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Rehearing denied on OOIDA’s challenge to FMCSA’s ELD mandate

Written by Steve Gursten Posted February 18th, 2017

New FMCSA ELD rule requiring truckers to use ‘electronic logging devices’ will prevent many truck accidents and does not violate truck drivers’ Fourth Amendment rights

A legal loss for OOIDA (the Owner-Operator Independent Drivers Association) is a victory for trucking safety.

In January 2017, the U.S. Circuit Court of Appeals for the Seventh Circuit denied OOIDA’s petition for rehearing of the court’s rejection of their lawsuit to block enforcement of the Federal Motor Carrier Safety Administration’s (FMCSA) ELD mandate, which requires all truckers to use “electronic logging devices” (ELD) to ensure compliance with the federal “Hours of Safety” rules.

As an attorney who concentrates my entire practice on truck wreck cases around the country, I applaud the court for doing the right thing – from both a legal and safety perspective.  I have seen firsthand how driver fatigue and driving over hours and keeping two sets of log books has contributed to many of the truck accident cases I have litigated.  The new FMCSA ELD rule will prevent many of these crashes in the future.

Had OOIDA, with its reckless and self-serving agenda prevailed, I have no doubt that the roadways would be less safe.

As my colleague at the Truck Accident Attorneys Roundtable, Jordan Jones, has aptly noted:

“The intent behind the ELD Mandate, Jordan explained, is ‘to improve safety’ and ‘“improve compliance with the applicable HOS [hours of services, i.e., number of hours per week that a trucker can be driving] rules.”’”

That’s all the new ELD rule is.  It’s a way to make sure truckers – many who are motivated or pressured to drive over hours – will follow already existing safety rules that are meant to protect both the driver and the innocent public on our roads.

 OOIDA’s failed efforts to derail the FMCSA’s ELD mandate

In a statement on its website announcing the 7th Circuit’s rejection of its rehearing petition, OOIDA identifies its two key objections to the ELD mandate:

  • It “violat[es] the Fourth Amendment rights of professional truck drivers.”
  • “[R]equiring electronic monitoring devices on commercial vehicles does not advance safety since they are no more reliable than paper logbooks for recording compliance with hours-of-service regulations.”

However, in the “Final Rule” of the ELD mandate, the FMCSA rebutted both objections:

  • The “FMCSA disagrees that the required use of ELDs violates the Fourth Amendment. For more than 75 years, CMV drivers engaged in interstate commerce have been required to keep paper logbooks as part of their compliance with HOS rules. Under current regulations, the log must show, among other information, the driver’s duty status (on duty, on-duty driving, sleeper berth, off duty) and the general location of any change in duty status. Although an ELD will record driving time information automatically (including date, time and location for any transition into or out of driving time) and collect location information at intermediate intervals, only the methodology changes; the fundamental data and the purpose of data collection remains unchanged. To be sure, an ELD collects additional data elements (such as engine on, engine hours), but the minimal expansion is aimed at ensuring the authenticity of the driver’s data. … While ELDs would generally replace paper logs, a change required by statute, the basic premise, that is, prescribing a method of policing a driver’s compliance with HOS regulations, remains unchanged. An ELD records data only during operation of a CMV and drivers have no reasonable expectation of privacy in the data captured during that period.” (Pages 74-75 of the 126-page PDF)
  • The FMCSA notes that “a study concerning the safety benefits of ELD-like devices” “found a significant reduction in the overall crash rate and the preventable crash rate for trucks with ELDs compared to trucks without ELDs.” (Pages 71-72 of the 126-page PDF)

FMCSA’s Electronic Logging Device (ELD) mandate

Enacted in December 2015, the Federal Motor Carrier Safety Administration (FMCSA)’s “Final Rule” regarding “Electronic Logging Devices and Hours of Service Supporting Documents” provides (according to the FMCA’s 2017 “Frequently Asked Questions”:

  • Motor carriers and “commercial drivers who are required to prepare hours-of-service (HOS) records of duty status (RODS)” are required to “comply with the electronic logging device (ELD) rule.”
  • “A motor carrier must retain ELD record of duty status (RODS) data and back-up data for six months.”
  • “FMCSA will not retain any ELD data unless there is a violation.”
  • “Motor carriers and drivers subject to the ELD rule must start using ELDs by the compliance date of December 18, 2017, unless they are using a grandfathered Automatic On-board Recording Device (AOBRD).”
  • “The ELD rule has provisions to prevent the use of ELDs to harass drivers. … FMCSA defines harassment as an action by a motor carrier toward one of its drivers that the motor carrier knew, or should have known, would result in the driver violating hours of service (HOS) rules in 49 CFR 395 or 49 CFR 392.3. These rules prohibit carriers from requiring drivers to drive when their ability or alertness is impaired due to fatigue, illness or other causes that compromise safety. To be considered harassment, the action must involve information available to the motor carrier through an ELD or other technology used in combination with an ELD.”
  • “An ELD automatically records the following data elements at certain intervals: date; time; location information; engine hours; vehicle miles; and identification information for the driver, authenticated user, vehicle, and motor carrier.”
  • “ELDs are not required to collect data on vehicle speed, braking action, steering function or other vehicle performance parameters. ELDs are only required to collect data to determine compliance with hours of service (HOS) regulations.”

About Steve Gursten

Attorney Steven Gursten is president of the Motor Vehicle Trial Lawyers Association and past president of the American Association for Justice Trucking Litigation Group. He has been named a Michigan Lawyers Weekly "Leader in the Law" for his efforts to prevent truck accidents and promote national truck safety. Steve was also a Michigan Lawyers Weekly "Lawyer of the Year" for a record settlement in a truck accident case. He has received the top reported truck accident jury verdict and top reported truck accident settlement in Michigan for multiple years, according to published year-end compilations of all jury verdicts and personal injury settlements by Michigan Lawyers Weekly. He has been named a "Top 50 Super Lawyer," by SuperLawyers, is listed in Best Lawyers in America, and has been awarded an AV-rating by Martindale-Hubbell, which is the highest rating for legal ability and ethics. Steve speaks to lawyers throughout the country on truck accident litigation. He is a founding member of the Truck Accident Attorneys Roundtable, head of Michigan Auto Law, and has dedicated his legal career to making our roads safer.
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