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OOIDA cites privacy, tech loopholes to get EOBRs scrapped

GRAIN VALLEY, Mo. – The largest owner-op group in the U.S. has filed a petition to vacate the final rule mandating electronic on-board recorders for motor carriers.

Calling the rule "arbitrary and capricious," the Owner-Operator Independent Drivers Association says there is no proof "black boxes" – as EOBRs are commonly dubbed -- accurately record a driver's hours of service and duty status in real time, OOIDA adds.

An EOBR, OOIDA argues, tracks only the movement and location of a truck and requires human interaction to record any change of duty status.

Loading and unloading, for example, must be logged as on-duty time, but without driver input, devices are incapable of automatically determining actual duty status.

The Federal Motor Carrier Safety Administration issued a final rule on mandatory EOBRs for those who have a 10-percent or more hours of service violation rate.

OOIDA also cited privacy concerns with EOBRs, stating that "real-time, government mandated, 24-hour electronic surveillance of a driver's location and movements … is an unjustified and dangerous intrusion on drivers' right of privacy."

"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 filing 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."

OOIDA points to a Regulatory Impact Analysis by FMCSA that notes that "companies (can) use EOBRs to enforce company policies and monitor drivers' behavior in other ways."

"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," OOIDA's brief states.

While warrantless searches have been granted in the workplace, OOIDA continues, 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,' … a driver has such a reasonable expectation of privacy in his truck when he is not working."

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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