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SPECIAL REPORT: EOBR rule needs a lot of work, commentators say
TORONTO -- The U.S. DOT's controversial plan to mandate EOBRs (electronic on-board recorders) for repeat hours-of-service violators is far from perfect, most commentators say. But opinion of what to do about it varies wildly -- with some suggesting a few amendments be made to the rule, while others demanded the plan be scrapped until a tougher mandate is drafted. Some critics want EOBRs cancelled for good. Such were some of the views submitted to the Federal Motor Carrier Administration, which just closed the comment period for the notice of proposed rulemaking (NPRM) on EOBRS for the purpose of monitoring HOS compliance. In January, the FMCSA announced that EOBRs -- once commonly referred to as "black boxes" -- will be required for a minimum of two years for carriers and independent owner-ops deemed "most likely to be a safety hazard on the road." Carriers charged with two serious HOS review violations (with a rate of violation greater than 10%), in a two-year period, will have to fit their entire fleet with EOBRs.

The CTA says the EOBR rule should include a 'close to
home' provision which allows enforcement flexibility.
About 930 carriers and 17,500 drivers would be affected if the rule kicked-off today. Last week, FMCSA Administrator John Hill told the Senate Commerce, Science, and Transportation Subcommittee on Surface Transportation that the agency has begun reviewing the comments made in the Docket. Fleets Weigh In: As a prominent member of the American Trucking Associations, J.B. Hunt supports EOBRs, but in its comments the company urged that the technology should be mandated "across the board, or with very limited exceptions, with no phase in period differential based on size." "If that is not a possibility,' writes David Whiteside, senior director of compliance and J.B. Hunt Transport, "it is essential that as many non-compliant carriers as possible be required to install the EOBRs and that as many other carriers as possible be induced to install them through incentives. Otherwise, a bad environment could develop for voluntary companies if a general perception in the enforcement community develops that companies with EOBRs are bad companies." On this point at least, heavyweight carriers like J.B. Hunt are in agreement with advocacy and safety group Public Citizen, which is lobbying for an industry-wide standard, and has led several lawsuits against Washington over its hours-of-service policies. "The FMCSA has once again failed to propose making installation of these devices mandatory, delaying the potential for these devices to fundamentally change the face of motor carrier safety," writes President Joan Claybrook, whose group convinced a judge to order the FMCSA to rewrite its HOS rules in 2004. Claybrook claims the HOS rules "will continue to be insufficiently enforced" under this proposed rule.

OOIDA is concerned EOBRs will further blur the fine line
between independent truckers and carrier employees.
The ATA, which backs EOBRs, didn't go so far as to suggest a blanket rule for the whole industry. It did say, however, that FMCSA has "core work to perform before issuance of a final rule regarding EOBRs." The ATA says the agency needs to, among other things, incorporate research recommendations regarding safety technology deployment; resolve issues pertaining to voluntary acceptance of EOBRs and provide more meaningful incentives to encourage voluntary adoption. Furthermore, ATA wants FMCSA to conduct a pilot program to determine the functionality and benefits of EOBR usage. The Canadian View: The Canadian Trucking Alliance, which was the first trucking association in North America to officially endorse EOBR legislation, says a performance-oriented approach to the selection of onboard technology is essential to allow carriers to incorporate EOBRs into existing or planned operational systems. However, CTA's CEO David Bradley writes, FMCSA must also include "enforcement tolerances" in the final rule. "Under most circumstances, it would be virtually impossible for a driver who drives the maximum allowable hours to shut down precisely at the driving time limit," he rightly points out. "If driving occurs a few minutes after the 14-hour on-duty limit, or if a driver takes slightly less than the required 10-hour off-duty period, these minor variances would not appear in a paper log. When an EOBR is in use, however, the driver is afforded no such discretion." Bradley, therefore, recommends that FMCSA consider allowing minor variances in driving -- a "close to home provision," a he calls it -- for on-duty and off-duty time, up to a specified limit. "We would consider it to be a reasonable enforcement approach to avoid unwarranted penalties." The Owner-Operator Independent Drivers Association, on the other hand, says it can't support EOBRs -- at least not until they "could prevent the manipulation of a driver's work schedule and respect drivers' privacy rights." "OOIDA is also certain that EOBRs will make it easier for motor carriers to harass drivers," writes the group, which is dubious that black boxes are more reliable or accurate than paper logs in monitoring HOS compliance. The owner-op association is also concerned that EOBRs will make it easier for independent truckers to be classified as employees. "The level of EOBR monitoring and control over drivers would significantly compromise the independence of owner-operators and could convert (their) traditional status from contractor to employee under traditional common law analysis." For his part, FMCSA Administrator Hill stood firm on the plan to publish a final rule, indicating that a universal rule for all trucks isn't a likely possibility. "FMCSA recognizes the views of many in the highway safety community and the general public about mandating EOBRs," he says. "However, there are several million (commercial vehicles) on America's roads today. Our estimated costs for mandating EOBRS on every vehicle in the fleet greatly exceeded the estimated benefits…"
 
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