FMCSA receives 15-day extension in EOBR case
Posted February 2, 2012
The United States Court of Appeals for the Seventh Circuit was asked by the Federal Motor Carrier Safety Administration (FMCSA) for a 30-day extension of time to respond to a recent motion by the Owner-Operator Independent Drivers Association (OOIDA), the Petitioners in the case. OOIDA is asking for a specific mandate involving the review of the electronic on-board records (EOBRs) final rule that was vacated August 2011.
The agency was originally given a date of February 6, 2012, to respond to the Petitioner’s most recent request. FMCSA sought from the Court an extension until March 7, 2012. The Petitioners in the case informed the Court that they opposed the 30-day extension and were only willing to consent to a one-week extension.
The Court, instead, granted FMCSA the 15-day extension (February 21, 2012).
Petitioners’ recent motion
OOIDA asked the Court to order FMCSA to cease and desist conduct that is inconsistent with the Court’s prior opinion regarding EOBRs. This was filed on January 19, 2012.
Petitioners moved for the issuance of a mandate to cease and desist from “authorizing, sanctioning or in any way encouraging the use of electronic monitoring devices to increase compliance with hours-of-service regulations until it has promulgated regulations that ensure that such devices will not be used to harass drivers.”
The Court granted the Petitioners’ motion on January 24, 2012, ordering FMCSA to respond by February 6, 2012, prompting the request for the additional time.
Rationale for motion
FMCSA adopted the position that even though the Court vacated §395.16 mandating use of the EOBRs in certain instances, it may authorize motor carriers to have a policy of using EOBRs, and that 49 CFR 395.15, promulgated in 1988 and applicable to Automatic On-Board Recording Devices (AOBRDs), authorized the agency’s current EOBR policy, even though the rule on face value only addresses AOBRDs.
The U.S Court of Appeals for the Seventh Circuit vacated FMCSA’s final rule requiring the installation and use of electronic on-board recorders (EOBRs) by motor carriers with serious patterns of hours-of-service violations.
Under the final rule, if during a compliance review, a motor carrier has hours-of-service violations totaling ten percent or more, installation of EOBRs would be mandated on all of the motor carrier’s vehicles for at least two years. The final rule was published in the Federal Register April 5, 2010.
OOIDA, who filed the petition for review, gave three reasons in its petition for vacating the final rule:
- The rulemaking does not ensure that the devices are not used to harass drivers,
- FMCSA’s cost-benefit analysis fails to demonstrate the benefits of requiring EOBRs, and
- EOBRs would be a violation of a driver’s right to privacy under the Fourth Amendment.
In its decision, the Court only addressed the issue of driver harassment, stating that the agency did not do an adequate job of addressing this issue in the rulemaking. The Court states that FMCSA did not address the distinction between productivity and harassment and did not describe precisely what the agency will do to prevent harassment from occurring.
The Court declined to address the other two issues raised by OOIDA in its petition, stating that this area of regulation is moving quickly based on FMCSA’s current proposal to require EOBRs for all motor carriers, that technology and markets are rapidly changing, and that FMCSA is conducting new case studies on EOBR use.
The rulemaking was sent back to FMCSA for further proceedings consistent with the Court’s opinion.
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