Details of FMCSA's New Standards for Electronic On-Board Recorders (Mandatory Use for Noncompliant Motor Carriers)

Among other things, the final rule implements new performance standards for EOBRs that are installed in commercial motor vehicles (CMVs)¹ on or after June 4, 2012.

On-board hours-of-service (HOS) recording devices that meet existing standards and that are installed in CMVs manufactured before June 4, 2012 may continue to be used for the remainder of the service life of the vehicle.

Also effective June 4, 2012, motor carriers that demonstrate serious non-compliance with HOS rules will be required to install EOBRs that meet the new performance standards.

Highlights of Comments, FMCSA Responses

FMCSA received 752 comments on the proposed rule, which included 136 opposed to any mandatory uses of EBORs, and 57 that advocated mandatory EOBR use beyond motor carriers found to be in serious noncompliance.

More Than 10% Violation Rate in a Review Triggers Mandatory EOBR Installation

As proposed, motor carriers that were found to have a greater than 10% violation rate of any Appendix C HOS regulations in two compliance reviews would have been subject to a remedial directive to install EOBRs (a "2x10 trigger"). Based on comments received and its reconsideration of alternatives, FMCSA instead chose to require a more stringent "1x10" trigger in the final rule. Thus, under the final rule, motor carriers that are found to have a greater than 10% violation rate in any single compliance review will be subject to a remedial directive to install EOBRs.

FMCSA chose the 1x10 trigger because it agreed with commenters that the proposed 2x10 trigger would not have mandated EOBR use by enough carriers, given the total population.

Mandate to Install EOBRs is Company-Wide and Intended to be Remedial

FMCSA disagreed with commenters who characterized the remedial directive to install EOBRs company-wide as "punishment" for innocent drivers who had no HOS violations. FMCSA states that the directive is intended to correct a demonstrated deficiency in the motor carrier's safety management controls, and, therefore, is remedial, not punitive. The final rule does not revise or impose any new civil penalties, including penalties for HOS violations.

Some Flexibility in Timing of Mandatory EOBR Installation

FMCSA recognized that issuance of a remedial directive requiring the installation of EOBRs for an entire fleet of CMVs within 60 days (or 45 days for hazardous materials carriers or those that transport passengers) may place a serious burden on certain carriers. FMCSA noted, therefore, that as proposed, the final rule allows FMCSA to extend the period during which carriers subject to a remedial directive may operate without an EOBR for an additional 60 days, if FMCSA determines that the carrier is making a "good faith" effort to comply with the directive (no extensions are possible for hazmat or passenger carriers).

New Rulemaking Being Considered to Make EOBRs Mandatory for Others

FMCSA stated that it recognizes the increased safety benefits of a broader mandate, but that a broader mandate was beyond the scope of the proposed rule, and, therefore it was unable to impose one in this final rule. FMCSA stated that it will initiate a new rulemaking to consider expanding the scope of mandatory EOBR use beyond the group of non-compliant carriers that will be subject to a remedial directive as a result of this final rule.

Highlights of Final Rule

The following are highlights of the final rule:

No New Requirements for On-Board Recorders Installed Before June 2012

Under the final rule, on-board recorders that meet existing FMCSA performance standards, and that are installed before June 4, 2012, may continue to be used for the service life of the CMVs in which they are installed (without being upgraded to meet the new performance standards established by the rule).

EOBRs Installed On/After June 2012 Must Meet New Standards

EOBRs that are installed in CMVs that are manufactured on or after June 4, 2012, must meet new, updated performance requirements. These new requirements include (partial list):

The ability to automatically record the CMV's location at each change of duty status and at intervals while the vehicle is in motion;

New information processing standards to ensure the security and integrity of the information recorded;

The ability for drivers to add to recorded information ("annotate the record") while the EOBR maintains the original record and tracks the changes;

The ability to provide a digital file in a specified format for use by safety officials;

Being integrally synchronized to the engine of the CMV to ensure accuracy of electronic records of duty status.

Mandated Use of EOBRs for Seriously Non-Compliant Carriers

The final rule requires motor carriers that have demonstrated serious non-compliance with HOS rules to install EOBRs that meet the new performance standards set forth in the final rule.

Remedial directives. FMCSA will issue remedial directives to motor carriers that are found to have a 10% or greater violation rate of any Appendix C hours-of-service regulation in any single compliance review (the so-called 1x10 threshold)². Remedial directives will require the installation of EOBRs in all of the carrier's CMVs (even those manufactured prior to 2012) and their use for HOS recordkeeping purposes for two years.

Proof of installation. A motor carrier who receives a remedial directive must provide FMCSA with proof that EOBRs have been installed. For carriers transporting hazardous materials in quantities requiring placarding, and motor carriers transporting passengers, proof is required to be provided within 45 days of the date of the notice of remedial directive. For all other carriers, proof of installation is required by the 60^th day.

Limited exception available. FMCSA will provide a limited exception to the requirements of the remedial directive for carriers that have, prior to the compliance review determination, already equipped their vehicles with on-board recording devices that meet FMCSA's existing performance standards, provided they can demonstrate to FMCSA that their drivers understand how to use the devices. The final rule prohibits exceptions for CMVs manufactured on or after June 4, 2012.

Loss of operating ability. Motor carriers that fail to comply with the terms of the remedial directive (that fail to install EOBRs and to provide proof of installation within the specified timeframe) will be declared unfit and prohibited from operating until EOBRs are installed. Commercial registrations for such motor carriers may also be revoked.

Administrative review. Motor carriers who believe they have improperly received a remedial directive may request an administrative review. Requests for administrative review must be received within 90 days of the date the remedial directive is issued. If the request is made within the first 15 days of the notice, FMCSA will stay its unfitness determination until it has ruled on the carrier's request.

Incentives For Voluntary Use of EOBRs

To encourage the industry-wide use of EOBRs, the final rule provides incentives for their use. These incentives include partial relief from HOS supporting document requirements and an expansion of the sample records reviewed to assess a random sampling of the carrier's overall HOS records if the initial compliance review sample indicates a 10% or higher violation rate.

Additional Specific Requirements for Drivers

In addition to the performance standards requirements for EOBRs and the EOBR mandate for certain non-compliant carriers, the final rule also includes additional specific requirements for drivers operating commercial motor vehicles equipped with on-board recorders. These requirements relate to the driver's record of duty status, supporting documents for drivers using EOBRs, drivers declared out of service, and the applicability and authority to use on-board recorders.

¹According to the FMCSA press release, this final rue affects interstate commercial truck and bus companies.

²As noted in the highlights of comments, this threshold is more stringent that then threshold that was originally proposed by FMCSA. The proposed rule contained a 2x10 threshold-if a carrier had a 10% or greater violation rate in two compliance reviews an EOBR remedial directive would have been issued.

(See ITT's Online Archives or 04/05/10 daily news, 10040515, for BP announcement of FMCSA EOBR final rule,)

See ITT's Online Archives or 01/19/10 daily news, 10011925, for BP summary of FMCSA submission of final rule to OMB for approval.

See ITT's Online Archives or 05/10/07 daily news, 07051020, for BP summary of FMCSA May 2007 proposed rule.

See ITT's Online Archives or 05/06/03 daily news, 03050620, for BP summary of FMCSA proposal to include EOBR use in HOS regulations.)

FMCSA final rule (D/N FMCSA-2004-18940, FR Pub 04/05/10) available at http://edocket.access.gpo.gov/2010/pdf/2010-6747.pdf

FMCSA press release (dated 04.02/10) on EOBR final rule available at http://www.fmcsa.dot.gov/about/news/news-releases/2010/Electronic-On-Board-Recorders-for-Truck-and-Bus-Companies.aspx.