Overdrive Magazine | Trucking Business News & Owner Operator Info
Issue link: http://read.dmtmag.com/i/661456
42 | Overdrive | April 2016 TOMORROW'S TRUCKER not violate the Fourth Amendment to the Constitution. Similar drug-testing requirements followed in the early 1990s for truckers. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects" and prohibits "unreasonable searches and seizures." Taylor explains, "The court said, 'This is a commercial vehicle, not a home.' " As for the justification of searching the operator's person, "This is something in the stream of commerce," he paraphrases. The argument against a Fourth Amendment violation balances safety versus privacy rights and proclaims a "special need" for public safety. Electronic logging devices could well fall under similar reasoning relative to the legal "special need" argument bal- ancing safety and privacy, Taylor says. "The truck is not your home" from a legal perspective, he says, and "log books are not your personal papers." Dashcams could be regarded the same way, he says, though that could be more of a stretch. The National Transportation Safety Board, often something of a signal corps for coming mandates, included private use of video event recorders in its 10 "Most Wanted" list of safety improve- ments just this year, but it shied from calling for a mandate. It has, however, urged FMCSA to consider the recorders as required equipment in the past. An operational test of their safety efficacy is nearing its conclusion. FMCSA "could choose to ignore it and let the insurance companies regulate the marketplace" with incentives and disincentives for such devices, Taylor says. "Companies have had cameras in the workplace for years," and increas- ingly in driver's cabs. Where Taylor does see hope for pri- vacy rights trumping in-cab technology is in biomonitoring. "When you start to talk medical monitoring, I think they've probably crossed the lines with an unrea- sonable search," he says. "A motor carri- er could do it, and insurance companies may require it, but I can't see something like that passing constitutional muster." Stepped-up exams of some kind, how- ever, "where you have to go through a medical exam rather than having bells and whistles constantly hooked up to you" – such as the daily fitness-for-duty notion – may eventually withstand a pri- vacy law challenge. Judging by the recent focus of the MRB, as well as the myriad requirements in place for health conditions (diabetes, blood pressure) where none before had existed, boosts in the frequency and scope of fitness-for-duty assessments could easi- ly become a slippery slope toward contin- uous monitoring. 2011: 1,083 2012: 887 2013: 312 2014: 230 2015: 290 Fatigued driving violations Federal data mined by RigDig Business Intelligence: RigDigBI.com Since 2011, when Minnesota's "fatigue checklist" was declared a violation of truckers' Fourth Amendment rights, violations of the fatigued driving regulation (CFR 392.3) have sharply declined. Measuring fatigue isn't commonplace, nor is it seen as 100 percent accurate. Perhaps more importantly, fatigue is hard to pin down beyond "I know it when I see it." After wrestling with a definition in its 2013 meeting, the Federal Motor Carrier Safety Adminis- tration's Medical Review Board settled on one that hinged on an operator's performance of a Psychomotor Vigilance Task test. Driving is prohibited when "ill or fatigued," a vague stipulation in federal regulations (CFR 392.3). Current inter- pretation of out of service criteria says that a violation of the rule should be issued only when fatigue is so obvious and severe that it necessitates an OOS order. The Commercial Vehicle Safety Alliance's 2015 revisions to the Out of Service Criteria underlined this notion with added explanation of how enforc- ers should view the regulation. CVSA and the Owner-Operator Independent Drivers Association also, however, in 2014 petitioned the Federal Motor Carrier Safety Administration to modify the regulation itself to offer "more clarity and objectivity as to what is considered to be a fatigued condi- tion, such that the driver cannot safely perform the driving task," CVSA says. The petition, echoing the MRB's recom- mendation as regards medical examin- ers, also asked for "guidance, training and tools for enforcement personnel to effectively and uniformly enforce the regulation." Until such time that FMCSA was pre- pared to provide such tools, CVSA and OOIDA both urged the agency to remove the regulation from the books and "ag- gressively research the development of an objective means for law enforcement to evaluate fatigue (and to take enforce- ment action)," according to CVSA. Nearly two years after the peti- tion's filing, FMCSA spokesman Duane DeBruyne will say only that it remains under consideration. Last month saw the release of a large fatigue study sponsored by the U.S. Department of Transportation and conducted by the National Academies of Sciences, Engineering and Medicine. Assessing research regarding the mea- surement of fatigue and its relation- ship to crash risk, the report identified areas of difficulty. The report could stimulate research to bolster potential future enforcement as it relates to truck operator fatigue. FATIGUE: SIMPLE, BUT HARD TO DEFINE