On the ELD lawsuit: 'We think we will win this'

By Jim Johnston, OOIDA President and CEO

Last month, the Federal Motor Carrier Safety Administration responded to OOIDA’s lawsuit seeking to overturn the electronic log device mandate. In a 60-plus-page brief, FMCSA attorneys attempt to address our case with a number of reasons why our arguments don’t hold up. In my opinion, their response completely fails to convince.

For example, FMCSA did a poor cost analysis, purely based on assumption science. It claims it really didn’t have to do a cost test when it proposed the rule because Congress didn’t specifically state that when they ordered them to do it. Hold on here. It has to do a thorough cost benefit analysis on every single rule and regulation they put out. That’s the process.

The agency claimed our cost concerns were without merit. Without merit? They substantially underestimated the cost of these devices – repairs to these systems, monthly service fees, replacement costs when they break down; you still have to carry a logbook with you (you still have to produce seven days previous HOS if the device breaks down). The agency’s response is nonsense.

Keep in mind that Congress was explicit in its order that the agency shall develop a rule requiring electronic monitoring on board the truck, and it must automatically and accurately record driver duty time and change-of-duty status. Presently, the only thing it records is actual driving time. It does not record change-of-duty status automatically. It has to be entered manually, just like a paper logbook.

Regarding invasion of privacy, FMCSA claims that trucking has always been a closely watched industry and truckers have no expectation of privacy. It says that the ELD does not require a warrant based on a Supreme Court ruling. The high court did rule on inspections in the highly regulated industries and it’s based on inspection of premises for administrative purposes, not for purposes of law enforcement. In trucking, that would be like a safety inspection. It does not apply to electronic monitoring of individuals for law enforcement purposes. There’s been no Supreme Court decision that’s said this.

The agency’s other problem is, they still did not fix the driver harassment issue that got it thrown out in the first place. In my opinion, FMCSA completely dropped the ball regarding driver harassment.

OOIDA has until Aug. 12 to file its own response, and oral arguments will probably take place in the fall. By the end of the year, it’s possible we will have a decision. The agency did a poor job in developing this rule and its arguments are weak; ours are compelling. I am confident we can win this. There’s no guarantee, but we do not intend to let them get away with this. We will go to the Supreme Court if we must – because if they can do this, they can do anything.