The Trucking Alliance is urging the Federal Motor Carrier Safety Administration (FMCSA) to use its existing authority to address a widespread issue facing carriers using PeopleNet devices that are not integrating certain software systems. Old Dominion Freight Line has petitioned FMCSA to exempt the company and all carriers similarly affected from fully complying with the ELD Law, until December 2018.
Old Dominion explains that PeopleNet has been unable to integrate its older software into its new ELD hardware, a configuration allowed under FMCSA’s two year grandfather clause.
Further, Old Dominion would like to utilize the older software in ELDs installed in new trucks that are added to the size of its fleet, until December 2018. Under FMCSA regulations, trucks that are purchased and increase the fleet size after December 18, 2017, must utililze ELD software, not the earlier version software.
The Trucking Alliance suggests that rather than grant an exemption, a decision that could have significant unintended consequences to the ELD Law, FMCSA has authority to address these issues. However, the Alliance maintains that if FMCSA grants such an exemption, the benefit should not accrue only to PeopleNet and its customers but to all carriers that purchased onboard recorders prior to December 18, 2017. The comments filed and dated March 2, 2018:
DOT Docket No. FMCSA-2018-0002
Docket Management Facility, M-30
U.S. Department of Transportation
West Building, Ground Floor, Room W12-140
1200 New Jersey Avenue, S.E.
Washington, D.C. 20590-0001
Filed via www.regulations.gov
RE: Hours of Service of Drivers: Electronic Logging Devices; Application for Exemption; Old Dominion and Other Motor Carriers Experiencing Problems Integrating PeopleNet ELD System Updates into Their Fleet Management Systems; 83 Federal Register 4548, January 31, 2018
The Alliance for Driver Safety & Security, also known as the Trucking Alliance, submits these comments in response to a request by the Federal Motor Carrier Safety Administration (“FMCSA”) regarding the above referenced Petition for Exemption (Docket No. FMCSA-2018-0002) and filed by Old Dominion Freight Line (“ODFL”).
The Alliance for Driver Safety and Security (“Trucking Alliance”) is a coalition of leading U.S. transportation and logistics businesses focused on promoting a safer and more secure working environment for the nation’s commercial truck drivers and the motoring public. More information about the Trucking Alliance may be found at https://truckingalliance.org/
In particular, since its founding, the Trucking Alliance has been a leading advocate supporting the mandatory use of electronic logging devices (“ELDs”) for recording hours of service (“HOS”) of commercial truck drivers.
Introduction and Background on the ELD Law
In 2011, the Trucking Alliance supported passage of “The Commercial Driver Compliance Improvement Act.” Introduced by US Senators Pryor of Arkansas, Lautenberg of New Jersey and Alexander of Tennessee, the legislation proposed ELDs in all commercial trucks to verify truck drivers’ HOS, a measure the sponsors believed would reduce HOS non-compliance, truck driver fatigue, and large truck crashes.
In 2012, Congress passed “The Moving Ahead for Progress in the 21st Century Act,” (“MAP-21”) and inserted language from the above referenced legislation – “requiring a commercial motor vehicle involved in interstate commerce and operated by a driver subject to the hours of service and the record of duty status requirements . . . be equipped with an electronic logging device to improve compliance by an operator of a vehicle with hours of service regulations.”
MAP-21’s inclusion of this language, referred to in these comments as the “ELD Law,” encompassed all trucks and all drivers subject to the HOS rules. The FMCSA subsequently issued a final rule on December 1, 2015, to implement the ELD Law. FMCSA directed all motor carriers to install, and have each of its driver’s use, an ELD or the earlier version Automatic On Board Recording Device (“AOBRD”), to record the driver’s HOS. FMCSA gave the industry two years from the final rule to comply, requiring approved electronic devices be installed in all interstate commercial trucks two years hence, by December 18, 2017.
FMCSA also included a ‘grandfather clause’ in the final rule, to ease the financial and operational burdens for motor carriers that purchased AOBRDs before FMCSA’s final rule. This grandfather clause gave those motor carriers two additional years, until December 1, 2019, to transition over to ELDs. So, motor carriers having AOBRDs in their trucks on December 1, 2015, were given four years to replace their AOBRDs with an ELD.
The ELD Law is a substantial step toward improving the safety and security of commercial drivers and reducing large truck accidents; supported by trucking companies, highway and consumer safety groups, and almost all transportation stakeholders. As Steve Williams, Trucking Alliance president, stated in 2016, “when ELDs are installed in every commercial truck late next year , they can be the technological platform upon which our industry can build a safe and efficient supply chain for the future.”
Defending the ELD Law
Ever since Congress included the ELD language in MAP-21, however, the Trucking Alliance has continued to promote and defend the benefits that will accrue to the industry after the ELD Law is fully implemented.
For example, certain industry parties have opposed the ELD Law from the beginning. They opposed its inclusion in 2012 with MAP-21. After that failed, these parties challenged the ELD Law in federal court. To demonstrate the ELD Law’s broad based support, the Trucking Alliance joined Advocates for Highway and Auto Safety by filing a joint amicus brief before the US Court of Appeals, 7th Circuit. This brief supported the US Department of Transportation’s (“USDOT”) defense of the ELD Law. The 7th Circuit ruled in favor of the USDOT. But the opponents of the ELD Law continued to file appeals, all the way to the US Supreme Court. Ultimately, the USDOT prevailed and preserved the ELD Law.
But after their legal challenge failed, these industry parties turned to Congress again and lobbied passage of new legislation in 2017, that if passed, would have delayed the ELD Law. That attempt failed as well.
Now, what these industry parties failed to do in the legislative and judicial arenas to stop the ELD Law, they are attempting to do in the regulatory arena. Since December 18, 2017, the date when motor carriers were required to be electronically recording HOS, the FMCSA has published notice of no fewer than eighteen (18) exemption applications to date, from various sectors of the trucking industry. These industry sectors oppose the basic premise of the ELD Law – to install electronic devices that verify compliance with HOS.
Defending the ELD Law is paramount, because the ELD Law will improve the safety and security of the commercial driver and the general public. Consider that if FMCSA granted all these petitions, more than 98 percent of all motor carriers could avoid installing an ELD, rendering the ELD Law meaningless. So once again, to demonstrate the broad based support for the ELD Law, the Trucking Alliance and Advocates for Highway & Auto Safety are filing joint comments opposing many of these petitions for exemption.
The ODFL Petition
The Trucking Alliance believes the ODFL petition should be viewed differently from the above referenced petitions. ODFL is an exemplary motor carrier and a supporter of the ELD Law. ODFL has equipped all of its trucks with either an ELD or an AOBRD. In fact, ODFL was an early adopter of electronic devices to monitor driver hours of service, and the company began electronically recording HOS even prior to Congress passing the ELD law.
ODFL’s First Request: In its petition, ODFL asks that FMCSA address two separate matters. First, ODFL is experiencing operational problems because PeopleNet, its ELD and AOBRD provider, has failed to deliver software that enables ODFL to operate its AOBRDs and ELDs on the same integrated software platform, in its case, an AOBRD software platform, which the FMCSA final rule allows during the grandfather period. As ODFL explains, “Another concern arises from the fact that PeopleNet devices running on its ELD platform are not interoperable with devices running on its AOBRD platform.”
ODFL makes clear in its petition that People Net is “working diligently to correct” this issue. However, whether PeopleNet can remedy its software issues before the end of its 90-day waiver, already granted by FMCSA, remains to be seen. For this reason, the Trucking Alliance believes that ODFL should receive relief from the operational dilemma it is experiencing.
Additionally, other motor carriers that utilize PeopleNet ELDs and AOBRDs and PeopleNet software are experiencing the same issue. This PeopleNet issue is not unique to ODFL. In fact, anecdotal information indicates as many as 200,000 commercial trucks utilize a PeopleNet device, so the inability of carriers to integrate software onto a single platform, whether AOBRD or ELD, is a significant problem. These additional PeopleNet customer carriers should have relief as well.
The Trucking Alliance believes that FMCSA has the authority to address the PeopleNet issue, without granting the ODFL petition. For example, on November 2, 2017, the FMCSA addressed issues that may arise as carriers install ELDs and AOBRDs that don’t work properly. FMCSA has authority to address these problems, explaining: “in the event of a widespread issue, FMCSA will work with affected motor carriers to establish a reasonable timeframe for replacing non-compliant devices with ELDs that meet the requirements.”
This FMCSA explanation makes clear that if there are inoperability issues with ELD or AOBRD software systems, in this case, a widespread issue that could affect as many as 200,000 trucks, FMCSA can act to remedy the problem. Therefore, FMCSA should follow its own final rule and address the problem described in the ODFL petition. Granting the ODFL petition is not required.
ODFL’s Second Request: ODFL states – “Old Dominion seeks temporary relief from those portions of 49 C.F.R. §§ 395.8 and 395.15 that require the Company to install and utilize devices running ELD software rather than AOBRD software in any CMV added to the Company’s fleet on or after December 18, 2017. Specifically, Old Dominion seeks an exemption that would allow it to install and use ELD hardware running AOBRD software in CMVs added to the fleet up to and including December 18, 2018.”
ODFL further explains why its request is needed – “Unless Old Dominion’s request for exemption is granted, starting on December 18, 2017, it will be forced to operate a mixed fleet of vehicles, some with devices running ELD software and others running AOBRD software, that may disrupt Old Dominion’s operations and negatively impact its existing integrated safety capabilities.”
If ODFL must manage existing trucks currently operating on AOBRD software while separately managing its “fleet growth” trucks on ELD software, a situation may develop that ODFL says could be a safety threat to the company. For that reason, ODFL is requesting this “modified ELD phase-in period” to give ODFL staff and PeopleNet sufficient time to “complete the development of the software necessary to integrate ELD data with Old Dominion’s fleet management and safety system.”
The Trucking Alliance is confident that ODFL will maintain its excellent safety record, whether FMCSA grants the petition or not. However, not all carriers have the management systems and controls that ODFL has. Not all carriers may have the capability to simultaneously manage two separate software systems. At issue is whether these other motor carriers that use AOBRD software on their existing fleet, but ELD software on all new trucks that expand the fleet, will compromise safety in some way.
At first glance, adding more trucks to operate on AOBRD software would seem contrary to the purpose of the grandfather clause, which is to transition trucks out of AOBRD software. But regardless, if FMCSA concludes forcing motor carriers to manage AOBRD and ELD software systems at the same time, even temporarily, could compromise safety, FMCSA can address the situation, under its existing authority and without acting on the petition for exemption.
Finally, FMCSA should seriously consider ODFL’s second request. But if granted, the exemption or policy should apply to all motor carriers, regardless of their ELD vendor. Any temporary relief should not be limited only to PeopleNet and its customers.
To summarize, the Trucking Alliance supports the FMCSA final rule. And the final rule gives FMCSA the authority to remedy ODFL’s requests, without acting on the ODFL petition. We urge FMCSA to act quickly to alleviate the dilemma ODFL describes in its first request.
Regarding ODFL’s second request, again, FMCSA has the authority to address this issue without acting on the petition, if FMCSA determines that making motor carriers operate two software systems simultaneously may compromise safety. If so, the agency has the authority to provide these carriers a “reasonable timeframe,” in this case, nine months, to transition onto one software platform.
In conclusion, the FMCSA final rule has been in effect less than 60 days. The Trucking Alliance requests that FMCSA address ODFL’s legitimate issues, using the authority the agency has, without granting an exemption that would affect thousands of trucks. Such an exemption may have unintended negative consequences, both politically and legislatively, but referenced in an earlier section of these comments.
The final rule provides FMCSA with the authority to address the issues that ODFL so aptly describes, without granting a major exemption so early in the implementation of the ELD Law.
President – Alliance for Driver Safety & Security
Chairman and CEO – Maverick USA
Managing Director – Alliance for Driver Safety & Security