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Trucking news: Court puts the brakes on feds’ push for ‘black boxes’

By John D. Schulz, Contributing Editor
September 12, 2011

In a major victory for independent truck drivers fearing “big brother” harassment, the government has been forced into the legal slow lane in its attempt to crack down on unsafe truckers.

The federal government’s attempt to mandate electronic onboard recorders (EOBRs)—the so-called “black boxes” that record everything from speed to braking attempts during crash incidents—has run into a serious legal roadblock.

In a major blow to its truck safety reform program, the 7th Circuit U.S. Court of Appeals has told the Federal Motor Carrier Safety Administration (FMCSA) to go back to the legal drawing board on this ruling. Experts say the rule could be delayed as long as two years, perhaps longer.

That’s because the court appeared to hint that the overall EOBR rulemaking process violated the 4th Amendment of the U.S. Constitution that forbids illegal searches and seizures.

“We conclude that the rule cannot stand because the Agency failed to consider an issue that it was statutorily required to address,” the court said in its ruling in late August.
 
Specifically, the court ruled that FMCSA did not take adequate steps in the regulatory process to assure that the black boxes “are not used to harass vehicle operators.”

That was a major legal victory for the Owner-Operator Independent Drivers Association (OOIDA).  OOIDA had sued the government on grounds that EOBRs could be used to pressure drivers to drive when tired. The court agreed.

For shippers, the ruling means another layer of uncertainty in the regulatory process regarding the trucking companies they utilize. Already, the government is mulling whether to reduce the legal hours of service truckers can operate by one hour. That ruling is expected late this year or early 2012.
 
EOBRs, which cost about $800 on the low end but can run as much as $3,000 depending on the amount of add-on electronic capabilities, were a central tenet of the government’s attempt to crack down on unsafe operators. They are attached internally to commercial vehicles and automatically record the number of hours drivers spend operating vehicles.
 
At the outset, they were being mandated in truckers operated by about 5,700 carriers that have been deemed to have significant HOS violations. That ruling was to have gone into effect in mid-2012, but now is delayed indefinitely. Ultimately, trucking officials expected EOBRs to be mandated on all new trucks later in the decade, but that prospect is now anything but clear.
 
The court’s ruling was worded so strongly against the government, trucking experts say privately that any attempt to mandated EOBRs on all 700,000 truckers registered at the Department of Transportation will need to be carefully crafted to ensure privacy rights for individual truck drivers.
 
“The agency needs to consider what types of harassment already exist, how frequently and to what extent harassment happens, and how an electronic device capable of contemporaneous transmission of information to a motor carrier will guard against (or fail to guard against) harassment,” a three-judge panel in the 7th Circuit said in its ruling.
 
That is almost precisely what OOIDA had argued.
 
“Companies can and do use technology to harass drivers by interrupting rest periods,” OOIDA Executive Vice President Todd Spencer said after the ruling. He said the court’s decision focused on harassment issues but also indicated there were other “problematic” issues part of the EOBR rule.

An internal analysis conducted earlier by FMCSA as part of its rulemaking process has said that “companies use EOBRs to enforce company policies and monitor drivers’ behavior in other ways.”
 
Many shippers and carriers have both told LM that if used effectively and correctly EOBR usage would be a main cog in future driver safety efforts and initiatives. Several large fleets, including U.S Xpress and Werner Enterprises, already have outfitted their fleets with EOBRs because of scheduling efficiencies and payroll accuracy.

U.S. Xpress Co-Chairman and President Pat Quinn recently told LM that the drivers at his $1.4 billion company, the nation’s sixth-largest TL carrier, have “adapted well to the use of electronic logs,” and has made them more efficient. He also said EOBRs made for safer trucking operations because they help eliminate HOS violations and fatigued driving.
 
The EOBR rulemaking has been under consideration by the government for more than a decade but took hold last year when Sens.Mark Pryor, D-Ark., and Lamar Alexander, R-Tenn introduced the “Commercial Driver Compliance Improvement Act,” which would require trucks have electronic on-board recorders (EOBRs) devices within three years.
 
Before last month’s court decision, there has been sentiment that these devices could limit overall truck capacity because drivers would be held to a stricter hours of service compliance than is currently possible through the use of paper logs.
 
Under the EOBR proposal, fines would be steep, as much as $11,000 for each offense.
 
But whether the government ever gets a chance to collect such fines is problematic at best. There is another aspect, raised recently by Public Citizen advocacy group, that questions the government’s cost-benefit analysis of EOBRs. Although the court panel did not directly address that issue, it left the door open for further review.
 
“Rather than reach beyond what is strictly necessary here, prudence dictactes that we leave for another day any question that might arise in connection with whatever new rule the agency decides to adopt,” the court said.
 
FMCSA officials declined comment, saying they were reviewing the court’s decision to decide their next month. The American Trucking Associations, which supported FMCSA’s efforts to mandate the adoption and use of EOBRs, was standing by that sentiment.
 
“FMCSA’s research shows that compliance with the current hours-of-service rules is strongly associated with reduced crash risk,” ATA President and CEO Bill Graves said in a statement. “Of course, electronic logging devices are an important tool for improving hours of service compliance.”
 
However, Rob Abbott, ATA vice president for safety policy, told ATA’s newspaper, Transport Topics, that the legal issues raised by the court’s decision were “complicated and substantial,” and it could be several years before a final rule passes muster.

About the Author

image
John D. Schulz
Contributing Editor

John D. Schulz has been a transportation journalist for more than 20 years, specializing in the trucking industry. He is known to own the fattest Rolodex in the business, and is on a first-name basis with scores of top-level trucking executives who are able to give shippers their latest insights on the industry on a regular basis. This wise Washington owl has performed and produced at some of the highest levels of journalism in his 40-year career, mostly as a Washington newsman.


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