Introduction follows inclusion of language in funding bill directing FMCSA to review the value of a delay
Editor's Note: This story has been updated to reflect the introduction of a bill to delay the ELD implementation date
Just when it appeared, after years of contentious debate, that the electronic logging device (ELD) rule was in the final stages to launch, Congress has given opponents to the rule hope.
Language inserted Monday night into an appropriation bill for the Departments of Transportation, and Housing and Urban Development, would give FMCSA 60 days to determine whether any delay or changes to the ELD rule, set to go into full effect on Dec. 18, 2017, are warranted.
The bill passed out of committee and has been sent to the full House for consideration. That, though, was quickly followed by a bill from U.S. Rep. Brian Babin (R-TX) that would delay the ELD compliance deadline until December 2019 – a two-year delay. Babin's bill is H.R. 3282, the ELD Extension Act of 2017.
“We thank Rep. Babin for realizing the serious problems associated with implementation that can only be avoided by putting off the mandate,” said Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association (OOIDA).
Babin’s bill has been referred to committee for evaluation.
On Monday night, the committee that wrote the initial language cited “serious complications associated with implementation.”
“Many significant technological concerns remain unresolved, including certification of devices, connectivity problems in remote locations, cyber vulnerabilities, and the ability of law enforcement to access data. Further, there are several industries such as carriers of livestock, insects, and other agricultural products that operate under a complex array of HOS exemptions due to the nature of their business and concerns remain as to whether the technology can process these exemptions,” the bill reads. “As a consequence, many carriers have delayed purchase and installation of ELDs until they can be certain the technology will be compliant.”
The bill goes on to note the “heavy burden of this mandate,” particularly on smaller carriers who have been among the holdouts in adopting ELD devices. The committee “directs the department to analyze whether a full or targeted delay in ELD implementation and enforcement would be appropriate and, if so, what options DOT has within its statutory authority to provide temporary regulatory relief until all ELD implementation challenges can be resolved.”
News of the developments this week pleased OOIDA, which had taken its legal challenges all the way to the Supreme Court, which declined to hear the case last month.
“Clearly, members of Congress have heard concerns about the mandate from their constituents,” Spencer said in a statement emailed to FreightWaves. “The agency has failed to answer important questions from Congress and industry stakeholders about this mandate. This includes issues related to enforcement, connectivity, data transfers, cybersecurity vulnerabilities, and many other legitimate real-world concerns. The agency refuses to certify any ELD as compliant with the rule, thus leaving consumers with no idea if a device they purchase is indeed compliant.
The ELD rule requires all providers to “self-certify” their devices. That has been a source of pain for many since the initial rule offered no real direction as to how this will be enforced if a driver is found with a non-compliant device the provider claimed was certified. FMCSA took a step towards solving that earlier this week with the introduction of an online tool that allows provides to input ELD information to test compliance.
John Seidl, a transportation consultant with Integrated Risk Solutions, told Heavy Duty Trucking magazine that carriers should ask providers for confirmation of compliance.
“When selecting a device, motor carriers should request a data file now from their ELD supplier and do their own test [on FMCSA’s online tester] to ensure ELD compliance,” he said. “It’s a great way to verify if a vendor that has already self-certified has a compliant data file to transfer, per the ELD rule. If the data file does not work, do you really have an ELD?”
Whether the language in the bill is enough to disrupt a process that was finally on a fast track following the June Supreme Court decisions is not known since it does not specifically direct FMCSA to delay the rule. But it is adding new uncertainty to the process, particularly for truckers and carriers that have not yet implemented ELDs.
“Small and independent commercial freight carriers are the backbone of the trucking industry and several rulemakings advanced under the previous administration have placed an unusually heavy burden on this critical segment of the trucking industry,” the bill reads. “While the committee acknowledges the importance of ensuring the safety of truckers and the rest of the driving public, new regulations must be implemented and enforced in a way that is mindful of the thousands of small businesses that bear the cost of compliance.
“While large carriers already deploy similar technologies for fleet management, smaller carriers will disproportionately bear new costs associated with the mandate and with no compensating benefit to their bottom line,” the bill adds.
The uncertainty could also impact rates.
ACT Research issued two comments on its social media accounts, noting on Facebook that “short term it may provide procrastinators a reason – or an excuse - to postpone an ELD commitment. But its only delaying the inevitable – ELDs will be an effective standard, even without regulation, before long.”
If ELDs regs are delayed, capacity relief will depend solely on freight growth, restraining freight rates well into 2018.— ACT Research (@actresearch) July 18, 2017
On Twitter, ACT took addressed capacity and rates. “If ELDs regs are delayed, capacity relief will depend solely on freight growth, restraining freight rates well into 2018,” it tweeted.
The American Trucking Associations (ATA), the industry’s largest trade group, expressed its disappointment with the decision to include the language.
“ATA is disappointed that this misguided provision was included in this version of the FY 2018 T-HUD appropriations bill,” Bill Sullivan, executive vice president of advocacy, said in a statement. “It would take a step to potentially weaken to the electronic logging device mandate due to go into effect this year. While we believe it is important for livestock haulers to have relief from certain parts of the hours-of-service rules, those rules don’t change whatsoever whether logged on paper or electronically and have nothing to do with the use of an ELD. This is a nakedly transparent effort by opponents of ELDs to chip away at a rule that will ensure compliance with hours-of-service and improve safety.”
The livestock and agricultural segments of the industry are extremely concerned with the implementation of ELDs, fearing they could cause significant travel delays and even put livestock at risk during transit.
In a separate provision of the overall bill, the committee has directed FMCSA to consider the circumstances for carriers transporting livestock and other “agricultural commodities.”
“Although drivers transporting ‘’agricultural commodities,’’ including livestock, are exempt from the HOS regulations while operating within 150 air-miles of the source of such commodities, livestock haulers sometimes make deliveries well beyond the exempt zone,” the bill reads. “On these trips, they may exceed the 11- and 14-hour limits, even though their HOS ‘’clock’’ does not start until they go beyond the 150 air-mile radius. The committee directs FMCSA to balance the welfare of livestock and the risks of driver fatigue on trips beyond the exempt zone and to pay close attention to the special circumstances of agricultural transporters. FMCSA shall continue using its regulatory tools to grant relief that appropriately reconciles highway safety with the unique needs of these carriers and their living cargo.”
For its part, ATA believes the ELD language will eventually be stripped from the bill as it progresses through Congress.
“We will work to ensure members are educated about the difference between the existing hours-of-service rules and the basics of logging, whether electronically or on paper,” Sullivan said. “As this appropriations bill moves to the House floor and through the Senate, we believe that members in the Senate or in conference will not support this language becoming law. ATA is committed to helping FMCSA as it moves toward meeting the December implementation deadline for this critical safety rule.”