In a notice published in the Federal Register in mid-September 2022, the FMCSA is seeking comments from the public on whether to modify certain portions of its electronic logging device (ELD) rule. That rule, first published in 2015, mandated the use of ELDs by most regulated drivers as a means to more accurately track their daily duty status. According to the FMCSA, “lessons learned by Agency staff, State enforcement personnel, ELD providers, and industry over the last few years can be used to streamline and improve the clarity of the regulatory text and ELD technical specifications and resolve questions that have arisen.”
According to its notice, the agency is seeking comments in five specific areas: applicability of the ELD mandate to pre-2000 engines; addressing ELD malfunctions; the process for removing ELD products from FMCSA’s list of certified devices; technical specifications; and ELD certification.
ELDs for Pre-2000 Engines
Under current rules, vehicles with engines of model year 1999 or older are exempt from the ELD requirement. This exemption was premised on the idea that certain older engines may not interface with ELDs through an ECM. But the agency now appears to be changing its tune on this point, explaining in its notice that “many vehicles with pre-2000 engines and most vehicles with rebuilt pre-2000 engines have engine control modules (ECMs) installed that could accommodate an ELD.” It asks, “Should FMCSA re-evaluate or modify the applicability of the current ELD regulation for re-built or re-manufactured CMV engines or glider kits?"
If an ELD malfunctions, current rules set out a process drivers and carriers must follow to (1) ensure the drivers’ time is still tracked, and (2) the malfunction is timely rectified. The Agency explains, “Section 395.34(c) requires a driver to follow the motor carrier and ELD provider recommendations when a data diagnostic event is logged. Whenever an ELD fails to record a driver’s hours, enforcement personnel must be able to review the driver’s paper logs. By contrast, when an ELD malfunctions but continues to record the driver’s hours accurately, the driver should not switch to paper logs.” The agency is now asking whether it should “amend carrier and driver responsibilities in § 395.34 to clarify when a driver must switch to paper logs?”
The FMCSA’s notice contains several questions concerning the process for revoking non-compliant devices from its certification list:
If an ELD provider goes out of business and fails to self-revoke, should FMCSA be able to immediately remove the device from the registered ELD list?
Should FMCSA require ELD providers to update their listing within 30 calendar days of any change to their registration information found in section 5.1.1? Additionally, should ELD providers be required to confirm their information on an annual basis? Should an ELD provider’s ELD be removed from the FMCSA list if it fails to confirm or update its listing on an annual basis?
Under Section 5.4 Removal of Listed Certification, providers must respond to the Agency’s written notice of required corrective action within 30 days to remain on the list. Additionally, the provider is given 60 days after the Agency provides a written modification to the notice of proposed removal or notice to affirm the proposed removal under Section 5.4.4. Should FMCSA consider decreasing the 60-day period to 30 days, in order to more timely remove an ELD listing found with non-compliance issues that could adversely impact highway safety?
Should FMCSA consider any other factors related to a carrier’s continued use of a device that has been removed from the FMCSA list due to a provider’s status (out of business or failure to file an annual registration update)?
The agency is also contemplating certain revisions to its detailed technical specifications for ELD devices. It asks whether ELD data output files could contain additional data points that aren’t currently included, whether the devices should track certain driving activity more frequently than they currently do, whether to codify in its regulations the yard move exemption it has granted on a temporary basis, whether ELDs should automatically change a driver’s duty status if he/she powers down without first manually switching the duty status, and whether drivers should be permitted to place themselves in certain exempt statuses.
Lastly, and most significantly, the agency is asking the public to weigh in on whether it should move away from a self-certification process for ELDs and to a system, like Canada’s, where the agency itself or its designees certify devices.
This notice may seem fairly innocuous at first blush, but depending on where the agency takes it after the comment period, we could be in for the first substantial changes to the ELD rules since their implementation. Comments can be filed through November 15, 2022 online at regulations.gov in Docket No. FMCSA-2022-0078. If you have questions about this notice or need assistance crafting comments, feel free to reach out.
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