When the U.S. Court of Appeals for the Seventh Circuit issued its decision in August vacating the 2010 EOBR rulemaking, it caused cheering in some sectors, dismay in others and widespread general confusion. Confusion, in fact, has been a hallmark of this protracted rulemaking process, which has spanned well more than a decade.
“Truckers triumph. EOBRs are O-U-T,” the Owner-Operator Independent Drivers Assn. (OOIDA) celebrated in its press release about the court's decision against the Federal Motor Carrier Safety Administration (FMCSA) and in favor of OOIDA, which brought the challenge.
“The agency should have revealed how it drew the line between legitimate measures designed to assure productivity and forbidden measures that harass,” the judges noted in their 20-page brief concerning the ruling. “The agency needs to consider what types of harassment already exist, how frequently and to what extent harassment happens, and how an electronic device capable of contemporaneous transmission of information to a motor carrier will guard against (or fail to guard against) harassment.”
In spite of the court's decision, others continue to cheer FMCSA on. The American Trucking Assns. (ATA), for instance, reconfirmed its support of FMCSA and an EOBR mandate in its own official response to the court's decision: “Though we are still reviewing the court's decision, ATA supports FMCSA's efforts to mandate the adoption and use of electronic logging devices for hours-of-service compliance,” Bill Graves, ATA president & CEO, said in a prepared statement. “FMCSA's research shows that compliance with the current hours-of-service rules is strongly associated with reduced crash risk. Of course, electronic logging devices are an important tool for improving hours-of-service compliance.”
Since the court's decision, FMCSA does indeed have even more factors it must consider before a final rule is published. “The U.S. DOT's Federal Motor Carrier Safety Administration is committed to raising the bar for commercial truck and bus safety,” the agency noted in its official statement. “The court's decision is under review.”
The plain fact of the matter is, however, that while the court may have tossed out FMCSA's remedial directive mandating EOBRs for carriers found with 10% or more hours-of-service violations, work continues on as before defining EOBR standards and protocols. Groups are also working to clarify knotty issues like the format for EOBR records, how data will be transferred and who will have access to it.
The FMCSA's Motor Carrier Safety Advisory Committee (MCSAC) and its electronic onboard recorder implementation subcommittee in particular have been hammering out the critical details. A number of stakeholders are participating in this work, including carriers, the enforcement community and the suppliers who will have to deliver FMCSA-compliant EOBR systems, when (if?) a rulemaking is at last in place. The hope is that this cooperative approach will result in a final rule that helps to enhance highway safety without creating unintended difficulties. Work could be finished as soon as the end of this year.
“The good thing about this rulemaking process is that the industry is helping to develop the rule,” says David Kraft, director of business development for Qualcomm. “The MCSAC subcommittee is really trying to figure out what we need, what will work.”
Ironically, the seemingly endless hard work on the regulation has also left suppliers frozen in a state of perpetual compliance readiness, standing by to produce FMCSA-approved systems when and if the starting whistle finally blows.
“Nobody has a 395.16-compliant system right now because the specifications are still being completed,” says Ryan Barnett, market analyst for Xata. “We are not going to rollout any new technology until a rule is finalized. As an industry, we are planning and preparing and continuing to move forward, however,” he says. “We have to be ready to deliver [an estimated] four million EOBRs to the fleets that will need them.”
“Software development is defined by the work hours it takes to write code,” PeopleNet's Jim Angel, manager of safety and compliance solutions, observes. “We had time set aside for this [EOBR project]. There is only so much you can do, however, while you are waiting for the to-be-determined details.”
Many carriers are not waiting anymore for the official EOBR rulemaking before adopting electronic logging. CSA was the only mandate they needed to act. “Carriers are absolutely concerned about their CSA scores now,” says Angel.
“We definitely saw about a 12% increase in the use of the electronic log function by our existing customers after CSA,” he notes. “The e-logs ‘take rate’ as a percentage of our total users was 43.5% in January of 2010. It increased to 56.8% by January of 2011 and in July of this year it was 63.7%. CSA has become something of a de facto mandate for EOBRs. It was another step.”
Qualcomm's Kraft agrees. “Since CSA, we have absolutely seen a change in attitude toward EOBRs,” he says. “Carriers are more focused than ever on fatigued driving and unsafe driving practices and they see EOBRs as [a very useful part of their overall compliance program]. The biggest CSA violation under fatigued driving is called ‘form and matter,’ which means mistakes made in logging. With EOBRs, that all goes away. Drivers can still go over the limits, of course, but violations tend to be much shorter in terms of duration and distance because drivers are more aware of where they really are on the clock.
“The other thing that has happened is that the industry is discovering the benefits of EOBRs,” he notes. “In almost all cases, drivers who use electronic logs don't want to go back to paper logs. They tell us it eliminates a major stress factor because they always know exactly what their hours are.”
COMPLIANCE + PRODUCTIVITY
For fleets trying to be as complaint as possible while also improving productivity, Kraft says “the way to do it is with EOBRs. They will always be a help to fleets because of the visibility to actual hours in real time that they can provide. We've also done a lot more than what the regulation spells out to help carriers with better compliance and better safety. All of this is really good for fleets. Who wouldn't like it?”
“We are definitely seeing more interest in the electronic log functions we offer with our communications partners,” says Monica Truelsch, director of marketing for TMW Systems. “Some people have already ‘bit the bullet’ and made the investment in EOBRs. They have looked for the silver lining if you will, and developed a business case that takes into account the many other benefits EOBRs can deliver. Capacity, for instance, will be a big issue. EOBR data can help you make better use of existing capacity.”
“Fleets adopting EOBRs are seeing significant operational improvements,” notes Tom Cuthbertson, vice president-XataNet development for Xata. “They are also saying, ‘We might as well do this on our own terms.’ When people get through the adoption phase, then they are into the all-benefits phase.”
It is important to remember, though, that EOBRs involve more than drivers. It is a team installation — a whole-business decision, he points out.
One of the consequences of extremely long rulemaking processes is that they give more suppliers time to enter the marketplace with new compliance solutions for fleets to consider. The protracted EOBR rulemaking is no exception. “Absolutely there will be new entrants to the EOBR marketplace with the advent of a final rule,” says Barnett. “There will be a rush, but it is not that easy to do.”
Rand McNally and ISE Fleet Services, for instance, are two suppliers new to the EOBR marketplace. In July, ISE Fleet Services introduced the eFleetSuite. It is focused on ease of use, compliance-driven functionality with applications that include electronic logs, driver vehicle inspection reporting, driver availability-oriented mapping and fuel tax data.
NEW EOBR SUPPLIERS
Rand McNally's TND 760, introduced in August, is the result of a 10-month partnership with DriverTech. The company took an investment stake in DriverTech and acquired an exclusive license to DriverTech's technology.
“We thought if we could port their software over to our hardware platform, we could create a product that leverages the best of both companies while at the same time fundamentally altering the cost paradigm in this space,” says Dave Muscatel, CEO of Rand McNally. The result is the TND 760, which adds EOBR functionality, multi-mode communications and driver performance tools to the current capabilities of the TND 710 navigation device. A monthly data plan is also required.
More EOBR offerings are sure to follow. In its decision against FMCSA, even the court acknowledged that EOBR technology and the market for it is rapidly changing: “This area of regulation is moving quickly,” the judges observed in their official brief. “We note, for example, that the FMCSA has already proposed a rule requiring EOBRs for all motor carriers, that the technology and markets are rapidly changing, and that the agency is apparently conducting new case studies on EOBR use. Rather than reach beyond what is strictly necessary here, prudence dictates that we leave for another day any questions that might arise in connection with whatever new rule the agency decides to adopt.”
The EOBR marketplace is about to become segmented into companies that have been providing EOBR systems for a long time, companies that are adding EOBR capability to their existing telematics solutions, and new entrants to the fleet management space. For carriers ready to make the move to electronic logging, this will mean more choices and a tougher decision-making process.
For example, just determining if you care only about CSA compliance or are also looking for additional functionality can help to refine your purchase options. So can deciding if you want to make use of hardware you already have, such as dash-mounted communication devices or smartphones, or move on to something else.
Xata offers a list of “10 Things to Consider in an EOBR Purchase” and other suppliers likewise provide some good decision-making support. Take advantage of it.
Some EOBR suppliers:
ISE Fleet Services: www.isefleetservices.com
Rand McNally: www.randmcnally.com