OOIDA legal victory forces FMCSA to ‘evaluate’ full EOBR mandate

| Wednesday, November 02, 2011

The recent OOIDA legal victory that vacated a regulation mandating electronic on-board recorders for “bad actors” has also sent the Federal Motor Carrier Safety Administration back to the drawing board on its proposed full EOBR mandate.

The U.S. Court of Appeals for the Seventh Circuit ruled on Aug. 26 to vacate the 2010 final regulation mandating the use of electronic on-board recorders for companies with a safety history that reflects a 10 percent or greater level of noncompliance with the hours-of-service regs in one compliance review.

OOIDA filed suit against the agency contending that the rule was arbitrary and capricious because it does not “ensure that the devices are not used to harass vehicle operators,” as required by law. The Association’s lawsuit also contended that the cost-benefit analysis failed to demonstrate the benefits of the technology and that the EOBRs violate the Fourth Amendment.

The court needed only one of the three arguments to vacate the rule – the harassment argument.

The opinion from the Seventh Circuit, prepared by Circuit Judge Diane Wood, stated that the court “need address only the first issue” of driver harassment.

The opinion states that if an agency “fails to consider a factor mandated … this omission is alone ‘sufficient to establish an arbitrary-and-capricious decision’” that requires vacating 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.

Following the court’s ruling, FMCSA scrapped plans that projected to publish on June 28, 2012, a final rule mandating the use of EOBRs on all trucks. In a report on significant rulemakings issued by the agency on Nov. 1, there are no projected dates for the full mandate.

While the agency cited the court’s decision as a reason for deleting the schedule, it did not acknowledge the ruling on the harassment argument and upholding the Fourth Amendment rights of truckers. Instead the agency noted that in the vacated rule, technical specifications for the devices were outlined. Those along with the rest of the rule were tossed by the ruling.

“On April 5, 2010, FMCSA issued a final rule that required the use of EOBRs by motor carriers with significant hours-of-service violations. A petition for judicial review was made with the Seventh Circuit. On Aug. 26, 2011, the court vacated the final rule, which removed the technical specifications used in this rulemaking,” the report states.

“The agency is currently evaluating alternatives in continuing this rulemaking, and at this time is uncertain of the rule’s schedule.”

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