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FMCSA Garners Assist in Court Fight over ELD Rule

June 23, 2016

By David Cullen

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The courtroom battle over the validity of the electronic logging device mandate due to kick in next year has further heated up.

An amicus brief filed on June 22 by two prominent highway-safety advocacy groups backs up the Federal Motor Carrier Safety Administration’s defense of its ELD rule against a lawsuit, brought by the Owner Operator Independent Drivers Association, that contends the rulemaking is seriously flawed.

Image: U.S. Seventh District Court of Appeals
Image: U.S. Seventh District Court of Appeals
Just a week ago, on June 15, FMCSA forcefully defended the ELD rule in a brief that it was required to submit to the U.S. Court of Appeals for the Seventh Circuit.

The trigger for both the FMCSA brief and the amicus brief was a Petition for Review of the ELD rule filed with the court by OOIDA back on Dec. 11, 2015— the day after the mandate was announced. 

Earlier this year, OOIDA 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. 

In its brief, FMCSA responded vigorously to OOIDA’s challenge, arguing that the ELD rule is constitutional as it does not violate the Fourth Amendment prohibition of unreasonable searches; that the mandate does not impinge on drivers’ rights to privacy, and that its cost-benefit analysis “amply supports” the rulemaking.

The amicus brief jointly filed by the Trucking Alliance for Driver Safety and Security and Advocates for Highway and Auto Safety is the latest development in the legal wrangling.

The two groups said they have stepped up to support FMCSA’s “effort to fend off a legal challenge” by OOIDA “to stop the agency’s ELD rule,” which will come into effect for most commercial trucks by December, 2017.

The Trucking Alliance and Advocates contend that “OOIDA maintains that ELDs are no better than handwritten paper logs when it comes to hours of service compliance or highway safety.” But the advocacy groups argue quite the opposite.  

“Our amicus brief explains that ELDs are a critical component of the transportation industry’s commitment to improving highway safety by adopting new technologies,” said R. Jay Taylor, Jr., partner in the law firm of Scopelitis, Garvin, Light, Hanson & Feary, P.C. “ELDs make hours of service compliance easier, cheaper and improve highway safety by helping to ensure that truck drivers get the rest they need.” 

“Operating a large commercial truck is not an entitlement, but a privilege, and we have a moral responsibility to make sure our truck drivers are properly trained, drug and alcohol free and properly rested,” said Steve Williams, president of the Trucking Alliance and chairman and CEO of Maverick USA.

“When ELDs are installed in every commercial truck late next year," he continued, "they can be the technological platform upon which our industry can build a safe and efficient supply chain for the future.” 

Jackie Gillan, president of Advocates for Highway and Auto Safety, pointed out that Advocates has “fought for decades” to see ELDs installed. “It is time to rid the industry of the outdated and unreliable use of phony comic books that allow truck drivers to flout HOS limits and jeopardize safety for everyone,” she said, referring to paper logbooks. “Driving too many hours is a recognized safety problem in the trucking industry and ELDs are a proven safety solution.” 

Lane Kidd, managing director of the Trucking Alliance, added that the two groups “represent a broad, united spectrum of highway users and transportation companies that know these ELDs can make the highways safer for truck drivers and motorists alike. We’re committed to making sure this congressional mandate becomes a reality.”

Comments

  1. 1. dan [ June 24, 2016 @ 03:14AM ]

    What's in it for Maverick? Just ask in.

  2. 2. Jeff [ June 24, 2016 @ 04:32AM ]

    I am all for it , but the 14 hour rule is making a driver work when he or she may not feel good or gets into traffic when they could pull over an take a nap for a couple hours in middle of their work time, it goes against there time , so you make them keep driving. Ok to the people that have no clue on what goes on take a week in a truck. Take the word consecutive out of the rule and it would be a great start.

  3. 3. Jeff [ June 24, 2016 @ 06:20AM ]

    What no one other than the OOIDA is regardless of paper or electronic will not make a driver rest when he is suppose too. We know this because we witness drivers doing many other things other than getting sleep. On the other hand of the true professional, we need to be able to go off "the clock" as it were to get rest when WE as the driver decides we need too. Drivers along have asked that there be some latitude in the 14 hour rule so a driver can pull off the road and rest without the clock ticking away. This pushes a driver to drive the whole 11 hours at once whether their sick, tired from a bad previous day or just tired. The drivers have asked and asked for this and no one is listening. Lastly again the FMCSA wants to make a one size fits all rule/regulation is totally illogical since there are some many different operation segments of this industry.

  4. 4. Steve P [ June 24, 2016 @ 07:12AM ]

    So driving a Truck is a privilege that is a Good one Wow .Next you are going to tell us that working 70 hours a week Bringing you everything that you need and want is also a Privilege.Being treated as a 3rd Class Citizen is also a privilege. Missing every family event so as you can cuss out our every move while we are working Holidays and weekends to feed you and our Families must also be a Privilege.Thank God I am Retired because people make me sick to my stomach. Every body complains about the new breed of Drivers if you thing they are bad now Just Wait to see what you get next. So Sorry for your self serving stupidity

  5. 5. Jeff Smith [ June 24, 2016 @ 09:02AM ]

    Jeff, is right on track. The problem here is not the ELDs...the problem is the Hours of Service. If the OOIDA wants to champion a cause, they should target something useful and get off their soap box.

  6. 6. Joe [ June 24, 2016 @ 09:37AM ]

    The ELD mandate is a good thing for the industry. But the drivers are correct, the FMCSA needs to study the HOS and the split sleeper berth. The driver should be able to shut down when they need to and not count against their 14 hours. If the objective is to truly make the roads safer, the driver should be able to rest when their body tells them and not count against them. The way the HOS are now, forces the driver to drive in unsafe conditions.

  7. 7. Jdavidstanley [ June 24, 2016 @ 11:08AM ]

    We asked for flexibility we asked for parking safe and secure we asked for our input to be taken seriously politics as usual safety groups and the Feds not interested
    I used to be a citizen now I'm a criminal because I don't agree

  8. 8. Bill [ June 27, 2016 @ 08:31AM ]

    It's time for truckers to start pushing back! Don't wait too long because it's already too late to get started. We need to start showing up at court hearings, start calling our governors and complaining, have protests like all the other idiots in the world that protest stupid shit, contact news agencies until they are forced to hear us, and just plain out fight back before we have nothing to fight for!

  9. 9. Bill [ June 27, 2016 @ 08:38AM ]

    It's time for truckers to start pushing back! Don't wait too long because it's already too late to get started. We need to start showing up at court hearings and demand to be heard, We need to start calling our governors and complaining, have protests like all the other people in the world that protest stupid shit, call news agencies until they have no choice but to hear us, and just plain out fight back before we have nothing to fight for!

  10. 10. Rick Blatter [ August 14, 2016 @ 11:07AM ]


    "The rule aims to reduce fatigue-related crashes by drivers who may have doctored their paper logs to hide the real hours they have driven beyond what regulations allow."

    Although drivers may "cheat" in the short term with paper logs, it allows them the FLEXIBILITY to get back on their CIRCADIAN RHYTHM. No one can indefinitely cheat... as any parent of a newborn knows. Sleep deprivation catches up, then you need to pay back the SLEEP DEPT.

    SLEEP DEPRIVATION is also a well known and widely used TORTURE TECHNIQUE. Drivers do not inflict TORTURE on themselves very long.

    RECENT RESEARCH SHOWS that electronic logs that dictate sleep against a driver's CIRCADIAN RHYTHM don't work. They are dangerous. ELDs cause MORE ACCIDENTS than paper logs!

    Electronic Logs, according to RESEARCH BOTH IN the USA & EUROPE, CAUSE MORE ACCIDENTS than paper logs. Undoubtedly because absurd rules that DESTROY a DRIVER'S CIRCADIAN RHYTHM due to their inflexibility and total disregard for human life are strictly enforced to the minute. A machine cannot dictate sleep nor rest, nor wakefulness, no matter what we try to legislate, or say. Only YOUR BODY can tell you this.

    The purpose of ELDs was to "REDUCE ACCIDENTS", but the exact opposite is what is happening. Do we have a problem?

    "Last year the German insurance company Kravag reported an investigation that found trucks with digital tachograph were involved in more accidents than those with manual analog recorders."

    Electronic logbooks in Europe: Endless row of misfortunes, or a paper pusher's dream? - TruckingInfo.com

    http://m.truckinginfo.com/article/170315/electronic-logbooks-in-europe-endless-row-of-misfortunes-or-a-paper-pushers-dream

    Carriers with ELDs crash MORE

    Andrew King of the OOIDA Foundation says "FMCSA’s own data demonstrates that carriers with ELDs crash MORE than those carriers without such devices."

    He goes on to say "FMCSA’s final rule was founded on nothing more than assumptions and what the OOIDA Foundation refers to as 'we believe science.' ”

    Considering that the FMCSA purports "the final rule stands to prevent an estimated...." (some fictitious number) "loss of lives and..." (some other fictitious number) "crashes annually while significantly strengthening compliance..." it would be interesting to take them to task for this.

    Based on ACTUAL STATISTICS from companies that have "voluntarily" implemented ELDs, is there ANY STATISTICAL DIFFERENCE in number of crashes and/ or deaths before and after? Has anyone found an improvement?

    Before implementing anything this costly industry wide there better be SCIENTIFIC PROOF behind such "mandates" and the many kinks in the system must be resolved beforehand.

    Normally in science there are TRIALS to make sure that the HYPOTHESIS is actually backed up by scientific evidence.

    Normally in science the hypothesis is checked out through SCIENTIFIC RESEARCH (TRIALS) BEFOREHAND to make sure that our hypothesis actually works and we do more good than harm. When it turns out that the hypothesis is wrong, it does more harm than good, or it is economically unviable, we go back to the drawing board before mass implementation.

    That's "science".

    "Experts" have admitted the new US HOS rules are "ABSURD". So how did the FMCSA get away with changing something that worked and was tolerable to something that is "ABSURD" and violates every principle of healthy sleep known to man: maintaining a regular circadian rhythm (regularity, consistency, and not changing start times & sleeping patterns every day, which is what the "new rules" do)?

    And how can they justify forcing everyone to use ELDs if they have the exact opposite effect of what was hypothesized? I would "hypothesize" the major "problem" is the ill conceived "new rules".

    ELDs force drivers to follow ABSURD rules to the minute or risk fines with no tolerance for traffic/ unforeseen delays/ complications. These NEW rules not only do not take into consideration a driver's CIRCADIAN RHYTHM, they totally destroy it.

    Rather than the driver deciding/ feeling when he is sleepy, an unforgiving electronic device tells him when he must sleep. Dogs, Cats, Babies, Grand Parents, your parents, probably the "rule makers" and/ or their parents... all take naps. Whole cultures have taken afternoon naps for hundreds of years! (Mexicans, the Spanish...) Popular US "EXPERTS" have even written BEST SELLING books about the value of a "POWER NAP" for everyone, including top executives, to INCREASE PRODUCTIVITY. But somehow the FMCSA disagrees, or is oblivious to this!?

    Further, with no partial sleeper possibility, drivers are FORCED to drive non-stop (except for the obligatory 30 minutes pre 8 hr "rest") for fear of running out of hours at the end of the day, whether sleepy or not.

    Then with 10 HOURS OBLIGATORY CONSECUTIVE TIME OFF, TOO MUCH TIME AT THE END OF THE DAY, drivers tend to eat humongous quantities of food at the end of the day just before going to bed !!! ???

    This goes against everything we know about HEALTHY sleep, driver health, and healthy eating habits.

    Since CANADA still uses the "old" humane rules of split sleeper berth, and requires only 8 consecutive hours off at night allowing drivers to have a BIG 2 HOUR LUNCH without fear of running out of hours at the end of the day, would it be possible to compare Canadian Crash Rates for big rigs with US Crash Rates using the new US rules? Are big rig crash rates higher in Canada using the "old US rules"? I am sure they are lower.

    As a matter of fact, I believe if US Crash Rates were compared before and after the "new rule" change, the "old rules" would be found much safer.

    The FMCSA claims the "accident/death rates are now lower" due to their "new rules" in the USA. However, in Canada the accident/ death rates are down too, using the "old rules". So this "improvement" has nothing to do with their "new rules". There are clearly other factors at play. Probably pressure from INSURANCE COMPANIES threatening careless carriers with exorbitant insurance rates, or threatening to cease insuring them at all if claims don't decrease.

    I pray that science and common sense one day triumphs over propaganda and manipulation.

    The whole premise behind ELDs is "SAFETY". Either they (ELDs) don't work, or the "new rules" they force drivers to abide by don't work.

    MORE RESEARCH is required to find the problem(s) and develop a real solution. This is why in "science" there are TRIALS.

    The most cost effective SOLUTION would be to give load brokers, shippers & receivers the same monetary fine(s) and CSA points as the driver/ carrier every time a driver pulling their load gets an HOS, over weight or over size fine. Making all trucking transportation partners ACCOUNTABLE for their actions/ coercion would put an end to this behaviour. The above would also leave a ticket trail to the guilty parties thereby exposing them and putting an end to their era of total impunity. This would also generate 3 (three) times more revenue for the government without adding BILLIONS of dollars of added equipment (ELDs) to trucks. Unnecessary equipment that is unproven, or actually PROVEN MORE DANGEROUS because in both the USA & EUROPE ELD equipped trucks CRASH MORE !!! ???

    Rick Blatter, B.Ed., M.Sc. holds a Master of Science degree in Exercise Physiology, and specializes in Employee Wellness & Fitness Programs. His thesis involved researching optimal sleep for HEALTH & LONGEVITY. He is Director of Safety, Loss Prevention & Wellness for a trucking company in Montreal, QC. He has been involved in trucking for 22 years, holds a CDL and has personally driven over two (2) million accident free miles all over Canada & the USA. Rick Blatter is a proud member of OOIDA.

    Rick Blatter, B.Ed., M.Sc.

 

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