Electronic logging devices
Detractors persist as frequently challenged mandate takes effect
Opposition has swirled for nearly three years since the Federal Motor Carrier Safety Administration issued a final rule requiring commercial motor vehicle drivers to track their hours of service through electronic logging devices instead of paper logs.
FMCSA published the final rule in December 2015. The mandate took effect on Dec. 18, 2017, and an enforcement grace period expired on March 31. Still, time hasn’t quelled questions about the legislation’s feasibility and safety benefits.
“Most trucking businesses are small businesses, and when I say small, I’m talking about one to four trucks,” said Todd Spencer, acting president and CEO of the Owner-Operator Independent Drivers Association. “And the vast majority simply do not believe that, for them, this will be money well spent, that they’ll get any payback for it.”
Groups opposed to the mandate believe it violates drivers’ Fourth Amendment rights against unreasonable search and seizure. Critics also claim the rule lacks sufficient evidence supporting its effectiveness in reducing crash-related injuries and fatalities. In an interview with Safety+Health in 2016, OOIDA spokesperson Norita Taylor said ELDs would not have an impact on safety “because it has nothing to do with safety. It’s just a recordkeeping device.”
Proponents of the rule, including the American Trucking Associations, say the devices will help improve safety and efficiency in the CMV industry by ensuring drivers and motor carriers keep more honest and accurate hours-of-service data.
“We feel that leveraging technology will stabilize in the long run,” said Collin Mooney, executive director of the Commercial Vehicle Safety Alliance, a nonprofit association that works closely with FMCSA on roadside enforcement. “By minimizing and structuring the hours that a driver can drive or work, it’s with the hopes that driver fatigue will be reduced.”
FMCSA estimates the final rule will save 26 lives and prevent 562 injuries annually.
ELDs are designed to register vehicle specifics – including date, time, location, engine hours, vehicle miles and identification information for the driver, vehicle and motor carrier – at frequent intervals. They record location data every 60 minutes when a CMV is in motion, as well as when drivers start or shut down the engine, change duty status or operate under special driving categories (i.e., personal use or yard moves).
FMCSA’s HOS rule states that drivers can spend 11 hours behind the wheel during a 14-hour period, and they must take a break after driving for eight hours. If drivers choose, ELDs can notify them as they approach their HOS limits; this action is not required by FMCSA.
Motor carriers must retain ELD record of duty status data and backup data for six months, and the backup copy must be kept on a separate platform from the original. Carriers also are required to keep ELD records “in a manner that protects driver privacy,” the agency states.
CMV drivers must carry four items as part of the mandate:
- A user’s manual that describes how to operate the ELD
- A sheet listing step-by-step instructions on producing and transferring HOS records to an authorized safety official
- A sheet that outlines ELD malfunction reporting requirements and protocol for maintaining records during such incidences
- At least eight days’ worth of blank grids to chart record of duty status reports
The rule exempts some drivers, including those who operate under short-haul exemptions and those who file paper record of duty status reports no more than eight days every 30-day period. Drivers and carriers who installed and used automatic onboard recording devices instead of paper logs before the Dec. 18 compliance date will have until Dec. 16, 2019, to transition to ELDs.
ELDs may be stored on smartphones or other wireless devices, provided the device satisfies technical specifications. Portable ELDs must be mounted in a fixed position and be visible to the driver from a normal seated position when the CMV is in operation.
‘Ramp-up period’ over
From Dec. 18 to March 31, inspectors and roadside enforcement officials who documented ELD violations in their reports could have issued citations for noncompliance at the discretion of the jurisdiction.
Acknowledging that the shift affects both the motor carrier industry and enforcement personnel accustomed to working with paper logs, Mooney called the time frame “basically a ramp-up period.”
“It is a challenge anytime something new is being implemented into your inspection process or into your enforcement world,” Mooney said. “But that’s no different than it is for the driver, as well, right? So, it’s just a matter of getting up to speed. As things evolve within our environment on a daily basis now, technology is taking over, and we just need to learn how to adapt to our new working environment.”
As of April 1, inspectors could begin placing CMV drivers out of service for operating without an ELD. “Whether some states decide to write citations and others don’t, the bottom line is it is a regulatory requirement now and you need to comply,” Mooney said. FMCSA tweeted on March 13 that compliance with HOS recordkeeping requirements had reached 96 percent nationwide.
Cost and certification
In the final rule, FMCSA estimates a total annual cost of $419 for each ELD with telematics, and $166 for each local transfer method ELD. The document states that the latter ELD cost is lower given the limited functionality of such devices. Installation times vary by model. In a social media post, Middlebury, IN-based Star Fleet Trucking states it can install an ELD in about 15 minutes.
FMCSA requires drivers and carriers to use models listed among the agency’s registered ELDs. Vendors self-certify their compliance with specifications, and FMCSA lists more than 330 self-certified models – and no revoked devices.
OOIDA’s Taylor remains skeptical of the self-certification process. “So, you could invent your own ELD, and you could upload your information to FMCSA and say that it checks off all the things on their checklist, and you have successfully self-certified your device, even if it’s not compliant,” she recently told Safety+Health. “And somebody could buy it and be on the roadside and find out that it’s not compliant and get a citation. The FMCSA does not certify any of the manufacturers.”
Waivers and exemptions
FMCSA announced a temporary 90-day waiver for agriculture-related transportation in 2017 before issuing an additional 90-day waiver in March, extending full implementation for the agriculture industry to June 18.
“We continue to see strong [ELD] compliance rates across the country that improve weekly, but we are mindful of the unique work our agriculture community does and will use the following 90 days to ensure we publish more helpful guidance that all operators will benefit from,” FMCSA Administrator Raymond Martinez said in a March 18 press release.
Secretary of Agriculture Sonny Perdue expressed his appreciation for the extension in a separate press release, claiming “live agricultural commodities, including plants and animals, would have been at risk of perishing before they reached their destination” had the initial March 18 compliance deadline been upheld.
“Current ELD technologies do not recognize the hours-of-service exemptions for agriculture that are in federal law,” Perdue said in the release.
Later in March, Congress passed the Consolidated Appropriations Act – also known as the omnibus bill – that includes an ELD exemption for livestock and insect transporters.
FMCSA also announced its intent to publish final guidance on the existing HOS exemption for carriers operating within a 150-mile radius of their headquarters, as well as the “personal conveyance” provision that allows CMV drivers to use their vehicle for non-work-related reasons.
Concern in Congress, states
Rep. Brian Babin (R-TX) has been among the more vocal congressional opponents of the mandate. In November, Babin wrote a letter to President Donald Trump requesting an Executive Order to delay the regulation. Babin’s earlier 2017 actions included introducing the ELD Extension Act of 2017 (HR 3282) in July and proposing in September an amendment to the Make America Secure and Prosperous Appropriations Act of 2018, which sought to prevent funding for the mandate. The amendment was defeated.
Other challenges to the regulation have fizzled in court in the past year. In October, the U.S. Court of Appeals for the 7th Circuit denied an attempt to block the mandate, while the Supreme Court declined to hear an appeal in June.
OOIDA’s Spencer wrote a letter to the House Transportation and Infrastructure Committee in February requesting an oversight hearing on the regulation on behalf of the association’s 160,000 members. OOIDA and other organizations previously shared concerns before the mandate took effect. To Spencer, FMCSA substantiated those issues through “a patchwork of temporary waivers, exemptions and ‘soft enforcement’ deadlines that have only caused more confusion across the country.”
Additionally, several state lawmakers have proposed actions against the mandate. In February, the South Dakota House and Senate passed a resolution urging Congress to overturn the rule, and the Missouri General Assembly introduced a bill later that month that “prohibits the implementation, enactment, promulgation, codification or enforcement” of any law or rule requiring the use of ELDs.
In Tennessee, the General Assembly is working to pass legislation that prohibits state funding “to implement or enforce [ELD] regulations.”
“States have a lot of latitude about what they adopt and what they don’t, and in some instances, the regulation for the ELD actually will end up being in conflict of the state’s constitution,” Spencer said. “The ELD regulation requires that the location of the vehicle of the driver be reported no less than hourly. So that’s pretty close surveillance, and it’s sort of surprising, too, in that that’s a level of surveillance that when applied to truckers is required by the law, yet not something that’s been found constitutionally appropriate in any state for a private citizen. And truck drivers are private citizens.”
‘Regulated by the nanosecond’
In January and February, the OOIDA Foundation (a research affiliate of the association) surveyed nearly 2,000 members about ELDs in an online poll. Seventy-nine percent of respondents said the mandate was decreasing safety overall, 75 percent felt increased pressure to speed, 72 percent felt more fatigued and 44 percent felt more harassed. In addition, 85 percent said they experienced parking issues – such as stopping in unsafe or unsecured areas – more often.
For opponents, the mandate largely adds up to increased pressure. “You have to remember that most truck drivers are paid by the mile, but they’re being regulated by the hour,” Taylor said. “And with ELDs, they’re being regulated by the nanosecond.”