HOS scofflaw approach

The Federal Motor Carrier Safety Administration's proposal to require only motor carriers with serious hours-of-service violations to install electronic on-board recorders has left most trucking stakeholders breathing a sigh of relief.

The Federal Motor Carrier Safety Administration's proposal to require only motor carriers with serious hours-of-service violations to install electronic on-board recorders has left most trucking stakeholders breathing a sigh of relief. Many in the industry were concerned that installations would become mandatory, and were elated when the agency chose to focus their attention on a small percentage of scofflaws.

The proposal, published in the Federal Register January 18, only covers HOS and does not require any “black box” functions such as automated recording of vehicle speeds, brake applications and other vehicle operating data.

For mandatory EOBR installation, a carrier would have to have exhibited a 10% or greater violation rate based on HOS records reviewed during each of two compliance reviews conducted within a two-year period, according to John H. Hill, FMCSA Administrator. The carrier would have to install the EOBR within two years of a final rule and operate the recorders for at least two years. Violating carriers that already had equipped their vehicles with automatic on-board recording devices meeting agency standards — and could demonstrate to FMCSA that their drivers understand how to use the devices — would be exempt from new installations.

If regulations were to be issued today, about 930 of 650,000 commercial carriers would be subject to mandatory installations, Hill says. He adds that the agency currently doesn't have available any statistics on the fleet size of the typical scofflaw carrier, only that it affected about 17,500 drivers. He notes that these violations were carrier based and a mandatory EOBR directive would not follow drivers if they switched companies.

The proposal would allow for the collection of limited data: identity of the driver, duty status, date, time and location of the commercial vehicle, and distance traveled. It also would require use of global positioning system (GPS) technology or other location tracking systems to automatically identify the location of the vehicle.

The agency is using incentives to encourage voluntary installation of EOBRs, including revising the agency's compliance review procedures to permit examination of a random sample of drivers' records of duty status and providing partial relief from HOS supporting documents requirements if certain conditions are satisfied.

ATA, which had softened its position on EOBRs and began thinking of government-ordered installations as eventually inevitable, is pleased with the FMCSA's milder stance. “We support this incentive-based approach to the use of electronic on-board recorders,” says president and CEO Bill Graves.

Others are not so supportive. “This proposal is not going to remedy HOS violations,” says Rick Craig, Director of Regulatory Affairs for the Owner-Operator Independent Drivers Assn. “EOBRs still can not determine if a driver is sleeping, off-duty, or loading or unloading… waiting time is the still the issue.”

Joan Claybrook, president of Public Citizen, a group that has been highly critical of FMCSA's current HOS regulations, says: “We know that many more companies violate these rules because their drivers keep fake log books. Under the proposed rule, these scofflaws can continue to violate the law without consequences and put the public at risk.”

FMCSA has been under fire for most of the last decade. Its detractors complain that the agency offers proposals and rules that have note been scientifically or economically based (as well as behind schedule), and proposes rules that appear to be watered down in an attempt to stem potential litigation and placate large industry stakeholders.

In trying to cover all its bases, FMCSA in 2004 published an Advanced Notice of Proposed Rulemaking on EOBRs, a precursor to the current Notice of Proposed Rulemaking, a move used when regulators expect a great deal of controversy and want to make sure they receive wide public input.

Public comments will be accepted until April 18, 2007, and they are certain to be contentious.

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