Electronic log mandate clears final review before implementation

By Jami Jones, managing editor

The Federal Motor Carrier Safety Administration will soon roll out its final rule mandating the use of electronic logs in all trucks operating in interstate commerce.

The final rule outlining the mandate, electronic log technical specifications of the devices, procedures for their use, and associated document retention cleared the White House Office of Management and Budget on Nov. 16.

The path to a final rule has been bumpy to say the least, and while this stage of the rulemaking process does not afford full disclosure of the contents of the regulation, its future could be equally murky.

FMCSA previously attempted a mandate on motor carriers with a severe noncompliance of the hours-of-service regulations. The Owner-Operator Independent Drivers Association was successful in defeating that regulation in court.

It took only one of the three arguments raised by OOIDA for the U.S. Court of Appeals for the 7th Circuit to vacate the regulation.

The regulation under fire was the 2010 final regulation mandating the use of electronic on-board recorders for companies with a safety history that reflects a 10 percent or greater level of noncompliance with the hours-of-service regs in one compliance review.

OOIDA filed suit against the agency, contending that the rule was arbitrary and capricious because it does not "ensure that the devices are not used to harass vehicle operators," as required by law. The Association's lawsuit also contended that the cost-benefit analysis failed to demonstrate the benefits of the technology and that the EOBRs violate the Fourth Amendment.

The opinion from the 7th Circuit, prepared by Circuit Judge Diane Wood, stated that the court "need address only the first issue" of driver harassment.

Rather than retool the vacated rule, FMCSA has attempted to address the harassment issue and is going for a full mandate this time around.

As a bit of added incentive, the 2012 highway bill passed by Congress requires FMCSA to pursue an electronic log mandate, but it also said the administration must not let electronic logs be a tool to enable harassment.

The agency issued a supplemental notice of proposed rulemaking in March 2014, in large part, to address the concerns of OOIDA, Congress and the 7th Circuit Court of Appeals that electronic logging devices can be used as a tool by motor carriers to harass drivers.

In comments filed on the supplemental notice, OOIDA leadership did not believe the rulemaking proposed satisfied the statutory mandate set forth in the highway bill and by the courts.

The FMCSA's e-log proposal opens a "giant loophole" for carriers to harass drivers to drive as long as they have available hours on their clock, even if a driver is ill, fatigued, or has been subjected to long waiting periods while not driving, OOIDA's comments state.

The Association also harshly criticized a study FMCSA released during the 2014 comment period that attempted to estimate the safety benefit of the devices.

The study, commissioned by the FMCSA and conducted by Virginia Tech Transportation Institute, claims that electronic logs increase hours-of-service compliance and would therefore reduce driver fatigue and fatigue-related crashes.

"The study's conclusion is flawed because it included all other types of crashes except those that supposedly would be prevented with electronic logging devices," OOIDA Executive Vice President Todd Spencer said.

The study admits that it is "skewed" to favor large carriers and is not representative of small-business trucking.

The final regulation cleared reviews at the Department of Transportation and the White House Office of Management and Budget after a few delays. The agency planned to publish the final rule in the Federal Register on Nov. 30.

Unless the agency opts to release details of the regulation early, the first glimpse of the final rule will happen once the regulation is submitted to the Federal Register for publication. As of press time, the final regulation had not been released by the agency and was still expected to publish in late November or early December. LL