The Federal Motor Carrier Safety Administration, large motor carriers and DOT enforcement are doing business as usual. OOIDA says the agency is acting as if the U.S. Court of Appeals for the Seventh Circuit didn’t toss out the agency’s EOBR regulation – putting the agency and motor carriers alike in noncompliance.
Federal Judge Diane P. Wood issued the court’s opinion on Aug. 26 that vacated the agency’s EOBR regulation, which was referred to in the industry as the “bad actor” rule. She ruled that the agency had not properly addressed driver harassment.
The regulation tossed by the court didn’t just mandate the use of EOBR on chronic HOS- violating companies. It set specifications for the units; allowed for voluntary use of the units; and gave EOBR-using motor carriers a free pass on some of the supporting documents regulation.
Problem is, FMCSA, motor carriers and law enforcement are cruising along as if the reg is still on the books, according to the Owner-Operator Independent Drivers Association. The Association also says evidence exists that motor carriers and EOBR manufacturers are having closed door meetings with FMCSA officials to try and breathe new life into the mandate.
OOIDA President Jim Johnston sent letters on Nov. 8 to both FMCSA’s Chief Counsel Alais L.M. Griffin and FMCSA Administrator Anne Ferro demanding that the agency fall into step with the court’s ruling and the rules governing the process of developing regulations.
“I am writing to require that the Office of Chief Counsel take immediate action to bring FMCSA and its MCSAP enforcement partners as well as certain motor carriers into compliance with the current state of the law regarding EOBRS,” Johnston wrote to Griffin.
He pointed out that with the regulation removed from the books, motor carriers can now only use devices that were legal under the regulations prior to June 2010 when the reg went into effect, and they must resume maintaining all supporting documents.
There is also no longer the provision in the regulation that allowed for the voluntary use of EOBRs – something that continues to happen even after the court’s ruling.
Johnston pointed to a recent Transport Topics article reporting that motor carriers such as Averitt Express and Greatwide Logistics Services are continuing to adopt the use of EOBRs. He said quotes from management at both companies suggest they do not understand the court’s ruling.
“There is no longer any provision in the rules for the adoption of a device called an ‘EOBR,’ either under and agency mandate or voluntary,” Johnston wrote. “FMCSA has the responsibility to inform both the industry and state law enforcement partners that motor carriers may not lawfully use EOBRs.”
The letters also challenge meetings FMCSA staffers have been having with various parties interested in an effort to implement a new EOBR rule – meetings Johnston says are a violation of the Administrative Procedures Act.
“The Administrative Procedures Act and Department of Transportation policy require FMCSA to make a record in the public docket of a pending rule of any ex parte communications between employees of the agency and private parties concerning the rulemaking,” Johnston wrote.
“Ex parte communication” means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given.
Johnston again referred to a recent Transport Topics article that reported on meetings with a “consortium of technology vendors” whose purpose is to “steer FMCSA to the most reasonable rulemaking.”
Yet none of the communications appear on the public docket regarding FMCSA’s still pending EOBR regulation, which was intended to mandate black boxes on all trucks.
Johnston is calling on the agency to place all ex parte communications regarding EOBRs on the docket, as required by the act.
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