Why ‘automatic’ may or may not mean ‘automatic’ when it comes to ELDs

The Owner-Operator Independent Drivers Association’s March 29-filed legal brief against FMCSA’s electronic logging device (ELD) mandate puts a lot of weight on language in the statute that required the production of the rule in the first place. That language was included in the 2012 MAP-21 highway bill and noted by Overdrive here on the Channel 19 blog at the time of its passage into law by both Houses with the President’s signature. Specifically, MAP-21 defined electronic logging device (ELD) as a device “capable of recording a driver’s hours of service and duty status accurately and automatically.”

At the time of MAP-21’s release, North Carolina-based owner-operator William McKelvie pointed out the obvious problem with that definition, referring as it does essentially to a device that, in the current market for ELDs, doesn’t exist. Such a narrow definition leaves out any recognition of the operator’s involvement in telling such a device what exactly he/she is doing when the vehicle stops moving.

In its March brief to the federal 7th Circuit appeals court, OOIDA goes to great pains to demonstrate this with electronic log book examples that show the ease with which stopped time is falsified, which opponents of required ELDs have argued for decades now in their objections to the misconception so many members of the general public seem to have about hours and ELDs – that they are a safety/compliance panacea when it comes to hours.

In my view, that distinction between off-duty, sleeper berth and on-duty not-driving lines in any driver’s log book may always be entirely up to the operator’s input, at least for the foreseeable future, incapable of being “automatically” recorded by an ELD or something else without significant change in the hours of service rules themselves. Regulators and advocates, meanwhile, aren’t clamoring to, say, remove the non-driving duty status distinctions, that’s sure.

At once, there is a problem with taking automatically so literally, and that’s the fact that the MAP-21 highway bill’s “electronic logging device” definition language was lifted directly from the current regulatory definition of an automatic on-board recording device (AOBRD), codified in 49 Code of Federal Regulations 395.2 since the 1980s.

Those definitions state an AOBRD is “an electric, electronic, electromechanical, or mechanical device capable of recording driver’s duty status information accurately and automatically as required by §395.15.” As I wrote in 2012, by referring to the 395.15 regulation in the definition, regulators effectively limit what “automatically” means by elaborating on device specs elsewhere and assuming driver input within “automatically.” (AOBRDs, encompassing most every engine-connected e-log on the market today, don’t automatically distinguish between non-driving lines in the log — i.e., they’re not very automatic either.)