Take the recorders and run

The decades-long struggle over hours-of-service regulations is growing tiresome. It’s time to make a deal. Here’s my proposal. Trucking’s safety critics swallow the current HOS rules. In return, motor carriers stomach electronic onboard recorders. This resolution satisfies no one, so it passes the first test of any good compromise.

Last month’s rejection of the current HOS rules by a federal appeals court gives safety advocates a chance to roll back the flexibilities the Federal Motor Carrier Safety Administration provided in the current rules and to win HOS rules that are even more restrictive than the old rules.

Carriers, on the other hand, may view the court’s ruling as but a temporary setback, optimistically believing that the court’s ruling amounts to a technicality that FMCSA can fix with better explanations. Besides, some carriers don’t exactly see the current rules as a picnic anyway and won’t embrace recorders in order to keep them.

On balance, however, keeping the current rules with mandatory recorders could be a fair deal for both sides in view of the uncertainties, such as FMCSA’s response to the court ruling, the outcome of the 2004 election and Congress’ willingness to intervene. More importantly for carriers, the absence of a regulatory mandate for electronic onboard recorders is gradually becoming irrelevant.

FMCSA’s upcoming rulemaking on supporting documents could set guidelines for Global Positioning System data to audit driver logs. FMCSA does this already in limited situations. Under an August 1997 policy memorandum, the agency pledges that if a carrier has GPS technology but uses a system of reviewing hard copies of supporting documents “that appears sufficient to demonstrate compliance with the regulations, the GPS records would not be routinely sought in the compliance review.”

The problems with this policy are the phrases “appears sufficient” and “routinely sought.” Essentially, those judgments are left to FMCSA personnel. In fact, Prime Inc. and FMCSA’s Missouri office currently are at odds over a proposed $190,560 fine based on alleged log violations that apparently were discovered through use of satellite data. They disagree over whether Prime had sufficient non-GPS records to audit logs. Arguably, it’s better to know that you definitely are subject to mandatory onboard recorders than to think you might be asked to hand over satellite data unexpectedly.

Another concern is the prospect of exposing recorder data to discovery in lawsuits. That seems frightening, but electronic onboard recorders are probably only marginally more dangerous for most carriers than the information systems they already have installed on their trucks. Other worries are a level playing field with automobiles and the fear of overly strict enforcement. For example, if a driver had to drive a few minutes past his driving limit in order to find a suitable overnight parking spot, how would FMCSA treat the situation? These are hurdles, but they aren’t necessarily insurmountable.

Regardless, it’s unlikely the safety advocates would ever endorse 11 hours of driving, for example, whatever the tradeoff. Some of these groups are in the business of challenging the government. Cutting deals doesn’t appeal to them. Carriers surely would demand controversial conditions and protections against abuse. Some would insist that the HOS rules be changed even more in their favor if they are to consent to installation of recorders.

Also, don’t forget that a compromise between carriers and safety advocates totally disenfranchises the driver community from the process. You can bet that driver groups would sue FMCSA over recorders.

So there won’t be a deal. All parties involved are counting on a full victory. But exchanging strict compliance for sensible rules should be a concept all parties could live with.