Written by Brian P. O'Connor on February 1, 2017
In December 2015, the Federal Motor Carrier Safety Administration (“FMCSA”) published the Final Electronic Logging Device (“ELD”) Rule. The final rule requires all carriers and truckers to install an ELD in their trucks by December 18, 2017, possibly affecting 3.5 million drivers. While instituted by the FMCSA to combat truckers and carriers falsifying their hours of service in paper log books, this rule has been met with backlash from various trucking associations, most recently by the Owner Operator Independent Drivers Association (“OOIDA”), raising serious privacy and other concerns. Indeed, multiple courts have ruled that previous renditions of this final rule failed to pass constitutional muster. This past year, OOIDA petitioned the United States Court of Appeals for the Seventh Circuit to review the final rule, arguing a handful of bases for why it should be declared unconstitutional. But, after the rule’s long and windy road, the court in Owner–Operator Independent Drivers Association, Inc. v. Department of Transportation, No. 15-cv-3756, 2016 WL 6407405 (7th Cir. Oct. 31, 2016) (“Owner-Operator III”), found the final rule constitutionally sound, signifying that finally, it just might be here to stay.
History of the ELD Mandate
The final rule was passed to ensure that commercial truck drivers are truly complying with Hours of Service (“HOS”) regulations and thereby promotes highway safety and attempts to limit fatigue-caused accidents. For those unfamiliar with the HOS regulations, commercial drivers must document four different statuses regarding their work: (1) driving; (2) on duty, not driving; (3) in the sleeper berth; and (4) off duty. They are allocated maximum times for driving, must spend a minimum amount of hours off duty each day and are limited to a maximum amount of “on duty” time per week. Traditionally, drivers recorded these hours through paper logs and submitted these logs to officials during road side inspection audits. Violations, including failure to maintain accurate records, meant a driver may be placed out of service, thus creating an obvious temptation for drivers and their employers to manipulate records.
The FMCSA set out to eliminate this temptation by modernizing the HOS regulations, including with the requirement that each vehicle be equipped with an automated recording device, which takes the record-keeping duty out of the hands of those who may stray from the truth. In 2003 the FMCSA pondered mandating installation of an Electronic On-Board Recorder (“EOBR”), the ELD’s predecessor. However, the FMCSA decided against this. While striking down the 2003 final rule as arbitrary and capricious due to the FMCSA’s failure to consider its impact on drivers’ health, the United States Court of Appeals for the District of Columbia admonished the FMCSA for not adequately responding to Congress’s 1995 directive that the agency administer a requirement for automated and tamperproof recording devices.
The FMCSA tried again in 2010 by issuing a new rule, which required any motor carrier demonstrating serious noncompliance with HOS regulations to install an EOBR, as a penalty. The Seventh Circuit tossed out the 2010 rule as arbitrary and capricious because the FMCSA failed to consider potential driver harassment as a result of electronic monitoring. Particularly, the court found that the FMCSA inadequately responded to the fact that EOBRs were capable of transmitting drivers’ data in real time. This theoretically allowed employers to directly communicate with their drivers and pressure them to violate the regulations. For example, employers allegedly were coercing drivers to manually switch “on duty” times, such as loading and unloading, to “off duty” so that they could spend more time driving without a break.
With the FMCSA facing two strikes, Congress stepped in and passed the Commercial Motor Vehicle Safety Enhancement Act of 2012 (the “Act”). The Secretary of Transportation was ordered to issue regulations requiring most commercial vehicles to “be equipped with an electronic logging device to improve compliance by an operator of a vehicle with hours of service regulations.” Congress specified several factors to be considered, including the potential for harassment, paper document reduction, driver privacy and the confidentiality of personal data.
To comply with this statute, in 2015 the FMCSA issued the current final rule, which (1) mandates that ELDs be installed in all vehicles that are currently required to maintain HOS records; (2) provides technical specifications for ELDs; (3) clarifies the extent to which supporting paperwork is required; and (4) adopts provisions to ensure that ELDs are not used to harass drivers. Some technical specifications for the ELDs are that they must automatically link to the vehicle engine when running, and they must record the date, time, location, engine hours, vehicle miles, driver identification, vehicle identification and motor carrier identification. The Seventh Circuit found this data collection intentionally limited in scope and thus constitutional. Instead of continuously tracking this information, the ELDs would record only at specified times, such as when the driver’s duty status changes and once per hour while driving. In addition, the required ELDs would not pinpoint a vehicle’s exact location, but rather, they would provide location only within a one-mile radius.
The Court’s Rebuke of OOIDA’s ELD Mandate Objections
At the heart of the debate over the final rule in Owner-Operator III, as in prior cases addressing predecessor rules, was the issue of driver privacy. Specifically, OOIDA argued that: (1) the ELD mandate is contrary to law because it does not meet the requirement that all ELDs are “automatic;” (2) the FMCSA’s definition of “harassment” is too narrow to adequately protect truck drivers; (3) the FMCSA’s cost-benefit analysis is inadequate and fails to justify the implementation of the final rule; (4) the FMCSA did not sufficiently consider confidentiality protections for drivers when designing the final rule; and (5) the final rule imposes an unconstitutional search and/or seizure.
The court first addressed OOIDA’s argument that the ELDs are unable to truly record data automatically, and therefore are unreliable to combat falsified HOS records. According to OOIDA, Congress intended the ELDs to be purely automatic, meaning that there would be absolutely no human involvement in the recording process. But the court found that OOIDA’s “reading of the statute [sought] to pit one statutory requirement against another rather than allow the agency to balance competing policy goals endorsed by Congress.” While OOIDA argued that the ELDs mandated by the final rule require drivers to manually signal a change in their own status, and thus are possibly susceptible to manipulation, the court disagreed, stating that had Congress envisioned a device distinguishable from an EOBR, it had the power to expressly state so, but it clearly chose not to. Further, the court could only imagine two types of possible devices that would allow the type of monitoring OOIDA described – video surveillance and some form of bio-monitoring device, both of which would be “breathtakingly invasive.” The court reasoned that by using the term “automatically” in the Act, Congress could not have meant to require such an invasive device. Accordingly, the court concluded that some type of manual “change of status” by a driver would be required in any electronic monitoring device, and so it held that the ELDs mandated by the FMCSA sufficiently complied with the requirements set out by Congress.
Second, OOIDA argued that the FMCSA used too narrow of a definition of “harassment,” eliminating sufficient protection for drivers. While the FMCSA may have attempted to provide drivers with protections against harassment by their employers, OOIDA argued that the final rule fell short of doing so for several reasons. Initially, drivers are not protected against harassment unless they are in direct violation of HOS regulations. So for example, if a driver pulls off the road during bad weather to avoid hazardous driving conditions, he or she is not protected from employer harassment mandating him or her to keep driving. Also, even if the harassment occurs during an HOS regulated activity, the FMCSA has created various roadblocks, including forcing drivers to admit violations and risk future employment opportunities, which prevent drivers from being truly protected. From OOIDA’s perspective, while it may be true that the mandate prevents current employer retaliation under very specific circumstances, it does not provide confidentiality to drivers who violate the law. As a result, the likelihood that employer harassment of drivers will go on unreported is very high.
In response to this second argument, the court found that the definition of “harassment” in the final rule is reasonable. It interpreted the term as taking two logical forms: (1) when the driver’s ability is somehow impaired, or (2) when the driver is in violation of the hours of service rules. In coming to this conclusion, the court reasoned that Congress implicitly delegated the responsibility of defining “harassment” to the FMCSA and consideration of several factors demonstrated that the definition was reasonable. First, the FMCSA properly sought input from drivers, motor carriers and trade organizations regarding this definition. Second, the FMCSA considered administrative implications of the definition and altered it to provide administrators with the ability to respond to harassment allegations in a timely and consistent manner. Third, the FMCSA listened to truck drivers’ concerns and responded to them by altering the definition. For example, one concern was that employers would use the ELDs to sound beeping noises at drivers while they are trying to sleep—the ELDs now have a “mute” function so that employers are unable to interrupt a driver’s resting period.
OOIDA next asserted that the FMCSA’s cost-benefit analysis was inadequate and failed to justify implementation of the final rule. The court effectively dismissed this argument as moot. It held that the FMCSA did not carry the burden of providing a cost-benefit analysis since Congress specifically instructed it to create the final rule and certain ELD specifications. Even so, the court found that the benefits of the ELDs outweighed their cost.
OOIDA’s fourth argument was that the FMCSA did not adequately consider drivers’ confidentiality. But the court rejected that argument, finding that the FMCSA merely had the burden of proving it adopted a reasonable approach to protect drivers’ confidentiality, which it did. The FMCSA is not responsible for maintaining data, which responsibility instead is given to drivers and their employers. And the final rule reflects existing privacy laws. For example, the FMCSA will redact personal information within the records before publicly releasing data.
The Court’s Resounding Rebuke of Fourth Amendment Concerns
Finally, OOIDA argued that the final rule imposes an unconstitutional search and/or seizure on drivers. Claiming that a truck is “an office and a home away from home” for drivers, OOIDA argued that requiring the installation of surveillance devices in their vehicles constitutes a seizure of their property. The court resoundingly disagreed, holding that the searching of the ELDs falls within the pervasively regulated industry exception, a doctrine permitting warrantless administrative searches when reasonable. Noting that at least six other federal circuit courts have concluded likewise, the court found that the dangerousness of the trucking industry warranted pervasive regulation and held the final rule reasonable, especially in light of the FMCSA’s estimate that the ELDs likely will “save 26 lives, prevent 562 injuries, and avoid 1,844 vehicles crashes per year.” Further, falsification and errors in the traditional paper recording are a widespread problem and the ELDs are a necessary tool to eliminate it. Electronic logging of records offers a reasonable method to combat this problem by deterring violations. And nothing really changes from the prior regulations—searches of the ELD records would occur as they always have at roadside inspections. The search procedure is substantially similar from what has occurred with paper records for decades. Truck drivers’ reasonable expectation of privacy has been diminished by their voluntary choice to subject themselves to comprehensive governmental regulation. As long as a regulation provides for the driver to be advised that the search is pursuant to law and limits the discretion of the inspecting officer, as is the case with the final rule, a warrant that otherwise would have been required has been adequately substituted for constitutional purposes.
What Does This Mean for the Commercial Trucking Industry?
If you take the Seventh Circuit’s opinion in Owner-Operator III at face value, nothing changes as a result of this final rule. But is that true? Does the electronic recording contemplated by the final rule really not alter the privacy afforded commercial drivers during the decades of manual paper recording? How far will courts permit the FMCSA to go in its endeavor for highway safety at the unavoidable expense of drivers’ privacy?
On November 17, 2016, OOIDA issued a press release stating that it plans to petition the Seventh Circuit for a rehearing, signaling that the fight for drivers’ Fourth Amendment rights is not yet over. How the court handles that petition and possible rehearing, and how the Supreme Court may weigh in on the constitutionality of the final rule, should be watched closely by those involved in the domestic motor carrier transportation industry. If its holding remains good law, the Seventh Circuit’s analysis of OOIDA’s arguments and overview of the inadequacies of the FMCSA’s previous rules, are sure to provide plenty of ammunition to the FMCSA should the final rule be challenged in other federal circuits.
Commercial drivers should start becoming knowledgeable now about how their rights are affected by this final rule and what new obligations will be imposed on them beginning December 18, 2017. Motor carriers should be proactive and begin preparing for enforcement of this final rule to become a reality. For example, the FMCSA estimates that the average cost of an ELD as a result of this final rule will decrease to only $495 per vehicle, with a total range of $165 to $832 per vehicle, annually. Is your company adequately budgeting to account for the cost of installing and maintaining ELDs on its entire fleet by the end of 2017? How will your company fulfill its legal responsibility to store the electronically recorded data? Motor carriers also should be aware of the potential liabilities that can arise if they fail to come into compliance with the final rule, or if they encourage or knowingly permit their drivers to violate HOS regulations. Recently, accident victims’ attorneys began shifting their focus away from safety violations of an individual truck driver and towards the fleet-wide violations of the entire employer.  This has led to astronomical verdicts against motor carriers, which may only be the beginning considering that the ELDs are sure to give plaintiffs’ attorneys greater access to reliable, fleet-wide records. For this reason, many insurance companies are raising motor carriers’ premiums or refusing to cover motor carriers all together. This makes contractual language in shipping agreements even more imperative in order to adequately protect motor carriers in the event of a loss or injury. Motor carriers should seek guidance from legal counsel now in order to plan and prepare to navigate these new obstacles and ensure compliance with the final rule by December 18, 2017.
By: Paul J. Kozacky and Brian O’Connor
 Owner–Operator Indep. Drivers Ass'n, Inc. v. Dep't of Transp., No. 15-cv-3756, 2016 WL 6407405, at *4 (7th Cir. Oct. 31, 2016) (“Owner-Operator III”).  See, e.g., Public Citizen v. Federal Motor Carrier Safety Admin., 374 F.3d 1209, 1216 (D.C. Cir. 2004); Owner–Operator Independent Drivers Ass'n v. Federal Motor Carrier Safety Admin., 494 F.3d 188 (D.C. Cir. 2007) (“Owner-Operator I”); Owner–Operator Independent Drivers Ass'n v. Federal Motor Carrier Safety Admin., 656 F.3d 580 (7th Cir. 2011) (“Owner-Operator II”).  Electronic Logging Devices and Hours of Service Supporting Documents, 80 Fed. Reg. 78,292, at 78,303 (Dec. 16, 2015) (the “Final ELD Rule”), codified in 49 C.F.R. Pts. 385, 386, 390 and 395.  49 C.F.R. § 395.8(b).  Id.  Owner–Operator III, at *2.  Id.  Id., at *3.  Id.  Id.  75 Fed. Reg. 17,208 (Apr. 5, 2010).  Id.  Owner–Operator II, at 588.  Id., at 589.  Id.  Petitioner’s Brief at 22, Owner-Operator II.  Owner–Operator III, at *4.  49 U.S.C. § 31137(a)(1).  Id.  Id.  49 C.F.R. § 395.26.  Owner–Operator III, at *4.  49 C.F.R. § 395.26.  Owner–Operator III, at *4.  Id., at *1.  Petitioner’s Opening Brief at 12, Owner–Operator III.  Owner–Operator III, at *1.  Id., at *5.  Id.  Id.  Id.  Petitioner’s Opening Brief at 24, Owner–Operator III.  Id.  Id., at 28.  Id.  Id.  Owner–Operator III, at *6.  Id.  Id., at *7.  Id., at *6.  Id.  Id., at *7.  Id.  Id., at *8.  Id.  Id.  Id., at *1, 9.  Id.  Id., at *9.  Id.  Id., at *2.  Petitioner’s Opening Brief at 50-52, Owner–Operator III.  Owner-Operator III, at *10-11 (citing United States v. Delgado, 545 F.3d 1195, 1202 (9th Cir. 2008) (warrantless administrative searches of trucks and trailers at routine traffic stops survive Fourth Amendment scrutiny). See also, e.g., United States v. Mitchell, 518 F.3d 740, 752 (10th Cir. 2008) (warrantless search of a trailer to confirm that there are no contents in the trailer does not violate any Fourth Amendment rights); United States v. Mendoza-Gonzalez, 363 F.3d 788, 794 (8th Cir. 2004) (search of driver’s compartment underneath his sleeper birth did not violate his Fourth Amendment rights because the officer had authority to inspect all safety belts, and these belts were capable of falling into the sleeper berth compartment); United States v. Dominguez-Prieto, 923 F.2d 464 (6th Cir. 1991) (warrantless search of driver’s trailer did not violate any Fourth Amendment rights); United States v. Castelo, 415 F.3d 407, 412 (5th Cir. 2005) (if probable cause “justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search”); United States v. Fort, 248 F.3d 475 (5th Cir. 2001) (“Texas statute, which authorizes the detention of a vehicle, also provides authority for an officer to stop a vehicle in the absence of probable cause or reasonable suspicion”); United States v. Maldonado, 356 F.3d 130, 137 (1st Cir. 2004) (warrantless inspection of moving van did not violate any Fourth Amendment rights).  Id., at *10.  Id., at *11.  Id.  Id.  Id.  Id., at *9.  Id., at *12.  Truckers will ask for rehearing on ELD lawsuit, OOIDA Press Release, (Nov. 16, 2014), http://www.ooida.com/MediaCenter/PressReleases/pressrelease.asp?prid=419.  ELD myths – Separating fact from fiction, (accessed Nov. 30, 2016), https://eldfacts.com/eld-myths/.  Brian Baskin, Nuclear Verdicts Have Insurers Running from Trucks, The Wall Street Journal, Oct. 14, 2016.  Id.  Id.