Owner-Operator Indep. Drivers Ass'n, Inc. v. U.S. Dep't of Transp.

• Decision Date: 31 October 2016
• Docket Number: No. 15-3756,15-3756
• Parties: Owner-Operator Independent Drivers Association, Inc., Mark Elrod, and Richard Pingel, Petitioners, v. United States Department of Transportation, et al., Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

840 F.3d 879

Owner-Operator Independent Drivers Association, Inc., Mark Elrod, and Richard Pingel, Petitioners,
v.
United States Department of Transportation, et al., Respondents.

No. 15-3756

United States Court of Appeals, Seventh Circuit.

Argued September 13, 2016
Decided October 31, 2016

Paul D. Cullen, Sr., Paul D. Cullen, Jr., Attorneys, Cullen Law Firm, Washington, DC, for Petitioners.

Kathryn B. Thomson, Attorney, T.F. Scott Darling, III, Department of Transportation, Office of the General Counsel, Joshua P. Waldman, Matthew M. Collette, Loretta E. Lynch, Attorneys, Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Respondents.

Richard Pianka, Attorney, American Trucking Associations, Arlington, VA, for Amicus Curiae American Trucking Associations, Incorporated.

R. Jay Taylor, Jr., Attorney, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, IN, for Amici Curiae Advocates for Highway and Auto Safety, Trucking Alliance for Driver Safety and Security.

Before Bauer, Kanne, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Since 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.

In 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

840 F.3d 884

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.

Petitioners Mark Elrod, Richard Pingel, and the Owner–Operator Independent Drivers Association (OOIDA) brought this action for judicial review of the final rule. Elrod and Pingel 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.

Petitioners 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 this regard.

Fifth, 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.

I. Factual and Regulatory Background

The 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.

A. Federal Regulation of Commercial Motor Vehicles

In the 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, 45 S.Ct. 324, 69 L.Ed. 623 (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, 45 S.Ct. 326, 69 L.Ed. 627 (1925) (same); Interstate Transit, Inc. v. Lindsey , 283 U.S. 183, 51 S.Ct. 380, 75 L.Ed. 953 (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.

840 F.3d 885

The Act 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).

The 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.

Driver 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.

These 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.

B. Efforts to Update the Hours of Service Regulations

In 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.

In 2003 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.” ...