In an earlier article (see Holland & Knight's alert, "Is There an Opening to Withdraw or Modify Electronic Logging Device Rule?," Jan. 13, 2017), we described the controversial final Electronic Logging Device (ELD) rule, published by the Federal Motor Carrier Safety Administration (FMCSA) on Dec. 16, 2015. The ELD rule requires certain truck drivers to record the hours they are on and off duty via an electronic on-board device, rather than paper logbooks, in an effort to reduce inaccurate reporting. Although the rule became effective on Feb. 16, 2017, the deadline to begin complying does not start until Dec. 18, 2017, with a two-year phase in period.
Legal challenges to the ELD rule have been made by the Owner-Operator Independent Drivers Association (OOIDA), which challenged the rule arguing that, among other issues, it violated the Fourth Amendment. However, that legal challenge is now at a dead end. After the U.S. Court of Appeals for the Seventh Circuit upheld the ELD rule, OOIDA petitioned the U.S. Supreme Court to hear an appeal of that decision. On June 12, 2017, the Supreme Court declined to do so. Accordingly, the appellate court decision upholding the rule is final.
Industry Efforts Continue
Industry opponents have not, however, abandoned their efforts to convince the U.S. Department of Transportation (DOT) to withdraw the rule or for Congress to intervene. As we previously reported (see Holland & Knight's alert, "Transportation Developments in the Trump Administration's First 100 Days," May 1, 2017), 17 trade groups opposing the ELD rule and other regulations wrote a March 21, 2017, letter to DOT Secretary Elaine Chao, copying various members of Congress. In the letter, the trade groups cited President Donald Trump's Jan.30, 2017, Executive Order 13771, titled "Reducing Regulation and Controlling Regulatory Costs," and noted that industry would need to spend $2 billion in compliance costs.The Executive Order – known as the "one in, two out" order – calls for the rollback, repeal or cessation of pending regulations as well as a reduction in the number of new regulations. To date, DOT has not agreed to modify or delay the rule.
Despite pushback from some trade groups, the industry is not universally against the ELD rule. For example, the American Trucking Association – the largest U.S. trucking lobby – is a notable supporter of the rule.
After its loss in the courts, OOIDA announced that it will continue to advocate for relief from the ELD rule to Congress and the Trump Administration. While these behind-the-scenes challenges are ongoing, it appears increasingly likely that the ELD rule will remain in effect. Motor carriers should diligently establish plans to assure compliance with the fast-approaching implementation deadline.