How is any reasonable person to know, really know, if their ELD complies with all the technical requirements? The regulations are convoluted and so full of minutiae that only specially trained people are likely to be able to determine if a device is working as it should. Because the Federal Motor Carrier Safety Administration does not vet the devices, it’s now up to the consumer to ensure a chosen ELD complies.
Unless there’s some glaringly obvious fault with the device, users aren’t likely to know there’s a problem until an FMCSA field agent shows up to conduct a compliance review based on irregularities found during roadside inspections. It could be three to six months after the fact, or a year or more, depending on the backlog of cases. Then, if the vendor can’t resolve the problem, the carrier could be forced to replace every device in the fleet and reintegrate a new device/system into the operation.
Just such a case is now under way in FMCSA’s Illinois Division office. Documents obtained by HDT indicate the agency was conducting a routine investigation of a carrier when irregularities were discovered with the carrier’s AOBRD. In a letter from FMCSA to the carrier, an FMCSA field agent quotes several requirements that were not met by the device in question, citing in particular the absence of engine use, road speed, and miles driven data. The letter notes that FMCSA obtained 210 logs for seven drivers, none of which contained that required information.
That investigation was based on another agent’s previous experience with yet another carrier that was using the same make and model of AOBRD. In its decision, FMCSA indicated that since the carrier was using a device that did not meet the requirements of an AOBRD, the carrier was cited for not using “an appropriate method of logging.”
“FMCSA cited this carrier for ‘inappropriate method of logging’ because a technical part of the AOBRD requirement was not met,” says John Seidl, a former commercial vehicle enforcement official, now vice president of risk services at Reliance Partners. “Essentially, the carrier was turning the device into driver logging software whenever they wanted, and drivers were entering their own data because the vendor allowed the system to do it.”
Seidl says he’s aware of other similar actions by FMCSA, all stemming from the use of a particular make and model of AOBRD. He says there may be additional actions in other parts of the country, but he is familiar with only these.
In the course of one investigation of a carrier using the same AOBRD, one driver was shown driving at an average speed of 279 mph. Another driver’s logs showed him traveling 695 miles at an average speed of 94 mph over a period of nine hours and three minutes, which the author notes, “is impossible because the trip would have taken the driver through three major metropolitan areas along Interstate 80.” The trip was actually just over 400 miles, not 695, as the device indicated – a clear indicator that the device was likely being used as driver logging software, not an AOBRD.
When questioned by FMCSA about the performance of its device, the vendor maintained it was compliant with AOBRD standards.
“The logs produced by the Petitioner only show cumulative totals of engine use and average road speed. This does not demonstrate that the totals are the product of automatic recording, which is the entire point of an automatic recording device,” the letter states.
“It was a good bit of investigative work by FMCSA,” Seidl says. “They connected the vendor with several carriers, and that prompted further investigations.
“It’s very interesting that, in the face of the coming ELD mandate – with even more technical specifications – the agency is now taking cases against AOBRD carriers because their AOBRD vendors do not meet even those requirements [395.15, circa 1988].
“I have found out that some vendors are purposely turning their [AOBRD] devices into driver logging software so drivers can just type in driving time,” says Seidl. “If these vendors are purposely allowing their devices to be used like that, when the ELD mandate comes you’ll have the transfer-file requirement. I don’t know the answer to this, but is it possible the transfer file may look legit even if you’re typing in your driving time?”
The big problem carriers face in choosing an ELD is taking the vendor’s word that the device will comply. We are aware of some that work perfectly, and others that do not. Once the decision is made to equip the fleet, train the drivers and the office staff and integrate the device into other back-office systems, it would be onerous at best to have to repeat the process a few months or years in because the device failed to meet the ELD requirements.
10 Questions to ask your ELD supplier
Buying an electronic logging device platform and the associated back-office interface isn’t like buying a toaster. Assuring yourself that it is in fact compliant goes beyond plugging it in to see if it lights up. Since the U.S. ELD rules don’t require third-party device verification (although that can be arranged for a price), one expert offers these suggestions on questions to ask potential suppliers.
Annette Sandberg, CEO of TransSafe Consulting LLC and her associate, Jerad Childress, have conducted many ELD reviews through the law firm Scopelitis, Garvin, Light, Hanson & Feary.
“We have reviewed many systems and have worked with a significant number of motor carriers in identifying issues with ELD systems to ensure the systems are fully compliant with the mandate,” she says.
Sandberg says she and her team have come across a few non-compliant devices so far but could not say what percentage of the market they represent. “I don’t think we will know that until the Federal Motor Carrier Safety Administration starts investigating them,” she says.
FMCSA has published a list of frequently asked questions on its website. It’s been there for 18 months, and the latest update (April 2019) includes 162 entries on 28 pages. If you don’t have the stomach for such a document, TransSafe Consulting offers these 10 questions you could pose to a potential ELD supplier.
1. If an ELD records more than 30 minutes of unidentified drive time in a 24-hour period, does the ELD detect an unidentified driving records data diagnostic event?
Correct answer: It should. If a data diagnostic event is not recorded, the device is not compliant with the ELD rule.
2. Can my ELD system simply delete unassigned drive time if it is not assigned within eight days?
Correct answer: No. The unassigned drive time must stay in the system for six months like all other hours-of-service data.
3. Can I simply create a dummy account to put unassigned drive time in?
Correct answer: No. The ELD must prohibit the creation of such “dummy accounts.” All accounts must be associated with a driver and have a CDL or driver’s license attached to the driver account.
4. Can my drivers change between HOS rulesets on the ELD (such as California intrastate/60- or 70-hour rulesets)?
Correct answer: A driver should not be permitted to switch between divide rule-sets at will. Only a motor carrier should select rulesets based upon their operations. Additionally, only a motor carrier can decide if they will allow a driver to have access to personal conveyance and yard moves. These should be administrative settings, not driver settings.
5. How is drive time recorded when my drivers operate on exempt status (e.g. 100 air-mile-radius)?
Correct answer: Each motor carrier should be aware of limitations to a vendor’s ruleset. Some systems do not measure the 100 air-mile exemption correctly. They might only measure the 12 hours, but not measure if the driver stopped and started in the same location every day that week, nor do all systems actually measure 100 air-miles appropriately. It is critical that motor carriers understand how an ELD calculates the rules and if their system truly helps the carrier and drivers remain in compliance.
6. Where does unidentified driving time go when my drivers operate vehicles without logging in?
Correct answer: Unidentified driving time on the ELD should notify any driver logging into the device at the next log in and then also show in the back office through an unidentified drive time report. The motor carrier should be instructed on how to address unassigned drive time and make sure it is assigned to the appropriate driver.
7. If an ELD records an hour of continuous on-duty drive time, does the ELD record an intermediate log event?
Correct answer: In this instance, an intermediate log event must occur at least once per hour or the device is not compliant with the ELD rule.
8. Is there any way to edit drive time on the device?
Correct answer: Drive time should NEVER be edited – FMCSA only allows unidentified drive time accidently assumed by a driver to be removed. No other drive time may be edited. Does the ELD record all edits made to a log?
9. Does the ELD record all edits made to a log?
Correct answer: An edit made to a log should never remove the original record. If all edits are not displayed, the device is not compliant with the ELD rule.
10. When the vehicle is in motion and no co-driver is logged into the device, can the ELD be interacted with?
Correct answer: When a vehicle is in motion with no co-driver logged in, no ELD navigation is acceptable.