ELD Enforcement... Where Are We Now?
As everyone is aware, the ELD mandate has gone live and we are now in a “soft enforcement” period. In short, “soft enforcement” means that while roadside enforcement personnel have begun documenting violations of the rule they are generally not placing drivers out of service for operating without a compliant ELD – provided of course they are in compliance with the hours of Service regulations. The soft enforcement period ends on April 1, 2018. After that date all bets are off as enforcement personnel will start placing drivers out of service for failure to comply. So what have we learned during the brief soft enforcement period?
First, if you do not already have an compliant ELD in your truck get one as quick as you can (assuming you are not operating a grandfathered AOBRD). Quite simply, this mandate is not going anywhere and enforcement will begin in earnest on April 1st, 2018. If you want to stay in the industry and stay on the road you will need to be compliant. Don’t count on the mandate being repealed or the soft enforcement period extended. I don’t see a scenario where this would happen. Do everything you can to be compliant by April 1st. You can’t make money if you are not on the road.
Second, while you may not be placed out of service during the soft enforcement period you can still be fined and violations for non-compliance noted on your inspection report. During the enforcement period violations will be written under 49 C.F.R. 395.22. In addition, some states will impose a fine. This is at their discretion and the fines can range from a hundred dollars to a thousand or more dollars. Since soft enforcement began, we have seen numerous violations noted under 395.22; however, the violations we find the most surprising have been violations noted 395.22(h)(2) for failing to maintain a ELD instruction sheet, no instructions or manual with driver; and 395.22(h)(3) failure to maintain an instruction sheet for ELD malfunction reporting requirements. These are by no means the most frequents violations we have seen but are the easiest to correct. All you need to do to avoid these violations is make sure you have all the required documentation with you while you are on the road. It is not that difficult.
Third, in the event your ELD malfunctions and you are unable to provide your log information electronically you need to know what is required. The rule requires that you carry with you blank paper logs sufficient to record the driver’s duty status and other related information for a minimum of eight days. If your ELD is unable to transfer data you will be required to complete the paper logs. Everyone has been doing this for years so it should not be that difficult provided you have the blank logs with you.
Fourth, in the event your ELD malfunctions/breaks or needs repair please be aware that you have 8 days for the device to be repaired. You may request an FMCSA extension of time to complete the repairs; however, I am doubtful any portion of the federal government can receive a request, consider it, process it and issue an extension within 8 days of the date of the malfunction. Regardless, I would suggest that you keep a copy of the request for extension with you to show any enforcement personnel should the issue arise. The bottom line in this scenario is that you will need to be very diligent in getting your ELDs repaired. Even if you do request an extension, and receive one, you will be non-compliant between the end of the 8 day “repair” period and receipt of the extension. In other words, don’t rely on the government to save you. Request the extension but do all you can to handle the issue within the time allowed.
The final issue worth discussing is personal conveyances. I wish I could tell you exactly how to handle personal conveyances and yard moves but I can’t. The FMCSA is attempting to provide some additional clarity and has proposed regulatory guidance addressing this issue and the proposed language has been published for comment. The FMCSA just extended the comment period until February 20th so please review the language and let the FMCSA know your thoughts. For what it is worth, the proposed language omits the requirement that the CMV be unladen. As a result, the proposed language creates greater flexibility for the industry and recognizes that drivers should have the option to drive laden vehicles when off duty for personal business. In regards to “yard moves”, the FMCSA has not defined what constitutes a “yard.” To that end, common sense should prevail. If you are driving 150 miles and are claiming personal conveyance or yard move you can expect to run into trouble. In this type of scenario you will most likely be cited for false logs and placed out of service regardless of whether or not we are in the soft enforcement period.
J. Bradley Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers.Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.
800-333-DRIVE (3748) or www.interstatetrucker.com
ELD Enforcement , ELD Mandate