Congress takes small steps toward ELD delay

With the U.S. Supreme Court in June ending the battle over electronic logging devices (ELDs) in court, opponents apparently have now shifted their strategy toward forcing a delay in implementation rather than holding out for a full reversal. Two actions in the U.S. House of Representatives set the stage for a potential delay in the mandate, which is to take effect December 18.

On July 17, the House Appropriations Committee approved its version of the fiscal 2018 Department of Transportation (DOT) funding bill and released a report to accompany the bill. Committee reports explain the actions taken in the formal legislative text and provide further non-binding guidance as to what the committee expects or hopes federal agencies to do during the coming fiscal year.

The actual bill includes a provision to block the Federal Motor Carrier Safety Administration (FMCSA) from requiring carriers that transport livestock or insects to install ELDs, but the bill itself does not block or delay implementation for other drivers or carriers.

However, the committee report includes language that calls for a report on whether a full or targeted delay of the ELD mandate would be appropriate. The report language says 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."

The committee goes on to say that it is "concerned by reports of serious complications associated with implementation." It referenced "many significant technological concerns," including certification of devices, connectivity problems in remote locations, cyber vulnerabilities, and the ability of law enforcement to access data." The panel wants a report within 60 days of the bill's enactment concerning whether there should be a delay. The committee also directed FMCSA to review ELD manufacturers' technology platforms "to confirm that devices not only meet standards and specifications necessary for all affected industries and fleet sizes to be compliant but also provide a user interface that is reasonably easy to navigate."

In a related move, U.S. Rep. Brian Babin (R-Texas), a member of the House Transportation & Infrastructure who is in his second term in Congress, introduced legislation (H.R. 3282) on July 18 that would delay the ELD mandate for two years.

A long way to go

While the latest actions are encouraging for ELD opponents, there are some serious hurdles to overcome. For starters, except for the bill language on livestock and insect haulers, the language in the committee report is not binding on FMCSA. Lawmakers often give lobbyists report language when they are unwilling to give them legislative provisions that have teeth.

And while FMCSA isn't likely to completely ignore the committee, the report the panel seeks likely wouldn't be due until after the December 18 implementation date. Even though the fiscal year ends September 30, Congress rarely completes actions on appropriations bills that early.

The Senate typically is far less accommodating of the trucking industry, so actions like those taken by the House Appropriations Committee are less likely in the Senate version of the DOT funding bill. It's even possible that the Senate report could contradict the House report and call for ELD implementation as scheduled. The Senate panel hasn't acted on a bill yet, and, in fact, didn't even hold a hearing on fiscal 2018 DOT funding until July 13.

Meanwhile, H.R. 3282 stands very little chance of being enacted by Congress as a stand-alone bill. While there is significant political support for ELD opponents, ELDs are supported by some powerful interests as well -- perhaps most significantly the American Trucking Associations and individual major trucking companies. Following the House appropriations action, ATA sent a letter to Deputy Administrator Daphne Jefferson responding to all the points made by ELD opponents and affirming its support for the mandate. Battles between major interest groups usually end in with no change in the law. However, by shifting the strategy from killing ELDs to delaying implementation, ELD opponents may have improved their chances of success at least modestly.

ELD concerns not necessarily enough

Meanwhile, in a subcommittee hearing of the Transportation & Infrastructure Committee on July 18, Jefferson assured lawmakers that the agency would be ready for ELD implementation, although she did express a willingness to consider another viewpoint.

One of FMCSA's aces in the hole on the ELD issue is that carriers do not necessarily have to use devices that meet ELD standards as of December 18. Carriers can use devices that meet the automatic onboard recording device (AOBRD) standard as long as they install the devices by December 18. Those devices would be good for two years, and many AOBRDs on the market could be upgraded to ELD standards without a change in hardware. However, any trucks added to a carrier's fleet after December 18 would have to use devices compliant with the ELD standard.

In the event data transfer and similar issues continue to plague ELDs, FMCSA has another fallback. Under the ELD standard, all devices must be able to either print or display drivers' records of duty status (RODS) in addition to allowing for a data transfer either directly to the law enforcement officer or through a web server accessed by a carrier's ELD vendor. For this reason, even if data transfer were to be a problem as of December 18, FMCSA could still proceed with implementation and advise carriers to use the print/display option until further notice.