Friday, August 26, 2011 – It took only one of the three arguments
raised by the Owner-Operator Independent Drivers Association (OOIDA)
for the U.S. Court of Appeals for the Seventh Circuit to vacate the
electronic on-board recorder regulation.
The opinion filed Friday by the court vacated the rule and sent it
back to the agency for further proceedings consistent with the
“It’s a fantastic decision,” OOIDA President Jim Johnston said. “The
decision dealt with the issue of harassment of drivers, but the
court left room to come back and challenge other aspects if the
agency gets overly enthusiastic about how they want to monitor
The regulation under fire was 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
non-compliance with the hours-of-service regulations in one
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 opinion from the Seventh Circuit, prepared by Circuit Judge
Diane Wood, stated that the court needs to “address only the first
issue” of driver harassment.
The opinion states that if an agency “fails to consider a factor
mandated by its organic statues, 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.
She wrote that FMCSA’s first argument that it did consider driver
harassment can be set aside immediately.
Judge Wood wrote: “The FMCSA suggests that a single conclusory
sentence in the final rulemaking to the effect that the Agency ‘has
taken the statutory requirement into account throughout the final
rule’ is enough by itself to satisfy section 31137(a). It is not.”
Judge Wood equally dismissed the agency’s second argument contending
that driver harassment was considered during the rulemaking process.
“The Agency’s back-up argument fares no better than its first one,”
she wrote. “For the first time in its consideration of EOBRs, the
Agency’s brief before this court introduces the argument that its
consideration of privacy and the Privacy Impact Assessment it
produced also addresses the statutory factor of harassment.
“This argument is too little, too late.”
The ruling vacates the regulation and sends it back to the agency
for further proceedings consistent with the opinion.
Of note, the final rule struck down in the opinion is not the only
electronic on-board recorder mandate pending from FMCSA. The agency
already has a second rulemaking in progress that would mandate EOBRs
in all trucks.
While there are many options before the agency at this point,
including a possible appeal of the Seventh Circuit’s decision, the
agency could retool the regulation or even simply move forward with
a full mandate while attempting to address driver harassment in such
a way that it relieves the court’s concerns raised in the opinion.
In the opinion, Judge Wood also outlined a couple ways the agency
should and/or could address driver harassment.
In one instance, she wrote that the agency needed to clearly define
a distinction between productivity and harassment and “must also
describe what precisely it is that will prevent harassment from
The court also suggested that a comprehensive study
of motor carriers both using and not using EOBRs could prove
“The Agency needs to consider what types of harassment already
exist, how frequently and to what extent harassment happens, and how
an electronic device capable of contemporaneous transmission of
information to a motor carrier will guard against (or fail to guard
against) harassment,” Judge Wood wrote.
“A study of these problems with EOBRs already in use, and a
comparison with carriers that do not use these devices, might be one
obvious way to measure any effect that requiring EOBRs might have on
“Of course, we considered this absolutely
unnecessary invasion of driver’s privacy rights that would
accomplish nothing in the way of commercial vehicle safety,”
Johnston said of the regulation.
“The court’s decision may very well slow the initiative of heavy
vehicle monitoring and give drivers some reprieve from what we
consider to be an intrusion of privacy.”
Land Line Now News Anchor, Reed Black, contributed to this
Source: Land Line Magazine, The Official Publication of the
Owner-Operator Independent Drivers Association