On June 4, 2012, a law that had been on the books for several years was scheduled to go into effect, and would have drastically impacted the way the trucking industry operates, and the way we defend commercial transportation cases. However, the Federal Motor Carrier Safety Administration (FMCSA) and a Federal Appellate Court put the brakes on this law.
The law, known as, Electronic On-Board Recorders (EOBR) for Hours-of-Service (HOS) Compliance, 49 C.F.R. Parts 350, et. al., 75 Fed. Reg. 17208, was set to incorporate new performance standards for EOBR installed in all commercial motor vehicles (CMV) manufactured on or after June 4, 2012. The law would have also required motor carriers that have demonstrated “serious noncompliance” with the HOS rules to install EOBR as of June 4, 2012, on all CMV, regardless of the date the vehicle was manufactured.
However, on May 1, 2012, the FMCSA decided that the EOBR law would be rescinded – and should have no effect on June 4, 2012. (Federal Register Volume 77, Number 93, Rules and Regulations pp. 28448). This decision was in direct response to a recent Seventh Circuit Court of Appeals case, Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carriers Safety Admin., 656 F.3d 580 (7th Cir. 2011), which vacated the law, finding it arbitrary and capricious, since it failed to "ensure that the devices are not used to harass vehicle operators." 49 U.S.C. § 31137(a). This case was decided after three commercial truck drivers, and a drivers’ association, sought the Courts’ review of the law on several grounds.
Since the law was rescinded, there have already been announcements of a new/revised law that is planned to be put in place. Speaking at the Commercial Carrier Journal’s Spring Symposium, on May 22, 2012, the Administrator of FMCSA, Anne S. Ferro, announced that the FMCSA is preparing a Supplemental Notice of Proposed Rulemaking on EOBR, that is slated to be issued later this year, or in 2013.
Indeed, there are several possible benefits from EOBR. The use of EOBR should improve driver log and tracking accuracy, which in turn will help reduce HOS violations. This in turn could lead to less driver fatigue on the roadway, and possibly a decrease in accidents. Ideally, this would lead to fewer injuries, claims and lawsuits.
There is of course also the downside to consider, which as highlighted by the Court OOIDA. EOBR may reduce a driver’s privacy and sense of independence. There are also likely going to be instances of electronic and/or computer based errors with recording HOS. Finally, there is a financial impact to implementing new equipment capable of electronically recording HOS. The FMSCA puts the estimated cost of electronic logging devices between $500 and $800 a year, per vehicle.
With the cost / benefit analysis having been contemplated by the Federal Legislature as well as commercial transportation leaders, it seems inevitable that despite the temporary hold on EOBR legislation, EOBR will be a part of the future in commercial transportation and transportation litigation.
For any questions regarding EOBR or HOS rules, please do not hesitate to call Reminger’s Trucking & Commercial Transportation Department.