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Sept.5, 2016

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GOVERNMENT WATCH INTERNATIONAL | WASHINGTON | CUSTOMS | SECURITY | REGULATION 38 THE JOURNAL OF COMMERCE SEPTEMBER 5.2016 THE CONTROVERSIAL MANDATE requiring electronic logging devices in U.S. trucks by the end of 2017 will reappear before a federal court this month, with the fate of the rule itself, and the so-called capacity crunch it was expected to generate, uncertain. A group of independent truck drivers seeks to win an injunction against what they see as an unconstitutional attempt at federal overreach. If successful, it could pre- vent upward pressure on trucking rates that would have driven more cargo from roads to rails. Once-certain industry experts now say there's a chance the federal regulation will be tossed out before it's ever implemented, giving shippers some hope that the current market, already in their favor, lasts longer. Late last year, the Owner-Operator Inde- pendent Drivers Association announced it would take the Federal Motor Carrier Safety Administration to court, seeking to win an injunction against a 2015 federal regulation requiring truck drivers to use electronic rather than paper logs by Dec. 18, 2017. A hearing before the U.S. Court of Appeals for the Seventh Circuit in Chicago will be held this month. Like previous OOIDA lawsuits, the case likely would launch years of litigation involving the FMCSA and supporters of the ELD man- date, including the American Trucking Associations, the industry's primary lob- bying group. The rule could reshape the trucking and shipping business. The U.S. Department of Transportation, for example, said it believes the ELD mandate will eliminate 1,844 truck- related accidents per year, saving 26 lives annually and preventing 562 injuries. The rule also stands to force off the road those drivers and carriers that make a living by breaking the rules. The mandate is expected to reduce truck capacity in the U.S., putting upward pres- sure on truck rates. That, in turn, is expected to drive many shippers away from over- the-road options and toward intermodal shipping. Last year, industry experts and analysts were fairly certain that was destined to be the case. "As long as there's not an injunc- tion against ELD implementation or other changes in the regulatory landscape, we're going to start seeing some tightening, and that will work to intermodal's benefit," Larry Gross, a senior transportation ana - lyst at FTR Associates, told The Journal of Commerce. "But those are two pretty big assumptions. It could go the other way." OOIDA in 2011 successfully sued the FMCSA over a previous ELD rule, but an appellate court overturned the decision. "The court knocked it down before, there- fore we are confident they will do so again," Norita Taylor, a OOIDA spokeswoman, told The Journal of Commerce in August. In its previous lawsuit challenging the FMCSA's 2010 rule requiring certain fleets to install electronic onboard recorders, as ELDs were then known, OOIDA argued the devices violated privacy rights, could be used to harass drivers and wouldn't improve truck safety. The federal court decided the transpor- tation agency hadn't done enough to address concerns about driver harassment, and overturned the rule, sending it back to the FMCSA. The court didn't address the pri- vacy or cost-benefit and safety issues raised by OOIDA in its lawsuit. Congress in 2012 stepped into the fray with an order to the agency to mandate ELDS' NEXT COURT CHALLENGE The Owner-Operator Independent Drivers Association heads back to court to stop the FMCSA's controversial rule By Reynolds Hutchins

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