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Kenny Wogomon sits in the driver’s seat of his truck in the parking lot behind Werner Enterprises Inc., a Fortune 1000 trucking firm in Omaha, Neb. In his lap is a clunky gray keyboard with a built-in screen. It’s a controversial little device that keeps track of how much time Wogomon spends driving, and he swivels in his seat to show how it works. “When you want to know how many hours you have left,” explains the burly 42-year-old driver, “you hit macro 49.” He punches the number, types his password, and his screen displays the hours he has driven that day, and that week, subtracted from the maximum the law allows. Like virtually all the big carriers, Werner uses satellite technology and wireless communication to track vehicles and communicate with drivers. But unlike most, Werner also uses electronics to keep tired drivers off the roads. Federal law limits the hours drivers can work to prevent accidents. To prove they are complying, drivers must record their hours, and most write them in logbooks. Some keep these current, and some let them slide — the same way lawyers handle their billings, says Richard Reiser, Werner’s general counsel, who is sitting next to Wogomon. But at his company, computers do it for them, says Reiser, a leading booster of the technology. These onboard recorders, which many experts believe are trucking’s future, are roiling the industry. And, as in so many industries incorporating new technology, in-house lawyers find themselves in the middle, struggling to anticipate and control potential legal implications. Proponents believe that these “black boxes,” as they are often called, are the only way to enforce work rules that can save lives. Yet few companies use them — concerned about their cost, unpopularity with drivers and potential use in litigation — which is why public safety groups insist they must be mandatory. Current rules, critics say, have a built-in incentive for drivers to cheat. Long-haul drivers are paid by the mile, and the rules limiting their time behind the wheel keep some from earning as much as they’d like. So some drivers fudge the logs; in fact, paper logs are so easily falsified that drivers call them “comic books.” Some companies cheat, too. Last December an Oregon carrier pleaded guilty in a Fresno, Calif., federal court to felony charges of falsifying logs and agreed to pay more than $1 million in fines and penalties. Four other companies were also charged in Fresno with similar violations following a lengthy investigation spurred by a carrier’s worst nightmare: a fatal accident caused by a trucker asleep at the wheel. Cultural issues are also at play. Many truck drivers view black boxes as “Big Brother in the cab.” Known for their independence, drivers sometimes sound as though they’d rather ride with anthrax. “I will not compromise my freedom by placing a [sic] electronic ‘spy’ on my truck,” wrote one owner-operator in his comments on a proposed black-box rule. Company executives complain that recorders are expensive and their benefits unproven. Critics argue that recorders still require drivers’ input, which means they’re no better than logbooks. Even executives inclined to follow Werner’s lead bristle at the prospect that their use may be compulsory. They are also leery of alienating drivers; a trade association reports that annual turnover among long-haul drivers exceeds 100 percent. The struggle between safety advocates trying to accelerate a black-box rule and a reluctant industry leaning on the brakes has been bumping along for a decade, but it’s coming to a crossroads. A new hours rule is due later this year, which may or may not mandate electronic logs. But many observers maintain that compulsory use is inevitable, no matter what the drivers believe. “You’re probably going to see those onboard recorders standard within the next two to three years,” says Peter Smith, who follows the industry for Morningstar Inc. “The paper logs are too easy to fudge.” Government efforts to regulate trucking date back to The Motor Carrier Act of 1935, and driver logs were required a few years later. Nothing about log-keeping changed much until the early 1980s, when companies like Cadec Corp. and Qualcomm Inc. began developing electronic substitutes. In 1984 Cadec installed the first computers used to record drivers’ hours in trucks owned by Frito-Lay Inc. The following year the U.S. Department of Transportation’s Federal Highway Administration accepted the data in lieu of logbooks. Few companies followed Frito-Lay’s lead, and the subject received scant attention until the 1990s, when fatal accidents involving trucks rose dramatically, after several years of decline. In 1998, 5,000 trucks were involved in fatal accidents, compared to 4,000 six years earlier. Though large trucks constituted 3.5 percent of all vehicles that year, they represented 9 percent of those involved in fatalities, and industry critics blamed driver fatigue for many of the mishaps. As fatalities escalated, so did public criticism. The Transportation Department’s inspector general decried the leniency with which regulators treated the industry — and the cozy relationship between the two. Other agencies, like the Washington, D.C.-based watchdog National Transportation Safety Board, joined the chorus; critics demanded action. The result was the Motor Carrier Safety Improvement Act of 1999. Congress transferred jurisdiction for trucking safety from the Highway Administration to the newly created Federal Motor Carrier Safety Administration. An amendment to that law, which was defeated at the last moment, would have mandated the use of black boxes. Foremost on the new agency’s agenda was the revision of truckers’ hours, which hadn’t changed since 1962. The old rule said drivers had to take eight hours off after driving ten, and couldn’t remain on duty (including nondriving work like loading) for more than 15. In 2000 the agency proposed new hours and a black-box mandate. After a lengthy comment period during which the administration in Washington changed and industry insiders — including the influential American Trucking Associations — expressed misgivings, the final rule appeared in 2003. It allowed 11 hours of driving and 14 hours on duty followed by ten hours off. It retained weekly limits, but drivers could stay on duty longer under certain circumstances. And the rule still didn’t call for black boxes. Public Citizen, the Washington, D.C., consumer advocacy group founded by Ralph Nader and led by Joan Claybrook, was outraged over the rules’ final form and sued in the U.S. Court of Appeals for the D.C. Circuit. Public Citizen argued that the new rules were arbitrary and capricious, and failed to consider the drivers’ health. So far, the group has been successful. Last July the court threw out the rule, agreeing with Public Citizen that the agency had ignored the “statutorily mandated factor” of drivers’ health. And the court directly addressed the black-box issue. “It stands to reason,” the judges declared, “that requiring [electronic onboard recorders] will have substantial benefits.” The industry was caught off guard by the decision. After years of rule making and months of adjusting to a new rule, it was suddenly in limbo. To give the FMCSA time to come up with a new rule that addresses the court’s concerns, Congress temporarily reinstated the overturned regulations; they will expire September 30. What will happen if the new rule is a lot like the old one, but with just a nod toward drivers’ health? “It’s difficult to imagine that we would not challenge it again,” says Bonnie Robin-Vergeer, Public Citizen’s lead lawyer. When Werner bought its onboard recorder system from Qualcomm in 1992, it didn’t intend to log hours. Werner wanted to keep track of its trucks’ whereabouts and, in an era before cell phones were ubiquitous, communicate with drivers. Werner didn’t shift to paperless logs until after a Highway Administration audit in 1996. As recounted in a book the company commissioned on its history, The Legend of Werner Enterprises, Werner had a problem with compliance, and regulators threatened it with an unsatisfactory rating. That was when company founder and CEO C.L. Werner realized that they could pre-empt such problems by electronically recording the hours that drivers spent on the road. The idea was not initially popular. Reiser recalls a meeting with a dozen vice presidents and department heads. “How are we going to compete with companies that are not running legally when we are?” he remembers one asking. Another wondered: “If we have a driver who is trying to deliver a load that needs to be there at 10 a.m., and it’s 8 a.m. and he’s running out of time, do you stop that driver and risk an upset customer?” Werner, who declined to be interviewed, has always embraced technology as a way to solve operational problems. The ultimate up-by-the-bootstraps entrepreneur, Werner, 68, was the company’s first driver. He purchased a truck at age 19, and now heads a business with revenues of $1.7 billion. And he had the final — and positive — word. “None of us wants to find out about an accident where people are injured or killed because our driver was driving over hours,” Werner told them. “Figure this out,” he added, “because it’s something we’re going to do.” Reiser has been the public face of the company that’s the poster child for black boxes. A trim man with a short brown beard now flecked with gray, the Werner GC has testified at FMCSA hearings and serves as chair of the ATA’s Hours of Service Subcommittee. Going to paperless logs was a big commitment, and not just in time and money, Reiser says. “Once you have a paperless system in place, there’s no place to hide from the FMCSA when they do an audit.” However, he says, Werner’s onboard black boxes are just part of a large computer network. The recorder data is sent automatically to computer servers at the company’s headquarters. (In fact, Werner has an exemption to use paperless logs for its operation because the driver data doesn’t reside inside the trucks, as the law requires, but on the servers.) When state cops ask to see the log, drivers can display it on their screens or send it to a fax machine. The system can also audit all 10,000 drivers every day. And it can immediately identify drivers who are out of compliance — unlike paper log systems, which, Reiser says, are more easily falsified. Not having to worry about driver honesty “is a significant legal benefit.” Though Reiser declines to discuss how much the system has saved Werner in litigation or other costs, the company boasts that the initial investment of $12 million has more than paid for itself. Werner isn’t alone in its support for black boxes; some regional carriers are also coming around. Paul Williams, president of Wooster Motor Ways Inc., in Wooster, Ohio, says he’s “in the process” of going paperless, with global positioning and wireless communication systems. The equipment, manufactured by PeopleNet Communications Corp., cost $190,000 for 165 trucks — less than $1,200 each, he says. (Qualcomm’s prices are comparable.) Williams boasts that revenue is up 18 percent this year. Wooster now handles 3,300 loads a month, up from an average of 2,500, because of efficiency in dispatching trucks. Staff costs have been reduced, too; a manager who used to handle 20 drivers can now supervise twice the number. Some tech benefits have been unexpected. Last year a Wooster driver was in an accident that killed the other driver. The police impounded the truck, and their review of the data cleared Wooster’s employee. In April a driver parked his truck in Toledo and went to lunch. When he returned, his truck was gone. He was hauling tires worth $60,000 with a $50,000 insurance deductible. The truck was worth $46,000 and wasn’t covered. But the thief neglected to disconnect the GPS. Williams and the police followed the truck’s progress to a drop yard outside Detroit, where the trailer was detached before the tractor was abandoned. The property was recovered and the thief arrested the same day. Still, many companies remain skeptical of the black boxes’ benefits. Yellow Roadway Corp., based in Overland Park, Kan., hauls less-than-full truckloads over relatively short routes. Its drivers possess few incentives to push the limits, says its general counsel, Daniel Churay. Nearly all drivers meet face-to-face with supervisors at the beginning and end of shifts, he adds, and their compliance is excellent. With a fleet of more than 18,000 trucks, he sees no point in adding black boxes: “Spending millions of dollars on recorders will do little, if anything, to improve our compliance rate.” But the strongest objections to black boxes come from the Owner-Operator Independent Drivers Association, based in Grain Valley, Mo. Many drivers, fearful of Big Brother tracking their movements, have a visceral dislike of onboard recorders, says Paul Cullen Jr., whose firm, The Cullen Law Firm in Washington, D.C., represents the group. Cullen has practical objections to the use of tracking devices, too. He says the boxes are far from tamperproof. They can only tell when a truck is moving and stopped. But regulators can’t tell whether a trucker is complying with the hours rule without knowing when the driver was on duty (and not driving), off duty, and in the sleeper berth, Cullen points out. Drivers must input that information, which he asserts makes black boxes “no more tamperproof than the paper log.” In written comments filed in the most recent FMCSA rule making, Cullen was particularly critical of Werner. He noted the company’s system automatically recorded a driver as off duty when the truck was stopped at length in traffic — a defect Werner acknowledged and corrected during its pilot program. Cullen also says drivers have reported that, ironically, the technology has been used by Werner and other carriers to buzz them awake and pressure them when they were under their time limits but too tired to drive. “We tell the drivers in training classes that the driver is the captain of the ship,” Reiser responds. Perhaps the greatest concern that company executives have about the technology is that the data will be used against them in court. For example, if a black box showed a driver involved in an accident exceeding the hourly limits, it would be introduced as irrefutable evidence in court of company liability. Trucking companies “are very worried about liabilities and lawsuits,” says Jim Mele, editor in chief of the monthly magazine Fleet Owner. Duane Acklie, chairman of Crete Carrier Corp. in Lincoln, Neb., acknowledges this concern. He believes the data should be protected from use in litigation the way black boxes on commercial airplanes are — an argument asserted by many in the industry, including the ATA. Despite industry anxiety, there’s reason to believe that the compulsory use of black boxes is inevitable. For one thing, misgivings don’t always translate to opposition. Crete, for example, has had a tracking system for years and even uses GPS to audit a sampling of its drivers’ logs. It wouldn’t be hard to go paperless. And some opposition will fall as the recording technology gets cheaper. Qualcomm is about to introduce software that will allow current customers to upgrade to a comprehensive system like Werner’s for less than $500 a truck. “In all probability, we will test it,” says Acklie. “I think it’s something the industry will go to,” he admits. Other big industry players make similar noises. Thomas Vandenberg, general counsel of Schneider National Inc., in Green Bay, Wis. (one of the largest carriers, with revenues of $3.2 billion), says his company is “seriously considering” a move. As for Acklie’s wish for a magic bullet against litigation, specialists say it doesn’t exist — even in the airline industry. There are rules that protect data on aircraft cockpit voice recorders, confirms Marc Moller, a partner at New York’s Kreindler & Kreindler, which specializes in aviation cases. But they don’t protect the boxes from a subpoena. “I have not seen and cannot imagine a case where important information in the black boxes is not received into evidence,” he says. And the drivers? As Acklie and others point out, they resisted GPS too, but were quickly won over. Even Werner’s Wogomon harbored doubts about the new technology. “I’ll admit I was skeptical about the computer logs,” he says. But, as Werner’s trainer, he teaches drivers how to compile both paper and paperless logs, and he’s never had one who preferred paper.

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