September 20, 2017

States Object to OOIDA’s Claim Regarding ELD Mandate Enforcement

States Object to OOIDA’s Claim Regarding ELD Mandate Enforcement

State officials are raising questions about the validity of the legal petition that was recently filed by the OOIDA to the FMCSA.

OOIDA’s petition claims that 26 states have not yet adopted the ELD mandate’s final ruling into their state laws and that 20 of these states haven’t even adopted safety regulations by the FMCSA within the past three years.

The association believes that these gaps are mainly because of “the lack of preparedness of all law enforcement agencies nationwide.”

However, several state officials responded against OOIDA’s allegation in saying that their state’s regulatory code is fully up-to-date and has already incorporated the upcoming ELD mandate.

An FMCSA official also noted that most states, if not all, are using laws that automatically adopt and incorporate new federal safety regulations into their state laws.

Additionally, in a separate statement that was recently made by the FMCSA, the agency said that they are currently working on a formal and legal response to the OOIDA’s petition.

OOIDA’s Petition

The OOIDA recently petitioned to the FMCSA to take action against states that have not yet updated their current state laws to reflect the latest federal safety regulations which are currently in effect.

The association believes that enforcing these regulations without first updating their legal code can be problematic for state enforcers because of the lack of basis and authority.

According to a recent press release by OOIDA:

OOIDA contends that when FMCSA amends its regulations, the states must incorporate those amendments into state law before they can enforce them.”

Also, OOIDA claims that 20 of the 26 states who have not yet adopted the ELD mandate are not compliant with the MCSAP (Motor Carrier Safety Assistance Program). The MCSAP offers financial assistance to qualified states to aid in the reduction of the number of road crashes and accidents involving CMVs (Commercial Motor Vehicles).

One of the requirements for qualified states to receive this federal grant is to adopt any new federal regulations into their state laws within three years of their effective date, as stipulated in 49 CFR 350.335.

In the 2016 fiscal year alone, these 20 states received over $65 million worth of federal grant from the MCSAP.

OOIDA’s petition is requesting the FMCSA to withhold this funding until these 20 states would comply themselves with the qualifying conditions.

To take a look at a copy of the actual petition that OOIDA sent to the FMCSA, click this link.

Press Release

The petition that OOIDA made is in line with the association’s previous attempts to either delay or completely put a stop to the implementation of the FMCSA’s ELD mandate, which is set to take effect from December 18, 2017.

In line with this, the CVSA recently sent a letter to the FMCSA saying that they will be delaying the full enforcement of the ELD mandate (i.e., delaying the out-of-service criteria) until April 1, 2018.

This delay goes against the mandate supposedly being in full effect by December 2017.

Because of reasons such as these, Todd Spencer — OOIDA’s Executive Vice President — noted in a recent press release that states might not yet be ready for the upcoming implementation of the ELD mandate.

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.

Spencer believes that any citations that were received by drivers over the past years might be baseless because of state laws not containing the latest updates in federal regulation.

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.

He also adds that states might be ill-equipped for the upcoming mandate.

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.”

Therefore, Spencer feels that the FMCSA should only enforce the mandate once these gaps have been addressed.

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.”

Multiple Objections

After the release of the petition, however, enforcement representatives from several of the 26 states that were mentioned by OOIDA responded against their claims.

According to them, as far as they’re concerned, the regulatory code of their state already contains the latest federal safety regulations, including the ELD mandate, incorporated in it. Following are some of the comments and objections raised by state enforcers:

Montana

Chief Dennis Hult from Montana noted that the state’s most recent regulatory adoption date was in June 2017. Details of this adoption can be found on Montana’s official website. This regulatory adoption also included the final ruling of the ELD mandate.

This date is in contrary to what OOIDA claimed to be — that Montana’s most recent adoption date to regulatory updates was still 2013.

Michigan

Sergeant Joseph Austin from Michigan mentioned that a great majority of the 49 CFR is adopted by state laws annually.

In fact, he said that the most recent adoption occurred last January 4 and included the ELD mandate as well.

These details contradict OOIDA’s claim that Michigan’s last regulatory adoption took place years ago in 2012.

Kansas

Captain Christopher Turner and the Kansas Highway Patrol all agreed that most of the federal regulations being used in the state are current and up-to-date.

However, though some regulations have yet to be adopted, Turner says that these rulings “are due to be updated through the Attorney General’s office before the end of the year.”

Additionally, Turner mentioned that “while some of [OOIDA’s] petition is correct, quite a bit of it is not for several states.”

Arkansas

According to Major Jay Thompson from Arkansas Highway Police:

[In] Arkansas, the federal regulations are adopted by reference [to the federal code] and therefore are enforced accordingly.”

Arkansas is the only state that has been singled-out by OOIDA to have not yet adopted any federal regulations since the late 1990s.

Wisconsin

Captain Brian Ausloos said that the state had been automatically adopting federal rules for CMVs since 2009.

2009 is the same year that OOIDA claimed the state to have its last formal adoption.

Massachusetts

Lieutenant Thomas Fitzgerald said that Massachusetts is fully up-to-date because of his state being an “automatic adoption state.”

This is in contrary to OOIDA’s claims regarding its last federal regulation adoption being in 1997.

Washington

According to Washington State Patrol Captain Mike Dahl, his state has also made the same decision years ago to grant the authority of making federal regulatory adoptions to the agency heads.

Even though the adoption of the FMCSA’s regulations by reference does not include any legislative process, Dahl says:

We’re confident that our rules are adopted [based on accepted methodology]. We have no issue that we’re doing it right.”

Washington also plans to update the language used in their state’s legal code to either change or remove any references that point to 2013 as being the validity date of their rules.

The state wants to take away any validity questions and to make it clear that their adopted federal regulations are being enforced as of the current year.

One of the arguments that were raised by the OOIDA in their petition is that the “automatic federal regulatory adoption” system that is currently being used by some states is invalid.

In their petition, OOIDA reasons that cases of any “attempt to adopt future amendments [is] an unconstitutional delegation of lawmaking power” by states towards outside entities.

This simply means that states who are using this automatic adoption system are giving agencies (such as the FMCSA) the power to determine the laws of their state — thereby, bypassing the state’s legislative system.

Also, OOIDA continues by saying:

[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.”

However, in response to this argument, Captain Ronald Maxey of the Virginia State Police said that the OOIDA left out the state’s yearly review process when considering states that are making use of automatic regulation adoptions.

According to Maxey:

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.”

Maxey said that Virginia’s last date that the OOIDA wrote on their petition referred to the last revision that was made to the Virginia Register regarding changes on intrastate-only regulations.

These code of regulations are different from the federal regulations that were already incorporated in Virginia’s state laws.

In his own words, Maxey said:

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.”

What’s Next?

Based on where the trucking industry currently stands at the moment, the ELD mandate is not going to get delayed. The implementation date is December 18, 2017, and it’s pretty much final.

There are only three months left before the implementation of the ELD mandate would take effect. Even if the FMCSA were to respond in favor to OOIDA’s petition, any possible changes that would be made to the ELD mandate would still most likely take place after the mandate’s date of effect.

Because of this, it pays for carriers to equip their fleets with electronic logs to continue staying compliant no matter what the outcome of the petition is.

If your fleets are still using paper RODS (Records of Duty Status) in complying with HOS (Hours of Service) rules, allow us to help you with your transition in complying with the ELD mandate.

Our KeepTruckin ELDs are the highest-rated logbook apps, we are included in FMCSA’s list of registered ELDs, and our ELDs are affordable.

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