With full enforcement of the ELD mandate a week away, an audience at a Truckload Carriers of America panel got a look at what recent data says about the looming level of enforcement.
Steve Bryan, the President of data analytics company Vigillo, had two key messages in a review of a significant amount of data at the TCA annual meeting near Orlando. First, there has been a substantial amount of non-punitive enforcement of the mandate since its "soft launch" on December 18. Second, a historical look at enforcement under Compliance, Safety and Accountability (CSA) regulations shows that hours of service (HOS) issues were a relatively small part of violations, and that a great many of them should disappear under broader ELD adoption.
Bryan said the December launch created a new category of violation, 395.22a. "This is what law enforcement was instructed to write," Bryan said. It was a category where violations of the ELD mandate would be recorded, but there was no enforcement of any penalties and no CSA points against the driver were recorded. Violations that did result in points were written to the 395.8 category, defined in the law as the “driver's record of duty status.”
According to the data Bryan has looked at it from December 18 until sometime in late February, the number of 395.8 violations was down about 7,000. Meanwhile, the 395.22a category--the non-punitive reservoir of HOS violations--recorded about 27,000 violations during that time. The decline in the 395.8 violations was only about 25% of the increase in the 395.22a violations.
"Raise your hand if that sounds like soft enforcement," Bryan said.
The increase has been too sharp for Bryan to think there will be a significant change in just a week’s time. “It is hard for me to think next Sunday that it is just going to taper off,” he said. “I think these things are going through the roof.”
But possibly offsetting that, Bryan said given the heavy percentage of violations both pre-December 18 and post-December 18 that fell under the "general form and manner" violations, many of them should disappear after April 1. Many of those types of violations involve paper logs, and given that they are slated to disappear, the ELD will take care of a lot of the imperfections in paper recording.
But there remain uncertainties. "When the states start writing violations, we will get lots of visibility into what they are finding," Bryan said.
With so much attention on the ELD mandate, and the likelihood it will mean the HOS rules will become far more difficult to evade, Bryan noted that of the 42 million CSA violations he observed between December 2010 and December 2018, only about 10 percent were for violations of the HOS rules. And most were for violations of the rules known as general form and manner. The vast majority of violations under CSA are for vehicle maintenance, Bryan said.
What Bryan said he is unable to see is the specifics of the large number of non-punitive 395.22a citations. But he had one theory: “Many are mistakes where the troopers don’t understand the AOBRD versus ELD rules, and exceptions on transferring data,” he said. “I think a lot of that is in there. So keep a close eye on April 1.”
The responsibility of drivers to know their systems was raised several times during the forum. As one audience member said, the encounter between the driver and a law enforcement officer on the side of the road is a “personality contest.”
Can't rely on law enforcement to know all
Anne-Marie Hulsey, the director of business development at U.S. Legal Services and a panel member, said there are more than 300 ELD devices on the market, and it is unreasonable to expect law enforcement officers to know all of them. She expressed the view that if an officer pulls over the truck and can’t get data from the device, doesn’t know the difference between an AOBRD and an ELD, and doesn’t understand the hodgepodge of exemptions, it’s up to the driver to educate the officer to stave off further problems.
Garth Pitzel, the director of safety and driver development at Bison Transport, where ELDs have been used for several years, said the history at Bison is that in the case of many driver violations, “the driver just miscalculated, they needed five more minutes to get to a rest area, but yet, it is still a violation,” he said. “Sometimes they are just not thinking and forgetting about that it is by the minute, they log in five minutes earlier than their 10 hours starts. So it really comes down to educating the drivers.”
Bryan said he reviewed the 395.22a data to see if he could see a pattern that would support conventional wisdom that the trucks not carrying ELDs were heavily weighted toward independent owner operators, “the OOIDA guys who don’t want to put one of those big brother things in my truck.”
To the contrary, Bryan said he was able to identify 17,273 “distinct DOT numbers.” “That’s not just the little guys,” he said. “I am not putting any names up here, but I scrolled through there and some of the violations were against the biggest of the big.”
Bryan also dismissed speculation that the ELD mandate would lead to a significant number of drivers leaving the industry. He said data he has studied data that for the first time shows that the total number of interstate and intrastate carriers has crossed 1.6 million, clearly not a sign of a mass exodus of drivers.