If rule-making at the Federal Motor Carrier Safety Administration continues this fall the way it’s been going, the agency may need electronic on-board recorders to keep track of its own legal team.
A full slate of regulatory initiatives and programs is creating a new array of court challenges as the agency approaches deadlines for key measures that, taken together, would remake important segments of trucking operations.
The agency already is engaged in a legal battle with the Owner-Operator Independent Drivers Association over its attempt to require some carriers to install electronic onboard recorders on their trucks. Now the agency is the target of a Teamsters lawsuit attacking its cross-border trucking deal with Mexico.
Looming is an even bigger battle over what is arguably the FMCSA’s most ambitious regulatory goal: truck driver hours-of-service reform.
The agency is almost certain to face a legal challenge from the trucking industry or labor and safety advocates when it releases its final HOS rule in October.
The conflict could wind up in Congress this year, as it did in 2000, when Republicans killed a Clinton-era driver HOS proposal by stripping funding for the rule-making from the then-new FMCSA. In 2004, Congress again stepped in to keep the 11-hour HOS rule in place while the FMCSA drafted a new court-ordered rule.
This time, Republicans may add the FMCSA’s driver hours rule to a growing list of federal regulations they claim kill jobs by imposing higher costs on businesses. President Obama included the HOS proposal in an Aug. 30 letter to Speaker of the House John Boehner, R-Ohio, listing pending regulations that would cost businesses $1 billion or more. The final HOS rule also could become embroiled in the fracas over federal transportation spending and the reauthorization of a multiyear transportation bill, which could prove an attractive vehicle for language limiting the FMCSA’s rule-making reach.
Nearly 150 members of Congress already are on record opposing the FMCSA’s proposal to drop the daily driving limit from 11 to 10 hours and eliminate the provision that allows truckers to reset their weekly clocks after 34 hours off-duty.
The American Trucking Associations is urging the Office of Management and Budget to bring “a very high level of scrutiny” to the FMCSA’s final rule, arguing the proposed rule released last year would reduce wages for drivers and raise costs for trucking companies, adding up to billions of dollars in lost productivity.
“These inefficiencies and costs would deal a serious and sustained blow to the huge ‘tangible goods’ economy that trucking supports, affecting not only shippers of freight but ultimately consumers,” the association said in a letter to Cass Sunstein, administrator of the OMB’s Office of Information and Regulatory Affairs.
The debates over hours-of-service and electronic on-board recorders, or EOBRs, are closely linked. The FMCSA wants more carriers to use on-board devices to electronically log driver hours-of-service, eliminating paper logbooks and, presumably, creating records of driver activities that are more detailed and reliable.
An EOBR mandate of some type has been under consideration since 2003. The FMCSA’s goal is to reduce or prevent the falsification of driver records, increase compliance with the rules and improve safety. But OOIDA argues mandating the use of EOBRs violates drivers’ privacy rights and could lead to harassment by dispatchers. “Companies can and do use technology to harass drivers by interrupting rest periods,” said Todd Spencer, OOIDA’s executive vice president. “They can contact the driver and put on pressure to get back on the road to get the most of his or her on-duty time, regardless of how fatigued a driver may be.”
The potential for harassment was behind the Aug. 26 decision by the U.S. Court of Appeals for the 7th Circuit overturning a limited EOBR mandate the FMCSA introduced last year. That rule would require carriers found to have more than 10 percent of their driver logs in violation of the HOS rules to install EOBRs in all of their vehicles. The FMCSA has ordered some carriers to install EOBRs.
But the appellate court found the agency didn’t do enough to meet its legal obligation under the 1988 Truck and Bus Regulatory Safety and Regulatory Reform Act to ensure the devices “are not used to harass vehicle operators.”
“The word ‘harass’ appears only once in the entire rule-making,” the court said in its decision. “The agency should have revealed how it drew the line between legitimate measures designed to assure productivity and forbidden measures that harass.”
The court suggested a study comparing companies using EOBRs with others that don’t to “measure any effect that requiring EOBRs might have on driver harassment.”
The EOBR decision echoed the FMCSA’s legal struggles over the past decade as the agency changed its hours-of-service rules. Federal courts struck down the FMCSA’s new rules twice, and another challenge ended in a settlement with the Teamsters union and Public Citizen and the agency’s current rule-making.
The court’s decision also set another hurdle for the FMCSA to leap in crafting a final rule that would require all interstate carriers to use EOBRs. The agency on Jan. 31 proposed a rule that would give truckers three years to comply with a mandate.