The Owner-Operator Independent Drivers Association (OOIDA) filed a petition seeking review of the final rule established by the Federal Motor Carrier Safety Administration (FMCSA) mandating electronic on-board recorders for motor carriers with chronic noncompliance with hours-of-service regulations.
The Association’s core argument against mandating “black boxes” is that there is no proof the devices can accurately and automatically record a driver’s hours of service and duty status. An EOBR can only track the movement and location of a truck, and it also requires human interaction to record any change of duty status.
OOIDA illustrates this by reviewing the processes of loading and unloading – time that should typically be logged as on-duty, not driving. However, without interaction from drivers indicating to the device that they are on-duty, the device is incapable of determining the actual duty status of drivers. OOIDA also contends that FMCSA ignored a federal statute to ensure that EOBRs will not be used to harass vehicle operators.
“Not one word appears in the EOBR rule making record identifying regulations containing safeguards to ensure that the devices are not used to harass vehicle operators,” the brief states. “For this reason alone, the rules must be found to be arbitrary and capricious for the agency’s failure to heed the specific statutory mandate.”
A Regulatory Impact Analysis by FMCSA noted that “companies use EOBRs to enforce company policies and monitor drivers’ behavior in other ways.” OOIDA says this type of monitoring can be used to harass and improperly pressure drivers.” Carrier harassment includes the use of technology to interrupt a driver during an off-duty rest period.
Carriers can contact the driver and pressure him to get back on the road to maximize his on duty-time. Such power usurps the driver’s discretion to get rest, take a break or sleep when he believes it is necessary even when he or she has time left on the clock to drive or work,” the brief states. Another argument against the use of the electronic on-board tracking devices is it centers on the Fourth Amendment.
“The real-time, government mandated, 24-hour electronic surveillance of a driver’s location and movements contemplated by the (notice of proposed rule making) is an unjustified and dangerous intrusion on drivers’ right of privacy,” the brief states. The constitutional argument states that the constant monitoring constitutes a search of the driver within the meaning of the Fourth Amendment.
While warrant-less searches have been granted in the workplace, numerous court decisions have prevented them on a citizen’s home or private dwelling. Given the unique nature of the trucking industry and the fact that many drivers utilize their tractors as their “home away from home.”
The Association argues that “a driver has such a reasonable expectation of privacy in his truck when he is not working. The mandated use of EOBRs subjects perfectly legal, private activity to public scrutiny, and potential sanction,” the brief states.
OOIDA and the member plaintiffs are asking the court to vacate the rule and send it back to the agency for further consideration consistent with the court’s findings. The court has given FMCSA until Nov. 4 to file its reply briefs.
Thanks to OOIDA for keeping up with this!
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