Drivers

FMCSA Defends ELD Rule Against OOIDA Court Challenge

June 16, 2016

By David Cullen

SHARING TOOLS        | Print Subscribe

The Federal Motor Carrier Safety Administration forcefully defended its Electronic Logging Device rule in a court brief filed June 15.

The filing was in response to a lawsuit brought against the mandate by the Owner Operator Independent Drivers Association. The 60-page brief was filed in the U.S. Court of Appeals for the Seventh Circuit on the last due it was due, per a deadline set by the court.

FMCSA argued in its brief that, contrary to OOIDA’s legal challenge, the ELD rule is constitutional as it does not violate the Fourth Amendment prohibition of unreasonable searches.

The agency also said the mandate does not impinge on drivers’ rights to privacy and that its cost-benefit analysis “amply supports” the rulemaking.

OOIDA filed a Petition for Review of the ELD rule on Dec. 11, 2015 — the day after the mandate was announced.

Earlier this year, the association said it sought the judicial review because it contends: (A) The rule violates Fourth Amendment rights against reasonable searches and seizures; (B) The costs associated with compliance are not justified; and (C) The mandate fails to comply with a congressional statute requiring ELDs to accurately and automatically record changes in drivers’ duty status.

“This mandate means monitoring the movement and activities of real people for law enforcement purposes and is an outrageous intrusion of the privacy of professional truckers,” said OOIDA President and CEO Jim Johnston at the time. He also stated that there is “simply no proof that the costs, burdens and privacy infringements associated with this mandate are justified.” 

Hitting back in its June 15 brief, FMCSA stated that the rule is consistent with instruction given the agency by Congress that it mandate ELDs “capable of recording a driver’s hours of service and duty status accurately and automatically. ELDs do automatically record when a driver is in on-duty driving status and for how many hours. That is all the statute requires on its face.” 

FMCSA dismissed OOIDA’s argument that because ELDs require some manual inputs, they are no better at achieving compliance with hours-of-service regulations than paper Records of Duty that require all manual inputs.

“Congress has already determined that is incorrect,” the agency countered, “having directed the secretary [of transportation] to require electronic logging devices ‘to improve compliance by an operator of a vehicle with hours of service regulations.’ Common sense reinforces Congress’s conclusion: automatic, tamper-proof recording of driving data, location, engine hours and other information decreases the likelihood that driving time can be concealed or status information changed after the fact.”

Turning to OOIDA’s concern that carriers could leverage ELDs to harass drivers, FMCSA said that its requirement that harassment be linked to regulatory violations is “in harmony” with the statutory requirement that ELDs “improve compliance with hours of service regulations” but not be used to “harass” a driver. The agency noted that the rule requires ELDs to have security and editing controls to protect drivers from motor carriers changing their driving records, “both of which were included in response to specific complaints by drivers.”

FMCSA said it also included an “express prohibition” on driver harassment, with civil penalties for violations and a procedure for drivers to file written complaints of harassment by a carrier. “Again,” the agency added, “these provisions were included in response to specific comments from drivers.”

As to the cost of compliance, FMCSA declared that the challenge to the FMCSA’s cost-benefit analysis “fares no better.” The agency pointed out that “as an initial matter,” it was “not statutorily required to do a cost-benefit analysis at all, so any objection to that analysis provides no basis to vacate the rule.”

Nevertheless, FMCSA said its own analysis fully supports the rule. “The agency used real-world data from motor carriers already employing similar monitoring devices to determine that monitoring devices dramatically improved compliance.” FMCSA found that ELDs would result in 1,844 fewer crashes, 26 lives saved, and 562 injuries avoided annually.

“Petitioners’ multiple objections to the cost-benefit analysis are meritless," FMCSA added. “Their claim that the agency did not study any monitoring devices already in use is flatly contradicted by the record.”

As for protecting the right to privacy, FMCSA said the rule “takes appropriate measures to preserve the confidentiality of personal data contained in ELDs, relying in part on existing regulations and federal law protecting the release of private information, as well as committing the agency to redact private information from the administrative record in an enforcement action, and further requiring motor carriers to protect private data consistent with sound business practices and requiring ELDs have secure access to data and use encryption methods while transferring data.”

FMCSA went on to state that the OOIDA brief “contains only vague assertions that the agency should have done more, without specifying exactly what additional procedures they desire or explaining why the provisions adopted are not ‘appropriate measures’ as Congress required.”

The agency also said that ELDs do not violate any reasonable expectation of privacy “because they do not precisely track vehicles in real-time, but only intermittently record location within a 1-mile radius.”

Last but not least, FMCSA flatly declared that “ELDs do not violate the Fourth Amendment. ELDs are neither a ‘search’ nor a ‘seizure’ under the Fourth Amendment. ELDs are not surreptitiously attached to a vehicle by the government, but are installed by a motor carrier openly and pursuant to regulation with the advanced knowledge of the carrier and driver, who effectively consent to their installation and use by voluntarily participating the commercial motor carrier industry.”

The agency added that even if there were a search or seizure, “ELDs would be a permissible warrantless inspection of a closely regulated industry… ELDs are precisely defined in the scope of the information they record and advise drivers and motor carriers that they will be installed pursuant to law.”

Comments

  1. 1. mark darling [ June 16, 2016 @ 01:33PM ]

    Its not the Law enforcement nor the FMCSA that OOIDA should be worried about it is the Lawyers and the law suits when a driver is over hours, or misrepresenting his/her log book and is involved in a collision and litigation. I can attest first hand that ELD's do not hinder the delivery of freight and log violations are reduced by better than 95%.

  2. 2. TommyZ [ June 16, 2016 @ 01:36PM ]

    So the bottom line is that we lost the fight then?

  3. 3. buck jones [ June 16, 2016 @ 01:59PM ]

    Use the safty angle when frt haulers drive 70mph in 55 zones how safe is that

  4. 4. Grumpy [ June 16, 2016 @ 02:03PM ]

    What I would like to know.....How did the FMCSA come up with those numbers? I can tell, just like the dick weeds that wrote the CARB rules, they pulled it out of their butts! There is NO way for them to predict crashes.

    I can guarantee you that if you follow the money somebody at FMCSA or Congress is getting paid for mandating this. Also, if you think ELDs will stop cheating think again. I know several that have already figured it out. How can an ELD know when a driver needs his rest or when he is rested to continue his trip?

    And why the heck should a truck driver "EXPECT TO LOSE SOME PRIVACY".....What kind of COMMUNIST statement is that!!?? NO one should lose their privacy because of their occupation, UNLESS that is made clear from the onset.

    I do agree trucks and truck drivers are grossly underpaid, but that is the ENTIRE industry's fault. I have been in a shipper's office to hear a carrier on the other end of the phone tell him $.68/mile just get me out of California!!! As far as a strike, little carriers may not be able to afford one, especially those in California that were forced to buy new, MANDATED equipment that has turned out to be more costly than just a truck payment. The new trucks are junk in my opinion, the manufacturers were forced to meet a timeline and instead of working reliable emissions systems they threw crap together and the truck owners are paying the price, ESPECIALLY the little guys, the ones that can least afford it.

  5. 5. Russ [ June 16, 2016 @ 02:25PM ]

    How do they get around the constitution? The constitution states that the government cannot require you to purchase a "goods or service"...The FMCSA is a bunch of lawless bastards if you ask me.

  6. 6. J David stanley [ June 16, 2016 @ 04:30PM ]

    The job of congress should be to empower the American trucker not condemn operators for merely being Involved in situations beyond their control ie extreme weather waiting to chain fires construction etc
    How about it congress could you take a moment and listen to the drivers of this nation?A little understanding would be helpful

  7. 7. Paul [ June 16, 2016 @ 06:15PM ]

    Where is the help promised us by the American Trucking Association and the California Trucking Asdiciation? I'll tell you where...in the pockets of the big carriers that pay them screw the little guy. I really don't think it's much of a secret that government would like to get rid of the o/o and small trucking companies because, by head of CARB's Mary Nichols words, it would be much easier to regulate a few large companies than all these owner operators. In reponse to one of the other commenters above, these crash numbers fmcsa sited are numbers they pulled out of their butts...much like the research all of CARBs emission laws are based on, turned out to be bullshit. Just goes to show, they are gong to do what they want, whenever the hell they feel like it.. Xbend over trucking industry....you're about to be shafted once again!!!!

  8. 8. Bob [ June 16, 2016 @ 06:24PM ]

    I've talked to an ELD rep in California and he stated their units were part of a much larger future attempt to track which roads a given truck may being using at any given time (regardless of City, County, Highway, etc.). Thus, any jurisdictional entity could assess a tax to any given trucking company based upon miles driven on THEIR City, County or Highway roads. So, heavy highway tax and fuel tax isn't enough? I would receive a tax bill monthly from every jurisdiction in which we drive? God I hope he was wrong.

  9. 9. WillieBill [ June 16, 2016 @ 09:54PM ]

    If you are an owner you can get the ELD 50 from Rand McNally for around $150.00 the device plugs into your Jplug. It works on both 6 or 9 point plugs. All info including logs will connect through a Bluetooth connection to your smart phone or GPS device that has Wifi-you can easily connect it yourself. You can also set up an account with Rand McNally if you want for apx $14.00 a month that records all of your data, and you can review it all there. All of this is a tax write off. Since we are being forced into it. There is a way do get it done simple.

  10. 10. terry patterson [ June 17, 2016 @ 01:13AM ]

    Well irregardless, of the box, or not, my 10 drvers have not had an accident,
    since 2009, and they are real good at backing in the big companies, that
    cant get in a dock, I make my deliverys because I give some consideration
    to when they load and when they deliver, haven't been placed out of service
    in 3 years, so it REALLY, REALLY. is gonna help me in my conducting
    the business. Bull crap !!

  11. 11. Steve [ June 17, 2016 @ 03:10AM ]

    VEE DON'T NEED TO OBEY THE U.S. CONSTITUTION ! HIEL HITLER !!!

  12. 12. Paul [ June 17, 2016 @ 07:53AM ]

    Seems in all our comments we have forgotten one large factor...why most of us got into trucking to start with. FREEDOM OF THE ROAD!! No boss looking over your shoulder (now you have driver facing cameras), flexible hours, no time clock (now you are going to have a machine telling you when to drive, when to park, and when to sleep). And once the system is complete, "they" will know your every move.....they pretty much do now, but the eld will pretty much clinch it...and it will take the last bit of freedom we have. I'm pretty sure, like a lot of you, it will be time to hang up my driving gloves and call it a day. Trucking, like so many other things in life, is getting screwed by a bunch of morons who have never even sat in a truck telling us what is best for us. F them.

  13. 13. Justin [ June 18, 2016 @ 06:25AM ]

    America! Home of the free!
    Not if you are employed in the nations transportation industries,truck,rail,air,water.
    To be included in these industries you need to give up your most basic rights as a personWhere else can you have a job where you are told when/where to eat,sleep,drive ,how/where to drive,what to do on your off-duty time,and just when you can have off-duty time.
    Know what this is called? Socialism.Stalin himself could not have designed a better system.

  14. 14. Joe [ June 18, 2016 @ 11:18AM ]

    It seems to me that with these rules that Professional Drivers are Wards of the U. S. Government and should be classified as such with all the privileges of said government workers; retirement and Social Security, etc.
    What say you Drivers.

  15. 15. Steve P [ June 18, 2016 @ 12:18PM ]

    You as a driver have no Constitutional Rights.that is what they are telling you. Some of you guys think that this is OK , while most of the Men And Women that have been out here for 30 t0 50 years find it Very Alarming that you think that it is OK to give up more rights to Drive a Truck. Obviously you have a Screw Loose Somewhere upstairs. It's not about Cheating it is about Your and My Safety.No Machine or Computer can tell you that you are Tired It comes from YOUR BRAIN GET IT.

  16. 16. clyde b. friesland [ June 19, 2016 @ 09:53AM ]

    if the judge rules against ooida on eld, file impeachment against the judge and really piss him off.

  17. 17. Trucker1 [ June 20, 2016 @ 10:09PM ]

    It's just another way for big trucking companies to finish pushing out the O/O. These big trucking companies have the political asses on the hill in their pockets like the rest of them. The article says the Feds state it will save 26 lives.. Not being mean but they need to figure how many drivers or O/O's will loose everything they have. What about their families? It's been down hill with laws after crappy laws since Obummer.

  18. 18. Bill [ June 21, 2016 @ 10:37AM ]

    Like I've said before, all drivers need to park their asses at home until we get the government's head out of it's ass! I've already been sitting at home and I'll get another job before I'll kiss their asses! Let the big companies figure out how to keep a 1,000 trucks on the road with no asses in the seats. I know nobody will even think of doing this because this country has no balls anymore, as they've been handed to the government also, but it still needs to be said!

  19. 19. Bill [ June 21, 2016 @ 10:45AM ]

    Like I said before, all truckers need to park their asses at the house until the government gets its head out of its ass! I've already been off the road for a while because I'm not going to kiss their asses for them! Let these big companies figure out how to keep a 1,000 trucks on the road with no asses in the seats. I know that nobody will do this because this country has no balls anymore, as they've been handed to the government also, but it still needs to be said.

  20. 20. Dale [ June 21, 2016 @ 03:35PM ]

    Like most of the above comments I have been in this business a long time, (1982). There are a few options for us small carriers and o/o.1. This is an election year, your voice matters more now than ever. I know we are all busy trying to make a living but I can assure you, if enough of us call DC. people will listen. When you call ask to speak to the aid in charge of transportation issues. 2. Make sure you only address one issue and research facts about that issue that supports your point of view. 3. Speak intelligently like the expert you are, and communicate the issue in a simple plain spoken way so they understand why you are calling on the subject matter. 3. Make sure you get the aids name and keep it where you won't loose it. This way when you follow up in a week or so you know who to ask for and you can start to build a relationship with that person. 4. Whether it is OOIDA, NATIC. or some other organization join one that you think best represents your interests. The big carriers are successful in these matters because they are organized. That's what we need to do we need to organize by joining together for a common goal and let our voices be heard. 5. We need to start a discussion about the speed limiter issue. We have to find a way to stop this before it gets traction. If this is passed there will be such an out cry from the public that they will demand we all drive in the R. lane! Talk about gridlock. As a small company owner I just want to tell all you guys out there that what you do is important! It is so important that this nation and we as a people could not survive without you. God Bless each and everyone of you for the sacrifice you and your family make everyday in order for you to make sure everything that we need in life is available when we need it. .

  21. 21. Gordon [ June 24, 2016 @ 08:11AM ]

    Put a fucking device on every vehicle of every son of a bitch that backs and enforces this mandate and watch the mandate go away. How long are cops on duty when they are working? How long are firemen and paramedics on duty when they are working? Are they physically superior to the rest of us? It's all about money and it's just another way of kicking it up to the bosses that rule the trucking industry. Most of the folks who are hurt and die from accidents are stupid assholes who take chances with the trucks and it bit them in the ass. Start arresting people for their driving habits around big trucks and watch fatalities fall.

 

Comment On This Story

Name:  
Email:  
Comment: (Maximum 2000 characters)  
Leave this field empty:
* Please note that every comment is moderated.

Newsletter

We offer e-newsletters that deliver targeted news and information for the entire fleet industry.

GotQuestions?
sponsored by
sponsor logo

ELDs and Telematics

Scott Sutarik from Geotab will answer your questions and challenges

View All
GotQuestions?

Sleeper Cab Power

Steve Carlson from Xantrex will answer your questions and challenges

View All