Channel 19

Todd Dills

Does the EOBR mandate have another problem?

| July 11, 2012

The recently passed mandate for virtually all interstate haulers to use electronic onboard recorders for hours of service tracking got owner-operator William McKelvie, a frequent commenter on Overdrive‘s Facebook page, thinking hard about the kind of device the highway bill’s definition of “electronic logging device” describes.

To wit, under the “definitions” portion of the section devoted to “electronic logging devices”:

The term “electronic logging device” means an electronic device that … is capable of recording a driver’s hours of service and duty status accurately and automatically.

The definition goes on to qualify that by leaving fairly open other guidelines the Secretary of Transportation can promulgate for the devices, such as specifications related to the requirements that they be tamper-resistant, be able to record location data, etc.

McKelvie viewed this as essentially referring to a device that doesn’t exist, as it seems to leave out any consideration of the operator’s involvement in telling such a device what exactly he/she is doing when the vehicle stops moving. The distinction between off-duty and on-duty not-driving lines in any driver’s log book I suspect will always be entirely up to the operator’s input. It’s a distinction, furthermore, that opponents to any EOBR mandate have continually made in their objections to the misconception so many members of the general public seem to have about hours and EOBRs. I’ve certainly written about that misconception: that the devices can do it all for the driver.

If we take that automatically quite literally, the mandate for EOBRs as they currently exist would then seem to require a revision to the hours-of-service rule to eliminate distinctions between off-duty, sleeper berth and on-duty not-driving time. The only duty status EOBRs can accurately and automatically record is drive time.

I don’t see anyone on the regulatory side of things clamoring for that kind of hours regs revision. Do you? All the same, the notion points right in the direction of what other opponents of the mandate fear: that carriers will use the devices to pressure drivers to maximize their eleven hours of driving and log all stop time as off-duty, reducing any detention pay waiting at the loading docks they may well have ever received and, combined with supporting documents “relief” that may come to carriers utilizing EOBRs to eliminate paper/data trails, “hang drivers out to dry” in accident cases for any log violations. (For further commentary on that last notion, see frequent Channel 19 commenter E.F. McHenry’s elaboration on it here.)

In any case, there is a bit of a problem with taking automatically so literally, and that’s the fact that the highway bill’s “electronic logging device” definition language is lifted directly from the old automatic on-board recording device (AOBRD) regulation, in existence since before the time Werner Enterprises began using a version of EOBRs more than a decade ago.

Those definitions state an AOBRD is “an electric, electronic, electromechanical, or mechanical device capable of recording driver’s duty status information accurately and automatically as required by §395.15.” By referring to the 395.15 regulation, regulators are limiting what “automatically” means by elaborating on device specs elsewhere and assuming driver input. I’d imagine they’ll do much the same with any future regulation.

I put the question to Norita Taylor of the Owner-Operator Independent Drivers Association of whether the definition of EOBRs as “automatic” recorders of duty status presented an opening for opponents, such as her organization, or whether the old regulation had done so in years gone by. (Though no mandate for AOBRDs was ever codified at that time, it was to a certain extent pursued.) Taylor noted that “what happens is that [EOBR] proponents and [the Federal Motor Carrier Safety Administration] appear to be quite satisfied with the limitation of what is considered ‘automatic.’ It just doesn’t seem to matter to them.”

For proponents, it becomes easy to point to how much of the rest of the world has been filled with “automatic” things, and that an EOBR “should be another ‘automatic’ to add on to the list of automatic things in our lives,” Taylor said, “regardless of how automatic it really is.”

Calling an EOBR’s operation automatic then just adds more fuel to the fire of the previously mentioned safety-cure-all misconception that has driven us to where we are today — staring down an EOBR mandate. (OOIDA has, of course, made progress on fighting implementation. See this story for more on the House transportation appropriations bill amendment that passed and would defund implementation of the mandate through fiscal year 2013 if the Senate also takes it up.)

As for owner-operator McKelvie, he’s also a frequent contributor to the Center Lane Show call-in talk program on BlogTalkRadio.com, happening every Wednesday. He promises to bring all of this up tonight for discussion, including some info he says disproves the safety-cure-all misconception. Join him and the hosts at 6 p.m. Central tonight via http://blogtalkradio.com/centerlaneshow.

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  • E.F.McHenry

    Todd I must say you’re articles and material could literally form the basis for a full blow court case argumentation on this EOBR debacle. It’s truly amazing just when you think the fight is over we have yet another perspective on to consider…

    William McKelvie just offered up something i’ve been very concerned about myself but unable to connect it with current regulation. Here is a argument i’ve been continually trying to make….

    EOBRs produce no more compliance with the HOS rules than the paper logs they are meant to replace. Both rely on the integrity of the driver to be true or not false. Yet they are being peddled in perpetuity as the gold standard of or for compliance. Nothing could be further from that notion.

    To understand why EOBRs are no better than paper logs you have to think about two components or aspects of work. Most people tend only to think about the amount of work that will be done or performed. Stopping here is what leads many to accept EOBRs as instruments of compliance. But performing work also involves eligibility. Before any kind of work can be done, we also have to consider whether the worker is eligible to do that work. Here are some examples of eligibility restrictions to work: a) Must be a U.S. citizen b) Must be of age c) Must be qualified d) Must be employed or under contract e) Must be competent, able or certified…etc To ignore eligibility is to ignore everthing. It would be tempting to just think of the 10hr sleeper or off-duty time necessary before driving but i’m thinking about something else here…..

    A log is suppost to show or describe or be a representation of work that was legal to do. Right? Well if that log doesn’t reflect what was allowed to be done in a legally then it is considered a false or falsified log. It is true that EOBRs can accurately describe or account for how much the truck moved. But an accurate account of how much a truck moved says nothing about whether or not the truck was eligible to move! This point can’t be overstated. Compliance with the HOS limits are as much about how much a driver is eligible to drive as it is about how much a driver actually drives. And i mean more than the required 10 break.

    Example: Recall the HOS rules involve a 11hr, 14hr, & 70hr rule. Let’s take the 70hr rule. Well both driving time and on-duty/not driving time consume or draw from the initial 70hrs available at the start of a drivers week and of course what remains of the 70hrs throughout the week. But if a driver constantly logs off-duty or sleeper berth for on-duty time, the driver is wrongfully conserving hrs to eventually spend it driving instead. Another words by not spending hours as driver are required to do for non-driving work, paid or not, the driver is wrongfully saving hrs to enable more drive time than that driver was actually eligible to have for driving. On the other hand if the cummulative hrs of the 70hrs are naturally lost in line 4 then less hrs will ultimately be available for not just the work week, but the work day as well. And this will in turn reduce driving time.

    To restate it another way, if a driver logs off-duty or sleeper berth when he or she should be on-duty the driver is basically helping themselves to more hrs than they would otherwise be entitled to have for drivin

    This kind of falsification artificially extends the work week by preventing available hr to be naturally exhausted and misplaces the point at which 34hr restarts get taken too.

    Furthermore some carriers have a line 5 for personal conveyance. But these same carriers are demanding drivers use personal conveyance to pick loads up and not start their 14hr clock and even deliver loads as well.

    In conclusion we can say so long as a driver is free to falsify line 4 on the EOBR then line 3 can never be accurate. Line 3 & 4 are synergistically related

    We can also say that lines 1, 2, & 4 on any log should not be negligible but rather should form the basis for a drivers eligibility to work in line 3 or drive. Not the other way around.

    And from all this we can conclude the EOBR accomplishes nothing compliant. We are getting falsifications on all three; 11hr, 14hr, and 70hr rule!

    I’m almost out of time but if you find any of this helpful maybe i can contribute more on the topic or maybe even revisit and rework some of my argument against EOBRs. thx again

  • E.F.McHenry

    One more quick point before I call it a day, and this is just something to muse over…Under SafeStat audits of motor carrier terminals include ROD(record of duty status)or driver logs. SafeStat required DOT officers to check driver logs against supporting documents. Supporting documents are almost always timestamped. The timestamps lay down start&stop markers on any log. These form the boundrys of drive time…..

    Ok fast forward to Northern CA, Oregon & Washington state I5 corridor. Ok the cottonwood scale NB&SB Dunsmuir scale has a kind of casual receprosity with Southern Oregon scales. And all of Oregon and 12 undisclosed scales in Washington state both strictly timestamp all trk scale crossings.

    Now consider linehaul OTR truck rarely ever travel from A to B and B back to A. It doesn’t work that way….Over the road trucks go from A to E to H and C and maybe back to A if that was say a home terminus.

    What all this means is the total aggregate mile must always have to be accounted for under the old safestat system and even CSA as it currently stands( refer to my work on support document policy change).

    Now putting it together:
    As Todd Spencer of OOIDA has indicated, the EOBR is much more a high priced fleet management tool than a instrument of compliance. At least as it is being proposed along side of a change in the retention of supporting documents. Why? Because a proper audit of a drivers logs should include support documents to a.) Lay down markers for on-duty not driving time and b.) Provide boundaries for start and stop times. This taken together with timestamped scale crossings and and audit of total aggregate miles renders any tampering with line 3 pointless, useless and meaningless. Another words impossible.

    Conclusion: what need is there for a EOBR?

  • Scott Coyner

    This EOBR bill must be stopped. It is an infringement on my right to privacy and my l iberty. I have been driveing trucks over 50-yes 50years and never had a chargeable accident or fallen asleep at the wheel and a mnium number of tickets for the number of miles I have driven,
    If this stupid and unecessart rules goes into effect, I quit. Someone with little or no experience can take my place.

  • rocky road

    Another issue I have with EOBRs is the ability of someone to change the e-log . IE: the carrier. No one should be allowed to change it. It’s a document that can and will be used against the driver, how can a document that is able to be changed by the carrier be used against a driver legally?

  • E.F.McHenry

    very important article

  • Todd Dills

    E.F., I want to let you know we saw your previous comments on this piece — shortly before we switched the plugin we use for comments; as you can see, our web folks have been refining the site. In any case, old comments are still in the reloading process and they should appear here. Some great observations you made and I appreciate the reading and commenting. I may just go ahead and paste from them and repost here myself, actually. And, as I believe I noted before, give me a call sometime: 205-907-2481. High time we had a conversation, I’d say.

  • Todd Dills

    Two of E.F. McHenry’s early comments on this post came just before we adopted the current comments plugin: I’m pasting them here for your reading:

    FIRST COMMENT:Todd I must say you’re articles and material could literally form the basis for a full blow court case argumentation on this EOBR debacle. It’s truly amazing just when you think the fight is over we have yet another perspective on to consider…William McKelvie just offered up something i’ve been very concerned about myself but unable to connect it with current regulation. Here is a argument i’ve been continually trying to make….EOBRs produce no more compliance with the HOS rules than the paper logs they are meant to replace. Both rely on the integrity of the driver to be true or not false. Yet they are being peddled in perpetuity as the gold standard of or for compliance. Nothing could be further from that notion.To understand why EOBRs are no better than paper logs you have to think about two components or aspects of work. Most people tend only to think about the amount of work that will be done or performed. Stopping here is what leads many to accept EOBRs as instruments of compliance. But performing work also involves eligibility. Before any kind of work can be done, we also have to consider whether the worker is eligible to do that work. Here are some examples of eligibility restrictions to work: a) Must be a U.S. citizen b) Must be of age c) Must be qualified d) Must be employed or under contract e) Must be competent, able or certified…etc To ignore eligibility is to ignore everthing. It would be tempting to just think of the 10hr sleeper or off-duty time necessary before driving but i’m thinking about something else here…..A log is suppost to show or describe or be a representation of work that was legal to do. Right? Well if that log doesn’t reflect what was allowed to be done in a legally then it is considered a false or falsified log. It is true that EOBRs can accurately describe or account for how much the truck moved. But an accurate account of how much a truck moved says nothing about whether or not the truck was eligible to move! This point can’t be overstated. Compliance with the HOS limits are as much about how much a driver is eligible to drive as it is about how much a driver actually drives. And i mean more than the required 10 break.Example: Recall the HOS rules involve a 11hr, 14hr, & 70hr rule. Let’s take the 70hr rule. Well both driving time and on-duty/not driving time consume or draw from the initial 70hrs available at the start of a drivers week and of course what remains of the 70hrs throughout the week. But if a driver constantly logs off-duty or sleeper berth for on-duty time, the driver is wrongfully conserving hrs to eventually spend it driving instead. Another words by not spending hours as driver are required to do for non-driving work, paid or not, the driver is wrongfully saving hrs to enable more drive time than that driver was actually eligible to have for driving. On the other hand if the cummulative hrs of the 70hrs are naturally lost in line 4 then less hrs will ultimately be available for not just the work week, but the work day as well. And this will in turn reduce driving time.To restate it another way, if a driver logs off-duty or sleeper berth when he or she should be on-duty the driver is basically helping themselves to more hrs than they would otherwise be entitled to have for drivinThis kind of falsification artificially extends the work week by preventing available hr to be naturally exhausted and misplaces the point at which 34hr restarts get taken too.Furthermore some carriers have a line 5 for personal conveyance. But these same carriers are demanding drivers use personal conveyance to pick loads up and not start their 14hr clock and even deliver loads as well.In conclusion we can say so long as a driver is free to falsify line 4 on the EOBR then line 3 can never be accurate. Line 3 & 4 are synergistically relatedWe can also say that lines 1, 2, & 4 on any log should not be negligible but rather should form the basis for a drivers eligibility to work in line 3 or drive. Not the other way around.And from all this we can conclude the EOBR accomplishes nothing compliant. We are getting falsifications on all three; 11hr, 14hr, and 70hr rule!I’m almost out of time but if you find any of this helpful maybe i can contribute more on the topic or maybe even revisit and rework some of my argument against EOBRs. thx again
    SECOND COMMENT:One more quick point before I call it a day, and this is just something to muse over…Under SafeStat audits of motor carrier terminals include ROD(record of duty status)or driver logs. SafeStat required DOT officers to check driver logs against supporting documents. Supporting documents are almost always timestamped. The timestamps lay down start&stop markers on any log. These form the boundrys of drive time…..Ok fast forward to Northern CA, Oregon & Washington state I5 corridor. Ok the cottonwood scale NB&SB Dunsmuir scale has a kind of casual receprosity with Southern Oregon scales. And all of Oregon and 12 undisclosed scales in Washington state both strictly timestamp all trk scale crossings.Now consider linehaul OTR truck rarely ever travel from A to B and B back to A. It doesn’t work that way….Over the road trucks go from A to E to H and C and maybe back to A if that was say a home terminus.What all this means is the total aggregate mile must always have to be accounted for under the old safestat system and even CSA as it currently stands( refer to my work on support document policy change).Now putting it together:
    As Todd Spencer of OOIDA has indicated, the EOBR is much more a high priced fleet management tool than a instrument of compliance. At least as it is being proposed along side of a change in the retention of supporting documents. Why? Because a proper audit of a drivers logs should include support documents to a.) Lay down markers for on-duty not driving time and b.) Provide boundaries for start and stop times. This taken together with timestamped scale crossings and and audit of total aggregate miles renders any tampering with line 3 pointless, useless and meaningless. Another words impossible.Conclusion: what need is there for a EOBR?

  • DebiEve Rann

    I agree totally with You Scott this is definitely an invasion of privacy and liberty..34 yrs I’ve been driving truck as owner op and company and I feel that it’s going to take more than a dozen drivers to replace me and another dozen to replace you..We have experience under our belts and enough sense to know that inexperience opens the door for accidents..with EOBR’S
    the question is who is driving who? An if an accident occurs how can you blame the drive if he isn’t controlling the vehicle?

  • DebiEve Rann

    I totally support the articles presented by McHenry and McKelvie…They both give voice to the problem’s with EOBR’s..and both have very good points on the flaws of this device..As a trucker I feel that it is important to hear them out simply because they are presenting the other side of the coin on the EOBR.Too often we only hear all the good that will come from a device like this but never all the problems that will come about after it’s use.. Bringing out those problems to our awareness at least gives the trucker a chance to weigh the pro’s and con’s of a device that will ultimately affect our Livelihood..After all , we are the one’s behind the wheel, human beings that keep America going, I do have a voice, I’d rather have two well seasoned Individuals that do this job going to bat for me than a group of people that determine what is best for me and have never put in the blood, sweat and tears that this job demands