INDIANAPOLIS — The full implementation of the federal ELD rule dates back to December 2019, but that hasn’t stopped hours-of-service violations from racking up, P. Sean Garney noted in a presentation at the Scopelitis Transportation Law Seminar.
The working theory always was that the tight, immutable data on HOS generated by an ELD would reduce the frequency of violations. The record spelled out by Garney on Sunday, the first day of the seminar, shows mixed results.
Garney is the co-director of Scopelitis Transportation Consulting, an arm of the Scopelitis law firm, which produces the legal seminar every few years.
He said the road to HOS violations generally runs through two pathways: questionable use of the personal conveyance provisions of the HOS rule and the “yard rule” that allows drivers to be behind the wheel but considered off duty while moving a truck within a defined company-owned area.
Regulators handed down $1.7 million in penalties for individual HOS violations last year, according to Garney, but it wasn’t a case of a handful of companies getting hit with a few big penalties. His numbers did not include those in which HOS violations were part of a larger filing of violations levied against a fleet; the biggest fine he found in 2023 was $40,000.
Garney’s data showed a 2.8% decrease between 2018 and 2023 in violations of the rule that allows only 14 hours of consecutive service after coming on duty and a 25% increase in violations of the HOS rule that allows only 11 hours of driving within that 14-hour period. But during that time, there’s also been a 137% increase in false log violations, he said.
Mistakes don’t equal a false log
A mistake in a log is not necessarily a false log. “In order to be false it is that the accuracy must disguise that the driver went past 11 and 14 hours,” he said.
“If your log is just inaccurate, that’s just sort of a failure to prepare,” Garney said. It isn’t a false log.
“So the question is, where do our false log violations exist?” Garney said. “One of the first places I like to look at are yard moves and personal conveyance.”
Garney put both violations under the category of “false logs.”
The tricky nature of defining personal conveyance, which Garney called an “ugly animal that we try to deal with as best we can,” is not new; it was the subject of an industry discussion back in 2018, more than a year before the ELD rule went into effect. And the Federal Motor Carrier Safety Administration has attempted to clarify some of the guidelines that establish what is legitimate personal conveyance.
Personal conveyance is defined by FMCSA as “the movement of a commercial motor vehicle for personal use while off-duty. A driver may record time operating a CMV for personal conveyance as off-duty only when the driver is relieved from work and all responsibility for performing work by the motor carrier.’
Operational readiness is key
Garney said defining personal conveyance has one overriding guideline: It “is not enhancing the operational readiness of the vehicle. And this is a hard and difficult thing to think about and monitor the way I’ve seen it enforced.”
Garney discussed a situation in which an inspector finds that the direction that the driver had moved his or her commercial vehicle is “substantially in the direction of the next move.” Even if it can be argued that the move recorded as personal conveyance was for a legitimate move toward the driver’s home, Garney said, inspectors would be likely to see that as abuse of the personal conveyance provisions of the HOS rule.
Personal conveyance “is going to be one of the first places inspectors are going to look at,” he said. “I would strongly encourage you, if you allow personal conveyance, to keep a close eye on what’s happening here.”
Complicating the issue is that fleets have different policies on personal conveyance. “There are carriers in this room who definitely don’t allow it, and there are carriers in the room that will say if I don’t do it I will lose all my drivers, so I go along,” Garney said. “So what do you recommend?”
Praise for the way Canada does it
Garney noted that the Commercial Vehicle Safety Alliance has called on FMCSA to more clearly define what constitutes personal conveyance, possibly along the lines of Canada’s more specific rules.
“They’ve consistently been turned down, so FMCSA has not yet been willing to do that,” Garney said.
Canada deals with defining personal conveyance by setting specific hours and miles that can be claimed as personal conveyance.
Garney expressed frustration with U.S. rules are far more vague. “FMCSA didn’t do anybody any favors by not defining personal conveyance in the regulations and just issuing guidance,” he said.
Questions from the audience were highly specific. One person asked whether a truck being moved to a repair facility can be considered personal conveyance. Garney’s conclusion: “My understanding is that you cannot use personal conveyance for that because you are enhancing the operational readiness of that vehicle, and that was specifically called out by FMCSA.”
Timothy Wiseman, who sat on the panel with Garney to kick off the three-day Scopelitis conference and is a partner at the firm, noted that HOS regulations can’t deal with all situations resulting from a tired driver, even if the person behind the wheel is complying with the rules.
Wiseman said the Walmart driver who crashed into comedian and actor Tracy Morgan in 2014 had already been driving several hours in a personal vehicle before taking the wheel of his company truck. “So I think when you’re talking about personal conveyance, you need to say, OK, is it legal?” Wiseman said. “And if it is, is it safe? Do you still want this driver knowing that he’s going to drive five hours before even starting his shift with us, even though it’s off-duty driving?”
Yard movements, too, are not well defined under the HOS rule, according to Garney. He said FMCSA did proposes guidance on more tightly defining yard movements several years ago, but “please don’t ask me when they’re going to finalize this because I have asked them 50 times and it’s just not really strongly on their radar.”
What should a fleet do to avoid getting hit by HOS violations that accumulate because of abuse of the personal conveyance or yard rule loopholes? Garney laid out several things to watch for, including “location, location, location.” For example, does the data show that an on-duty status lines up with where the previous on-duty status ended? Odometer readings are key to discovering that, he said.
Fleets should look for frequent use by a driver of the “safe haven” exception, which deals with parking a truck carrying hazardous materials, and the “adverse conditions” exception, Garney said.
“You just look at the log detail and you’re like, whoa, this guy claimed safe haven seven times this week,” he said.
Regarding adverse conditions, David Heller of the Truckload Carriers Association in a recent FreightWaves article cited a possible example as a truck stuck on the road to the closed Francis Scott Key Bridge soon after the bridge’s late-March collapse.
Another key indicator for rooting out personal conveyance abuse: fueling reports. Checking fuel consumption against claimed hours of service is “still very popular,” Garney said.
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