WASHINGTON – The U.S. Court of Appeals for the Seventh Circuit has vacated the U.S. government’s upcoming electronic onboard recorder (EOBR) policy, ruling that it fails to protect drivers from harassment.
Ruling on a petition brought forth by the Owner-Operator Independent Drivers Association, the court effectively rejected the regulation and ordered it be sent back to the Federal Motor Carrier Safety Administration (FMCSA) for a rewrite that’s consistent with the court’s opinion.
The three-judge panel agreed with OOIDA’s suit that the rule was "arbitrary and capricious" because it does not ensure that electronic logbooks won’t be "used to harass vehicle operators."
The court ruled that the FMCSA did not provide enough detail on how it intends to protect drivers from overzealous employers. It also dismissed the agency’s contention that driver harassment was considered during the rulemaking.
The judges highlighted other shortcomings as well – such as the cost-benefit analysis – but they said the driver issue was enough reason to put the brakes on the rule.
"It’s a fantastic decision," said OOIDA President Jim Johnston. "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 truckers."
The rule, scheduled to take effect next summer, will require truckers with a 10-percent or greater HOS violation rate during a compliance review to install EOBRs on all their vehicles, regardless of the model year, for a two-year period.
Beyond that, the agency has a much broader rule in the works. That version, slated for around 2015, will mandate the devices for almost all other carriers operating in the U.S.
According to OOIDA, Circuit Judge Diane Wood outlined how the agency should proceed.
She wrote that FMCSA needs to make a distinction between productivity and harassment and "describe what precisely it is that will prevent harassment from occurring."
The court also wants a comprehensive study of motor carriers both using and not using EOBRs. The study should consider what types of harassment already exist, how frequently it 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."
The FMCSA is reviewing the court ruling. Observers say the agency could do one of two things: It could retool the regulation to accommodate the court or it could move forward with the full-mandate, provided the expanded version considers the court’s opinion.
The American Trucking Associations, which supports mandatory EOBRs, issued this statement today:
"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,” Graves added.
“As demonstrated by the record improvement in the industry’s safety record since the framework for the current hours-of-service rules went into effect and the agency’s own compliance and crash data, increasing compliance with the rules is vital. Of course, electronic logging devices are an important and effective means to this end.”
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