CHICAGO — The U.S. Court of Appeals for the Seventh Circuit has now told the Federal Motor Carrier Safety Administration to respond by Feb. 21 to a motion filed this month by the Owner-Operator Independent Drivers Association that asks the court to order the agency to cease and desist promoting the voluntary use of electronic on-board recorders to track Hours of Service compliance.
The court orginally told the FMCSA to respond by Feb. 6, but FMCSA requested a 30-day extension. OOIDA countered with an offer of seven day, but the court decided 15 days was necessary and sufficient.
OOIDA claisms the promotion amounts to “blatant disregard” for the court’s Aug. 26, 2011, decision that vacated an FMCSA rule that has come to be known as EOBR I.
The court vacated the rule because it said the FMCSA failed to address driver harassment by EOBRs in the rulemaking process.
“We basically wrote a letter to the court that outlined the lack of action and follow-through by the agency since the court found the rule without merit and told the court that the FMCSA had done absolutely nothing to remedy what was going on to address the issues raised by the court,” OOIDA Executive Vice President Todd Spencer told The Trucker.
OOIDA’s motion asks the court to issue a mandate ordering the FMCSA to cease and desist from authorizing, sanctioning or in any way encouraging the use of electronic monitoring devices until the agency has promulgated regulations that ensure that such devices will not be used to harass drivers.
“We’ve seen absolutely nothing out of FMCSA to make you believe they are paying any attention at all other than to say they weren’t going to appeal the decision,” Spencer said. “The position they’ve taken and a position that has been encouraged by the vendors that market EOBRs is that you can do anything you want to as long as it is on a voluntary basis.”
Spencer said that in the wake of the court ruling, the FMCSA should have reinstituted a new rulemaking and should have been providing guidance to motor carriers about what would and would not be permissible with regard to the use of EOBRs.
But instead, OOIDA said in its request to the court that “following this court’s decision, respondent FMCSA embarked on a policy of encouraging motor carriers to require drivers to use electronic monitoring devices to record their Hours of Service without taking any steps to ensure that the devices are not used to harass drivers.
The rule overturned by the court was the so-called “remedial” EOBR rule that required motor carriers with significant HOS violations to install EOBRs.
On Jan. 31, 2011, the FMCSA issued a proposed rulemaking now known as EOBR II, which would require all motor carriers to install EOBRs to monitor HOS compliance.
The FMCSA did not appeal the ruling that vacated EOBR I, choosing instead to address the issues raised by the court in EOBR II.
Interviewed Oct. 17, 2011 at the American Trucking Associations’ Management Conference and Exhibition, FMCSA Administrator Anne Ferro was noncommittal on the direction the agency will take with a new EOBR rule — but said the rulemaking process will not “skip a beat” because of the court decision.
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