Court Nudges FMCSA on Black Boxes

The Federal Motor Carrier Safety Administration (FMCSA) issued an advanced notice for proposed rulemaking in the Federal Register for September 1 [Docket 18940] to determine the scope of future regulatory action on EOBRs (electronic on-board recorders), also known as black boxes.

The agency is calling for comments to help develop better performance specifications on the devices, due on November 30, 2004.

This action came after the Washington D.C. Circuit Court of Appeals on July 16 kicked back the hours of service (HOS) back to FMCSA. Although the Court’s decision to vacate HOS has nothing to do with EOBRs, Circuit Judge David Sentelle wrote, “the agency’s justification for not requiring EOBRs…is another aspect of the final HOS rule of questionable rationality.”

The Court points to the agency’s statutory requirement to “to issue an advance notice of rulemaking dealing with a variety of fatigue-related issues pertaining to commercial motor vehicle safety including…automated and tamper-proof recording devices.”

The Court suggested that the agency had not fulfilled its duty in properly testing and evaluating EOBRs. Sentelle sharply criticized FMCSA when he wrote, “It is…plausible that EOBRs will have substantial safety benefits, and it was incumbent on the agency at least to attempt to analyze those benefits. We cannot fathom, therefore, why the agency has not even taken the seemingly obvious step of testing existing EOBRs on the road, or why the agency has not attempted to estimate their benefits on imperfect empirical assumptions.”

“This advance notice of proposed rulemaking, which has been under development for some time, is an effort to do just that,” the agency stated in the Federal Register.

FMCSA said the reason why the HOS final rule did not require EOBRs was because there is no “significant market” for the devices, its effectiveness in detecting noncompliance is unknown, enforcement officials would have to go through considerable training to read them, and privacy issues.

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