A delay in rolling out state regulations allowing police to enforce electronic logging devices (ELDs) in New York could continue through the first quarter due to a class-action lawsuit filed on behalf of independent owner-operators.
The lawsuit, filed by the Owner-Operator Independent Drivers Association (OOIDA) in January 2018, alleged that the New York State Police (NYSP) were illegally stopping truck drivers for ELD violations and reporting those violations to the Federal Motor Carrier Safety Administration (FMCSA) before the state had reviewed and incorporated the federal rule into state regulations.
By doing so, the state was also illegally using federal grant money provided by FMCSA to states that agree to incorporate and enforce the federal regulations, OOIDA claimed.
A decision released on December 31 by the Supreme Court of the State of New York dismissed the case, finding that the state had been refraining from enforcing the mandate. The court acknowledged, however, that there was some evidence that ELD violations had been reported to federal officials, but it was before the NYSP changed its ELD inspection policy in March 2018, which itself was a result of the OOIDA lawsuit.
But the lawsuit had a side effect: by challenging New York’s ELD policy through the state’s abbreviated rulemaking procedure as the state attempted to incorporate the federal mandate by April 1 (when full enforcement of the federal ELD mandate went into effect), OOIDA forced the state to abandon the shortcut procedure, which meant the state would have to move instead to a full-blown rulemaking, according to a source familiar with the issue. And that could cause a major delay in enforcement of the rule.
A source within the New York State Department of Transportation confirmed that ELD violations were currently not being enforced. However, an official spokesperson at the department did not respond for comment on the status of the alternate rulemaking – which may not have even begun.
“The plaintiffs [OOIDA] don’t know what the plans are for incorporation of the federal ELD into state law,” Paul Cullen, OOIDA’s outside counsel, told FreightWaves. “We know they’re not currently being enforced, but we don’t know when the state plans to take the further steps necessary to do that.”
New York’s issue with ELD enforcement is lingering evidence of confusion in the industry over how ELDs will be enforced, to whom the rules apply, and when – nine months after hard enforcement went into effect nationally on April 1, 2018.
The state’s experience in promulgating the ELD regulation statewide also highlights concerns that have been raised by FMCSA when there is disconnect between state and federal regulations generally, as it noted in its recent decision on California’s meal and rest break rules.
In its lawsuit, OOIDA cited several concerns it had with New York’s ELD enforcement policy and how its alleged reporting procedures could end up harming independent drivers, including issues with respect to pre-employment screening, safety scores, the prospect of additional monitoring by regulators, loss of customers, and difficulties obtaining liability insurance.
Data compiled through FreightWaves’ SONAR reveals that safety violations reported by New York State Police to FMCSA took a precipitous drop in mid-December (see chart, above), just as the initial ELD requirement went into “soft” enforcement on December 18, 2017. The data is not specific to ELD violations, however, so it is difficult to conclude whether this shows OOIDA’s reporting concerns to be unwarranted.