While numerous attempts to halt or delay the rollout of the ELD rule have been made in federal courts and on Capitol Hill, this request marks the first time a state official – and in this case, a very high-ranking official in a top trucking state – has advocated taking such action.
Attorney General Curtis T. Hill Jr. (R) stated in a Nov. 29 letter to FMCSA Chief Counsel Randi Hutchison that a delay was needed because to “immediately begin requiring drivers to use ELDs exclusively (except, as the new rule allows, for those with on-board recording devices installed before Dec. 18, 2017) would place undue burdens on drivers and operators.”
“With manufacturers of ELDs currently responsible for ‘self-certifying’ their compliance with government standards – with no effective procedures seemingly yet developed to provide oversight over such ‘self-certifying’ – drivers and operators are left without any way of ascertaining which brands and models of devices ultimately will pass muster,” wrote Hill. “They must ‘fly blindly’ into investing in products they are being required to purchase.”
He then argued in detail that several crucial issues may result from the device certification and registration protocol now in place, including but not limited to the following:
- “Certain steps outlined in the Plan and Procedures Manual are ‘not required to be completed’ because they cannot be completed. The actual data transfer has not and cannot be trialed with a safety official – and the Web Services Portal as of this writing is not fully operational. Manufacturers are left with a statement that data transfer via email, USB and Bluetooth can still be tested in the manufacturers’ testing environments and if the required output file can be generated per the technical specifications in that manner and environment that it ‘will work in FMCSA Web Services.’
- “Further, manufacturers are to rely on the most recent version of the manual published to the website; yet the most recent version, Version 2.0, remains incomplete, including but not limited to, suggested testing schedules and quality assurance programs. FMCSA’s website continues to maintain that the email and web services testing environments are ‘coming soon.’ This is particularly concerning considering the number of registered devices on the list currently who have yet to utilize these tools and the pressing compliance date of Dec. 18, 2017.”
- “Even if a particular ELD appears on the list of registered ELDs, it is still possible for the device to not ultimately be compliant or conform to the required technical specifications of the ELD Rule – which could result in significant harm to the consumer as the device would likely already be deployed at the time non-compliance would be discovered and countless resources wasted.”
- “While a driver will be permitted to use paper logs temporarily if a device is found to be non-compliant, it has been reported that the motor carrier will only have eight (8) days from notification to replace the noncompliant device with a compliant one. If the problem is widespread throughout a large fleet, the FMCSA has suggested it would be ‘flexible’ but has provided no further guidance. This could have a detrimental effect on smaller carrier companies should the device they select run afoul of guidelines. In fact, the costs associated with such an occurrence have the potential to put some carriers out of business and negatively impact competition and interstate commerce.”
- “Compliance with the ELD rule will only be determined by individual enforcement personnel’s interpretation of the data after it has successfully transferred through FMCSA’s systems. It remains unclear whether any guidelines or regulations have been developed and/or implemented for said interpretation and whether or not a particular device will even be able to transmit the data successfully. This will inevitably lead to a great deal of ambiguity and differing interpretations. FMCSA has stated that some but not all enforcement agencies will be utilizing Electronic Record of Duty Status Systems (ERODS) to determine compliance with federal regulations. FMCSA is ultimately not providing the manufacturers with access to that platform to test their devices to date. It has been reported in the industry that some larger manufacturers believe the only way to truly test compliance would be through use of ERODS or through the use of further technical resources and information – none of which are yet available or promised.”
- “The technical specifications as laid out in the ELD final rule are extremely complex and can be interpreted differently by individual manufacturers, who are the entities certifying compliance, yet the testing procedures laid out by FMCSA are not binding on said entities. Further, there is no set manner of testing that must be conducted, much less passed, before deployment of a particular device to consumers.”
- “Consumers may assume that if a device is certified and registered that it bears the approval of FMCSA and is in fact compliant with the ELD Rule. They may purchase a particular device on that premise. However, there is no guarantee or way to verify that the device is actually compliant with the said technical specifications until said compliance is called into question.”
In closing, Hill requested that FMCSA hold off on implementing the ELD rule until the agency can “develop guidelines that offer greater clarity to the individuals you expect to follow them.”
In a Nov. 30 press release, the Owner-Operator Independent Drivers Association said it applauds the request made by the Indiana attorney general. “This request from a state agency is a prime example how states are beginning to understand the reality of this broadly written mandate and its negative consequences,” said Todd Spencer, executive vice president of OOIDA. “Law enforcement is simply not ready for this.
“Most small-business truckers can ill afford to make these purchases only to learn later that their ELD is non-compliant,” he added. “Yet they are required to do so or risk violation.”
In confirming to HDT that the agency has received Attorney General Hill’s letter and is reviewing its contents, FMCSA Director of External Affairs Sharon Worthy noted that “FMCSA is operating under a statutorily designated deadline for ELD implementation.”
In other words, don’t expect the request from Indiana to trigger any stay on the roll out of the mandate.
By David Cullen, with our partners at Heavy Duty Trucking
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