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FMCSA to survey drivers, carriers on EOBR/driver harassment issue

The Owner-Operator Independent Drivers Association challenged the rule in court based in part on concerns that EOBRs could be used to harass drivers.

The Trucker Staff

12/12/2012

WASHINGTON — The Federal Motor Carrier Safety Administration wants to explore the issue of driver harassment and coercion and determine the extent to which electronic onboard recorders could be used to either harass and/or monitor driver productivity.

To do so, the agency is proposing a driver and carrier survey on the topic, according to an Information Collection Request (ICR) that will appear in Thursday’s Federal Register

An ICR is a set of documents that describe reporting, recordkeeping, survey or other information collection requirements imposed on the public by a federal agency.

The request must be approved by the Office of Management and Budget before a collection begins.

Through various processes, the FMCSA said it wants to survey more than 1,000 respondents, including over 500 drivers and 400 carriers.

“These surveys will explore the relevant issues from the point of view of both drivers and carriers towards the use of EOBRs,” the ICR said. “The survey results will inform the FMCSA in its ongoing rulemaking on EOBRs, including potential countermeasures or best practices that will ensure that EOBRs are not used to harass or coerce CMV drivers.”

The agency said it expected the surveys would reveal extent to which respondents believe that the use of EOBRs may result in coercion of drivers by motor carriers, shippers, receivers and transportation intermediaries.

The agency has been attempting to place EOBRs in commercial vehicles since it issued a final rule on April 5, 2010, that would have required the devices be installed by motor carriers with serious Hours of Service noncompliance.

The Owner-Operator Independent Drivers Association challenged the rule in court based in part on concerns that EOBRs could be used to harass drivers.

On Aug. 26, 2011, the U.S. Court of Appeals for the Seventh Circuit vacated the April 2010 rule, saying that contrary to statutory requirements, the agency had failed to address the issue of driver harassment, including how EOBRs could potentially be used to harass drivers and ways to ensure that EOBRs were not used to harass drivers.

The court also noted that the agency had not estimated the safety benefits of EOBRs currently in use and how much EOBRs increased compliance.

Before the court decision was rendered, the agency had begun work on a new EOBR rulemaking that would have required EOBRs be installed in all commercial vehicles.

But the proposed rule, which would have become effective three years after the date of publication, dealt with driver harassment in virtually the same manner as the rule that was vacated.

So the agency subsequently issued a supplemental notice of proposed rulemaking to address the issues raised by the court.

“The purpose of these surveys is, in part, to respond to the court’s suggestion that

the agency research the issue of driver harassment based on use of the device,” the ICR said.

The Department of Transportation’s rulemaking calendar shows the SNPRM will be issued by late June 2013 with a comment period to follow.

However, since the issuance of the SNPRM, Congress entered the picture and included an EOBR mandate in the new surface transportation bill.

The agency has one year to write the rule, and then drivers would have another two years before they would have to start using the devices, the new law says.

The legislation also retained the requirement that regulations ensure EOBRs are not used to harass drivers and requires certain regulations governing commercial vehicle safety ensure that drivers are not coerced into operating in violation of federal regulations.

The ICR does not indicate when the survey results will be issued.

The Trucker staff can be reached to comment on this article at editor@thetrucker.com.

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