FMCSA and CVSA explain out-of-service procedures for ‘no electronic log’
By: Tom Bray
Publication: Transport Safety Pro Advisor
Date Posted: 04/10/2018
The Federal Motor Carrier Safety Administration (FMCSA) and the Commercial Vehicle Safety Alliance (CVSA) have released information on the out-of-service procedures to be used when a driver who is required to use a compliant electronic log is found to not be using one as of April 1, 2018. The procedures will include:
- Writing a violation on the roadside inspection report for the driver not having the appropriate record of duty status (log) under §395.8(a). Note: These violations will be scored against the carrier in the Hours-of-Service Compliance BASIC.
- Fining the driver (depending on the law enforcement agency’s policies).
- Placing the driver out of service for 10 hours (8 hours for a passenger-carrying driver) under CVSA’s North American Standard Out-of-Service Criteria (OOSC). This is true even if the driver has paper logs that would have been considered compliant in the past.
Once the 10-hour out-of-service period is complete, the driver will be allowed to complete the current trip. However, the driver will be expected to secure and begin using a compliant electronic log before being dispatched on the next trip. If the driver is dispatched on another trip and is subsequently found to be operating without an electronic log when required, the driver will again be placed out of service for 10 hours.
Other situations to be aware of
In the OOSC, not having a compliant electronic log is not the only violation related to electronic logs that can result in an out-of-service order. Other violations include:
- Being unable to display, print, and transfer the logs for the current day and the previous seven days that are on an electronic logging device. If the driver can do one of the three, there may be a violation but not an out-of-service violation.
- Using a device that is not a compliant electronic logging device (ELD) or automatic onboard recording device (AOBRD).
- Not having completed paper records for the current day and the previous seven days to present to an officer during an inspection when the electronic log is malfunctioning.
- Misusing one of the special driving categories (yard move or personal use) that are available on an ELD (this is considered a false log).
Problem areas to be aware of
The phase-in to full roadside enforcement has not been without problems. Common problems that have occurred, and that are still occurring, include:
- Drivers not being able to identify to the officer what “type” of electronic log they are using (an ELD or an AOBRD), leading to enforcement personnel having to “guess” which rules the device must comply with.
- Drivers with AOBRDs telling officers that their “ELD” cannot transfer data and receiving a violation for having an ELD that cannot transfer data (AOBRDs do not have to transfer data directly to officers; only ELDs must have that functionality).
- Drivers using an ELD who are unable to transfer the ELD data directly to the officer. While this is a violation (written up as a violation of §395.24), it should not result in an out-of-service order as long as the driver can display the required records for the officer.
- Officers being unable to retrieve the records transferred by the driver. Here again, as long as the driver can display the required records for the officer there should be no out-of-service violation written. Also, as long as the driver sent the records from the device and the transfer is confirmed, there is actually no violation as long as the driver can display the required records for the officer (that is, it is not a violation if the driver correctly sent the records and the officer did not get them for some reason beyond the driver’s control).
- Officers writing a violation for §395.22 — using a device that is not on the ELD registry — when the driver is using a compliant AOBRD (AOBRDs are not supposed to be on the registry; however, the AOBRD vendor is supposed to provide the carrier with a letter stating the device is compliant with §395.15).
Other violations still count
Just a reminder, drivers will still be placed out of service for general hours-of-service violations as well, including:
- Operating over a limit (the driver will be placed out of service for the amount of time it takes to come back into compliance).
- Not having logs for the current and previous seven days (placed out of service for 10 hours, or 8 hours for passenger-carrying drivers, unless the only logs that were missing were the current and immediately previous day and the driver is able to make those logs current).
- Having false logs (placed out of service for 10 hours, or 8 hours for passenger-carrying drivers).
DataQs is still there
If you feel that you have received a violation in error, DataQs is still available to you. Using the DataQs system, you can request that any violation you received in error be removed. The process involves filing a “request for review,” providing the details of the inspection (report number, date, location, etc.), writing a clear and concise narrative, and providing supporting documentation. Simply pointing out which inspection you want reviewed and stating that the officer was wrong will not lead to success.
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