When the U.S. Court of Appeals for the Seventh Circuit issued its decision vacating the EOBR rulemaking last Friday, it caused cheering in some sectors, dismay in others and widespread general confusion. Confusion, in fact, has been the 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 late Monday about the court’s decision against the Federal Motor Carrier Safety Administration (FMCSA) in the suit brought by OOIDA.
The plain fact of the matter, however, is that while the court may have tossed out the remedial directive mandating EOBRs for carriers found with 10% or more hours-of-service violations during a compliance review, 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) is meeting in Virginia today, in fact, to consider among other things a report from its electronic onboard recorder implementation subcommittee and related presentations. Lots of stakeholders are represented at that table, 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.
Nobody has a 395.16-compliant system right now because the specifications are still being completed, Ryan Barnett, market analyst for Xata told Fleet Owner last week shortly before the court’s decision was made public. “We are not going to roll out any new technology until a rule is finalized.
“As an industry, we are planning and preparing, however,” he said. “We have to be ready to deliver [an estimated] 4 million EOBRs to the fleets who will need them.”
Ironically, the seemingly endless work on the regulation - the reviewing, reassessing and revising yet again - has left suppliers frozen in a state of perpetual readiness, standing by to produce FMCSA-complaint systems when and if the starting whistle finally blows.
“Software development is defined by the work hours it takes to write code,” PeopleNet’s Jim Angel, manager of safety and compliance solutions, told Fleet Owner in an interview earlier last week. “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.”
FMCSA told Fleet Owner that there are many factors the agency must now consider. “The U.S. DOT Federal Motor Carrier Safety Administration is committed to raising the bar for commercial truck and bus safety,” the agency also noted in its official statement Tuesday. “The court’s decision is under agency review.”
As the reviewing proceeds, some industry groups continue to cheer FMCSA along in its efforts. The American Trucking Assns. (ATA), for instance, reconfirmed its support of FMCSA and an EOBR mandate in its own official response to the 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. “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.”
Indeed, many carriers have made the decision not to wait for an official EOBR rulemaking to make the move to electronic logging. CSA was all the mandate they needed to act. “Carriers are absolutely now concerned about their CSA scores,” Angel told Fleet Owner.
“We definitely saw about a 12% increase in the use of the electronic log function by our existing customers after CSA” he explained. “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 EOBR’s. It was another step.”
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.”
