Cover Story
The big squeeze
EOBR debate

By Land Line staff

Electronic on-board recording devices in commercial vehicles are not a new concept. And for OOIDA, it's a technology that the Association has long opposed and successfully challenged in court. Yet the FMCSA presses on, seeking additional authority from Congress for yet another mandate.

The Obama administration estimates the implementation of electronic on-board recording devices in commercial motor vehicles would cost $2 billion, making it one of the seven costliest regulations sought by administration.

Currently, it's moving along complicated regulatory and legislative tracks, so here's a timeline to keep you on track.

February 1990 – The National Transportation Safety Board recommended that electronic on-board recorders be made mandatory for all heavy-duty trucks.

August 1995 – Several highway safety and advocacy groups petitioned FHWA to require on-board recorders.

April 2000 – FMCSA issued a notice of proposed rulemaking to reform the 63-year-old hours-of-service regulation for commercial truck and bus drivers. The proposed rule would reduce the driving time allowed within a 24-hour period from the current maximum of 16 hours to 12 hours and would require use of on-board electronic recorders to document hours of duty.

April 2003 – The first revision of the HOS regs was announced, without an EOBR mandate.

July 2004 – The now infamous July 2004 court ruling (Public Citizen et al v. FMCSA) that tossed the FMCSA's first attempt at revamping the hours-of-service regulation since 1939 also scolded the agency for failing to estimate the costs and benefits of electronic on-board recorders.

September 2004 – In an apparent move to appease the court, FMCSA published an advanced notice of proposed rulemaking. However in the same month after the Institute for Electrical and Electronics Engineers established specs for EOBRs, FMCSA appeared lukewarm to the technology. "Just having device standards wouldn't by itself be enough to justify a rule requiring EOBRs," the agency stated in a press release.

February 2006 – FMCSA Administrator Annette Sandberg – who submitted her resignation Feb. 1, 2006 – told a trucking trade publication that unresolved issues with the hours-of-service regulations play a role in the EOBR rulemaking delay.

January 2007 – FMCSA moved forward with a notice of proposed rulemaking that would require EOBRs for so-called "bad actor" carriers in the industry.

April 2010 – FMCSA's electronic on-board recorder final rule was published in the Federal Register on April 5. It went into effect on June 4, 2010, with full compliance mandated by June 4, 2012. The first rule ordered trucking companies that have a 10 percent or greater violation rate of the hours-of-service regulations to be saddled with electronic on-board recorders.

June 2010 – OOIDA began paperwork to file a legal challenge, suspecting a full mandate would follow soon. The Association and three members filed a petition for review with the United States Court of Appeals for the Seventh Circuit on June 3. In addition to OOIDA, the plaintiffs include OOIDA Members William J. Culligan, Adam D. Burnett and Douglas A. Oldham.

September 2010 – OOIDA's predictions of full mandate begin to be reality. Mark Pryor, D-AR, and Lamar Alexander, R-TN, announced they would introduce a "stand alone" EOBR bill to the U.S. Senate. If passed into law, it would mandate that 100 percent of all "commercial motor vehicles involved in interstate commerce and subject to hours of service be equipped with EOBRs."

October 2010 – OOIDA filed a legal challenge of that FMCSA EOBR rule on grounds that there is no proof that the devices can accurately or automatically record a driver's hours of service and duty status, and that a 24-hour monitoring is a violation of a driver's Fourth Amendment rights.

January 2011 -- U.S. Sen. Frank R. Lautenberg, D-NJ, a member of the Senate Committee on Commerce, Science, and Transportation, applauded FMCSA's EOBR proposal. Lautenberg had long advocated that EOBRs be required on all commercial vehicles.

February 2011 –The FMCSA announced it would pursue a full mandate on EOBRs. This time the agency was proposing a 100 percent mandate of EOBRs. The proposed rulemaking was published April 13, 2011, in the Federal Register. Before issuing the final rule, the agency will hear from the public plus hold listening sessions.

March 2011 – Mark Pryor, D-AR, and Lamar Alexander, R-TN, announced they would re- introduce their "stand-alone" EOBR bill to the U.S. Senate requiring all CMVs to have EOBRs.

August 2011 – OOIDA wins a big one. On Aug. 26, a ruling from U.S. Court of Appeals for the Seventh Circuit forced the Federal Motor Carrier Safety Administration to vacate its initial EOBR rule because the agency failed to deal with the driver harassment issue.

It took only one of the three arguments raised by OOIDA for the court to toss the rule and send it back to the agency for further proceedings consistent with the ruling.

January-March 2012 – Nearly five months after the U.S. Court of Appeals for the Seventh Circuit tossed the electronic on-board recorder regulation, the agency was still promoting use of the devices. OOIDA filed a motion in late January seeking a cease-and-desist order on the current policies and practices by the Federal Motor Carrier Safety Administration to encourage the use of electronic on-board recorders.

The Seventh Circuit appellate court initially gave the agency until Feb. 6 to respond. The Department of Transportation sought a 30-day extension to respond to the cease-and-desist motion, but Judge Diane Wood only granted a 15-day extension, giving the DOT and FMCSA until Feb. 21 to respond.

Without giving a specific reason, on March 21, the U.S. Court of Appeals for the Seventh Circuit denied OOIDA's Jan. 19 motion. It asked for the court to direct FMCSA to "cease and desist from authorizing, sanctioning or in any way encouraging" using the EOBR to increase hours of service compliance until the agency issues a rule ensuring the devices will not be used to harass drivers.

March-April 2012 – As announced, the FMCSA holds listening sessions – one at MATS and one in April at Bellevue, WA.

April 2012 – As the two versions of the highway bill emerge from U.S. House and Senate, only the Senate version contains language for an EOBR mandate. Conferees will decide whether it stays or goes. LL