Judges: Hamilton
Filed: Oct. 31, 2016
Latest Update: Mar. 03, 2020
Summary: 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. FMCSA-2010-0167. _ ARGUED SEPTEMBER 13, 2016 — DECIDED OCTOBER 31, 2016 _ Before BAUER, KANNE, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Since 1935,
Summary: 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. FMCSA-2010-0167. _ ARGUED SEPTEMBER 13, 2016 — DECIDED OCTOBER 31, 2016 _ Before BAUER, KANNE, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Since 1935, f..
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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.
FMCSA‐2010‐0167.
____________________
ARGUED SEPTEMBER 13, 2016 — DECIDED OCTOBER 31, 2016
____________________
Before BAUER, KANNE, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Since 1935, federal law has regu‐
lated the hours of service of truck drivers operating in inter‐
state commerce. The regulations are intended to reduce fa‐
tigue‐related accidents, and they require drivers to keep pa‐
per records showing their driving time and other on‐duty
time. Compliance has long been an issue, though, because it
2 No. 15‐3756
is easy to insert an error in paper records, whether intention‐
ally or not.
In 2012, Congress directed the Department of Transporta‐
tion to issue regulations to require most interstate commercial
motor vehicles to install electronic logging devices (ELDs).
ELDs are linked to vehicle engines and automatically record
data relevant to the hours of service regulations: whether the
engine is running, the time, and the vehicle’s approximate lo‐
cation. The devices are intended to improve drivers’ compli‐
ance with the regulations, to decrease paperwork, and ulti‐
mately to reduce the number of fatigue‐related accidents.
Congress instructed the Department in promulgating the rule
to consider other factors as well, such as driver privacy and
preventing forms of harassment enabled by the ELDs. 49
U.S.C. § 31137. The Federal Motor Carrier Safety Administra‐
tion, which is part of the Department of Transportation,
promulgated the final rule requiring ELDs in 2015. Electronic
Logging Devices and Hours of Service Supporting Docu‐
ments, 80 Fed. Reg. 78,292 (Dec. 16, 2015) (“Final ELD Rule”),
codified in 49 C.F.R. Pts. 385, 386, 390, and 395.
Petitioners Mark Elrod, Richard Pingel, and the Owner‐
Operator Independent Drivers Association (OOIDA) brought
this action for judicial review of the final rule. Elrod and Pin‐
gel are professional truck drivers, and OOIDA is a trade or‐
ganization. They argue that the agency’s final rule should be
vacated for five reasons. We uphold the final rule and deny
their petition.
Petitioners claim first that the final rule is contrary to law
because it permits ELDs that are not entirely automatic. We
disagree. Petitioners’ reading of the statute seeks to pit one
statutory requirement against another rather than allow the
No. 15‐3756 3
agency to balance competing policy goals endorsed by Con‐
gress. Second, petitioners argue that the agency used too nar‐
row a definition of “harassment” that will not sufficiently pro‐
tect drivers. This claim also fails. When defining harassment,
the agency sought input from drivers, motor carriers, and
trade organizations; it considered administrative factors; and
it ultimately provided a reasonable definition of the term.
Third, petitioners argue that the agency’s cost‐benefit analysis
was inadequate and fails to justify implementation of the ELD
rule. However, the agency did not need to conduct a cost‐ben‐
efit analysis for this rule, which was mandated by Congress.
Even if such analysis were required, the studies were ade‐
quate. Fourth, petitioners argue that the agency did not suffi‐
ciently consider confidentiality protections for drivers. The
agency, however, adopted a reasonable approach to protect
drivers in this regard.
Fifth, petitioners argue that the ELD mandate imposes, in
effect, an unconstitutional search and/or seizure on truck
drivers. We find no Fourth Amendment violation. Whether or
not the rule itself imposes a search or a seizure, inspection of
data recorded on an ELD would fall within the “pervasively
regulated industry” exception to the warrant requirement.
The agency’s administrative inspection scheme for such infor‐
mation is reasonable.
I. Factual and Regulatory Background
The agency’s road to the 2015 final rule was long and
rocky. That history is relevant to several of petitioners’ argu‐
ments, particularly the claims that ELDs must be entirely au‐
tomatic, that ELD benefits do not outweigh their costs, and
that the ELD mandate violates the Fourth Amendment.
4 No. 15‐3756
A. Federal Regulation of Commercial Motor Vehicles
In the early twentieth century, commercial motor vehicles
were largely regulated by individual states. See John J.
George, Federal Motor Carrier Act of 1935, 21 Cornell L. Rev.
249, 249‐51 (1936). This decentralized system ran into
dormant commerce clause problems. In a series of cases, the
Supreme Court struck down state regulations of commercial
motor vehicles that interfered with interstate commerce. See,
e.g., Buck v. Kuykendall, 267 U.S. 307 (1925) (striking down
state’s attempt to require certificate of “public convenience”
to compete in commercial interstate transportation); George W.
Bush & Sons Co. v. Maloy, 267 U.S. 317 (1925) (same); Interstate
Transit, Inc. v. Lindsey, 283 U.S. 183 (1931) (striking down state
tax on privilege of providing interstate bus transportation). In
1935, Congress responded by passing the Federal Motor Car‐
rier Act of 1935, Pub. L. No. 255, § 201, 49 Stat. 543.
The Act delegated authority to the Interstate Commerce
Commission to regulate many elements of interstate freight
and passenger motor vehicle traffic. Most relevant for this
case, the Act directed the Commission to regulate the maxi‐
mum hours of service for commercial drivers. Id., § 204(a)(1).
Regulating hours of service was intended to promote high‐
way safety by reducing accidents related to driver fatigue. 79
Cong. Rec. 12209‐37 (1935). This remains the goal of the hours
of service regulations today. Final ELD Rule, 80 Fed. Reg. at
78,303. Jurisdiction over the regulations moved to the Federal
Highway Administration in 1995 and then to the new Federal
Motor Carrier Safety Administration in 2000. See Interstate
Commerce Commission Termination Act, Pub. L. 104‐88,
109 Stat. 803 (1995); Owner‐Operator Independent Drivers Ass’n
No. 15‐3756 5
v. Federal Motor Carrier Safety Admin., 494 F.3d 188, 193 (D.C.
Cir. 2007) (discussing regulatory history).
The regulations require drivers to document four possible
statuses: (1) driving; (2) on duty, not driving; (3) in the sleeper
berth; and (4) off duty. 49 C.F.R. § 395.8(b). They set out max‐
imum times for driving and require a minimum number of
hours off duty each day. They also establish the maximum
permissible on‐duty time for each week.
Driver status has been traditionally documented through
paper logs called the “Record of Duty Status.” Drivers are re‐
quired to keep copies of these records for seven days before
submitting them to their motor carrier. 49 C.F.R. § 395.8(k)(2).
The carrier must retain copies for six months. § 395.22(i)(1).
Both drivers and carriers must provide these records to au‐
thorized safety officials during roadside inspections or audits.
If a driver violates the hours of service or fails to maintain her
records accurately, she may be placed out of service. § 395.13.
These paper records have been ongoing sources of concern
because they are easy to falsify. For example, a driver could
exceed the cap on continuous driving (11 hours), but fail to
record the excess hours. § 395.3(a)(3)(i). There is evidence that
falsification of paper records occurs on a regular basis. 65 Fed.
Reg. 25,540, 25,558 (May 2, 2000) (agency noting that hours of
service violations are widespread). The paper records are also
vulnerable to human error. Final ELD Rule, 80 Fed. Reg. at
78,303. These concerns were part of the impetus to update the
hours of service regulations.
6 No. 15‐3756
B. Efforts to Update the Hours of Service Regulations
In 1995, Congress directed the agency to revise the hours
of service regulations for commercial motor vehicles. Pub. L.
104‐88 § 408, set out as note under 49 U.S.C. § 31136 (1996
Supp.). The Agency then tried to modernize the regulations.
The agency’s proposed new rules have been struck down
three times, twice by the Court of Appeals for the District of
Columbia Circuit and once by this court.
In 2003 the agency issued a new final rule that overhauled
the hours of service rules. 68 Fed. Reg. 22,456 (Apr. 28, 2003).
The rule altered various requirements, including the length of
the daily driving limit, the daily off‐duty requirement, and
the weekly on‐duty maximum. See id. at 22,457, 22,501–02.
The D.C. Circuit vacated the rule because the “agency failed
to consider the impact of the rules on the health of drivers, a
factor the agency must consider under its organic statute.”
Public Citizen v. Federal Motor Carrier Safety Admin., 374 F.3d
1209, 1216 (D.C. Cir. 2004).
The agency then issued a revised final rule in 2005. 70 Fed.
Reg. 49,978 (Aug. 25, 2005). The D.C. Circuit again held that
the agency erred. Owner‐Operator Independent Drivers Ass’n v.
Federal Motor Carrier Safety Admin., 494 F.3d 188 (D.C. Cir.
2007). This time, the agency violated the Administrative Pro‐
cedure Act by failing to provide sufficient opportunity for in‐
terested parties to comment on the method that justified the
change in the hours of service rules. The agency also failed to
explain sufficiently certain elements of that method. Id. at 193.
Within the agency’s broader efforts to update the hours of
service rule was a narrower issue of electronic monitoring. Be‐
No. 15‐3756 7
fore promulgating the 2003 rule, the agency considered re‐
quiring electronic on‐board recorders (EOBRs), which are the
technical and regulatory predecessors of ELDs. See 65 Fed.
Reg. 25,540, 25,598 (May 2, 2000). The agency considered re‐
quiring EOBRs in response to Congress’s 1995 directive to is‐
sue an advance notice of proposed rulemaking “dealing with
a variety of fatigue‐related issues pertaining to commercial
motor vehicle safety … including … automated and tam‐
perproof recording devices.” Pub. L. 104‐88 § 408, set out as
note under 49 U.S.C. § 31136 (1996 Supp.).1
While the proposed rule would have required EOBRs, the
agency decided not to require them at that time. 68 Fed. Reg.
22,456, 22,488 (Apr. 28, 2003). The D.C. Circuit vacated the
2003 rule on other grounds but also admonished the agency
for failing to respond adequately to the statutory directive to
“deal[] with … automated and tamperproof recording de‐
vices,” noting that the agency’s decision on that point was
“probably flawed.” Public Citizen, 374 F.3d at 1220‐22.
In response, the agency further investigated EOBRs. In
2004, the agency issued an optional advanced notice of pro‐
posed rulemaking, which indicated that it was still consider‐
ing EOBR implementation. 69 Fed. Reg. 53,386 (Sept. 1, 2004).
Then, in 2007 the agency issued a formal notice of proposed
rulemaking that considered three issues: (1) EOBR perfor‐
mance standards; (2) mandatory use of EOBRs for motor car‐
riers that regularly violated hours of service rules; and (3) in‐
centives to promote voluntary use of EOBRs. 72 Fed. Reg.
1 This statute was first directed to the Federal Highway Administration in
1995, but that agency never took any action. The responsibility then fell to
the Federal Motor Carrier Safety Administration.
8 No. 15‐3756
2,340, 2,343 (Jan. 18, 2007). The final rule issued in 2010 re‐
quired, among other things, that motor carriers “that have
demonstrated serious noncompliance with the HOS [hours of
service] rules will be subject to mandatory installation of
EOBRs.” 75 Fed. Reg. 17,208, 17,208 (Apr. 5, 2010). This rule
led to the agency’s third rebuke by the courts.
In 2011, this court vacated the final rule regarding EOBRs.
Owner‐Operator Independent Drivers Ass’n v. Federal Motor Car‐
rier Safety Admin., 656 F.3d 580 (7th Cir. 2011) (“OOIDA I”). As
in the D.C. Circuit’s 2003 decision, we found that the agency
had failed to consider a statutory requirement: to ensure that
electronic monitoring would not be used to harass drivers. 49
U.S.C. § 31137(a) (2011). Instead of building in safeguards to
prevent EOBRs from being used to harass drivers, the agency
had provided “a single conclusory sentence in the final rule‐
making to the effect that the Agency ‘has taken the[] statutory
requirement[] into account throughout the final rule.’”
OOIDA I, 656 F.3d at 588. This shortcoming rendered the final
rule arbitrary and capricious. See 5 U.S.C. § 706.
C. The Current Challenge to ELDs
In 2012, Congress stepped in again and passed the Com‐
mercial Motor Vehicle Safety Enhancement Act of 2012. This
time Congress was more direct. It ordered the Secretary of
Transportation to issue regulations requiring most commer‐
cial vehicles to “be equipped with an electronic logging de‐
vice to improve compliance by an operator of a vehicle with
hours of service regulations.” 49 U.S.C. § 31137(a)(1). The Act
specified several factors for the Secretary to consider in imple‐
menting the ELD mandate, including the potential for harass‐
ment, § 31137(a)(2); the potential to reduce paper documents,
No. 15‐3756 9
§ 31137(d)(1); driver privacy, § 31137(d)(2); and the confiden‐
tiality of personal data, § 31137(e).
To comply with this statutory mandate, the agency issued
its final rule in 2015. Final ELD Rule, 80 Fed. Reg. 78,292 (Dec.
16, 2015). The rule (1) mandates ELDs for all vehicles that are
currently required to maintain hours of service records; (2)
provides technical specifications for ELDs; (3) clarifies the ex‐
tent to which supporting paperwork is required; and (4)
adopts provisions to ensure that ELDs are not used to harass
drivers. Id. at 78,293. The compliance date for the ELD man‐
date is set for December 18, 2017, id. at 78,292, and it will affect
an estimated 3.5 million drivers.
The rule prescribes requirements for ELDs. They must au‐
tomatically link to vehicle engines when the engines turn on,
and they must record the date, time, location, engine hours,
vehicle miles, driver identification, vehicle identification, and
motor carrier identification. 49 C.F.R. § 395.26. The collection
of this data is intentionally limited in scope. Instead of contin‐
uously tracking this information, ELDs record only at speci‐
fied times, such as when the vehicle is turned on, when the
duty status changes, and once per hour while driving. Id. In
addition, ELDs do not pinpoint a vehicle’s exact location.
They provide location only within a one‐mile radius. Final
ELD Rule, 80 Fed. Reg. at 78,296. As with the paper records,
authorized safety officials may review ELD data without a
warrant at roadside inspections and during audits of motor
carriers. 49 C.F.R. § 395.24(d); § 395.22(j).
10 No. 15‐3756
II. Analysis
We now turn to petitioners’ five arguments for vacating
the 2015 final rule: (a) ELDs will not record enough infor‐
mation automatically; (b) the rule fails to protect drivers suf‐
ficiently from harassment; (c) the rule’s benefits will not out‐
weigh its costs; (d) the rule fails to protect the confidentiality
of personal data collected by ELDs; and (e) the rule violates
the Fourth Amendment’s prohibition against unreasonable
searches and seizures.
A. “Automatically”
Petitioners first argue that ELDs must be entirely auto‐
matic to comply with Congress’s mandate. The statute directs
the agency to issue regulations requiring an electronic moni‐
toring device that “is capable of recording a driver’s hours of
service and duty status accurately and automatically.” 49
U.S.C. § 31137(f)(1)(A). Petitioners argue that “automatically”
means entirely automatic; no human involvement is permit‐
ted. They contend the device must be capable of automatically
recording when a driver changes between the four statuses:
driving; on duty, not driving; sleeper berth; and off duty. Pe‐
titioners also argue that if drivers must manually enter any
information into the ELDs, this will enable falsification and
defeat the purpose of the statute. For instance, the ELDs pre‐
scribed in the rule cannot automatically capture on‐duty, non‐
driving work, such as loading a truck. If a driver must manu‐
ally input this status, she could falsify the record.
It is unclear what devices petitioners envision, and they do
not say. Such a device would need to monitor quite a few var‐
iations in human activity. If the device must function entirely
automatically, how should it record a driver’s change from “off
No. 15‐3756 11
duty” to “on‐duty, not driving”? According to petitioners, a
driver may not clock‐in manually; that would not be auto‐
matic. Or what if a driver is in the sleeper berth, but perform‐
ing on‐duty, non‐driving work, such as reviewing a bill of lad‐
ing? What type of device could tell the difference without any
manual input?
Two possibilities are constant video surveillance or per‐
haps some form of bio‐monitoring device.2 But naming these
possibilities shows why petitioners did not mention them:
they would be breathtakingly invasive. Whether we review
the agency’s interpretation of “automatically” under Chevron
or Skidmore, we are confident that Congress did not intend to
require such invasive devices when it used the word “auto‐
matically.” See Chevron, U.S.A., Inc. v. Natural Resources De‐
fense Council, Inc., 467 U.S. 837 (1984) (deferring to agency’s
reasonable interpretation of ambiguous statute); Skidmore v.
Swift & Co., 323 U.S. 134 (1944) (deferring to agency’s statutory
interpretation to extent it is persuasive).
First, petitioners read the single word “automatically” in
isolation, ignoring the rest of the statute. This runs contrary to
the Supreme Court’s repeated instruction to “construe stat‐
utes, not isolated provisions.” King v. Burwell, 576 U.S. —, —,
135 S. Ct. 2480, 2489 (2015), citing Graham County Soil and Wa‐
ter Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280,
290 (2010). We interpret statutes “as a symmetrical and coher‐
ent regulatory scheme,” Gustafson v. Alloyd Co., 513 U.S. 561,
2 By way of illustration, NASA has experimented with devices to monitor
astronauts’ sleep patterns. See, e.g., NASA, Wearable System for Sleep Mon‐
itoring in Microgravity (Wearable Monitoring), July 14, 2016,
http://www.nasa.gov/mission_pages/station/research/exper‐
ments/1279.html.
12 No. 15‐3756
569 (1995), and “fit, if possible, all parts into an harmonious
whole,” Federal Trade Comm’n v. Mandel Brothers, Inc., 359 U.S.
385, 389 (1959). Here, other parts of the statute provide im‐
portant context for the “automatic” requirement. For instance,
the statute also directs the agency to ensure that ELDs will not
be used to harass drivers, 49 U.S.C. § 31137(a)(2), and to con‐
sider drivers’ privacy, § 31137(d)(2). These provisions show
that Congress meant for the agency to balance competing
goals. The agency understood this and balanced the compet‐
ing directives in a reasonable manner.
Second, petitioners’ interpretation of “automatically” is
belied by prior use of the word in precisely this context. When
Congress was drafting the 2012 Act, it was aware of the EOBR
rule this court vacated in 2011. See S. Rep. No. 112‐238 at 4
(2012) (discussing EOBRs). The 2012 statutory mandate for
ELDs in 49 U.S.C. § 31137 used the same language that de‐
scribed EOBRs in the previous agency rule: devices “capable
of recording a driver’s hours of service and duty status accu‐
rately and automatically.” 49 C.F.R. § 395.2 (2010). If Congress
had intended a very different sort of device—such as a bio‐
monitor—it would have given some indication. Instead, Con‐
gress used the same phrase, strongly implying that it in‐
tended a device with similar capabilities and limitations.
Third, under petitioners’ reading of the statute, Congress
hid a sweeping change—all‐encompassing surveillance of
commercial drivers—in the interpretation of the word “auto‐
matically.” We are confident that Congress did not intend
that. In construing arguably ambiguous statutory terms, it is
usually prudent to assume that Congress does not “alter the
fundamental details of a regulatory scheme in vague terms or
ancillary provisions.” Whitman v. American Trucking Ass’ns,
No. 15‐3756 13
531 U.S. 457, 468 (2001). More colloquially, Congress does not
“hide elephants in mouseholes.” Id. We do not interpret “au‐
tomatically” to require constant video surveillance or bio‐
monitors. The ELDs prescribed by the agency function “auto‐
matically” within the meaning of § 31137.
B. Driver “Harassment”
Petitioners’ second argument takes the tack opposite from
the first: the final rule should be vacated because it does not
protect drivers sufficiently from harassment. As noted, we va‐
cated the 2011 rule because the agency failed to consider the
statutory mandate to “ensure that the devices are not used to
harass vehicle operators.” OOIDA I, 656 F.3d at 582, citing 49
U.S.C. § 31137(a).
After our earlier decision, the agency sought input to de‐
termine how ELDs might be used to harass drivers. 76 Fed.
Reg. 20,611 (Apr. 13, 2011). In 2012, the agency conducted two
public listening sessions, with options for online participa‐
tion. See Final ELD Rule, 80 Fed. Reg. at 78,320. It also con‐
ducted a survey of drivers and motor carriers regarding the
potential for ELD‐related harassment. Id. at 78,298. The
agency received substantial feedback from drivers, motor car‐
riers, and trade associations. It incorporated some of these
suggestions into its final rule, including several suggestions
from petitioner OOIDA. Id. at 78,321.
For purposes of this rule, the agency ultimately defined
harassment as “an action by a motor carrier toward a driver
… involving the use of information available to the motor car‐
rier through an ELD … that the motor carrier knew, or should
have known, would result in the driver violating § 392.3 [pro‐
hibiting driving when abilities may be impaired by fatigue,
14 No. 15‐3756
illness, or “any other cause”] or part 395 [hours of service
rules].” 49 C.F.R. § 390.36(a). In other words, ELD‐related har‐
assment can take two forms: when a motor carrier uses an
ELD to encourage a driver to drive (1) when the driver’s abil‐
ity is somehow impaired; or (2) in violation of the hours of
service rules.
Petitioners contend this definition is too narrow. They ar‐
gue that by linking harassment to driver impairment and
hours of service, the rule protects drivers from only a “very
limited subset” of possible harassment. Similar to their argu‐
ment about “automatically,” petitioners claim that since the
term “harassment” is unqualified in the statute, it must in‐
clude every possible form of harassment.
On this issue the agency’s interpretation of “harassment”
is entitled to deference under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). Under
Chevron’s two‐part test, we first ask if, using the “traditional
tools of statutory construction,” Congress has “directly spo‐
ken to the precise question at issue.” Id. at 842, 843 n.9. If not,
we proceed to Chevron’s second step and ask whether the
agency’s interpretation was “based on a permissible construc‐
tion of the statute.” Id. at 843.
Here, Congress has not “directly spoken” to the precise
meaning and scope of the “harassment” mandate. As we said
in 2011, the term harassment is “undefined in the statute and
thus require[s] some amplification.” OOIDA I, 656 F.3d at 588.
Since Congress did not fill in the precise content, we assume
that the “statute’s ambiguity constitutes an implicit delega‐
tion from Congress to the agency to fill in the statutory gaps.”
King v. Burwell, 576 U.S. at —, 135 S. Ct. at 2488, quoting FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).
No. 15‐3756 15
At Chevron’s second step, the agency’s interpretation is reason‐
able.
Like the statute itself, the agency linked the definition of
harassment to the use of ELDs. The agency explained that it
intentionally tied the definition of harassment to specific reg‐
ulatory violations to provide “objective criteria” for managing
harassment allegations. Final ELD Rule, 80 Fed. Reg. at
78,326. The agency claims this will help its administrators,
who are located throughout the country, address harassment
complaints in a consistent and timely manner. Id.
The agency also bolstered its harassment definition in re‐
sponse to specific concerns raised by drivers during the no‐
tice‐and‐comment process. For instance, a number of drivers
expressed concern that motor carriers would use ELDs to in‐
terrupt their sleep. Id. at 78,323, 78,326. In response, the
agency required ELDs to include a mute function or volume
control. 49 C.F.R. Pt. 395, Subpt. B, App. A 4.7.1(a). Drivers
also expressed concern that carriers might pressure them to
alter their ELD records. Final ELD Rule, 80 Fed. Reg. at 78,320,
78,323, 78,325. In response, the agency required that ELDs be
made tamper‐resistant, and the devices must retain a copy of
their original records even if edited. Id. at 78,303. In addition,
the agency adopted two specific proposals from petitioner
OOIDA: it is expressly unlawful for motor carriers to use
ELDs to harass drivers, and the agency established a process
for drivers to file harassment complaints. Id. at 78,321.
The rule complies with the statutory mandate to protect
drivers from harassment. The agency sought input from vari‐
ous stakeholders, considered logistical and administrability
factors, and addressed specific concerns raised during out‐
16 No. 15‐3756
reach sessions. In OOIDA I, we said that the definition of har‐
assment needed elaboration. The agency has provided it in a
reasonable way.
Moreover, petitioners have not identified an instance of
harassment that the agency’s definition will leave unpro‐
tected. The one example that petitioners offer is based on a
mistake. They argue that a motor carrier might pressure a
driver to continue driving during dangerous weather condi‐
tions. Since this does not violate the hours of service rules, pe‐
titioners reason, it would not be considered “harassment” un‐
der the rule’s definition. That is incorrect. This situation
would fall under the other portion of the agency’s definition,
which covers situations where a motor carrier pressures a
driver to drive when her ability is impaired for any reason. 49
C.F.R. § 392.3 (noting that motor carrier may not require a
driver to operate a commercial vehicle “while the driver’s
ability or alertness is so impaired, or so likely to become im‐
paired, through fatigue, illness or any other cause, as to make it
unsafe for him/her to begin or continue to operate the com‐
mercial motor vehicle”) (emphasis added). The agency’s defi‐
nition of harassment thus reaches petitioners’ hypothetical.
And even if some forms of potential harassment might fall
outside the agency’s definition, that would not render its def‐
inition unreasonable.
C. Cost‐Benefit Analysis
Petitioners next challenge the agency’s analysis of the costs
and benefits of the ELD rule. They argue that the agency’s cal‐
culation of the benefits is flawed because (1) ELDs will not
improve hours of service compliance because they are not en‐
tirely automatic; and (2) the studies indicating otherwise are
unreliable. We also reject this challenge. The agency was not
No. 15‐3756 17
required to conduct a cost‐benefit analysis for this particular
rule. Even if it had been required to do so, its studies were
sufficient.
Requiring ELDs was not left to the discretion of the
agency; Congress mandated it. In the 2012 legislation, Con‐
gress did not instruct the Agency to consider requiring elec‐
tronic monitoring, as it had in the Interstate Commerce Com‐
mission Termination Act of 1995. See Pub. L. 104‐88 § 408, set
out as note under 49 U.S.C. § 31136 (1996 Supp.). In 2012, Con‐
gress simply ordered the agency to require ELDs. Section
31137(a) states that the Secretary “shall prescribe regulations
… requiring” commercial motor vehicles to be “equipped
with an electronic logging device.” Congress instructed the
agency to consider certain other factors such as the potential
for harassment, § 31137(a)(2); the potential to reduce paper
documents, § 31137(d)(1); driver privacy, § 31137(d)(2); and
the confidentiality of personal data, § 31137(e). Congress did
not condition issuance of the rule on a cost‐benefit analysis.
Petitioners claim that consideration of the costs and bene‐
fits of the § 31137 ELD mandate is required under § 31136.
That is not correct. While § 31136 requires the agency to con‐
sider costs and benefits when promulgating minimum safety
standards for commercial motor vehicles, § 31136(c)(2)(A),
that requirement is expressly limited to regulations “under
this section.” § 31136(c)(2). It does not apply to § 31137, which
contains the ELD mandate.
Section 31136 provides additional evidence that the
agency was not required to perform a cost‐benefit analysis or
to ensure that benefits would exceed costs when implement‐
ing the ELD mandate. Congress knows how to require rule‐
makers to follow cost‐benefit analyses when it wants, as
18 No. 15‐3756
§ 31136 shows. See, e.g., Whitman v. American Trucking Ass’ns,
531 U.S. 457, 467 (2001) (EPA not permitted to consider costs
when setting ambient air quality standards, in part because
authority to consider cost had “elsewhere, and so often, been
expressly granted” in Clean Air Act, but was not granted for
standards in question). Even if the agency had done no cost‐
benefit analysis here, that would not invalidate the rule.
In any event, the agency’s studies here were sufficient to
justify the rule. In the Regulatory Impact Analysis, the agency
relied on two studies. The first examined five motor carriers
that had implemented electronic monitoring in their fleets for
at least one year. This resulted in data on 8,545 roadside in‐
spections of 5,792 commercial motor vehicles. Naturally, this
sample size was relatively small because the ELD mandate
had not yet been implemented at the national level. The
agency supplemented this study with its Roadside Interven‐
tion Model.
The Roadside Intervention Model estimated the reduction
in crashes that would result from a decrease in regulatory vi‐
olations. To do this, the agency correlated the type and length
of driving violations to crash risk. See U.S. Dep’t Trans., Reg‐
ulatory Impact Analysis §§ 2.5.4; 4.2–4.2.4 (Nov. 2015). Using
data from January 2005 to September 2009, which involved 9.7
million roadside interventions, the agency estimated that the
ELD mandate would result each year in 26 lives saved, 562
injuries avoided, and 1,844 crashes avoided. Id., Executive
Summary at vi, Table 4. While petitioners urge us to second‐
guess the agency’s statistical judgment calls, we find that it
exercised its expertise reasonably. See Public Citizen v. Federal
Motor Carrier Safety Admin., 374 F.3d 1209, 1221 (D.C. Cir.
2004) (“The agency’s job is to exercise its expertise to make
No. 15‐3756 19
tough choices about which of the competing estimates is most
plausible, and to hazard a guess as to which is correct, even if
the lack of a ‘significant market for such [electronic logging]
devices’ means that the estimate will be imprecise.”).3
D. Confidentiality of ELD Information
Section 31137(e) requires the agency to provide safeguards
to preserve the confidentiality of the data collected by ELDs.
Petitioners argue that the agency has failed to do so. They
claim that this situation parallels OOIDA I, where the agency
simply failed to consider a factor mandated by statute (in that
case, driver harassment) beyond “a single conclusory sen‐
tence in the final rulemaking.” OOIDA I, 656 F.3d at 588. Here,
however, the agency provided a sufficient response by con‐
sidering confidentiality in several respects.
First, as a general matter, the agency will not maintain the
ELD data itself. Instead, drivers and motor carriers are re‐
sponsible for maintaining and storing the information. 49
C.F.R. § 395.24(d); § 395.22(i)(1). The final rule also requires
motor carriers to “retain a driver’s ELD records so as to pro‐
tect a driver’s privacy in a manner consistent with sound busi‐
ness practices.” § 395.22(i)(2).
3 Even if petitioners were correct that the agency needed to conduct a cost‐
benefit analysis and that the agency’s studies were inadequate, the bene‐
fits of ELDs would still outweigh the costs. Petitioners do not challenge
the accuracy of the agency’s estimate of total paperwork savings from the
ELD mandate, nor do they challenge the agency’s estimate of total costs of
the mandate. Even apart from the benefits of accidents prevented, the es‐
timated paperwork savings alone outweigh the costs of the ELD mandate.
See U.S. Dep’t Trans., Regulatory Impact Analysis, Executive Summary at
v (Nov. 2015).
20 No. 15‐3756
Second, the agency noted that existing regulations “gov‐
ern the release of private information, including requests for
purposes of civil litigation.” Final ELD Rule, 80 Fed. Reg. at
78,322, citing 49 C.F.R. Pts. 7 and 9. The agency also high‐
lighted broader federal privacy laws that will govern ELD
data. Id.; see also Privacy Act, 5 U.S.C. § 552a (regulating the
maintenance and use of agency records maintained on indi‐
viduals). In this way, the agency showed that it considered the
existing backdrop of confidentiality protections before issu‐
ing new rules.
Third, the agency said it will redact personal information
before releasing confidential ELD‐related data: “To 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.” Final ELD Rule, 80 Fed. Reg. at 78,322.
The agency’s treatment of the confidentiality requirement
is sufficient. It is a far cry from the prior lack of treatment of
the harassment mandate in OOIDA I. While petitioners may
have liked additional protections, the agency’s treatment of
the confidentiality requirement was not arbitrary or capri‐
cious.
E. The Fourth Amendment
Petitioners claim that the ELD mandate is an unconstitu‐
tional “search” and “seizure.” They also argue that the rule
does not fall within the Fourth Amendment’s exception for
“pervasively regulated industries.” Petitioners’ arguments are
unpersuasive. We need not resolve whether the ELD mandate
constitutes a search or a seizure. Even if it did, it would be
No. 15‐3756 21
reasonable under the Fourth Amendment exception for per‐
vasively regulated industries.
The Fourth Amendment provides: “The right of the peo‐
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be vio‐
lated, and no Warrants shall issue, but upon probable cause.”
As a general rule warrantless searches are “per se unreasona‐
ble under the Fourth Amendment—subject only to a few spe‐
cifically established and well‐delineated exceptions.” Arizona
v. Gant, 556 U.S. 332, 338 (2009), citing Katz v. United States, 389
U.S. 347, 357 (1967). This protection applies to commercial
property as well as to homes. Marshall v. Barlow’s, Inc., 436 U.S.
307, 312 (1978).
One established exception is for administrative inspec‐
tions of “pervasively regulated industries.” In these indus‐
tries, reasonable expectations of privacy are diminished be‐
cause an individual who “embarks upon such a business …
has voluntarily chosen to subject himself to a full arsenal of
governmental regulation.” Id. at 313. In such industries,
Fourth Amendment protections do not disappear entirely.
Administrative inspections must still be reasonable. See
Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“[T]he ultimate
touchstone of the Fourth Amendment is ‘reasonableness.’”).
To be eligible for the exception, administrative inspections
in pervasively regulated industries must meet a three‐part
reasonableness test: (1) the regulatory scheme must be in‐
formed by a substantial government interest; (2) the warrant‐
less inspections must be necessary to further the regulatory
scheme; and (3) the inspection program must provide a con‐
stitutionally adequate substitute for a warrant. New York v.
Burger, 482 U.S. 691, 702‐03 (1987). Our Fourth Amendment
22 No. 15‐3756
analysis of the ELD mandate requires two steps. First, we hold
that commercial trucking is a pervasively regulated industry.
We then explain why the ELD mandate is a “reasonable” ad‐
ministrative inspection within the meaning of the Fourth
Amendment.
1. Pervasively Regulated Industries
At least six other circuits have concluded that the industry
is pervasively regulated for purposes of the Fourth Amend‐
ment. See United States v. Delgado, 545 F.3d 1195, 1201‐02 (9th
Cir. 2008) (collecting cases). We agree.
The Supreme Court first examined the pervasively regu‐
lated industry exception in Colonnade Catering Corp. v. United
States, 397 U.S. 72 (1970), and returned to it most recently in
City of Los Angeles v. Patel, 576 U.S. —, —, 135 S. Ct. 2443, 2454–
57 (2015). The Court has recognized four industries that fall
within this exception: the sale of liquor, Colonnade Catering
Corp., 397 U.S. at 72; dealing in firearms, United States v.
Biswell, 406 U.S. 311 (1972); mining, Donovan v. Dewey, 452 U.S.
594 (1981); and automobile junkyards, New York v. Burger, 482
U.S. 691 (1987). The Court has also held that two industries
are not pervasively regulated. Barlow’s, Inc., 436 U.S. at 313–14
(rejecting argument that “all businesses involved in interstate
commerce” are pervasively regulated); Patel, 576 U.S. at —,
135 S. Ct. at 2454–56 (hotels are not pervasively regulated).
The Court has relied on three primary factors to determine
if a particular industry is pervasively regulated: (1) the history
of regulation in that industry; (2) the comprehensiveness of
the regulations; and most recently (3) any inherent danger in
the industry. We consider these factors in turn.
No. 15‐3756 23
“History is relevant when determining whether an indus‐
try is closely regulated.” Patel, 576 U.S. at —, 135 S. Ct. at 2455;
see also Barlow’s, Inc., 436 U.S. at 313 (firearms industry had
“such a history of government oversight that no reasonable
expectation of privacy … could exist”). Regulation of com‐
mercial trucking has deep historical roots. See supra, Part I‐A.
The federal government has regulated the industry since
1935, and individual states imposed regulations even earlier.
In addition to the history of general regulation, hours of
service rules have been in place since 1935. As the Supreme
Court noted in Patel, a history of regulation that is unrelated
to the administrative inspection would carry less force. See
Patel, 576 U.S. at —, 135 S. Ct. at 2455 (noting that historical
regulations requiring inns to provide accommodations to all
paying guests were unrelated to contemporary question of
warrantless inspections of hotel guest registries). Commercial
trucking has a long history of not only general regulation, but
also rules governing the length of time drivers may stay on
the road. See Federal Motor Carrier Act of 1935, Pub. L. No.
255, § 201, 49 Stat. 543. The ELD mandate updates those rule
to capture essentially the same information while reducing
opportunities for falsification or human error. This factor
weighs in favor of treating commercial trucking as perva‐
sively regulated.
The Supreme Court also considers the comprehensiveness
of regulation in an industry. See, e.g., Burger, 482 U.S. at 705
n.16 (“[T]he proper focus is on whether the ‘regulatory pres‐
ence is sufficiently comprehensive and defined that the owner
of commercial property cannot help but be aware that his
property will be subject to periodic inspections undertaken
for specific purposes.’”), quoting Dewey, 452 U.S. at 600. The
24 No. 15‐3756
comprehensiveness of trucking regulation also helps to estab‐
lish that industry participants have a diminished expectation
of privacy.
The commercial trucking industry is regulated exten‐
sively. Federal regulations govern a host of issues ranging
from driver qualifications, procedures for driver disqualifica‐
tion, inspection of vehicles, vehicle parts, reporting accidents,
and repair and maintenance, to transportation of hazardous
materials, minimum levels of financial responsibility for mo‐
tor carriers, and more. See 49 C.F.R. §§ 100–399. States also
impose significant regulations on commercial motor vehicles.
See, e.g., 92 Ill. Adm. Code § 340‐97; 140 Ind. Admin. Code
§ 7‐3; Wis. Adm. Code Trans. § 177. This factor also weighs in
favor of considering the commercial trucking industry to be
pervasively regulated.
Finally, the Supreme Court signaled in Patel that courts
should consider whether the industry is inherently danger‐
ous. See Patel, 576 U.S. at —, 135 S. Ct. at 2454 (distinguishing
hotels from pervasively regulated industries because “noth‐
ing inherent in the operation of hotels poses a clear and sig‐
nificant risk to the public welfare”). This factor also supports
treating commercial trucking as pervasively regulated.
Congress has long recognized commercial trucking as a
dangerous industry. Danger to the public has lain at the center
of the hours of service rules since 1935. See, e.g., 79 Cong. Rec.
12,212 (1935) (statement of Rep. Monaghan) (coining term
“truckathon” to describe the “brutal, inhumane, and danger‐
ous practice whereby drivers of busses and trucks are com‐
pelled to work 18 to 20 hours a day, to the detriment of their
own health and the danger of the public who travel the high‐
ways of our country”).
No. 15‐3756 25
Such dangers led us to reject a Fourth Amendment chal‐
lenge to random drug tests for drivers of city‐owned trucks in
Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007). We determined
that operating “large vehicles and equipment” was a “safety‐
sensitive job,” id. at 518, noting that the job was “fraught with
such risks of injury to others that even a momentary lapse of
attention [could] have disastrous consequences.” Id., quoting
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 628
(1989). The agency’s estimate regarding the public safety ben‐
efits of ELDs indicates the dangerousness of the industry:
ELDs are estimated to save 26 lives, prevent 562 injuries, and
avoid 1,844 vehicles crashes per year. U.S. Dep’t Trans., Reg‐
ulatory Impact Analysis, Executive Summary at vi, Table 4
(Nov. 2015). All of these factors thus weigh in favor of treating
commercial trucking as a dangerous industry. For purposes
of the Fourth Amendment, commercial trucking is a perva‐
sively regulated industry.
2. Reasonableness of the ELD Mandate
The ELD mandate must still pass a three‐part reasonable‐
ness test: (1) the regulatory scheme must be informed by a
substantial government interest; (2) the warrantless inspec‐
tions must be necessary to further the regulatory scheme; and
(3) the inspection program must provide a constitutionally
adequate substitute for a warrant.
We have already addressed the first element. The public
safety concerns inherent in commercial trucking give the gov‐
ernment a substantial interest.
The ELD mandate also meets the second element. ELD rec‐
ords and administrative inspection of them are necessary to
further the government’s regulatory scheme. As noted above,
26 No. 15‐3756
falsification and errors in the traditional paper records are a
widespread problem. See supra, Part I‐A; 65 Fed. Reg. 25,540,
25,558 (May 2, 2000). During the agency’s listening sessions,
drivers said that motor carriers sometimes pressure them to
alter their paper records. Final ELD Rule, 80 Fed. Reg. at
78,320, 78,323, 78,325. Automatic recording and warrantless
inspection of those records offer a reasonable method to com‐
bat this problem. ELDs should not only help discover hours
of service violations but also deter such violations.
Warrantless inspection of hours of service records at road‐
side inspections and during audits is not new. Such reviews
of the paper records have long been central to enforcement of
the hours of service. See 49 C.F.R. § 395.8(k)(2) (2014). Since
the search occurs when law enforcement reviews the hours of
service data—not during the driver’s collection and storage of
the data—ELDs do not create a search regimen substantially
different from what has occurred with the paper records for
generations of drivers. Making the records more reliable does
not affect the reasonableness of the resulting searches. It is
also a reasonable way to achieve the regulatory goals.
The ELD mandate meets the third element because the
agency provides a constitutionally adequate substitute for a
warrant. To meet this third requirement, the inspection must
(1) advise the owner of the commercial property that the
search is made pursuant to the law and has a properly defined
scope, and (2) must limit the discretion of the inspecting offic‐
ers. Burger, 482 U.S. at 703. The ELD mandate does both.
First, 49 C.F.R. § 395.24(d) and § 395.22(j) advise drivers
and motor carriers that authorized safety officials may search
ELD data pursuant to law. The rules also limit the scope of the
inspections to ELD records. Id.; see also Final ELD Rule, 80
No. 15‐3756 27
Fed. Reg. at 78,296–97. In addition, the data recorded by ELDs
are intentionally limited, restricting the scope of the infor‐
mation available to law enforcement. Id. at 78,322–23.
Next, the discretion of inspecting officers is limited in two
important ways. First, the ELD mandate authorizes officers to
inspect only ELD data; it does not provide discretion to search
a vehicle more broadly. Second, § 31137(e)(3) requires the
agency to take steps to ensure that law enforcement uses
ELDs only to enforce compliance with the hours of service
rules. The agency acknowledged this during rulemaking, Fi‐
nal ELD Rule, 80 Fed. Reg. at 78,322, and the agency issued a
memorandum limiting the use of ELD records to enforcement
of the hours of service requirements. Memorandum from Wil‐
liam A. Quade, Assoc. Adm’r for Enforcement, Federal Motor
Carrier Admin. (Dec. 4, 2015).4 Taken together, these protec‐
tions create a constitutionally adequate substitute for a war‐
rant in the commercial trucking industry. Because the
agency’s promulgation of the ELD mandate passes the three‐
part test of Burger, it is reasonable within the meaning of the
Fourth Amendment.
Accordingly, the Federal Motor Carrier Safety Admin‐
istration’s final ELD rule codified at 49 C.F.R. Pts. 385, 386, 390,
4 We take judicial notice of the memorandum under Fed. R. Evid. 201. See
Fornalik v. Perryman, 223 F.3d 523, 529 (7th Cir. 2000); United States v. Ea‐
gleboy, 200 F.3d 1137, 1140 (8th Cir. 1999). Petitioners had an opportunity
to file supplemental briefing regarding this document. The memorandum
did not need to be issued by notice‐and‐comment rulemaking. While the
statute elsewhere requires the Secretary to proceed by regulation, see 49
U.S.C. § 31137(a), the provision in question here requires only that the Sec‐
retary “institute appropriate measures.” § 31337(e)(3). The memorandum
meets that requirement.
28 No. 15‐3756
and 395 is not arbitrary or capricious, nor does it violate the
Fourth Amendment. The petition for review is DENIED.