FMCSA to Prepare a Supplemental Proposed Rule on HOS EOBR Requirements, Driver Harassment
The Federal Motor Carrier Safety Administration is announcing its intent to prepare a proposed rule to supplement a 2011 proposed rule that would make the use of electronic on-board recorders (EOBRs) mandatory for motor carriers required to maintain Records of Duty Status (RODS). FMCSA states that this supplemental proposed rule will address the technical requirements of EOBRs and the driver harassment issue, and is needed due to an Appeals Court decision which vacated a 2010 final rule in its entirety.
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2010 Final Rule Vacated in Aug 2011 as Did Not Address “Driver Harassment”
The 2010 FMCSA final rule established new technical requirements for EOBRs. It also required the limited, remedial use of EOBRs for motor carriers with significant Hours of Service (HOS) violations (e.g. a 10 percent violation rate for a HOS regulation).
Prior to its June 2012 compliance date however, the Court of Appeals for the Seventh Circuit vacated the final rule in its entirety. The Court held that the FMCSA 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, as required by 49 USC 31137(a).
(As a result of the August 2011 vacatur, carriers relying on electronic devices to monitor HOS compliance are currently governed by the Agency’s previous rules regarding the use of automatic on-board recording devices (49 CFR 395.15). FMCSA adds that it will be publishing a final rule that removes the 2010 final rule’s regulatory text from the regulations.)
A Feb 2011 Proposed Rule Was Issued Before Vacatur, to Expand Use of EOBRs
Prior to the Court’s ruling, FMCSA issued a proposed rule to expand the scope of EOBR use to a broader population by requiring all motor carriers currently required to maintain RODS for HOS recordkeeping, to use EOBRs by a three-year deadline.
FMCSA extended the February 2011 proposed rule’s public comment period due to the pending litigation on the 2010 final rule, and then specifically requested comments to address the issue of driver harassment.
Supplemental Proposed Rule Needed to Provide Technical Requirements, Further Address Harassment
Because the 2011 proposed rule relied on the technical specifications provided in the 2010 final rule that is now vacated, FMCSA states it must issue a supplemental rule to again propose and seek comment on EOBR technical standards before any final rule concerning use of an EOBR device is issued. FMCSA will also further address the issue of driver harassment, in line with the Court’s instructions in the vacatur.
To augment the Agency’s efforts to obtain comprehensive data to support this supplemental proposed rule, FMCSA plans to do the following: (1) hold listening sessions on the issue of driver harassment; (2) ask the Motor Carrier Safety Advisory Committee (MCSAC)1, an advisory committee to FMCSA, to assist in developing material to support this rulemaking, including technical specifications for EOBRs and their potential to be used to harass drivers; and (3) conduct research by surveying drivers, carriers, and vendors regarding harassment issues.
Details of the public listening sessions and the MCSAC's work will be published in subsequent Federal Register notices.
1In June 2011, a MCSAC subcommittee began work on Task 11--04 (Electronic On-Board Recorders (EOBR) Communications Protocols, Security, Interfaces, and Display of Hours-of-Service Data During Driver/Vehicle Inspections and Safety Investigations). The subcommittee examined technical issues relating to the electronic transfer of HOS information from CMVs to law enforcement personnel at the roadside raised by the 2010 final rule. The subcommittee met several times and made its final report to the full committee on December 5 and 6, 2011. On December 16, 2011, the full committee made an official recommendation to FMCSA.
(See ITT's Online Archives 11083017 for summary of the U.S. Court of Appeals for the Seventh Circuit's decision to vacate the 2010 final rule.
See ITT's Online Archives 11020137 for summary of FMCSA 2011 proposed rule to require all motor carriers required to maintain RODS for HOS recordkeeping to use EOBRs, along with the list of the supporting documents that motor carriers currently required to use RODS would still be required to maintain and keep; the extension of its comment period 10031019 and FMCSA seeking additional comment on the issue of driver harassment 11041315.
See ITT's Online Archives 11122322 for summary of FMCSA 2011 final rule on HOS, with compliance delayed for some changes.
See ITT's Online Archives 10040515 for summary of FMCSA 2010 final rule incorporating new performance standards for EOBRs, as well as requiring EOBRs for certain noncompliant carriers. This final rule was subsequently vacated.)
FMCSA contact: Deborah Freund (202) 366-5370