In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2340
O WNER-O PERATOR INDEPENDENT D RIVERS
A SSOCIATION, INC., et al.,
Petitioners,
v.
F EDERAL M OTOR C ARRIER S AFETY A DMINISTRATION,
Respondent.
Petition for Review of a Final Rule of
the Federal Motor Carrier Safety Administration.
No. FMCSA-2004-18940.
A RGUED F EBRUARY 7, 2011—D ECIDED A UGUST 26, 2011
Before
R OVNER and W OOD , Circuit Judges, and
G OTTSCHALL, District Judge.
W OOD , Circuit Judge. Three commercial truck drivers
and the Owner-Operator Independent Drivers Associa-
Hon. Joan B. Gottschall, of the United States District Court for
the Northern District of Illinois, sitting by designation.
2 No. 10-2340
tion (OOIDA) have petitioned for review of a final
rule issued by the Federal Motor Carrier Safety Adminis-
tration (FMCSA or Agency) about the use of elec-
tronic monitoring devices in commercial trucks. Electronic
On-Board Recorders for Hours-of-Service Compliance,
75 Fed. Reg. 17,208 (Apr. 5, 2010). Though the briefing
raises a litany of issues that would make for a difficult
and exhaustive Administrative Law final exam, in the
end we find that we can dispose of the petition on a
narrow basis. We conclude that the rule cannot stand
because the Agency failed to consider an issue that it
was statutorily required to address. Specifically, the
Agency said nothing about the requirement that any
regulation about the use of monitoring devices in com-
mercial vehicles must “ensure that the devices are not
used to harass vehicle operators.” 49 U.S.C. § 31137(a).
We therefore grant the petition and vacate the rule.
I
Federal regulators have long limited the number of
hours during which commercial truck drivers may
operate their vehicles in a given day and over the course
of a week. Between 1940 and 2003, the permissible “hours
of service” (HOS) went largely unchanged for most
drivers. The basic idea has remained constant: to protect
driver health and to ensure highway safety by reducing
driver fatigue and thus fatigue-related accidents. To
keep track of a trucker’s time on the road and, to the
extent possible, his time spent sleeping, the regulations
require a driver to document four statuses: (1) driving;
No. 10-2340 3
(2) on duty, not driving (e.g., sitting at a loading dock or
filling up the gas tank); (3) in the sleeper-berth (a small
compartment in the cab of the truck with a bed); and
(4) off duty. 49 C.F.R. § 395.8(b) (2010). The regulations
set out daily limits for time spent either driving or other-
wise on duty, and they establish a daily minimum for
consecutive hours off duty. That minimum is subject to
an exception for time spent in the sleeper-berth. This
allows drivers to split their off-duty hours into two parts
if they rest in the truck. The regulations also cap the
total hours a driver may spend on duty in a given
week (which can be measured in either seven- or eight-
day units depending on the carrier).
Traditionally, drivers have recorded their hours in
paper logbooks (referred to a driver’s “record of duty
status,” id. at § 395.8) to demonstrate compliance with
the HOS regulations. Individual drivers must keep
copies of their records-of-duty status for seven days.
They then submit the records to their motor carrier,
which must retain them for six months. Id. at § 395.8(k).
As one might imagine, this paper-based system is not
free from problems of manipulation and falsification,
and those problems have long been a subject of concern.
In 2003, the FMCSA issued a final rule that sub-
stantially, and controversially, changed the HOS
numbers and how they would be measured. Hours of
Service of Drivers; Driver Rest and Sleep for Safe Opera-
tions, 68 Fed. Reg. 22,456 (Apr. 28, 2003). The 2003 rule
increased the daily driving limit, reduced the daily on-
duty limit, increased the daily off-duty requirement,
4 No. 10-2340
retained the sleeper-berth exception, and created a 34-
hour restart rule as a new exception to the weekly on-
duty cap. See id. at 22,457, 501-02. Following a petition
for review, however, the D.C. Circuit held that the 2003
revised rule was arbitrary and capricious because the
“agency failed to consider the impact of the rules on the
health of drivers, a factor the agency must consider
under its organic statute.” Public Citizen v. FMCSA, 374
F.3d 1209, 1216 (D.C. Cir. 2004).
Although the court’s decision ordinarily would have
required vacatur of the rule, Congress overrode
that consequence in legislation that granted the Agency
temporary relief and kept the 2003 rulemaking in effect
until the earlier of either a new rule from the Agency or
one year. Surface Transportation Extension Act of 2004,
Part V, Pub. L. 108-310, § 7(f), 118 Stat. 1144, 1154.
The Agency went back to the drawing board, but it ulti-
mately made only one small change to the rule. In 2005
it issued a final rule with the revised HOS regulations.
Hours of Service of Drivers, 70 Fed. Reg. 49978 (Aug. 25,
2005). Again, the new HOS rule did not survive judicial
review in one piece. This time, the Agency erred be-
cause (1) it failed to allow meaningful comment on the
driver-fatigue model it used to justify increasing the
daily driving limit and in creating the 34-hour restart
provision, and (2) it failed adequately to explain its
reasons for adopting this model, which figured heavily
in the Agency’s cost-benefit analysis. These two flaws,
the D.C. Circuit concluded, were serious enough to
require more changes to the rule. OOIDA v. FMCSA, 494
F.3d 188, 199-206 (D.C. Cir. 2007).
No. 10-2340 5
Nestled within the Agency’s larger consideration of the
HOS rules is the more narrow, but still controversial,
regulatory issue before us. In the notice of proposed
rulemaking for the 2003 rule, the Agency considered
requiring truckers to use electronic on-board records
(EOBRs) instead of logbooks for documenting their
records of duty status. The Agency defines an EOBR as “an
electronic device that is capable of recording a driver’s
hours of service and duty status accurately and auto-
matically.” 49 C.F.R. § 395.2 (2011). An EOBR must be
“integrally synchronized” with a truck’s engine, id.;
this allows the device to be linked simultaneously with
both the engine and the driver’s telephone so that con-
temporaneous updates can be sent either through cellular
technology or via satellite to a remote server. To meet
the Agency’s performance requirements, the amount of
data an adequate EOBR must be capable of recording is
extensive: the truck’s registration number, the date and
time, the location of the truck, the distance traveled, the
hours in each duty status for a 24-hour period, the
motor carrier’s name and Department of Transportation
number, the weekly basis used by the motor carrier
(either seven or eight days) to calculate cumulative
driving time, and even the document numbers or name
of the shipper and goods being shipped. Id.; 49 C.F.R.
§ 395.16 (2010). At a less technical level, an EOBR is
essentially a device implanted into a truck that records
significant amounts of data about the truck’s location,
how it is being used, how it has been used over time,
and that uses satellite technology to allow nearly
instant electronic transmission of this data to the trucker’s
employer (that is, the motor carrier).
6 No. 10-2340
During the 2003 rulemaking procedure, the Agency
determined that “falsification of logbooks . . . [is] wide-
spread.” Public Citizen, 374 F.3d at 1214 (citing 65 Fed. Reg.
25,540, 25,558 (2000)). Ultimately, however, it decided
not to require EOBRs as part of its comprehensive
overhaul of the HOS rules, see 68 Fed. Reg. at 22,488-89.
It gave several reasons for that decision. The most sig-
nificant was that it believed that, as of then, it could not
adequately estimate the costs or benefits of an EOBR,
in part because the market was small (which made
cost estimates difficult), and in part because it had not
tested available devices or those in current use (which
made benefits, like increased compliance, difficult to
estimate). Id. In addition, the Agency wanted more time
to address the concerns that had been expressed
about secondary uses of data and about the effects of
EOBRs on privacy. Id. at 22,489. Even though it con-
cluded that it could not justify a general EOBR require-
ment in 2003, the Agency promised “to continue research
on EOBRs and other technologies.” Id. at 22,488. Public
Citizen criticized the Agency’s decision not to adopt
an EOBR requirement, to the extent that the reason was
a lack of information about the potential costs and
benefits of an EOBR mandate. 374 F.3d at 1220-22. The
court could not “fathom” why the Agency had not “even
taken the seemingly obvious step of testing existing
EOBRs on the road, or why the agency ha[d] not at-
tempted to estimate their benefits on imperfect empirical
assumptions.” Id. at 1222. The court characterized the
absence of information about how much EOBRs could
increase compliance as “willful,” given the lack of testing.
No. 10-2340 7
Id. This was especially glaring since the Agency had
allowed voluntary EOBR use for over 15 years at the
time. Id. After Public Citizen, in the rulemaking con-
ducted under the temporary stay from Congress, the
Agency did not address EOBRs.
In 2004, the Agency made good on its promise to investi-
gate EOBRs further when it issued an optional advanced
notice of proposed rulemaking indicating that it was
still considering an EOBR mandate. Electronic On-Board
Recorders for Hours-of-Service Compliance, 69 Fed. Reg.
53386 (Sept. 1, 2004). That advance notice led to a
formal notice of proposed rulemaking in 2007, which
considered three regulatory issues: (1) new performance
standards for EOBR technology; (2) the use of EOBRs
to “remediate regulatory noncompliance”; and (3) incen-
tives to promote voluntary use of EOBR technology.
Electronic On-Board Recorders for Hours-of-Service
Compliance, 72 Fed. Reg. 2340, 2343 (Jan. 18, 2007). The
noncompliance measure was the most significant of
the three and is the focus of our review. The Agency
proposed requiring EOBR use for carriers found to have
an HOS violation of greater than 10 percent for any two
compliance reviews in a two-year period. The Agency
calls this the “2x10 remedial directive.” As the Agency
described this option in its final rulemaking, the 2x10
remedial directive would apply to “a relatively small
population of companies and drivers with a recurrent
HOS compliance problem.” 75 Fed. Reg. at 17,211. In the
section of the notice of proposed rulemaking that lists
statutes authorizing the FMCSA to promulgate regula-
tions regarding monitoring devices, the Agency acknowl-
8 No. 10-2340
edged that Congress contemplated rules mandating
electronic monitoring devices in the Truck and Bus
Safety and Regulatory Reform Act of 1988. 72 Fed. Reg. at
2341. This statute, the Agency realized, also “requires
the Agency to ensure that any such device is not used
to ‘harass vehicle operators.’ ” Id. (quoting 49 U.S.C.
§ 31137(a)).
After receiving and considering a significant number
of comments to the proposed rule, the Agency promul-
gated the 2010 final rule now before us. In so doing, the
Agency produced two reports related to its reasons for
not requiring EOBRs in 2003—a Regulatory Impact Analy-
sis that weighed potential costs and benefits of re-
quiring EOBRs, and a Privacy Impact Assessment. In
the end, it decided on a rule under which motor carriers
“that have demonstrated serious noncompliance with
the HOS rules will be subject to mandatory installation
of EOBRs.” 75 Fed. Reg. at 17,208. The 2010 rule
abandoned the proposed 2x10 directive in favor of a
stricter “1x10 remedial directive.” Under the 1x10 direc-
tive, the Agency will issue a remedial order—requiring
installation of EOBRs for all the trucks in a motor
carrier’s fleet—to any carrier found to have a greater
than 10 percent rate of noncompliance with HOS rules
in any single “compliance review.” Id. A remedial direc-
tive would make the EOBRs mandatory for a period of
two years; after that, a carrier, if it desired, could in
theory return to using the logbooks. Id. at 17,211. The
Agency adopted the stricter rule because 1x10 carriers
have a 40 percent higher crash rate than the general
motor carrier population, id., and because it agreed with
No. 10-2340 9
the numerous commenters that the “proposed 2x10
trigger would not mandate EOBR use by enough
carriers, given the total population.” Id. at 17,215.
The 2010 rule was entered April 5, 2010, and this
petition followed the day before the rule became effec-
tive, June 4, 2010. Though final, the rule set an HOS
compliance date—with the specter of a remedial directive
following a 1x10 violation—two years down the
road—June 4, 2012.
II
Before reaching the merits, we must consider several key
preliminary points: jurisdiction, standing, and ripeness.
The Agency challenges the latter two, and we have
an independent obligation to assure ourselves that juris-
diction is secure. Because the FMCSA is a part of the
Department of Transportation, we start with the Hobbs
Act, which supplies our jurisdiction and guides our
consideration of standing: “Any party aggrieved by the
final order may, within 60 days after its entry, file a
petition to review the order in the court of appeals
wherein venue lies.” 28 U.S.C. § 2344. No one contests
that the petition was timely, that the 2010 rule was a
“final order,” or that venue is proper (the individual
petitioners live in this jurisdiction).
Our attention, therefore, is on the question whether
the petitioners qualify as “parties aggrieved” by the rule.
This is an inquiry that incorporates elements of both
prudential and constitutional standing. Brotherhood of
10 No. 10-2340
Locomotive Engr’s v. United States, 101 F.3d 718, 723 (D.C.
Cir. 1996). We have no doubt, and the Agency does not
challenge, that the petitioners have satisfied the purely
prudential concerns—that a challenger be a “party” to the
agency proceedings, id., and “arguably within the zone of
interests” regulated by the agency. Association of Data
Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970).
Petitioners’ participation in the notice-and-comment
process below establishes their party status, while the
fact that the organization is composed of and repre-
sents the truckers being regulated (and the individual
petitioners are themselves subject to the new rule)
easily brings them within the “zone of interests”of the
2010 rule.
The “aggrieved” requirement of the Hobbs Act impli-
cates constitutional standing, which, through Article III,
requires a petitioner to demonstrate a concrete and par-
ticularized injury, which has been caused by the agency,
and which a court can redress. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). Only injury is at issue
here, and we find this requirement easily met. As Lujan
explained, when the complainant is “an object of the
action (or forgone action) at issue . . . there is ordinarily
little question that the action or inaction has caused him
injury.” Id. at 561-62. The three truck drivers are
the “objects of the action” here. It is truck drivers who
will be required to install EOBRs should they work
for a carrier subject to a remedial directive, and the
central purpose of the rule is to increase their com-
pliance with HOS regulations. Although compliance is
measured at the carrier level, it is the individual truck
No. 10-2340 11
drivers whose sleep is really at issue under the HOS
rules and whose status is being tracked on a day-to-
day basis. As a trade association that includes truckers
and represents their interests, OOIDA meets the require-
ments of associational standing; it has Article III
standing because the individual truckers do. Hunt v.
Washington State Apple Adver. Comm’n, 432 U.S. 333, 343
(1997); Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002).
The Agency’s argument that the petitioners’ injury
is pure “speculation” is premised on the theory that
because the petitioners are not currently under a
remedial directive they cannot demonstrate an injury.
Extending this premise, the Agency argues that only
drivers or motor carriers “currently subject” to a
remedial directive have standing to challenge the
Agency’s rule. The Agency’s standing argument, how-
ever, ignores the very idea that it advances to justify
adopting the EOBR rule in the first place: a punitive
stick (it says) is necessary to increase compliance with
HOS regulations. The 2010 rule aims to alter truck driv-
ers’ behavior now to avoid a remedial directive in
the future. Cf. 75 Fed. Reg. at 17,211 (noting the rule-
making “provides immediate safety benefits to society”
(emphasis added)). Indeed, the very reason the
Agency chose the 1x10 directive rather than the 2x10
option was to raise the stakes in an effort to achieve
more compliance by 2012. In the end, it strikes us as
odd that the Agency is arguing that it must have a
strict rule now to get truck drivers to be more compliant
with HOS rules, but at the same time it is asserting
that these rules are not meant to change anyone’s im-
12 No. 10-2340
mediate behavior enough to confer standing to challenge
that regulation. Cf. Stilwell v. Office of Thrift Supervision,
569 F.3d 514, 518 (D.C. Cir. 2009) (finding it “more than
a little ironic” that an agency “would suggest Peti-
tioners lack standing and then, later in the same brief,”
label the petitioner a “prime example” of the “very prob-
lem the [r]ule was intended to address” (internal quota-
tion marks omitted)).
As for ripeness, the Agency relies on the same theory
as it did for standing: any challenge to the rule is
unripe because the petitioners are not currently under
a remedial directive. This argument ignores the well-
established rule of Abbott Laboratories, which permits pre-
enforcement challenges of final agency rules so long as
the claim is fit for judicial decision and delay will cause
some hardship to the parties. Abbott Labs. v. Gardner, 387
U.S. 136, 149 (1967). In the decades since Abbott Laboratories,
pre-enforcement review of final rules has become the
norm. Where, as here, a petition involves purely legal
claims in the context of a facial challenge to a final rule,
a petition is “presumptively reviewable.” Sabre, Inc. v.
Dep’t of Transp., 429 F.3d 1113, 1119 (D.C. Cir. 2005) (inter-
nal quotation marks and citations omitted). In light of
this presumption, a petitioner need not demonstrate
individual hardship to show ripeness unless the agency
identifies “institutional interests favoring the postpone-
ment of review.” Id. All agree that this case is presump-
tively fit for review (the issues are purely legal), and
the Agency has not identified any institutional interest
that would require a more exacting inquiry into hard-
ship and thus would counsel for delay. Further, as
No. 10-2340 13
Abbott Laboratories itself demonstrated, hardship need
not take the form of an actual enforcement action; the
threat of enforcement is sufficient because the law is in
force the moment it becomes effective and a person
made to live in the shadow of a law that she believes to
be invalid should not be compelled to wait and see if a
remedial action is coming. 387 U.S. at 150-54; see also
Metropolitan Milwaukee Ass’n of Commerce v. Milwaukee
County, 325 F.3d 879, 882-83 (7th Cir. 2003). This
rationale is particularly powerful here because a
compliant truck driver who works for a carrier that
happens to have 11 out of 100 drivers out of compliance
within one year will be forced to install an EOBR even
if she never violated the rules. And, as we explained in
our discussion of standing, the 1x10 mandate is meant
to induce the trucking industry to “change their
behavior or risk costly sanctions.” Clean Air Implementa-
tion Project v. EPA, 150 F.3d 1200, 1205 (D.C. Cir. 1998).
That is enough detriment to make a petition ripe.
Before leaving the topic of ripeness, we must make one
last point. The Agency’s theory that no claim is ripe
until a punitive sanction has been imposed not only
ignores Abbott Laboratories, but also is flawed because it
conflicts with our jurisdictional statute. The Hobbs Act
provides that petitions for review must be filed within
60 days following the entry of a final rule. 28 U.S.C. § 2344.
Congress wrote this statute for the very purpose of en-
suring ex ante review of an entire rule (as opposed to a
more narrow, ex post or as-applied challenge), just as it
has done for final rules in a host of other regulatory
contexts. See, e.g., Clean Air Implementation Project, 150
14 No. 10-2340
F.3d at 1204. If the Agency’s theory were correct, any
final rule could be insulated from a pre-enforcement
challenge by the simple expedient of setting an effective
date 61 or more days after the rule was entered; ripeness
would always stand as a bar to a petition. Such an inter-
pretation of ripeness would directly oppose Congress’s
determination that pre-enforcement review should be
the norm for agency rules that fall under statutes like
the Hobbs Act. Accordingly, we reject this argument.
III
Turning to the merits, the petitioners raise three
reasons for vacating the 2010 final rule. First, they argue
that the regulation is arbitrary and capricious because
it does not “ensure that the devices are not used to
harass vehicle operators,” as required by 49 U.S.C.
§ 31137(a); see 5 U.S.C. § 706(2)(A). Second, they argue
that the Agency’s cost-benefit analysis is arbitrary and
capricious because it fails to demonstrate the benefits
of requiring EOBRs. Finally, the petitioners argue that
mandating EOBRs violates the Fourth Amendment.
We need address only the first issue.
Our starting point is the Supreme Court’s State Farm
decision, which explained that normally, “an agency rule
would be arbitrary and capricious if the agency has . . .
entirely failed to consider an important aspect of the
problem” before it. Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). This was the
principle at issue in the earlier Public Citizen decision
about these very rules. In Public Citizen, the D.C. Circuit
No. 10-2340 15
applied the well-established rule that when an agency
fails to consider a factor mandated by its organic
statute, this omission is alone “sufficient to establish an
arbitrary-and-capricious decision requiring vacatur of
the rule.” 374 F.3d at 1216; see also Texas Oil & Gas Ass’n
v. EPA, 161 F.3d 923, 934 (5th Cir. 1998). When
Congress requires an agency to address something
before issuing a regulation, that factor is by definition
an “important aspect of the problem” under State Farm.
See Public Citizen, 374 F.3d at 1216. This is in contrast to
factors an agency “may” consider, which might not
always be an “important aspect” of a problem. Adherence
to this rule is essential because it goes directly to the
scope of the authority delegated to an agency by Con-
gress; when an agency ignores a mandatory factor it
defies a “statutory limitation on [its] authority.” United
Mine Workers v. Dole, 870 F.2d 662, 673 (D.C. Cir. 1989).
Such an act is necessarily arbitrary and capricious.
Congress foresaw that monitoring devices on trucks
might be used to enforce HOS rules, and that these
devices could potentially be used to harass drivers. This
led to the following provision:
Use of monitoring devices.—If the Secretary of
Transportation prescribes a regulation about the use
of monitoring devices on commercial motor vehicles
to increase compliance by operators of the
vehicles with hours of service regulations of the
Secretary, the regulation shall ensure that the
devices are not used to harass vehicle operators.
However, the devices may be used to monitor pro-
ductivity of the operators.
16 No. 10-2340
49 U.S.C. § 31137(a). There is no question that section
31137(a) is mandatory. The Agency concedes that it
would be arbitrary and capricious not to consider this
factor or to fail to explain its conclusion about the risk
of harassment.
The Agency has taken on the difficult task of arguing
that it adequately and expressly considered whether the
EOBRs mandated by its rule would harass drivers. But
its first argument can be set aside immediately. 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 through-
out the final rule” is enough by itself to satisfy section
31137(a). It is not. Unfortunately, however, this sen-
tence does represent the entirety of the Agency’s direct
consideration of harassment, and even it is a bit elliptical.
The word “harass” appears only once in the entire
rulemaking, in the explanatory “legal basis for the
rulemaking” section; otherwise it is not mentioned.
This explanation is insufficient. The Agency must articu-
late a reason for its action that demonstrates a
“rational connection between the facts found and the
choice made.” State Farm, 463 U.S. at 43 (internal quotation
marks and citations omitted). Its explanation may not be
superficial or perfunctory. Instead, the Agency must
“cogently explain why it has exercised its discretion
in a given manner,” id. at 48, such that we can be
sure that the decision was the product of “reasoned
decisionmaking,” id. at 52. When this standard has not
been met, it is necessary to vacate the agency’s action.
See, e.g., Advocates for Highway & Auto Safety v. FMCSA,
No. 10-2340 17
429 F.3d 1136 (D.C. Cir. 2005); OOIDA v. FMCSA, 494
F.3d 206.
To provide an adequate explanation under section
31137(a), the Agency should have revealed how it drew
the line between legitimate measures designed to assure
productivity and forbidden measures that harass. These
terms are undefined in the statute and thus require
some amplification. At argument, counsel for the
Agency told us that the devices would be used only
for monitoring productivity, but we cannot accept this
as a substitute for a proper explanation for at least two
reasons. First, counsel’s post hoc rationalizations for
the agency’s action are no substitute for the agency’s
work. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.
402, 419-20 (1971); Smith v. Harvey, 458 F.3d 669, 674 (7th
Cir. 2006). Second, this particular statement actually
conflicts with the Agency’s explicit representation that
EOBRs would not be used to monitor productivity. 75
Fed. Reg. at 17,214 (“[T]he Agency is requiring EOBRs
to monitor safety not workplace productivity.”).
In addition, an adequate explanation that addresses
the distinction between productivity and harassment
must also describe what precisely it is that will prevent
harassment from occurring. The Agency needs to con-
sider what types of harassment already exist, how fre-
quently 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. A
study of these problems with EOBRs already in use, and
18 No. 10-2340
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 driver harassment.
The Agency’s back-up argument fares no better than
its first one. 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. Petitioners point out that privacy and
harassment are two different—even if related—concepts.
As the D.C. Circuit held, the “relatedness of the concept
discussed to the statutorily mandated factor that the
agency does not discuss does not relieve the agency of
the duty of compliance with the congressional instruc-
tion.” Public Citizen, 374 F.3d at 1217. No one would
seriously take the position that “privacy” is a synonym
for “harassment.” That being the case, section 31137(a)
requires the Agency to consider the issue of harass-
ment independently.
It is also significant that OOIDA raised the issue
of harassment in its comments on the rule, related the
concept of harassment to the sorts of pressure carriers
exert over drivers, and gave examples illustrating the
concerns of its members. See Comments of OOIDA,
FMCSA-2004-18940-1094, at 30-31 (Apr. 18, 2007); Com-
ments of OOIDA, FMCSA-2004-18940-281, at 10-11
(Nov. 30, 2004). Other comments reported that drivers
have been pressured by their motor carriers to perform
at higher levels (and drive even when tired) as a result
No. 10-2340 19
of the fact that an EOBR can send the carrier data in
real time. Even if the 2010 rule does not require that
level of reporting, the technology certainly allows it, and
that is what motivated these comments. See, e.g., Com-
ments of International Brotherhood of Teamsters,
FMCSA-2004-18940-1105, at 5-6 (Apr. 18, 2007); Com-
ments of Virginia L. Ganster, FMCSA-2004-18940-1093,
at 3 (Apr. 18, 2007). 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.
IV
We could say more about the other issues raised by
the petitioners. For instance, some of the problems
Public Citizen identified with the Agency’s cost-benefit
analysis of EOBRs—like the failure to estimate the
benefits of the EOBRs by looking at and testing the thou-
sands currently in use—appear not to have been fully
resolved. 374 F.3d at 1222. But this area of regulation is
moving quickly. We note, for example, that the FMCSA
has already proposed a rule requiring EOBRs for all
motor carriers, that the technology and markets are
rapidly changing, and that the Agency is apparently
conducting new case studies on EOBR use. 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.
20 No. 10-2340
For these reasons, we V ACATE the Agency’s final rule
and R EMAND for proceedings consistent with this opinion.
8-26-11