'Big Brother' On Board?

June 2, 2013

Black boxes, electronic logging devices (ELDs), electronic onboard recorders (EOBRs), whatever you choose to call them, have long been a controversial issue in the trucking industry with most drivers considering having one the equivalent of having "Big Brother" onboard.

Electronic on-board recorders (EOBRs) have been around for a long time. In fact, The National Transportation Safety Board originally recommended EOBRs be mandatory for all heavy-duty trucks in 1990, and since that time, EOBRs have been intensely debated.

One of the biggest opponents of mandatory EOBRs is the Owner-Operator Independent Drivers Assn.

The EOBRs became a serious issue in 2010 when the Federal Motor Carrier Safety Administration (FMCSA) published its electronic on-board recorder final rule. The rule mandated that truck drivers with habitual violations of the hours-of-service (HOS) regulations install EOBRs on their trucks, and went into effect in June 2010. OOIDA filed suit against the rule, stating the agency failed to address the issue that truckers could be harassed with EOBRs.

OOIDA won a big victory in August 2011 when the U.S. Court of Appeals for the Seventh Circuit ruled FMCSA vacate rule because of EOBRs could be used to harass drivers.

Five months after the EOBR regulation had been thrown away, FMCSA continued to encourage carriers to use the device. OOIDA intervened again with a motion for a cease-and-desist order on the agency's recent procedures. However, OOIDA was unsuccessful this time around and our motion was denied.

Last year congress approved a two-year $105 billion bill that set the transportation policy for fiscal years 2013 and 2014. President Barack Obama signed the bill, called "Moving Ahead for Progress in the 21st Century," or MAP-21, into law on July 6.

Despite OOIDA, and a broad coalition of various small businesses, sending a letter to congress requesting they discard any potential EOBR mandate, stating that there is no clear data to support any safety benefits that could offset the $2 billion mandate,

MAP-21 went ahead and included a provision that directed FMCSA to prescribe a regulation mandating the use of ELDs by Oct. 1, 2013.

Perhaps in anticipation of the mandate, many more carriers are adopting use of EOBRs, according to a survey conducted by Transport Capital Partners (TCP). The results, compiled during the firm's First Quarter 2013 Business Expectations Survey, found that 35% of carriers polled in February now use electronic logs, up from just 25% in May 2012.

Even those carriers that have not implement elogs as of yet as seriously considering according to the poll results. Two-thirds of responding carriers said they are testing or utilizing elogs on their trucks and another 10% are considering it, but have yet to make the transition.

Of larger carriers, 43% report using EOBRs on all their trucks, while only 29% of smaller carriers are doing so. This is likely a reflection of the financial resources available to the larger carriers to make the initial investment and to fund, train, and manage compliance.

According to OOIDA, there are still several issues that plaque EOBRs, including the concern that had the original 2010 rule tossed out, harassment. FMCSA has not released how they plan to deal with the issue although they have two public listening sessions scheduled in order to attempt to solve their issue with harassment.

Carriers have used EOBRs to harass drivers in a number of ways, OOIDA charges, including demanding they manually input their on-duty not-driving time as off-duty. Another way a carrier can harass a driver is by using the device to wake drivers when they are resting in the sleeper berth, or suddenly requiring a driver's attention to the device while he is driving. Furthermore, carriers have demanded drivers to get back on the road when the recorder shows that he has more legal driving time even though the driver is too fatigued to drive. These are just a few of the several cases of harassment that OOIDA says it has documented in a recent survey.

OOIDA also argues EOBRs are no more accurate than a logbook. "The devices need a drivers input in order to change duty status while the vehicle is stopped to on-duty not driving or off-duty. Only an accurate record of both a driver's driving and non-driving activities can tell you whether the driver is complying with the rules. A driver must manually enter his non-driving duty status just as he does with paper logbooks. ELDs are not an automatic 'tamper-proof' device for accurately recording HOS compliance," OOIDA says.

OOIDA also charges that FMCSA has not followed the principles set down by President Obama in Executive Order 13563 in the cost benefit analysis of its EOBR proposal. "In order to accurately measure the possible benefits of ELDs, the agency must identify what they can do, what problems they solve, assign a cost to those problems, identify how frequently those problems occur, and then calculate the value of elimination those problems. FMCSA has never identified or described even a single example of how an ELD would work to meet these goals, they simply assume that ELDs will improve HOS compliance and then make largely unsupported benefit calculations," OOIDA states.

"The ELD proposal is a 'big brother' mandate that the trucking industry does not need," OOIDA said in a letter to congress. "All of us are committed to making our highways safer, but the Department of Transportation has not made a clear case that the safety benefits of an EOBR mandate outweigh the costs, especially for a blanket mandate as envisioned in MAP-21. Because of this, any use of EOBRs for HOS compliance should be voluntary and not forced through a federal government mandate costing industry at least $2 billion."

On May 28 FMCSA announced an "Information Collection Request" to study the issue of driver harassment relative to the use of electronic onboard recorders for use in its formation of an EOBR rule.

The agency says it will do in-depth interviews with carriers to determine "the extent to which [EOBRs] could be used by motor carriers or enforcement personnel to harass drivers or monitor drive productivity," according to the FMCSA's entry in the Federal Register.

FMCSA says it will consider the results of its surveys before it issues a final EOBR rule.

Public comment is being accepted for the information collection request, and comments must be sent by June 27.

All comments should reference Federal Docket Management System (FDMS) Docket Number FMCSA-2012-0309. Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/Federal Motor Carrier Safety Administration, and sent via electronic mail to oira_submission@omb.eop.gov, faxed to (202) 395-6974, or mailed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503.

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