Safety enforcers are questioning the validity of the legal petition that the OOIDA recently filed to the FMCSA.
The petition challenges both the capability of certain states to enforce the ELD mandate and the compliance status of these states with a federal government funding program.
According to the OOIDA’s petition, a total of 26 states have yet to incorporate the final ruling of the ELD mandate into their state laws. Additionally, the OOIDA also claims that 20 out of these 26 states haven’t even adopted any federal safety regulations that were made effective by the FMCSA in the last three years.
The dates of when these states have last adopted any of these federal safety regulations into their state laws are stipulated in the petition that OOIDA passed to the FMCSA.
Several safety enforcers, however, refuted the allegations that were raised by OOIDA’s petition. They claimed that the regulatory codes of their states have already adopted the latest federal safety regulations and have already integrated the ELD mandate’s final ruling as well.
The FMCSA recently made a statement in response to OOIDA’s petition, saying that they are currently drafting a formal and legal response to the appeal.
Upon the official release of OOIDA’s petition, different reactions were garnered by safety officers around the states.
These comments mostly pointed against the claims that were raised by OOIDA’s petition.
These are the responses of some of the state officials.
While the state has adopted most of the current federal regulations, Captain Christian Turner does agree that there are still some pending regulations that have not yet been incorporated into state laws.
According to Turner, these regulations “are due to be updated through the Attorney General’s office before the end of the year.”
Also, Turner added that “while some of [OOIDA’s] petition is correct, quite a bit of it is not for several states.”
According to Sergeant Joseph Austin, Michigan adopts most of the contents of the 49 CFR into state laws each year.
The latest federal regulation adoption happened on January 4 and also included the final ruling of the ELD mandate in it as well.
This date is contrary to OOIDA’s claim of Michigan last adopting federal regulations in 2012.
Chief Dennis Hult claims that the most recent federal regulation adoption for the state of Montana happened in June 2017, as can be seen from the state’s official website.
This regulatory adoption also included the ELD mandate’s final ruling.
The latest adoption date that Hult claims Montana has contradicts the date that was written down in OOIDA’s petition — which is the year 2013.
Also, according to an FMCSA official, states now have laws that automatically incorporate and adopt federal regulations into their state laws. Because of this automatic adoption process, the date of the latest regulatory adoption update is usually not reflected in their state’s legal code.
According to Lieutenant Thomas Fitzgerald, the state laws of Massachusetts is fully up-to-date with federal regulations because of it being an “automatic adoption state”.
OOIDA, on the other hand, claimed that the last regulatory update that took place in Massachusetts was still during 1997.
As mentioned by Captain Brian Ausloos, Wisconsin has been practicing the automatic adoption of federal regulations for CMVs (Commercial Motor Vehicles) ever since the year 2009.
This year is also the same year that OOIDA believes the state to have had its last formal regulatory adoption.
Major Jay Thompson from the Arkansas Highway Police said:
“[In] Arkansas, the federal regulations are adopted by reference [to the federal code] and therefore are enforced accordingly.”
OOIDA claims that the state’s last regulatory adoption date happened in the year 1997.
Captain Mike Dahl from Washington State Patrol said that the state had made the decision several years ago to grant agency heads the authority of making any federal regulatory adoptions to state laws.
Although the practice of adopting FMCSA’s regulations by reference contains no legislative process involved, Dahl says:
“We’re confident that our rules are adopted [based on accepted methodology]. We have no issue that we’re doing it right.”
In order to remove any confusion regarding the validity date of their regulations, the state plans on updating their legal code’s language to change or remove any references that point to the year 2013 as being the validity date of their laws.
Washington also plans to clarify in their legal code that all recent federal regulations that were automatically adopted by the state are being enforced as of the current year. However, the OOIDA argues in their petition that the process that states are using in automatically adopting federal regulations is legally invalid.
According to the petition filed, OOIDA wrote that any “attempt to adopt future amendments [is] an unconstitutional delegation of lawmaking power” to outside entities by involved states.
OOIDA claims that states which automatically adopt federal regulations are bypassing their own legislative system and are giving power to other agencies (e.g., the FMCSA) to determine state laws.
In its own words, OOIDA said:
“[States that] attempt to incorporate the FMCSRs in existence at the time of incorporation and as they may be amended in the future [are allowing] out-of-state entities to write state law. [In] many states, this violates constitutional or other nondelegation principles.”
Captain Ronald Maxey from Virginia State Police, however, refutes OOIDA’s argument by saying that the association did not account for the yearly review process that some states tend to conduct when using automatic federal regulation adoption processes.
“On the effective date of the federal regulation, Virginia conducts a review of FMCSRs annually — the last of which was completed on July 28, 2017.”
Also, Maxey explained that the date on which OOIDA indicated in their petition referred to the last date of revision that Virginia made to their “Virginia Register” on changes to intrastate-only regulations.
This set of regulations that was referred by OOIDA is different from the federal regulations that Virginia adopted into their state laws.
According to Maxey:
“My office was not contacted by OOIDA regarding this matter, so unfortunately OOIDA did not have an understanding of Virginia’s incorporation or review process; therefore, the petition is not accurate as it relates to Virginia.”
The OOIDA’s petition is urging the FMCSA to take drastic measures against states whom the association claims to have laws which do not reflect the latest federal regulations currently in effect.
OOIDA believes that before any state could enforce federal regulations within their jurisdiction, these regulations must first be incorporated into their state laws.
The association stresses that an outdated legal code could be problematic for state officials due to the lack of authority and basis to enforce these regulations.
As what OOIDA announced in their recent press release:
“OOIDA contends that when FMCSA amends its regulations, the states must incorporate those amendments into state law before they can enforce them.”
Also, another complaint that was included in the petition was that the 20 states that OOIDA listed are receiving funds from the MCSAP (Motor Carrier Safety Assistance Program) despite not being compliant to its requirements.
With the MCSAP, qualified states are given financial grants that are meant to be used in reducing the number and severity of road crashes involving CMVs. For the previous 2016 fiscal year, the MCSAP provided these 20 states with a collective amount of over $65 million worth of grant.
For these states to be qualified to receive this grant, however, the 49 CFR 350.335 requires them to first adopt any federal regulatory updates into their corresponding state laws within a time span of three years after the regulation’s effective date.
Because of this, OOIDA is petitioning the FMCSA to withhold the MCSAP funding for these 20 states until they become compliant with the funding requirements.
You can click this link to read a copy of the petition that was sent by the OOIDA to the FMCSA.
Aside from the current petition, the OOIDA has already made several previous attempts to either postpone or revoke the ELD mandate. The association strongly believes that several enforcement agencies throughout the nation are not yet ready for the wide-scale implementation of the final ELD rule.
One incident that coincides with their stand against the mandate is a letter that was recently sent by the CVSA to the FMCSA.
In this letter, the CVSA wrote that they will be delaying the out-of-service criteria enforcement for the ELD rule until April 1, 2018, to give fleets a little bit more time to fully prepare for the mandate.
This delay is set to be implemented in spite of the mandate supposedly going into full effect by December 18, 2017.
Due to these kinds of reasons, Todd Spencer — the executive vice president of OOIDA — announced in a recent press release the intent of his association in filing the petition.
According to Spencer:
“These are just examples of the monumental reasons this mandate is not ready for prime time. Too many states are not ready to roll out the mandate and can’t possibly be ready by the Dec. 18 deadline.”
In the press release, Spencer spoke about the lack of preparations that safety enforcers and states are experiencing nationwide:
“We know that state enforcement officers lack the training and equipment to operate in an ELD environment. This lack of preparedness should come as no surprise given that half the states have not even adopted FMCSA’s ill-conceived ELD rule into state law.”
There, he also talked about the possibility of citations being baseless due to some states enforcing federal regulations without first incorporating them into state laws:
“We are concerned about numerous states issuing citations for the violation of non-existent state laws. That means that new regulations and amendments to old regulations promulgated by FMCSA since the last incorporation date for these states are not part of state law.”
Because of this, Spencer concluded that the enforcement of federal regulations should only be done once these states are adequately prepared for the implementation of such:
“No state law enforcement should be implementing the ELD mandate until they actually adopt the mandate into state law and train and equip their enforcement personnel to enforce it properly.”
Despite the arguments presented by the OOIDA in their petition, the ELD mandate will still most likely be implemented by the FMCSA on schedule.
Court actions and legal reviews tend to take time, and the FMCSA has not yet formally responded to the OOIDA’s petition.
Based on the pace of these legal actions, any approved changes that are aimed at postponing the mandate (if any) will most likely take place after its compliance date has passed.
With only three months left before the ELD implementation deadline, it pays to equip your fleets with the right tools and stay compliant with the mandate no matter the petition’s outcome.
If your fleets are still using paper logs to comply with Hours of Service regulations, allow us to help you with ELD mandate compliance.
Additionally, you can also use our free ROI calculator to see how much your company can save by using ELDs.
As always, stay tuned for more trucking industry news, only here at ELD Mandate Facts.