FOR THE SEVENTH CIRCUIT OWNER-OPERATOR ... R. VARGA Attorney-Advisor Federal Motor Carrier Safety...
Transcript of FOR THE SEVENTH CIRCUIT OWNER-OPERATOR ... R. VARGA Attorney-Advisor Federal Motor Carrier Safety...
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
- i -
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- ii -
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- iii -
TABLE OF CONTENTS (cont'd)
Page(s)
CONCLUSION .........................................................................................................................59
CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- iv -
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- v -
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- vi -
TABLE OF AUTHORITIES (cont'd)
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- vii -
TABLE OF AUTHORITIES (cont'd)
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- viii -
TABLE OF AUTHORITIES (cont'd)
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- ix -
TABLE OF AUTHORITIES (cont'd)
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- x -
TABLE OF AUTHORITIES (cont'd)
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
- xi -
TABLE OF AUTHORITIES (cont'd)
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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,
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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)).
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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).
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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).
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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;
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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,
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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).
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.”).
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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,
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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,
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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).
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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 &
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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”).
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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,
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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).
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
55
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).
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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.
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
59
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73
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
Case: 15-3756 Document: 30 Filed: 06/15/2016 Pages: 73