Although the FMCSA's electronic logging device (ELD) rule has now been on the books for years, I'm often surprised how regularly carriers and their drivers are cited for violations of what I consider to be pretty fundamental and easily-rectified ELD issues. Allowing these violations to persist can result in a high hours-of-service CSA score, out-of-service orders, civil penalties, and a potential DOT audit. In this article, we'll explore the five most common ELD-related violations and, more importantly, the steps carriers and drivers can take to avoid them.
1. No ELD when one is required
Coming in first on our list of ELD-related violations is failing to utilize an ELD when one is required. According to FMCSA data, of the approximately 1,149,899 driver-related roadside inspections conducted thus far in 2021, 14,461of those inspections have resulted in a violation of 49 CFR 395.8AELD, for operating a CMV without an ELD when one is required.
Now, in terms of ELD-related issues, it doesn't really get more fundamental than knowing when an ELD is required. In that regard, Part 395 of the federal safety regulations provides that all drivers of CMVs in interstate commerce--subject to only a few exceptions, which we'll address shortly--must utilize an ELD to record their duty status each day. A CMV for these purposes includes the following:
Vehicles or combinations (e.g., truck/trailer) with a GVWR, GVW, or GCWR of 10,001 lbs. or greater;
Vehicles designed or used to transport 9 or more passengers for compensation or 16 or more passengers not for compensation; and
Vehicles of any size or weight used to transport placardable quantities of hazardous materials.
So, if you are a driver that operates a CMV falling into one of these three categories in interstate commerce, then you are generally required to utilize an ELD. And even if you only operate in intrastate commerce, many states in the country have enacted their own ELD requirements similar to the federal requirements.
With that said, we noted earlier that the federal ELD mandate contains a few exemptions. They are:
Driveaway/towaway operations where the vehicle driven is the commodity being delivered;
CMVs of model year 1999 or older;
Drivers who are subject to the records-of-duty-status requirement 8 times or fewer in a rolling 30-day period.
The first two exemptions on this list are fairly self-explanatory, but I'll pause briefly to address the third, which is really intended to encompass short-haul drivers. As you may know, drivers who qualify under the so-called "short haul exemption," have historically been exempt from the records-of-duty-status (a/k/a driver log) requirement while operating within the bounds of that exemption. (For a detailed explanation of the short-haul exemption, check out this article). However, on days when a short-haul driver exceeds the scope of the short-haul exemption, he/she has to complete a driver log for that day. With that in mind, the last ELD exemption allows these drivers to exceed the scope of the short-haul exemption up to 8 times in a 30-day period without having to utilize an ELD to track their duty status on the days that they do...they can, instead, use paper logs for those days. But if the driver proceeds to exceed the scope of that exemption a 9th time in that 30-day period, then he/she would have to utilize an ELD.
The takeaway here is that carriers and drivers need to familiarize themselves with the ELD rule and understand to whom it applies. Generally speaking, that includes all CMV drivers who are subject to the federal safety regulations, except those falling under one of the limited exemptions addressed above.
2. Driver cannot electronically transfer ELD records
Next up on the list of common ELD pitfalls is the inability of drivers to electronically transfer their ELD records to law enforcement during a roadside inspection. Of the 1,149,899 driver-related roadside inspections conducted thus far in 2021, 10,848 involved this particular violation.
The ability to electronically transmit ELD records to law enforcement is a technical requirement of all ELDs. The idea behind it is to facilitate an easier and smoother review by law enforcement of a driver's records-of-duty-status to sniff out hours-of-service violations. According to the ELD technical specifications, ELDs must be capable of electronically transferring logs in one of two ways:
The first option is a “telematics” transfer type ELD. At a minimum, it must electronically transfer data to an authorized safety official on demand via wireless Web services and email.
The second option is a “local” transfer type ELD. At a minimum, it must electronically transfer data to an authorized safety official on demand via USB2.0 and Bluetooth.
Although this particular violation is often written up as if the ELD itself isn't capable of transferring data, my hunch is that the drivers at issue in the vast majority of these roadside inspections just weren't familiar with the process for doing so. As we'll see in the next item on our list, drivers are required to have documentation with them in their CMVs explaining how to, among other things, transfer data to law enforcement. So, this really should be an easy fix...carriers should ensure their drivers are properly trained on ELD functionality, including how to electronically transfer ELD data to law enforcement during a roadside inspection.
3. No in-cab ELD documentation
According to 49 CFR 395.22(h), CMV drivers who are subject to the ELD rule must have the following documentation with them in their vehicles:
A user’s manual for the driver describing how to operate the ELD;
An instruction sheet describing the data transfer mechanisms supported by the ELD and step-by-step instructions to produce and transfer the driver’s hours-of-service records to an authorized safety official;
An instruction sheet for the driver describing ELD malfunction reporting requirements and recordkeeping procedures during ELD malfunctions; and
A supply of blank paper driver logs sufficient to record the driver’s duty status and other related information for a minimum of 8 days.
Of the 1,149,899 driver-related roadside inspections conducted year-to-date, 23,412 resulted in a violation of one or more of these requirements. Luckily, this is another easy one for carriers and drivers to fix by simply ensuring that the required documents are in the cab. With respect to the user manual and instruction sheets, these can even be kept electronically on the ELD itself or the driver's mobile device, but the key is that the driver needs to know how to readily access them and show them to law enforcement upon demand.
4. Portable ELD not properly mounted
Another fairly common ELD pitfall is failing to properly mount a portable ELD in a fixed position that is visible to the driver from the driver's seat. More specifically, 49 CFR 395.22(g) provides that "if a driver uses a portable ELD, the motor carrier shall ensure that the ELD is mounted in a fixed position during the operation of the CMV and visible to the driver when the driver is seated in the normal driving position."
Portable ELD Mount
Now, ELDs come in essentially two varieties: those that are hardwired to the vehicle and permanently mounted to the dash, and those that are more portable in nature, including some where the interface is one the driver's smartphone or tablet device. It's this latter group of ELDs that can cause issues here, particularly when the ELD software is just running on the driver's smart device. It's certainly tempting to just toss that device in the passenger seat or elsewhere in the vehicle, but the rule is that the device must be mounted in a place that is visible to the driver while the driver is seated in the driving seat.
Again, this is another issue that is fairly easy to remedy. Even if drivers are utilizing ELDs on their smart devices, it's easy and usually cheap enough to purchase a window or dash mount for those devices to avoid this violation in the future.
5. Unassigned drive time
Last on our list, and likely the most difficult for carriers to get under control, is unassigned drive time, which refers to situations where an ELD captures vehicle motion with no authenticated driver logged into the system. According to the ELD technical specifications, ELDs must be capable of recording vehicle driving time that is not attributed to a particular driver under an unidentified driving account. The purpose of this requirement is to dissuade carriers and drivers from concealing hours-of-service violations by unplugging an ELD device or failing to log in. In those situations, the ELDs will continue logging the driving time and will place it in an unidentified driver account, which is subject to audit by law enforcement during a roadside inspection or a carrier audit.
For their part, motor carriers have an ongoing obligation to review their ELD's unassigned drive time report and to reconcile all time placed on that account. This can be a bear of a task if carriers don't do so regularly and have processes in place to ensure that drive time is properly assigned to the correct driver in the first place. One way to cut down on unassigned drive time is to ensure drivers are properly trained on logging into the system prior to operating a CMV, and taking appropriate action against drivers who routinely fail to do so. Also, the ELD systems themselves are built to facilitate the proper recording of unassigned drive time in the sense that when they record unassigned drive time, they must prompt the next driver who logs into the system to either accept the unassigned drive time as his/her own or decline it. This is extremely helpful in situations where a driver inadvertently failed to login to the system.
That said, in situations where no authenticated driver has claimed the unassigned drive time as his/her own, carriers should be periodically reviewing and reconciling that time. Otherwise, they are setting themselves up for potential log falsification violations and civil penalties in the context of an audit.
As noted, the majority of the five most common ELD-related violations are easily correctable, typically through minimal driver training. Carriers who take care to ensure their drivers know how to properly utilize ELDs will fare much better during roadside inspections and compliance reviews. For more in-depth discussions of the FMCSA's hours-of-service and ELD requirements, make sure you check out our Hours-of-Service Mini Course offered through Trucksafe Academy. And if you have any specific questions, please feel free to reach out!
About Trucksafe Consulting, LLC: Trucksafe Consulting is a full-service DOT regulatory compliance consulting and training service. We help carriers develop, implement, and improve their safety programs, through personalized services, industry-leading training, and a library of educational content. Trucksafe also hosts a monthly live show on its various social media channels called Trucksafe LIVE! to discuss hot-button issues impacting highway transportation. Trucksafe is owned and operated by Brandon Wiseman and Jerad Childress, transportation attorneys who have assisted some of the nation’s leading fleets to develop and maintain cutting-edge safety programs. You can learn more about Trucksafe online at www.trucksafe.com and by following Trucksafe on LinkedIn, Facebook, Twitter, and YouTube.