WASHINGTON — In a strong response to a court's ruling that previous proposed rulemakings concern electronic logging devices didn't address motor carrier's using ELDs to harass drivers, the Federal Motor Carrier Safety Administration dealt with the issue in depth in the supplemental notice of proposed rulemaking released Thursday.
In previous versions of 2004, 2007, 2010 and 2011 documents related to the use of ELDs, the words harass and harassment were used scantly in published documents, usually one, two or three times if at all. As a result, a federal court agreed with the Owner-Operator Independent Driver's Association and overturned the 2010 final rule that required the use of ELDs by motor carriers that were deemed to be habitual violators of Hours of Service rules.
In contract, the SNPRM issued Thursday uses those same word some 100 plus times.
As a service to our readers, we are publishing in total the sections of the proposed rule that deal with possible driver harassment and coercion.
X. ENSURING AGAINST DRIVER HARASSMENT
In accordance with 49 U.S.C. 31137(a)(2), FMCSA proposes both procedural and technical provisions aimed at protecting CMV operators from harassment involving ELDs or connected technology. The primary focus of the Agency’s proposal addresses the problems of: (1) drivers being pressured to exceed HOS limitations; and (2) inappropriate communications that affect drivers’ rest periods. The Agency addresses the related but distinct issue of driver coercion in Part XI, below.
Although the statute provides that regulations relating to ELDs shall “ensur[e] that an electronic logging device is not used to harass a vehicle operator,” the Agency notes that it cannot adopt a regulation guaranteeing that every instance and form of harassment, whether real or perceived, is eliminated. Nor does the Agency believe that
Congress intended that the Agency interfere with labor/management agreements or disputes not directly related to the required use of ELDs, or duplicate the role Congress has assigned to the U.S. Department of Labor under 49 U.S.C. 31105.
As explained in Part VI of this SNPRM, FMCSA would refine the requirements of an ELD to include only recording functions; anything beyond basic recording of the required data elements would not be required by an ELD. However, the SNPRM would not prohibit motor carriers from employing communication, FMS, and other functions beyond mere recording. Many current systems, which have been on the market for years, go beyond the recording abilities proposed in this SNPRM; and the Agency does not infer from the anti-harassment provision in section 31137(a)(2) a congressional intent that FMCSA ban or impose significant new restrictions on those functionalities in this rulemaking. Therefore, to the extent necessary to address harassment, FMCSA would address use of technology beyond the minimally compliant ELD only if that technology encompassed an ELD function.
A. Drivers’ Access to Own Records
ELDs meeting the proposed technical requirements in today’s SNPRM would help protect drivers from pressures to violate the HOS rules. However, to ensure adequate protection, it is critical that drivers have access to their ELD records. FMCSA proposes to require that drivers be able to obtain copies of their own ELD records available on or through an ELD. On request, a motor carrier must provide its drivers with access to and copies of their ELD records for the 6 months that the motor carrier is required to maintain the records.
B. Explicit Prohibition on Harassment
FMCSA proposes to add a new § 390.36 to prohibit a motor carrier from engaging in harassment of a driver. As defined, “harass or harassment” would mean “an action by a motor carrier towards a driver employed by the motor carrier (including an independent contractor while in the course of operating a CMV on behalf of the motor carrier) involving the use of information available through an ELD … or through other technology used in combination with and not separate from the ELD, that the motor carrier knew, or should have known, would result in the driver violating § 392.3 or part 395 [of 49 CFR].” This definition recognizes the dire safety consequences that can result when the pressure a motor carrier imposes on a driver results in an HOS violation or in a driver operating when the driver’s alertness is impaired through fatigue or illness.
Under today’s proposal, however, a driver who believed that a motor carrier required him or her to violate § 392.3 or part 395 in a manner described in the proposed definition could file a complaint alleging harassment with FMCSA. Although FMCSA’s definition of harassment would not require adverse action by the carrier against the driver, it would require an actual violation of § 392.3 or part 395 of the FMCSRs. MAP-21 eliminated the reference to productivity in 49 U.S.C. 31137; however, the Agency would not penalize motor carrier actions aimed at productivity, provided that the action did not constitute harassment as defined in today’s proposal.
C. Complaint Procedures
The SNPRM proposes to add new §§ 386.12a and 390.36, prescribing a process for filing a harassment complaint. Among other things, the complaint would need to describe the action by the motor carrier that the driver deems harassment, including how the ELD or related technology was used to contribute to the carrier’s action. The complaint would also need to identify how the motor carrier’s action violated 49 CFR 392.3 or part 395.
The proposals outlined in this SNPRM would give drivers control over their own ELD records and ensure driver access to such records. Furthermore, drivers would be able to annotate their records reflecting concerns such as driver fatigue. These records would provide drivers with better information to substantiate any complaint.
D. Enhanced Penalties to Deter Harassment
FMCSA proposes a new penalty for a motor carrier that engages in harassment. Because harassment would be considered in cases of alleged HOS violations, the penalty for harassment would supplement the underlying HOS violations of 49 CFR 392.3 and part 395. An underlying violation would have to be found for a penalty for harassment to be assessed. Further, harassment would constitute an acute violation under part 385.
E. Mute Function
FMCSA acknowledges that some drivers feel their motor carriers inappropriately contact them during rest periods through FMS communication systems—technology frequently used, but not required, as part of a minimally compliant ELD. Thus, if the driver puts the ELD into a sleeper berth status, and, in the case of co-drivers, no other driver has logged into the ELD in an on-duty driving status, the SNPRM specifies that the ELD must automatically mute the ELD’s volume, turn off the ELD’s audible output, or allow the driver to do so. FMCSA believes this addition is important to allow drivers to obtain adequate rest during sleeper berth periods.
F. Edit Rights
FMCSA recognizes that some electronic recorders currently in use allow changes to drivers’ HOS records by motor carriers or dispatchers without the driver’s input. FMCSA proposes to revise the procedures for amendment of electronic records to better protect the integrity of those records and to prevent related instances of driver harassment. In today’s SNPRM, the word “edit” means a change to an electronic record that does not overwrite the original record. An example of such a change would be revising a duty status designation from “off duty” to “on-duty not driving.” Edits would need to reflect their authorship, and an edit could not convert driving time into non- driving time. In this SNPRM, FMCSA proposes that a driver may edit and the motor carrier may request edits to electronic RODS. Drivers would have a full range of edit abilities and rights over their own records (except for the listed limitations in the rule), while a carrier would be allowed to propose edits for a driver’s approval or rejection.
All edits, whether made by a driver or the motor carrier, would have to be annotated to document the reason for the change. For example, an edit showing time being switched from “off duty” to “on-duty not driving” could be annotated by the carrier to note, “Driver logged training time incorrectly as off duty.” This edit and annotation would then be sent to the driver for approval. FMCSA believes this is the most efficient way to capture these data and ensure that HOS violations are not being concealed from either party. FMCSA believes that there are good reasons for both the motor carrier and the driver to be able to view HOS records and understands that there are legitimate reasons that both a motor carrier and a driver might want to edit these records. For example, if a driver were to inadvertently show a 30 minute break as ODND, the record could be annotated to show a mandatory break. It is the Agency’s view that these provisions, and additional requirements addressing security of data, would significantly reduce the potential for driver harassment resulting from use of ELDs.
G. Tracking of Vehicle Location
FMCSA acknowledges that some drivers view the FMS, which often includes ELD functions as well as additional recording capabilities and real-time communication features, as a mechanism for the harassment of drivers or invasion of privacy. Motor carriers counter, however, that companies use this technology to know where their CMVs are at all times and how much time their drivers may continue to operate in compliance with the HOS regulations. The technical specifications in today’s SNPRM are intended to address drivers’ concerns in terms of the level of data collected for HOS enforcement.
Location recording is a critical component of HOS enforcement. Drivers have always had to record certain location information on paper RODS. Although electronic recording is more accurate, the acquisition of location information for CMV operators is not a novel requirement. Nonetheless, FMCSA does not propose to require real-time tracking of CMVs or the recording of precise location information. Instead, location data would be required to be recorded when the driver changes duty status, when a driver indicates personal use or yard moves, when the CMV engine powers up and shuts down, and at 60-minute intervals when the vehicle is in motion. During on-duty driving periods, FMCSA would limit the location accuracy for HOS enforcement to coordinates of two decimal places, providing an accuracy of approximately a 1-mile radius for purposes of HOS enforcement. However, when a CMV is operated for personal use, the position reporting accuracy would be even further reduced to an approximate 10-mile radius.
Thus, the Agency would not require that an ELD determine or record a CMV’s or a driver’s exact location. Moreover, the SNPRM would not require that the ELD record and transmit any CMV location data in real time, either to the motor carrier or to enforcement officials.
H. FMCSRs Enforcement Proceedings
MAP-21 requires that the Agency institute appropriate measures to preserve the confidentiality of personal data recorded by an ELD that is disclosed in the course of an FMCSRs enforcement proceeding (49 U.S.C. 31137(e)(2)). To protect data of a personal nature unrelated to business operations, the Agency would redact such information included as part of the administrative record before a document was made available in the public docket.
In today’s SNPRM, FMCSA would provide enhanced procedural protections and remedies intended to protect drivers using ELDs from actions considered harassment. In addition, the proposed technical specifications for the ELD were specifically designed to provide drivers additional protection. By recording the time spent behind the wheel of a CMV accurately, the ELD would make all parties involved aware of the actual time for a driver to make a certain trip. FMCSA believes this increased transparency would lead to reduced pressure on drivers to falsify their RODS. ELDs provide a more reliable and simpler tool for recording drivers’ HOS than paper RODS. FMCSA believes the use of ELDs would lead, not only to better compliance with HOS regulations, but also to a clearer understanding of driver schedules. The technical specifications aimed at protecting drivers from harassment are further addressed under Part IV.
XI. MAP-21 COERCION LANGUAGE
As a result of section 32911 of MAP-21, FMCSA will publish an NPRM that proposes regulations that would prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate CMVs in violation of certain provisions of the FMCSRs or the Hazardous Materials Regulations. The coercion NPRM would propose procedures for drivers to report incidents of coercion to FMCSA, rules of practice the Agency would follow in response to allegations of coercion, and penalties that would be imposed on entities found to have coerced drivers.
The coercion rule will differ from the anti-harassment provisions proposed in this rulemaking. Major differences include that the proposed coercion rule will address shippers, receivers, and transportation intermediaries as well as motor carriers; and its focus is on the loss or potential loss of future business or work. While the term “coercion” will be defined in the coercion rule, today’s SNPRM specifically proposes prohibiting motor carriers from coercing drivers to falsely certify ELD records.
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