FMCSA Regulatory & ELD Update - texastrucking.com · FMCSA Regulatory & ELD Update TXTA Spring Safety Seminar March 23, 2018

FMCSA Regulatory & ELD UpdateTXTA Spring Safety Seminar

March 23, 2018

TopicsTopics

Regulatory Update• Crash Preventability Demonstration Program• Entry Level Driver Training (ELDT) Final Rule• National Drug and Alcohol Clearinghouse Final Rule• Part 40 Final Rule

Electronic Logging Device (ELD) Update• ELD Rule Implementation• Exceptions, Exemptions, and Waivers• Procedures & Frequently Asked Questions• Harassment Protection• ELD Supporting Documents• Webinars & Training Information

Crash Preventability Demonstration ProgramDocket No. FMCSA-2014-0177Crash Preventability Demonstration ProgramDocket No. FMCSA-2014-0177


Program Overview

• FMCSA’s Safety Measurement System (SMS) uses safety performance data, which includes State-submitted crash records, to prioritize resources to identify commercial motor carriers for safety interventions– Crash data reported to FMCSA by the States does not specify a motor

carrier’s role in crashes or whether or not the crash was Preventable• Stakeholders, including those in the motor carrier industry, have

expressed concern that including all crashes in SMS without an indication of preventability may give an inaccurate impression about the risk posed by a company

• Studies conducted by FMCSA and others demonstrate that crash involvement is a strong indicator of future crash risk, regardless of role in the crash


Request and Review Process


Eligible Crash Types

1. When the commercial motor vehicle (CMV) was struck by a motorist driving under the influence (or related offense);

2. When the CMV was struck by a motorist driving the wrong direction;3. When the CMV was struck in the rear;4. When the CMV was struck while legally stopped or parked, including

when the vehicle was unattended;5. When the CMV was struck by an individual committing or attempting to

commit suicide by stepping or driving in front of the CMV;6. When the CMV sustained disabling damage after striking an animal in

the roadway;7. When the crash was a result of an infrastructure failure, falling trees,

rocks, or other debris; or8. When the CMV was struck by cargo or equipment from another vehicle.


Requesting a Data Review

• On August 1, 2017, FMCSA began accepting Requests for Data Review (RDRs) through the DataQs system, for a minimum of 24 months, for crashes that occurred on or after June 1, 2017

• RDRs must include compelling evidence that a crash is Not Preventable

• Suggested documentation includes, but is not limited to: – Police accident reports;– Insurance claim information;– Videos;– Pictures;– Hearing transcripts; or– Affidavits


Requests for Data Review (RDR)

To submit a RDR, log into DataQs at https://dataqs.fmcsa.dot.gov. 1. Click the “Add a Request” button, and submit your request under

“Crash Could Not Be Prevented” 2. Follow the prompts to search for existing crash reports or

manually enter details in the request wizard3. In order for FMCSA to review your request you must submit

compelling evidence. – Documentation should be enough so it’s clear the crash was Not

Preventable, contain appropriate content, and support the RDR4. Once complete, review your submission, and submit your request


Public Input

• If FMCSA reviews a crash preventability RDR and makes a preliminary determination that the crash is Not Preventable, FMCSA will post information about those crashes to DataQs for 30 days

• Anyone with relevant information to refute the preliminary determination should submit it through DataQs

• FMCSA will review any relevant information received before making a final determination


Review Process

• FMCSA will:– Review all qualifying crash preventability RDRs;– Consider all relevant evidence; – Determine that crashes are either Not Preventable, Preventable, or

Undecided; and– Post final determinations to SMS within 60 days of the determination

• Crashes reviewed as part of this demonstration program will remain in SMS with FMCSA’s determinations noted– Motor carriers and enforcement users logged into SMS will be able to view

percentiles and measures calculated both with and without Not Preventable crashes


Crash Review Decisions• FMCSA will continue to list all crashes on SMS and use this data for

prioritization.• Reviewed crashes will have notes reflecting the results of the reviews

– Not Preventable: The notation will read, “FMCSA reviewed this crash and determined that it was not preventable”

• The motor carrier and enforcement views of SMS will show measures and percentiles with and without any Not Preventable crashes

– Preventable: The notation will read, “FMCSA reviewed this crash and determined that it was preventable”

– Undecided: If the documentation associated with a crash submitted does not allow for a conclusive decision, the notation will read, “FMCSA reviewed this crash and could not make a preventability determination based on the evidence provided”


Data Analysis• FMCSA will evaluate if these preventability determinations

improve the Agency’s ability to identify high risk motor carriers

• FMCSA will maintain data throughout the Demonstration Program so that the Agency can conduct analyses to include:– The cost of operating the test and implications for a larger program;– Future crash rates of carriers that submitted RDRs;– Future crash rates of carriers with Not Preventable crashes; and– Impacts to the SMS Crash BASIC Indicator and prioritization


For More Information• FMCSA Crash Preventability Demonstration Program

Website: https://www.fmcsa.dot.gov/safety/crash-preventability-demonstration-program

• FMCSA is maintaining a list of Final Not Preventable determinations on its website that will be updated monthly

• Quarterly Demonstration Program Statistics: https://www.fmcsa.dot.gov/safety/crash-preventability-demonstration-program-quarterly-statistics

• DataQs: https://dataqs.fmcsa.dot.gov• Questions?

– Email: [email protected]

Drug and Alcohol ClearinghouseDocket No. FMCSA-2011-0031Drug and Alcohol ClearinghouseDocket No. FMCSA-2011-0031


Overview of the Clearinghouse Rule• Effective December 2016; compliance date of January 4,

2020• Establishes a national Clearinghouse that will be a database

containing CDL drivers’ drug and alcohol program violations and whether a driver has successfully completed the mandatory return-to-duty drug and/or alcohol rehabilitation process

• Clearinghouse requirements fall into two major categories:– Reporting and– Querying


Reporting• Employers, consortia/third party administrators (C/TPAs)

and/or medical review officers (MROs) will be required to report drug and alcohol testing program violations to the Clearinghouse

• SAPs will be required to report information about drivers undergoing the mandatory return-to-duty drug and/or alcohol rehabilitation process

• Each time information is added to, modified or removed from the Clearinghouse, FMCSA will notify the affected driver– To receive electronic notification, drivers will have to register with

the Clearinghouse


Querying• Employers will be required to query the Clearinghouse for covered

drivers for two purposes:– Pre-employment screening– Annual verification

• Pre-employment– Purpose: to ensure that the prospective employee is eligible to drive– Query-type: full queries would be conducted which means that FMCSA

must verify specific driver consent prior to releasing information• Annual Queries

– Purpose: to ensure that a driver did not violate the drug and alcohol program with another employer

– Query-type: limited queries to determine whether any data exists for a driver would be allowed and will only require general driver consent, subject to FMCSA audit


Querying (Continued)• A limited query only identifies whether information about the driver

exists in the Clearinghouse and will not result in release of any driver information

• If the limited query shows a driver record in the Clearinghouse, the employer would be required to run a full query, triggering FMCSA verification of specific driver consent before releasing information

• Drivers refusing consent will not be able to perform safety-sensitive functions such as driving a commercial motor vehicle

• Information regarding the driver will be accessible to employers for a minimum of 5 years. If the driver does not satisfy the mandatory return to duty requirements, the information will remain accessible to employers indefinitely


Querying (Continued)

• State driver licensing agencies will also be required to query the Clearinghouse when a State-licensed driver obtains, renews, upgrades, or transfers his or her CDL

• The National Transportation Safety Board (NTSB) will be able to access Clearinghouse information for drivers involved in a crash under investigation by the NTSB


Fees

• There will be no fees for a driver to access their own record in the Clearinghouse

• Motor Carriers will pay a fee to query the Clearinghouse; the fee amount has not yet been determined, but will include options for subscription and batch use


To learn more about the final rule:

https://www.fmcsa.dot.gov/regulations/commercial-drivers-license-drug-and-alcohol-clearinghouse

Electronic Logging Device (ELD) UpdateELD Phase II: “Phased-In Compliance”Electronic Logging Device (ELD) UpdateELD Phase II: “Phased-In Compliance”

Major Components of ELD Final RuleDocket No. FMCSA-2010-0167Major Components of ELD Final RuleDocket No. FMCSA-2010-0167

• Requirements for the mandatory use of ELDs by drivers currently required to prepare paper Record of Duty Status (RODS) (Some exceptions apply) – The hours-of-service rules were NOT changed

• Minimum performance and design standards (technical specifications) for ELDs, vendor registration of devices

• Transition timeframe• Measures to prevent harassment through the use of

ELDs• Requirements concerning HOS supporting documents

Are you subject?Docket No. FMCSA-2010-0167Are you subject?Docket No. FMCSA-2010-0167

What is an Electronic Logging Device (ELD)?Docket No. FMCSA-2010-0167What is an Electronic Logging Device (ELD)?Docket No. FMCSA-2010-0167

An ELD synchronizes with a vehicle engine to automatically record driving time, for easier, more accurate hours‐of‐service (HOS) recording.

ELD Rule Implementation Timelinehttps://www.fmcsa.dot.gov/hours-service/elds/implementation-timelineELD Rule Implementation Timelinehttps://www.fmcsa.dot.gov/hours-service/elds/implementation-timeline

The rule is being implemented in three phases over a four-year period:

ELD Rule Implementationhttps://www.fmcsa.dot.gov/hours-service/elds/implementation-timelineELD Rule Implementationhttps://www.fmcsa.dot.gov/hours-service/elds/implementation-timeline

Phase 2 “Phased-In Compliance” • December 18, 2017 – December 19, 2019• Carriers and Drivers Subject to the Rule Can Use:

– AOBRDs that were installed prior to December 18, 2017 or

– Certified, registered ELDs Phase 3 “Full Compliance”• After December 19, 2019 …• All carriers and drivers subject to the rule must use certified,

registered ELDs that comply with the ELD regulations

Exceptions395.1 – Scope of rules in this part395.8(a)(1)(iii)(A) – Driver’s record of duty status

Exceptions395.1 – Scope of rules in this part395.8(a)(1)(iii)(A) – Driver’s record of duty status

• NOTE: The ELD final rule did not change any of the HOS exceptions in 395.1, such as the “Short-haul Operations” exceptions:– 100 air-mile radius drivers may continue to use timecards, as

allowed by §395.1(e)(1)– 150 air-mile radius non-CDL freight drivers may continue to use

timecards, as allowed by §395.1(e)(2)• Drivers using paper RODS for not more than 8 days during

any 30-day period do not need an ELD• Conducting “driveaway-towaway” operations in which

vehicle being driven is part of the shipment being delivered or vehicle being transported is a motor home or a recreation vehicle trailer

• Vehicles manufactured before model year 2000

ELD Exemptions and Waivershttps://www.fmcsa.dot.gov/hours-service/elds/electronic-logging-device-eld-exemptions-and-waivers

ELD Exemptions and Waivershttps://www.fmcsa.dot.gov/hours-service/elds/electronic-logging-device-eld-exemptions-and-waivers

What is the difference between a waiver and an exemption? • A waiver is temporary regulatory relief from one or more of

the FMCSRs for up to three months. A waiver can be issued upon request or at the discretion of the Administrator

• An exemption is a temporary regulatory relief from one or more of the FMCSRs given to a person or class of persons subject to the regulations. An exemption requires public notice and comment and provides the person or class of persons with relief from the regulations for up to five years

• Both a waiver and an exemption require an equivalent level of safety to be established in exchange for regulatory relief

ELD Limited 90-Day Waiver for Agricultural CommoditiesDocket No. FMCSA-2013-0161

ELD Limited 90-Day Waiver for Agricultural CommoditiesDocket No. FMCSA-2013-0161

• Agricultural commodity means any agricultural commodity, nonprocessed food, feed, fiber, or livestock

• Waiver Applicable December 18, 2017 – March 18, 2018 (Additional 90 day waiver, effective March 18 – June 18, 2018) Should be in Federal Register on March 23, 2018.

• Motor carriers transporting agricultural commodities under 49 CFR 395.1(k)(1) are exempt from ELD requirements regardless of distance traveled

• Carriers must comply with FMCSR including preparation of paper RODS when required

• Carriers must have a “satisfactory” safety rating or be unrated• Carriers must notify FMCSA within 5 business days of any DOT

accident while operating under this waiver

Proposed Regulatory Guidance for Agricultural CommoditiesDocket No. FMCSA-2017-0360

Proposed Regulatory Guidance for Agricultural CommoditiesDocket No. FMCSA-2017-0360

• Notice of proposed regulatory guidance; public comments ended on January 19, 2018

• Clarify the exception with regard to:– Drivers operating unladen vehicles traveling either to pick up

an agricultural commodity or returning from a delivery point– Drivers engaged in trips beyond 150 air-miles from the source

of the agricultural commodity• Whether grain elevators and/or livestock sale barns are “source”• Applicability when agricultural commodities are loaded at multiple

sources during a trip

ELD Limited Exemption for Truck Renting and Leasing Association (TRALA)Docket No. FMCSA-2016-0428

ELD Limited Exemption for Truck Renting and Leasing Association (TRALA)Docket No. FMCSA-2016-0428

• Exemption Applicable October 11, 2017 through October 11, 2022• Exemption covers rental of any property-carrying CMV for a period

of 8 days or less regardless of reason for rental– Evidence that a carrier has replaced one rental CMV with another on 8-

day cycles or attempted to renew a rental agreement for the same CMV for an additional 8 days will be regarded as a violation of the exemption and subject the carrier to the penalties for failure to use an ELD

• Drivers must have a copy of this notice or equivalent signed FMCSA exemption document in their possession while operating under the exemption, along with a copy of the rental agreement in the CMV, and make it available to law enforcement officers on request

• Driver must possess copies of their RODS for the current day and the prior 7 days, if required on those days

ELD Limited 90-Day Waiver for Truck Renting and Leasing Association (TRALA)Docket No. FMCSA-2016-0428

ELD Limited 90-Day Waiver for Truck Renting and Leasing Association (TRALA)Docket No. FMCSA-2016-0428

• Waiver Applicable January 19, 2018 through April 19, 2018• Exemption covers rental of any property-carrying CMV for a

period of 30 days or less regardless of reason for rental– Evidence that a carrier has replaced one rental CMV with another

on 30-day cycles or attempted to renew for same CMV beyond 30 days will be regarded as violation of waiver

• Carriers must comply with FMCSR including preparation of paper RODS when required

• Carriers must have a “satisfactory” safety rating or be unrated

• Carriers must notify FMCSA within 5 business days of any DOT accident while operating under this waiver

ELD Exemption for Motion Picture Association of America (MPAA)Docket No. FMCSA-2017-0298

ELD Exemption for Motion Picture Association of America (MPAA)Docket No. FMCSA-2017-0298

• Exemption Applicable January 19, 2018 through January 19, 2023

• Exemption covers drivers providing transportation to or from a theatrical or television motion picture production site and allows these drivers to complete RODS instead of using an ELD device

• Drivers must have a copy of this notice or equivalent signed FMCSA exemption document in their possession while operating under the exemption

• Carriers must notify FMCSA within 5 business days of any DOT accident while operating under this waiver

ELD Limited Exemption for United Parcel ServiceDocket No. FMCSA-2017-0054ELD Limited Exemption for United Parcel ServiceDocket No. FMCSA-2017-0054

• Exemption applicable October 20, 2017 through October 20, 2022• All motor carriers and drivers using portable, driver-based ELDs are

exempt from the requirements of 395.26(c) and 395.26(g) unless the driver is in the CMV with the engine powered

• When a driver using a portable, driver-based ELD changes duty status or logs in/logs out of the ELD away from the vehicle and without the vehicle powered, the driver is required to annotate the ELD record to indicate the appropriate duty status in accordance with section 395.30

• A motor carrier is permitted to configure an ELD so that a driver can select “yard moves” without complying with Section 4.3.2.2.2(e) of Appendix A to Subpart B of part 395; however, the ELD must switch from “yard move” status to “driving” status if (1) the driver inputs the “driving” mode; (2) the vehicle exceeds a speed of 20 mph; or (3) the vehicle exits a geo-fenced motor carrier facility.

ELD Limited 90-Day Waiver for Old Dominion Docket No. FMCSA-2013-0161ELD Limited 90-Day Waiver for Old Dominion Docket No. FMCSA-2013-0161

• Waiver Applicable December 18, 2017 through March 18, 2018

• Limited waiver to Old Dominion and other motor carriers in similar situations concerning problems in integrating Peoplenet ELD software with fleet management systems

• Carriers must comply with restrictions listed in waiver• Carriers must notify FMCSA within 5 business days of

any DOT accident while operating under this waiver

Automatic Onboard Recording Devices (AOBRDs)395.8(a)(1)(ii) – Driver’s record of duty status395.15 – Automatic Onboard Recording Devices

Automatic Onboard Recording Devices (AOBRDs)395.8(a)(1)(ii) – Driver’s record of duty status395.15 – Automatic Onboard Recording Devices

• A “grandfathered” AOBRD that can be used during the 2-year transition period between December 18, 2017 and December 16, 2019 must have been installed and in use prior to December 18, 2017

• Not subject to the technical specifications in the ELD rule

• Expansion of fleet = ELD installation• Replacement of CMV = AOBRD reinstall

ELD Malfunctions395.34 – ELD malfunctions and data diagnostic eventsELD Malfunctions395.34 – ELD malfunctions and data diagnostic events

• Driver responsibilities– Report the malfunction within 24 hours of discovery– Keep a paper RODS, plus the previous 7 day summary

• Motor Carrier responsibilities– Repair/replace defective device within 8 days of discovery– If unable to replace within 8 days, the carrier can request an

extension to continue using paper RODS.– Extensions are submitted to the Division Administrator in the

carrier’s State of domicile– Keep copies of paper RODS for 6 months.

Procedures for Record Retention395.30 – ELD data retention395.32 – Non-authenticated driver logs

Procedures for Record Retention395.30 – ELD data retention395.32 – Non-authenticated driver logs

• Ensure additional ELD information is retained – List of users– Unidentified Driving– Original ELD Data– Paper Logs generated by exempt drivers or during

malfunctions• Providing ELD data for review by safety official

– Telematics; email and webservices– Local; USB and Bluetooth

ELD Frequently Asked Questionshttps://www.fmcsa.dot.gov/hours-service/elds/faqsELD Frequently Asked Questionshttps://www.fmcsa.dot.gov/hours-service/elds/faqs

What happens if a truck or bus requiring an ELD is stopped for a roadside inspection after April 1, 2018 and does not have a required ELD? (In this case, the vehicle will be placed out-of-service, and no longer allowed to continue to operate without an ELD) The enforcement policy (coming soon and agreed to by CVSA) is going to say: Driver is OOS for 10 hrs. property and 8 hrs. for bus drivers. They will then be allowed to continue to their final destination. Once there, they will not be able to operate until they have a proper ELD.


What is personal conveyance and why is this an issue? Personal conveyance is when a driver is using a commercial motor vehicle for personal reasons -- such as transportation from a hotel where a driver is staying to a nearby restaurant and back -- and not at the direction of a motor carrier. When in this status, the driver is not subject to the hours-of-service regulations. The ELD rule did not change the current guidance on this issue. Because all miles are recorded and tracked by an ELD, however, a special driving category is available in the ELD, and that has led to questions from drivers and companies about when using personal conveyance is appropriate.


How does the new guidance on personal conveyance differ from the existing guidance? The guidance differs primarily in that it allows a loaded vehicle to be used in personal conveyance. In addition, guidance provides several common examples to provide clarity to this provision, and seeks comment from the public as to the application of this provision. *Public Comments on Proposed Guidance Ended February 20, 2018

ELD Provider ComplaintsELD Provider Complaints

• Complaints against ELD providers for selling an alleged non-compliant device– National Consumer Complaint Database (NCCDB):

https://nccdb.fmcsa.dot.gov/nccdb/home.aspx

Supporting Documents: Data Elements395.11 – Supporting documentsSupporting Documents: Data Elements395.11 – Supporting documents

• Driver name (or carrier-assigned ID)– Can be vehicle unit number if that number can be linked to the

driver• Date• Location (including the name of nearest city, town or

village)• Time

Supporting Documents: Categories395.11 – Supporting documentsSupporting Documents: Categories395.11 – Supporting documents

• Bills of lading, itineraries, schedules, or equivalent with the origin and destination of each trip

• Dispatch records, trip records, or equivalent • Expense receipts related to on-duty (not driving)

periods• Electronic mobile communication records • Payroll records, settlement sheets, or equivalent

Supporting Documents: Number395.11 – Supporting documentsSupporting Documents: Number395.11 – Supporting documents

• Retain maximum of 8 documents per 24-hour duty day• If more than 8 documents are submitted per day, must

retain first and last document of day• If fewer than 8 documents are submitted, a document

that contains all of the elements except “time” is considered a supporting document

• If a driver does not use an ELD, all toll records must be retained– Toll receipts do not count toward the 8-document cap

For More ELD InformationFor More ELD Information

• Visit the website www.fmcsa.dot.gov/elds:� Sign up for the ELD newsletter to receive email updates;� Visit the Training and Events section for upcoming

opportunities hosted by FMCSA and view webinar materials;

� Learn more about using ELDs in the Drivers and Carriers section; and

� Read the FAQs for an in-depth understanding of the rule

• Email FMCSA directly if you need to contact someone in the ELD program office: [email protected]