Earlier this week we chronicled the potential Federal Motor Carrier Safety Administration (FMCSA) electronically-enforced national truck speed limit, which pitted the American Trucking Associations (ATA) and the FMCSA against the Owner-Operator Independent Drivers Association (OOIDA). That doesn't appear to be the only controversy where the ATA and OOIDA find each other on opposite sides of an issue.
On December 10, 2015, the FMSCA announced that it would require all trucks manufactured after the year 2000 to be equipped with electronic logging devices (ELDs) by December 18, 2017. This measure was designed to replace the paper logs that truckers have used for decades to track their hours of service. The goal of the rule is to increase compliance with FMSCA hours of service rules by creating a system that is harder to cheat than paper logs. The day after the new rule was announced, the OOIDA filed suit in the 7th Circuit Court of Appeals in Chicago in an effort to block the rule from taking effect. While they may be right about the electronically imposed national speed limit, they are absolutely wrong about these regulations.
The biggest issues raised by OOIDA is that the new rules are a form of harassment, violate truck driver privacy, and infringe upon 4th Amendment protections against unreasonable search and seizure. Oral arguments in the case were heard before the court just a couple of weeks ago and while it is always difficult to infer anything about a final ruling based upon such arguments, the tone of the questions seemed to indicate that the challenge will not prevail and the new rules will go into effect.
In the interest of full disclosure, as one of Texas' leading truck accident firms, we support fully support the implementation of electronic logging devices. After drug use and drivers with dangerous histories, our experience has shown us that driver fatigue is one of the major sources of commercial truck accidents. Hours-of-service regulations are the major tool for combating driver fatigue and reasonable technological steps to insure their accuracy, like electronic logging devices, are measured, prudent steps to improve safety on our roadways.
OOIDA's Arguments Against Electronic Logging Devices
The electronic logging device mandate stems from provisions in the 2012 Transportation Bill passed by Congress. The FMSCA was instructed by Congress to implement regulations requiring electronic logging of hours of service, but to do so in a manner that didn't infringe upon trucker confidentiality or harass truckers.
OOIDA claims that the regulations fail on both grounds, however their arguments are pretty weak. To the claims of confidentiality, they argue that since the truckers' names correlate with the data the devices they collect, which goes beyond just hours of service, the devices by their very nature violate confidentiality. Of course, this only makes sense if truck drivers weren't required to identify themselves in their paper logs. In order to ensure hours of service compliance, these devices by their very nature have to match the hours in the computer with a physical truck driver in the real world who is being monitored.
The harassment claims that OOIDA's counsel advance are almost laughable. I wish were exaggerating their argument given how silly it sounds, but it boils down to a contention that since truck drivers have to interact with the devices in order to start and stop them, this constitutes a form of harassment. They suggest that to prevent harassment, the devices should engage without any prompting from the driver. In essence, they argue that drivers having to push buttons is a greater harassment than a hypothetical "Big Brother" module that can independently monitor truckers' activities.
As for what the truckers surveyed by FMSCA found most harassing about ELDs, it appears that older models would beep and make sounds, which interrupted sleeping truckers. In response to this feedback, FMSCA rules require that valid ELDs have either or a mute button or a means to adjust sound to prevent this problem.
The 4th Amendment concerns at first glance seem to be the strongest grounds for objecting to the regulations. Aside from hours of service information, electronic logging devices also record whether a truck engine is on, whether the driver is accelerating or braking, as well as input from the steering wheel. On the surface it appears that this information could be used by law enforcement for the purpose of pursuing a criminal case.
Such a use of electronic logging devices would amount to a forbidden pretextual administrative search. This type of search is one where the government abuses its regulatory authority to gather evidence for a criminal prosecution. It is also already forbidden. This issue is most clearly addressed in New York v. Burger.
Delivering a dissent from the opinion of the Supreme Court, Justice Brennan writes:
In the law of administrative searches, one principle emerges with unusual clarity and unanimous acceptance: the government may not use an administrative inspection scheme to search for criminal violations.
Without diving into the weeds that make up the elements of valid administrative searches, FMSCA has assured truck drivers and their local partners that the information collected by ELDs will only be used to ensure compliance with hours of service regulations, not for criminal prosecutions. They repeated this in their briefs to the court and in oral arguments. Were either they, or their local partners, to turn around and go back on these public declarations, any truck driver would have one heck of an entrapment defense.
To further asuage concerns regarding confidentiality and 4th Amendment issues, none of the data in the ELDs that is collected during the normal course of inspections is being entered into a database, with either FMSCA or their local law enforcement partners. It is difficult to imagine a system more analogous to the current paper logbooks than FMSCA's new ELD regulatory regime.
The OOIDA raises interesting concerns about whether or not ELDs actually improve compliance, or just improve perceived compliance, since truck drivers still have to interface with the device. However, these questions don't touch on the validity of the regulation. Contrary to what many people believe, the government is perfectly free to make dumb or ineffective regulations (not that this one is). It's just part of the trial and error of governance. Ideal regulations only exist in the realm of platonic forms, not in the real world. The proper venue for concerns about efficacy are our political branches of government, not the court.
As I mentioned before, predicting court decisions based upon oral arguments is a fool's errand, but given what I heard of the arguments before the 7th Circuit, as well as other information surrounding this case, I'm willing to look foolish and predict that ELDs are here to stay.
What do ELD Requirements Mean for Truck Accident Injury Victims?
If everything goes to plan, greater compliance with hours of service and more accurate reporting should cut down on the number of crashes that result from driver fatigue. This is the best possible outcome since it prevents accidents before the happen. Given the brutal, horrific injuries that result form 18-wheeler accidents, we can only hopes this comes to pass.
Of course, other factors such as drug use, unqualified drivers, and excessive speed will not be addressed by enforcing hours of service. As a result, there will still be truck crash injury cases. One of the interesting parts of this case for those injured in truck accidents is the acknowledgment by OOIDA and the government that ELDs will record steering and braking data.
This information will not be available to local police who investigate criminality in these cases, per FMSCA assurances. These investigators will not have ELD information when determining fault in an accident. In a small number of cases, data on the ELD will likely contradict the police report in terms of liability.
The ramifications for victims of truck accidents are huge. While many times the police report for fault in a truck accident is correct, there are a large number of cases where the police flat-out get it wrong. This places an additional burden on the injured, because they now have to prove that the police report is incorrect. This is an uphill, but not impossible battle. One of the keys to winning that fight is to come up with evidence that contradicts the police report. This is often done through witness statements, accident reconstructionists, and data from the engine control module, or ECM.
While the data on the ELD is not available to law enforcement for the purposes of determined criminal culpability, there is nothing that prevents civil attorneys from obtaining that information. It makes getting an experienced truck accident attorney even more vital to successfully pursuing damages.
In any accident that calls into question a truck driver's decision to brake or whether or not they swerved to avoid a car, information on the ELD could prove the difference between showing truck driver negligence or not. While this may seem like a novel legal theory, both counsel for OOIDA and the government acknowledged during oral arguments the availability of ELD data for civil lawsuits.
So if a regulation reduces the number of truck accidents and provides another valuable source of evidence for injury victims, it would have to be quite onerous or unconstitutional not to proceed.