Following pointed criticism of its failure to mandate on-board recording devices on heavy trucks as a compliance measure when an appeals court threw out the entire new hours of service regulations, the Federal Motor Carrier Safety Administration issued an advance notice of proposed rulemaking asking for industry comments about the possibility of using recorders to enforce driving time rules.
An advance notice is essentially a set of questions to the public asking whether new rules would be appropriate. A notice also proposes guidelines for regulations and asks for suggestions about how rules should be written. In this instance, public comments are especially important, because groups that challenged the current rules as well as the court that threw the rules out have been sharply critical of FMCSA for not including a mandated electronic recorder requirement.
FMCSA says it is asking for public comments, because current regulations do not reflect advances in recorder technology. Actually, the agency has allowed the use of mechanical recorders to track driver hours since 1988, but modern electronic recorders have made the mechanical devices obsolete.
In 1998, FMCSA began a pilot project with Werner Enterprises to use GPS technology and wireless communication to produce driver logs. However, it was determined that the system did not account for driver activity accurately under all conditions. Werner has agreed to work toward a more accurate method for tracking mileage.
Although the agency had agreed to electronic logs and continued to work with Werner to make them more accurate, a requirement for electronic recorders was not included in the rewrite of the regulations. FMCSA said that it had insufficient economic and safety data and that the transportation community did not support such a proposal. On the issue of cost, the agency said that benefits were easier to assume than to measure. In addition, the recorder proposal met opposition from enforcement officials, because it was drafted as a performance standard instead of a design standard.
The initial proposal would have applied first to fleets of 50 trucks or more. Large carriers objected that they would be required to pay high prices for recorders as production started and that their smaller competitors would benefit unfairly from lower prices brought about by increased production of more advanced recorders. Carriers also objected that data from recorders could be used for purposes other than hours of service compliance.
In its notice, FMCSA seeks to determine if recorders can capture all the data needed to ensure hours of service compliance. It wants to define clear performance standards for recording systems, and it wants to know if enforcement agencies are prepared to rely on electronic systems instead of paper documentation.
FMCSA seems particularly concerned about the ability of drivers and carriers to make amendments to electronic data. It says the devices should be tamperproof and preclude alteration of information, stating that justifiable amendments might not be distinguishable from false entries. The agency wants to use systems that will maintain an internal audit log for changes in driver duty status.
FMCSA notes that hours of service compliance is handled in two ways. Formal compliance audits are conducted at a carrier's primary place of business. However, drivers are subject to random roadside log checks by law enforcement. To bring the two modes of enforcement into closer coordination, the agency wants electronic logs to contain the same information provided by paper records. The agency makes no recommendation about how information should be displayed other than to note that recording systems must provide a clear visual image and that the system be easy to use both by roadside inspectors and by personnel performing compliance audits at carrier headquarters.
Noting that carriers use a variety of software for fleet management, FMCSA asks the enforcement community for examples of its experience using third party software for compliance verification. The agency also asks for input on how a driver, supervisor, or enforcement official would know if a recorder and the systems connected to it are operating properly. It asks for comments on how auditors and roadside inspectors could verify system operation.
FMCSA understands that recorders may malfunction. It asks if it is possible to design systems that record the time, date, and nature of their own malfunctions.
The proposed rulemaking assumes that 100% of longhaul and regional drivers would be covered by the requirement for electronic log compliance. In addition, about 75% of local delivery drivers would be covered. However, the largest single group of drivers, those in local service applications, would be exempt from the requirement.
Comments on the proposed rule are due by November 30, 2004. For a complete copy of the notice, visit fmcsa.dot.gov; a copy of the rulemaking docket is available on the agency home page under New at FMCSA.