SPECIAL REPORT: OOIDA challenges EOBR rulemaking process unveiled

By Jami Jones, senior editor | 1/13/2011

Thursday, Jan. 13, 2011 – OOIDA’s legal team fired back at claims that the Association did not have standing to bring a court challenge against the electronic on-board recorder rulemaking in the latest round of court filings.

The Association and three members filed a petition for review of the newly adopted EOBR mandate with the United States Court of Appeals for the Seventh Circuit in June 2010. In addition to OOIDA, the plaintiffs include OOIDA Members William J. Culligan, Adam D. Burnett and Douglas A. Oldham.

The Federal Motor Carrier Safety Administration claimed in a November 2010 court filing that OOIDA and its member plaintiffs did not have standing to bring the suit – because none had been subjected to an EOBR mandate.

That argument missed the mark according to the petitioners’ reply brief filed Jan. 10, 2011, by The Cullen Law Firm, OOIDA’s litigation counsel.

OOIDA is challenging the “validity of the rulemaking proceeding, not the application of the rule,” the brief states.

The regulation in question mandates that motor carriers with a 10 percent or greater level of non-compliance with the hours-of-service regulations may be subject to mandated use of EOBRs for the entire fleet.

OOIDA’s brief argues that in arriving at the final rule FMCSA made several errors and failed to consider issues such as driver harassment and warrantless searches.

The court filing gives examples of possible driver harassment, including motor carriers being able to demand drivers wrongfully enter on-duty not-driving time as off-duty and demanding a driver resume driving, even though the driver may feel too fatigued to drive.

“Without specific protections, the final rule makes it easier for motor carriers to harass drivers and coerce violations,” the brief states.

The brief outlines a number of cases to bolster its assertion that EOBRs amount to warrantless searches. Coupling that with the 24/7 monitoring of individual drivers – who may not have any history of HOS non-compliance – the mandate would cause a “substantial” loss of privacy.

The filing also reiterates the need for driver interaction with the EOBRs because the devices can only track when the truck is moving. That makes EOBRs no more accurate than paper logs, according to the brief.

Finally, OOIDA’s brief also took to task the cost-benefit analysis used by FMCSA to justify the rule calling it “deficient,” thus “rendering the rule arbitrary and capricious.”

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