CCJ

June 2017

Fleet Management News & Business Info | Commercial Carrier Journal

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LEADING NEWS, TRUCKING MARKET CONDITIONS AND INDUSTRY ANALYSIS 7 U.S. reps back carriers' request to hasten drug testing change S even members of the U.S. House of Representatives sent a letter in late April to the Federal Motor Carrier Safety Administration expressing their support for allowing carriers to begin drug-testing drivers exclusively via hair sample — but only after the U.S. Department of Health and Human Services pro - duces guidelines for such tests. A coalition of carriers petitioned FMCSA late last year, asking the agency to allow them to begin drug testing drivers via hair sample, in lieu of a urine sample, rather than waiting on HHS to develop guidelines for hair sample tests, as is specified by the 2015 FAST Act. The April 25 letter from members of Congress asks FMCSA to allow the carriers to skip urine tests in favor of hair sample tests "as soon as HHS issues its guidelines and before FMCSA subsequently completes its rulemaking process" regarding hair sample testing. The FAST Act directs FMCSA to begin accepting hair sample tests to satisfy federal drug testing require - ments for truck operators. However, the law says the agency should do so only after HHS publishes guidelines for such testing. The petitioning car- riers argue HHS missed a December 2016 statutory deadline set by Congress to publish hair sample test- ing guidelines, thereby roadblocking carriers that want to perform only hair sample tests. – James Jaillet DOT not against OOIDA request for Supreme Court to hear ELD case T he U.S. Department of Transportation has declined to file a brief opposing the Owner- Operator Independent Drivers Association's request for the U.S. Supreme Court to hear its lawsuit against the federal government's electronic logging device mandate. Paul Cullen Sr., the attorney representing OOIDA and truckers Richard Pingel and Mark Elrod in the ELD challenge, said it's not uncommon for the government to decline to file in such court cases. However, Cullen said the Supreme Court could ask DOT and the Federal Motor Carrier Safety Administration to file an opposition brief before deciding whether or not to hear the case. OOIDA filed a writ of certiorari in April asking the nation's high court to hear the case and, ultimately, strike down the mandate. The Supreme Court could decide as early as June whether to take up the case, Cullen said, but if the justices decide to ask DOT to file comments, it could delay the court's decision to hear OOIDA's appeal. The Supreme Court receives hundreds of petitions each year but usually only hears a few dozen cases. The 7th Circuit Court of Appeals in October decided against OOIDA in the case, rul- ing instead to uphold the mandate in full and retain its Dec. 18, 2017 compliance date. OOIDA's key argument in the case is that the mandate violates truckers' Fourth Amendment rights against warrantless search and seizure — a point OOIDA Executive Vice President Todd Spencer said hints at constitutional significance beyond the ELD mandate and thus makes the case ripe for Supreme Court review. "Given the conflicting decisions made by lower courts regarding the Fourth Amendment, this case could have serious implications for millions of ordinary citizens going about their normal workdays under constant electronic surveillance without war- rants," Spencer said. OOIDA originally filed the suit in 2016, seeking to have the mandate buried. In addi- tion to arguments that it violates truckers' Fourth Amendment protections, OOIDA also says the rule does not comply with Congress' requirements for such a mandate. DOT has maintained the rule does comply with congressional requirements and that it is not a violation of truckers' rights, given that trucking is a "pervasively regulated" industry, which courts have ruled gives regulators broad authority to enact rules to protect public safety. – James Jaillet Scan the QR code with your smartphone or visit ccjdigital.com/ news/subscribe-to- newsletters to sign up for the CCJ Daily Report, a daily e-mail newslet- ter filled with news, analysis, blogs and market condition articles. The Supreme Court has not yet decided whether it will hear OOIDA's case against the ELD mandate, but it could issue a decision as early as June. commercial carrier journal | june 2017 9

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