FMCSA Will Rewrite EOBR Rule to Address Court's Concerns
November 15, 2011
The decision was mentioned in an announcement of a pending meeting of the Motor Carrier Safety Advisory Committee, and was confirmed by an agency spokesperson.In an August ruling,
the U.S. Court of Appeals for the Seventh Circuit vacated the rule and sent it back to FMCSA for review, saying it does not do enough to prevent harassment of drivers.
The decision was in response to a petition by several independent drivers and the Owner-Operator Independent Driver Association, who were challenging the rule, which will require habitual violators of the hours of service rules to install EOBRs.
The agency has estimated the rule would affect some 5,700 interstate carriers. It is the precursor to a much broader mandate that will cover practically all carriers, probably several years from now.
The panel of three judges found that the agency did not provide enough detail on how it intends to prevent carriers from harassing drivers through these devices. The agency does say in the rule that it is legally required to prevent harassment, but it does not go into detail on how that will be accomplished.
The court said the agency needs to describe exactly what steps must be taken to prevent harassment. It needs to consider what types of harassment already exist, how frequent and extensive is the practice, and how EOBRs will either allow or prevent harassment.
In its MCSAC announcement last month, the agency said its final rule, to be posted "at a later date," will remove all of the text that the court found wanting. Technical details and more
Meanwhile, though, the agency wants MCSAC to continue its work on the technical details of the rule. The committee, a panel of 19 officials from the industry, enforcement community and labor and safety advocacy groups, has been working at the agency's request on recommendations for EOBR standards and expects to finish by the end of this year.
It is considering, for example, how best to handle data security, the transfer of data from the onboard recorder to the inspecting officer, and certification of recording devices.
In a related development, OOIDA is pressing the agency to clarify its logging requirements in the wake of the court decision.
The group contends that carriers using electronic logs must comply with the automatic onboard recorder rule that was in effect before June 4, 2010, when the now-vacated EOBR rule was published. In addition, OOIDA says, the relief from supporting documents requirements that were included in that rule also has been vacated.
"FMCSA has the responsibility to inform both the industry and its state law enforcement partners that motor carriers may not lawfully use EOBRs to record a driver's record of duty status under the rules promulgated in the final order vacated by the Seventh Court," said Paul Cullen, a Washington, D.C., attorney representing OOIDA, in a Nov. 8 letter to FMCSA chief counsel Alais Griffin.