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FMCSA officially rescinds remedial EOBR rule

WASHINGTON — The Federal Motor Carrier Safety Administration Monday officially rescinded the so-called remedial Final Rule on “Electronic On-Board Recorders for Hours of Service Compliance” issued in April 2010, a rule that was vacated by a court of appeals in August 2011.

The agency posted a notice in Monday’s Federal Register announcing the rescission.

Based on a suit filed by the Owner-Operator Independent Drivers Association, the court found that the FMCSA’s failure to address the issue of harassment as part of the rulemaking rendered the rulemaking arbitrary and capricious.

Although the court’s opinion focused on the remedial directive for carriers that demonstrated noncompliance with Hours of Service rules, the court vacated the entire rule.

The effect of the court’s decision was to void the changes to Title 49 of the Code of Federal Regulations. Title 49 of the CFR deals with transportation regulations.

The notice posted Monday takes the administrative steps necessary to remove language from the CFR that was added by the April 2010 final rule and to reinstate prior regulatory language consistent with the court’s decision.

Meanwhile, the FMCSA is moving forward with a proposed rulemaking issued in January 2011 that would require all carriers to use EOBRs and had hoped to have that rule in place sometime last year.

But the proposed rule — so-called EOBR II by industry stakeholder and which would have become effective three years after the date of publication — dealt with driver harassment in virtually the same manner as the rule that was vacated.

The appeals court decision on the April 2010 was a setback for EOBR II, FMCSA Administrator Anne Ferro said during a February 2012 speech, and now the new rule might not be issued in final form this year.

The agency has held two public listening sessions to get feedback on potential harassment issues.

The Trucker staff can be reached for comment at [email protected].

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