The Federal Motor Carrier Safety Administration (FMCSA) has not proposed an electronic logging device (ELDs) that can record a driver’s hours-of-service (HOS) and duty status automatically as required by Congress, the Owner-Operator Independent Drivers Assn. (OOIDA) told the agency June 26. OOIDA is the lead organization opposing ELDs. Nearly three years ago, it persuaded a federal appeals court to strike down an earlier rule on electronic logs. A year later in the MAP-21 legislation, Congress directed FMCSA to mandate ELDs and specified the requirement for automatic recording of duty status.

In its own comments on FMCSA’s supplemental notice of proposed rulemaking (SNPRM), the American Trucking Assns. endorsed FMCSA’s plan, although it recommended some changes, including a longer grandfather period to allow users of existing automatic onboard recording devices (AOBRDs) – the current federal standard for electronic logs – more time before having to switch to devices meeting the new ELD standard. ATA also recommends a number of steps FMCSA could take to encourage voluntary adoption of ELDs before a mandatory deadline that could be years away.

The comment period on the SNPRM ended June 26, and as of this posting the federal government’s regulations.gov website indicated that 1,674 comments had been submitted. The upload of comments is not instantaneous, so dozens – perhaps hundreds – more comments surely have been filed and will appear in the coming days. (Note: As of this posting, the comments of neither OOIDA nor ATA are available at regulations.gov; both were provided to Fleet Owner by request.)

OOIDA

In addition to arguing that FMCSA’s ELD plan fails to meet statutory requirements, OOIDA questioned how electronic logs are used in actual practice.

“Further, there is a growing body of evidence that state enforcement officials have neither the training nor the equipment to conduct proper inspections of vehicles equipped with ELDs,” OOIDA said. “Today, such vehicles are often waived through the inspection process by officers who are unable to deal with electronic RODS and/or who make the unwarranted assumption that drivers operating vehicles with ELD’s must be in compliance with the HOS regulations.” Such assumptions are “demonstrably wrong,” it said.

“FMCSA embarks on this ill-advised program without any evidence that currently available ELDs, which require the manual input of changes in duty status, will provide the slightest improvement over paper logbooks which also depend upon manual input of such information,” OOIDA said.

OOIDA acknowledged that ELDs can measure driving time, but it argued that they can’t determine compliance with HOS rules any better than paper logbooks. “Nor can they determine whether a driver has had an opportunity to obtain restorative sleep in order to eliminate fatigue.” OOIDA further questioned the value of measuring driving time alone because “empirical data demonstrate that accidents are far more likely to occur during a driver’s first hour behind the wheel and that the rate of accidents after eleven hours is, by comparison, minuscule.  The incremental benefits from the proposed rule cannot possibly justify the costs of this program.”

The rulemaking offered an opportunity to address two significant contributors to HOS violations – harassment and coercion of drivers, OOIDA said. “FMCSA’s proposal on harassment is not carefully conceived and provides no effective tools to ensure against harassment.” The concepts of harassment and coercion “are closely intertwined” and should be addressed comprehensively in a single proceeding, it said.

OOIDA also raised constitutional concerns, saying that use of electronic devices to monitor driver behavior is not covered by the pervasively regulated industry exception to the Fourth Amendment’s warrant requirement. That exception applies only to inspection of business premises, it said. OOIDA raised the issue in its challenge before the U.S. Court of Appeals for the Seventh Circuit, but the court did not rule on the other issue because it found other grounds for invalidating the earlier rule on electronic logs.

ATA

In its comments, ATA said its confident that ELDs will improve compliance with HOS regulations. “Also, FMCSA data generated in 2010 demonstrated a strong correlation between compliance with the hours of service regulations (in place at that time) and lower crash rates,” ATA said. It urged FMCSA “to move swiftly to issue a final rule mandating ELD use, but not so swiftly as to make the rule vulnerable to inevitable legal challenges.”  The agency must conduct research and analysis to ensure that a final rule is “judicious and defensible.”

ATA offered some suggestions for improvements:

  • The grandfather period for existing devices is too short and will both penalize early adopters and discourage voluntary adoption
  • Proposed location provision standards are acceptable for enforcement purposes, but employers must be sure they can monitor vehicle location more precisely in the interest of security, safety and efficiency
  • Proposed use of commercial driver’s license (CDL) identifiers is better than FMCSA’s prior proposal to use carrier-assigned driver identification numbers, but the agency should explore other mechanisms
  • Employers should be permitted to make some types of ELD edits without driver approval, especially if the errors don’t affect compliance with driving or on-duty time rules
  • Proposed supporting documents requirements are excessive and unnecessary as ELDs will all but completely eliminate the need for supporting documents
  • FMCSA should consider ways to minimize the challenges the rules will prevent for providers of rented and leased vehicles, and their customers

ATA recommended that FMCSA go beyond a mandate to consider ways to actively promote voluntary adoption given that a final deadline for installation is several years down the road. Even without delays related to potential litigation, fleets realistically won’t have to install ELDs for at least three years. Meanwhile, fleets that have voluntarily adopted ELDs find they are sometimes placed at a competitive disadvantage as a result, so providing incentives for early adoption are appropriate, ATA said. Among the potential incentives ATA recommended are:

  • Extending the period for grandfathering of devices meeting existing standards for automatic on AOBRDs
  • Reducing the violation weight in the Compliance, Safety Accountability (CSA) Safety Measurement System (SMS) assigned to minor hourly and false log violations committed by ELD users
  • Adjusting the “measure” (ratio of violations per inspection) in the SMS HOS measurement category by providing additional credit for each inspection
  • Providing relief from enforcement of the new HOS rest break requirement given that compliance with this requirement is more heavily scrutinized when an ELD is used
  • Changing FMCSA’s processes to require that during compliance reviews and reviews of safety management plans, records sampled to measure compliance mirror the percentage of the fleet that is equipped with ELDs

It’s unclear how long FMCSA will take to review comments and issue a final rule. The agency is already nearly a year past the deadline Congress set for a final rule, although the direction in MAP-21 to complete a rulemaking in 12 months was probably not realistic to begin with. A provision in the Senate version of the Dept. of Transportation appropriations bill requires a final rule by Jan. 30, 2015, but Senate action on that bill was stalled by a filibuster over other issues.