What’s Going on Here?

This is a summary of discussion on the Penalities/Enforcement post between February 6 and May 13.  (On that date, the post was closed to further discussion.)  This summary was written by the Regulation Room team based on all the comments people made. This version is a DRAFT. We need YOUR help to make sure that nothing is missing, wrong or unclear.

Important dates:

May 14-22:  Comments can be made here on the draft
May 21-22:  Regulation Room team reviews comments and revises draft
May 23:  Final Summary of Discussion is posted on Regulation Room and submitted to FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) as a formal comment in the official rulemaking record.  (May 23 is the last day of the official commenting period.)

Things to keep in mind as you read through the draft summary and make comments:

1. The goal here is to give FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) the best possible picture of all the different views, concerns, and ideas that came out during the Penalties/Enforcement discussion.  This is NOT the place to reargue your position or criticize a different one.  Focus on whether anything is missing or unclear, not whether you agree or disagree.
2. Rulemaking is not a vote. FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) is not allowed to decide what to do about EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) based on majority rule.  (Why? See Effective Commenting)  Approximate numbers are provided in the summary to give FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) a sense of the frequency of views, concerns, and ideas.

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This post got 20 comments from 12 users; moderators responded 11 times.

Commenters included primarily people who identified themselves as owner/operators and a few owners of trucking businesses. Several of the owner/operators have a lease arrangement with other carriers.  One owner the company that owns the rights to repayment of the mortgage principal plus interest of a trucking business manages 11 vehicles. Several commenters stated they had previously used an EOBR, AOBRD, or fleet A group of motor vehicles owned or leased by businesses or government agencies management system. One commenter is a member of an advocacy group interested in this rule, and two identified themselves as EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) equipment manufacturers/suppliers.

One commenter (a long haul generally, >150 mi. from base for property carriers user of an an EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) and an equipment manufacturer/supplier) downloads records monthly to a DVD stored at home.  With the JJ Keller unit this can be done with a smart phone.  The GPS Global positioning system (A space-based global navigation satellite system that provides location and time information anywhere on Earth) sender unit is $199, with a monthly fee of $6.00 to use on a smart phone.  All in all this commenter pays $75.00 for everything on his smart phone.  According to this commenter and another who agrees, when the system is linked, you can talk on the phone while it serves as an EOBR, but you cannot text.

One commenter (an independent owner/operator of a long haul/short haul trucking business with 2 units) sees a problem in using a cell phone in this way.  What if someone else, such as the driver’s spouse or the off-duty driver on a team truck, were using the cell phone in the truck?  ”Tracking of the cell phone could only indicate GPS Global positioning system (A space-based global navigation satellite system that provides location and time information anywhere on Earth) of the cell phone, but not the drivers’ use of it in these circumstance.”  This commenter is also concerned with disabling texting while the phone is acting as an EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) if there were a second person in the truck who wanted to use the phone.

Two commenters specifically express frustration that FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) would mandate EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) use without having in place specific guidelines of what to do in the event the device stops working.

He/she reflected on FMCSA’s use of Qualcomm’s ten year device lifetime estimate. According to the commenter, trucking companies expect EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) to last at least the length of their trade cycle for the vehicle: five to seven years—so the ten-year estimate “may be on the long end of the cycle.”  Most warranties from the major vendors EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) vendors are three years, although he/she has seen warranties as high as seven years, and as low as one year.

This commenter also raises several other issues related to the life expectancy: He/she points out that if a driver buys an EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) today that is 395.15 compliant, it will be grandfathered into the 395.16 program until 2014.   At that point, all devices must be 395.16 compliant.  If, however, a driver purchases a truck after June 4, 2012, the device must be 395.15 compliant. And some of the technical requirements under 395.15 haven’t been defined yet by FMCSA.   He/she also says, “Another consideration is the speed at which new Fleet Management Systems will adapt to new hardware technologies: We have seen mobile phones go simple phones to computer desktop replacements in less than 2 years. Using 10 year old technology may not bring the same business benefits as a newer FMS.”

Device Failure. One commenter thinks there should be different treatment depending on whether the device “falls apart on its own.” If he/she buys a less expensive EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) would he/she be prosecuted when the less reliable EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) breaks. To prevent the somewhat double punishment for purchasing a cheaper product, there should be an exception preventing prosecution when the device fails as a result of the product itself and not as a result of any type of intentional tampering.

One commenter reports Canadian experience (with speed limiters) where the device was damaged when law enforcement officer plugged into the device. This commenter raises the issue of proper training for officers to learn how to work with the EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) to prevent them from causing possible damage to the system. To illustrate the point, the commenter notes court cases in Canada where enforcement officers caused damage to the product when they plugged into it. This is particularly important in light of one commenter’s question about whether device tempering will be checked for at roadside inspections.

HOS Requirements and EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) Inflexibility. Several commenters are concerned and angry that EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) will force drivers to comply with the strict letter of the HOS Hours of service (Regulations issued by FMCSA that limit the number of daily and weekly hours a CMV driver may drive) rules even in situations where the purpose behind the rules isn’t affected and the situations are out of the driver or carrier’s control. (These concerns about EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) inflexibility appear in other posts too). And, as in other posts, commenters raise the issue of necessity and economic impact: “At a time when the economy is struggling to recover from a horrible recession and truck statistics are the safest they have been in 50 years,” why require EOBRs?

One commenter (an owner the company that owns the rights to repayment of the mortgage principal plus interest of a trucking business with 11 vehicles) emphasizes the importance of taking into account for long, unexpected delays such as loading and unloading difficulties when calculating HOS; the logging rules should allow drivers to adjust for these delays. Another ( an owner-operator A self-employed commercial truck driver or a small business that operates trucks for transporting goods over highways for its customers leased to another carrier) agrees: “These things only work in a perfect world where there isn’t traffic or weather or breakdowns or anything else that a driver has to deal with on a daily basis.” If some kind of allowance isn’t made for these delays and drivers are unable to drive because they are over hours, it will disproportionately impact small businesses who cannot afford to take trucks out of service for HOS Hours of service (Regulations issued by FMCSA that limit the number of daily and weekly hours a CMV driver may drive) problems.

At least three other commenters (a short haul generally, <150 mi. from base for property carriers independent owner the company that owns the rights to repayment of the mortgage principal plus interest operator, a long haul generally, >150 mi. from base for property carriers owner the company that owns the rights to repayment of the mortgage principal plus interest operator A self-employed commercial truck driver or a small business that operates trucks for transporting goods over highways for its customers leased to another carrier, and a short haul/long haul owner the company that owns the rights to repayment of the mortgage principal plus interest operator A self-employed commercial truck driver or a small business that operates trucks for transporting goods over highways for its customers leased to another carrier) agree that this proposal will hurt small truckers more than large carriers and suspect that big trucking companies support for these proposals to run smaller truckers out of business. One chides FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) for proposing a rule that will “turn the drivers against each other.”

A commenter (a long haul generally, >150 mi. from base for property carriers driver and equipment manufacturer/supplier) recounted his experience using a unit that worked with his cellphone. There is an “off duty driving” category on the system that lets you move the truck for up to 20 minutes. But this doesn’t help the traffic problem; driving is always counted on the system and “if you are in a traffic jam in LA at rush hour you could lose 3 hours going only 50 miles.”

One commenter (a short haul generally, <150 mi. from base for property carriers independent owner the company that owns the rights to repayment of the mortgage principal plus interest operator) questions how the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) would calculate HOS Hours of service (Regulations issued by FMCSA that limit the number of daily and weekly hours a CMV driver may drive) for certain categories of activities. For example, he takes his truck 23 miles each month to be serviced. How will the device count that time? This same commenter emphasizes that a big problem is carriers’ requiring the driver to put in unreasonable hours before and/or after driving.  He/she also believes that some problems would be solved if companies would pay drivers for delays that are the company’s fault.

For example, one commenter (a long haul generally, >150 mi. from base for property carriers owner/operator leased to another carrier who has used EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) or similar devices) expresses frustration that FMCSA Federal Motor Carrier Safety Administration (The agency proposing the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule) would force owner/operators to use EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) and then in this rule turn around and ask what the repercussions should be when these same individuals tamper with their own devices.  A second commenter (an owner the company that owns the rights to repayment of the mortgage principal plus interest of a long haul/short haul trucking business with 2 units) agreed with this comment. The first commenter believes that requiring EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) as an enforcement mechanism amounts to an invasion of privacy and is a Fourth Amendment violation. He/she challenges the safety rationale and says the proposal is inconsistent with President Obama’s call for less burdensome and costly rules.

A few commenters suggest that EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) will only make things more complicated, not less so. For instance, one commenter states that after all these rules, “the only person who will be qualified to drive a truck would have to have the knowledge of a lawyer.” He/she believes that the proposed rule has more to do with controlling the industry than it has to do with safety.

Two commenters insist that the government should supply EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) for free. One suggests paying for this with money saved from decreased law enforcement costs. (He/she suggests that the number of enforcement personnel could be reduced because HOS Hours of service (Regulations issued by FMCSA that limit the number of daily and weekly hours a CMV driver may drive) violations revealed through EOBRs Electronic on-Board Recorders (Devices attached to commercial motor vehicles that track the number of hours drivers spend on the road) could be monitored by satellite and citations sent in the mail). The second commenters argues that “the US taxpayers will be paying for the NEW Mexican driver EOBR’s in the Crossborder Program, so why not pay for ours?”

Read what commenters have said about their personal experiences relevant to the EOBR Electronic on-Board Recorder (A device attached to commercial motor vehicles that tracks the number of hours drivers spend on the road) rule here.