The DOT says it was only doing its job.
ATLANTIC CITY, N.J. — Just when you thought you knew and heard it all about electronic logging devices (ELDs), there are still more questions to digest on this sweeping new federal mandate that applies to most ground transportation services.
To keep it simple, I will revisit the topic based on our panel discussion during the LCT-NLA Show East in November 2018. Our panel included Mike McDonal from Saucon Technologies and Richard Malchow from J.J. Keller & Associates, a compliance consultancy, and me as the moderator.
Here are some key questions we addressed: Is my limousine, minibus, or coach a CMV? Can I be interstate if I never leave the state? What are the hours of service limits for passenger carriers?
According to Federal Motor Carrier Safety Administration (FMCSA), a passenger vehicle carrying nine to 15 people including the driver is considered a commercial motor vehicle (CMV) defined in Title 49 CFR 390.5 Definitions. This would include eight to 10 passenger stretch limousines (120-in.) and vans.
So all limo companies and van services running commercial vehicles fall under the guidelines of the FMSCA:
1. Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight of 4,536 kg (10,001 pounds) or more, whichever is greater; or
2. Is designed or used to transport more than eight passengers (including the driver) for compensation; or
3. Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation.
Nos. 2 and 3 should read regardless of compensation. Also, remember if you purchase/rent a van or minibus and you remove a seat or seats, the regulation reverts to what the original manufacturer built with those vehicle specs.
Keith Johnson and operator Tom Holden of the consulting firm Bus Advisors. (LCT photo)
Interstate / Same State: You are considered doing interstate work if you pick up at an airport or a port for a cruise ship or even a train station. You are furthering the transportation of that person. For example, if you are hired to pick up a group of eight or more passengers flying into your airport, and you are taking them to a business or a hotel for meetings and later returning them to the airport, then the laws consider that interstate commerce.
Hours of Service Limits: Here is where you really need to pay attention and think. This may vary from an intrastate perspective if you are only intrastate. But for interstate, the limits are found in Section 395.5 for passenger carrying vehicles and it’s 15 hours on duty and that clock can be paused by off-duty time. Within that 15 hours, 10 hours of driving is allowed. But to reset either one of those hours of service clocks, the driver must be off-duty for eight consecutive hours. A driver can work 60 hours in seven days or 70 hours in eight days depending on how your operation is set up. If you run buses or limousines daily, you can use 70 hours in eight days, otherwise you must use 60 hours in seven days.
Keith Johnson and operator Tom Holden of the consulting firm Bus Advisors. (LCT photo)
The math really turns out to be about the same — about 8.5 hours per day, but of course it’s a little bit more flexible to use 70 hours in eight days. A driver can work beyond any of those limits. They just cannot operate a commercial motor vehicle, which means they can’t drive your limousine or a bus.
Remember, if you employ part-time drivers and they are compensated for work at another job, that driver must account for the hours they work there. For example, if an employee earns an income from Walmart for eight hours of work, he must add those eight hours to his or her logs. Those hours will count towards the 15 hours on duty for that 24-hour period. Since the employee has not driven a commercial motor vehicle in this example, he can drive for you, but not work more than seven hours on duty.
During our presentation, I asked McDonal and Malchow some questions:
Q: Companies have learned you are not required to have an ELD if you’re in that 100-air-mile radius. But if you are and do a port or airport pickup or drop-off, that’s considered interstate business. Must you have an ELD at that point?
A: That depends on how often the driver is required to log. So if he can use the short-haul exception, he still has hours of service rules to follow. He must still do all work within 12 hours. So, if he starts at 7 a.m., he must be released from work at 7 p.m. Those are consecutive hours. There is no extension. He must begin and end his day at the same location and stay within that 100-air-mile radius. From his normal work reporting location, likely your terminal, he can go 100 miles in any direction and drive as many miles within that circle as desired. He does have hours to follow, and must document that compliance, but doesn’t have to document that compliance with a log or with an ELD. It can be done with a time record. But if the driver logs more than eight times in a rolling 30 days, he must use an ELD until going back underneath that threshold.
Q: Can you explain off-duty time? Many companies don’t understand the driver can be off duty, such as at a basketball game.
A: The quick definition of on-duty is well defined in 395.2. But to get off-duty definition, you have to go to the second FMCSA interpretation of that section. It states the driver is free to pursue his own liberties, which is when the driver has been released from the duties of the vehicle passengers. Essentially, the driver can walk away from the vehicle. Now if the driver chooses to stay with the vehicle, he can still be off-duty, but must be free to walk away. He can’t sit in the driver’s seat.
Q: I do a lot of football shuttles, and my drivers go watch the football game. The way we are right now, they’re not on the clock during that time. Is that allowed? Richard Malchow from J.J. Keller & Associates helped explain the many compliance requirements involved with ELDs. (LCT photo)
A: That’s absolutely allowed. Your drivers are free to pursue activities. Now if you require them to watch the game, then they are not free to pursue activities. They must stay on duty NOT driving. But if they are free to watch the game and you tell them to return to the bus at a certain time, they can log off-duty the entire time they are away from the bus. Remember, this answer pertains to the ELD side. They’re off-duty. Don’t take that as a direction of employment. Check with employment law.
• Initial Compliance Date: Dec. 18, 2017
• Full Compliance Date: Dec. 16, 2019
Richard Malchow from J.J. Keller & Associates helped explain the many compliance requirements involved with ELDs. (LCT photo)
ELD is a three-stage process. Stage one went away on Dec. 18, 2017. That was logging software where a driver could enter logged times, and the device did not attach to the engine collecting data. We’re now in stage two of ELD compliance. You can use an automatic onboarding recording device or an electronic logging device up until Dec.16 at which time you must be in stage three: Full electronic log device compliance.
Also, a note: If you are AOBRD and you add a bus, it MUST be ELD. You can replace a bus and remain in AOBRD, but you can’t add one, two, or three buses.
AOBRD vs. ELD: What’s the difference?
• AOBRD — Display only
• ELD — Electronic display or printout always required
Two options for data transfer:
• Telematics: Web address and/or email
• Local: USB or Bluetooth Supporting Documents
If your ELD cannot transfer the logs electronically from your vehicle to the roadside inspector, you have an AOBRD. Make sure your drivers know that. Take your label maker out and put on the screen AOBRD if you have one. If an inspector asks your driver what you have, and he tells them ELD because you told him you have one, nothing will work. You are also required to have documents on board as to how your device operates. So if you have AOBRD, you will need a driver instruction sheet, a DOT instruction sheet, and then always a supply of paper logs for the time the vehicle may be dispatched on that trip.
When you have an ELD, you need a driver instruction, malfunction, and a data transfer sheet along with a supply of logs. If you are unsure what you have, contact your vendor because you don’t want your drivers to get in a sticky situation and get written up for something that was just a case of mistaken identity.
Supporting Documentation: The ELD mandate added a section to the rules for hours of service. Now, this does not apply for short-haul drivers, but it applies to drivers carrying property and passengers. Regulation 395.11 states: “You must maintain supporting documentation so that if DOT/FMCSA investigates, they can compare your paperwork to what the driver was actually doing.” FMCSA is confident the ELD will do a good job documenting drive time. What they’re unsure of is off-duty time and on-duty not driving time, but that’s what supporting documents do. Your drivers need to understand the rules are in place to ensure they submit them as supporting documents to FMCSA. For example, such documents would include receipts for fuel, tolls, hotels, meals, etc.
The Big Data
• Unassigned driving time
• Violation reports
• Operational data
Unassigned drive time: This one is simple: The vehicle moved from point A to point B, and nobody was logged into the device, so we have no idea who is operating the vehicle.
Edits: You can edit it because the mandate in 395.22 does say you can assign it to a driver. “I believe based off the charter report and trip records that this driver was in the vehicle.” You assign it to a driver and he then certifies he received the assignment. Another option is to explain the movement.
Violation reports: These will be the second set of reports FMCSA asks for when it visits. They will show any 10-hour, 15-hour, or 70-hour violations. Now, some violations can be abated where a driver forgets to log off-duty. You can fix such mistakes. Some will be circumstantial, while others may require you to invoke 395.1B in adverse conditions if the driver ran into something unexpected before dispatch.
Here is where you need someone monitoring the daily logs. Once they get away from you, it’s very hard to go back and figure out who was in the vehicle or why the record changed. If you believe your company is not large enough for someone to be assigned every day or it’s too costly, talk to me about that. I’m sure I can find a solution for you.
Operational data: Depending on which provider you choose, operational data can open everything including battery amperage, vehicle fuel level, oil level, engine temperature, tire pressure, mileage, and your IFTA (International Fuel Tax Agreement) reporting. Make sure your provider is giving your IFTA information correctly. Despite the recording, be aware there are certain limits with the IFTA and IRP (International Recording Plan) that came out during the last two years stating some of this is required for ELD while others are required for IFTA. They’re not the same.
Operational data will help you a lot by calculating route efficiency. How many hours do your drivers still have left for the day? How many hours do you still have available for the week? There is an abundance of data you can gather from your device.
Self-auditing: All of this data will help you with self-auditing. You will be surprised what information you will gather. It’s guaranteed you will get information you never considered before.
Running a smart ELD program in your company will save you lots of money and ensure you are operating a SAFE company.
Related Topics: compliance, driver behavior, driver training, ELDs, electronics, Federal Motor Carrier Safety Administration, federal regulations, fleet management, fleet tracking, motorcoach operators, motorcoaches, record keeping, regulatory enforcement, Tom Holden
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