DOT Suffers an EOBR Setback

Posted on September 1, 2011 
Filed Under HOURS OF SERVICE, IN THE NEWS

Last week, a US Court of Appeals threw out one of DOT’s Electronic On-Board Recorder (EOBR) rulemakings. To clarify, there are two EOBR rulemakings. The first is a final rule, which stated that carriers who are found to have hours of service violations will be forced to put EOBRs in their trucks starting in June, 2012. The second is the proposed rule which was issued in January, 2011. This is the one which says all trucks which require logs will be forced to put EOBRs in them at some unspecified future date…. probably 2014 or 2015.

Since the 2014, sweeping, industry-wide edict is only a ‘proposed’ rule, no one can sue DOT over it. Yet. The first rule, which would have been effective next year, was challenged in court by the Owner Operator Independent Driver Association (OOIDA). They challenged it on a number of grounds. One of which was “harassment”. Apparently in the law which gives DOT the authority to monitor drivers’ hours of service, it says whatever they come up with cannot be harassing to the drivers. The Court, by a 2-1 vote, found DOT did not sufficiently address the harassment issue, and threw out the 2012 rule.

So, what does it mean? I am a well-known opponent of government-mandated EOBRs. If they work for you and your fleet, by all means, feel free to use the e-logs. However, carriers who do not want to use the EOBRs should not be forced to do so. This decision is a good thing. Not a great thing. A good thing. I think what has happened here could likely be a legal technicality, which might only be a temporary roadblock to the sweeping EOBR mandate wanted by the Obama Administration and the American Trucking Association.

The DOT made very little effort in their rulemaking to address the harassment issue, which is one of the things the Court pointed out. The law says the monitoring system cannot be “harassing”; OOIDA argued this was harassment. DOT in their rulemaking virtually ignored the harassment clause in the law, merely stating, “yes, we considered that, this isn’t harassment”. Basically they made so little effort on this point, the Court had no choice but to rule for OOIDA.

So what happens next? DOT as we speak, is huddling, deciding how to save their EOBR mandate, which they very well may be able to do. The Court did not say this type of rulemaking was illegal, or could never happen. It merely laid out a number of points it wanted DOT to address on the harassment issue. My guess is once DOT does address these points, the Court will waive its objections on the harassment issue.

The points the Court wanted addressed are not things which DOT can throw together in a week or even a month. In fact, there is a very good chance they will decide to scrap the remedial EOBR rulemaking struck down by the Court altogether, and focus their efforts on the pending final rulemaking which will apply to virtually all carriers in 2014 or 2015.

The clock is starting to turn against DOT. Things move at a glacial pace anyway at DOT, and the Court just added a huge pile of work for them to do in order to force all motor carriers to use EOBRs. Even before this Court decision, DOT said it would probably be next summer before they had their final EOBR rulemaking finished. They probably need to issue the rulemaking before November 6, 2012.

Why that date? That is date of next Presidential election. If President Obama loses, that means DOT Secretary Ray LaHood is out, too. Granted, these rules often take on a life of their own, especially if the ATA is pushing it. The next President could very well let all of the previous Administrations rulemakings carry forward. On the other hand, if the economy is still in the tank, which it probably will be, the new President should be concerned about dumping more productivity-killing regulations on business. Of course, there’s probably a 50% chance Obama wins again, in which case EOBRs will be mandated. Look on the bright side: if Obama is re-elected, buying and using EOBRs will be the least of your worries.

Comments

3 Responses to “DOT Suffers an EOBR Setback”

  1. Ben Lujin on November 14th, 2011 10:13 pm

    So, if the rulemaking/regulation was tossed out, which also provided for “voluntary” usage of EOBRs. Then doesn’t that ALSO toss out the voluntary clause? thereby making EOBR usage illegal?

  2. Eric Arnold on November 14th, 2011 10:37 pm

    Yes, I saw OOIDA arguing that. I don’t know the answer, I would have to research it. I think the real-world answer is, the FMCSA is going to do nothing to discourage the use of EOBRs. In fact, they will continue to encourage the use of EOBRs. My position is, if you want to use EOBRs because it makes your company more efficient, and it lets you know where your drivers are: go for it. However, the government should not be able to force someone to use an EOBR if they don’t want to. If your employer makes you do it, that’s one thing, but the government shouldn’t have to power to do that.

  3. Ben Lujin on November 14th, 2011 10:42 pm

    So, it’s ok for an employer to voluntarily continue to use EOBRs, regardless of whether or not said employer is using it to harass employees?

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