The FMCSA fired back at OOIDA in their 60-page responsive brief filed June 15, 2016 forcefully defending its ELD rule.
Rewind. What is this all about?
The Owner-Operator Independent Drivers Association (OOIDA) is the international trade association representing the interests of independent owner-operators and professional drivers on all issues that affect truckers. In 2011, the OOIDA successfully challenged the FMCSA’s 2010 rule related to electronic logging when the court overturned the rule and sent it back to the FMSCA on the grounds that the FMCSA had not adequately addressed concerns about driver harassment.
Since then: In 2012, Congress, stepped into the fray with an order to the agency to mandate ELDs and to promulgate rules preventing driver coercion and harassment. The FMCSA released its driver coercion rule in November, and included anti-harassment provisions in the new ELD rule. On December 10, 2015, the agency issued a final rule that mandates all model year 2000 and newer trucks be equipped with electronic logging devices by December 2017. Logging devices and automatic on-board recorders currently approved for use in tracking hours of service will be allowed for four years beyond the December 2017 deadline.
To say that OOIDA is not happy with the new rule would be an understatement. Jim Johnston, OOIDA president and CEO, said the ELD mandate could have the “single largest, most negative impact on the industry than anything else done by FMCSA. We intend to fight it with everything we have available.”
On December 11, 2015 (the day after the final rule was issued), OOIDA filed a Petition for Review of the ELD rule with the U.S. Court of Appeals for the 7th Circuit. Essentially they are seeking to have the rule overturned (further discussed here: April Grab Bag – Restart Language, Weekly HOS Language & E-Log Constitutionality). The Petition asks the Court to review the ELD final rule on the grounds that the rulemaking does not improve hours-of-service compliance, fails to ensure that ELDs are not used to harass drivers and violates drivers’ fourth amendment rights to be free from unreasonable seizures and searches. The FMCSA filed their response brief on June 15, 2016.
All Caught Up- Now Onto the FMCSA’s Response
The FMCSA’s response asserts that the OOIDA is wrong on every count and they distilled their arguments for the mandate into six key points:
1. The rule was required by Congress and is consistent with their instruction that ELDs be “capable of recording a driver’s hours of service and duty status accurately and automatically.”
2. ELDs are the most “robust form of documentation” and thus more reliable at tracking hours of service than paper logs and will increase compliance with hours regulations, and prevent tampering.
3. The agency has shored up the trucker harassment concerns that caused the court the toss out the prior ELD mandate.
4. The rule will reduce crashes, according to FMCSA’s cost-benefit analysis. The agency estimated that the greater hours-of-service compliance achieved through ELDs would result in 1844 crashes avoided and 26 lives saved annually.
5. Drivers’ personal data and records are protected in adjudication processes, including when drivers file complaints against carriers. The rule takes “appropriate measures to preserve the confidentiality of personal data contained in ELDs”.
6. ELDs do not violate illegal search and seizure protections. ELDs are neither a “search” nor a “seizure” under the Fourth Amendment. ELDs are not secretly attached to motor vehicles, but rather installed willingly and openly as part of participating in the commercial motor carrier industry nor do they violate any privacy expectations because they don’t track vehicles in real-time.
The FMCSA’s response has certainly created a lot of chatter and opinions- Jim Johnson said in a recent statement, “there is simply no proof that the costs, burdens, and privacy infringements associated with this mandate are justified.”
This case is pending before the same court that overturned the previous rule in 2010. However, the rule has undergone a substantial amount of change and Congress has since intervened making it hard to predict the outcome. Stay tuned for further developments. We’ll be keeping a close eye on this one.
Emily Littlefield is an associate attorney at Roberts Perryman. Emily’s practice focuses on transportation, insurance coverage and defense.
Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com