The Small Business in Transportation Coalition, a group saying they promote and protect the interests of small business in the transportation industry, has written an โemergency petitionโ asking Transportation Secretary Elaine Chao โto grant an exemption for all motor carriers with fewer than 50 employees, to reconsider the mandate insofar as the First Amendment affords all drivers a right to commercial free speech and to grant a stay on the December 18 effective date until the secretary rules on the SBC petition.โ
The SBTC says the FMCSA referenced the steps it had taken to minimize adverse economic impacts on small entities but feels the agency has โessentially ignored and disregarded the impact on the smallest of industry players in an overly broad assessment that places one-man interstate owner-operators into the same category as other โsmall businessesโ within the trucking industry.โ
The coalition said the FMCSA misinterprets the ELD mandate in several ways.
โFirst, the ELD rule is not a โsafety regulationโ per se as the FMCSA has concluded.
Rather, it is a mechanism intended to enforce a safety regulation by regulating the manner in which a driver records and communicates his compliance. That is, it is merely a tool to determine compliance with an existing rule that regulates over-the-road driversโ driving and on-duty time, namely the actual safety regulation: the hours of service regulations codified at 49 CFR 395.3 and 395.5. However, the ELD rule is not a safety
regulation itself.
Second, as a matter of strict construction, MAP-21 merely calls for commercial motor vehicles to be โequippedโ with ELDs. It does not appear to require the Secretary to mandate the replacement of paper logs with ELDs or force the use of ELDs:
Use of Electronic Logging Devices.โ <> Not later than 1 year after the date of enactment of the Commercial Motor Vehicle Safety Enhancement Act of 2012, the Secretary of Transportation shall prescribe regulationsโโจ(1) requiring a commercial motor vehicle involved inโจinterstate commerce and operated by a driver subject to theโจhours of service and the record of duty status requirementsโจunder part 395 of title 49, Code of Federal Regulations, beโจequipped with an electronic logging device to improve complianceโจby an operator of a vehicle with hours of service regulationsโจprescribed by the Secretary (emphasis added);
Third, the regulation of the manner in which a motor carrier or independent driver tracks and communicates its compliance with the hours of service regulations is a matter of commercial free speech. Historically, drivers have articulated their compliance by using paper log books called record of duty status (โRODSโ).
As indicated by our poll results referenced below, many drivers, including older drivers and one-man owner operators, simply do not wish to use new technology to track and communicate evidence of their compliance with safety regulations. Motor carriers responsible for their own safety management practices and controls should have the right to exercise commercial free speech in determining, as a matter of company policy, whether their drivers are to use ELDs, paper logs, or both. One-man operators who drive independent of a carrier organization should have the right to make this choice themselves.
โHistorically, drivers have articulated their compliance by using paper log books called record of duty status (RODS),โ the letter said. โAs indicated by our poll results, many drivers, including older drivers and one-man owner-operators, simply do not wish to use new technology to track and communicate evidence of their compliance with safety regulations. Motor carriers responsible for their own safety management practices and controls should have the right to exercise commercial free speech in determining, as a matter of company policy, whether their drivers are to use ELDs, paper logs, or both. One-man operators who drive independent of a carrier organization should have the right to make this choice themselves.โ
