Harassment charge

Appeals court vacates EOBR regulation on ruling it does not protect drivers

By Max Heine

A federal appeals court on Aug. 26 vacated the Federal Motor Carrier Safety Administration’s electronic onboard recorder regulation for not addressing how the rule could prevent the devices from being used to harass drivers.

A three-judge panel for the U.S. Court of Appeals for the Seventh Circuit concluded that “the rule cannot stand because the agency failed to consider an issue that it was statutorily required to address.” The Truck and Bus Safety and Regulatory Reform Act of 1988 “requires the agency to ensure that any such device is not used to ‘harass vehicle operators.’”

The Owner-Operator Independent Drivers Association appealed FMCSA’s April 5, 2010, rule last year. That regulation required EOBRs for all the trucks used by a carrier that has a greater than 10 percent rate of noncompliance with hours of service regulations in any single compliance review.

However, existing regulations require EOBRs be used “to monitor safety, not workplace productivity.” Any future EOBR rule should contain “an adequate explanation that addresses the distinction between productivity and harassment [that] must also describe what precisely it is that will prevent harassment from occurring,” the court wrote.

The court disposed of the rule on “a narrow basis,” referring to the absence of a guard against harassment. It stated OOIDA had presented several arguments against the rule in February and noted “the briefing raises a litany of issues that would make for a difficult and exhaustive administrative law final exam.”

An FMCSA official said she is reviewing the court’s decision and that the agency “is committed to raising the bar for commercial truck and bus safety.”

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