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 discussed whether the Trump Administration might withdraw or modify the controversial final Electronic Logging Device (ELD) rule, published by the Federal Motor Carrier Safety Administration (FMCSA) on Dec. 16, 2015. As the Trump Administration's first 100 days winds to a close, the answer so far is "No." But that does not mean the industry forces against the rule have thrown in the hat.
By way of background, an ELD synchronizes with a vehicle engine to automatically record driving time for purposes of reporting hours of service (HOS). Subject to exceptions contained within the rule, the rule applies to most carriers and drivers who are required to maintain record of duty (ROD) status. It bears noting that Congress initiated the rule in 2012, mandated as part of the Moving Ahead for Progress in the 21st Century Act (MAP-21). It calls for the Secretary of Transportation to adopt regulations requiring ELD use in commercial motor vehicles (CMVs) involved in interstate commerce, when operated by drivers who are required to keep ROD status.
The effective date of the rule was Feb. 16, 2017, and 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, registered ELDs that comply with the ELD rule and regulations.
We noted previously that the rule had been the subject of an unsuccessful legal challenge by the Owner-Operator Independent Drivers Association (OOIDA), which challenged the 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 rejected OOIDA's arguments and upheld the ELD rule. In a last-ditch effort to invalidate the ELD rule, on April 12, 2017, OOIDA filed a petition asking the U.S. Supreme Court to accept a further appeal.
To date, notwithstanding its strong stance against burdensome regulations, the Trump Administration has not signaled that it will modify the ELD rule or delay its implementation. Nonetheless, a broad coalition of industry groups opposing the rule have not given up the fight. In a March 21, 2017, letter to Transportation Secretary Elaine Chao, copying certain members of Congress, 17 trade groups opposing the ELD rule and other regulations cited President Donald Trump's Jan.30, 2017, Executive Order titled "Reducing Regulation and Controlling Regulatory Costs." That Executive Order calls for the rollback, repeal or cessation of pending regulations and for a reduction in the number of new regulations. The opponents of the ELD rule asserted in the letter that:
"The ELD mandate alone is estimated to cost a whopping $2 billion, making it one of the most expensive of all federal rulemakings advanced by the Obama Administration. Because the technology is primarily used to manage large fleets of vehicles and is incapable of automatically recording changes in a driver's duty status, this mandate comes with no economic or safety value for our members or the wide range of customers who rely on truck transportation. Meanwhile, the small number of large corporations that benefit from the utilization of ELDs are already using the technology to monitor their productivity. In light of these factors, implementation of the mandate will force our members to bear all the $2 billion in costs associated with the installation of these devices, imposing wholly unnecessary financial and compliance burdens on American businesses of all sizes."
Thus, although the battle to avoid ELDs has so far been lost at the agency level and in court, whether the Trump Administration will reverse course in the face of strong industry opposition remains to be seen. In the meantime, motor carriers need to be mindful of the upcoming compliance deadline and requirements.