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DOT tries for 30-day extension on OOIDA cease-and-desist motion; gets 15

By Jami Jones, managing editor

The rapid-fire pace of the actions following OOIDA’s motion seeking a cease-and-desist order on FMCSA’s electronic on-board recorder policies and practices does not appear to be slowing down.

Nearly five months after the U.S. Court of Appeals for the 7th Circuit tossed the electronic on-board recorder regulation, the agency still promoted the use of the devices. That encouragement and promotion amounts to “blatant disregard” for the court’s Aug. 26, 2011, decision, according to OOIDA’s late January court filing.

The motion seeking a cease and desist, 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.

Judge Diane P. Wood wrote the August 2011 decision for the 7th 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 statute, 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 court initially gave the agency until Feb. 6 to respond to OOIDA’s petition. In the latest round of legal filings the Department of Transportation sought a 30-day extension to respond to the cease-and-desist motion.

OOIDA opposed DOT’s request for a 30-day extension and countered with a proposal of a seven-day extension.

In the five months since the decision, the agency still has not published a rulemaking dealing with harassment. Yet EOBRs are actively being used in the industry, Cullen pointed out in the Association’s opposition to a 30-day extension.

He called the DOT’s request for a 30-day extension of time “both unreasonable and excessive.”

Apparently Judge Wood agreed to some extent. She granted only a 15-day extension, giving the DOT and FMCSA until Feb. 21 to respond to the motion for a cease and desist. LL

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