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OOIDA Fires Back on ELD Rule Ahead of September Court Hearing

August 15, 2016

By Deborah Lockridge

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Photo: Omnitracs
Photo: Omnitracs

The Owner-Operator Independent Drivers Association has filed a reply brief to the government's arguments defending its controversial electronic logging mandate in the association's lawsuit, scheduled to be heard by a federal court next month.

OOIDA is seeking an injunction to halt the implementation of the rule.

Friday, Aug. 12, OOIDA filed a reply brief in the suit, originally filed last December only a day after the final rule was published by the Federal Motor Carrier Safety Administration. The reply brief is a legal precursor to oral arguments on Sept. 13.OOIDA's case hinges on five arguments:

  1. The devices as mandated are unable to do the job as prescribed.
  2. The rule offers no protection against harassment of drivers.
  3. The benefits of the rule do not outweigh the costs
  4. They erode drivers’ Fourth Amendment protections against  unreasonable searches and seizures
  5. Driver privacy is not protected

The ELD mandate affects an estimated 3 million interstate drivers of vehicles manufactured after model year 2000. By December 2017, drivers will have to replace paper logbooks with electronic devices.

The association previously challenged a similar mandate in August 2011 and the court ruled in favor of OOIDA's arguments that the previous rule did not protect drivers against harassment. FMCSA went back to the drawing board to rewrite the rule in a way that would address the court’s concerns.

With this track record of derailing mandatory e-logs once before, the association is confident it can do it again.

In June, 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. In that brief, FMCSA argued 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 reply brief filed by OOIDA Friday is in response to FMCSA’s brief. According to an article on the website of association magazine Land Line, the brief counters the agency's arguments thus:

1. Do ELDs do what they’re supposed to do? In the Moving Ahead for Progress in the 21st Century (MAP-21) highway bill, Congress directed FMCSA to “prescribe regulations … requiring that a commercial motor vehicle … be equipped with an electronic logging device … capable of recording a driver’s hours of service and duty status accurately and automatically.”

However, OOIDA says ELDs as mandated don’t do this, because they can’t automatically track non-driving on-duty time.

2. Does the law protect against driver harassment? This is the key issue that OOIDA used to prevail in its 2011 lawsuit, and the association says the agency still has not addressed this issue satisfactorily, despite 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.

“FMCSA takes the position that it is not required to address all instances of harassment, but only those related to HOS violations, and then only harassment perpetrated by motor carriers,” the OOIDA brief states.

3. Do they save more than they cost? OOIDA’s suit claims FMCSA has no proof that ELDs improve hours of service compliance or reduce crashes. In its June brief, FMCSA 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, using data from motor carriers already using electronic logs, fully supports the rule. OOIDA’s reply brief disagrees, saying “FMCSA has provided no valid evidentiary support for its conclusion that ELDs will reduce HOS violations or crash risk.”

The association says FMCSA has not studied the effectiveness of the devices, and ignored a 2014 study that found no differences between trucks using electronic logs and trucks not using them in recordable and fatigue-related crash rates.

4. Does an ELD constitute unreasonable search? FMCSA in its June brief 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.”

OOIDA’s reply brief points to a 2012 Supreme Court ruling against law enforcement agencies placing GPS or other tracking devices on private citizens’ vehicles without a warrant. OOIDA dismissed FMCSA’s argument that trucking is a “pervasively regulated” industry and that drivers are giving their consent to search merely by agreeing to participate in the industry.

5. Do they violate driver privacy? FMCSA in its brief 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 said 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.”

In its reply, OOIDA said the agency is misrepresenting what Congress required.“FMCSA’s truncation of the statutory language conveniently omits reference to the words ‘shall institute appropriate measures’ and gratuitously represents that ‘Congress required the FMCSA to consider ‘appropriate measures.’”

The OOIDA brief goes on to detail ways data can be used to harass drivers, in unrelated criminal investigations for example.

Comments

  1. 1. Patrick [ August 16, 2016 @ 05:21AM ]

    The more FMCSA tries to mandate these devices the more the waters become muddied. Compliance With a rule does not constitute "voluntary compliance" by the drivers or carriers. As the agency has claimed in their position.

  2. 2. Jeremie Sponaugle [ August 16, 2016 @ 05:26AM ]

    I run 17 trucks, of which 14 are newer than 2014, with only 3 which are 2007. Only major problem I have is they want use to run newer trucks, but reward those who run old trucks with cheaper cost and NO regulation. Where are the rewards and pay back to those of us who do there best to keep up with the trucking industry.

  3. 3. Darren Klein [ August 16, 2016 @ 07:02AM ]

    Couldn't agree more with your filing. Myself, as a pro driver for over 20 years will be leaving trucking if this mandate takes effect. Nobody incl an elf has to tell me when to rest. My body tells me and when I need to sleep I sleep. When was the last time anyone u know slept for more than 10 hours without passing out? Think it's unsafe out here now? Just wait

  4. 4. Steve [ August 16, 2016 @ 09:31PM ]

    If OOIDA was really trying to stop this UnConstitutional, Nazi movement,they would have contacted Rand Paul who headed the stopping of the Patriot Act which was the most UnPatriatic Act ever done in this country. The ELD Tracking is exactly what was in the Patriot Act and anyone who is for it will get 1 in the heart and 2 in the head !

  5. 5. Judith [ August 17, 2016 @ 09:40AM ]

    I am wondering if the information has been compiled over the years since ELD's have been in the picture, just how may of the truck accidents have been with drivers that already had an ELD in the truck. i.e. the case of the Wal-Mart driver a couple yrs ago that was responsible for the accident that killed the comedian. What good was that ELD he had just come to work after spending the weekend off ! I only see the ELD making things worse and if the big trucking companies say they want to even the playing field then maybe they should have gotten rid of the ELD and let the drivers do the job they were hired to do.

  6. 6. Kaz [ August 17, 2016 @ 02:25PM ]

    It is an intentional economic slowdown (recession) that will begin in trucking and end up with the final consumer.

  7. 7. Hard At It [ August 18, 2016 @ 10:42PM ]

    We've been in this business for 45 years. Seen all the ups and downs, but this one takes the cake! It's nothing more than big companies pushing out the small companies and o/o. Big companies have their hands in the governments pocket and vice versa. We're done as soon as the mandate kicks in. We're not paying more unnecessary money. We've sold off much of our fleet the last few years and time to call it quits! Good luck out their to those who stay in it.

  8. 8. Hard At It [ August 18, 2016 @ 10:50PM ]

    We're done after 45 years in this business at the end of this year... Sold most of our fleet in the last few years. This is just another attempt for big companies to get their way (again) and push out the smaller ones and o/o. I read an article few months ago that this mandate will only save approximately 6 lives! Sorry, but it's not worth the headaches and millions of dollars this is going to cost. What's an ELD going to fix when the big companies are the ones creating all the crashes and they already have ELD'S?? I mean really they hire anyone who can breathe. It's not the small companies or o/o causing this mess but then again I'm sure government has a hand in it and vice versa for favors.

  9. 9. David [ August 24, 2016 @ 07:49PM ]

    So in your 45 years as a business owner did you stop any of this ? Why didn't you stop deregulation , drug testing , dot physicals , abs brakes , cell phones , Ez pass , steer axle brakes , why did you give away our time at the docks ? You business survived all those mandates but you can't survived e logs ? Why are you getting bullied by your customers and letting them tell you when there freight has to be there ? You've have had loyal customers over the years , have they gone to court with you if there freight was involved in a accident ? What's the difference between a paper and e log , still have the same hours of service , and you don't have drivers lying to to you about I'm out of hours bs ,then you can have drivers that really want to do there job

  10. 10. Trucking joke [ October 26, 2016 @ 06:04AM ]

    its not even worth writing any thing on here I've
    Drove over 3 million miles 3 wrecks one in a big truck
    None my fault . Hell its not even a job anymore the speed limit not going to change the money not going to change
    What good is it . When you can have a trainer that's got 6 mo exp no weather exp anyone can drive on a dry road .

 

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