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‘Capricious’ ELD mandate challenged by OOIDA

Posted: April 4, 2016 by Rolf Lockwood

CHICAGO, IL — Claiming that the coming U.S. mandate for electronic logging devices to be used by interstate truck drivers is “arbitrary and capricious”, the Owner-Operator Independent Drivers Association (OOIDA) has filed an appeal to challenge the rule.

OOIDA is challenging the U.S. ELD mandateELDs won’t improve safety, the organization claims, adding that the mandate propagated by the Federal Motor Carrier Safety Administration (FMCSA) is in violation of 4th Amendment rights against reasonable searches and seizures.

The mandate requires that truck drivers use ELDs to track their driving and non-driving activities even though such devices can only track movement and location of a vehicle. The FMCSA finalized the rule late last year.

OOIDA, representing small-business truckers, stated its arguments in a legal brief filed with the U.S. Court of Appeals for the 7th Circuit.

“The agency provided no proof of their claims that this mandate would improve highway safety,” said Jim Johnston, OOIDA president and CEO. “There is simply no proof that the costs, burdens and privacy infringements associated with this mandate are justified.”

His point is not made in a vacuum.

In fact the FMCSA is now being urged, and strongly, to make a bunch of improvements in its data and research methods “to support a more comprehensive understanding of the relationships between operator fatigue and highway safety and between fatigue and long-term health.”

That comes from a new report (find it here) prepared for the FMCSA by a committee of the U.S. National Academies of Sciences, Engineering, and Medicine, released just last month. It argues that existing databases don’t offer enough “…information on sleep deficiency in CMV drivers, their adherence to HOS rules, and their crash frequency as a result of fatigued driving. Therefore, research on the linkage among hours of service, fatigue, and accident frequency is hampered by imperfect knowledge of the three most central variables.”

The National Academies contends that any newly proposed changes to hours-of-service rules and those for the medical certification of commercial drivers “need to be based on research-supported understanding of the costs and benefits of such changes.”

In other words, the ‘science’ behind the existing HOS rules simply isn’t good enough.

The ELD mandate affects cross-border Canadians and about 3 million U.S. interstate drivers of vehicles manufactured in or after model-year 2000. By December 2017, drivers will have to replace paper logbooks with electronic devices. The rule strictly prohibits using ELDs to harass drivers (OOIDA is responsible for that proviso by way of an earlier challenge) and in most cases a carrier would not be required to retain supporting documents verifying on-duty driving time.

The association previously challenged a similar mandate in August 2011 and the court ruled in favor of OOIDA, agreeing that prolonged use of GPS trackers without a warrant fell within the 4th Amendment’s meaning. When the FMCSA announced the latest ELD mandate in December, the association filed a petition for review the next day.

At the time, OOIDA’s Johnston said that the ELD mandate could have “the single largest, most negative impact on the industry than anything done by FMCSA,” and that the association intended to fight it.

OOIDA also pointed out that the mandate fails to comply with a congressional statute requiring ELDs to accurately and automatically record changes in drivers’ duty status. ELDs can only track vehicle movement and must rely on drivers to manually input changes in duty status.  Therefore, OOIDA contends the mandated devices are no more reliable than paper logbooks for recording hours of service compliance.

“For most truckers, a truck is not just a vehicle but is also an office and a home away from home,” said Johnston. “This mandate means monitoring the movement and activities of real people for law enforcement purposes and is an outrageous intrusion of the privacy of professional truckers.”

Canada has not yet finalized an ELD policy.

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