Historic FMCSA E-Logging Rule Met With Immediate Challenge In The Seventh Circuit

December 18, 2015

In an action immediately challenged in court, the Federal Motor Carrier Safety Administration (FMCSA) finalized a long-anticipated rule (the “ELD Rule”) to require use of electronic logging devices (ELDs) by all drivers currently required to prepare hours of service (HOS) records of duty status. The ELD Rule also sets forth technical requirements and design specifications for ELDs, establishes new requirements concerning HOS supporting documents, and attempts to address concerns that information made available to carriers from the mandatory use of ELDs will be used by carriers to harass drivers. (In a separate but related rulemaking last month, FMCSA finalized regulations prohibiting carriers, shippers, receivers, or transportation intermediaries from “coercing” drivers to operate commercial motor vehicles (CMVs) in violation of federal regulations.) The ELD Rule rel=”noopener noreferrer” is mandated by the Moving Ahead for Progress in the 21st Century Act (MAP-21), a highway bill that was enacted in 2012. The new rule will be effective February 16, 2016, although carriers will have at least two years to comply.

The ELD Rule has been met with strikingly rel=”noopener noreferrer” different reactions within the industry. In a press release following the rule’s publication, the American Trucking Associations hailed the ELD Rule as “historic” and claimed that it “will change the trucking industry – for the better – forever.” On the opposite end of the spectrum, rel=”noopener noreferrer” the Owner-Operator Independent Drivers Association (OOIDA) declared in a press release that the ELD Rule “has the potential to have the single largest, most negative impact on the industry than anything else done by FMCSA.” OOIDA immediately petitioned the U.S. Court of Appeals for the Seventh Circuit to challenge the ELD Rule.

What is the Controversy Behind the ELD Mandate?

Although mandated by MAP-21, development of the new ELD requirement dates back at least to the 1980s and relates to FMCSA’s HOS requirements. Those requirements limit the number of hours that a commercial truck driver can work on a given day and over a weekly period as a means of reducing driver fatigue and fatigue-related accidents. A driver’s time is divided into four categories – (1) on-duty driving; (2) on-duty not driving; (3) time in the sleeper-berth; and (4) time off-duty. Truck drivers historically kept track of their hours on paper logbook records, creating concerns about fraud and manipulation of the records and leading to calls for electronic logging devices.

Various forms of recording devices have been in use within the trucking industry since at least 1985, when the Federal Highway Administration (FHA), predecessor to FMCSA, granted Frito Lay, Inc. a waiver allowing it to use on-board computers as a substitute for requiring drivers to complete handwritten logs.[1] Other carriers were subsequently granted similar waivers. Although in 1988 the FHA published a rule allowing carriers to use automatic on-board recording devices (AOBRs),[2] the agency repeatedly declined calls to mandate use of the devices notwithstanding rel=”noopener noreferrer” persistent concerns regarding falsified paper logbooks. When FMCSA declined to do so again during a significant HOS rulemaking in 2003 (citing rel=”noopener noreferrer” a lack of information about costs and benefits despite permissive use of the devices for decades and notwithstanding a 2001 report by the DOT Inspector General finding that “[d]rivers hours-of-service violations and falsified driver logs continue[d] to pose significant safety concerns”), a panel of the U.S. Court of Appeals for the District of Columbia Circuit characterized the inaction as “willful.”[3]

But regulators couldn’t win. FMCSA initiated a rulemaking in 2004 and resurfaced in 2010 with a new electronic logging rule, only to have it struck down in 2011 by the U.S. Court rel=”noopener noreferrer” of Appeals for the Seventh Circuit.[4] (OOIDA was the petitioner who brought the successful challenge to the 2010 rule.) Although the 2010 rule once again stopped short of mandating what were then being called electronic on-board recording devices (EOBRs), the Seventh Circuit held that the rule was arbitrary and capricious because FMCSA completely failed to address something that Congress required it to consider – specifically, the risk that monitoring devices like EOBRs might be used by motor carriers to harass drivers. Before FMCSA could fix the problem, Congress passed MAP-21, which now mandates installation of an ELD in any CMV operated by a driver subject to the HOS and records of duty status requirements. And here we are – finally (for now) – with the final ELD Rule.

What Does the New ELD Rule Require and Who Must Comply?

Under the ELD Rule, a motor carrier is required to install and to require each driver covered by the rule to use an ELD to record their duty status for each 24-hour period. The rule applies to any driver of a CMV who is required to prepare records of duty status – this means that short-haul drivers, who are exempt from the records of duty status requirements, are not covered by the ELD Rule. The ELD Rule also specifically exempts any CMVs older than model year 2000 and any driveaway-towaway operations where the vehicle driven is part of the shipment. Additionally, a driver who is required to record their duty status not more than 8 days within any 30-day period may continue to record their duty status manually (in duplicate on a grid prescribed by FMCSA). Contrary to requests submitted through the public comments, the final rule does not exempt any specific industry, CMVs below a particular weight threshold, or drivers not required to carry a commercial driver’s license (CDL). Motor carriers will have two years to comply, but if a motor carrier installs and requires each driver to use an older-generation AOBRD prior to the compliance deadline, it may use those AOBRDs for an additional two years.

How Will ELDs Function and What Kinds of Data Will They Collect?

Motor carriers will be required to use only those ELDs specifically identified on a list of approved devices available on the FMCSA website. ELDs will be synchronized with a vehicle’s engine and will track whether the vehicle is in motion and record the date, time, geographic location, engine hours, vehicle miles, and data identifying the driver, vehicle, and motor carrier. This information will be recorded whenever a driver indicates a change of duty status, whenever the vehicle is in motion and the driver has not indicated a change of duty status in the previous hour, and whenever the engine is powered up or down. (If a vehicle is being used for personal use, engine hours and vehicle miles will not be recorded and geographic location will be recorded with less precision.)

How Will ELD Records Be Submitted and Will Drivers Have Access?

Each ELD will be equipped with a function that allows a driver to review the records, edit them as necessary, and then certify them for submission to the motor carrier within 13 days of the 24-hour period for which they are applicable. A driver will be permitted to edit, annotate, or add any missing information after submitting the records, but the driver will need to recertify the accuracy of the records. A motor carrier is permitted to request edits to a driver’s already submitted records, but the driver must be given the opportunity to accept or reject a requested change and then recertify the accuracy of the records. A motor carrier may not request edits to a driver’s ELD records before the records have been submitted to the motor carrier.

What Supporting Documents are Required Under the ELD Rule?

Under the new rule, motor carriers must maintain supporting documents from the following five categories to verify each driver’s on-duty not driving time: (1) bills of lading, itineraries, schedules, or equivalent documents indicating the origin and destination for each trip; (2) dispatch or trip records or equivalent documents; (3) expense receipts related to on-duty not driving time; (4) electronic mobile communication records reflecting communications transmitted through a fleet management system; and (5) payroll records, settlement sheets or equivalent documents showing how a driver was paid. However, a motor carrier need not maintain more than 8 supporting documents for any driver’s 24-hour period. If a driver submits more than 8 supporting documents, the motor carrier must maintain the earliest and latest document in time from within the 24-hour period. Supporting documents must be provided to the motor carrier within the latter of 13 days of either the 24-hour period for which the documents are applicable or the day the document comes into the driver’s possession. Importantly, a motor carrier need not create documents that would not otherwise be created in the ordinary course of business.

What is the Concern About Driver Coercion and Harassment from ELDs?

One of the frequently cited concerns about the use of ELDs has been the potential that such pervasive monitoring and real-time communication with drivers could result in harassment of the drivers by motor carriers, who may attempt to use the devices to communicate with drivers during sleeper-berth periods, pressure drivers about their performance or productivity, or otherwise invade their privacy. The new rule attempts to address these concerns by prohibiting any action by a motor carrier toward a driver involving the use of information available through an ELD, “or through other technology used in combination with and not separable from the ELD,” that the motor carrier “knew or should have known” would result in the driver violating HOS requirements or the prohibition against any driver operating their vehicle when too ill or fatigued to do so safely. The ELD Rule also sets forth a process by which drivers may file ELD-related harassment complaints. According to FMCSA, compliance with the ELD Rule will more effectively track HOS and allow drivers to obtain proper rest (e.g., ELDs must have a function permitting the drivers to mute the device during sleeping periods), which will help ensure that driving time does not impair their ability to operate safely or negatively impact their physical condition. By requiring ELDs to be tamper resistant, allowing drivers to access their records, and tracking and recording changes to logs, FMCSA also believes that drivers will be less susceptible to coercion. (Relying on the definition of “coercion” from the recently finalized coercion rule, the ELD Rule specifically states that “[a] motor carrier may not coerce a driver to make a false certification of the driver’s data entries or records of duty status.”)

What is the Basis of the New Challenge to the ELD Rule?

Although OOIDA’s petition to the Seventh Circuit does not set forth its substantive arguments regarding the ELD Rule (those arguments will be laid out in future filings), its successful challenge in 2010 argued that FMCSA failed to ensure that e-logging devices would not be used to harass drivers, that FMCSA’s cost-benefit analysis was inadequately supported, and that mandated use of the e-logging devices violated the Fourth Amendment. In striking down the 2010 rule, the Seventh Circuit did not need to reach the cost-benefit analysis or Fourth Amendment issues, so those might be raised again in OOIDA’s new challenge. As for any potential challenge regarding FMCSA’s consideration of harassment, although the ELD rule includes a definition of “harassment,” it also explicitly states that using technology “to monitor productivity of a driver” is not prohibited. A similar provision was included in the 2010 rule and the Seventh Circuit noted that FMCSA failed to draw the line “between legitimate measures designed to assure productivity and forbidden measures that harass.” See 656 F.3d at 588. Whether FMCSA sufficiently drew the line this time likely will remain at the center of OOIDA’s new challenge.

What are the Potential Implications of the ELD Rule?

Here are some issues worth considering as we wait to find out the outcome of OOIDA’s challenge:

Uncertainty Regarding Short Term Industry Adjustments

In the sector of the industry that will be adopting electronic logging devices for the first time (i.e., because they have not yet voluntarily adopted the devices), there may be some industry adjustments. Some commentators have questioned whether drivers will leave (or not enter) the industry rather than comply with the ELD Rule. This will compound an already existing driver shortage if it happens. In addition, carriers or dispatchers who have looked the other way from HOS violations will find it more difficult to do so with ELDs. This is a significant safety benefit if it eliminates serious violations. But what about marginal HOS violations? How often will drivers need to pull over at a rest-stop near their final destination and drop their trailers because they burned driving hours stuck in traffic? Obviously, there’s no real way of assessing the potential short term disruption from these possibilities, and therein lies the issue – without ELDs, there’s been no effective way of measuring HOS noncompliance.

Check the Protections in Your Vendor Agreements

Even for those motor carriers and drivers already using some form of electronic logging device, the ELD Rule is going to impose some transitional regulatory burdens. “FMCSA is aware that there is no current device on the market that meets every standard in today’s rule.” See 80 FR 78328. You read that correctly. This is a regulation that creates a demand for ELDs not yet on the market, although some existing devices might meet the new requirements with modifications. Although FMCSA is promising guidance to help ELD providers ensure that the ELDs they offer are compliant, the fact that an ELD is included on the FMCSA website apparently will not mean the device is compliant. Motor carriers who are contracting for services with ELD providers or fleet management services providers should consider requiring those providers to assume liability for this compliance risk.

Long Term Benefits from Logistics Data

Notwithstanding the privacy concerns that have been raised, the collection of data that will result from mandated use of ELDs may have significant logistics benefits for the industry. Carriers gradually will collect significant caches of data that potentially can be mined and analyzed to determine where efficiencies can be gained and where drivers and resources can be better allocated. After adjusting to ELDs, the industry benefits may be significant.

McGuireWoods Transportation Industry Team

The transportation industry team at McGuireWoods has extensive experience advising clients in the trucking industry regarding regulatory and litigation matters. We can assist companies who are threatened with potential litigation or regulatory enforcement and we can provide counsel about how to mitigate such threats.

1. See “Electronic On-Board Recorders for Hours of Service Compliance,” Department of Transportation, Federal Motor Carrier Safety Administration, 69 FR 53386, 53387 (Sept. 1, 2004).

2. See “Driver’s Record of Duty Status; Automatic On-Board Recording Devices,” Department of Transportation, Federal Highway Administration, 53 FR 38666 (Sept. 30, 1988).

3. Public Citizen v. FMCSA, 374 F.3d 1209, 1222 (D.C. Cir. 2004).

4. Owner-Operator Independent Drivers Association, Inc. v. FMCSA, 656 F.3d 580, 588-89 (7th Cir. 2011).