ELD LAWSUIT: OOIDA counters ELD data use policy filed at eleventh hour

By Jami Jones, Land Line managing editor | 9/22/2016

By the time a lawsuit reaches the stage of arguing the case before the court, in theory, both parties to the suit should have all their cards on the table. That wasn’t the situation in OOIDA’s case seeking to overturn FMCSA’s electronic log mandate.

Congress dictated in the Moving Ahead for Progress in the 21st Century, or MAP-21, highway bill signed into law in 2012, that electronic log data could be used only for enforcement of the hours-of-service regulations.

“The Secretary shall institute appropriate measures to ensure any information collected by electronic logging devices is used by enforcement personnel only for the purpose of determining compliance with hours of service requirements,” the law states.

During oral arguments before the U.S. Court of Appeals for the 7th Circuit, Judge David F. Hamilton, one of the three judges to hear the case, questioned FMCSA’s counsel, Joshua Waldman, about any policies in place that outline what exactly data collected by electronic logs could be used for.

Waldman produced a memo that he said addressed those mandatory restrictions on the use of electronic log data. However, the memo was not part of the official record and had not been filed with the court.

Judge Hamilton asked Waldman to file the document with the court for review following oral arguments. That memo was filed with the court the day following oral arguments.

OOIDA’s litigation counsel, The Cullen Law Firm, reviewed the document and submitted a petition to the court on Sept. 21 to accept a supplemental brief addressing the 49-page memo and its attachments.

The supplemental brief details what OOIDA sees as shortcomings in the document in complying with the congressional mandate to restrict use of electronic log data to HOS compliance enforcement only.

First, the brief states, the memo is addressed to “All FMCSA staff.” The memo also “has not been published in the Federal Register or over the internet, and there is no indication that it has been provided to state ‘enforcement personnel.’”

The brief also goes on to argue that the memo does not have the “force and effect of law” and because of that fails to ensure that state law enforcement will be required to protect confidentiality and limit the use of the collected data.

OOIDA’s supplemental brief also points out to the court that the memo only provides procedures for “checking” for hours-of-service compliance and for record falsification. It does not, according to the brief, outline any policy, procedure or guidance to prohibit use of the data for anything else.

In fact, according to OOIDA’s brief, the memo goes an entirely different direction.

“The memorandum does not limit information to HOS compliance, but instead authorizes use of collected information for enforcement of the violation of any regulation,” OOIDA states in its brief.

Another wrinkle in the entire electronic log mandate, which OOIDA points out in the brief, is that FMCSA made a clear distinction what the electronic logs were required to do. If fleets chose to integrate the logging capabilities into a fleet management system that collected more data than the log required, that was OK.

The problem with that extra data, OOIDA points out in the supplemental brief, is that roadside enforcement is not prohibited from using that extra data collected by the integrated fleet management system.

In fact, OOIDA’s brief argues: “FMCSA expressly allows information collected by an integrated ELD/FMS (fleet management system) device for any purpose ‘consistent with the Agency’s longstanding enforcement capabilities.’”

The court will now take the memo and subsequent filing by OOIDA into consideration along with all previously filed and oral arguments. In response to the Sept. 21 filing by OOIDA addressing the FMCSA memo, FMCSA’s counsel has the option to petition the court to file a brief addressing any arguments or issues raised by OOIDA in its subsequent brief. That filing is due by Oct. 3.

While there is no set schedule for a decision in the case, there has been some speculation by industry insiders that a decision could by handed down by the court sometime around the end of the year.

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