Owner-Operator Independent Drivers Association, Inc., Mark Elrod, and Richard Pingel, Petitioners,
United States Department of Transportation, et al., Respondents.
September 13, 2016
Petition for Review of the Final Rule of the Federal Motor
Carrier Safety Administration. FMCSA-2010-0167.
Bauer, Kanne, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge
1935, federal law has regulated the hours of service of truck
drivers operating in interstate commerce. The regulations are
intended to reduce fatigue-related accidents, and they
require drivers to keep paper records showing their driving
time and other on-duty time. Compliance has long been an
issue, though, because it is easy to insert an error in paper
records, whether intentionally or not.
2012, Congress directed the Department of Transportation to
issue regulations to require most interstate commercial motor
vehicles to install electronic logging devices (ELDs). ELDs
are linked to vehicle engines and automatically record data
relevant to the hours of service regulations: whether the
engine is running, the time, and the vehicle's
approximate location. The devices are intended to improve
drivers' compliance with the regulations, to decrease
paperwork, and ultimately to reduce the number of
fatigue-related accidents. Congress instructed the Department
in promulgating the rule to consider other factors as well,
such as driver privacy and preventing forms of harassment
enabled by the ELDs. 49 U.S.C. § 31137. The Federal
Motor Carrier Safety Administration, which is part of the
Department of Transportation, promulgated the final rule
requiring ELDs in 2015. Electronic Logging Devices and Hours
of Service Supporting Documents, 80 Fed. Reg. 78, 292 (Dec.
16, 2015) ("Final ELD Rule"), codified in 49 C.F.R.
Pts. 385, 386, 390, and 395.
Mark Elrod, Richard Pingel, and the Owner-Operator
Independent Drivers Association (OOIDA) brought this action
for judicial review of the final rule. Elrod and Pin-gel are
professional truck drivers, and OOIDA is a trade
organization. They argue that the agency's final rule
should be vacated for five reasons. We uphold the final rule
and deny their petition.
claim first that the final rule is contrary to law because it
permits ELDs that are not entirely automatic. We disagree.
Petitioners' reading of the statute seeks to pit one
statutory requirement against another rather than allow the
agency to balance competing policy goals endorsed by
Congress. Second, petitioners argue that the agency used too
narrow a definition of "harassment" that will not
sufficiently protect drivers. This claim also fails. When
defining harassment, the agency sought input from drivers,
motor carriers, and trade organizations; it considered
administrative factors; and it ultimately provided a
reasonable definition of the term. Third, petitioners argue
that the agency's cost-benefit analysis was inadequate
and fails to justify implementation of the ELD rule. However,
the agency did not need to conduct a cost-benefit analysis
for this rule, which was mandated by Congress. Even if such
analysis were required, the studies were adequate. Fourth,
petitioners argue that the agency did not sufficiently
consider confidentiality protections for drivers. The agency,
however, adopted a reasonable approach to protect drivers in
petitioners argue that the ELD mandate imposes, in effect, an
unconstitutional search and/or seizure on truck drivers. We
find no Fourth Amendment violation. Whether or not the rule
itself imposes a search or a seizure, inspection of data
recorded on an ELD would fall within the "pervasively
regulated industry" exception to the warrant
requirement. The agency's administrative inspection
scheme for such information is reasonable.
Factual and Regulatory Background
agency's road to the 2015 final rule was long and rocky.
That history is relevant to several of petitioners'
arguments, particularly the claims that ELDs must be entirely
automatic, that ELD benefits do not outweigh their costs, and
that the ELD mandate violates the Fourth Amendment.
Federal Regulation of Commercial Motor Vehicles
early twentieth century, commercial motor vehicles were
largely regulated by individual states. See John J. George,
Federal Motor Carrier Act of 1935, 21 Cornell L.
Rev. 249, 249-51 (1936). This decentralized system ran into
dormant commerce clause problems. In a series of cases, the
Supreme Court struck down state regulations of commercial
motor vehicles that interfered with interstate commerce. See,
e.g., Buck v. Kuykendall, 267 U.S. 307 (1925)
(striking down state's attempt to require certificate of
"public convenience" to compete in commercial
interstate transportation); George W. Bush &
Sons Co. v. Maloy, 267 U.S. 317 (1925) (same);
Interstate Transit, Inc. v. Lindsey, 283 U.S. 183
(1931) (striking down state tax on privilege of providing
interstate bus transportation). In 1935, Congress responded
by passing the Federal Motor Carrier Act of 1935, Pub. L. No.
255, § 201, 49 Stat. 543.
delegated authority to the Interstate Commerce Commission to
regulate many elements of interstate freight and passenger
motor vehicle traffic. Most relevant for this case, the Act
directed the Commission to regulate the maximum hours of
service for commercial drivers. Id., §
204(a)(1). Regulating hours of service was intended to
promote highway safety by reducing accidents related to
driver fatigue. 79 Cong. Rec. 12209-37 (1935). This remains
the goal of the hours of service regulations today. Final ELD
Rule, 80 Fed. Reg. at 78, 303. Jurisdiction over the
regulations moved to the Federal Highway Administration in
1995 and then to the new Federal Motor Carrier Safety
Administration in 2000. See Interstate Commerce Commission
Termination Act, Pub. L. 104-88, 109 Stat. 803 (1995);
Owner-Operator Independent Drivers Ass'n v.
Federal Motor Carrier Safety Admin., 494 F.3d 188, 193
(D.C. Cir. 2007) (discussing regulatory history).
regulations require drivers to document four possible
statuses: (1) driving; (2) on duty not driving; (3) in the
sleeper berth; and (4) off duty 49 C.F.R. § 395.8(b).
They set out maximum times for driving and require a minimum
number of hours off duty each day. They also establish the
maximum permissible on-duty time for each week.
status has been traditionally documented through paper logs
called the "Record of Duty Status." Drivers are
required to keep copies of these records for seven days
before submitting them to their motor carrier. 49 C.F.R.
§ 395.8(k)(2). The carrier must retain copies for six
months. § 395.22(i)(1). Both drivers and carriers must
provide these records to authorized safety officials during
roadside inspections or audits. If a driver violates the
hours of service or fails to maintain her records accurately,
she may be placed out of service. § 395.13.
paper records have been ongoing sources of concern because
they are easy to falsify. For example, a driver could exceed
the cap on continuous driving (11 hours), but fail to record
the excess hours. § 395.3(a)(3)(i). There is evidence
that falsification of paper records occurs on a regular
basis. 65 Fed. Reg. 25, 540, 25, 558 (May 2, 2000) (agency
noting that hours of service violations are widespread). The
paper records are also vulnerable to human error. Final ELD
Rule, 80 Fed. Reg. at 78, 303. These concerns were part of
the impetus to update the hours of service regulations.
Efforts to Update the Hours of Service Regulations
1995, Congress directed the agency to revise the hours of
service regulations for commercial motor vehicles. Pub. L.
104-88 § 408, set out as note under 49 U.S.C. §
31136 (1996 Supp.). The Agency then tried to modernize the
regulations. The agency's proposed new rules have been
struck down three times, twice by the Court of Appeals for
the District of Columbia Circuit and once by this court.
the agency issued a new final rule that overhauled the hours
of service rules. 68 Fed. Reg. 22, 456 (Apr. 28, 2003). The
rule altered various requirements, including the length of
the daily driving limit, the daily off-duty requirement, and
the weekly on-duty maximum. See id. at 22, 457, 22,
501-02. The D.C. Circuit vacated the rule because the
"agency failed to consider the impact of the rules on
the health of drivers, a factor the agency must consider
under its organic statute." Public Citizen v.
Federal Motor Carrier Safety Admin., 374 F.3d 1209, 1216
(D.C. Cir. 2004).
agency then issued a revised final rule in 2005. 70 Fed. Reg.
49, 978 (Aug. 25, 2005). The D.C. Circuit again held that the
agency erred. Owner-Operator Independent Drivers
Ass'n v. Federal Motor Carrier Safety Admin., 494
F.3d 188 (D.C. Cir. 2007). This time, the agency violated the
Administrative Procedure Act by failing to provide sufficient
opportunity for interested parties to comment on the method
that justified the change in the hours of service rules. The
agency also failed to explain sufficiently certain elements
of that method. Id. at 193.
the agency's broader efforts to update the hours of
service rule was a narrower issue of electronic monitoring.
Be- fore promulgating the 2003 rule, the agency considered
requiring electronic on-board recorders (EOBRs), which are
the technical and regulatory predecessors of ELDs. See 65
Fed. Reg. 25, 540, 25, 598 (May 2, 2000). The agency
considered requiring EOBRs in response to Congress's 1995
directive to issue an advance notice of proposed rulemaking
"dealing with a variety of fatigue-related issues
pertaining to commercial motor vehicle safety ... including
... automated and tamperproof recording devices." Pub.
L. 104-88 § 408, set out as note under 49 U.S.C. §
31136 (1996 Supp.).
the proposed rule would have required EOBRs, the agency
decided not to require them at that time. 68 Fed. Reg. 22,
456, 22, 488 (Apr. 28, 2003). The D.C. Circuit vacated the
2003 rule on other grounds but also admonished the agency for
failing to respond adequately to the statutory directive to
"deal with ... automated and tamperproof recording
devices, " noting that the agency's decision on that
point was "probably flawed." Public
Citizen, 374 F.3d at 1220-22.
response, the agency further investigated EOBRs. In 2004, the
agency issued an optional advanced notice of proposed
rulemaking, which indicated that it was still considering
EOBR implementation. 69 Fed. Reg. 53, 386 (Sept. 1, 2004).
Then, in 2007 the agency issued a formal notice of proposed
rulemaking that considered three issues: (1) EOBR performance
standards; (2) mandatory use of EOBRs for motor carriers that
regularly violated hours of service rules; and (3) incentives
to promote voluntary use of EOBRs. 72 Fed. Reg. 2, 340, 2,
343 (Jan. 18, 2007). The final rule issued in 2010 required,
among other things, that motor carriers "that have
demonstrated serious noncompliance with the HOS [hours of
service] rules will be subject to mandatory installation of
EOBRs." 75 Fed. Reg. 17, 208, 17, 208 (Apr. 5, 2010).
This rule led to the agency's third rebuke by the courts.
2011, this court vacated the final rule regarding EOBRs.
Owner-Operator Independent Drivers Ass'n v. Federal
Motor Carrier Safety Admin., 656 F.3d 580 (7th Cir.
2011) ("OOIDA I"). As in the D.C.
Circuit's 2003 decision, we found that the agency had
failed to consider a statutory requirement: to ensure that
electronic monitoring would not be used to harass drivers. 49
U.S.C. § 31137(a) (2011). Instead of building in
safeguards to prevent EOBRs from being used to harass
drivers, the agency had provided "a single conclusory
sentence in the final rulemaking to the effect that the
Agency 'has taken the statutory requirement into
account throughout the final rule.'" OOIDA
I, 656 F.3d at 588. This shortcoming rendered the final
rule arbitrary and capricious. See 5 U.S.C. § 706.
The Current Challenge to ELDs
2012, Congress stepped in again and passed the Commercial
Motor Vehicle Safety Enhancement Act of 2012. This time
Congress was more direct. It ordered the Secretary of
Transportation to issue regulations requiring most commercial
vehicles to "be equipped with an electronic logging
device to improve compliance by an operator of a vehicle with
hours of service regulations." 49 U.S.C. §
31137(a)(1). The Act specified several factors for the
Secretary to consider in implementing the ELD mandate,
including the potential for harassment, § 31137(a)(2);
the potential to reduce paper documents, § 31137(d)(1);
driver privacy, § 31137(d)(2); and the confidentiality
of personal data, § 31137(e).
comply with this statutory mandate, the agency issued its
final rule in 2015. Final ELD Rule, 80 Fed. Reg. 78, 292
(Dec. 16, 2015). The rule (1) mandates ELDs for all vehicles
that are currently required to maintain hours of service
records; (2) provides technical specifications for ELDs; (3)
clarifies the extent to which supporting paperwork is
required; and (4) adopts provisions to ensure that ELDs are
not used to harass drivers. Id. at 78, 293. The