In a recent civil penalty case decided against a motor carrier, the FMCSA’s Agency Decisionmaker by Delegation (Chief Decisionmaker) rules the motor carrier “tampered” with the ELD on certain trips by disconnecting it in order to mask driving time because the driver was out of hours in his duty status.
The motor carrier denied the charges; arguing the ELD was defective. It offered emails from the ELD provider around the dates of the trips in commerce which it argued showed it had received a defective device from the ELD provider and that it was a defective ELD, not the driver that omitted hours of service.
The Chief Decisionmaker ruled the motor carrier’s argument “unavailing;” concluding the FMCSA’s Southern Service Center (Claimant) proved by the preponderance of the evidence that the motor carrier tampered with the ELD on the trips in question and thus violated the anti-tampering rule in 49 CFR 395.8(e)(2).
Chief Decisionmaker’s Analysis
Unless exempt or an exception applies, a motor carrier must require its drivers to record their record of duty status (RODS) for each 24-hour period using an electronic logging device (ELD).
ELD Anti-Tampering Rule
A driver or motor carrier may not “disable, deactivate, disengage, jam, or otherwise block or degrade a signal transmission or reception, or reengineer, reprogram, or otherwise tamper with an automatic on-board recording device or ELD so that the device does not accurately record and retain required data such as the duty status of the driver.”
Agency guidance defines “tampering” as in tampering with an ELD as “a deliberate action that results in erroneous data or unauthorized changes to ELD data.”
Facts as found by the Chief Decisionmaker
On the trips in question, the driver had spent 10 consecutive hours off duty and was therefore permitted to drive 11 hours during the next 14-hour period.
For the first violation, the driver unplugged the ELD after driving more than 8 hours. At that time, he was near a specific town in South Dakota. The ELD was restarted approximately 13 ½ hours later at a time when he was in Holiday Heights, Wisconsin – more than 600 miles from where the ELD had been disconnected. Chief Decisionmaker finds that with the ELD unplugged, the driver traveled more than 600 miles, despite having less than 3 hours driving time remaining.
For the second violation, the driver after driving more than 7 hours, went off duty near a town in Indiana, and the ELD became unplugged. When the ELD was restarted approximately 14 hours later at a time when he was near Jamestown, West Virginia – more than 600 miles from where the ELD had been disconnected. Chief Decisionmaker finds that with the ELD unplugged, the driver traveled more than 600 miles, despite having less than 4 hours of driving time remaining.
In both cases, the Chief Decisionmaker concludes that had the ELD continued to log the duty time, it would have documented the driver exceeding the limitations contained in the Agency’s hours of service regulations and as such, the “evidence is sufficient to demonstrate that on [the trips in question, the driver] tampered with the ELD by unplugging it so that the device did not accurately record his driving status.”
The maximum fine at the time for each violation of 49 CFR 395.8(e)(2) was $1,214 and a minimum of $600; depending on application of the statutory factors for calculating the actual proposed civil penalty for the alleged violator.
In this case, the Chief Decisionmaker upheld the proposed civil penalty of $630 for each violation of 49 CFR 395.8(e)(2) as found.
Dated: Sudbury, MA
March 9, 2023
Andresen & Borovick, LLP
323 Boston Post Road
Sudbury, Massachusetts 01776
www.abmasslaw.com
Tel: (978) 443-6868
borovick@abmasslaw.com