FMCSA Will Miss Deadline for ELD Rule, Ferro Says

Instead, the agency will publish a supplemental notice of proposed rulemaking for the mandate in September, and the mandate itself will likely be finalized a year later, Ferro said during a chat at the Mid-America Trucking Show late last month. The requirement will probably be implemented in 2016.

That timeframe is later than what Congress asked for in MAP-21, last year’s transportation funding law, which called for the regulation to be finalized by Oct. 1 and to take effect two years later.

FMCSA Head, Ann Ferro

“I am really driven to move this rule out. So September, for sure, you will see” a supplemental notice, Ferro said.

Ferro said the timeline for finalizing the rule in late 2014 and making it effective in late 2016 is “optimistic,” since the rulemaking process is lengthy.

After President Obama signed MAP-21 in July, FMCSA said it expected it could meet the October deadline.
But while speaking with re­porters at MATS, Ferro said MAP-21 added some “additional clarification” about what FMCSA must do with the regulation. Incorporating that has slowed down the process, which caused FMCSA to miss its stated goal to publish the revised proposal in March, she said.

Representatives of the House and Senate committees that oversee transport and wrote MAP-21 did not reply to  queries from Transport Topics.

After the new proposal is re­leased, the agency will allow the public to comment on it for at least 90 days.

Rob Abbott, vice president of safety policy at American Trucking Associations, said the new timeline is not a surprise.

“We never expected or anticipated that the agency would be able to issue a final rule by this October,” he said.

Abbott said the September timeframe for the new proposal is “realistic.” But since that date has been delayed before, it could be pushed back further, he said.

In 2010, FMCSA first issued a rule requiring trucking companies with a history of hours-of-service violations to use electronic logging devices. That would have taken effect in June 2012.

The next year, the agency proposed requiring ELDs, which it called electronic onboard recorders at the time, for all companies that were using paper logbooks. But months later, the U.S. Court of Appeals for the 7th Circuit overturned the 2010 rule, saying the agency did not meet a statutory obligation to ensure that the devices could not be used to harass drivers.

The universal mandate used the same technical specifications as the one overturned in court, so in 2012, FMCSA rescinded its proposal and vowed to reissue a rule that complied with the court ruling. Later that year, Congress mandated the regulation in MAP-21.

Writing a rule that stands up to court scrutiny is of paramount importance to FMCSA, Ferro said.

“It’s got to withstand any legal challenges; it’s very important,” she said.

The driver harassment issue is just one of the major aspects FMCSA must consider in its new proposal, ATA’s Abbott said. It also must settle some issues that ELD manufacturers identified with certifications of the devices and their communication and security, he said.

FMCSA has held several listening sessions to gather input from drivers and carriers on the harassment issue. In December, it said it would conduct a survey of drivers on the issue, but it has not yet submitted a request for the research to the White House Office of Management and Budget.