By Jami Jones, managing editor
The Owner-Operator Independent Drivers Association filed a motion in late January seeking a cease-and-desist order on the current policies and practices by the Federal Motor Carrier Safety Administration to encourage the use of electronic on-board recorders.
Nearly five months after the U.S. Court of Appeals for the Seventh Circuit tossed the electronic on-board recorder regulation, the agency is still promoting use of the devices. That encouragement and promotion amounts to “blatant disregard” for the court’s Aug. 26, 2011, decision, according to OOIDA’s court filing.
Judge Diane P. Wood wrote the decision for the Seventh Circuit that vacated the EOBR regulation because the agency failed to address driver harassment by the devices in the rulemaking process. The harassment argument was one of three arguments presented by OOIDA – and the only one needed for the court to toss the regulation.
The opinion states that if an agency “fails to consider a factor mandated by its organic statutes, this omission is alone ‘sufficient to establish an arbitrary-and-capricious decision requiring vacatur of the rule.’”
FMCSA was directed by Congress back in the late 1980s to “ensure that the devices are not used to harass vehicle operators.”
“There is no question that section 31137(a) is mandatory,” Judge Wood wrote in the opinion.
The motion seeking a cease-and-desist order, along with a declaration filed by OOIDA’s legal counsel Paul Cullen Sr. of The Cullen Law Firm, points out that the agency has not acted on the court’s ruling by initiating a rulemaking to rescind the vacated rule. Instead, the agency continues to promote the voluntary use of electronic on-board recorders to track hours-of-service compliance.
“Following this court’s decision, respondent FMCSA embarked on a policy of encouraging motor carriers to require drivers to use electronic monitoring devices to record their hours of service without taking any steps to ensure that the devices are not used to harass drivers,” OOIDA’s cease-and-desist motion states.
The agency has persisted with this policy even following an exchange of letters between OOIDA and the agency following the court’s ruling.
OOIDA President Jim Johnston sent a letter to FMCSA Administrator Anne Ferro and Cullen sent one to FMCSA’s Chief Counsel Alais L.M. Griffin in November 2011 challenging the agency’s actions. The letters stated “there is no longer a provision in the rules for the adoption of a device called an ‘EOBR,’ either under agency mandate or voluntarily.”
The agency and its chief counsel countered in a letter later in the month that the agency continues to allow the use of EOBRs under a different section of the federal regulation.
“A motor carrier may use any recording device, including an EOBR, which meets the minimal requirements of section 395.15, regardless of whether that device is referred to as an AOBRD (automatic on-board recording device), an EOBR or some other name,” Griffin wrote to OOIDA.
That assertion did not sit well with OOIDA’s leadership and legal team.
“The chief counsel’s tortured exercise in reading EOBRs into a pre-existing regulation is clearly intended to circumvent the court’s opinion,” OOIDA’s cease-and-desist motion states. “The proposition that FMCSA’s activities are beyond the reach of this court’s opinion because they deal with ‘voluntary’ adoption of EOBRs by motor carriers cannot survive critical analysis.”
The motion asks the court to issue a mandate ordering the FMCSA to cease and desist from authorizing, sanctioning or in any way encouraging the use of electronic monitoring devices until the agency has promulgated regulations that ensure that such devices will not be used to harass drivers.
“FMCSA’s conduct directly conflicts with this court’s ruling. Unless restrained by this court, FMCSA’s current policy and practice will deprive petitioners and thousands of commercial vehicle operators of protection from harassment that this court specifically found that they were entitled to,” OOIDA’s motion states. LL