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Court rejects EOBR rule on driver harassment question

In rejecting the EOBR regulation, the court cited the “well established” rule that says a federal agency “must articulate a reason for its action that demonstrates a ‘rational connection between the facts found and the choice made.’ … Its explanation may not be superficial or perfunctory.”

By Kevin Jones
The Trucker Staff

8/27/2011

CHICAGO — DOT-imposed electronic devices meant to monitor driving time cannot be used to harass truck drivers, and so a 2010 e-log regulation must go back to the drawing board because it fails to address such protections, a federal appeals court decided Friday.

The rule, Electronic On-Board Recorders for Hours-of-Service Compliance (FMCSA-2004-18490), was to take effect June 4, 2012.

Siding with the Owner-Operator Independent Drivers Association and three of its members, the U.S. Court of Appeals for the Seventh Circuit said the Federal Motor Carrier Safety Administration did not meet a specific requirement set by Congress who, in the Truck and Bus Safety and Regulatory Reform Act of 1988, “foresaw that monitoring devices on trucks might be used to enforce Hours of Service rules, and that these devices could potentially be used to harass drivers.”

Harassment, according to the OOIDA petition, would encompass the sort of pressure carriers exert over drivers. This includes ordering them to keep driving — whether tired or not — as long there is time remaining under the Hours of Service limit, as monitored by an EOBR system. Additionally, the regulation — which was to be applied to carriers “that have demonstrated serious noncompliance with HOS rules” — would have imposed EOBRs on all drivers for those carriers, including drivers with no history of log violations.

And even though OOIDA and others filed comments voicing driver harassment concerns during the rulemaking process, FMCSA’s April 5, 2010, final rule stated simply that the agency “has taken the [statutory requirement] into account,” the court noted.

FMCSA argued such a statement is, by itself, enough to satisfy the requirement.

“It is not,” the court said. “Unfortunately, however, this sentence does represent the entirety of the Agency’s direct consideration of harassment.”

The appeals panel cited the “well established” rule that says a federal agency “must articulate a reason for its action that demonstrates a ‘rational connection between the facts found and the choice made.’ … Its explanation may not be superficial or perfunctory.”

The court also rejected FMCSA’s secondary defense: that driver harassment was addressed under the EOBR rule’s Privacy Impact Assessment. The court ruled that harassment and privacy might be related, but harassment still must be considered independently.

“The Agency’s failure to respond to this concern, which describes a form of harassment that the statute required it to address and that raises problems distinct from privacy, renders the rule arbitrary and capricious,” the court said in vacating and remanding the EOBR regulation for additional rulemaking.

Noting FMCSA is developing another rule to require electronic logs for all motor carriers, the court chose not to take up two other objections posed by OOIDA: a challenge to the cost-benefit analysis used to support the EOBR rule, and the rule's legality under the Fourth Amendment, which guards against unreasonable searches and seizures.

“Rather than reach beyond what is strictly necessary here, prudence dictates that we leave for another day any questions that might arise in connection with whatever new rule the Agency decides to adopt,” the appeals panel concluded.

In prefacing its decision, the court hinted at the complex deliberations likely to follow future EOBR regulations: “The briefing raises a litany of issues that would make for a difficult and exhaustive Administrative Law final exam.”

OOIDA called the court decision a “triumph” for small business truckers.

“Companies can and do use technology to harass drivers by interrupting rest periods. They can contact the driver and put on pressure to get back on the road to get the most of his or her on-duty time, regardless of how fatigued a driver may be,” said Todd Spencer, executive vice president of OOIDA. “Such a mandate would be a step backward in the effort toward highway safety and is an overly burdensome regulation that simply runs up costs for the majority of trucking, which is small-business.”

An FMCSA spokesman on Saturday said that the decision is under review by the agency.

The American Trucking Associations, which supports an EOBR mandate, likewise said it was reviewing the decision.

“FMCSA’s research shows that compliance with the current hours-of-service rules is strongly associated with reduced crash risk. Of course, electronic logging devices are an important tool for improving hours of service compliance,” ATA President and CEO Bill Graves said. “We hope FMCSA will work quickly to address the Court’s decision and the important device design and performance specifications being evaluated by the Administrator’s Motor Carrier Safety Advisory Committee.”

Kevin Jones of The Trucker staff can be reached for comment at kevinj@thetrucker.com.

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