FMCSA’s ELD Rule Upheld by 7th Circuit
OOIDA v. U.S. Dept. of Transportation – The ELD Rule adopted by the FMCSA has survived a challenge that it does not comply with Congressional mandates, and is not sufficient to protect drivers from harassment and privacy invasions.
At the direction of Congress, the Federal Motor Carrier Safety Administration (“FMCSA”) has adopted what has become known as the ELD Rule. Beginning on December 16, 2017, most commercial drivers will be required to use electronic logging devices (“ELDs”) to record their duty status. ELDs are required to be installed on all interstate commercial motor vehicles (model year 2000 or newer) within two years of December 16, 2017. The FMCSA has expressed the purpose behind the ELD rule is to increase compliance with hours of service requirements. The new regulation has not been without opposition.
After the U.S. Department of Transportation, via the FMCSA, promulgated the final version of the ELD rule in 2015, the Owner-Operator Independent Drivers Association (“OOIDA”) and others brought suit against the Department of Transportation, seeking judicial review of the final rule. Owner-Operator Independent Drivers Association, Inc., et al. v. United States Dept. of Transportation [Ms. 15-3756], — F.3d — (7th Cir. Oct. 31, 2016). OOIDA argued five reasons to the 7th Circuit Court of Appeals why the ELD rule should be vacated.
1. ELDs will not record enough information automatically
The language in Congress’ mandate directs that electronic logging devices be “capable of recording a driver’s hours of service and duty status accurately and automatically.” 49 U.S.C. § 31137(f)(1)(A). The ELDs approved by the FMCSA must automatically link to vehicle engines when the engine is turned on; must record the date, time, location, engine hours, vehicles miles, driver identification, vehicle information, and motor carrier identification. 49 C.F.R. § 395.26. The ELD only records at specific instances, rather than continuously; namely, it records when the vehicle is turned on, when a change of duty status occurs, and once per hour while driving. 49 C.F.R. § 395.26.
OOIDA contended that because the ELDs do not operate entirely automatically, they do not meet the specifications outlined by Congress. The 7th Circuit disagreed stating, “It is unclear what devices petitioners envision, and they do not say.” The only such devices that the 7th Circuit could envision were video surveillance of or bio-monitors to be worn by commercial drivers, which the court did not interpret Congress to mean within requiring the ELDs to operate “automatically.”
2. The rule fails to protect drivers sufficiently from harassment
The 7th Circuit had struck down a prior version (2011) of the ELD rule because it failed to make sure the devices would not be used to harass commercial drivers. OOIDA contended that the 2015 iteration likewise failed to protect drivers from harassment. Under 49 C.F.R. § 390.36, ELD-related harassment can take two forms: when a motor carrier uses an ELD to encourage a driver to drive (1) when the driver’s ability is somehow impaired, or (2) when the driver is in violation of the hours of service rules.
The 7th Circuit found that the 2015 rule complied with the Congressional mandate to protect drivers from harassment, holding that the FMCSA’s definition of harassment was reasonable.
3. The rule’s benefit will not outweigh its costs
OOIDA argued that the FMCSA’s calculation of benefits was flawed on two grounds: (1) ELDs will not improve hours of service compliance because they are not entirely automatic, and (2) studies with results contrary to OOIDA’s first point are unreliable. The 7th Circuit rejected this ground, finding that the Department of Transportation was under required by Congress to undergo a cost-benefit analysis. “Requiring ELDs was not left to the discretion of the agency; Congress mandated it.”
4. The rule fails to protect the confidentiality of personal data collected by ELDs
49 U.S.C. § 31137(e) requires the FMCSA to provide safeguards to protect the confidentiality of the data collected by the ELDs. The data recorded by the ELDs is to be retained and stored by the drivers and motor carriers, who are directed “to protect a driver’s privacy in a manner consistent with sound business practices.” 49 C.F.R. § 395.24(d), § 395.22(i). The governance of this data is being incorporated into preexisting regulatory infrastructure. Furthermore, to the extent that confidential ELD-related data is released, personal information will be redacted. Therefore, the 7th Circuit found that the FMCSA’s confidentiality requirements were sufficient under the statute.
5. The rule violates the 4th Amendment’s prohibition against unreasonable search and seizure
The 7th Circuit found that OOIDA’s arguments on this front were wholly unpersuasive. Even if the ELD mandate constituted a search or seizure, the 4th Amendment exception would apply for pervasively regulated industries. In considering the exception, the ELD mandate must (and does) pass a 3-part reasonableness test: (1) the regulatory scheme must be informed by a substantial government interest; (2) the warrantless inspections must be necessary to further the regulatory scheme; and (3) the inspection program must provide a constitutionally adequate substitute for a warrant.
For the foregoing reasons, the 7th Circuit denied OOIDA’s petition and upheld the ELD rule, that is scheduled to become effective in December 2017.
Photo by Rex Hammock.