FMCSA Allows More Time for Comments on EOBRs

This story appears in the April 25 print edition of Transport Topics.

The Federal Motor Carrier Safety Administration is seeking additional public comment on its proposed electronic onboard recorders rule to ensure motor carriers do not use the technology to violate the privacy of truck drivers.

In a Federal Register posting, FMCSA said it will accept comments until May 23 in response to privacy issues raised in a federal lawsuit filed last year by the Owner-Operator Independent Drivers Association. The continuing lawsuit was filed as a challenge to the agency’s first proposed EOBR rule, which was announced in April 2010.

While that rule mandated EOBR use only for carriers with repeated violations, the second proposal, announced Feb. 1, would expand the mandate to include nearly all interstate trucks as a way to ensure compliance with the hours-of-service rule.

FMCSA said its EOBR regulation by law must make it clear the devices cannot be used to harass drivers by asking them to drive when they’re fatigued just because they have not reached their maximum hours or asking them to attempt to manually change the electronic logging devices.

However, the agency said the devices may be used for “productivity-related purposes, which could include maintaining contact with drivers, monitoring driver progress, determining delivery and work schedules, and even requiring drivers to return to duty, so long as the drivers would not be put in violation of the hours-of-service or other regulations.”

Todd Spencer, executive vice president of OOIDA, said he finds it telling that motor carriers tout EOBRs to FMCSA and their investors as “productivity tools.”

“Obviously, how do they produce greater productivity?” Spencer told Transport Topics. “There’s only one way that they do that. It’s pushing drivers.

“With real-time information on truck status, a driver stops, a driver tries to take a nap,” he added. “That’s not going to be something that’s acceptable to many carriers. They want to know why that truck stopped.”

FMCSA said current federal law permits carriers to use the devices to monitor when, and for how long, drivers are in a particular duty status. Monitoring duty status “increases compliance” with HOS requirements, FMCSA said.

However, carriers cannot use EOBRs to monitor a driver’s hours and then force a driver who is fatigued or ill to return to work, the agency said.

In public comments previously filed with FMCSA, drivers have expressed concerns on how the data collected would be safeguarded and disseminated in post-accident litigation or in personal litigation such as divorce proceedings.

In the newly posted request for comment, FMCSA asked drivers to address their experiences regarding harassment and to comment on whether the use of EOBRs would affect the ability of carriers, shippers and other parties to harass or coerce drivers to violate hours-of-service requirements.

Boyd Stephenson, manager of security and cross-border operations for American Trucking Associations, said ATA supports mandatory use of electronic logging devices, but it believes that the data should be used only for hours-of-service compliance.

“Obviously, hours-of-service information has to go directly to enforcement officials, but a lot of the other stuff on the device does not need to be immediately discoverable in lawsuits,” Stephenson told TT. “The other issue is those drivers are people who have privacy rights. That’s another reason we think the information has to be held very closely.”

In its lawsuit filed with the U.S. 7th Circuit Court of Appeals in Chicago, OOIDA told the court it had concerns that motor carriers could “exploit the vulnerabilities and weaknesses of EOBRs to defeat the ultimate purpose for the HOS rules — giving drivers the opportunity for restorative sleep.”

“Motor carriers who gather and store such information will know every move a driver makes over extended periods of time,” OOIDA said in a Jan. 12 court brief.

As a result, OOIDA said in the court brief, carriers could demand drivers manually key into the device their on-duty, nondriving time as off-duty. Carriers also could use the device to wake drivers when they are resting or demand that a driver get back on the road when the EOBR shows that he has more driving time but where the driver believes he is too fatigued to drive.