FMCSA ready to work with industry on rule-breaking ELDs: Mullen

The question seemed to catch Jim Mullen, acting administrator of the Federal Motor Carrier Safety Administration (FMCSA), a bit off guard: Was it true that in Canada, a lot of carriers were altering records coming out of their electronic logging devices (ELDs) and showing incorrect data on driver compliance with that country’s hours-of-service (HOS) rule?

The question came from the floor of a general session at the annual meeting of the Truckload Carriers Association (TCA).

But the issue is clearly one that has crossed Mullen’s desk, and he had a response for the questioner. “We are aware of some instances of fraud and abuse on ELDs,” he said. “We investigate those very diligently.”

To bring home the fact that he’s concerned about the issue, Mullen described a conversation he recently had with a trucking executive. The representative from the trucking company, Mullen said, told the administrator he had turned down freight that the unidentified executive knew could not be delivered within the HOS rule. “And lo and behold somebody took it,” Mullen said.

Mullen also said there was a difference in the approach between the U.S. and Canada toward certification of ELD providers. Canadian authorities chose not to have third-party certification, Mullen said: “Money and resources were a problem.” But in the U.S., ELD vendors can be decertified “and we look at the process very closely.”

“I have been planning on reaching out to ELD vendors to detect how you can circumvent the rules on fraud and abuse and what the industry can do to help,” Mullen said, insisting he wasn’t “passing the buck.” “We’d love to partner with the regulated community on weeding out those who are participating in fraud and abuse on ELDs.”

Later, in an interview with FreightWaves, Mullen said FMCSA is “cognizant ELDs are not foolproof.” He also said FMCSA will partner with state safety officials to identify “when they see something on the logs that doesn’t add up with the supporting documents.” As far as working with ELD providers, “any foresight and information on how vendors are able to circumvent the rules, we’re all ears.” He noted that the technological capabilities of FMCSA are not set up to identify technology issues within some models of ELDs, so the tech know-how of cooperating providers is essential.

(As far as his reaction to the question, Mullen said he was not caught off guard by the suggestion of fraudulent ELD activity, but rather by the suggestion that in Canada, altering records occurs “willy-nilly.”)

Mullen used the occasion of his speech before TCA to announce that the final rule proposal for a change in hours of service had been sent to the Office of Management and Budget.

Once OMB is done with its review, FMCSA will “move straight to a final rule,” Mullen said. The final rule will have an effective date, “and that is our next decision point.”

ELDs will play a role in that decision, according to Mullen. The agency has been in discussion with ELD providers on how long it would take to make modifications in their systems to account for rules different from those that are now built in to existing software. The answers that came back from the manufacturers have ranged from four to 10 months.

During his address to the TCA meeting, Mullen brought up several other issues that FMCSA is dealing with:

  • While he did not disclose how many drivers 18-20 years old with a military background had signed up under the pilot program to allow them to drive interstate, it was clearly not a lot. Mullen said almost 40 carriers had signed up to participate in the program, “but we don’t have a lot of drivers in the program yet.” The goal is to have 200 drivers “and we’re working to get that up.”
  • Another pilot program to enable nonmilitary 18- to 20-year-olds to drive interstate remains under consideration, Mullen said. It is part of the paired bills in the Senate and House known as the DRIVE Safe Act. The legislation would allow apprentices in a program to drive interstate if they meet several criteria. Implementation of that program would be “far more sweeping” than the military program, Mullen said. “Our position is you can develop a very skilled, qualified driver within the 18-20 population that would be as safe if not safer than 20- to 22-year-old drivers,” Mullen said. He cited the familiar argument that 18- to 20-year-olds are allowed to drive intrastate but not interstate. “We believe that having a geographic border determining whether you can or can’t participate isn’t the best method for looking at a safety component,” he said in the interview with FreightWaves.
  • The newly launched Drug & Alcohol Clearinghouse has 680,000 people registered and about 9,000 drivers who are on record as having been found positive in a drug and alcohol test or having refused the test. They will need to complete a return-to-duty program, Mullen said, and if they do not, “they are not going to be hired,” Mullen told the conference. He said he did not have a guess as to how many drivers would be identified as having failed the test when the Clearinghouse launched at the beginning of this year but described 9,000 drivers in 60 days as a “staggering” figure. The goal was to stop problem drivers from just moving from company to company to avoid punishment, “and our goal was to eliminate that avenue for abuse,” Mullen told FreightWaves. “We really didn’t put numbers into it. We didn’t know.”
  • Mullen acknowledged technology problems within FMCSA. For example, he said it was 100% technology issues that had delayed the launch of the rules for entry-level training by two years from the initial implementation date. A new chief technology officer from the private sector is being brought into FMCSA, “and he has been a leader of many IT modernizations in his career.” A new IT director also has been hired. But at the root of the problem, according to Mullen: “We run so many legacy platforms.”