December 05, 2017
James Lamb, the president of the Small Business in Transportation Coalition (“SBTC,”) a 501(C)(6) non-profit trucking industry trade group, announced on Monday that truckers across America in more than 40 locations including various truck stops held a one day trucking and mainstream media blitz to garner attention to their opposition to the mandatory implementation of Electronic Logging Devices (“ELDs”). Lamb’s SBTC participated in the event by issuing a statement to the media about the group’s efforts to postpone the upcoming December 18th ELD implementation pending the group’s petition to the Department of Transportation. Lamb has formally asked the Secretary to “stay” ELD implementation.
On November 20, 2017, Lamb (@SBTCInc) wrote a letter (published in its entirety on the SBTC website at http://smalltransportation.org/files/125976669.pdf) to Secretary of Transportation Elaine Chao (@SecElaineChao) on behalf of the smallest players in the industry, advising the SBTC felt the Department of Transportation’s sub agency –Federal Motor Carrier Safety Administration (“FMCSA”)– did not adequately assess the adverse economic impact of the new ELD rule on the smallest of businesses in the industry.
“…a reading of the FMCSA analysis suggests that FMCSA has essentially ignored and disregarded the impact on the smallest of industry players in an overbroad assessment that places one-man interstate owner-operators into the same category as other “small businesses” within the trucking industry. For instance, in referencing North American Industry Classification System (“NAICS”) codes 484110 through 484230 (Freight Trucking), the FMCSA makes no distinction whatsoever between businesses with annual revenues of $27.5 million and mere one-man operators of commercial motor vehicles,” Lamb said.
His letter also copies in the Small Business Administration and seeks they contact the Secretary and advocate on behalf of small business interests.
Lamb suggests that one man owner-operators should be afforded special consideration with respect to the specific economic and safety impacts on their operations as they do not enjoy the same “economies of scale” that the larger players enjoy:
“To a one man owner-operator, even a $27 million operation, which is technically classified as a “small business,” is distinctly different from his or her business. Forget about the largest carriers with their multi-billion dollar operations,” Lamb said in a statement during the ELD media blitz yesterday.
Lamb echoes that point in his letter to the Secretary stating: “…the regulation of one-man operators in the same manner as drivers of other “small business” carriers –not to mention large “Fortune 500” carriers– is unreasonable and does not conform to the National Transportation policy codified by Congress at 49 U.S. Code § 13101 as matters of fair competition and destructive competitive practices.”
As a solution, Lamb proposes to the Secretary that she might grant his group’s “exemption application” to make the drivers of motor carriers with less than 50 employees exempt from the ELD rule altogether. He points to numerous other such exemptions for businesses with very few employees grounded in Federal Law.
Lamb points the Secretary to Section 13541(a) of title 49 of the United States Code (49 U.S.C. 13541) which requires her to exempt a person, CLASS OF PERSONS, or a transaction or service from the application, in whole or in part, of a provision of 49 U.S.C., Subtitle IV, Part B (Chapters 131-149), or to use the exemption authority to modify the application of a provision of 49 U.S.C. Chapters 131-149 as it applies to such person, CLASS, transaction, or service when she finds that the application of the provision:
“We contend the mandating of the form and manner of a driver’s communication of his compliance is not necessary to carry out the transportation policy of 49 U.S.C. 13101…ELDS are not needed to protect shippers from the abuse of market power… Restriction of commercial free speech through regulations that are more extensive than necessary is not in simply not in the public interest. The Secretary therefore has the lawful authority –and obligation– to modify the MAP-21 requirement and exempt a “class of persons,” in this instance– the smallest of the industry’s stakeholders, from the ELD mandate, Lamb said.
Lamb also advised Chao in his letter that the SBTC generally takes issue with the FMCSA’s interpretation of a 2012 Congressional directive (Federal Law known as the Moving Ahead for Progress in the 21st Century Act), which bans traditional paper logs in favor of a computerized alternative and mandates its use is not grounded in the law and believes FMCSA’s rulemaking violates all carriers’ and drivers’ First Amendment protected commercial free speech:
“…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 (“RODS”). 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,” Lamb said.
According to Lamb’s letter, regulations that seek to restrict commercial free speech are governed by American case law. Lamb points to one such precedent, Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), in which the United States Supreme Court laid out a four-part test for determining when restrictions on commercial speech violated the First Amendment of the United States Constitution. Lamb points to how the Court instituted a four-step analysis for commercial speech:
1. Is the expression protected by the First Amendment? For speech to come within that provision, it must concern lawful activity and not be misleading.
2. Is the asserted governmental interest substantial?
3. Does the regulation directly advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest (that is, there must be a “reasonable fit” between the government’s ends and the means for achieving those ends)?
“Like in Central Hudson, here… the USDOT –through its agency FMCSA– is completely banning the industry from communicating its compliance through the use of paper logs without a clear Congressional directive to do so. Although electronic logging is an alternate mechanism of tracking and communicating a driver’s compliance with hours of service regulations available to him, mandating same as the only way to communicate his compliance arbitrarily and capriciously restricts a driver’s choice on how to communicate his compliance and infringes upon his right to commercial free speech. MAP-21 does not call for this level of infringement upon free speech and even if it did, it would be actionable as a matter of Constitutional law… Communicating one’s compliance with hours of service regulations is a matter of engaging in protected free speech in furtherance of lawful transportation business activity in interstate commerce,” Lamb asserts.
Lamb indicated that an October 2017 ELD trucker protest video appears on the SBTC Facebook page, which depicts truckers’ struggle with the new ELD mandate rule being handed down by the Department of Transportation that can be viewed at: https://www.facebook.com/polska.jazda/videos/2152267351466081/.
Lamb credited trucker activists Tony Justice, Lori Franklin, Joe Denney, Brandon Greer, Robert Budzik, Mike Gunney Faram, Scott Jordan, John Allen, Mintu Pandher, Matthew Kane, Doug Hasner, Charles Claburn, Lisa N. Lee Schmitt, Arline Bennett, and Art Czajkowski for organizing the ELD protests and promoting the industry’s fight against ELDs.