FMCSA asks court to exclude recorder use survey

Jill Dunn | March 08, 2012

In ongoing litigation over electronic onboard recorders, the Federal Motor Carrier Safety Administration wants omitted from the court record a driver survey indicating enforcement officers make poor use of EOBR data, but carriers utilize the devices effectively to harass drivers.

On March 5, the agency requested the U.S. Court of Appeals for the Seventh Circuit remove Owner-Operator Independent Drivers Association’s survey of its members included in its lawsuit against FMCSA.

Respondents indicated law enforcement made little use of EOBR data to verify hours-of-service compliance, but carriers used this technology to monitor drivers most or all of the time and to demand longer working hours. Half of the 4,000 members who responded to the survey operated trucks with EOBR.

In January, OOIDA asked the court to direct FMCSA to quit “authorizing, sanctioning or in any way encouraging” EOBRs for HOS compliance until the agency passes rulemaking ensuring the devices will not be used to harass drivers.

Five months earlier, the same court ruled in OOIDA’s favor and vacated the agency’s 2010 rule that would have mandated EOBRs on all trucks used by certain non-compliant carriers. It ordered FMCSA to issue a new rule for the technology that also satisfied another federal regulation stipulating the agency ensure EOBRs are not used to harass vehicle operators.

After that, OOIDA contended FMCSA officials began pursuing a “policy of encouraging” carriers to use EOBRs without first publishing the necessary regulation. The association included its survey in a March 2 response to the American Trucking Associations’ filing of an amicus, or friend of the court, brief siding with the agency.

In its March 5 response, FMCSA protested OOIDA President James Johnston’s filing of his declaration detailing the survey. That declaration “draws conclusions from that survey disparaging” the ATA and other respondents and without responding to the ATA’s argument, the agency said.

The FMCSA cited a 1983 ruling from the same circuit that stated the “focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing.”

Johnston said respondents with the devices reported law enforcement did not know how to deal with the technology.

Fifty-five percent reported officers waived the HOS portion of inspection when they learned the data was in electronic format, while 39 percent said officers did not know how to access the information. Sixteen percent reported enforcement officials misused or misinterpreted the information displayed.

About harassment from carriers, 72 respondents with EOBR reported carriers constantly or most of the time monitor them. Fifty-four percent said carrier officials instructed them to drive longer hours, of which 22 percent reported being awakened to hear this.

Johnston added that more respondents leased to carriers with ATA board membership reported their carrier used the technology for harassment than drivers who had the EOBR but were leased to carriers not represented on the ATA board.