OTTAWA, ON — Despite getting a very early start on developing a standard for Electronic Logging Devices (ELDs), Canadian regulators are now scrambling to get something in place by the time the U.S. rule goes into effect in December 2017.

Electronic Logging Devices have been on Canadian regulators’ radar screens since late 2007. Work began in earnest on a technical performance-based standard for e-logging devices in 2010 to prepare an anticipated Canadian mandate. The first draft was completed in 2013, following two years of work and consultation with industry stakeholders, suppliers and others.

That draft was intended to align roughly with the first ELD final rule published by U.S. Federal Motor Carrier Safety Administration (FMCSA) in 2010. That rule was vacated by the courts in August 2011 on grounds that it did not do enough to prevent driver coercion by carriers. It was back to the drawing board for FMCSA. Canada decided to wait before making any changes to the draft it was holding.

“We knew the U.S. was struggling to punch out its final rule, so we felt is best to wait and see what the U.S. final rule looked like before moving forward with our standard,” says Reg Wightman, chair of the Canadian Council of Motor Transport Administrators’ (CCMTA) Compliance and Regulatory Affairs (CRA) Committee and a member of the ELD Working Group that developed the first draft Canada’s ELD standard. Wightman is also the director of Commercial Vehicle Safety & Permits, Motor Carrier Division of Manitoba Infrastructure. “The working group believes that was a justifiable position.”

Canadian regulators got their first look at the U.S. final rule rule at the same time everyone else did — when it was published in December 2015. The FMCSA did not include Canada in discussions leading to the development of its final ELD rule.

“We were a little frustrated that the U.S. did not involve Canada in the consultative process,” Wightman says. “I don’t know why it had to be that way. We would have preferred to have been consulted rather than have the U.S. rule just land on our desk. And I think most of CRA felt that frustration. Having said that, FMCSA is now bending over backwards to help us resolve some of the different policy issues.”

When the U.S. final rule emerged, the Council of Deputy Ministers of Transportation tasked CRA and the ELD working group — a committee made up of federal and provincial regulators — with analyzing the rule to determine what differences existed between it and Canada’s 2013 draft, and to make any changes it felt were necessary to align the two as closely as possible while taking into account Canada’s regulatory needs and requirements.

The analysis revealed a significant number of differences between Canada’s 2013 draft and the U.S. final rule. The ELD working group has been toiling since December to rewrite the Canadian standard. That work was completed earlier this summer.

“We have the final cut of the ELD standard, complete with the functional requirements,” says Wightman. “It was presented in July to a list of industry partners and other stakeholders for comment and we’re expecting those comments back by September 2, 2016.”

Following one last round of face-to-face meetings with stakeholders, manufacturers and industry, the working group will take the completed final draft to the Council of Deputy Ministers of Transportation in April of 2017.

“This is a very ambitious timetable,” notes Wightman, “but our hope is to have the final standard approved by September 2017.”

All the while, Transport Canada will be working to update the Federal Hours of Service regulations to accommodate ELDs. Those changes, whatever they may include, are expected to go to Canada Gazette I by April 1, 2017. A public comment period will follow and then it will go to Canada Gazette II. That is all part of the standard regulatory process.

Transport Canada hopes to have it all in place by December 2017, which is when the U.S. requirement comes into effect, barring any unforeseen problems there.

Regulatory issues to be resolved

Even before the various committees get to the nuts and bolts of Canada’s future ELD mandate, there are some significant regulatory issues still to be tackled, including how to certify the devices and whether or not to allow existing AOBRDs devices to remain in service beyond the anticipated start date for the ELD rule, and how to certify future ELDs.

Automatic On Board Recording Device (AOBRD)

The current Canadian HOS rules allow the use of electronic logging devices in a limited scope provided they meet the requirements of Section 83 of the rule. Wightman told Today’s Trucking that he believes the working group will recommend to CRA that Canada adopt a grandfathering provision somewhat similar to the one in the U.S. That recommendation would also need approval from the CCMTA board of directors and from the Council of Deputy Ministers of Transportation.

ELD Certification

The FMCSA wants vendors to self-certify their devices, but the Agency has yet to provide the tools and test cases needed by the device suppliers. Canada will also require the devices be certified, but by what means has yet to be determined. Wightman says individual jurisdictions do not want to establish their own certification processes, and Transport Canada has little appetite to function as the certifying body for the devices. “FMCSA’s certification process has significant flaws,” Wightman notes. “We do not want to follow the same path and run into the same problems.”

Certification is one of the larger issues the working group is still grappling with and so it’s not yet in a position to make any recommendations.

A National Mandate?

Because of the regulatory structure in Canada, the federal government does not have the authority to force the provinces to accept the mandate for their intra-provincial carriers. And while the federal transport minister can require ELDs for extra-provincial carriers, it would remain up to the provinces to enshrine the devices in their individual legislation.

“Some jurisdictions have come out in full support of mandatory ELDs for both intra- and extra-provincial carriers,” notes Wightman. “Some are still just lukewarm to the whole idea and have made their positions known. There are still other jurisdictions that have said they want to consult with their intra-provincial stakeholders first. They have no problem mandating ELDs for their federal carriers, but they want to make sure they are doing what’s in the best interest of carriers operating within their provinces. However, it becomes a huge issue if some jurisdictions do not adopt the ELD mandate for intra-provincial carriers too.”

Outstanding policy issues

Nobody on the committee wants to re-invent the wheel if they don’t have to, but even starting with the new U.S. rule in hand, there are some outstanding issues that have yet to be reconciled — and many are the same ones the U.S. is having problems with. Wightman says the committee is working with the FMCSA now to see if they can draw on some of the experience they gained in developing their rule. Among the challenges:

• There are some differences in the existing prescriptive requirements, such as the U.S. requiring engine hours, vehicle ID, shipping document references, yard miles, etc. that Canada currently doesn’t require.
• Tracking personal miles during off-duty time could conflict with human rights legislation in Canada.
• Several elements of our Hours of Service rule, such as off-duty deferral, different cycle requirements, north of 60, etc. will have to be taken into account so that the devices can accommodate the differences in the U.S. and Canadian rules.
• The working group is looking closely at who might be exempted from mandated ELDs. The list is similar to the American list, but Canada is struggling with the fewer-than-eight-days-out-of-30 provision the U.S. has already approved. “That’s very liberal in our minds,” Wightman says. “We’re not sure we can live with that.”
• And, of course, there’s the issue of reciprocity. Any single ELD must be compliant with both sets of rules. That’s not expected to cause any significant problems, but there is so much to cover in both rules it takes time to go through it all. Many of the differences will be manageable at the software level, which will be a matter for the vendors to sort out. Regulators, however, have to be sure the rules can be complied with.

Compared to the usual glacial pace of regulatory development, the timeline set by the working group is extremely ambitious — some say too ambitious. There is still a lot of work to do and there’s much consultation still to be done with industry and the manufacturers if regulators hope to get a Canadian ELD standard ready to launch in the same time frame as the American rule. Wightman says he’s confident the working group and the rest of the lawmaking chain of command will get the job done in time.

“It would be overly optimistic to think this will roll out with a lot of bells and whistles,” Wightman muses. “I’m sure not everyone will be happy, nor will everyone get answers to all their questions. But I have to say I haven’t seen a lot of transportation safety regulation roll out with no problems whatsoever. That said, this ELD mandate has to happen. There are just too many upsides to this to ignore it.”