EOBR Rule Rejected by Court

A federal appeals court has thrown out the Federal Motor Carrier Safety Administration’s 2010 rule requiring electronic onboard recorders. The ruling is almost certain to delay the June 2012 mandate for those carriers that have a significant number of hours-of-service violations.

This is also most likely to delay a separate rule requiring Electronic On board Recorders (EOBRs) for all interstate carriers.

The courts ruled that the FMCSA 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. In other words, the FMCSA’s rule does not ensure that the devices will not be used to harass truck drivers.

Further, the agency’s EOBR mandate for carriers with past hours-of-service problems does not adequately address or ensure that carriers could not use the devices to force vehicle operators to stay on the road even when they are tired.

Because the court rejected the rule and sent it back to FMCSA, the agency most likely will have to restart the rulemaking process and rewrite the rule. This process could take as long 18 to 24 months.

Truck Driver Fatigue

In a related subject, according to the National Transportation Safety Board (NTSB), people need, on average, 8 hours of sleep each night. Sleep deprivation can, over time, lead to fatigue. Being awake when typically asleep or being awake during the early morning hours when the body is use to sleeping, can also lead to fatigue. Like impairment from alcohol or drugs, impairment from fatigue is just as dangerous when driving. But unlike alcohol or drugs, driver fatigue is hard to measure.

The NTSB has concluded that 20% of all large truck accident fatalities and 7% of all accidents involving fatalities and injuries are cause by driver fatigue. In fact, one-third of drivers questioned admitted they had fallen asleep at the wheel in the last 12 months. Research shows driver fatigue is most notable between 0200 and 0600 hours, followed by mid-afternoon. Drivers are under constant pressure to meet delivery deadlines and profit margins can be quite slim, thus forcing drivers to continue driving when fatigued.

Fortunately, there are new technology advances that can help alert a truck driver when he or she may be nodding off. For example, Lane Departure Warning Systems (LDWS) monitor the location of the vehicle within the lane and alert the driver when the vehicle drifts from the lane. Other systems that monitor the vehicle, such as steering position monitors, as well as systems that monitor driver behavior, such as one system that measure the driver’s eyelid closure, have also been developed to defect fatigue.

A complete FREE report including a list of vendors on Lane Departure Warning Systems can be found on the NTA website under Technology Product Guides.

Driver Fatigued Checklist Violation of Fourth Amendment

In another related article, a recent court case challenging Minnesota State Patrol’s Level II procedures in determining driver fatigue was thrown out of court.

According to court documents, Driver Stephen House presented Minnesota enforcement personnel a current, accurate log book, valid registration, and commercial driver’s license. Officers found no reason to issue House a citation or out-of-service order based on his log book entries.

After presenting his credentials and documents, House wa instructed to go into the building to answer some questions. The officers did not communicate that they were completing a checklist to determine if the driver was fatigued. House, who was traveling with his wife and adult son, was questioned on a variety of topics.

Although the officers were authorized to temporarily detain House for a Level III inspection, they were not entitlied to conduct the scope of investigation and questioning as they did. The officers did not have a reasonable suspicion that House was impaired. Therefore, the detention and broad scope of questions constituted a “seizure” in violation of the driver’s Fourth Amendment right against an unreasonable seizure.

The Cost of Regulatory Compliance for Small Business

If you didn’t already know, small businesses face a disproportionate burden when it comes to costs of federal regulations compared to larger firms. In a recent report, compliance with environmental regulations costs 364 percent more to small firms than large firms. The cost of tax compliance is 206 percent higher in small firms than the cost to large firms.

Illinois Passes “Presumptive Denial” Law

For our Midwest readers, in case you did not already know, the Illinois Legislature passed a Workers’ Compensation Reform Bill which included a detailed “presumptive denial” of a workers’ comp claim based on a positive drug or alcohol test result. The Governor is expected to sign this legislation, which took effect September 1, 2011.

The law initially acknowledges that, as before, intoxication must be shown to be the “proximate cause” of the worker’s injuries or that the employee was “so intoxicated at the time of the injury that the intoxication was a departure from employment.”

Anyone testing positive for alcohol in excess of 0.08 BAC or for any other unauthorized drug use will be presumed intoxicated and that intoxication will be presumed to be the proximate cause of the injuries.

Testing must be conducted in accordance with rules to be established by the Workers’ Compensation Commission, but at a minimum those rules must include the following:

• Testing may be conducted on blood, breath or urine.

• Refusal equals a rebuttable presumption of intoxication and cause.

• The employee may rebut the presumption by showing a preponderance of evidence that the alcohol or drug use was not the “sole” cause of the injuries.

• Analysis of sample must be done by an accredited or certified facility.

• Sample collection and testing must be dome per NLRB and DOT guidelines.

• Split sample collection procedures must be used.

• The employee must be allowed to present relevant information of recent prescription/nonprescription use.

NTA to co-Host Transportation Convention in Washington

I am please to announce that NTA is going to be a National Co-Host for the 5^th Annual Transportation & Infrastructure Convention, March 7-9, 2012 in Washington, D.C. More information is available on our website.