April 1, 2016

Electronic logging devices do not improve safety; mandate is unconstitutional, trucking group says

OOIDA files brief asking court to overturn ELD mandate, saying it violates Fourth Amendment rights against unreasonable searches and seizures.

By DC Velocity Staff

A federal government mandate requiring motor carriers to install electronic logging devices (ELD) by the end of 2017 does not advance highway safety and violates 4th Amendment rights against unreasonable searches and seizures by requiring the prolonged use of a warrantless GPS device, a trade group representing owner-operators and independent drivers said yesterday in asking a federal appeals court to overturn the regulations.

The Owner-Operator Independent Drivers Association (OOIDA) said in a brief filed with the 7th Circuit Court of Appeals that the Federal Motor Carrier Safety Administration, which developed the controversial rules, has failed to prove they would result in safer roads for truckers and motorists.

"[The agency] didn't even attempt to compare the safety records of trucking companies that use ELDs and those that do not," said Jim Johnston, OOIDA's president and CEO. "There is simply no proof that the costs, burdens, and privacy infringements associated with this mandate are justified."

FMCSA, which declined comment on the OOIDA action, first proposed a switch from paper to electronic driver logbooks in 2010. The agency said ELDs would enable better enforcement of driver hours-of-service regulations and foster efficiencies by reducing the amount of paperwork required to comply with the regulations. Stricter driver compliance with HOS rules would prevent about 2,000 crashes per year involving large commercial vehicles, saving 26 lives and avoiding more than 500 injuries, FMCSA said. However, the 7th Circuit in August 2011 froze the rule on grounds it didn't do enough to protect drivers from the possibility of fleet owners and operators using the technology in order to harass them.

OOIDA said in yesterday's filing that the rule still has massive legal holes in it. Because ELDs only track the location of vehicles and must rely on drivers to manually input changes in their duty status, the rule fails to comply with a congressional statute requiring ELDs to accurately and automatically record those changes. As a result, the devices are no more reliable than paper logbooks for recording hours of service compliance, OOIDA said.

The group added that the prolonged use of a warrantless GPS tracking device on a vehicle clearly represents a search within the meaning of the Fourth Amendment. FMCSA's attempt to compel installation of ELD devices without a warrant represents an unconstitutional search and seizure, the group said. It added that the final rule does not provide protection against driver harassment. FMCSA has said that strict driver protection language is embedded in the final rule.

Although most of the larger truck fleets have already installed ELDs, many smaller operators have hung back, concerned about the cost of the equipment and systems, the disruptions in switching from paper to electronic logbooks, and possible intrusion into their work and personal lives. For many solo drivers, their vehicle is not only their source of income but also their "home away from home" given the many days and weeks they are on the road.

OOIDA said the ELD mandate could have more far-reaching consequences that any rule ever put forth by FMCSA. Industry analysts said it could result in a low to mid single-digit hit on truck productivity if smaller carriers, which are the backbone of the nation's truck fleet, struggle with the new rule and a large number of them exit the business.

About 98 percent of the nation's truck fleet is comprised of firms with between one to five trucks.

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