Are ELDs a killer app for enforcement?

Many drivers, owner-operators and small carriers have slammed the Federal Motor Carrier Safety Administration (FMCSA) for mandating electronic logging devices (ELDs) as of December 2017. Complaints range from arguments that ELDs will push drivers into operating unsafely to make up for lost hours to claims that they represent a tool for harassment, an invasion of privacy, and an unconstitutional search and seizure of truckers’ vehicles.

But now there’s a new wrinkle. On May 23, 206, FMCSA quietly confirmed, in effect, that ELDs one day could be all the agency needs to put a trucking company out of business – and not just because of hours-of-service (HOS) violations.

The BASICs of FMCSA’s plan

To understand the implications of what happened on May 23 you need first to understand at least generally the agency’s proposed new rule that would change how the agency assigns carrier safety fitness determinations (SFDs). Under the notice of proposed rulemaking (NPRM), the agency would replace its current safety rating system based on compliance reviews (CRs).

The NPRM proposes three methods for determining whether carriers are unfit. Regardless of the method, failing two Behavior Analysis Safety Improvement Categories (BASICs) would lead to a proposed unfit SFD. The carrier would have a very short time to challenge the rating, and if it did not succeed it would be forced to either shut down or accept a “compliance agreement” that could require the carrier to adopt certain fixes to its safety program and operate under what amounts to public probation for two years.

The first method would use fixed measures already calculated under the Safety Measurement System (SMS) to flag carriers with the worst scores as unfit. This method would apply only if the carrier had sufficient inspection data within the BASIC reviewed – at least 11 inspections with a violation over the prior 24 months. The carrier would fail a BASIC if its SMS measures exceeded certain failure standards that would be equivalent to very high percentile scores on the date the standards are set.

The second method would involve investigations that would assess carriers’ compliance based on a look at “acute” and “critical” violations in a process closely resembling today’s CRs. Structurally, the main difference between CRs and the proposed investigations is that the investigations would categorize violations using BASICs rather than what today is known as the “six factors” – general, drivers, operations, vehicle, hazardous materials and accidents. Any regulated motor carrier would be subject to an investigation, including those that also are monitored under the first method, and FMCSA estimates that 10 times more unfit SFDs will come from the investigations method than from the inspection data-only approach.

The third method is just a combination of the other two methods. A carrier could be unfit if it failed one BASIC through inspection data and another through an investigation.

A shift in philosophy

FMCSA has received lots of criticism for proposing a rule that is so closely intertwined with the Compliance, Safety, Accountability (CSA) program given that just a few months ago Congress in the FAST Act ordered a major study of what changes are needed in CSA and SMS. Much of the controversy is focused on the inspection-based method because that is the one that will use SMS measures directly to rate carriers.

The investigation-based method has been mostly overlooked in the debate, perhaps because it seems so much like the current system. Other than using the BASICs instead of the factors, about the only major change FMCSA highlighted in the NPRM was that carriers would fail a BASIC if the agency identified just one critical violation found in 10% of records examined – a standard that would be tougher to survive than the two critical violations needed today. (Acute violations, which are deemed to be especially severe, would count the way they do today: A single violation discovered fails the factor/BASIC.)

The investigations-based SFD method is just as revolutionary as the inspection-based approach, however. Under both procedures FMCSA will, for the first time ever, consider moving violations and other driving infractions in determining a carrier’s safety fitness.

Technically, the two proposed critical violations under Unsafe Driving – 392.2 (just about any moving violation) and 392.6 (scheduling a run that would require the driver to exceed posted speed limits) – are critical violations already. According to experts in the safety rating process, however, 392.2 violations currently do not factor into safety ratings. While an auditor today might note on an audit report the number of speeding tickets it found in its review of drivers, that information plays no role in determining whether the carrier receives a satisfactory, conditional or unsatisfactory safety rating.

FMCSA sought comment in the NPRM on whether it should add to the list of critical violations, including other Unsafe Driving violations – seat belt use (392.16), texting (392.80) and use of handheld mobile phones (392.82). Depending on the jurisdiction, however, all of those could be state and local violations counting under 392.2.

Except in the case, arguably, of a one-truck owner-operator, assessing a carrier’s safety management on the basis of moving violations represents a shift in philosophy away from focusing squarely on the actions management can take to ensure compliance. Even with HOS and logging violations a carrier at least has the opportunity to audit logs and address issues through training, discipline and, ultimately, termination.

A carrier can reasonably do only so much to prevent or detect moving violations. Even speed limiters won’t prevent the many speeding tickets that involve exceeding posted limits that are below 65 or 70 mph. You can buy systems that will identify speeding violations at all posted speed limits – provided you have the necessary on-board fleet management platform and want to pay still more money for the service.

But what about improper lane changes, following too close and other violations that may be impossible to detect until the driver has already been hit with a citation? You can buy still more technology, such as forward-looking cameras and radar systems, but do you have time and resources to do anything with this information, assuming you can afford the systems? Collecting potentially incriminating data that you don’t use routinely for driver training and discipline is dangerous business, legally speaking.

Unsafe Driving violations factor into both the proposed inspection-based and investigation-based SFD methods, but they arguably are a bigger deal in the latter method because the threshold of failure is so much lower. To fail Unsafe Driving in the inspection-based method, a carrier would have to have an SMS measure in the BASIC that is roughly equivalent to 96th percentile score or higher. But a carrier can fail Unsafe Driving in an investigation if the auditor finds a violation in just 10% of the records examined, provided that there are at least two violations.

So if a one-truck owner-operator – or, indeed, a carrier with up to 20 trucks – has just two Unsafe Driving violations during the period examined, the carrier could fail that BASIC. If that sounds tough enough to survive, consider also that 10% of records examined is in no way a random sample. As with HOS, driver qualification and vehicle maintenance violations in CRs today, auditors would target drivers they know from past history are likely to have moving violations in their recent history. In essence, a small carrier’s Unsafe Driving BASIC performance in an investigation would be only as good as its two worst drivers, and failing that BASIC puts the carrier halfway to an unfit SFD.

A time bomb in your trucks

None of this is news; it’s outlined in or at least implied by the NPRM, even though it has garnered very little attention. What is new is something FMCSA disclosed on May 23 – the final day to comment on the NPRM – on its website’s SFD page. The agency added a new link, SBA Roundtable Q&As, at which it answered a baker’s dozen of questions that had been posed to the agency at a recent session on the NPRM sponsored by the U.S. Small Business Administration.

Because Unsafe Driving violations haven't played a role in CRs, it has not been precisely clear how FMCSA would handle them in an investigation in the proposed new SFD process. The NPRM does not address this issue at all. For example, what even constitutes a 392.2 violation? Would it have to be an actual citation? Apparently not.

In the website Q&A, FMCSA confirmed what experts on CRs might have already assumed: 392.2 violations are not limited to citations issued by law enforcement officers. Auditors could also deduce a violation based available information. Something similar happens today in CRs in the context of HOS compliance. Auditors can identify false logs based on Global Positioning System (GPS) data, fuel and toll receipts, and other supporting documents if they determine that in order for a driver to travel the distance he has covered in the amount of time he has logged he would have had to have driven at speeds far greater than legal, reasonable or perhaps even physically possible.

FMCSA essentially confirmed in its May 23 responses that this concept of an implied violation also would apply to Unsafe Driving BASIC critical violations in investigations under the proposed SFD process. So even if a driver didn’t get a speeding ticket that is reported to FMCSA’s database, an auditor still might declare a violation if he determines based on logs and supporting documents that a driver was speeding.

This procedure likely would catch only the worst offenders if a carrier uses paper logs and its trucks aren’t equipped with vehicle positioning systems. Speeding would have to be pervasive enough as to register over a distance of potentially hundreds of miles, during which average speed might also drop due to highway congestion or other slowdowns. While virtually all large carriers use locating systems today, most small carriers still don’t. And even if a carrier uses locating, FMCSA has access only to the data that the carrier collects. So if the carrier pings location only four or six times a day, say, it still might be difficult to catch speeding.

In practice, none of that really matters because by the time FMCSA finalizes its SFD proposal – assuming it does issue a final rule – ELDs will be mandatory, and the agency will have access to position reports on every driver at least once an hour while the truck is moving.

There is some apparent good news for carriers and drivers. First, it doesn’t appear that auditors would review data from engine electronics to isolate cases of speeding but rather would rely on ELD position reports as they do today, conceptually, using supporting documents. Using ELD data, FMCSA would be able to identify speeding only if it averaged out as exceeding posted limits over the course of at least 60 minutes.

The bad news, though, is that in an investigation the agency would have access to this data for every hour of every day for every driver subject to ELDs. And auditors would know from prior citations which drivers are most likely to speed. Plus, FMCSA could still count actual citations if they occurred during the auditor’s time frame for review. Again, we’re not just talking about speed but also improper lane changes, following too close, reckless driving and other violations of state and local traffic laws.

So ELD opponents have still another reason to be angry. The data collected by ELDs could be all FMCSA needs to fail a carrier in an investigation of both the HOS Compliance and Unsafe Driving BASICs, and that’s enough to declare the carrier unfit. Drivers who might feel compelled to speed in order to maintain productivity under ELDs may find that they are damned if they do and damned if they don’t.

The fate of FMCSA’s SFD proposal is uncertain; the House version of the transportation appropriations bill (H.R. 2577) would block the agency from adopting it. But even if the NPRM dies, the transformation of ELDs into speed traps could happen anyway. Appendix B of Part 385 – the section of the current federal rules related to SFDs – already lists 392.2 and 392.6 as critical violations, so it is not clear that FMCSA would have to change its regulations at all in order to use drivers’ logs to catch both HOS and speeding violations.