the RDR would result in one of the following three decisions and actions:

  1. Not Preventable – In these cases, the crash is removed from SMS.
  2. Preventable – In these cases, the crash is not removed from SMS for purposes of calculating the Crash Indicator BASIC percentile. FMCSA is considering options for weighting these crashes and is looking at the impacts if the current severity weighting is used (based on crash severity) or if a higher weighting is used since a preventability decision has been made. When crashes are determined to be “Preventable,” the crash is still listed on the Agency’s websites with a note that reads, “FMCSA reviewed this crash and determined that it was preventable.”
  3. Undecided – In these cases, the documentation submitted did not allow for a conclusive decision by reviewers. When crash reviews are undecided, the crash is not removed from SMS and the severity weighting is unchanged. The crash will still be listed on the Agency’s websites with a note that reads, “FMCSA reviewed this crash and could not make a preventability determination based on the evidence provided.”

Q: What if the motor carrier, driver, or vehicle involved had an out of service violation at the time of the crash?

In keeping with the Agency’s current preventability guidance, if a post-crash inspection determines that the motor carrier, vehicle, or driver was in violation of an out-of-service regulation at the time of the crash, the crash will be determined to have been “Preventable.”

Q: Would the Agency still complete preventability reviews during investigations?

Under this demonstration program, the Agency would continue to make crash preventability determinations before issuing adverse safety ratings based on crashes, and the appropriate changes to the websites, as described above, would be made. Finally, this process would also apply to any crashes challenged under 49 CFR 385.15 that were determined to be “not preventable.”

Q: Would there be an appeals process?

The public, including motor carriers and drivers, would be allowed to appeal the RDR decision to FMCSA using the DataQs system and processes currently in place.

Q: What happens if a carrier submits a fraudulent request?

Any intentionally false or misleading statement, representation, or document that is provided in support of an RDR may result in prosecution for a violation of Federal law punishable by a fine of not more than $10,000.00 or imprisonment for not more than 5 years, or both (18 USC 1001).

Q: How does this demonstration program impact the Safety Fitness Determination (SFD) Notice of Proposed Rulemaking?

The SFD proposal would only use crashes that been reviewed for preventability in any proposed unfit rating, consistent with current practices and, therefore, it is not impacted by this program which only will affect crashes displayed on the Agency’s SMS website.

Understanding the FAST Act

FAST Act: Overview

  • Enacted on December 4, 2015 (PL 114-94)
  • Five year bill that sets FMCSA authorization funding levels through FY 2020.
  • MCSAP grant programs will be restructured beginning in FY 2017 along with an increase in MCSAP funding.
  • Operating expense authorization levels slightly increased through FY 2020.
  • Significant number of Agency mandates:
    • Studies: 5
    • Working Groups: 6
    • Rulemaking: 20
    • FMCSA Reports to Congress: 15

FAST Act: Rulemakings

  • 5106(b) MCSAP Allocation
  • 5301 Windshield Technology
  • 5401(a) Opportunities for Veterans Interim Final Rule
  • 5401(c) Opportunities for Veterans
  • 5402 (a) Drug Free Commercial Drivers
  • 5403 Medical Certification of Veterans
  • 5107(c) Maintenance of Effort Calculation
  • 5501(b) Delays in Goods Movement
  • 5107(a) Maintenance of Effort Calculation
  • 7208 Hazardous Materials Endorsement
  • 5206(b)(1) Applications
  • 5524 Welding Truck Exemptions
  • 5519 Operators of High Rail Vehicles
  • 5521 Ready Mix Concrete Vehicles
  • 5518 Covered Farm Vehicles
  • 5522 Transportation of Construction Materials and Equipment
  • 5507 Electronic Logging Device Requirements
  • 5205 Inspector Standards
  • 5101(a) Grants to States
  • 5206(a) Applications

FAST Act: Compliance, Safety, Accountability

The FAST Act requires the National Research Council of the National Academies of Science (NAS) to conduct a thorough study of the Compliance, Safety, Accountability (CSA) program, specifically the Safety Measurement System (SMS).

Study Requirements

NAS will conduct an independent correlation study of SMS.  The FAST Act has outlined several elements that NAS must analyze and/or consider, including:

  • The accuracy with which the Behavior Analysis and Safety Improvement Categories (BASIC) identify high risk carriers; and predict or are correlated with future crash risk, crash severity, or other safety indicators for motor carriers, including the high risk carriers;
  • The methodology used to calculate BASIC percentiles and identify carriers for enforcement, including the weights assigned to particular violations and the tie between crash risk and specific regulatory violations, with respect to accurately identifying and predicting future crash risk for motor carriers;
  • The relative value of inspection information and roadside enforcement data;
  • Any data collection gaps or data sufficiency problems that may exist and the impact of those gaps and problems on the efficacy of the CSA program;
  • The accuracy of safety data, including the use of crash data from crashes in which a motor carrier was free from fault;
  • Whether BASIC percentiles for motor carriers of passengers should be calculated separately from motor carriers of freight;
  • The difference in the rates at which safety violations are reported to FMCSA for inclusion in the SMS by various enforcement authorities, including States, territories, and Federal inspectors;
  • How members of the public use the SMS and what effect making the SMS information public has had on reducing crashes and eliminating unsafe motor carriers from the industry;
  • Whether the SMS provides comparable precision and confidence, through SMS alerts and percentiles, for the relative crash risk of individual large and small motor carriers;
  • Whether alternatives to the SMS would identify high risk carriers more accurately; and
  • The recommendations and findings of the Comptroller General of the United States and the Inspector General of the Department and independent review team reports, issued before the date of enactment of the FAST Act.

For further information about the SMS Correlation Study, see the National Academies of Sciences webpage: http://www.trb.org/PolicyStudies/ReviewFederalMotorCarrierSafety.aspx [external link] .

Within 18 months of the enactment of the FAST Act, FMCSA will submit the results of this study to both Congress and the Department of Transportation’s (DOT) Office of Inspector General.  The results will also be published on a publicly-accessible Department of Transportation website.

Post-Study Requirements: If the study report identifies a deficiency or opportunity for improvement, FMCSA will submit a corrective action plan to Congress that will be reviewed by the Inspector General of the Department.

Public Availability of SMS Alerts and Percentiles: As required by Section 5223 of the FAST Act, FMCSA has removed alerts and relative percentiles for property carriers from the public display of the SMS. FMCSA is prohibited from publishing this information until the SMS Correlation Study is complete, and all reporting requirements and certification requirements under the FAST Act are satisfied.

Outcomes: A report to Congress containing study findings; study findings should also be published on a publicly accessible Web site.

Milestones: February 2016: Contract awarded

June 2017: Report to Congress; report published on publicly accessible Web site

Funding: FY 2016: $971,519

Current Status: Project is on schedule. For more details, visit: http://www.trb.org/PolicyStudies/ReviewFederalMotorCarrierSafety.aspx [external link].

Project Manager: For more information, contact Albert Alvarez of the FMCSA Research Division at (202) 385-2387 or albert.alvarez@dot.gov

Contractor:National Research Council of the National Academy of Sciences

FAST Act: Working Groups

The FAST Act calls for the Federal Motor Carrier Safety Administration to establish several working groups to assist the Agency’s implementation efforts. Working groups required by the FAST Act include:

  • MCSAP Allocation Formula (FAST Section 5106(a)(1))
    • Purpose: To analyze requirements and factors necessary for the establishment of a new allocation formula for the Motor Carrier Safety Assistance Program (MCSAP) and issue a recommendation to the Secretary regarding a new allocation formula for the MCSAP.
    • Membership: Representatives from FMCSA, State commercial motor vehicle safety agencies, an organization representing State agencies responsible for inspection of commercial motor vehicles; and such other persons as the Secretary considers necessary.
  • Preventable Crashes (FAST Section 5225)
    • Purpose: The establishment of this working group is tied to the FAST Act Safety Measurement System (SMS) Correlation Study. No later than 1 year after the Inspector General certifies that the conditions of FAST Act Section 5223(a) are met, the Secretary shall task the Motor Carrier Safety Advisory Committee (MCSAC) with reviewing the treatment of preventable crashes under SMS. The working group will make recommendations to the Secretary on a process to allow motor carriers and drivers to request that the Administrator make a determination with respect to the preventability of a crash if such a process has not yet been established, and issue a report to Congress on how the Secretary intends to address the treatment of preventable crashes.
    • Membership: The MCSAC is comprised of 20 members appointed by the Administrator for two-year terms and includes representatives of the motor carrier safety advocacy, safety enforcement, industry, and labor communities.
  • Post-Accident Report (FAST Section 5306(a))
    • Purpose: Review the data elements of post-accident reports, for tow-away accidents involving commercial motor vehicles that are reported to the Federal Government; and to report to the Secretary its findings, including best practices for State post-accident reports.
    • Membership: Not less than 51 percent of the working group shall be composed of individuals representing the States or State law enforcement officials. The remaining members of the working group shall represent industry, labor, safety advocates, and other interested parties.
  • Military Commercial Driver Pilot Program (FAST Section 5404)
    • Purpose: To review the data collected by the Agency in its military commercial driver pilot program and provide recommendations to the Secretary on the feasibility, benefits, and safety impacts of allowing a covered driver to operate a commercial motor vehicle in interstate commerce.
    • Membership: Representatives of the Agency, armed forces, industry, drivers, safety advocacy organizations, and State licensing and enforcement officials.
  • Household Goods Consumer Protection Working Group (FAST Section 5503)
    • Purpose: To develop recommendations on how to best convey to consumers relevant information with respect to Federal laws concerning the interstate transportation of household goods by motor carrier.
    • Membership: Representatives of the Agency, individuals with expertise in consumer affairs, educators with expertise in how people learn most effectively, and representatives of the household goods moving industry.

FAST Act: Authorization Levels

  FY16 FY17 FY18 FY19 FY20
MCSAP *$218,000,000 $292,600,000 $298,900,000 $304,300,000 $308,700,000
High Priority Activities Program ** $15,000,000 $42,200,000 $43,100,000 $44,000,000 $44,900,000
CMV Operators ***$1,000,000 $1,000,000 $1,000,000 $1,000,000 $1,000,000
CDLPI $30,000,000 $31,200,000 $31,800,000 $32,500,000 $33,200,000
CVISN $25,000,000 Collapses into High Priority Activities FY17-20
BEG $32,000,000 Collapses into MCSAP FY17-20
New Entrant **$32,000,000 Collapses into MCSAP FY17-20
PRISM $5,000,000 Collapses into MCSAP FY17-20
SADIP $3,000,000 Collapses into MCSAP FY17-20

FAST Act: Reports