FMCSA to Conduct Research on Possible EOBR Harassment

The Federal Motor Carrier Safety Administration said last week it will conduct research surveys of motor carriers, truckers and technology vendors in an attempt to meet a court requirement that electronic onboard recorders are not used to harass truck drivers.

FMCSA’s plan was outlined in a Feb. 13 Federal Register posting. The agency said it is going to prepare a supplemental — or second — proposed EOBR rule, but it may not be published until later this year or early 2013.

FMCSA declined to name the contractor that will conduct the surveys, the methodology that would be used, or how long they were expected it would take to complete.

But FMCSA did say it also planned to hold public “listening” sessions on the driver-harassment issue, and the agency has asked its Motor Carrier Safety Advisory Committee to assist in developing material to support the new EOBR rule.

FMCSA proposed a mandate last year that would have required nearly all interstate carriers to use EOBRs. That followed a 2010 EOBR rule that initially targeted the worst hours-of-service violators.

However, the agency withdrew its plan late last year after the U.S. Court of Appeals for the Seventh Circuit ruled in August that FMCSA failed to ensure that motor carriers would not use the EOBRs to harass drivers (9-5-11, p. 1).

The ruling was in response to a legal challenge by the Owner-Operator Independent Drivers Association, which alleged that carriers could use EOBRs to push drivers to stay on the road, even if they are fatigued.

FMCSA’s Federal Register notice followed recommendations from its advisory committee on Feb. 8. The committee said FMCSA should consider civil-penalty sanctions as deterrents for harassment, investigate “formal, non-frivolous” driver harassment complaints and consider if law enforcement has the authority to cite a carrier for a harassment violation.

The committee also recommended that carriers limit contact with drivers during work time and not repeatedly contact drivers when they are off duty.

On the other hand, the committee said that trying to regulate the difference between productivity measures and carrier actions that result in harassment is difficult because: “It should be judged by a standard of reasonableness that could be interpreted differently, based on a specific factual circumstance.”

Rob Abbott, American Trucking Associations vice president of safety policy — a member of the committee — suggested that some EOBR opponents may object to close carrier supervision, and as such, they’re concerned about EOBRs.

“To that end, I think they would do whatever they can to limit the availability of EOBRs to be used to supervise drivers,” Abbott said in an interview.

Todd Spencer, OOIDA’s executive director, said in an interview that EOBRs are not even an effective tool to monitor if a driver is fatigued.

“EOBRs can’t tell if a driver’s tired,” Spencer said. “The EOBR is used by carriers to push drivers.”

In its ruling last year, the appeals court suggested the agency address the distinction between productivity — a permitted use of EOBRs — and harassment. It said FMCSA should describe precisely what will prevent harassment from occurring when EOBRs are mandated.

“The agency needs to consider what types of harassment already exist, how frequently and to what extent harassment happens and how an electronic device capable of contemporaneous transmission of information to a motor carrier will guard against (or fail to guard against) harassment,” the court said.

The court said another obvious way to address the issue would be to study problems with EOBRs already in use, and to do a comparison with carriers that do not use the devices.