FMCSA Asks, Should ELDs Record Truckers’ Locations More Often?
FMCSA considers changes to the Electronic Logging Device rules and asks for public comment.
FMCSA asks the public to comment by November 15, 2022 on several questions related to potential changes it is considering to the ELD rules. These questions include: whether ELDs should now be mandated on pre-year 2000 trucks or glider kits, how the rules might better manage ELD malfunctions, whether ELD manufacturers and the FMCSA should be more proactive in adding and removing ELD manufacturers from FMCSA’s approved list, and whether ELDs should be required to record location and other information more frequently.
In the “Technical Specifications” section, FMCSA asks whether it should expand the types of data collected by ELD and whether ELDs should collect this data more frequently—as often as every 15 minutes (or another time interval, down from the current 60- minute interval). The categories of data FMCSA proposes to collect more frequently include: “1. Actual odometer 2. Actual engine hours 3. Location description 4. Geo-location 5. VIN 6. Power unit 7. Shipping document number 8. Trailer number 9. Driver 10. Co-driver if there was one 11. Which driver was driving at the time, if there was a co-driver.”
The federal government’s increased recording of a driver’s “location description” and “geo-location” directly implicates the privacy interests of drivers that are protected by the United States’ Constitution.
TCLF Analysis:
The Privacy Implications of the Proposed Rule
The purpose of ELDs is to regulate driver fatigue, and it does so through government-mandated electronic GPS monitoring and data collection. Although FMCSA’s Notice does not acknowledge or mention it, the potential expansion of the information that an ELD records necessarily implicates significant privacy rights of truck drivers under the Fourth Amendment to the U.S. Constitution (as well as privacy interests protected by state constitutions, like those at stake in OOIDA’s ongoing challenge against New York’s enforcement of the ELD rule). FMCSA will have to grapple with this issue if it wants to expand its electronic GPS monitoring of drivers.
The ELD rule provides for the government to conduct a warrantless search of an individual. Warrantless government searches are generally prohibited under the Constitution. However, they are permitted for searches of business premises in “pervasively regulated industries” if the government can show that the search is necessary to meet the government’s interest in enforcing a law, and that the laws authorizing such a search provide the same protections that a warrant provides: including giving notice to an individual of the search and defining and limiting the authority of the enforcement official to a specific time, place, and scope for the search.
The absence of FMCSA’s data and related information on its proposals
FMCSA suggests that a more frequent data collection may “more efficiently monitor a vehicle over the course of its operation,” but it does not explain in detail why more detailed driver monitoring is necessary or the appropriate response. Why does FMCSA need significantly more invasive driver searches to enforce the current HOS regime? FMCSA’s Notice states:
“FMCSA believes that the lessons learned by Agency staff, State enforcement personnel, ELD providers, and industry over the last few years can be used to streamline and improve the clarity of the regulatory text and ELD technical specifications and resolve questions that have arisen. In addition, technical specifications could be updated to address concerns raised by affected parties and improve the functionality of ELDs.”
This is a good summary of the record that FMCSA will have to make to justify increased intrusion in driver privacy and other rule changes. What is FMCSA’s experience with using ELD location data? How does it use such data now? Is such location data used at all in the regular course of HOS enforcement? Can FMCSA provide any examples of how location data is used? Many state inspectors give drivers a code that causes the ELD to upload its data to an FMCSA system that reviews that data and then sends information to the inspector about the driver’s HOS compliance. How does that system use ELD location data? Has that data been inadequate in any way for HOS enforcement, and if yes, how?
In the publication of the Final Rule in December 2015, FMCSA estimated the ELD rule will result in “1,844 crashes avoided annually and 26 lives saved annually.” Now that FMCSA has 5 years of experience with ELDs, it should be able to answer some basic questions about ELDs’ efficacy. For instance, how many accidents have been prevented by ELDs? How many lives have been saved by ELDs? How has the 24-hour monitoring of driver locations contributed to ELDs’ effectiveness (or lack thereof)?
The unintended consequences of ELDs
Several of the ELD topics described by FMCSA fall into the category of unintended consequences of ELDs. There are additional unintended consequences that FMCSA should examine. Early studies of carrier records after ELD implementation showed an increase in speeding offenses recorded in inspections reported to the Motor Carrier Safety Management Information System (MCMIS). Anecdotal evidence from the road is that ELDs have put increased pressure on drivers to “beat the clock” to deliver a load to meet the demands of their dispatchers or otherwise complete their trip before having to shut down for 10 hours. Has FMCSA estimated the negative consequences of the observed increase in speeding on accidents and lives lost?
There is evidence that ELDs have improved motor carrier records of HOS compliance. But is this actual compliance or the appearance of compliance? ELDs may record driving time accurately, but anyone who understands the HOS rules knows that this alone is not enough to determine a driver’s compliance with the HOS rules. Compliance with the HOS rule requires a record of both driving time (recorded by the ELD) and a record of when the driver was on-duty or off-duty when not driving (which requires the driver’s manual entry into the ELD).
The only data point automatically recorded by the ELD that can be relied upon to know whether a driver is not in compliance with the HOS rules is after the driver has operated a truck past 11 hours. But that data point does not inform the enforcement officer whether any of those 11 hours of driving, even the first minute of driving, was in compliance with the rules. Under the popular belief that ELDs are a tamper-proof record of a driver’s compliance with the law, ELDs effectively have an 11-hour margin of error. This technical deficiency directly relates to the effectiveness of ELDs to improve safety. FMCSA must take this factor into account as it evaluates its experience with ELDs over the last five years. It must put such evaluations in the public record for the public to comment upon before it considers changes to the rule.
FMCSA’s responsibilities under this rulemaking
Some of FMCSA’s questions ask very practical issues that seek to address problems that drivers and carriers have experienced with ELDs. To solve these problems, it is important for FMCSA to receive comments from ELD users telling stories about their issues with ELDs and providing opinions on whether the potential solutions suggested by FMCSA would address those problems effectively.
But FMCSA has its own responsibility under the Administrative Procedures Act to put into the public record the “the lessons learned by Agency staff, [and] State enforcement personnel,” that has prompted it to propose these rule changes. And where these proposals are technical in nature or are intended to result in measurable improvements in effectiveness in ELDs to prevent accidents and save lives, the agency must make public the available pertinent data and analysis. Under the APA, the public has the right to review and comments on such information before the agency moves forward with new rules.
More information and how to submit comments to the agency:
You may find a copy of FMCSA’s Advanced Notice of Proposed Rulemaking here.
As of October 11, 2022, 865 members of the public have submitted comments to this rulemaking at FMCSA. You may submit your comments to FMCSA here.
For more information or to share your thoughts with TCLF, please email info@cullenlaw.com