Court Rejects EOBR Rule

A federal appeals court has thrown out the Federal Motor Carrier Safety Administration’s 2010 rule requiring electronic onboard recorders for many motor carriers, telling the safety agency it must rewrite its rule to ensure the devices won’t be used to harass drivers.

The Aug. 26 ruling is almost certain to delay the June 2012 EOBR mandate for about 5,700 carriers with significant hours-of-service violations and is likely to delay a separate rule requiring EOBRs for all 500,000 interstate carriers, said several members of a federal advisory committee studying the EOBR issue.

“The agency needs to consider what types of harassment already exist, how frequently and to what extent harassment happens, and how an electronic device capable of contemporaneous transmission of information to a motor carrier will guard against (or fail to guard against) harassment,” the court ruled.

The court also left open the possibility that it could find other problems with the EOBR requirement.

Siding with a challenge by three truck drivers and the Owner-Operator Independent Drivers Association, a three-judge panel of the 7th U.S. Circuit Court of Appeals said late last month that FMCSA’s rule does not ensure the devices will not be used to harass truck drivers.

The agency’s EOBR mandate for carriers with past HOS problems does not adequately address or ensure that carriers could not use the devices to force vehicle operators to stay on the road even when they are tired, the court said.

R.C. Powell, a master trooper with the Virginia State Police and chairman of the Motor Carrier Safety Advisory Committee’s EOBR subcommittee, predicted a delay of up to two years in writing a new rule.

“The rule’s gone,” Powell told Transport Topics. “What they’ve got to do is a completely new rulemaking.” That process could take as long as 18 to 24 months, he said.

Further complicating the rulemaking process, Powell said, is a hint by the court that the driver harassment issue is not the only one it will ultimately address at a later date.

One of those potential problems that the court said it may address later included questions raised by the Public Citizen advocacy group over the cost-benefit analysis of the EOBR mandates.

“Rather than reach beyond what is strictly necessary here, prudence dictates that we leave for another day any questions that might arise in connection with whatever new rule the agency decides to adopt,” the appeals court wrote.

Although the court decision specifically addresses the 2010 final rule, FMCSA also will have to make sure its broader Jan. 31 proposed rule also ensures that drivers will not be harassed, said Robert Digges, vice president and chief counsel for American Trucking Associations.

The agency has said it expects to issue the final rule for all interstate carriers by June 2012 but would give truckers three years to comply.

Because the court vacated and sent the 2010 rule back to FMCSA, the agency probably will have to restart the rulemaking process and rewrite the rule, or issue a supplementary rule aimed at satisfying the court’s concerns, said several members of a federal advisory committee studying the EOBR issue.

Just how long that process might delay implementation of either mandate remains unclear.

Larry Minor, FMCSA’s associate administrator, said last week the agency was reviewing the decision and considering its options, which he declined to discuss.

“These are complex legal issues,” Minor told Transport Topics.

David Parker, chairman of the advisory committee, declined to say how long he believes the rewriting process might take.

The MCSAC panel, which reports directly to FMCSA Administrator Anne Ferro, was asked earlier this year by the agency to submit recommendations on a host of technical and other EOBR issues.

Last week, the committee continued working on an interim report addressing issues ranging from how to program EOBRs to account for drivers’ off-duty time, yard moves and incidental truck moves, to security and connectivity challenges in transmitting hours-of-service data from the truck cab to law enforcement officers performing inspections and making traffic stops.

The MCSAC plans to issue a final report in December.

Briefing the committee about the appeals court decision last week, Parker said the decision offered the committee a “unique opportunity.”

Not only would the ruling free the committee of its previously tight deadline, but it also would give members some “latitude” to broaden their recommendations to FMCSA because the rule will have to be revised.

Rob Abbott, vice president of safety policy for ATA and a MCSAC member, said some of the issues raised by the court decision are “complicated and substantial.”

“It will certainly impact the mandate for carriers who are noncompliant that was due to go into effect in June 2010,” Abbott told TT.

He said it remains to be seen whether FMCSA can tweak a proposed EOBR mandate for all interstate carriers in time for its posting of a final rule in July.

“But it appears likely at this point that they won’t be able to do that,” Abbott added.