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.
Logging Device Problems Found in Routine DOT Investigation
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.
Driving at 279 mph?
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.