Electronic Logging Devices — Coercion, Safety, Guidance

Even though they have been mandated there are still a lot of questions about exactly how they will affect the industry and how beneficial they’ll actually be. This month we take a look at three separate issues surrounding the move toward ELD’s.

The Federal Motor Carrier Safety Administration’s (FMCSA) first attempt at a regulation requiring Electronic Logging Devices (ELD’s) ran into problems when it was challenged on the basis that the information recorded by such devices could be used to coerce drivers to start or continue a trip even if it was unsafe to do so or they felt ill. In order to rectify this situation, FMCSA recently published a Notice of Proposed Rulemaking that prohibits coercion of commercial motor vehicle drivers.

This proposed regulation expands the scope well beyond the driver/motor carrier relationship and the use of ELD’s. The list of responsible parties is expanded to include shippers, receivers and brokers. The regulation prohibits coercing drivers to operate a commercial motor vehicle in violation of the Federal Motor Carrier Safety Regulations including:

• Hours of Service

• CDL provisions

• Drug and alcohol testing rules

• Hazardous Materials regulations

• Mechanical requirements

The regulation spells out a sequence of events that must take place. First, one of the responsible parties must request that the driver take action such as making a certain delivery schedule. At that point it is up to the driver to object and give the reason. For example, the driver could point out that he/she doesn’t have enough available hours to arrive at the requested delivery time. The fact that the request was made doesn’t constitute coercion. The situation escalates to coercion if the party who made the request then threatens to take action against the driver after the driver raises the objection.

Drivers alleging coercion bear a substantial burden of proof. Neither OSHA nor FMCSA can proceed without evidence and the driver will have to provide much of that evidence. The proposed new complaint procedures allow drivers to present whatever evidence they have to substantiate an allegation of coercion. Parties that violate the prohibition of coercion would be subject to a maximum civil penalty of $11,000 per violation and could potentially affect a motor carrier’s safety fitness rating.

Shippers, receivers, or brokers will not be excused from liability for coercion because they did not inquire about the driver’s time remaining or pretended not to hear the objection. When directing the driver’s actions, these entities “should have known” whether the driver could complete the run without violating the regulations.

One of the more common complaints against ELD’s is that they don’t increase safety. Although there’s no doubt that Electronic Logging Devices (ELD’s) can improve hours of service compliance the link with safety has been weak. FMCSA recently released a study entitled “Evaluating the Potential Safety Benefits of Electronic Hours-of-Service Recorders” aimed directly at this issue.

Early adopters of ELD’s have reported sharp drops in hours of service compliance problems including out-of-service rates after roadside inspections. That result is not surprising but those carriers have also reported that the information gathered by today’s devices also helps them increase fleet productivity and even reduce idling time. However, the safety effect question still remained unanswered.

FMCSA gathered data from 11 motor carriers using class 7 & 8 trucks over the course of 15.6 billion miles. Most of the participants were fleets with over 1,000 trucks so the study may not reflect the general motor carrier population. Each fleet had trucks with and without ELD’s. The trucks without the device were used as the control group to compare against the trucks with the devices. The study did not consider driver characteristics or any metric other than the presence/absence of an ELD. The study concluded that trucks with ELD’s had reduced crash rates as well as hours of service violation rates.

Another objective of the study was to look for evidence of fatigue as a crash factor. During the study period there were 82,943 crashes and these records were examined to determine cause but the authors of the study stated that evidence of fatigue could not be reliably determined. Other information such as hours slept prior to the crash, last rest period, and driving hours in current shift were not available. However, in cases where the crash report contained key words relating to fatigue that factor was used as the cause. On that basis the study showed a decrease in fatigue related crashes for those trucks with ELD’s: .05 per million miles vs. .07 per million miles.

Although this study certainly doesn’t settle all ELD questions and concerns FMCSA is using the results to affirm a positive relationship between ELD use and increases safety.

The move toward ELD’s has caused some variance in enforcement with inspector’s requests for information sometimes at odds with the regulatory specifications. An ELD must be capable of displaying the following:

• Total driving hours for today

• Total hours on duty today

• Total miles driving today

• Hours for last 7 days

• Hours for last 8 days

• Sequential changes in duty status and the time the change occurred

Other information may be recorded but it is not required to be displayed. There is no requirement that the display be in the form of the familiar log time graph. Also, there is no requirement that the device be equipped with an on-board printer. Inspectors may request additional information provided by email, fax or similar means within 48 hours for follow up after the conclusion of the roadside inspection.