THE ELD MANDATE: AN IMPERFECT SOLUTION TO A RAMPANT DANGER
After nearly two decades of challenged regulatory efforts, mandatory electronic logging devices (ELDs) for use by interstate motor carriers began in December 2017 to combat the rampant problems of fatigued driving and forged log books. Paper logs have officially been relegated to history’s garbage can. Challenged by driver associations through legal actions, ELDs were seen as a practical solution by the FMCSA and a nuisance by many drivers who believed officials did not understand there was no “one size fits all” solution that could adopt to challenges they faced with delays and unforeseeable driving conditions.
While ELDs may help achieve some reduction in fatigued driving, they don’t address systemic issues that incentivize fatigued driving which include:
- Driver pay arrangements that pay drivers by the mile;
- Driver pay arrangements that penalize drivers for detention periods without compensation and without adequate alternates for route planning;
- Driver pay arrangements that penalize drivers for dead-head miles.
The FMCSA and industry experts should consider further research efforts on examining these negative incentives that are created by driver pay arrangements that often penalize drivers for conditions that are neither created by them nor are they reasonably under the control of those drivers.
ELDs can also be cheated. The FMSCR still requires motor carriers and drivers to keep and preserves documents to be used to verify them. Plaintiffs lawyers must understand how to identify and discover the supporting documents to verify the truthfulness of ELDs and also must understand what to look for when drivers and motor carriers try to cheat ELDs to drive too long.
- METHODS TO COMBAT DANGERS OF FATIGUED DRIVING
- FMCSA’s First Attempt at Revision of HOS-EOBR (1999-2004).
Driver fatigue has been a major safety concern from the outset of the age of interstate commerce. It is well-known from laboratory studies that fatigue can cause slower response times, decreased performance, attention deficits, and impaired judgment. It is believed that restrictions on hours of service (drive times) can lead to reductions in the percent of commercial drivers who drive while fatigued.
From 1937 until 2003, drivers were limited to ten (10) consecutive hours driving without a rest break. In 1995, the U.S. Department of Transportation (DOT) sponsored the National Truck and Bus Safety Summit where “driver fatigue” continued to be identified as the number one safety problem in the trucking industry. Thereafter, Congress enacted section 408 of the Interstate Commerce Commission Termination Act (ICCTA) that required DOT to implement and adopt “countermeasures for reducing fatigue-related incidents and increasing driver alertness.” When Congress created the FMCSA in 1999, it provided that FMCSA “shall consider the assignment and maintenance of safety as the highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in motor carrier transportation.” In 2000, FMCSA published in formal notice intending to revise the HOS regulations wherein they identified a problem that drivers could take periodic “off-duty” breaks during the day and extend the fifteen hour eligible “on duty” period beyond fifteen hours. Drivers could effectively split drive time with short rest periods and continue driving. FMCSA based the proposed revisions on scientific conclusions regarding the consequences of sleep deprivation among commercial motor vehicle operator wherein research showed persons are much more alert when and able to react when they go to sleep and wake up around the same time each day and concluded drivers should get, at a minimum, “eight consecutive hours of sleep every day.” For long-haul drivers, the proposal included a daily limit of on-duty and driving time of twelve (12) hours, with two (2) additional hours off for a maximum fourteen (14) hour workday and ten (10) hours of off-duty time on a twenty-four (24) hour cycle. The twenty-four-hour cycle better reflected the circadian rhythms of drivers. Under the old rules, eight (8) hours of off-duty time was thought to be insufficient because drivers inevitably would spend much of that time not sleeping and for personal tasks. The proposal would also mandate drivers take a “weekend” of thirty-two (32) to thirty-six (36) hours off duty each week covering two (2) consecutive periods from 12 a.m. to 6 a.m. This mandatory “weekend” time was intended to compensate for sleep debts accrued by drives during the work-week. Finally, the proposal also mandated the use of electronic onboard recorders (EOBRs) that would replace logbooks as the main method of compliance monitoring. EOBRs automatically dates, driving distance per day, on- and off-duty time, start time and were to have a continuous time scale. Drivers could not edit the recorded figures because FMCSA concluded that falsification of logbooks was widespread.
Until December 2017, the Federal Motor Carrier Safety Administration (FMCSA) combatted driver fatigue and enforcement of hours of service regulations through the use of Record of Duty Status (RODS), more commonly known as driver logs. Between 1940 and 2003, the permissible hours of service (HOS) was largely the same for most truck drivers. The HOS regulations were intended to reduce driver fatigue and fatigue-related accidents and required drivers to document his or her status (1) driving, (2) on-duty, (3) not driving, (4) in sleeper berth, and (5) off-duty. The HOS regulations set forth at 49 C.F.R. § 395.8(b) daily limits for time spent driving and otherwise on duty and daily minimums for consecutive hours off duty. Additionally, there were maximum total hours a driver could spend in a given week on duty (either based on a seven- or eight-day units).
RODS traditionally were kept by truck drivers on paper logs. Log books could easily be purchased at truck stops. Truck drivers were required to keep their logs for seven days and then submit them to the motor carrier, which must retain them for six months. The paper-based system was concerning, given the ease with which they could be manipulated or falsified. It was not uncommon for truck-drivers to carry to sets of logs. One set could be pattern logged and shown to authorities on request and another “real” set of logs could be used to calculate actual miles driven to ensure they are not short-changed on compensation by the mile.
In 2003, FMCSA adopted a final rule that increased the maximum limit on consecutive driving hours from ten (10) to eleven (11) and implemented a 34-hour restart and dropped the EOBR mandate, concluding there was insufficient evidence regarding the costs and benefits of their use at that time and may be difficult and expensive to implement and standardize. The final rule resulted in litigation challenging it and was held to be arbitrary and capricious. In Public Citizen, et. al., v. FMCSA, petitioners challenged the final rule as arbitrary and capricious because FMCSA failed to consider the impact of the rule on the health of drivers. In dicta, the court also questioned the legal sufficiency of increasing the maximum driving time from ten (10) hours to eleven (11) hours, especially given that “performance begins to degrade after the 8th hour on duty…”
As to mandatory EOBRs, the court questioned the rationality of FMCSA in not requiring them “at this time (based on the assertion the cost-benefits weren’t known).” The court chastised the FMCSR for not testing the EOBRs that were then available for use, given widespread falsifications of logbooks. The court concluded, “requiring EOBRs will have substantial benefits by inducing compliance with HOS regulations.”  Finally, the court criticized the 34-hour restart provision as it would, as proposed, dramatically increase the maximum permissible hours drivers may work each week. 
Congress then overrode the Public Citizen holding through legislation and kept the 2003 rulemaking in effect until the earlier of either a new rule from the Agency or one year.
- Back to the Drawing Board – FMCSA EOBR revisions (2004-2017)
Post-Public Citizen, the next round of legal challenges focused squarely on the implementation of EOBRs. The FMCSA defines an EOBR as “an electronic device that is capable of recording a driver’s hours of service and duty status accurately and automatically” which must be fully synchronized with a truck’s engine.” The device is linked to the engine and driver’s telephone, so the contemporaneous updates are sent either through cellular technology or via satellite to a remote server. The data recorded onto the remote server includes:
(1) truck’s registration number;
(2) date and time;
(3) location of the truck;
(4) the distance traveled;
(5) the hours in each duty status for a 24-hour period;
(6) the motor carrier’s name and DOT number;
(7) the weekly basis used by the motor carrier (7 or 8 days / week) to calculate cumulative driving time;
(8) the document numbers or name of the shipper and goods being shipped. After the Congressional Override of Public Citizen, FMCSA returned to the drawing board. However, ultimately FMCSA made only one change to the prior proposed rules and in 2007, the FMCSA issued formal notice of proposed rulemaking which considered performance standards for EOBR technology, the use of EOBRs to remediate regulatory non-compliance and incentives to promote voluntary use of EOBR technology. After significant industry commentary and input, FMCSA promulgated the final proposed rule in 2010. The 2010 proposed rule which would have made motor carriers that “have demonstrated serious non-compliance with the HOS rules will be subject to mandatory installation of EOBRs” (meaning greater than a 10 percent rate of noncompliance with HOS rules in any single compliance review). The proposed rule was to become effective on June 4th, 2012. Once again, the proposed rules were found arbitrary and capricious. On appeal, the Eleventh Circuit Court of Appeals considered the “controversial” issue of mandatory EOBRs and found the FMCSA did not exhibit evidence to “ensure that the devices are not used to harass vehicle operators.” Mandatory use of EOBRs was once again thwarted for high-risk carriers.
- CURRENT RULE AND ELD TECHNOLOGY
The current regulations governing ELDs are found at 49 C.F.R. § 395.20-38. The current hours of service of drivers regulations are found at 49 C.F.R. § 395.1-15. As part of MAP-21, on December 16th, 2015, the FMCSA published the current law which went into effect on February 16th, 2017 with a required compliance date of December 18th, 2017. The rule purported to reduce the overall paperwork burden for both motor carriers and drivers through the use of ELDs, addressed the technical specifications for ELDs, mandates use of ELDs for most motor carriers, specified what supporting documents were to be kept by motor carriers, and adopted provisions to ensure drivers were not harassed through the use of ELDs. FMCSA based the rulemaking authority on several statutes including the Motor Carrier Act of 1935, the Motor Carrier Safety Act of 1984, the Truck and Bus Safety and Regulatory Reform Act of 1988, the Hazardous Materials Transportation Act of 1994 and MAP-21.
Importantly, there continue to be exemptions from mandatory ELD use which include: (1) driveaway-towaway operations, provided the vehicle driven is part of the shipment; and (2) CMVs older than model year 2000. FMCSA calculates the total monetary safety benefits by reduced crashes is $3,150,000,000.
- Supporting Documents
Under 49 C.F.R. § 395.11(d) motor carriers must retain up to eight (8) supporting documents for every 24-hour period a driver using ELDs is on duty for six months. The driver must submit the documentation no later than 13 days after receiving them to the motor carrier. According to FMCSA, the supporting documents are needed to verify the on duty, not driving time (ODND). Under § 395.11(c)(2) the eight documents should contain the driver name or carrier-assigned identification number, the date, location (including the nearest name of nearest city, town or village), and the time.
Examples of supporting documents include bills of lading, itineraries, schedules, dispatch records, trip records, expense receipts, electronic mobile communication records through fleet management systems, payroll records, and settlement sheets.
Harassment is an “action by a motor carrier toward one of its drivers that the motor carrier knew, or should have known, would result in the driver violating § 392.3.” (HOS rules). The rule provides for a civil penalty in additional o the penalty for the underlying harassment. As further measures, ELDs must also be equipped with a “mute” button to mute audible incoming communications while drivers are in the sleeper berth and must also have volume control.
- Technical requirements of ELDs
ELDs must also be designed so that drivers may edit enter missing information into, and annotate the ELD with records, but the original record will be retained. The ELD must also prevent electronically-recorded driving time from being shortened. Each person making edits to an ELD must have a unique login ID, without having to request access through their motor carrier. ELDs are not required to have real-time tracking capability of CMVs or the recording of a precise location. Most telematics providers do, however, offer the option for motor carriers to have real-time tracking and to receive real-time alerts when drivers are in danger of driving over hours. When this technology is readily available, is there really any legitimate excuse for motor carriers not using it? Make sure to get the available data directly from the telematics provider to show what the motor carrier would have known at the time the crash happened. Do NOT rely on the motor carrier to give you this information.
ELDs must meet standard requirements which include recording certain information to driver HOS status and must capture and transfer identical data regarding driver HOS status to authorized safety officials. They must automatically record all driving time and intermittently record other information. When a driver logs in or out, the ELD records all the data and when the engine is powered up or down, the ELD records all data elements required by § 395.26, which includes the date, time, CMV geographic location information, engine hours, vehicle miles, driver or authenticated use identification data; vehicle data and motor carrier identification data.
FMCSA provides a website that lists provider-certified ELDs and motor carriers must use only an ELD that appears on the list of registered ELDs. ELD providers are required to “certify” through the website that their products meet the technical specifications of the Rule.
So that data can be accessed during roadside inspections, an ELD must support data transfer to an authorized official by telematics on demand via wireless web services and email or a local transfer method on demand via USB2.0 and Bluetooth. Additionally, both types must be capable of displaying standardized data to an official on demand. A driver must be able to provide the display or a printout when requested by an official. Drivers must also submit the supporting documents within thirteen days to the driver’s employer and they must be shown to an official if they are in the vehicle. However, drivers are not required to keep supporting documents in the vehicle.
- Cheating ELDs
ELDs make it hard to cheat drive time, as engagement of the engine throttle triggers recording (assuming the driver logs in under his own correct driver ID). ELDs, however, don’t know when the driver is “on duty, not driving” or “off duty.” Drivers can log as “off-duty” and can even manually override a recording of “on-duty” to read as “off-duty.” An instance from a case where driver was detained in a receiving yard shows his manual edit below:
In this example, the driver manually edited the entry at 1:50 to “off duty pick up the load.” The driver did this because he got bad lost and was late to the pick-up location and then had to wait when the load wasn’t ready when he arrived, which would have put him later over the maximum driving and on-duty times. Time spent waiting to be loaded is considered recordable as “on duty, not driving” and not “off duty” time. ELDs do leave an audit trail and so plaintiff’s lawyers must carefully examine any edits.
“In order to be considered off-duty time while a driver is waiting to be loaded or unloaded, all the following criteria must be met:
- The driver must be relieved of all duty and responsibility for the care and custody of the vehicle, its accessories, and any cargo or passengers it may be carrying.
- During the stop, and for the duration of the stop, the driver must be at liberty to pursue activities of his/her own choosing and to leave the premises where the vehicle is situated.
If circumstances allow a driver to use a valid sleeper berth without being disturbed for a specific period of waiting time, that time in the sleeper berth may be recorded as “sleeper berth” time. In most other circumstances, such as when the driver is required to remain with the vehicle to move it when necessary, the waiting time should be recorded as “on duty/not driving.” (Source or footnote: J.J. Keller training materials https://www.jjkeller.com/learn/hours-of-service-faqs (last visited Feb. 6th, 2019)).
The required supporting documents, listed above, continue to be the principal source for law enforcement, motor carriers and plaintiff lawyers to verify on duty and off duty time. Make sure always to request the supporting documents and to modify your discovery request to track the language of 49 C.F.R. § 395.10(c).
Search YouTube and you can see how creative truckers can get in trying to beat the ELDs to get longer drive times. Some have gone so far as to turn it on “airplane mode” so that a signal is not sent and then to hack and alter data before the data is transmitted to the telematics provider. There also still exists the possibility of a driver simply logging in under another driver id once he or she is out of hours.
Although mandatory ELDs undoubtedly will have a profound effect on prevention of fatigued driving, they are far from the perfect solution. In order to adequately address outstanding issues, the FMCSA and motor carriers should strongly consider implementing driver pay structures that compensate drivers for idle time and not simply pay drivers for miles. The old adage, “if the wheels ain’t turning, you ain’t earning” still applies and ELDs accomplish nothing to change this.
 Commercial Motor Vehicle Driver Fatigue, Long-Term Health, and Highway Safety: Research Needs, Chps. 3, 7. Washington D.C., National Academy Press, 2016.
 Id. at chp. 7. (also noting others argue the issue is more complex and other factors need to be studied further).
 Pub. L. 104-88, § 408 (Dec. 29th, 1995).
 42 U.S.C. § 9613.
 65 Fed. Reg. at 25,581.
 Id. at tbl. 5, 2587-88.
 Id. at 255,555-6.
 Id. at 25,598.
 Id. at 25,606.
 Id. at 25,558.
 Id. at 22,488.
 Public Citizen, et. al. v. FMCSA, 374 F.3d 1209 (D.C. Cir. 2004).
 374 F.3d at 1218.
 374 F.3d at 1220-1.
 374 F.3d at 1222.
 Surface Transportation Extension Act of 2004, Part V, Pub. L. 108-310, § 7(f), 118 Stat. 1144, 1154.
 49 C.F.R. § 395.2 (2011)
 49 C.F.R. § 395.16 (2010)
 Electronic On-Board Recorders for Hours-of-Service Compliance, 72 Fed. Reg. 2340, 2343 (Jan. 18th, 2007).
 OOIDA v. FMCSA, 494 F.3d 188, 199-206, 377 U.S. App. D.C. 356 (D.C. Cir. 2007).
 OOIDA v. FMCSA, 656 F.3d 580 (11th Cir. 2011).
 Moving Ahead for Progress in the Twenty-First Century, P.L. 112-141 (2012).
 Federal Register, Vol. 80, No. 241 (Dec. 16th, 2015).
 The use of “ELD” was substituted in place of “EOBR” by 79 F.R. 17656 to be consistent with terms used in MAP-21.
 U.S. Congressman Diane Black (Tennessee) introduced legislation in 2015 that would allow manufacturers to sell “Gliders” (trucks with new bodies but old engines) that would be exempt from current EPA regulations. One must wonder if this was an attempt to make it easier for trucker and motor carriers to purchase gliders and thus be exempt from mandatory use of ELDs since the Glider might be considered a CMV “older” than 2000. https://www.nytimes.com/2018/02/15/us/politics/epa-pollution-loophole-glider-trucks.html. Whether a CMV older than 2000 is determined by the date the engine was manufactured, not the chassis. https://www.overdriveonline.com/fmcsa-pre-2000-eld-exemption-applies-to-engine-model-year-not-chassis/
 80 F.R. 241, Table 1 (2013 dollars).