On December 11, 2015, the day after the Federal Motor Carrier Safety Administration ("FMCSA") published its final rule mandating the implementation of electronic logging devices ("ELDs"), the Owner-Operator Independent Drivers Association, Inc., ("OOIDA") challenged in court the FMCSA and its implementation of the ELD rule. One year from the rule's December 2017 effective date, the 7th Circuit Court of Appeals has rejected OOIDA's challenge and cleared the way for implementation. However, just when it appears that all roadblocks have been removed and the path towards implementation is clear, questions still linger.
On October 31, 2016, the 7th Circuit denied OOIDA's request and upheld the final rule mandating the implementation of ELDs. Owner-Operator Independent Drivers Association, Inc. Mark Elrod, and Richard Pingel, Petitioners, V. United States Department Of Transportation, 2016 WL 6407405 (7th Circuit Oct. 31, 2016). In its challenge, OOIDA made five arguments against implementation: (1) the rule allows for ELDs that are not entirely automatic; (2) the FMCSA's definition of "harassment" is too narrow; (3) the FMCSA's cost-benefit analysis fails to justify implementation; (4) FMCSA did not sufficiently consider privacy protections for drivers; and, (5) the ELD mandate imposes an unconstitutional search and/or seizure on drivers. Id. at 1. The 7th Circuit rejected each of these arguments noting that: (1) Congress did not intend to require constant surveillance and that the devices prescribed by the FMCSA satisfy the "automatic" requirement. Id. at 6; (2) the definition of "harassment" was reasonable, not too narrow, and developed by soliciting input from drivers, carriers, and trade organizations. Id. at 7; (3) a cost-benefit analysis was not required in order to implement the rule. Id. at 8; (4) the FMCSA adopted a reasonable approach to protect ELD data and maintain a driver's privacy. Id. at 9; and, (5) the Fourth Amendment is not implicated by the ELD rule, and alternatively, the rule would nonetheless be reasonable under the exception for pervasively regulated industries. Id. at 9-10. The 7th Circuit thus concluded that the ELD mandate was reasonable, not arbitrary or capricious, and enforceable. Id. at 11-12. On December 14, 2016, OOIDA filed a petition with the 7th Circuit requesting a rehearing on the decision. There is no deadline by which the court has to respond to this request.
While the OOIDA challenge moves forward, drivers and carriers alike are faced with the December 18, 2017, deadline to move from paper logs to ELDs. The looming ELD mandate is on the minds of many within the trucking industry. According to the American Transportation Research Institute's ("ATRI") Annual Survey for 2016, the ELD mandate is the top overall issue facing the industry, a jump of five places from 2015. See American Transportation Research Institute Critical Issues in the Trucking Industry – 2016, October 2016, at p. 2, available at http://atri-online.org/wp-content/uploads/2016/10/ATRI-2016-Top-Industry-Issues-10-2016.pdf. Uncertainty and apprehension surrounding implementation of the ELD mandate is shaping up to cause a bumpy rollout. Although the enforcement and effects on customer relationships are two legitimate concerns with the pending mandate, the transition from paper logs to ELDs is paramount. Scenes of holiday shoppers braving long lines at the local mall in order to buy the latest and greatest holiday gift may be supplanted by carriers rushing at the last minute to locate a certified ELD. While some carriers have adopted ELDs, or are using an Automatic On Board Recording Device ("AOBRD") and availing themselves of the additional two-year grace period, it is estimated that more than one million carriers have not. See Seth Clevenger, "Expected Surge in ELD Demand Could Lead to Messy Rollout," Transport Topics (Nov. 21, 2016). If the switch to ELDs has not been made, now is the time to do so. The potential for a last-minute rush and ensuing bottleneck is real; you do not want to be at the end of the check-out line on December 17, 2017. It is unknown if supply will keep up with demand, although it is anticipated that the market will see an influx of certified ELDs in the coming year. A word of caution if you are waiting to the last minute to make the switch; ELD manufacturers listed on the FMCSA website are self-certified. FMCSA does not vet or otherwise approve the manufacturers or their devices. It is ultimately the carrier's responsibility to make sure the ELD selected complies with the new rule. When purchasing, it is essential to perform due diligence regarding the manufacturer and device.
Electronic logging devices are coming and early adoption is encouraged. Avoid the last-minute rush, reap the benefits of improved CSA scores, and ensure compliance and comfortability when compliance counts.
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