Trucking news: On-board recorders run into legal static from owner-operators

WASHINGTON — When it comes to electronic on-board recorders (EOBRs), independent truck driver owner-operators have one message to the government: stay out of my business.

The group representing the nation’s 1 million or so owner-operators has filed preemptive lawsuit in anticipation of the government’s first attempt to mandate EOBRs — or “black boxes,” as they are known in trucker-speak.

Even though government’s rule doesn’t take effect until 2012, the Owner-Operator Independent Driver Association has filed a preliminary legal challenge in anticipation of a broader mandate coming out of Washington that might affect all truck drivers. The Federal Motor Carrier Safety Administration (FMCSA) has pretty much hinted as much.

OOIDA recently filed a petition for review with the U.S. Court of Appeals, 7th Circuit, challenging the Federal Motor Carrier Safety Administration’s (FMCSA) proposal on black boxes. For now, the government says it only wants to mandate those devices—which are about the size of a Bible and cost between $2,000 and $3,000—on those “bad apple” carriers and drivers who have shown egregious safety violations.

Shippers should care about these devices because typically any large cost absorbed by their carriers—whether company drivers or owner-operators—is passed onto shippers through higher rates.

OOIDA officials say they fear once this first proposed limited rule goes into effect, it’s only a matter of time before a larger, broader rule gets issued requiring the black boxes in all trucks. The black boxes are widely in use in Europe and elsewhere. In fact, trucks operating within the European Union are required to have EOBRs, which eliminate paper logs and greatly increase compliance with hours-of-service regulations.

The issue is a hot-button one for drivers. For one thing, some drivers view the black boxes as an invasion of privacy, another example of creeping “Big Brother” government invading their in-cab space.

“The rest of the story is this agency (FMCSA) has pretty much made it clear this is the first step. They’ve kind of tipped their hands that they intend to go much further, said Todd Spencer, OOIDA’s executive director. “We have pointed out the shortcomings for years.”

For one thing, OOIDA claims that companies that have utilized the black boxes have no better safety ratings than companies that do not. Privacy is another concern. Data from a trucker involved in an accident could be used in any legal proceeding. Another issue is cost. At a time when all truckers are facing an increasing regulatory burden and higher fuel costs, OOIDA says these black boxes could not survive a rigid cost/benefit analysis.

“Electronic on-board recorders are no more accurate than paper logs they replace,” Spencer says. “These costs will be dumped on small business owners.”

Spencer says OOIDA’s lawsuit is about justifying the perceived benefits. “They’ve got to be able to justify it—or forget about it.”

The issue also reopens old wounds in the owner-operator/big company schism. On one side is OOIDA, which has 155,000 members. On the other side is the American Trucking Associations, which has more than 27,000 company members. ATA has come out in favor of the black boxes, saying they improve safety and would save lives.

ATA President Bill Graves long has supported what he calls an “incentive-based approach” to trucking regulation compliance, including EOBRs. Last April, FMCSA issued a final rule mandating EOBRs for carriers, which the DOT has found during a compliance review to have a pattern of hours of service violations. The rule provides incentives for compliant carriers to adopt the use of such devices voluntarily and sets forth certain device design/performance specifications.  The rule will become effective in June 2012.

So even though the effective date is still two years away, OOIDA says the time to act is now.

“The legal issues this raises have to be addressed—and addressed now,” Spencer says. “You can’t wait on those things. That dog doesn’t hunt.”