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

By Jami Jones, Land Line managing editor | Thursday, January 26, 2012

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.

The court initially gave the agency until Feb. 6 to respond. In the latest round of legal filings the Department of Transportation sought a 30-day extension to respond to the cease-and-desist motion.

The Owner-Operator Independent Drivers Association opposed DOT’s request for a 30-day extension and countered with a proposal of a seven-day extension.

OOIDA’s legal counsel Paul Cullen Sr. of The Cullen Law Firm pointed out that nearly five months have passed since the court ruled.

Judge Diane P. Wood wrote the August 2011 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 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.

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 is “both unreasonable and excessive.”

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

See related articles:

OOIDA seeks court order to halt FMCSA’s current EOBR policies, practices
FMCSA ordered to respond to request for cease and desist on EOBR policies

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