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Status Report, Vol. 46, No. 9 | October 13, 2011 Subscribe

Onboard recorder rule for trucks and buses hits roadblock in court case

A federal appeals court has rejected a 2010 rule requiring electronic onboard recorders for motor carriers with significant hours-of-service violations. The move is likely to delay a separate rulemaking seeking to mandate recorders for all interstate carriers.

Onboard recorders automatically track truckers' time on the road and rest breaks, helping to ensure compliance with federal hours-of-service regulations. Drivers currently write down their hours in paper logbooks, which are easily falsified. Some carriers use onboard recorders, but they aren't required. The Institute for more than 20 years has advocated recorders for all trucks based on research documenting the safety hazards of truck driver fatigue (see "Truck driver fatigue isn't lessening," Oct. 7, 2006, "All trucks need recorders, not just those driven by habitual violators," June 15, 2007, and "Truck safety isn't being served by the agency in charge of it," Feb. 14, 2009).

In April 2010, the Federal Motor Carrier Safety Administration (FMCSA) issued a rule requiring onboard recorders for the fleets of truck and bus companies with a record of egregious work-rule violations. These make up just a small fraction of all carriers (see "Agency rejects recorder rule for all big rigs," June 19, 2010). Compliance was slated to begin in June 2012.

The Owner-Operator Independent Drivers Association and three commercial truck drivers challenged the rule on the grounds that carriers might use onboard recorders to harass drivers by pressuring them to drive when they are tired. The Graine Valley, Mo.-based group also questioned the benefits of requiring the devices and asserted that the rule violates the Fourth Amendment of the U.S. Constitution.

In August, the 7th U.S. Circuit Court of Appeals invalidated the rule, deciding the case based on the harassment issue. Under the Truck and Bus Safety and Regulatory Reform Act of 1988, FMCSA is required by law to ensure that recorders won't be used to harass vehicle operators if the devices are mandated.

The three-judge panel concluded that the rule can't stand because FMCSA "failed to consider an issue that it was statutorily required to address. Specifically, the agency said nothing about the requirement that any regulation about the use of monitoring devices in commercial vehicles must 'ensure that the devices are not used to harass vehicle operators.'"

The court noted that a rule is by definition arbitrary and capricious if it fails to address congressional mandates. The agency "should have revealed how it drew the line between legitimate measures designed to assure productivity and forbidden measures that harass," the panel wrote.

The Owner-Operator Independent Drivers Association called the decision a triumph for truckers.

"Companies can and do use technology to harass drivers by interrupting rest periods," Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association, said in a statement. "They can contact the driver and put on pressure to get back on the road to get the most of his or her on-duty time, regardless of how fatigued a driver may be."

The decision leaves up in the air the fate of a broader onboard recorder requirement FMCSA proposed earlier this year (see "Institute supports broader mandate for recorders," April 26, 2011). Under the plan, about half a million long-haul carriers that use logbooks would have to switch to recorders to verify hours-of-service compliance. The agency has said it expects to issue a final regulation by June 2012.

Noting that the agency has proposed onboard recorders for all motor carriers, the appeals court said, "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."

The court's decision could mean a delay in FMCSA's efforts to get electronic onboard recorders in all commercial trucks.

"We hope this issue can be resolved quickly," says Institute president Adrian Lund. "Onboard recorders can increase compliance with hours-of-service regulations, and fewer tired truckers means safer roads for everyone."

The American Trucking Associations, which asked the Obama Administration in September not to rewrite the current hours-of-service regulations, backs the proposed electronic onboard recorder mandate.

"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 chief executive officer Bill Graves said in a statement.

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