FMCSA Drops Its 2012 Electronic Log Rule Aimed at Carriers With Major HOS Offenses

ATLANTA — The Federal Motor Carrier Safety Administration will withdraw its rule requiring motor carriers with serious hours-of-service compliance violations to install electronic logging devices June 1, 2012, Administrator Anne Ferro said last week.

That rule was vacated by a U.S. appeals court in August because the rule did not have safeguards to prevent EOBRs from being used to harass drivers, and Ferro told Transport Topics that the agency has decided not to appeal that decision.

Instead, FMCSA will concentrate on writing its broader EOBR rule, known in the agency as EOBR 2, she said.

“Certainly the next thing you’ll see is us pulling that old rule off the books,” Ferro said during an interview at the Intermodal Association of North America’s Expo here.

In its Aug. 26 decision, the 7th U.S. Circuit Court of Appeals agreed with the Owner-Operator Independent Drivers Association that the FMCSA did not thoroughly consider driver harassment when it issued its final remedial EOBR rule (9-5, p. 1).

The April 2010 final remedial rule called for about 5,700 carriers, those with 10% of hours-of-service violations during compliance reviews, to install the devices.

EOBR 2, proposed in February, calls for about 500,000 interstate carriers to install the devices three years after the rule becomes final.

The EOBR 2 rule will need to be tweaked to avoid the problems the court found in the narrow EOBR rule, Ferro said.

“We continue to work on all the pieces of EOBR 2,” Ferro said. “The hard work clearly will be to identify and address the deficiencies the court identified in EOBR 1.”

Meanwhile, FMCSA’s top safety officer told executives here that the broader revised EOBR 2 rule probably won’t be completed soon.

“We will be addressing driver privacy in the broader EOBR rule that we hope to get out probably in a year,” said FMCSA Assistant Ad-ministrator Jack Van Steenburg. “We’re going to do a survey of drivers and carriers to address the statutory regulation on driver policy. We also have to address the technical specifications that weren’t really resolved in the first rule.”

Richard Clemente, an FMCSA transportation specialist, told intermodal executives at the Expo that the agency is “currently in internal discussions to try and figure out exactly what we’re going to do with EOBR 2.”

“We’re going to have to decide at some time how this proposed rule is going to shake out,” Clemente said in a regulatory update session.

In his Nov. 13 briefing to intermodal executives, Clemente also said that a five-year plan for the agency proposed in June calls for a “holistic” view of commercial vehicle safety, “from warehouse to boardroom,” known as a “transportation life cycle” concept.

“What I mean by that is that the agency currently does not have jurisdiction over shippers,” Clemente said. “We have jurisdiction over trucking companies, brokers, freight forwarders. We would have to get legislative authority from Congress to do that.”

Clemente said the agency is working on analyzing an estimated 35 comments on the agency’s long-term plan from stakeholders. “At some time we’re going to have to finalize the plan,” he said. “That’s something to stay tuned for.”

After nearly a year in operation, the agency’s Compliance, Safety, Accountability program has been effective in identifying “little safety problems” before they become “big safety problems,” Clemente said. Since March, more than 40,000 warning letters have been sent to carriers, he added.

Early next year, FMCSA will publish a proposed rule that will amend CSA data and establish the agency’s new safety fitness determination system that will replace the current SafeStat system, Clemente said. The safety determinations, however, will not likely be completed until 2013, FMCSA officials said.

In addition, Van Steenburg said he expects the agency to publish a Federal Register notice in May 2012 that will allow carriers to challenge CSA data, through the agency’s Data-Q system, that wrongfully assesses blame for accidents. Currently, all crashes are placed in carrier records in the CSA database, whether or not they are at fault, Van Steenburg said.

To date, the top five CSA carrier violations respectively have been for log book discrepancies, fatigued driving, failure of drivers to have medical certificates, drivers not speaking English, and hours-of-service problems, Clemente said.

Still pending is a proposed rule published in 2007 calling for a standard for entry-level truck driver training. “Here we are four years later and the proposed rule has not cleared the agency,” Clemente said.

Many of the 400 comments the agency received on the driver training proposal cited excessive cost as a problem, and there was disagreement about whether the agency’s hours requirement should be replaced by a performance-based model. “We received a lot of negative feedback,” he said.

As a result, Clemente attributed much of the long delay to a difficult cost-benefit analysis process required of the agency. “This is a very important issue, but there are a lot of things going on with the agency in terms of hours-of-service and CSA and on-board recorders, there are shifting priorities within the agency,” he said.

“Intuitively, we all believe that a trained driver is a safer driver,” he added. “But currently there is no federal standard.”