Opinion: Keep ELDs On Hand, Not In Hand

By Thomas Sullivan

Associate Principal

Kitch Attorneys and Counselors

This Opinion piece appears in the Feb. 10 print edition of Transport Topics. Click here to subscribe today.

When technology and regulation develop along parallel lines, the two inevitably intersect, and conflicts can develop as well — sometimes with serious consequences.

Take texting, for one currently notorious example. Transportation remains focused on distracted driving in general and on the research and regulation of texting while driving in particular.

Federal restriction of the use of handheld devices by commercial motor vehicle drivers predates passenger car texting bans and covers a much broader spectrum of limitation precluding any “use” of a handheld device that requires more than a single push of a single button. As defined in 49 CFR 390.5, use of “a handheld mobile telephone” means: 

• Using at least one hand to hold a mobile telephone to conduct a voice communication.

• Dialing or answering a mobile telephone by pressing more than a single button.

• Reaching for a mobile telephone in a manner that requires a driver to maneuver so he or she is no longer in a seated driving position and restrained by a properly installed and adjusted seat belt.

And now another federal mandate — this one for electronic logging devices (ELDs) — is barreling down the pike. The proposed ELD rule is expected to be published in the Federal Register shortly.

Transportation companies and vendors have been trying to get in front of the mandate so as to improve efficiency, compliance and safety. Many leading vendors, in an effort to produce user-friendly ELDs or electronic onboard recorders (EOBRs) that can be accessed in the truck cab and shared with enforcement personnel in a mobile format, have created technology that functions on cellphones. This convenience, however, might set a driver up for violating mobile device regulations against using handheld devices while driving.

Meanwhile, major ELD vendors have developed programs that use Android and iPad/iPhone devices.

In other words, your ELD can be operated through your cellphone or small tablet, with data entered into and displayed on them. The driver has the option of showing law enforcement officials the ELD outside the cab during an inspection or traffic stop.

The devices also allow the driver to input data while outside the truck, a convenience that enables the use of a mobile device for data input and retrieval but also provides the opportunity for doing so while in operation — actions forbidden under Federal Motor Carrier Safety Administration regulations.

Violating the regulation can lead to citations with a heavily weighted severity multiplier of 10 under the Compliance, Safety, Accountability/Safety Measurement System scoring.

Holding a tablet computer (an option currently provided by leading vendors J.J. Keller & Associates and Rand McNally) could qualify as texting as defined and prohibited by federal regulations.

Texting means manually entering alphanumeric text into, or reading text from, an electronic device, action that includes but is not limited to:

• Short message service.

• E-mailing.

• Instant messaging.

• A command or request to access a Web page.

• Pressing more than a single button to initiate or terminate a voice communication using a mobile telephone.

• Engaging in any other form of electronic text retrieval or entry, for present or future communication.

Texting does not include: 

• Inputting, selecting or reading information on a GPS or navigation system.

• Pressing a single button to initiate or terminate a voice communication using a mobile telephone.

• Using a device capable of performing multiple functions, e.g., fleet management systems, dispatching devices, smart phones, CB radios, music players, etc., for a purpose not otherwise prohibited by 49 CFR 390.5.

Carriers and owners choosing these systems — either issuing devices to employees or allowing use of personally owned cellphones — could be putting their drivers in a quandary and potentially increasing the carrier’s liability exposure.

One need not stretch the imagination very far to envision a scenario where a driver checks his or her cellphone-based ELD moments before an accident. Not only would the driver face citation, liability and possibly arrest but also the potential that the plaintiff’s lawyers would assert a claim of liability against the carrier because the company issued the handheld device to the driver and/or required compliance with its ELD function, thereby placing the employee in a position to drive while distracted as a condition of the job.

Lawyers for the plaintiff no doubt would argue that the carrier endangered the public for the sake of convenience.

Any carrier or owner choosing a mobile platform option for their ELD must provide a dash mount for the device that places it within easy reach of a properly seated and belted driver and allows for single-button operation. 

Furthermore, carriers must mandate that the driver input or review data only while the vehicle is not in operation — and strictly enforce it. A policy allowing use of the device while the vehicle is stationary but still in operation — e.g., at a stop light or in unmoving, bumper-to-bumper traffic — is insufficient, and those practices must be discouraged through policy formation, education, training and enforcement.

It’s a brave new world with ever-changing electronic enhancements designed to increase efficiency. However, new and improved methods of getting the job done must be balanced against safety and regulatory limitations — especially when FMCSA regulations could steer your drivers toward the violation of conflicting laws.

Detroit-based Kitch Attorneys & Counselors has six offices in the Great Lakes region. Based in the firm’s Toledo, Ohio, office, the author practices transportation litigation defense in Ohio, Michigan and federal courts.