FMCSA will not fight ruling, moving ahead on new EOBR mandate
FMCSA Administrator Anne Ferro was noncommittal on the direction the agency will take with a new EOBR rule — but said the rulemaking process will not “skip a beat” because of the court decision.
The Trucker Staff
10/21/2011
WASHINGTON — The Federal Motor Carrier Safety Administration will not appeal a court order to vacate the rule requiring electronic logs for carriers with significant Hours of Service violations.
FMCSA’s decision was included as part of an Oct. 7 official notice regarding an upcoming meeting of the Motor Carrier Safety Advisory Committee. That meeting had been called to discuss technical details related to electronic on-board recording devices and paperless logging systems. Even with the 2010 EOBR rule to be removed from federal regulatory code, the committee will continue its work in support of an EOBR rule applicable to all interstate carriers using Records of Duty (RODS) logbooks. FMCSA proposed the broader rule last January.
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Siding with the Owner-Operator Independent Drivers Association and three of its members, the U.S. Court of Appeals for the Seventh Circuit on Aug. 26 said FMCSA did not meet a specific requirement set by Congress who, in the Truck and Bus Safety and Regulatory Reform Act of 1988, “foresaw that monitoring devices on trucks might be used to enforce Hours of Service rules, and that these devices could potentially be used to harass drivers.”
Harassment, according to the OOIDA petition, would encompass the sort of pressure carriers exert over drivers. This includes ordering them to keep driving — whether tired or not — as long there is time remaining under the Hours of Service limit, as monitored by an EOBR system.
Additionally, the regulation would have imposed EOBRs on all drivers for the impacted carriers, including drivers with no history of log violations. The remedial rule was to take effiect June 4, 2012.
In prefacing its decision, the court hinted at the complex deliberations likely to follow future EOBR regulations: “The briefing raises a litany of issues that would make for a difficult and exhaustive Administrative Law final exam.”
Interviewed Oct. 17 at the American Trucking Associations’ Management Conference and Exhibition, FMCSA Administrator Anne Ferro was noncommittal on the direction the agency will take with a new EOBR rule — but said the rulemaking process will not “skip a beat” because of the court decision.
“Our lawyers are continuing their analysis of the ruling so we can get to the heart of what we need to do to get the right pieces in place,” Ferro told The Trucker. “We’ve had some very intense work with the MCSAC on EOBRS as well as with industry stakeholders, EOBR manufacturers, with safety advocates and with law enforcement. We want to make sure we have the technology requirements for these EOBRS to be put in place that meet our expectations of an effective enforcement tool.”
Indeed, while the stricken rule will serve as the “template” for a new rule, the MCSAC EOBR subcommittee will no longer be constrained by some of the previous rule’s specifications, explained MCSAC member David Parker, senior legal counsel for Great West Casualty.
“Before we were trying to tweak it without amending it, where you’d have to do a new rulemaking,” said Parker, speaking at an ATA conference session. “This allows everyone in that room to add some additional wording to better suit where we are.”
The next MCSAC meeting will be Oct. 24-27 in Arlington, Va.
Kevin Jones of The Trucker staff can be reached for comment at kevinj@thetrucker.com.
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