Transport Topics published an excellent article examining the impacts of Electronic Logging Devices (ELDs) on truck capacity and in particular regarding the impact on smaller carriers. They reached out to a number of large truck brokers, including Transplace, to find out what the primary users of small trucking companies are thinking. While most of us do not buy into the gloom and doom scenario regarding capacity reduction, we also agree that even a modest 3-5% reduction in effective capacity, through small carriers exiting the business and running fewer miles per truck, would shift capacity-demand balance back to levels experienced in 2014.

The mandate does not take effect until the end of 2017, so there is no immediate impact. In addition, there will be no impact among the larger carriers, nearly all of whom have already adopted ELDs.

In the meantime, some shippers and brokers are already demanding that carriers certify that they are ELD compliant. That is absurd. ELD providers self-certify to the FMCSA that their devices are compliant with the new regulations. As of today, there are six providers of ELDs that have self-certified. FMCSA does not and will not verify or challenge these self certifications. They could only be removed from the list if other organizations challenged whether the ELDs truly met the standards. Secondly, carriers self-certify that they are using a compliant device. Until roadside inspections start putting trucks out of service in 2018 for not utilizing ELDs, there is no way to be sure that carriers are utilizing ELDs.

Carriers are allowed but not required to utilize ELDs until December 18, 2017. Shippers and brokers that create their own more stringent rules than published by the FMCSA are increasing their own liability exposure in the event that their own rules are not followed 100% of the time. They are also kidding themselves, because there is only self certification, with no verification.

Let’s see how things play out in late 2017. There may be a short period of disruption in the transition, but I have a strong feeling that the most entrepreneurial players in our industry, the small truckers, will find a way to survive and occasionally thrive under the new rules.

According to yesterday’s Report on DOT Significant Rulemakings, the proposal to require electronic logging devices on all heavy trucks will be published April 9. This date is prone to slippage, as last month’s DOT report indicated the rule would be proposed by February 27. However, today the  Office of Management and Budget approved the proposal that had been under its review since August 9. FMCSA spokesman Duane DeBruyne said the agency is “pleased” that OMB cleared the rule, “allowing its imminent publication in the Federal Register and commencing public review and comment.”

According to DOT, the rule will “establish: (1) minimum performance and design standards for hours-of-service (HOS) electronic logging devices (ELDs); (2) requirements for the mandatory use of these devices by drivers currently required to prepare HOS records of duty status (RODS); (3) requirements concerning HOS supporting documents; and (4) measures to address concerns about harassment resulting from the mandatory use of ELDs.”

The last highway bill MAP-21 required that FMCSA issues final rules by October 1, 2013. As pointed out in previous posts, it will take years once the rule has been finalized for all heavy duty trucks to deploy ELDs. That will be a welcome day for highway safety, and getting the rule published will get the ball rolling.

The MAP-21 highway bill signed in 2012 mandated electronic logging devices on trucks. Congress ordered that a rule be made available by October 1, 2013. In March of 2013, the FMCSA indicated it would miss that deadline but expected to propose a rule by the end of 2013. Now that timeframe has passed and the FMCSA’s  director of communications, Marissa Padilla, has stated that “We expect to publish the rule in the near future. It is currently at the Office of Management and Budget and we have no new updates on a specific date.” When pressed to narrow down the definition of “near future”, Ms. Padilla indicated that it meant sometime in 2014.

As I mentioned in a post last year, it will take several years between the time a rule is proposed and the time when all large trucks have EOBRs installed. Also, as OOIDA points out, EOBRs are not foolproof as they only automatically record driving time, not all on-duty time, so cheaters will continue to cheat. However, it is time to get the ball rolling and make a significant, if not perfect, improvement in hours-of-service compliance through formal rulemaking that mandates EOBRs in large trucks. The American Trucking Associations strongly supports an EOBR mandate.

Transport Capital Partners surveyed carriers on their use of electronic logging devices. For carriers with more that $25 million in revenues (around 200 trucks) 84% have either fully implemented or have partially implemented EOBRs. For smaller carriers only 29% have made similar commitments. Over 40% of the larger fleets have fully implemented EOBRs while less than 15% of smaller fleets have done so.

Usage is clearly on the rise. In a similar study a year ago 44% of all surveyed carriers were either not utilizing EOBRs or had considered them but not made the transition. In this year’s survey those groups dropped to 32% of respondents.

We believe that smaller carriers will accelerate adoption as the technology continues to decline in price and becomes more broadly accepted as standard operating practice in the industry. It is possible that by the time the EOBR mandate is finally in place, it will be a non-event as the vast majority carriers will have already adopted the technology.

EOBR Usage

Source: Transport Capital Partners, LLC

Transport Topics reported on a study by Transport Capital Partners showing that 35% of all surveyed carriers utilize electronic logging devices, a ten percentage point gain from a year-earlier survey. For carriers with $25 million or more in revenue 43% reported using such devices while 29% of smaller carriers have already adopted the technology. Fully two-thirds of respondents said they were either testing or using the technology.

We continue to believe EOBRs are affordable and effective and support mandatory use of this technology to improve highway safety.

The 2012 Highway Bill, MAP-21, mandates the use of electronic on-board recorders (EOBRs), but that does not mean it will be happening any time soon. MAP-21 requires the FMCSA to issue a final rule by October 1, 2013 and to have the mandate in effect within 2 years. That is not what is going to happen. Currently, FMCSA is estimating to have a proposed rulemaking by September 2013, but it is reasonable to expect another year or more (late 2014) before the rulemaking is finalized as there will be an open comment period and possibly litigation from OOIDA. Even after that, the Agency will likely allow a couple of years for products to be certified and a couple more years for full implementation. So at this point in time, it appears full implementation could be as late as 2019.

While it may seem preposterous to take that amount of time for implementation there are two very practical issues that need to be resolved. First, EOBRs automatically track driving time, but compliance to hours-of-service regulations requires that on-duty not-driving time be separated from off-duty time. That can’t be automated and requires some form of manual input from the driver, meaning the entire system will not be fully automated as some suggest the law requires. Drivers who cheat on paper logs are the same drivers who are likely to cheat when entering non-driving time into an EOBR, which reduces the effectiveness of the system. Second, law-enforcement personnel need to be able to access and interpret the EOBR data, and somebody is going to have to pay for that and develop and provide training. There are also complaints by some that trucking companies will use the data to force drivers to drive more hours when the driver wants to rest, but that argument does not hold water for me. Dispatchers who would abuse drivers in such a way are more likely to do so when there are no electronic records available to prove their misconduct. In December, The FMCSA began soliciting public feedback on driver harassment that was supposed to be completed by mid-February but seems to remain open for comments.

I am reminded of Voltaire’s quote “The perfect is the enemy of the good.” The EOBR is an economical and proven way of reducing excessive driving time, improving HOS compliance, and thus improving safety. While not perfect, it is a dramatic improvement over paper logs.

The Map-21 EOBR mandate applies to all drivers subject to current paper log requirements, which the FMCSA estimates at 3.4 million drivers and 3.1 million trucks. Specifically excluded are drivers operating within a 100-mile radius and non-CDL drivers operating within a 150-mile radius.

While it is by no means a done deal, the Senate is moving towards a federal mandate for EOBRs for all trucks and buses. The Senate Commerce Committee approved four bills on December 14 as part of the larger two-year transportation reauthorization measure. One of the bills calls for mandatory EOBRs and has the support of the ATA but is opposed by the Owner Operator Independent Driver Association.

The FMCSA mandate for EOBRs was thrown out by the U. S. Court of Appeals in the summer.

Although I am not a big fan of federal mandates, EOBRs are an affordable and effective technology to keep our highways safer and level the playing field between carriers who play by the rules and those who are not appropriately focuses on safe driving.

Siding with the Owner Operator Independent Drivers Association (OOIDA), the 7th U.S. Court of Appeals overturned the FMCSA’s mandate of EOBR use by trucking companies. The court ruled that the FMCSA mandate does not properly protect drivers against harassment by the trucking companies. The court did not address OOIDA’s compliant that the agency did not demonstrate the benefits of the technology. You can read more about the ruling in The Journal of Commerce or Transport Topics. The American Trucking Associations supports the EOBR mandate and expressed disappointment in the ruling.

The Motor Carrier Safety Advisory Committee may need more time to gather expert opinion on details of how the program will work. For example, the technical standards for communicating electronic information from the EOBR to a laptop in a law enforcement vehicle have not been worked out. In addition, it is not clear who will be responsible for equipping 12,000 CSVA-certified law enforcement personnel with the technology required to interact with an EOBR. It is also not clear how EOBRs should account for incidental truck moves such as when a police officer asks a driver to move a parked vehicle. Drivers are also expected to be allowed some personal off-duty driving time such as travelling for dinner. Finally, EOBR providers suggest that it may take a year or more to work out the hardware and software changes required to comply with the new regulations.

The FMCSA had planned to issue its final rule in June of 2012, but that target appears unlikely to be met. Carriers will have three years to comply once the final rule is issued. I remain convinced that mandatory EOBRs are a good idea for the industry and the general public, but the devil is in the details and it is important to be fair to drivers and to have a smooth implementation.

You can read more about the likely postponement in Transport Topics.

The American Trucking Associations (ATA) have stated their support for a federal proposal mandating that trucking companies use electronic logging devices to monitor driver compliance with the hours-of-service rule (ATA Press Release). The ATA supports both legislation requiring the electronic logging equipment and a rule proposed by the Federal Motor Carrier Safety Administration. "ATA has always been in favor of strong enforcement of safety rules and regulations. This new policy just underlines that support," Bill Graves, ATA president and chief executive officer, said April 7. The Truckload Carriers Association had already expressed support for the new federal initiative.

While ATA’s new policy expresses support for an electronic logging mandate, ATA believes any regulation or law should also address several issues including: (1) Cost-effective device specifications allowing for accurate recording of driving hours; (2) data ownership and access in order to protect the privacy of fleets and drivers alike; and (3) relief from the current, significant burden of retaining additional supporting documentation.

Many carriers that already have adopted the technology report not only safety improvements but also productivity gains by better matching loads with drivers considering each driver’s available hours.