It’s just a matter of time
FMCSA heads back to the drawing board for broader EOBR mandate
In August, the U.S. Court of Appeals for the Seventh Circuit overturned the Federal Motor Carrier Safety Administration’s April 2010 electronic onboard recorder final rule that would have required EOBRs for motor carriers with a 10 percent violation rate for hours of service (EOBR 1). The Owner-Operator Independent Drivers Association – which filed the suit against FMCSA – hailed the court’s decision, saying the final rule didn’t address how the regulation would ensure devices aren’t used to harass drivers.
Last month, however, FMCSA announced its intentions to press forward with its February 2011 notice of proposed rulemaking calling for a broader EOBR mandate affecting all motor carriers required to maintain records-of-duty status (EOBR 2), a measure that would affect an estimated 500,000 carriers nationwide.
What constitutes ‘harassment’?
After two comment periods for EOBR 2, FMCSA now will issue a supplementary NPRM to survey carriers, drivers and vendors on harassment issues, hold another round of listening sessions and charge its Motor Carrier Safety Advisory Committee to make further recommendations.
The purpose of FMCSA’s new SNPRM is to determine what constitutes “harassment.”
OOIDA’s biggest argument in its suit was that less-scrupulous carriers using EOBRs would push fatigued or ill drivers to return to the road. However, regulatory provisions such as 49 CFR 392.3 already exist to protect drivers from such practices, and FMCSA notes that EOBR 2 (and the vacated EOBR 1) only requires drivers to submit RODS within three days after it’s recorded. Carriers in favor of EOBRs argue that more accurate recordkeeping would highlight abuse of drivers.
To clarify its stance on the issue, the Truckload Carriers Association backs a solution that mandates “electronic logging devices” used solely to record and report HOS compliance, rather than the more ambiguous EOBR definition as advocated by the American Trucking Associations, the Alliance for Driver Safety & Security and other industry groups.
The bottom line is EOBRs, ELDs or whatever you want to call them are crucial for carriers and drivers to adequately comply with and enforce the increasingly complex set of regulations regarding drivers’ hours of service in FMCSA’s HOS final rule that was published last December and takes effect July 2013. And without an ELD/EOBR mandate announced by then, it will be next to impossible for law enforcement to ensure compliance. Then again, ATA already has filed suit over the new HOS final rule (see page 11), so an HOS compliance date remains in limbo.
Until the dust settles and a solution to the electronic logging situation is reached, fleets using ELDs or full-fledged EOBRs to comply with current HOS regulations, ensure safety performance and improve productivity should be applauded for their efforts. EOBR technology has developed rapidly, allowing carriers to accurately monitor not only driver RODS but acceleration habits, hard braking incidents, safety-critical events and a host of other information.
Drivers accustomed to paper logs that feel “harassed” by legitimate carrier-required electronic logging and reporting initiatives – or bad actors that simply enjoy the creative license that paper logs provide – should look for work elsewhere. After all, it’s not as though driver jobs are hard to come by these days.
Next steps for the EOBR rulemaking
Supplemental notice of proposed rulemaking to propose technical standards and address driver harassment issue
Future public listening sessions
Conduct carrier, driver and vendor surveys on driver harassment
Task the Motor Carrier Safety Advisory Committee to clarify EOBR communication standards and explore driver harassment issue beginning with February meeting
MCSAC to issue letter report to FMCSA in June
JEFF CRISSEY is Editor of Commercial Carrier Journal. E-mail firstname.lastname@example.org.