GRAIN VALLEY, Mo. — The Owner-Operator Independent Drivers Association (OOIDA) has 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.
OOIDA claims there is no proof the “black box” devices can accurately and automatically record a driver’s hours-of-service and duty status, noting that an EOBR can only track the movement and location of a truck, and human interaction is required to record status changes.
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 rulemaking record identifying regulations containing safeguards to ‘ensure that the devices are not used to harass vehicle operators,'” according to the OOIDA brief. “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.
OOIDA also argues that the use of EOBRs infringe on drivers’ rights to privacy. “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 constant monitoring constitutes a search of the driver within the meaning of the Fourth Amendment, according to OOIDA.
“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 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,” OOIDA officials said in a release.
“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.
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