FOR THE SEVENTH CIRCUIT OWNER-OPERATOR ... R. VARGA Attorney-Advisor Federal Motor Carrier Safety Administration BENJAMIN C. MIZER Acting Assistant Attorney General ZACHARY T. FARDON

No. 15-3756

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., MARK ELROD, and RICHARD PINGEL,

Petitioners,

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Respondents.

On Petition for Review of the Final Rule of the Federal Motor Carrier Safety Administration

BRIEF FOR RESPONDENTS

MOLLY J. MORAN Acting General Counsel PAUL M. GEIER Assistant General Counsel for Litigation and Enforcement PETER J. PLOCKI Deputy Assistant General Counsel for Litigation and Enforcement JOY K. PARK Senior Trial Attorney U.S. Department of Transportation CHARLES J. FROMM Acting Chief Counsel SUE LAWLESS Assistant Chief Counsel for Enforcement and LitigationWILLIAM R. VARGA Attorney-Advisor Federal Motor Carrier Safety Administration

BENJAMIN C. MIZER Acting Assistant Attorney General

ZACHARY T. FARDON United States Attorney

MATTHEW COLLETTE (202) 514-4212 JOSHUA WALDMAN (202) 514-0236

Attorneys, Appellate Staff Civil Division, Room 7232 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73

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TABLE OF CONTENTS

Page(s)

STATEMENT OF JURISDICTION ......................................................................................1

STATEMENT OF THE ISSUES ............................................................................................1

STATEMENT OF THE CASE ...............................................................................................2

I. STATUTORY AND REGULATORY AUTHORITY ..........................................2

A. General Statutory Authority. ............................................................................ 2

B. Hours-of-Service Regulations. ......................................................................... 4

C. Paper Logs for Records of Duty Status. ........................................................ 5

D. Previous Statutory Provisions Concerning Monitoring Devices. ............... 6

II. FMCSA’S PRIOR RULEMAKING ............................................................................7

A. FMCSA’s Prior Rulemaking. ............................................................................ 7

B. This Court Vacated the Prior Rule .................................................................. 8

III. INTERVENING STATUTORY AMENDMENTS...............................................8

IV. FMCSA’S CURRENT RULEMAKING ..................................................................10

A. New Rule Requires Electronic Logging Devices ........................................ 10

B. FMCSA’s Approach to Harassment, Coercion, and

Confidentiality of Personal Data. .................................................................. 13


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TABLE OF CONTENTS (cont'd)

Page(s)

STANDARD OF REVIEW ....................................................................................................18

SUMMARY OF ARGUMENT ..............................................................................................19

ARGUMENT .............................................................................................................................24

I. ELECTRONIC LOGGING DEVICES COMPLY WITH THE

STATUTORY MANDATE ........................................................................................24

II. FMCSA’S RULE IS NOT ARBITRARY OR CAPRICIOUS .............................29

III. THE FMCSA REASONABLY DEFINES “HARASSMENT” AND

ADOPTS PROVISIONS TO GUARD AGAINST DRIVER HARASSMENT .............................................................................................................33

IV. THE FMCSA’S ANALYSIS OF COSTS AND BENEFITS

SUPPORTS THE RULE .............................................................................................41

A. Congress Did Not Require the FMCSA to Undertake a Cost-

Benefit Analysis. ............................................................................................... 41

B. The Agency’s Cost-Benefit Analysis Supports the ELD Requirement. ..................................................................................................... 43

V. THE RULE PROTECTS CONFIDENTIALITY OF DATA ...........................48

VI. ELDs DO NOT VIOLATE THE FOURTH AMENDMENT .........................50

A. ELDs are Neither “Searches” Nor “Seizures” ............................................ 50

B. ELDs Are a Permissible Warrantless Search In a Pervasively

Regulated Industry ........................................................................................... 54


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TABLE OF CONTENTS (cont'd)

Page(s)

CONCLUSION .........................................................................................................................59

CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES

Page(s)

Cases Azam v. D.C. Taxicab Comm’n, 46 F. Supp.3d 38 (D.D.C. 2014) ................................................................................ 52 Chevron v. NRDC, 467 U.S. 537 (1984) .............................................................................................. 18, 33 El-Nahal v. Yassky, 993 F. Supp.2d 460 (S.D.N.Y. 2014) ........................................................................ 52 Michigan v. EPA, 135 S.Ct. 2699 (2015) .................................................................................................. 42 New York v. Burger, 482 U.S. 691 (1987) ................................................................................. 54, 55, 56, 58 NRDC v. EPA, 25 F.3d 1063 (D.C. Cir. 1994) ................................................................................... 50 Owner-Operator Indep. Drivers Ass’n v. FMCSA, 494 F.3d 188 (D.C. Cir. 2007) ................................................................................... 18 Owner-Operator Indep. Drivers Assoc. v. FMCSA, 656 F.3d 580 (7th Cir. 2011) ......................................................................... 4, 7, 8, 33 Public Citizen v. FMCSA, 374 F.3d 1209 (D.C. Cir. 2004) ............................................................................ 7, 29 United States v. Delgado, 545 F.3d 1195 (9th Cir. 2008) .................................................................................... 55 United States v. Dominguez-Prieto, 923 F.2d 464 (6th Cir.1991) ....................................................................................... 55


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TABLE OF AUTHORITIES (cont'd)

Page(s)

Cases United States v. Fort, 248 F.3d 475 (5th Cir. 2001) ...................................................................................... 55 United States v. Jones, 132 S.Ct. 945 (2012) .......................................................................... 23, 50, 51, 52, 53 United States v. Karo, 468 U.S. 705 (1984) ..................................................................................................... 51 United States v. Knotts, 460 U.S. 276 (1983) ..................................................................................................... 53 United States v. Mead Corp., 533 U.S. 218 (2001) ..................................................................................................... 33 United States v. Mendoza-Gonzalez, 363 F.3d 788 (8th Cir. 2004) ...................................................................................... 55 United States v. Moldonado, 356 F.3d 130 (1st Cir. 2004) ....................................................................................... 55 United States v. Raibley, 243 F.3d 1069 (7th Cir. 2001) .................................................................................... 18 United States v. Vasquez-Castillo, 258 F.3d 1207 (10th Cir. 2001) .................................................................................. 55 Velasquez-Garcia v. Holder, 760 F.3d 571 (7th Cir. 2014) ...................................................................................... 27


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Page(s)

Cases Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) .............................................................................................. 26, 42 Statutes

5 U.S.C. § 552a ......................................................................................................................... 17 5 U.S.C. § 706 ........................................................................................................................... 18 28 U.S.C. § 1291 ........................................................................................................................ 1 28 U.S.C. § 2342(3) .................................................................................................................. 18 49 U.S.C. § 113(f) ...................................................................................................................... 4 49 U.S.C. § 13102 ...................................................................................................................... 3 49 U.S.C. § 31105 .................................................................................................................... 40 49 U.S.C. § 31133(a)(8) ............................................................................................................. 3 49 U.S.C. § 31133(a)(10) ........................................................................................................... 3 49 U.S.C. § 31136(a) .................................................................................................................. 3 49 U.S.C. § 31136(a)(3) ........................................................................................................... 13 49 U.S.C. § 31136(a)(4) ........................................................................................................... 13 49 U.S.C. § 31136(a)(5) .................................................................................................... 10, 16 49 U.S.C. § 31136(c)(2)(A) ..................................................................................................... 41 49 U.S.C. § 31137 .................................................................................................................... 41


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Page(s)

Statutes 49 U.S.C. § 31137(a) ...................................................................................... 6, 8, 9, 13, 27, 36 49 U.S.C. § 31137(a)(1) ................................................................................. 19, 20, 29, 36, 42 49 U.S.C. § 31137(a)(2) ................................................................................. 14, 20, 33, 36, 41 49 U.S.C. § 31137(b)(1)(A) ..................................................................................................... 28 49 U.S.C. § 31137(b)(1)(B) ..................................................................................................... 28 49 U.S.C. § 31137(b)(2) .......................................................................................................... 28 49 U.S.C. § 31137(d) ............................................................................................................... 27 49 U.S.C. § 31137(d)(1) .......................................................................................................... 41 49 U.S.C. § 31137(d)(2) ................................................................................................... 27, 41 49 U.S.C. § 31137(e) ................................................................................................................ 42 49 U.S.C. § 31137(e)(1) ............................................................................................................. 9 49 U.S.C. § 31137(e)(2) ................................................................................................ 9, 17, 48 49 U.S.C. § 31137(e)(3) ................................................................................................ 9, 17, 48 49 U.S.C. § 31137(f)(1)(A)........................................................................9, 18, 19, 24, 25, 28 49 U.S.C. § 31144(a)(1) ............................................................................................................. 3 49 U.S.C. § 31144(b)(1) ............................................................................................................ 3 49 U.S.C. § 31150(a) ................................................................................................................ 40 49 U.S.C. § 31501 ...................................................................................................................... 3


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Page(s)

Statutes 49 U.S.C. § 31502(b) ................................................................................................................. 3 49 U.S.C. § 31502(d) ............................................................................................................... 41 E-Government Act of 2002, Pub. L. No. 107-347 § 208, 116 Stat. 2899 (2002) .................................................. 17 ICC Termination Act of 1995, Pub. L. No. 104-88 § 408, 109 Stat. 803 (1995) (codified at 49 U.S.C. § 31136 note (1995 Supp. I) .................................................. 4 Moving Ahead for Progress in the 21st Century Act (“MAP-21”), Pub. L. No. 112-141 § 32301(b), 126 Stat. 405 (2012) ..................................... 8, 10 Pub. L. No. 103-272 § 7(b), 108. Stat. 745 (1994) (repealing former 49 U.S.C. App. § 2505 note) ....................................................... 6 Truck and Bus Safety and Regulatory Reform Act of 1988, Pub. L. No. 100-690 § 9104, 102 Stat. 4181 (49 U.S.C. App. § 2505 note (1988)) .................................................................... 6, 29

Regulations

49 C.F.R. Part 7 ....................................................................................................................... 17 49 C.F.R. § 7.23(c)(6) .............................................................................................................. 17 49 C.F.R. § 7.23(c)(7)(iii) ........................................................................................................ 17 49 C.F.R. Part 9 ....................................................................................................................... 17 49 C.F.R. § 386.12(b) .............................................................................................................. 14


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Page(s)

Regulations 49 C.F.R. § 386.12(b)(3) .................................................................................................. 15, 39 49 C.F.R. § 386.12(c) ............................................................................................................... 16 49 C.F.R. Part 386 Appendix B(a)(7) ................................................................................... 14 49 C.F.R. § 390.5 ..................................................................................................................... 16 49 C.F.R. § 390.6 ..................................................................................................................... 16 49 C.F.R. § 390.36(a) ..................................................................................... 14, 20, 34, 37, 40 49 C.F.R. § 390.36(b) .............................................................................................................. 14 49 C.F.R. § 392.3 ........................................................................................................ 14, 34, 37 49 C.F.R. § 395.2 .............................................................................................................. 12, 37 49 C.F.R. § 395.2 (2010) .................................................................................................... 8, 28 49 C.F.R. § 395.3 ....................................................................................................................... 5 49 C.F.R. § 395.5 ....................................................................................................................... 5 49 C.F.R. § 395.8 ....................................................................................................................... 5 49 C.F.R. § 395.8(a)(1)(i) ........................................................................................................ 51 49 C.F.R. § 395.8(b) .................................................................................................................. 4 49 C.F.R. § 395.11 ................................................................................................................... 32 49 C.F.R. § 395.11(c) ............................................................................................................... 12


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Page(s)

Regulations 49 C.F.R. § 395.15(a) ............................................................................................................... 10 49 C.F.R. § 395.22(i)(2) .................................................................................................... 17, 49 49 C.F.R. § 395.24(b) ....................................................................................................... 11, 24 49 C.F.R. § 395.24(c) ............................................................................................................... 11 49 C.F.R. § 395.26 ............................................................................................................ 11, 24 49 C.F.R. § 395.26(b) ....................................................................................................... 11, 25 49 C.F.R. § 395.26(c) ............................................................................................................... 11 49 C.F.R. § 395.26(d) .............................................................................................................. 11 49 C.F.R. § 395.26(g)............................................................................................................... 11 49 C.F.R. § 395.26(h) .............................................................................................................. 11 49 C.F.R. § 395.26(i)................................................................................................................ 11 49 C.F.R. § 395.30(d) .............................................................................................................. 15 49 C.F.R. § 395.30(e) ............................................................................................................... 16 49 C.F.R. § 395.36 ................................................................................................................... 16 49 C.F.R. Part 395 ........................................................................................................ 4, 14, 34 49 C.F.R. Part 395, Subpt. B, App. A 1.4(a) ........................................................................ 25 49 C.F.R. Part 395, Subpt. B, App. A 4.1.3 .................................................................. 18, 49


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Page(s)

Regulations 49 C.F.R. Part 395, Subpt. B, App. A 4.3.1.6 ...................................................................... 11 49 C.F.R. Part 395, Subpt. B, App. A 4.3.2.8 ...................................................................... 15 49 C.F.R. Part 395, Subpt. B, App. A. 4.4.1.1 ..................................................................... 25 49 C.F.R. Part 395, Subpt. B, App. A 4.4.4.2 ...................................................................... 15 49 C.F.R. Part 395, Subpt. B, App. A 4.7.1(a) ............................................................. 15, 35 49 C.F.R. Part 395, Subpt. B, App. A 4.10.1.2(b). ....................................................... 18, 49 65 Fed. Reg. 25540 (May 2, 2000) ........................................................................................... 7 68 Fed. Reg. 22456 (Apr. 28, 2003) ...................................................................................... 48 75 Fed. Reg. 17208 (Apr. 5, 2010) ................................................................................... 8, 26 75 Fed. Reg. 28448 (May 14, 2012) ........................................................................................ 8 76 Fed. Reg. 20611 (April 13, 2011) .............................................................................. 13, 34 80 Fed. Reg. 78292 (Dec. 16, 2015) ...................................................................................... 10

Other Authorities

S. Rep. No. 112-238 (2012) .................................................................................................... 28


IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 15-3756

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., MARK ELROD, and RICHARD PINGEL,

Petitioners,

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION, et al., Respondents.

On Petition for Review of the Final Rule of the Federal Motor Carrier Safety Administration

BRIEF FOR RESPONDENTS

STATEMENT OF JURISDICTION

Petitioners’ jurisdictional statement is complete and correct.

STATEMENT OF THE ISSUES

In 2012 Congress enacted a statute directing the Secretary of Transportation to

promulgate a rule requiring most commercial motor vehicles (CMVs) in interstate

commerce to install electronic logging devices (ELDs) that automatically record

driving hours to improve compliance with existing rules governing drivers’ hours of

service. The Federal Motor Carrier Safety Administration (FMCSA) thereafter issued


2

a new rule requiring most motor carriers to install, and most drivers to use, ELDs.

The questions presented are:

1. Whether the agency’s rule complies with the statutory directive to require

ELDs “capable of recording a driver’s hours of service and duty status accurately and

automatically.”

2. Whether the agency’s rule is arbitrary or capricious.

3. Whether the agency reasonably considered and addressed whether ELDs

could be used to harass drivers.

4. Whether the agency’s cost-benefit analysis was required by statute and, if so,

whether the agency’s analysis supported its rule.

5. Whether the agency’s rule appropriately protects the confidentiality of

personal data.

6. Whether the agency’s rule violates the Fourth Amendment.

STATEMENT OF THE CASE

I. STATUTORY AND REGULATORY AUTHORITY

A. General Statutory Authority.

The Secretary of Transportation may promulgate regulations for “maximum

hours of service” for employees of a motor carrier or motor private carrier, as well as


3

the “standards of equipment” of a motor private carrier. 49 U.S.C. § 31502(b).1 The

Secretary is required to issue rules “on commercial motor vehicle safety,” including

regulations to ensure that

(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely * * *; (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators; and (5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of a regulation promulgated under this section, or chapter 51 or chapter 313 of this title.

49 U.S.C. § 31136(a). Likewise, the Secretary may “prescribe recordkeeping and

reporting requirements” and can “perform other acts the Secretary considers

appropriate.” 49 U.S.C. § 31133(a)(8), (10). The Secretary is also charged with

determining “whether an owner or operator is fit to operate safely commercial motor

vehicles,” including “[s]pecific initial and continuing requirements with which an

owner or operator must comply to demonstrate safety fitness,” 49 U.S.C.

§ 31144(a)(1), (b)(1). Responsibility for exercising this statutory authority governing

motor carriers has been assigned to the Federal Motor Carrier Safety Administration

1 “Motor carrier” and “motor private carrier” are defined in 49 U.S.C. §§ 13102,

31501.


4

(FMCSA), an agency within the Department of Transportation. See 49 U.S.C.

§ 113(f).

B. Hours-of-Service Regulations.

Consistent with the above authorities, FMCSA has issued what are known as

“hours-of-service” or “HOS” regulations. 49 C.F.R. Part 395. Hours-of-service

regulations are designed to minimize driver fatigue, and hence minimize fatigue-

related accidents. See generally ICC Termination Act of 1995, Pub. L. No. 104-88 §

408, 109 Stat. 803, 958 (1995) (codified at 49 U.S.C. § 31136 note (1995 Supp. I))

(requiring Department of Transportation to issue an advance notice of proposed

rulemaking relating to hours-of-service and for “enforcement countermeasures for

reducing fatigue-related incidents and increasing driver alertness”). In various ways,

the hours-of-service regulations limit when and for how long a driver may drive his or

her vehicle. As such, compliance with hours-of-service regulations is critical to

highway safety.

In general, the hours-of-service regulations divide a driver’s time into four

different categories or statuses: (1) on duty driving; (2) on duty not driving; (3) off

duty; and (4) sleeping in a sleeper berth. 49 C.F.R. § 395.8(b); see Owner-Operator Indep.

Drivers Assoc. v. FMCSA, 656 F.3d 580, 582 (7th Cir. 2011). In the property carrier

context, a driver must spend 10 consecutive hours off duty (or minimum time in a

sleeper berth), after which the driver is permitted to drive for no more than 11 hours,


5

and the driver must complete those 11 hours within a single 14-hour period. 49

C.F.R. § 395.3(a)(1), (2), (3). Once a driver has been on duty for 60 hours in any 7

consecutive days (if the motor carrier does not operate every day) or for 70 hours in

any 8 consecutive days (if the motor carrier does operate every day), then the driver

must go off duty for at least 34 consecutive hours before the driver is permitted to

drive again. Id. § 395.3(b), (c). Other types of carriers (e.g., passenger-carrying

vehicles) operate under slightly different hours of service requirements. Id. § 395.5.

C. Paper Logs for Records of Duty Status.

To help ensure compliance with the hours-of-service regulations, FMCSA (like

its predecessor agencies) has long required drivers to keep written paper logs that

document their various statuses (i.e., on-duty-driving, on-duty not driving, off-duty,

sleeper berth) in any 24 hour period. Id. § 395.8(a), (b), (g). These paper logs are

known as “Records of Duty Status,” or “RODS.” Motor carriers must maintain

RODS for six months from the date they receive them from drivers, and drivers must

retain copies of the records for the previous seven days. 49 C.F.R. § 395.8(k).

Because the paper RODs are entirely dependent on manual entry by the driver,

however, the RODS are susceptible to fraud or error. Drivers could, for example,

drive in excess of the 11 hour period, but not record those excess hours on the

RODS. See infra at 7.


6

D. Previous Statutory Provisions Concerning Monitoring Devices.

In light of the susceptibly for falsification and errors in a driver’s paper RODS,

Congress in 1988 directed the Secretary of Transportation to “initiate a rulemaking

proceeding on the need to adopt methods for improving safety with respect to

compliance by operators of commercial motor vehicles with hours of service

regulations * * * including the use of onboard monitoring devices on commercial

motor vehicles to record speed, driving time, and other information.” The statute also

stated that the Secretary must “ensure that such devices are not used for the purpose

of harassment of operators of such vehicles, but such devices may be used for the

purpose of monitoring the productivity of such operators.” See Truck and Bus Safety

and Regulatory Reform Act of 1988, Pub. L. No. 100-690 § 9104, 102 Stat. 4181, 4529

(49 U.S.C. App. § 2505 note (1988)).

In 1994, Congress repealed that section of the statute, see Pub. L. No. 103-272 §

7(b), 108. Stat. 745, 1397 (1994) (repealing former 49 U.S.C. App. § 2505 note), and

replaced it with a provision stating that “[i]f the Secretary of Transportation prescribes

a regulation about the use of monitoring devices on commercial vehicles to increase

compliance by operators of the vehicles with hours of service regulations, the

regulation shall ensure that the devices are not used to harass vehicles operators,” but

such devices “may be used to monitor productivity of the operators,” id. § 1(b), 108

Stat. at 1004 (codified at 49 U.S.C. § 31137(a) (1994)).


7

II. FMCSA’S PRIOR RULEMAKING

A. FMCSA’s Prior Rulemaking.

The FMCSA has long recognized that hours-of-service “regulation violations

are widespread,” and that electronic devices to record driver status “make it easier to

verify drivers’ compliance.” 65 Fed. Reg. 25540, 25558 (May 2, 2000). While those

devices “will not eliminate HOS violations, they would undoubtedly make violations

more difficult to conceal. A driver who drives over hours currently can falsify any

one of a number of entries on the RODS to make it appear that the driver is in

compliance. The [electronic logging device] would provide certain pieces of driver-

unalterable data, which would complicate the process of falsifying driving hours.”

Ibid.

As this Court previously noted, “th[e] paper-based system is not free from

problems of manipulation and falsification, and those problems have long been a

subject of concern.” Owner-Operator Indep. Drivers Assoc., 656 F.3d at 582. And as the

D.C. Circuit has observed, “given the large incentives truckers have to falsify their

logbooks * * * noncompliance with [hours-of-service regulations] is no doubt a

serious regulatory problem,” and “[i]t stands to reason that requiring [electronic

logging devices] will have substantial benefits by inducing compliance with HOS

regulations.” Public Citizen v. FMCSA, 374 F.3d 1209, 1221-22 (D.C. Cir. 2004).


8

In 2010, the FMCSA issued a rule requiring certain motor carriers with a

history of hours-of-service violations to install devices known at the time as

Electronic On-Board Recorders or “EOBRs.” See Electronic On-Board Recorders

for Hours-of-Service Compliance, 75 Fed. Reg. 17208 (Apr. 5, 2010). An EOBR was

defined as “an electronic device that is capable of recording a driver’s hours of service

and duty status accurately and automatically.” 49 C.F.R. § 395.2 (2010) (rescinded by

75 Fed. Reg. 28448, 28451 (May 14, 2012)).

B. This Court Vacated the Prior Rule

The Owner-Operator Independent Drivers Association (“OOIDA”) and three

commercial motor vehicle drivers filed a petition for review of the 2010 EOBR rule.

This Court set aside the rule on the ground that the FMCSA had not adequately

considered or explained why EOBRs would not be “used to harass vehicles

operators” as required by 49 U.S.C. § 31137(a). See Owner-Operator Indep. Drivers Assoc.,

656 F.3d at 587-89.

III. INTERVENING STATUTORY AMENDMENTS

In 2012, following this Court’s decision, Congress enacted the Moving Ahead

for Progress in the 21st Century Act (“MAP-21”), Pub. L. No. 112-141 § 32301(b),

126 Stat. 405 (2012). That Act states that the Secretary “shall prescribe regulations

requiring a commercial motor vehicle involved in interstate commerce and operated

by a driver subject to the hours of service and the record of duty status requirements


9

[to] be equipped with an electronic logging device to improve compliance by an

operator of a vehicle with hours of service regulations prescribed by the Secretary; and

ensuring that an electronic logging device is not used to harass a vehicle operator.” 49

U.S.C. § 31137(a). Congress defined an “electronic logging device,” in relevant part,

to mean a “device that is capable of recording a driver’s hours of service and duty

status accurately and automatically,” id. § 31137(f)(1)(A), using language taken

verbatim from the FMCSA’s prior EOBR rule, see supra at 8. While the prior version

of Section 31137 stated that electronic logging devices “may be used to monitor

productivity of the operators,” Congress omitted this language in 2012.

The statute permits the Secretary to “utilize information contained in an

electronic logging device * * * to enforce the Secretary’s motor carrier and related

regulations, including record-of-duty status regulations,” however, the Secretary “shall

institute appropriate measures to preserve the confidentiality of any personal data

contained in an electronic logging device and disclosed in the course of an action

taken by the Secretary or by law enforcement officials to enforce” those regulations.

49 U.S.C. § 31137(e)(1), (2). The Secretary must also “institute appropriate measures

to ensure any information collected by electronic logging devices is used by

enforcement personnel only for the purpose of determining compliance with hours of

service requirements.” Id. § 31137(e)(3).


10

In the same statute, Congress amended 49 U.S.C. § 31136(a) to direct the

Secretary to prescribe regulations to ensure that “an operator of a commercial motor

carrier vehicle is not coerced by a motor carrier, shipper, receiver, or transportation

intermediary to operate a commercial motor vehicle in violation of a regulation.” 49

U.S.C. § 31136(a)(5); see Pub. L. No. 112-141 § 32911, 126 Stat. at 818.

IV. FMCSA’S CURRENT RULEMAKING

A. New Rule Requires Electronic Logging Devices

On December 16, 2015, the FMCSA issued the new rule at issue in this matter.

See Electronic Logging Devices and Hours of Service Supporting Documents, 80 Fed.

Reg. 78292 (Dec. 16, 2015). The new rule applies to most motor carriers and drivers

who are currently required to prepare and retain paper RODs to comply with hours-

of-service regulations. Short Appendix (“SA”) 4.2 Under the rule, by December 18,

2017, all motor carriers subject to the rule must install, and all drivers subject to the

rule must use, electronic logging devices, or “ELDs.”3 ELDs are designed to “make it

2 The new regulation exempts from the ELD requirement (1) certain

driveaway-towaway operations; (2) commercial motor vehicles older than model year 2000; (3) drivers using the timecard exception who are not required to keep paper RODs; and (4) drivers who use paper RODS for not more than 8 days during any 30 day period. See SA3-4.

3 Motor carriers that have voluntarily installed automatic on-board recording

devices (AOBRs) – monitoring devices similar to ELDs – have an additional two years before they are required to install ELDs. See 49 C.F.R. § 395.15(a); SA65.


11

more difficult for individuals who currently do not routinely achieve high levels of

compliance with the HOS rules to produce inaccurate records.” SA16.

An ELD is a device that automatically records the date, time, location of the

vehicle, engine hours, vehicle miles, and the identity of the driver, vehicle and motor

carrier. 49 C.F.R. § 395.26(b). This information is recorded when a driver manually

enters a change in duty status, id. § 395.26(c), when the vehicle’s engine is powered up

or down, id. § 395.26(h), and at one hour intervals when the vehicle is in motion, id. §

395.26(d). This information (except location) is also recorded when a driver logs in or

out of the ELD. Id. § 395.26(g). An ELD does not continually track the location of

the vehicle, but only does so at certain times – when there is a change of duty status,

when the vehicle is powered up or down, and at one hour intervals while the vehicle is

moving. Moreover, the ELD does not record precise location, but only the vehicle’s

location within a 1-mile radius. SA6 (“FMCSA emphasizes that it does not require

real-time tracking of CMVs or the recording of precise location information in today’s

rule.”), SA32 (“FMCSA did not propose a requirement for real-time tracking of

CMVs or the recording of precise location information”); see 49 C.F.R. Part 395,

Subpart B, Appendix A 4.3.1.6; 49 C.F.R. § 395.26. When a driver is operating the

vehicle for authorized personal use, an ELD records location only within a 10-mile

radius. 49 C.F.R. § 395.26(i). An ELD requires a driver to manually input the

applicable category or status (e.g., on duty driving; on duty not driving; off duty;


12

sleeping in a sleeper berth) and allows the driver to annotate the ELD record to

explain an applicable exception. SA6; see 49 C.F.R. § 395.24(b), (c).

While ELDs “are highly effective at monitoring compliance with HOS rules

during driving periods, supporting documents are still needed to verify off-duty not

driving time.” SA5. Accordingly, the FMCSA’s rule requires motor carriers to retain

up to 8 supporting documents (as defined in 49 C.F.R. § 395.2) for every 24-hour

period a driver who uses an ELD is on duty. SA5. Supporting documents include

items such as bills of lading, dispatch records, expense receipts, electronic records of

communications through fleet management system, and payroll records. SA5; see 49

C.F.R. § 395.11(c).

In promulgating the rule, FMCSA concluded that the use of ELDs would

improve compliance with the hours of service regulations, thereby improving safety.

As the FMCSA explained, ELDs are the “most robust form of documentation” to

show that drivers comply with the hours-of-service regulations. SA3. While ELDs

do not entirely eliminate the possibility that records can be falsified, the automatic

recording of all times when a commercial motor vehicle is moving and the regular

recording of approximate location and other data mean that “the opportunities for

such fraud are drastically reduced” by ELDs, because the automatically recorded data

“cannot be easily manipulated.” SA16. ELDs are tamper-resistant and automatic,

preventing both inadvertent and deliberate hours-of-service violations and decreasing


13

the likelihood that driving time could be concealed or status information

inappropriately changed after it is entered. SA13.

The FMCSA estimated that the greater hours-of-service compliance achieved

through ELDs would result in 1844 crashes avoided and 26 lives saved annually. SA4;

see SA71-72 (discussing safety studies). Likewise, FMCSA concluded that increased

compliance with hours-of-service rules will have a positive impact on driver health

and physical condition, as well as safe operation. SA13; see 49 U.S.C. § 31136(a)(3)-(4)

(requiring Secretary to ensure physical condition of operators).

B. FMCSA’s Approach to Harassment, Coercion, and Confidentiality of Personal Data.

1. Harassment. Seeking to examine whether ELDs would be “used to harass

vehicle operators,” 49 U.S.C. § 31137(a), FMCSA specifically requested comments on

the issue of driver harassment. SA30 (citing 76 Fed. Reg. 20611 (April 13, 2011)).

FMCSA also conducted two public listening sessions addressing this issue, ibid., and

surveyed drivers and motor carriers concerning the potential for electronic logging

devices to result in harassment, SA8, 72-74. The final rule was “largely reflective of

this outreach.” SA31.

The agency noted that the word “harass” is not defined in the statute and

therefore “requires amplification.” SA31. The FMCSA adopted a definition of

“harassment” that means “an action by a motor carrier toward a driver employed by


14

the motor carrier (including an independent contractor while in the course of

operating a commercial motor vehicle on behalf of the motor carrier) involving the

use of information available to the motor carrier through an ELD * * * or through

other technology used in combination with and not separable from the ELD, that the

motor carrier knew, or should have known, would result in the driver violating § 392.3

[prohibiting an ill or fatigued driver from operating a commercial motor vehicle] or

part 395 [hours-of-service regulations].” 49 C.F.R. § 390.36(a); see SA31. The

FMCSA’s definition links harassment to the use of ELDs, as the statute itself does.

See 49 U.S.C. § 31137(a)(2) (Secretary must prescribe regulations “ensuring that an

electronic logging device is not used to harass a vehicle operator”) (emphasis added). The

agency’s definition also requires the harassment to be linked to violations of the

hours-of-service rules or a related regulatory violation. The FMCSA explained that it

“believes the effective enforcement of the harassment prohibition requires that

harassment be defined by objective criteria” such as regulatory violations, which will

also help ensure that the prohibition is enforced “in a consistent manner.” SA36.4

The new regulation included several provisions to guard against harassment of

drivers. First, the regulation included a specific prohibition on driver harassment,

4 The FMCSA’s definition of harassment did not seek to distinguish using an

ELD to harass from using an ELD to monitor productivity of drivers. As noted above, supra at 9; see also SA7n.6, Congress amended the relevant statute to remove the harassment/productivity distinction, and thus the FMCSA did not “address the distinction * * * Congress eliminated [from] the statutory provision.” SA36.


15

including civil penalties for harassment. SA5-6; see 49 C.F.R. § 390.36(b); 49 C.F.R.

Part 386 Appendix B(a)(7). Second, the agency adopted a procedure for drivers to file

written complaints of harassment by a motor carrier, SA4; see 49 C.F.R. § 386.12(b),

and explained that “[a]dverse action against a driver is not required because the driver

complied with the carrier’s instructions,” SA14; see also 49 C.F.R. § 386.12(b)(3)

(“[T]he Agency shall take every practical means within its statutory authority to ensure

that the driver is not subject to * * * disciplinary action, discrimination, or financial

loss as a result of the disclosure[of the driver’s identity].”).

Third, all ELDs must be equipped with a mute function or volume control that

automatically engages, or allows the driver to turn the sound off, when a driver enters

in sleeper berth status. SA4-5, 30, 33; see 49 C.F.R., Subpt. B, App. A 4.7.1(a). The

FMCSA included this requirement in response to specific complaints from drivers

“about being contacted during sleeper berth time.” SA33. Fourth, ELDs must allow

only limited edits to their records, and retain the original records generated by the

device, to protect driver’s RODs from manipulation. SA4-5; see 49 C.F.R. Part 395,

Subpt. B, App. A 4.3.2.8, 4.4.4.2. ELDs also “keep a record of interactions” between

driver and motor carrier, increasing the transparency of what occurs to protect drivers

from harassment. SA30. ELDs prevent electronically recorded driving time from

being shortened, SA5; edits to ELDs records by motor carriers require the driver’s

approval, 49 C.F.R. § 395.30(d); and all edits will appear with clear authorship, SA35,


16

65, protecting drivers from unilateral changes by the motor carrier. See SA13

(“[M]otor carriers will have limited opportunity to force drivers to violate the HOS

rules without leaving an electronic trail that would point to the original and revised

records.”). Such editing was “a factor that drivers identified as contributing to

harassment,” SA35. Drivers also have a right of access to their ELD records. SA 33-

34; 49 C.F.R. § 395.36.

2. Coercion. The FMCSA also addressed its responsibility to ensure that “an

operator of a commercial motor carrier vehicle is not coerced by a motor carrier,

shipper, receiver, or transportation intermediary to operate a commercial motor

vehicle in violation of a regulation.” 49 U.S.C. § 31136(a)(5). The agency explained

that “coercion is much broader” than harassment and addressed the “threat to

withhold work from or take adverse employment action against a driver in order to

induce the driver to violate a broader range of regulatory provisions or to take adverse

action to punish a driver for the driver’s refusal to operate a [commercial motor

vehicle in] violation of the specified regulations.” SA14; see 49 C.F.R. § 390.5. While

the prohibition on harassment is linked by statute to the use of electronic logging

devices, no such connection exists in the statutory prohibition on coercion. SA31.

The FMCSA’s rule prohibits motor carriers from coercing drivers to falsely certify the

driver’s data entries or RODs, see 49 C.F.R. § 395.30(e), and existing FMCSA

regulations had also prohibited motor carriers from coercing drivers to violate other


17

regulations, see SA31, 36; see 49 C.F.R. § 390.6. The coercion rule provides a

mechanism for drivers to file complaints against motor carriers who coerce them, 49

C.F.R. § 386.12(c). Drivers may also seek remedies for coercion through existing

procedures available through the Department of Labor. See SA31.

3. Confidentiality of Personal Data. The FMCSA also considered and

addressed “appropriate measures to preserve the confidentiality of any personal data

contained in an electronic logging device and disclosed in the course of an

[enforcement] action,” as well as “appropriate measures to ensure any information

collected by electronic logging devices” is used by enforcement personnel only for

regulatory compliance. 49 U.S.C. § 31137(e)(2), (3). As the agency noted, existing

Department of Transportation regulations “govern the release of private information,

including requests for purposes of civil litigation.” SA32 (citing 49 C.F.R. Parts 7, 9);

see 49 C.F.R. § 7.23(c)(6), (c)(7)(iii). Existing federal law also already addresses the

protection of an individual’s personally identifiable information maintained by federal

agencies. SA32. See Privacy Act, 5 U.S.C. § 552a; E-Government Act of 2002, Pub.

L. No. 107-347 § 208, 116 Stat. 2899, 2921 (2002).

Moreover, “[t]o protect data of a personal nature unrelated to business

operations, the Agency would redact such information included as part of the

administrative record before a document was made available in the public docket.”

SA32. The rule also requires motor carriers to “retain a driver’s ELD records so as to


18

protect a driver’s privacy in a manner consistent with sound business practices.” 49

C.F.R. § 395.22(i)(2). Furthermore, ELDs “must provide secure access to data

recorded and stored on the system by requiring user authentication during system

login,” and “[d]river accounts must only have access to data associated with that

driver, protecting the authenticity and confidentiality of the collected information.”

49 C.F.R. Part 395, Subpart B, App. A 4.1.3. Wireless data transfers of ELD data

must also use specified encryption methods. Id. App. A.4.10.1.2(b).

STANDARD OF REVIEW

The standard of review under the Administrative Procedure Act (APA), 5

U.S.C. § 706, applies to a petition for review under 28 U.S.C. § 2342(3) challenging a

rule promulgated by FMCSA. Owner-Operator Indep. Drivers Ass’n v. FMCSA, 494 F.3d

188, 198 (D.C. Cir. 2007). Under the APA, a court may set aside the rule if it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law,” or if it is “unsupported by substantial evidence,” 5 U.S.C. § 706(2)(A), (E).

Whether FMCSA’s regulation violates the Fourth Amendment is a question of law

subject to de novo review. See, e.g., United States v. Raibley, 243 F.3d 1069, 1073 (7th

Cir. 2001) (“[T]he ultimate determination of whether the authorities violated the

defendant’s Fourth Amendment rights is one that we review de novo.”). This Court

must uphold the FMCSA’s reasonable interpretation of ambiguous statutory language.

Chevron v. NRDC, 467 U.S. 837 (1984).


19

SUMMARY OF ARGUMENT

1. The FMCSA’s rule is consistent with Congress’ instruction that ELDs be

“capable of recording a driver’s hours of service and duty status accurately and

automatically.” 49 U.S.C. § 31137(f)(1)(A). ELDs do automatically record when a

driver is in on-duty driving status and for how many hours. That is all the statute

requires on its face. Petitioners erroneously argue that an ELD may not require any

manual inputs at all. Congress gave no indication that the agency must adopt the

radically new and highly intrusive technologies that would be required to record every

duty status automatically – such as bio-monitors to record automatically when a driver

is sleeping, and in-cab surveillance video cameras to record automatically whether a

driver is on-duty not driving or off-duty. Indeed, Congress adopted the statutory

phrase at issue – “capable of recording a driver’s hours of service and duty status

accurately and automatically,” 49 U.S.C. § 31137(f)(1)(A) – verbatim from the

agency’s prior rule on monitoring devices (later vacated by this Court), and that rule

too required manual inputs for certain driver statuses.

2. Petitioners mistakenly argue that because ELDs require some manual inputs,

they are no better at achieving compliance with hours-of-service regulations than

paper RODs that require all manual inputs. But Congress has already determined that

is incorrect, having directed the Secretary to require electronic logging devices “to

improve compliance by an operator of a vehicle with hours of service regulations,” 49


20

U.S.C. § 31137(a)(1). Common sense reinforces Congress’s conclusion: automatic,

tamper-proof recording of driving data, location, engine hours and other information

decreases the likelihood that driving time can be concealed or status information

changed after the fact. And that automatic recording, in turn, makes all other kinds of

unintentionally or deliberately false records difficult to conceal, especially in

conjunction with the rule’s requirement for separate paper supporting documents.

The agency’s real-world experience with monitoring devices confirmed as much,

demonstrating that monitoring devices dramatically improve compliance with hours-

of-service requirements and make regulatory violations more easily detectable in

roadside inspections.

3. The FMCSA, after conducting extensive public outreach on the issue,

reasonably defined the term “harassment” to mean an action by a motor carrier,

involving the use of information from an ELD that the motor carrier knows, or

should know, would result in a driver violating certain regulations. 49 C.F.R. §

390.36(a). The FMCSA’s requirement that harassment be linked to regulatory

violations is in harmony with the statutory requirement that ELDs both “improve

compliance * * * with hours of service regulations” but not be used to “harass” a

driver. 49 U.S.C. § 31137(a)(1), (2).

The agency required ELDs to have a volume control or mute function to

protect drivers during sleeper berth time, and enhanced security and editing controls


21

to protect drivers from motor carriers changing their driving records – both of which

were included in response to specific complaints by drivers. The FMCSA also

included an express prohibition on driver harassment with civil penalties for

violations, and a procedure for drivers to file written complaints of harassment by a

motor carrier. Again, these provisions were included in response to specific

comments from drivers.

In light of the extensive public outreach and discussion of harassment in the

rulemaking process, petitioners’ contention that the agency “ignored” this issue is

wrong. Moreover, the fact that the agency’s rule does not cover every conceivable act

that petitioners would consider as harassment does not make the rule arbitrary, nor

does it mean that the agency ignored Congress’s directive.

4. Petitioners’ challenge to the FMCSA’s cost-benefit analysis fares no better.

As an initial matter, the agency was not statutorily required to do a cost-benefit

analysis at all, so any objection to that analysis provides no basis to vacate the rule.

Congress explicitly required weighing the costs and benefits when the agency issues

other regulations, but for ELDs Congress did the weighing itself and simply ordered

the agency to promulgate a rule requiring ELDs.

In any event, the agency’s analysis amply supports its rule. The agency used

real-world data from motor carriers already employing similar monitoring devices to

determine that monitoring devices dramatically improved compliance. The agency’s


22

“Roadside Intervention Model,” based on data from 9.7 million roadside inspections

and traffic enforcements over four and half years, translated improved hours-of-

service compliance rates into a reduction in crash risk. The agency concluded that

ELDs would result in 1844 fewer crashes, 26 lives saved, and 562 injuries avoided

annually.

Petitioners’ multiple objections to the cost-benefit analysis are meritless. Their

claim that the agency did not study any monitoring devices already in use is flatly

contradicted by the record. Petitioners’ observation that the agency rejected a 2014

safety study analyzing crash data misses the point: the agency rationally rejected one

study because it did not yield statistically significant results, and the Agency instead

relied on the two-part analysis described above because the results of that analysis

were sound.

5. The FMCSA’s rule takes appropriate measures to preserve the

confidentiality of personal data contained in ELDs, relying in part on existing

regulations and federal law protecting the release of private information, as well as

committing the agency to redact private information from the administrative record in

an enforcement action, and further requiring motor carriers to protect private data

consistent with sound business practices and requiring ELDs have secure access to

data and use encryption methods while transferring data. The FMCSA thus

considered the issue and adopted “appropriate measures” to preserve confidentiality


23

as required by Congress. Petitioners’ brief contains only vague assertions that the

agency should have done more, without specifying exactly what additional procedures

they desire or explaining why the provisions adopted are not “appropriate measures”

as Congress required.

6. ELDs do not violate the Fourth Amendment. ELDs are neither a “search”

nor a “seizure” under the Fourth Amendment. ELDs are not surreptitiously attached

to a vehicle by the government, but are installed by a motor carrier openly and

pursuant to regulation with the advanced knowledge of the carrier and driver, who

effectively consent to their installation and use by voluntarily participating the

commercial motor carrier industry. Accordingly, ELDs are not “trespassorily

inserted” in vehicles like the GPS devices considered by the Supreme Court in United

States v. Jones. Nor do ELDs violate any reasonable expectation of privacy because

they do not precisely track vehicles in real-time, but only intermittently record location

within a 1-mile radius.

Even if there were a search or seizure, ELDs would be a permissible

warrantless inspection of a closely regulated industry. ELDs serve a substantial

government interest in increasing compliance with hours-of-service regulations and

thereby increasing safety; ELDs are necessary to further that regulatory purpose; and

ELDs are precisely defined in the scope of the information they record and advise

drivers and motor carriers that they will be installed pursuant to law.


24

ARGUMENT

I. ELECTRONIC LOGGING DEVICES COMPLY WITH THE

STATUTORY MANDATE

The electronic logging devices in the FMCSA’s new rule automatically record

the date, time, location of the vehicle, engine hours, vehicle miles, and the identities of

the driver, vehicle and motor carrier whenever a driver enters a change in duty status,

when the vehicle’s engine is powered up or down, at one hour intervals when the

vehicle is in motion, and (except for recording location) when a driver logs in or out

of the ELD. 49 C.F.R. § 395.26. However, a driver must manually enter certain

applicable categories or statuses (e.g., on duty not driving, off duty). 49 C.F.R. §

395.24(b). See SA78 (“The Agency acknowledges that technological specifications in

this rule do not include ELDs that automatically record a driver’s duty status, other

than on-duty driving time.”).

Petitioners argue (Br. 10-13) that an ELD requiring manual inputs by the driver

means that the FMCSA’s rule is contrary to statutory requirement that an electronic

logging device be “capable of recording a driver’s hours of service and duty status

accurately and automatically,” 49 U.S.C. § 31137(f)(1)(A). Petitioners contend that it

is not sufficient for an ELD to automatically record driving time and on-duty driving

status. Instead, petitioners argue, in effect, that Congress unambiguously required

that ELDs must automatically record and detect every driver status at all times – that


25

is, that ELDs must, every minute of every day, automatically detect whether a driver

is, for example, sleeping in a sleeper berth, or whether a driver is off duty or on duty

but not driving.

Petitioners’ argument fails because the ELDs required by the rule are “capable

of recording a driver’s hours of service and duty status accurately and automatically”

and that is all that is required by the statute. 49 U.S.C. § 31137(f)(1)(A). When the

vehicle is in motion, an ELD automatically and accurately records the hours spent

driving and that the driver’s status is on duty driving. See 49 C.F.R. § 395.26(b); 49

C.F.R. Part 395, Subpt. B, App. A 1.4(a) (“An ELD is integrally synchronized with the

engine of the CMV such that driving time can be automatically recorded for the driver

* * * .”); id. App. 4.4.1.1 (“Automatic Setting of Duty Status to Driving”). To be sure,

ELDs require manual entry of other driver statuses (e.g. sleeping in sleeper berth, on

duty not driving), but the statute does not say that “all” of a driver’s hours of service

or “all” duty status must be recorded automatically. The statute requires only that an

ELD be “capable of recording a driver’s hours of service and duty status * * *

automatically,” and an ELD does so by automatically recording when a driver is in

on-duty driving status and the number of hours of service the driver is driving. That

is all the statute requires on its face.

Nothing in the statute supports petitioners’ view that Congress intended a

breathtakingly intrusive scheme in which every move of every driver is captured


26

electronically (a result that, based upon the rest of their brief, petitioners clearly do

not want). As the FMCSA previously explained (in the prior rulemaking vacated by

this Court), in-cab video cameras could potentially monitor continuously a driver’s

every move in the vehicle (to distinguish between off duty and on duty not driving

statuses), and drivers could conceivably wear bio-monitors to record automatically

whether they were sleeping, but FMCSA rejected that idea because it would be “too

invasive of personal privacy.” 75 Fed. Reg. 17208, 17238 (Apr. 5, 2010). Congress

should not be presumed to have directed the FMCSA to mandate the use of such

intrusive technologies absent a clearer statutory command. And it is implausible that

Congress could have meant to impose such a massive, intrusive, and radical shift in

the motor carrier industry, including around-the-clock surveillance of drivers by

cameras and bio-monitors, and to have done so by using the single word

“automatically” in the statute. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468

(2001) (“Congress * * * does not * * * alter the fundamental details of a regulatory

scheme in vague terms or ancillary provisions – it does not, one might say, hide

elephants in mouseholes.”). As FMCSA explained, “[a]lthough technologies currently

exist that could track a driver’s every movement, including whether a driver is

sleeping, * * * FMCSA does not believe that Congress, in directing the Agency to

require use of ELDs, envisioned this level of monitoring and the inherent privacy

invasion that would occur.” SA78.


27

The FMCSA’s reasonable interpretation of this ambiguous statutory language is

entitled to deference. See, e.g., Velasquez-Garcia v. Holder, 760 F.3d 571, 576 (7th Cir.

2014). The statutory context and legislative history confirm as much. As the FMCSA

explained in its rulemaking and in response to petitioners’ argument, SA78, Congress

simultaneously required electronic logging devices and also required the FMCSA to

consider the role of supporting paper documentation to verify the accuracy of the

devices. 49 U.S.C. § 31137(d). If Congress had unambiguously required technology

that would automatically track a driver’s every action every second of the day, as

petitioners implicitly argue, Congress would have eliminated any supporting paper

documentation requirements, because such continual monitoring of drivers would

have made paper documentation entirely superfluous. In addition, in the same statute

Congress required the Secretary to “ensure that the devices are not used to harass

vehicle operators,” 49 U.S.C. § 31137(a), and it is difficult to reconcile this statutory

provision with petitioners’ contention that Congress intended to require drivers to use

devices like in-cab video cameras and bio-monitors that would record all of a driver’s

activities every second of the day. See also 49 U.S.C. § 31137(d)(2) (“The Secretary, in

prescribing the regulations [for electronic logging devices] shall consider how such

regulations may * * * protect the privacy of each individual whose personal data is

contained in an electronic logging device.”).


28

Moreover, as the FMCSA also explained (SA78) when Congress was

considering the most recent statutory provision requiring electronic logging devices, it

was aware of the agency’s prior rule (vacated by this Court), in which devices then

known as electronic on-board recorders, or “EOBRs,” were capable of automatically

recording driving time and driving status, but required manual input of other changes

in duty status. See S. Rep. No. 112-238 at 4 (2012). Indeed, Congress’s requirement

that electronic logging devices be “capable of recording a driver’s hours of service and

duty status accurately and automatically,” 49 U.S.C. § 31137(f)(1)(A), is copied

verbatim from the now-vacated FMCSA rule for electronic on-board recorders, see 49

C.F.R. § 395.2 (2010) (rescinded), suggesting that what Congress had in mind was

technology similar to that previously adopted by the agency – the same prior

technology that required manual input of some driver statuses. Thus, as the FMCSA

explained, “Congress was clearly aware that neither existing technology nor the

Agency’s 2010 [rule] contemplated devices that would ‘automatically’ monitor a

driver’s non-driving hours.” SA78. If Congress had intended to order the agency to

go drastically beyond the technology FMCSA had previously contemplated, Congress

would have clearly specified as much, and certainly would not have adopted language

taken directly from the former agency rule for devices that required certain manual

inputs by drivers. Indeed, Congress expressly required ELDs to have certain

technological capabilities, see 49 U.S.C. § 31137(b)(1)(A)(ii)-(iv), (b)(1)(B), (b)(2), but


29

nowhere indicated the kind of technological specifications that would be required to

automatically record every change in driver status as petitioners suggest.

II. FMCSA’S RULE IS NOT ARBITRARY OR CAPRICIOUS

Petitioners argue that the FMCSA’s electronic logging device rule is arbitrary

because ELDs are “no more reliable than paper [RODs log] books” and therefore will

do nothing to improve compliance with hours-of-service rules. Br. 15. That

argument is plainly wrong.

Congress has already determined that ELDs will increase compliance, directing

the Secretary to require electronic logging devices “to improve compliance by an

operator of a vehicle with hours of service regulations,” 49 U.S.C. § 31137(a)(1). As

far back as 1988, Congress recognized “the need to adopt methods for improving

safety with respect to compliance by operators of commercial motor vehicles with

hours of service regulations * * * including the use of onboard monitoring devices on

commercial motor vehicles to record speed, driving time, and other information.” See

Truck and Bus Safety and Regulatory Reform Act of 1988, Pub. L. No. 100-690 §

9104, 102 Stat. 4181, 4529 (49 U.S.C. App. § 2505 note (1988)); see supra at 6. The

D.C. Circuit likewise observed that “[i]t stands to reason that requiring [electronic

logging devices] will have substantial benefits by inducing compliance with HOS

regulations.” Public Citizen v. FMCSA, 374 F.3d 1209, 1221-22 (D.C. Cir. 2004). It is

self-evident that automatically and accurately recording all driving time as it occurs,


30

via an electronic tamper-resistant device, where any changes or edits from the original

record will be recorded (including the authorship of the edit), will improve accuracy as

compared to paper records that are entirely generated manually.

Petitioners’ argument boils down to the assertion that because some data must

be manually entered (e.g., sleeper berth and on-duty not driving status), an ELD’s

automatic recording of other data provides no improvement over paper records that

are entirely manually entered, because falsification can still occur via the manual entries.

FMCSA explained, however, that while ELDs cannot entirely eliminate the possibility

of falsified records, “the opportunities for such fraud are drastically reduced” by

ELDs that automatically record driving data, location, engine hours, and other data --

data that “cannot be easily manipulated” – whenever a commercial motor vehicle is

powered up or down, and at regular one-hour intervals when the vehicle is in motion.

SA16. Because ELDs record driving data automatically, and the devices are tamper-

resistant, they help prevent both inadvertent and intentional hours-of-service

violations by decreasing the likelihood that driving time could be concealed or status

information inappropriately changed after it is entered. SA13. ELDs are thus an

improved method of recording accurate driving data as compared to paper RODs

alone, and because ELDs record driving data more accurately, they improve hours-of-

service compliance by making evasion of the rules more difficult to hide.


31

This intuitive logic is confirmed by the agency’s real-world experiences. As the

FMCSA explained in its rulemaking, the agency studied the impact of electronic

monitoring devices that have been used prior to the current rulemaking, either

through voluntary use or pursuant to a settlement agreement with the agency. The

agency examined regulatory compliance rates for motor carriers who had at least one

year of data both before and after using such devices and determined that electronic

monitoring devices dramatically improved compliance with hours-of-service

requirements. See infra at 43-44. The agency further discussed “actual HOS violations

recently documented in FMCSA’s field reports,” where electronic recording devices

revealed hours-of-service violations even where paper RODs appeared compliant on

their face, as well as instances in which a discovered violation would have been more

easily detected had an ELD been in use. SA62. FMCSA “field inspection personnel

report that the bulk of their time spent on enforcement is in determining whether or

not the driver has accurately entered driving time on the paper log,” and “[t]he use of

ELDs would minimize this concern.” SA62.

In short, ELDs improve hours-of-service compliance as a matter of logic and

real-world experience. Petitioners’ citation of various hypothetical scenarios in which

falsification of ELDs might be possible (Pet. Br. 15-22) hardly demonstrates that the

devices do not improve compliance with hours-of-service requirements. To be sure,

the use of ELDs may not eliminate drivers’ abilities to falsify their hours. But those


32

devices need not achieve perfect compliance in order to be an improvement, and the

FMCSA’s decision to adopt a better system for recording data is not arbitrary and

capricious, simply because deliberately non-compliant truck drivers might in some

way evade the new devices.5

In addition, petitioners’ argument disregards the fact that the FMCSA’s rule

requires drivers to retain supporting paper documents to supplement the information

recorded by ELDs. See supra at 11-12; 49 C.F.R. § 395.11. The ELDs, together with

the supporting documents, make it even more difficult to conceal falsified records,

and thus do even more to improve compliance with hours-of-service requirements.

SA63.

Petitioners assert that the “vast majority of HOS violations occur because

drivers are pressured to log their non-driving time incorrectly to maximize their

driving time, not because they drive in excess of the maximum time permitted by the

rules.” Br. 14. But ELDs address this concern as well. As the FMCSA has explained,

“the data captured by ELDs * * * will result in a more accurate record of a driver’s

5 In its rulemaking, the FMCSA explained that petitioners’ hypothetical paper

RODS constructed to demonstrate why (in petitioners’ view) falsification of records are possible even with ELDs, were premised on the erroneous assumption that drivers using paper RODS accurately record their driving time and location, despite the fact that FMCSA’s enforcement experience demonstrated that is not always the case. See SA62. The agency also explained that the use of ELDs will eliminate the most time-consuming part of roadside inspections: “determining whether or not the driver has accurately entered driving time on the paper log.” Ibid.


33

duty status than paper RODs currently provide.” SA78. And by creating a more

accurate record of driving time, and in conjunction with required supporting

documents, ELDs will make evasion of the hours-of-service regulations more

difficult, whether that attempted evasion is through inaccurate reporting of non-

driving time, or through any other means.6

III. THE FMCSA REASONABLY DEFINES “HARASSMENT” AND

ADOPTS PROVISIONS TO GUARD AGAINST DRIVER

HARASSMENT

Congress required FMCSA to “ensur[e] that an electronic logging device is not

used to harass a vehicle operator,” 49 U.S.C. § 31137(a)(2). Because “the term ‘harass’

is not defined by statute,” SA31, and because the FMCSA has the authority to

promulgate rules with the force of law under this statutory provision, this Court must

uphold the agency’s interpretation of the term “harassment” so long as it is

reasonable. United States v. Mead Corp., 533 U.S. 218, 227-34 (2001); Chevron v. NRDC,

467 U.S. 537 (1984).

In accordance with this Court’s prior decision, see Owner-Operator Indep. Drivers

Ass’n, 656 F.3d at 588-89, the FMCSA sought input on what constitutes “harassment”

by requesting comments from drivers on this subject, see SA 30 (citing 76 Fed. Reg.

6 Petitioners likewise err in asserting that FMCSA’s own statistics demonstrate

that driving past the 11th hour accounted for only 0.9% of hours-of-service violations in 2009. Br. 14. As the FMCSA explained in its rulemaking, “11th hour violations were present in 16 percent of inspections in which there was an out of service order.” SA57 n.26.


34

20611), conducting two public listening sessions addressing this issue, ibid., and

surveying drivers and motor carriers on the topic, SA8, 72-74. The agency’s final rule

is “largely reflective of this outreach.” SA31. In fact, petitioners here made several

suggestions to the FMCSA, see SA31 n.24, and “[t]he Agency included some of

OOIDA’s specific proposals to address harassment in [its] rule,” SA 31.

The agency defined “harassment” in 49 C.F.R. § 390.36(a), to mean, in relevant

part, “an action by a motor carrier toward a driver * * * involving the use of

information available to the motor carrier through an ELD * * * or through other

technology used in combination with and not separable from the ELD, that the

motor carrier knew, or should have known, would result in the driver violating § 392.3

[prohibition on an ill or fatigued driver from operating a commercial motor vehicle]

or part 395 [hours-of-service regulations].” The agency thus linked the definition of

“harassment” to the use of an ELD, because the statute itself links harassment to the

use of electronic logging devices. The agency also linked the definition of harassment

to specific regulatory violations, explaining that “[l]inking the definition of harassment

to underlying violations of specified [regulations] will enhance the Agency’s ability,

through its Division Administrators located throughout the country, to respond to

driver harassment complaints * * * in a consistent manner and within a reasonable

period of time,” by providing “objective criteria” for determining whether harassment

has occurred. SA36.


35

The FMCSA adopted several technical provisions to guard against harassment.

In response to specific complaints from drivers “about being contacted during sleeper

berth time,” SA 33, the FMCSA required ELDs to have a mute function or volume

control if the ELD had audible output, and required that function to automatically

engage, or allow the drive to turn off the sound, when a driver enters in sleeper berth

status. 49 C.F.R. Part 395, Subpt. B, App. A 4.7.1(a). Similarly, the FMCSA required

“enhanced security controls and provisions protecting drivers from inappropriate

pressures to violate the [hours-of-service] rules” in order to “address many of the

concerns raised by drivers concerning ELDs.” SA33; see SA30 (“The complaints of

drivers [about harassment] focused mainly on pressures from motor carriers.”); SA35

(“[U]nilateral changes” of driving records by motor carriers was “a factor that drivers

identified as contributing to harassment”). Thus, ELDs must be tamper-resistant,

must allow only limited editing to their records while retaining a copy of the original

records, must record interactions between driver and motor carrier, must prevent

electronically recorded driving time from being shortened, and require driver approval

when a motor carrier edits the ELD records. See SA 4-5, 13, 30, 35, 65. These

technical requirements are designed to “help a driver retain control of the RODS, to

ensure against harassment.” SA6. The FMCSA also included several procedural

provisions to guard against driver harassment, such as an express prohibition on

driver harassment, including civil penalties for harassment, and a procedure for


36

drivers to file written complaints of harassment by a motor carrier. See SA4-6. These

provisions were also added in specific response to driver comments on harassment.

SA31n.24.

Petitioners argue that there is “no textual basis” for linking the definition of

harassment to violation of the hours-of-service regulations. Br. 24. Because the

statute neither defines “harassment” nor unambiguously provides the contours of

what constitutes “harassment,” it is reasonable for the FMCSA to interpret that word

in a way that would provide “objective criteria” allowing the agency to enforce the

prohibition in “a consistent manner.” SA36. Moreover, the statute itself supports the

agency’s interpretation. In Section 31137(a), Congress simultaneously required ELDs

in order “to improve compliance * * * with hours of service regulations” and also

prohibited ELDs from being used to “harass” a driver. 49 U.S.C. § 31137(a)(1), (2).

It is entirely sensible to interpret those provisions to act in harmony with each other.

Thus, interpreting “harass” to mean conduct that would cause violations of the hours-

of-service regulations – thus subverting Congress’ goal of “increased compliance”

through the use of ELDs – is a reasonable interpretation that is grounded in, and

harmonizes, the two statutory provisions.

Petitioners argue that the rule is arbitrary because it would not, in their view,

protect drivers if motor carriers pressure them to keep operating the vehicle even if

the driver pulls over due to inclement weather or difficult traffic conditions. Br 24.


37

But petitioners’ assumption that a situation such as the one they posit would never be

prohibited is wrong. The definition of “harassment” (49 C.F.R. § 390.36(a)) includes

motor carrier actions that result in a violation of 49 C.F.R. § 392.3, which prohibits a

motor carrier from requiring a driver to operate a commercial vehicle “while the

driver’s ability or alertness is so impaired, or so likely to become impaired, through

fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue

to operate the commercial motor vehicle,” 49 C.F.R. § 392.3 (emphasis added); cf. 49

C.F.R. § 395.2 (discussing “[a]dverse driving conditions” such as “weather conditions

* * * or unusual road and traffic conditions”). And even if it would not be harassment,

the motor carrier’s actions might constitute “coercion” that is separately barred by

regulation. See supra at 16.

More fundamentally, even assuming that the prohibition on harassment would

not cover such situations, there is nothing arbitrary or unreasonable about the rule or

the FMCSA’s definition of harassment merely because it would not cover “every

possible circumstance that a driver might consider as harassment.” SA36. Petitioners

might want a broader definition of harassment to cover more circumstances, but that

does not make the agency’s interpretation unreasonable or arbitrary.

Petitioners also assert that the agency’s interpretation of “harassment” as

limited to regulatory violations is inconsistent with the requirement that ELDs have a

mute function or volume control when the driver is in sleeper berth status, because


38

disrupting a driver in sleeper berth status does not violate any regulation. Br. 25. As

explained above, the FMCSA required the mute function or volume control in

response to specific complaints and comments from drivers when the agency sought

public input on this issue. The FMCSA did not act arbitrarily in adding this

requirement to address specific comments from drivers, even if the mute or volume

control features would not be required under the agency’s definition of harassment.

Adding extra features to an ELD, in response to specific requests by drivers, is in no

way arbitrary.

Petitioners contend that the agency “ignore[d] the statutory mandate” for

administrative convenience and budgetary reasons. Br. 26. That is incorrect. The

FMCSA certainly did not “ignore” the statutory mandate. As noted above, the agency

engaged in extensive public outreach specifically addressing this topic, see supra at 13,

discussed its interpretation of “harassment” and the provisions to guard against it in

its rulemaking, SA 31, 33, 35-36, 72-73, and specifically discussed and adopted some of

the suggestions petitioners themselves made, SA 31. The charge of “ignoring” this

issue is unfounded. In addressing this issue and adopting a definition of

“harassment,” the FMCSA did explain that linking its definition to specific regulatory

violations would provide for “effective enforcement” through “objective criteria”

applied in a “consistent manner.” SA36. And the agency did note that it would

“lack[] the resources necessary” to enforce a broader and unbounded definition of


39

“harassment” in which the agency would need to investigate “every possible

circumstance that a driver might consider as harassment.” SA36. But the agency’s

explanation for its definition of the term “harassment” demonstrates the fact that the

FMCSA did not ignore the issue, but addressed it head on. The fact that petitioners

disagree with that definition, and would have preferred a broader interpretation, does

not make the FMCSA’s definition unreasonable, nor does it mean the agency ignored

the matter or abdicated its responsibility.

Petitioners’ objection to the harassment complaint procedure is flawed. As an

initial matter, the agency’s obligation under the statute is to consider the question of

harassment, adopt a reasonable definition of that term, and explain how its rule will

guard against harassment. The FMCSA has done exactly that, including its adoption

and explanation of its driver complaint provision – a provision suggested by

petitioners themselves. SA31 n.24.

Petitioners’ specific objections to the complaint procedure are meritless.

Petitioners object that a driver must confess his or her own regulatory violation as

part of the complaint. Br. 29. But as the rule explains, “[b]ecause prosecution of

harassment * * * will require disclosure of the driver’s identity, the Agency shall take

every practical means within its authority to ensure that the driver is not subject to

coercion, harassment, intimidation, disciplinary action, discrimination, or financial loss

as a result of that disclosure.” 49 C.F.R. § 386.12(b)(3). See also SA14 (“[a]dverse


40

action against a driver is not required because the driver complied with the carrier’s

instructions”). The FMCSA further noted that existing law (49 U.S.C. § 31105,

administered by the Department of Labor) protects drivers who complain about

harassment from retaliation. SA31

Petitioners incorrectly contend (Br. 29) that a driver’s harassment complaint,

including any admission to a regulatory violation, would be included on the driver’s

pre-employment screening reports to potential employers. Such screening reports

include only inspection violations and crash reports, 49 U.S.C. § 31150(a), and a

violation reported by the driver in a harassment complaint would not be included on

that report. Similarly, petitioners incorrectly contend (Br. 30) that a driver would need

to prove that a motor carrier had “actual knowledge” that its actions would lead to a

regulatory violation. In fact, a motor carrier engages in harassment if it “should have

known” its actions would result in a driver violating the applicable regulations, even if

the motor carrier lacked actual knowledge. 49 C.F.R. § 390.36(a). Proving “actual

knowledge” is not required. Petitioners also claim that a driver is given “no reward or

benefit from a successful harassment claim,” Br. 30, but as the agency explained, the

FMCSA has no authority to order a motor carrier to compensate a driver based on a

finding of harassment, SA31.


41

IV. THE FMCSA’S ANALYSIS OF COSTS AND BENEFITS SUPPORTS

THE RULE

Petitioners argue that the FMCSA’s cost-benefits analysis of ELDs was so

flawed that it cannot support the rule. That argument is erroneous first because the

agency was not required to analyze the cost and benefits at all; and second, because

the agency’s cost-benefit analysis supports its rule.

A. Congress Did Not Require the FMCSA to Undertake a Cost-Benefit Analysis.

Contrary to petitioners’ claim (Br. 39-41), Congress did not require the FMCSA

to conduct a cost-benefit analysis of ELDs at all, and hence all of petitioners’

objections to the cost-benefit analysis are immaterial.

In 49 U.S.C. § 31137, Congress directed the agency to issue an ELD regulation.

Nowhere in that statute did Congress instruct the FMCSA to consider costs and

benefits in doing so. While Congress required the agency to consider costs and

benefits when issuing other regulations pursuant to its authority under other statutory

provisions, see 49 U.S.C. § 31136(c)(2)(A), 31502(d), Congress did not include any

such requirement when it came to ELDs. In fact, Congress instructed the agency to

consider many things about ELDs – whether they would be used to harass drivers, §

31137(a)(2); whether paper supporting document requirements could be reduced, §

31137(d)(1); whether additional measures to protect privacy are warranted, §

31137(d)(2); and appropriate measures to preserve the confidentiality of personal data,


42

§ 31137(e) – but noticeably absent from that list is any command for the agency to

consider the costs and benefits of ELDs.

Indeed, Congress gave the agency no discretion to decide whether or not to

issue a rule requiring ELDs, but simply instructed that the Secretary “shall” prescribe

regulations “requiring a commercial motor vehicle [to] be equipped with an electronic

logging device.” 49 U.S.C. § 31137(a)(1). This direct command to the agency – that

the Secretary “shall” require the use of ELDs – stands in stark contrast to Congress’s

prior provisions, which gave the Secretary discretion whether to adopt a rule.

Congress told the agency only to initiate proceedings to determine if a rule were

needed, and instructed the Secretary what to consider if the Secretary adopted such a

rule. Under the present statute, however, Congress gave no such discretion to the

agency. Congress effectively weighed the costs and benefits itself, determined that

ELDs would “improve compliance by an operator of a vehicle with hours of service

regulations,” ibid., and ordered the FMCSA to issue an ELD rule. Congress left the

agency no room to reject an ELD requirement, and the FMCSA could not refuse to

issue such a rule on the grounds that it found the benefits to be outweighed by the

costs. Accordingly, the FMCSA was under no statutory obligation to conduct a cost-

benefit analysis at all. See Whitman, 531 U.S. at 464-71; Michigan v. EPA, 135 S.Ct.

2699, 2709 (2015) (where statute “expressly directs” agency “to regulate on a factor


43

that on its face does not include cost, the Act normally should not be read as

implicitly allowing the Agency to consider cost anyway”).

B. The Agency’s Cost-Benefit Analysis Supports the ELD Requirement.

Even if it was determined that a cost benefit analysis was statutorily required,

the agency rulemaking process satisfied this mandate. To analyze the benefits of

mandatory ELD use, the FMCSA engaged in a two-part analysis. In the first part of

the analysis, the agency examined the degree to which electronic monitoring devices

would reduce hours-of-service violations. Because the ELD rule did not yet exist, the

agency could not practicably examine the effect of ELDs themselves. However, the

agency examined five carriers who used electronic monitoring devices similar to

ELDs, known as Automatic On-Board Recording Devices, or AOBRDs. The agency

examined only those carriers where the entire fleet had at least one year of data before

and after installation. See Regulatory Impact Assessment (“RIA”) § 2.5.3 at 16 (2 App.

390); id. App. A, § A.1 (2 App. 437); see also id. § 4.2.1 (2 App. 413) (“The number and

types of HOS violations eliminated by ELD use was based on actual violation data

from five motor carriers that installed advanced AOBRDs.”). In total, the agency

examined data on 8,545 roadside inspections conducted on 5,792 commercial motor

vehicles. Ibid. (2 App. 413). The FMCSA’s analysis found that regulatory compliance

“improved dramatically in the post-ELD installation period,” id. App. A, § A.2 (2


44

App. 438), and that “HOS violations per inspection fell from roughly 0.5 violations

per inspection to 0.05 violations for the ‘voluntary’ carriers and from roughly 0.4 to

0.04 violations per inspection for the ‘mandated’ carriers,” ibid. (2 App. 439).

In the second part of the analysis – what the agency referred to as its “Roadside

Intervention Model” – the FMCSA estimated the reduction of crashes resulting from

reducing the number of regulatory violations, which is based on “data from roadside

inspections and traffic enforcements” from January 2005 to September 2009, covering

9.7 million interventions. Id. § 4.2.1 (2 App. 413-414). As part of this analysis, the

FMCSA also calculated the “duration of the effect,” meaning how long a driver

continues to comply with regulations after being caught in a violation. Ibid. (2 App.

414).

By multiplying the results of step one (reduction in violations) by the results of

step two (reduction in crashes resulting from reduced violations), the FMCSA was

able to estimate “the number of crashes avoided through [] ELD use.” Ibid. (2 App.

413). The agency then “made some adjustments to scale back these results to reflect

more conservative figures.” Ibid. (2 App. 413); see also § 4.2.2 (2 App. 418-419). Based

on these calculations, the FMCSA estimated that the greater hours-of-service

compliance achieved through ELDs would result in 1844 fewer crashes, 26 lives

saved, and 562 injuries avoided annually. Id., Executive Summary at v-vi (2 App. 361-

362); SA4; see SA71-72 (discussing safety studies).


45

Petitioners’ multiple attacks on the FMCSA’s cost-benefit analysis are without

merit. Their contention that the agency’s analysis is “wholly divorced from the

performance of any electronic device,” Br. 32; see Br. 8, 42 is demonstrably false. As

noted above, the agency’s analysis of the reduction in violations from ELDs was

based on data from five carriers who actually used electronic monitoring devices and a

comparison of the violation rate the year before and year after those carriers installed

the devices. Petitioners ultimately concede as much, see Br. 34 (“The safety benefit

analysis * * * derives its conclusions from * * * five motor carriers * * * all of which

had installed AOBRDs * * * .”), but contend that the sample size of carriers was too

small. To be sure, the data source was necessarily limited because ELDs were not yet

mandatory, and data was available from only a limited number of carriers that used

similar monitoring devices fleetwide and for a sufficient period of time to compare

before and after results. See RIA § 2.5.3 at 16 (2 App. 390); id. App. A, § A.1 (2 App.

437). Nonetheless, the FMCSA acted reasonably in studying the devices then in

existence, and derived its conclusions from data gathered in 8,545 roadside

inspections conducted on 5,792 commercial motor vehicles. Ibid. (2 App. 413).

Finally, petitioners revert back to the same erroneous claim that “FMCSA

acknowledged that it had not yet studied the effectiveness of the electronic devices.”

Br. 38. But the passage petitioners cite does not support their claim. Rather, the cited

passage relates to a future retrospective evaluation in response to a commenter’s


46

suggestion; in contrast, the RIA provides a prospective evaluation of the rule. See SA16-

17. The record is clear that the FMCSA’s cost-benefit analysis relied on data from

actual use of similar devices in the past by carriers who adopted them fleetwide

voluntarily or under a settlement agreement with the agency.

Petitioners also assert that the agency “was not able to provide any concrete

assessment of the potential benefits of ELDs in its cost/benefit analysis,” Br. 22, but

that too is contrary to the record. As noted above, the agency explicitly calculated the

safety benefits of mandatory ELD use in terms of crashes avoided, lives saved, and

injuries avoided annually.

Petitioners observe (Br. 32-33) that the FMCSA acknowledged that one safety

study it conducted could not yield statistically significant results because it examined

only crash data, and crashes are too rare to provide reliable data. See RIA § 2.5.4 (2

App. 390). This is correct, but misses the point. As the FMCSA explained, it is

precisely because “[t]he Agency was not able to construct statistically significant

measures of safety improvements * * * by directly examining the crash data” that it

conducted the two-part analysis described above. Ibid.

Petitioners also contend that the agency’s Roadside Intervention Model

irrationally attributes the same crash risk to every regulatory violation, no matter how

minor or major the violation may be. Br. 35. Again, the assertion is incorrect and

contradicted by the record. The FMCSA’s analysis very clearly attributes different


47

crash risk reductions to different types of violations. See RIA, App. E, § E.5.5.1 Table

90 (2 App. 516-517). Likewise, petitioners assert that the FMCSA simply assumed the

duration of a reduction in crash risk – that is, the amount of time a driver would

continue to comply with the regulations after being caught in a violation – and that

the agency never explained its methodology. Br. 35-36. Once again, the assertion is

incorrect. The agency explained its methodology for calculating duration of crash risk

reduction and the studies upon which its calculations were based. See RIA, App. E, §

E.5.5.2 (2 App. 518-519); id. § E.5.5, Table 89 (2 App. 514). And contrary to

petitioners’ claim (Br. 34), reductions in crash risk from improved regulatory

compliance were not based on guesses or assumptions, but were based on a 1988

empirical study that industry experts converted to crash risk probabilities for the

agency’s Roadside Intervention Model, which was then supplemented by further

FMCSA research. Id. § E.5.5 (2 App. 513-514); see also id. § E.2.2 (2 App. 492).

Petitioners contend that the agency relied on “stale” data in a 2003 survey to

calculate the “benefits of the ‘expected increase’ in [hours-of-service] compliance with

the adoption of ELDs.” Br. 37. That is incorrect. The 2003 survey to which

petitioners refer was not used by the agency in this rulemaking to calculate the safety

benefits of ELDs in terms of hours-of-service compliance and reduction in crash risk.

Rather, the survey data was used to calculate the additional compliance costs to the

motor carrier industry resulting from mandatory ELD use. See RIA, App. D, § D.3 &


48

Table 65 (2 App. 479-480). Petitioners also mistakenly contend that the 2003 survey

has not been updated. Br. 36-37. In fact, “the Agency made three adjustments to

these compliance cost estimates” in the 2003 survey, as described in the Regulatory

Impact Analysis. See RIA § 3.4.1 (2 App. 407); see also id. § 3.4.1 Table 23 (2 App.

408); § 3.4.2 Table 24 (2 App. 409).7

V. THE RULE PROTECTS CONFIDENTIALITY OF DATA

Congress required the FMCSA to consider “appropriate measures to preserve

the confidentiality of any personal data contained in an electronic logging device and

disclosed in the course of an [enforcement] action,” as well as “appropriate measures

to ensure any information collected by electronic logging devices” is used by

enforcement personnel only for regulatory compliance. 49 U.S.C. § 31137(e)(2), (3).

That is precisely what the agency did. As noted above, supra at 17, the FMCSA

observed that existing Department of Transportation regulations and existing federal

law already govern and protect the release of private information maintained by the

agency. The FMCSA further stated that it would redact such private information

7 Petitioners’ suggestion (Br. 36-37) that the FMCSA previously conceded it

lacked the data to justify ELD use distorts the record. Twelve years ago, in 2003, the agency believed it lacked the data to justify monitoring devices. See 68 Fed. Reg. 22456, 22489 (Apr. 28, 2003). But the reasons the agency gave then – for example, that the costs of monitoring devices was unknown, that performance standards were unclear, and concerns about driver privacy – have all been addressed and resolved over time and in the current rulemaking. Moreover, as noted above, the FMCSA has relied on updated compliance costs, and the agency conducted an entirely new safety benefit analysis for the current rulemaking.


49

from any document included in the public administrative record in any enforcement

action. SA32. The rule requires motor carriers to “retain a driver’s ELD records so

as to protect a driver’s privacy in a manner consistent with sound business practices,”

49 C.F.R. § 395.22(i)(2), requires ELDs to have secure access to data to protect

confidentiality of information, and requires that the transfer of data use encryption

methods, 49 C.F.R. Part 395, Subpart B, App. A 4.1.3, A.4.10.1.2(b). The FMCSA

thus considered and addressed the factors Congress required, and adopted (or relied

on existing) “appropriate measures” to preserve confidentiality of personal data.

Petitioners argue that the FMCSA “has completely ignored the statutory

mandate.” Br. 46. That is plainly incorrect. As noted above, the agency in its

rulemaking expressly acknowledged the statutory requirement, and explained the

appropriate measures either already in place, or newly adopted by the agency, to

preserve the confidentiality of personal data and ensure that data is used only for law

enforcement purposes. Petitioners may have wanted additional measures, but that

does not demonstrate that the agency “ignored” the issue, and does not show that the

measures the FMCSA relied upon were anything other than “appropriate.” Nor does

petitioners’ dissatisfaction with those measures provide a basis to set aside the

agency’s rule.

Petitioners contend that the FMCSA should have imposed additional measures

on state law enforcement officials through additional conditions on the receipt of


50

federal funding. Br. 46-47. Despite their suggestion, Br. 45, petitioners never made

any such comment or objection during the rulemaking proceeding, and therefore may

not object on that basis now. See, e.g., NRDC v. EPA, 25 F.3d 1063, 1073 (D.C. Cir.

1994) (“[P]etitioners failed to raise this question * * * before the agency during the

notice and comment period” and “therefore waived their opportunity to press this

argument in court.”). Moreover, petitioners do nothing more than claim that the

agency “should have added” certain conditions on federal funding, without specifying

what those conditions would be, or why the measures the FMCSA did rely upon were

insufficient to meet Congress’s command. Such vague and unspecified criticism,

especially those objections raised for the first time in petitioners’ brief, cannot be a

basis for invalidating the agency’s carefully considered rule.

VI. ELDS DO NOT VIOLATE THE FOURTH AMENDMENT

The FMCSA’s rule does not violate the Fourth Amendment. First, the ELDs

are neither “searches” nor “seizures.” Second, even if a search or seizure occurred,

ELDs would be permissible as an inspection of a “closely regulated industry.”

A. ELDs are Neither “Searches” Nor “Seizures”

Relying on United States v. Jones, 132 S.Ct. 945 (2012), petitioners argue that the

warrantless installation or use of an ELD is an unconstitutional “search” under the

Fourth Amendment. Br. 48-49. Jones held that the warrantless installation of a GPS

tracking device in the defendant’s vehicle was a “search” under the Fourth


51

Amendment because it was a “physical intrusion” by the government onto private

property akin to a “common-law trespass.” 132 S.Ct. at 949. Jones, however,

expressly distinguished United States v. Karo, 468 U.S. 705, 713 (1984), which held that

“no Fourth Amendment interest * * * was infringed by the installation” of an

electronic tracking device. The difference between Karo and Jones, the Court

explained, is that the installation of the tracking device in Karo was done “with the

consent of the original owner,” Jones, 132 S.Ct. at 952; see Karo, 468 U.S. at 707,

whereas the GPS tracking device in Jones was “trespassorily inserted” into the vehicle

by the government, Jones, 132 S.Ct. at 952.

Unlike the GPS tracking devices in Jones, ELDs are not “trespassorily inserted”

into a commercial motor vehicle. In Jones, government agents themselves

surreptitiously attached the GPS device to the undercarriage of the vehicle while it

was parked in a parking lot. Jones, 132 S.Ct. at 948. An electronic logging device, by

contrast, is not surreptitiously attached to a vehicle, but is installed pursuant to

regulation with the advanced knowledge of the carrier and driver, who effectively

consent to its installation and use as a condition of their participation in the

commercial motor carrier industry. Indeed, no government agent actually installs an

ELD or “trespasses” into the vehicle to attach the ELD. Rather, the regulation

requires that the motor carrier install the device. See 49 C.F.R. § 395.8(a)(1)(i) (“a

motor carrier operating commercial motor vehicles must install * * * an ELD”).


52

Accordingly, the FMCSA’s rule does not require anything amounting to a “common-

law trespass.” As two post-Jones district courts have concluded, a government-

mandated installation of GPS tracking devices in taxi cabs does not constitute a

“search” under the Fourth Amendment, and would not amount to a common-law

trespass, because the taxi drivers are aware of their installation and installed pursuant

to industry regulations in a vehicle participating in a market of common carriers. See

Azam v. D.C. Taxicab Comm’n, 46 F. Supp.3d 38, 50-51 (D.D.C. 2014); El-Nahal v.

Yassky, 993 F. Supp.2d 460, 467 (S.D.N.Y. 2014).

The four concurring Justices in Jones opined that the installation of GPS devices

in that case violated the Fourth Amendment by intruding on the defendant’s

reasonable expectation of privacy through “precise tracking” in “real-time” with

“constant monitoring of the location of a vehicle for four weeks,” that allows the

government to “secretly monitor and catalogue every single movement of an

individual’s car,” and “track[] every movement” while a person is driving. Jones, 132

S.Ct. at 963-64 (Alito, J., concurring). ELDs, however, are unlike the GPS devices in

Jones. As noted above, ELDs do not constantly monitor a vehicle in real-time, but

record data only at designated times at a one hour intervals while driving. In addition,

ELDs do not track the vehicle’s precise location, but only record placement in a 1-

mile radius (or 10-mile radius when a driver is operating the vehicle for authorized

personal use). Thus, ELDs do not raise the same privacy concerns – the constant,


53

prolonged, precise and real-time collection of data – that animated the Jones

concurrence.8

Because ELDs are not “common-law trespasses” constituting a “search” under

Jones, nor do they violate reasonable expectations of privacy under the Jones

concurrence, petitioners’ reliance on Jones is misplaced. Instead, the use of ELDs

under the rule is governed by United States v. Knotts, 460 U.S. 276, 278 (1983), which

held that the government’s warrantless use of an electronic monitoring device to track

the vehicle’s location on public roads did not constitute a “search” or “seizure” that

was “within the contemplation of the Fourth Amendment.” Id. at 285.

For similar reasons, the FMCSA’s rule is not a “seizure” under the Fourth

Amendment. See Petr. Br. 49-50. As noted above, the government does not “seize”

any vehicles under the rule, nor does the government intrude upon, touch, or enter

into the vehicles to install the ELD, surreptitiously or otherwise. Instead, the rule

requires a motor carrier to install the device as a condition of participation in the

commercial motor carrier industry. And the ELDs simply collect information, which

does not constitute a “seizure” any more than the collection of paper RODs log

books constitutes a “seizure” of property under the Fourth Amendment.

8 Petitioners’ passingly suggest greater privacy interests in their vehicles because

they sleep in them, thus making their trucks a “home.” Br. 50. That argument was rejected in California v. Carney, 471 U.S. 386, 393 (1985).


54

B. ELDs Are a Permissible Warrantless Search In a Pervasively Regulated Industry

Even if the installation of ELDs is deemed to be a search, it does not violate

the Fourth Amendment. Reasonable expectations of privacy “in commercial

premises” are “less than” privacy expectations “in an individual’s home,” and are

particularly lower “in commercial property employed in ‘closely regulated’ industries”

that have “a long tradition of close government supervision.” New York v. Burger, 482

U.S. 691, 700 (1987). Because of that “reduced expectation of privacy,” the Fourth

Amendment’s warrant requirement has “lessened application in this context,” and a

“warrantless inspection of commercial premises may well be reasonable within the

meaning of the Fourth Amendment.” Id. at 702. However, the government must

meet three criteria: (1) “there must be a substantial government interest that informs

the regulatory scheme pursuant to which the inspection is made”; (2) “the warrantless

inspections must be necessary to further the regulatory scheme”; and (3) the

“inspection program, in terms of the certainty and regularity of its application, must

provide a constitutionally adequate substitute for a warrant,” meaning that the

regulatory program “must advise the owner of the commercial premises that the

search is being made pursuant to law and has a properly defined scope, and it must

limit the discretion of the inspecting officers.” Id. at 702-03.


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The FMCSA’s rule easily meets the three Burger criteria. Petitioners do not

dispute that commercial trucking is a closely regulated business, Br. 52, nor could they

given the uniform precedent holding as much.9 Nor do petitioners dispute the first

Burger criteria, namely, that the government has a substantial interest informing the

regulatory scheme pursuant to which the ELDs are required. The government has an

obvious and substantial interest in preventing fatigue and fatigue-related accidents

involving drivers, and an equally obvious and substantial interest in the hours-of-

service regulations and ELD requirements designed to improve compliance with

those regulations.

Petitioners attempt (Br. 56-57) to dispute the second Burger criteria – that ELDs

are necessary to further the regulatory scheme – but their argument simply repeats

their earlier and erroneous contention that ELDs do not do anything to improve

compliance with hours-of-service regulations. That argument fails for the reasons

explained above. See supra at 29-33. Likewise, petitioners do not genuinely dispute the

third Burger criteria – that ELDs must “provide a constitutionally adequate substitute

for a warrant,” by “advis[ing] the owner of the commercial premises that the search is

being made pursuant to law and has a properly defined scope, and it must limit the

9 United States v. Delgado, 545 F.3d 1195, 1201-02 (9th Cir. 2008); United States v.

Mendoza-Gonzalez, 363 F.3d 788, 794 (8th Cir. 2004); United States v. Moldonado, 356 F.3d 130, 135 (1st Cir. 2004); United States v. Vasquez-Castillo, 258 F.3d 1207, 1210 (10th Cir. 2001); United States v. Fort, 248 F.3d 475, 480 (5th Cir. 2001); United States v. Dominguez-Prieto, 923 F.2d 464, 468 (6th Cir.1991).


56

discretion of the inspecting officers.” Burger, 482 U.S. at 702-03. Petitioners do not

dispute that motor carriers are advised that they must install ELDs pursuant to law,

nor do they dispute that the data collected by ELDs is properly defined in scope and

limits the discretion of officers because the regulations meticulously spell out exactly

what data is recorded by an ELD and when that data is recorded. Rather, petitioners’

argument (Br. 57-58) simply repeats their earlier and erroneous argument that the

regulations do not do enough (in their view) to preserve the confidentiality of

personal data. But that argument does not actually address Burger’s third requirement

that the scope of inspection be properly defined and limit the discretion of inspecting

officers, and in any event the argument is meritless for the reasons discussed above.

See supra at 48-50.

Petitioners are also wrong in suggesting (Br. 54) that ELDs are used merely as a

pretext to detect violations “other than those created by the scheme itself.” Burger,

482 U.S. at 717. In fact, ELDs are only used in support of a regulatory regime

designed to detect violations of the hours-of-service regulations, and are not designed

“to support the ordinary needs of law enforcement.” Br. 55. Of course, a warrantless

inspection of a closely regulated industry may uncover violations of regulations

applicable to that industry – that is precisely what the inspection is intended to do –

and it does not matter (Br. 55) whether the permissible inspection reveals violations

that are civil or criminal in nature. See Burger, 482 U.S. at 716 (“The discovery of


57

evidence of crimes in the course of an otherwise proper administrative inspection

does not render that search illegal or the administrative scheme suspect.”).

Petitioners also miss the mark in contending that ELDs involve the monitoring

of people rather than the inspection of commercial property, and thus fall outside of a

permissible inspection under Burger. Br. 52-53. That argument is flawed for multiple

reasons.

First, the FMCSA has long required drivers to record and disclose exactly the

same kind of information via paper RODs log books. If the paper RODs

requirement does not violate the Fourth Amendment – and petitioners do not argue

as much – it is difficult to see why requiring drivers to record and disclose precisely

the same information in electronic form should yield a different result under the

Fourth Amendment.

Second, ELDs are not “aimed directly and exclusively at the drivers,” as

petitioners contend, Br. 54, but are primarily aimed at recording information about

the vehicles, such as driving hours and location within a 1-mile radius at one hour

intervals.

Third, petitioners’ argument is premised on an artificial distinction between

inspecting a commercial premises and inspecting a person’s activities in the

commercial premise while carrying out the business of the closely regulated industry

being inspected. The operations of a commercial property are nearly always carried


58

out by people, and thus nearly any inspection of commercial premises could be

rephrased as an inspection of persons’ activities. For example, in Burger the

permissible inspection of an automobile junkyard for a required license and record

keeping, could be rephrased as an inspection to determine whether the owner engaged

in the activities of obtaining a license and maintaining accurate recordkeeping.

Petitioners’ asserted distinction is unworkable and without any support in case law.

Burger’s underlying rationale – that privacy expectations are lower in a closely regulated

industry with a long tradition of close government supervision, 482 U.S. at 700-02 –

applies equally to the physical premises in which the industry is carried out as well as

to the employee actions carrying out the work of that industry while in those physical

premises. In the motor carrier industry, both the premises (the vehicles) and the

employees’ conduct (driving the vehicles) are equally subject to a long tradition of

close government supervision, and hence equally within Burger’s rationale.


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CONCLUSION

For the foregoing reasons, the petition for review should be denied.

Respectfully submitted,

MOLLY J. MORAN Acting General Counsel PAUL M. GEIER Assistant General Counsel for Litigation and Enforcement PETER J. PLOCKI Deputy Assistant General Counsel for Litigation and Enforcement JOY K. PARK Senior Trial Attorney U.S. Department of Transportation CHARLES J. FROMM Acting Chief Counsel SUE LAWLESS Assistant Chief Counsel for Enforcement and LitigationWILLIAM R. VARGA Attorney-Advisor Federal Motor Carrier Safety Administration

BENJAMIN C. MIZER Acting Assistant Attorney General

ZACHARY T. FARDON United States Attorney

MATTHEW COLLETTE (202) 514-4212 JOSHUA WALDMAN

(202) 514-0236 Attorneys, Appellate Staff Civil Division, Room 7232 U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530

June 15, 2016


CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(C) FEDERAL RULE OF APPELLATE PROCEDURE

I hereby certify pursuant to Fed. R. App. P. 32(a)(7)(C) that the foregoing brief

contains 13,794 words, according to the count of Microsoft Word.

/s/ Joshua Waldman_____ JOSHUA WALDMAN Counsel for Respondents


CERTIFICATE OF SERVICE

I hereby certify that on June 15, 2016, I caused the foregoing brief to be filed

with the Court through the electronic filing system. Counsel for Petitioners is a

registered CM/ECF user and service will be accomplished by the appellate CM/ECF

system.

/s/ Joshua Waldman_____ JOSHUA WALDMAN Counsel for Respondents
