By Jami Jones
The looming electronic on-board recorder mandate facing the trucking industry falls short on many fronts according to the petitioners brief filed Oct. 5 by the Owner-Operator Independent Drivers Association in its legal challenge of the regulation.
The Association and three members filed their initial petition for review with the United States Court of Appeals for the Seventh Circuit in June. In addition to OOIDA, the plaintiffs include OOIDA Members William J. Culligan, Adam D. Burnett and Douglas A. Oldham.
The brief filed in October outlines a number of shortcomings in FMCSA’s path to issuing the final rule mandating the use of EOBRs on motor carriers with chronic noncompliance with the hours-of-service regulations.
A core argument against the mandated use of the “black boxes” is that there is no proof the devices can accurately and automatically record a driver’s hours of service and duty status.
The abilities of EOBRs are limited to tracking the movement and location of trucks. The devices require human interaction to record any change of duty status.
To illustrate this shortcoming, the brief reviews the processes of loading and unloading – time that should typically be logged as on-duty, not driving. However, without interaction from the drivers indicating to the device that they are on-duty, the device is incapable of determining what the drivers’ real duty status is.
The brief further bolsters this point by comparing EOBR and paper log records of a hypothetical trip. It details a load of beef leaving Chicago on a Friday, delivering in Oakland the following Monday with a return trip from Salinas, CA, leaving on Tuesday and delivering in Des Moines, IA, on a Thursday.
The example shows how the run could appear compliant on an EOBR, with fuel stops and other such downtime reflected in 15-minute increments, because a driver indicated off-duty, not driving. In the end, the comparison shows that sleeper berth and off-duty time were shorted in the EOBR record.
During the rulemaking process, OOIDA points out that it was acknowledged by FMCSA that EOBRs would require supporting documents – just like paper logs – to back up manual entries entered by the drivers.
Another argument against the use of the electronic on-board tracking devices 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 rulemaking) 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 warrantless 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 use 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 plaintiff members also argue 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 rulemaking 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 noted that “companies use EOBRs to enforce company policies and monitor drivers’ behavior in other ways.” The brief states that 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.
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.
As of press time, FMCSA’s reply briefs were due to the court by Dec. 6.
The EOBR rule officially went into effect June 4. The compliance deadline for the regulation is June 4, 2012.
“Once the regulation is ‘on the books,’ affected carriers are allowed a two-year period to come into compliance. Starting June 4, 2012, and thereafter, affected carriers found to be non-compliant will be subject to the full force of applicable sanctions and penalties for violating that particular Federal Motor Carrier Safety Regulation,” FMCSA spokesman Duane DeBruyne told Land Line. LL