First EOBR rule withdrawn but second proceeds

By David Tanner, associate editor

Six months after a federal judge ruled in favor of OOIDA and ordered the Federal Motor Carrier Safety Administration to vacate its initial rule on electronic on-board recorders, the agency took steps in February to strike the rule from the books.

At the same time, however, the agency announced it would proceed with a separate EOBR rule that addresses the issue of driver harassment.

In August 2011, the U.S. Court of Appeals for the Seventh Circuit ordered the FMCSA to vacate its initial final rule after OOIDA pointed out that the agency had failed to address the issue of on-board recorders being used to harass drivers. The harassment issue, one of three arguments presented by the Association, was all it took for the court to rule in OOIDA’s favor in that case.

That rule, dubbed EOBR 1, would have required on-board recorders for carriers with substandard hours-of-service compliance records.

In a Federal Register notice published Feb. 13, FMCSA officials said they will officially remove the regulatory text of EOBR 1 from the regs.

“This will complete the actions required by the Court,” the agency stated.

In the same Federal Register notice, the FMCSA announced its intent to proceed with a broader industry-wide mandate, known as EOBR 2, which would require on-board recorders in virtually all trucks engaged in interstate commerce.

The issue of driver harassment remains on the table, however.

OOIDA Executive Vice President Todd Spencer is an appointed member of the Motor Carrier Safety Advisory Committee, which reports to the FMCSA. He explained during a committee hearing in February how electronic on-board recorders can be used to harass drivers, especially if the recorder is tied to a fleet-management system.

“On-board recorders can’t measure when a driver is tired, when a driver ever needs to stop or when a driver needs a break, but certainly a fleet-management program can let a motor carrier know their driver stopped,” Spencer said following the proceedings.

The FMCSA is seeking public input on the issue of EOBRs and driver harassment. At press time, the agency was planning a series of public listening sessions that could include a stop at the Mid-America Trucking Show in Louisville, KY. Exact dates, locations and times were still pending as of press time.

The FMCSA also plans to survey drivers, carriers and vendors regarding the harassment issue, and has asked MCSAC to develop recommendations to be used in the EOBR 2 rulemaking.

The public docket number for the EOBR 2 rulemaking is FMCSA-2010-0167.

In addition to the harassment issue, Spencer says EOBRs will increase costs for operators and possibly lead to a reclassification of a certain segment of truckers.

“If a carrier or if the government requires on-board recorders in the trucks of owner-operators leased to carriers – with this level of productivity, management, control and oversight, you are not a contractor anymore, you are an employee,” Spencer said. “This whole issue is opening up so many cans of worms.” LL