Moving Words – Logging
Written by Timothy Brady.
“Because this issue is of vital importance to our members and all small business truckers, we are reviewing our next steps to continue our challenge against this regulation.” – Jim Johnston, President, OOIDA
This was a statement released by the Owner Operator Independent Drivers Association pertaining to the ruling regarding the U.S. Court of Appeals for the Seventh Circuit, which ruled Monday, October 31, 2016, giving the Electronic Logging Device rule the ‘green light.’
OOIDA had successfully blocked an earlier ruling to mandate e-logs for the drivers Hours of Service, with the court agreeing the 2010 finding didn’t fully address truck driver harassment, as mandated by Congress. The FMCSA rewrote the rule after the court ruling. According to the written decision by Circuit Judge David F. Hamilton, he continually references the 80-year history of government regulating Hours of Service Limits. In the decision Judge Hamilton stated, “Congress has long recognized commercial trucking as a dangerous industry. Danger to the public has lain at the center of the hours of service rules since 1935.” In the decision he quotes a statement from a congressman in the 1930’s who used the term “truckathon” to describe the “brutal, inhumane, and dangerous practice whereby drivers of busses (sic) and trucks are compelled to work 18 to 20 hours a day, to the detriment of their own health and the danger of the public who travel the highways of our country.”
In its decision, U.S. Court of Appeals for the Seventh Circuit said that the ELD must pass a three-part reasonableness test in which: 1 – the regulatory scheme must be informed by a substantial government interest; 2 – the warrantless inspections must be necessary to further the regulatory scheme; and 3 – the inspection must provide a constitutionally adequate substitute for a warrant.
In addressing the three elements, the court explained that for the first one the public safety concerns inherent in commercial trucking give the government a substantial interest. Concerning the second one, the court said that ELD records and administrative inspection of them are necessary to further the government’s regulatory scheme, with “falsification and errors in the traditional paper records…a widespread problem,” adding that during the Agency’s listening sessions, drivers said that motor carriers sometimes pressure them to alter their paper records.
The court said that the ELD mandate met the third part, because the FMCSA provides a constitutionally adequate substitution for a warrant, and to meet this requirement the inspection and inspector must advise the owner of the commercial property that the search is made pursuant to law and has a properly defined scope and must limit the discretion of the inspecting officer, with the ELD doing both.
At Stephens Inc., an independent financial services firm, Transportation Analyst Brad Delco said in a research note, “that ELDs will more effectively and efficiently track a driver’s Hours-of-Service (HOS) duty status, while helping to prevent the intentional falsification of records.” Delco continued, “That by his firm’s estimates, around 70 percent of the industry is without ELDs, explaining that the falsifying of logbooks is prevalent, with the ELD mandate expected to reduce capacity by up to 10 percent in utilization, and will have a positive impact on supply/demand dynamics for the entire TL industry, which could be in addition to supply correction that is occurring with weak equipment orders.”
With the unanimous decision by the U.S. Court of Appeals for the Seventh Circuit, OOIDA is still weighing its appeal options to the Supreme Court. So, as movers, what should you be doing?
Don’t assume that the next OOIDA challenge to the ELD rule will be a success.
Look for FMCSA-authorized ELD service providers who allow you to move step-by-step through the learning curve with your safety department and drivers.
The earlier you start preparing and training your staff and drivers, the easier and less costly the transition. All carriers and Owner/Operators with trucks having model years 2000 or later are required to have operational ELDs installed and tracking HOS by December 2017.
It’s probably best to start training during the 2016/2017 winter and spring before the 2017 moving season, as this is going to tremendously impact your van operators’ former methods of operations. Example: they find themselves with moving help, a loaded (or empty) truck in a residential neighborhood with zero Hours of Service driving time left to return the help to the agency or weigh the shipment, and ultimately end up with a semi-truck parked, due to other regulations and circumstances, in an area where most municipalities are not going to be happy.
“Planning is bringing the future into the present so that you can do something about it now.” – Alan Lakein, author, “How to Get Control of Your Time and Your Life”
