The U.S. DoT’s electronic logging device (ELD) that logs driver time is within the agency’s regulatory power. Moreover, the motor carrier business is heavily regulated to required logging of trucks and drivers to fight driver fatigue and hours in service. Owner-Operator Indep. Drivers Ass’n v. United States DOT, 2016 U.S. App. LEXIS 19558 (7th Cir. Oct. 31, 2016):
E. The Fourth Amendment
Petitioners claim that the ELD mandate is an unconstitutional “search” and “seizure.” They also argue that the rule does not fall within the Fourth Amendment’s exception for “pervasively regulated industries.” Petitioners’ arguments are unpersuasive. We need not resolve whether the ELD mandate constitutes a search or a seizure. Even if it did, it would be reasonable under the Fourth Amendment exception for pervasively regulated industries.The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” As a general rule warrantless searches are “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009), citing Katz v. United States, 389 U.S. 347, 357 (1967). This protection applies to commercial property as well as to homes. Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978).
One established exception is for administrative inspections of “pervasively regulated industries.” In these industries, reasonable expectations of privacy are diminished because an individual who “embarks upon such a business … has voluntarily chosen to subject himself to a full arsenal of governmental regulation.” Id. at 313. In such industries, Fourth Amendment protections do not disappear entirely. Administrative inspections must still be reasonable. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.'”).
To be eligible for the exception, administrative inspections in pervasively regulated industries must meet a three-part reasonableness test: (1) the regulatory scheme must be informed by a substantial government interest; (2) the warrantless inspections must be necessary [*28] to further the regulatory scheme; and (3) the inspection program must provide a constitutionally adequate substitute for a warrant. New York v. Burger, 482 U.S. 691, 702-03 (1987). Our Fourth Amendment analysis of the ELD mandate requires two steps. First, we hold that commercial trucking is a pervasively regulated industry. We then explain why the ELD mandate is a “reasonable” administrative inspection within the meaning of the Fourth Amendment.
1. Pervasively Regulated Industries
At least six other circuits have concluded that the industry is pervasively regulated for purposes of the Fourth Amendment. See United States v. Delgado, 545 F.3d 1195, 1201-02 (9th Cir. 2008) (collecting cases). We agree.
The Supreme Court first examined the pervasively regulated industry exception in Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), and returned to it most recently in City of Los Angeles v. Patel, 576 U.S. __, __, 135 S. Ct. 2443, 2454-57 (2015). The Court has recognized four industries that fall within this exception: the sale of liquor, Colonnade Catering Corp., 397 U.S. at 72; dealing in firearms, United States v. Biswell, 406 U.S. 311 (1972); mining, Donovan v. Dewey, 452 U.S. 594 (1981); and automobile junkyards, New York v. Burger, 482 U.S. 691 (1987). The Court has also held that two industries are not pervasively regulated. Barlow’s, Inc., 436 U.S. at 313-14 (rejecting argument that “all businesses involved in interstate commerce” are pervasively regulated); Patel, 576 U.S. at ___, 135 S. Ct. at 2454-56 (hotels are not pervasively regulated).
The Court has relied on three primary factors to determine if a particular industry is pervasively regulated: (1) the history of regulation in that industry; (2) the comprehensiveness of the regulations; and most recently (3) any inherent danger in the industry. We consider these factors in turn.
“History is relevant when determining whether an industry is closely regulated.” Patel, 576 U.S. at __, 135 S. Ct. at 2455; see also Barlow’s, Inc., 436 U.S. at 313 (firearms industry had “such a history of government oversight that no reasonable expectation of privacy … could exist”). Regulation of commercial trucking has deep historical roots. See supra, Part I-A. The federal government has regulated the industry since 1935, and individual states imposed regulations even earlier.
In addition to the history of general regulation, hours of service rules have been in place since 1935. As the Supreme Court noted in Patel, a history of regulation that is unrelated to the administrative inspection would carry less force. See Patel, 576 U.S. at , 135 S. Ct. at 2455 (noting that historical regulations requiring inns to provide accommodations to all paying guests were unrelated to contemporary question of warrantless inspections of hotel guest registries). Commercial trucking has a long history of not only general regulation, but also rules governing the length of time drivers may stay on the road. See Federal Motor Carrier Act of 1935, Pub. L. No. 255, § 201, 49 Stat. 543. The ELD mandate updates those rules to capture essentially the same information while reducing opportunities for falsification or human error. This factor weighs in favor of treating commercial trucking as pervasively regulated.
The Supreme Court also considers the comprehensiveness of regulation in an industry. See, e.g., Burger, 482 U.S. at 705 n.16 (“[T]he proper focus is on whether the ‘regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes.'”), quoting Dewey, 452 U.S. at 600. The comprehensiveness of trucking regulation also helps to establish that industry participants have a diminished expectation of privacy.
The commercial trucking industry is regulated extensively. Federal regulations govern a host of issues ranging from driver qualifications, procedures for driver disqualification, inspection of vehicles, vehicle parts, reporting accidents, and repair and maintenance, to transportation of hazardous materials, minimum levels of financial responsibility for motor carriers, and more. See 49 C.F.R. §§ 100-399. States also impose significant regulations on commercial motor vehicles. See, e.g., 92 Ill. Adm. Code § 340-97; 140 Ind. Admin. Code § 7-3; Wis. Adm. Code Trans. § 177. This factor also weighs in favor of considering the commercial trucking industry to be pervasively regulated.
Finally, the Supreme Court signaled in Patel that courts should consider whether the industry is inherently dangerous. See Patel, 576 U.S. at __, 135 S. Ct. at 2454 (distinguishing hotels from pervasively regulated industries because “nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare”). This factor also supports treating commercial trucking as pervasively regulated.
Congress has long recognized commercial trucking as a dangerous industry. Danger to the public has lain at the center of the hours of service rules since 1935. See, e.g., 79 Cong. Rec. 12,212 (1935) (statement of Rep. Monaghan) (coining term “truckathon” to describe the “brutal, inhumane, and dangerous practice whereby drivers of busses and trucks are compelled to work 18 to 20 hours a day, to the detriment of their own health and the danger of the public who travel the highways of our country”).
Such dangers led us to reject a Fourth Amendment challenge to random drug tests for drivers of city-owned trucks in Krieg v. Seybold, 481 F.3d 512 (7th Cir. 2007). We determined that operating “large vehicles and equipment” was a “safety-sensitive job,” id. at 518, noting that the job was “fraught with such risks of injury to others that even a momentary lapse of attention [could] have disastrous consequences.” Id., quoting Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 628 (1989). The agency’s estimate regarding the public safety benefits of ELDs indicates the dangerousness of the industry: ELDs are estimated to save 26 lives, prevent 562 injuries, and avoid 1,844 vehicles crashes per year. U.S. Dep’t Trans., Regulatory Impact Analysis, Executive Summary at vi, Table 4 (Nov. 2015). All of these factors thus weigh in favor of treating commercial trucking as a dangerous industry. For purposes of the Fourth Amendment, commercial trucking is a pervasively regulated industry.
2. Reasonableness of the ELD Mandate
The ELD mandate must still pass a three-part reasonableness test: (1) the regulatory scheme must be informed by a substantial government interest; (2) the warrantless inspections must be necessary to further the regulatory scheme; and (3) the inspection program must provide a constitutionally adequate substitute for a warrant.
We have already addressed the first element. The public safety concerns inherent in commercial trucking give the government a substantial interest.
The ELD mandate also meets the second element. ELD records and administrative inspection of them are necessary to further the government’s regulatory scheme. As noted above, falsification and errors in the traditional paper records are a widespread problem. See supra, Part I-A; 65 Fed. Reg. 25,540, 25,558 (May 2, 2000). During the agency’s listening sessions, drivers said that motor carriers sometimes pressure them to alter their paper records. Final ELD Rule, 80 Fed. Reg. at 78,320, 78,323, 78,325. Automatic recording and warrantless inspection of those records offer a reasonable method to combat this problem. ELDs should not only help discover hours of service violations but also deter such violations.
Warrantless inspection of hours of service records at roadside inspections and during audits is not new. Such reviews of the paper records have long been central to enforcement of the hours of service. See 49 C.F.R. § 395.8(k)(2) (2014). Since the search occurs when law enforcement reviews the hours of service data—not during the driver’s collection and storage of the data—ELDs do not create a search regimen substantially different from what has occurred with the paper records for generations of drivers. Making the records more reliable does not affect the reasonableness of the resulting searches. It is also a reasonable way to achieve the regulatory goals.
The ELD mandate meets the third element because the agency provides a constitutionally adequate substitute for a warrant. To meet this third requirement, the inspection must (1) advise the owner of the commercial property that the search is made pursuant to the law and has a properly defined scope, and (2) must limit the discretion of the inspecting officers. Burger, 482 U.S. at 703. The ELD mandate does both.
First, 49 C.F.R. § 395.24(d) and § 395.22(j) advise drivers and motor carriers that authorized safety officials may search ELD data pursuant to law. The rules also limit the scope of the inspections to ELD records. Id.; see also Final ELD Rule, 80 Fed. Reg. at 78,296-97. In addition, the data recorded by ELDs are intentionally limited, restricting the scope of the information available to law enforcement. Id. at 78,322-23.
Next, the discretion of inspecting officers is limited in two important ways. First, the ELD mandate authorizes officers to inspect only ELD data; it does not provide discretion to search a vehicle more broadly. Second, § 31137(e)(3) requires the agency to take steps to ensure that law enforcement uses ELDs only to enforce compliance with the hours of service rules. The agency acknowledged this during rulemaking, Final ELD Rule, 80 Fed. Reg. at 78,322, and the agency issued a memorandum limiting the use of ELD records to enforcement of the hours of service requirements. Memorandum from William A. Quade, Assoc. Adm’r for Enforcement, Federal Motor Carrier Admin. (Dec. 4, 2015). Taken together, these protections create a constitutionally adequate substitute for a warrant in the commercial trucking industry. Because the agency’s promulgation of the ELD mandate passes the three-part test of Burger, it is reasonable within the meaning of the Fourth Amendment.
Accordingly, the Federal Motor Carrier Safety Administration’s final ELD rule codified at 49 C.F.R. Pts. 385, 386, 390, and 395 is not arbitrary or capricious, nor does it violate the Fourth Amendment. The petition for review is DENIED.
