Truckers Rebuff Call for Electronic Hour Gauges

     CHICAGO (CN) – The 7th Circuit struck down a regulation requiring long-haul trucks operated by companies with consistent safety violations to monitor their drivers’ hours electronically.
     The Federal Motor Carrier Safety Administration adopted the regulation in 2010, and it is scheduled to take effect in June 2012.
     Three commercial truck drivers and the Owner-Operator Independent Drivers Association petitioned the federal appeals court for review of the rule, claiming that installing the monitors would prevent truckers from using their own discretion to gauge fatigue. Roughly 150,000 drivers who own their rigs belong to the association.
     A three-judge panel struck down the regulation last week for failing to address concerns that the devices could be used to harass drivers.
     For decades, the Federal Motor Carrier Safety Administration has capped the permissible “hours of service” that drivers can work in a given week. The limits are intended “to protect driver health and to ensure highway safety by reducing driver fatigue and thus fatigue-related accidents.”
     Almost all drivers currently record their hours in paper logbooks, a process plagued by widespread manipulation and falsification.
     The recently voided regulation would have required the installation of Electronic On-Board Recorders (EOBRs) for a small pool of carriers with a greater than 10 percent rate of noncompliance with hours of services rules in a single compliance review. Carriers in this category have a 40 percent higher crash rate than the general motor-carrier population.
     “Drivers have been pressured by their motor carriers to perform at higher levels (and drive even when tired) as a result of the fact that an EOBR can send the carrier date in real time,” Judge Diane Wood wrote for the court. “Even if the 2010 rule does not require that level of reporting, the technology certainly allows it.”
     The judges said this concern went unaddressed in the rulemaking process, despite explicit direction by Congress.
     “The word ‘harass’ appears only once in the entire rulemaking, in the explanatory ‘legal basis for the rulemaking’ section; otherwise it is not mentioned,” Wood wrote. “This explanation is insufficient. … When this standard has not been met, it is necessary to vacate the agency’s action.”
     “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,” she added.
     The truckers’ Fourth Amendment claims were not contemplated on appeal, a decision that will likely allow challenges to any modified regulation.
     “Rather than reach beyond what is strictly necessary here, prudence dictates that we leave for another day any questions that might arise in connection with whatever new rule the Agency decides to adopt,” Wood explained.
     The ruling may also affect a regulation proposed in February that would require EOBRs on every commercial trucking rig nationwide. That sweeping change still stands as a proposal, not a final rule.
     Pressure to mandate EOBRs has not disappeared, however. The rule has the support of the American Trucking Associations, the largest trade association in the industry.
     “Though we are still reviewing the court’s decision, ATA supports FMCSA’s efforts to mandate the adoption and use of electronic logging devices for hours-of-service compliance,” ATA President and CEO Bill Graves said in a statement. “FMCSA’s research shows that compliance with the current hours-of-service rules is strongly associated with reduced crash risk. Of course, electronic logging devices are an important tool for improving hours-of-service compliance.”

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