Lawrence Hamilton II is a Partner in Holland & Knight's Jacksonville office
Jameson Rice is an Associate in Holland & Knight's Washington, D.C. office
The Federal Motor Carrier Safety Administration (FMCSA) published its final electronic logging device (ELD) rule on Dec. 16, 2015, which the FMCSA claims, "is intended to help create a safer work environment for drivers, and make it easier, faster to accurately track, manage, and share records of duty status (RODS) data."
An ELD synchronizes with a vehicle engine to automatically record driving time for purposes of reporting hours of service (HOS). Subject to some exceptions, the rule applies to most carriers and drivers that are required to maintain RODS. Congress mandated as part of the Moving Ahead for Progress in the 21st Century Act (MAP-21) that an ELD rule be enacted for drivers of commercial motor vehicles (CMVs) involved in interstate commerce that are required to keep records of duty status.1
The rule is scheduled to go into effect on Feb. 16, 2017. The compliance date is Dec. 18, 2017, after which there is a two-year phase-in period. Accordingly, beginning Dec. 16, 2019, all drivers and carriers subject to the rule must use certified and registered ELDs that comply with requirements of the ELD regulations.
A previous ELD rule had been successfully challenged in court by the Owner Operator Independent Drivers Association (OOIDA). OOIDA also challenged the most recent ELD rule, arguing, among other issues, that it violated the Fourth Amendment's prohibition against unreasonable searches and seizures. However, the U.S. Court of Appeals for the Seventh Circuit upheld the rule, holding that an ELD would fall within the "pervasively regulated industry" exception to the warrant requirement. In so ruling, the court found that public safety concerns inherent in commercial trucking give the government a substantial interest. The court also found that ELD records and administrative inspection of them are necessary to further the government's regulatory scheme because of the falsification and errors found in paper records. The court determined that the ELD mandate creates a constitutionally adequate substitute for a warrant in the commercial trucking industry. Accordingly, the ELD mandate was found to provide for a reasonable administrative inspection within the meaning of the Fourth Amendment.
Thus, the battle to avoid ELDs has been lost at the agency level and in court. The new Trump Administration, which is expected to be considerably less inclined toward regulation, provides the opportunity to persuade Congress to pass new legislation, delay or otherwise modify enforcement of the law.
Footnotes
1 See Section 32301(b) of the Commercial Motor Vehicle Safety Enhancement Act, (Pub. L. 112-141, 126 Stat. 405, 786-788, July 6, 2012)
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