We're never going to give up'

By Jami Jones, managing editor

It’s been nearly four decades since OOIDA first stepped out in opposition to mandated use of electronic logging, and it’s not done yet.

The fact that the U.S. Supreme Court didn’t select the petition didn’t derail or end the Association’s efforts to repeal or delay the ELD mandate.

“We have always known this was going to be a big fight,” OOIDA President Jim Johnston said. “We knew the Supreme Court was going to be a long shot to get them to hear our case because they get so many requests.

“But it wasn’t our only shot.”

The Owner-Operator Independent Drivers Association has been actively working on a number of other avenues seeking a repeal, or at the least a delay, of the mandate.

“We have Congress with a legislative solution; we have the Trump administration and their desire to do away with unnecessary or burdensome regulations. And, this certainly falls in this category.” Johnston said about OOIDA’s continued efforts.

“Our battle over ELDs is a battle for the rights of professional truck drivers. It treats them worse than we treat criminals,” Johnston said. “It’s a matter of the constitutional rights of our members. We’re never going to give up on that.”

The tenacity of OOIDA’s multi-pronged approach caught a new gear in mid-July. Rep. Brian Babin introduced a bill that would delay the compliance deadline two years. OOIDA threw its full support behind Babin’s bill and called on members to call their members of the House of Representatives in support of the ELD delay bill introduced by Babin.

Babin’s bill followed language in a report issued by the House Committee on Appropriations directing FMCSA to analyze a “full or targeted” delay of the mandate because of the burden it places on small motor carriers. The report accompanies the transportation appropriations bill for 2018, and the language in the report will go into effect if and when the appropriations bill is signed into law.

Both instances are because of the continued efforts of OOIDA. And, that’s not all. OOIDA is preparing to petition FMCSA for a delay.

The Association has also been building a coalition of other groups who have unresolvable issues with the impending mandate. The collective pressure by those groups will help legislation, such as the Babin bill, move forward.

As the deadline nears and it is becoming clear that the electronic logging mandate is plagued by significant problems, other groups – some of which supported the mandate – are finally punching in and looking for other ways to avoid or delay compliance with the mandate.

Scrambling for cover

In the days leading up to the introduction of Babin’s bill, the agency is beginning to acknowledge that a one-size-fits-all mandate is going to be problematic.

Case in point is the livestock-hauling segment of the industry. The agency issued guidance (essentially a description of how the rule is to be applied) that allows livestock haulers to operate within the 150-mile air radius exemption without using electronic logs.

The ag groups have lobbied hard and scored legislative language in the 2018 appropriations bill that will give them an exemption from the regulation. Some D.C. insiders speculate that the language is not clear enough and could apply to livestock haulers only when loaded. Debate on the language had not commenced as of press time.

Other segments of the trucking industry have petitioned FMCSA for exemptions from the mandate because of operational concerns.

The first was the Truck Renting and Leasing Association.

“TRALA cites technical concerns regarding interoperability of data between devices, truck breakdowns, and data transfer and liability concerns as why their vehicles should be exempted from the ELD mandate,” the group wrote in the petition request.

Interestingly, the group had previously supported the mandate.

UPS, prison transporters, water and welling firms and construction groups have also piled on, looking to get a free pass from the mandate.

As of mid-July, the agency has not ruled on any of the exemption requests, and more are anticipated to be submitted.

No confidence

Central to many of the concerns are the devices themselves, how the agency is going to ensure the devices are compliant, and how law enforcement will be able to access its data for enforcement purposes.

The agency has opted for a self-certification process where manufacturers simply submit to the agency that their devices are compliant. If a device is found to be noncompliant by the agency any truckers using the noncompliant device will have to use paper logs and replace the noncompliant device within eight days.

Compounding the device compliance issue, FMCSA continues grappling with data transfer questions.

The gist of the devices is to ensure hours-of-service compliance. But, if law enforcement cannot utilize a uniform method of reviewing the data captured, that presents enforcement issues. As of press time, FMCSA still had not announced definitive answers to the reliability of the two universally acceptable methods of data transfer.

Those issues alone leave many truckers wary of investing heavily in the unknown.

Buying time

While the war wages on toward a delay or repeal, truckers are beginning to weigh their options on the least risky path of compliance in the event FMCSA forges ahead with the December deadline.

The lone option – short of buying a pre-2000 truck – available to the vast majority of truck drivers who have the option to select their own device is to use an automatic on-board recording device. The devices are grandfathered in under the upcoming reg and will be good until December 2019.

An automatic on-board recording device, or AOBRD, is essentially like an ELD except that it captures and stores less data. The devices are connected to the engine and record HOS compliance. Their simplicity is attractive to drivers who may not be very tech savvy and who could use a learning curve before jumping to a more complex device.

FMCSA spokesman Duane DeBruyne confirmed to Land Line that any driver who voluntarily adopts an AOBRD before the Dec. 18 ELD deadline will be grandfathered in.

The AOBRD captures key elements similar to a compliant ELD; however, it goes about storing and displaying information differently. For example, both devices capture the date and time; engine hours; vehicle miles and locations. But the ELD is required to do a lot of that automatically and more frequently.

Many AOBRD devices work with a unit that plugs into the ECM and transmits required information to a mobile device like a cellphone or tablet. Some have their own display units, as well. The AOBRD is required to be able to produce on demand a chart, electronic display or printout showing the time; sequence of duty status changes including the drivers’ starting time at the beginning of the day.

Both the AOBRD and ELD requirements state that drivers need to have the seven previous days of logs handy for review during an inspection.

“While there is no requirement in the regulations to document when an AOBRD was installed in a commercial motor vehicle, under 49 CFR 395.15 the carrier is required to maintain a certificate of compliance for the device,” De Bruyne told Land Line.

Costs on the AOBRDs are significantly lower, and most do not have recurring data usage costs like ELDs. LL