In August 2011, the Seventh Circuit court vacated the EOBR 395.16 rulemaking based on a determination that the Federal Motor Carrier Safety Administration (FMCSA) had not adequately addressed the potential for driver harassment with the new guidelines. FMCSA later indicated that it would redo the EOBR rulemaking and not appeal the judge’s decision. Since FMCSA’s proposed EOBR mandate rulemaking depended on the 395.16 rule for technical guidelines, it appears that the mandate will also be delayed. So what is next, and when?
Until the next EOBR rulemaking, EOBR providers must continue to rely on the 395.15 rule for “Automatic On-Board Recording Devices” or “AOBRDs” as they were once known. While the rule was published in 1988, it is still the basis for certifying compliance of all EOBRs today. The term EOBR was informally applied to these systems about 10 years ago, so there is no real distinction between AOBRD and EOBR. Over the last 10 years, best practices for these systems have evolved. Today, leading EOBRs/AOBRDs have capabilities that significantly exceed the requirements of the 395.15 rule and are fairly consistent with what was in the vacated 395.16 rule.
Going forward, EOBR providers will continue to enhance their systems. The aim is to further refine driver usability, carrier compliance management tools, and system scalability as many more carriers continue to add EOBRs to their safety management programs. With FMCSA’s Compliance, Safety, and Accountability (CSA) program, carrier safety measures include a category related to hours of service (HOS) violations. EOBRs are now widely recognized as a means to better manage compliance in this area. A future EOBR rule may require new methods of providing data to enforcement, but it is not likely to significantly change EOBR features for the way drivers and carriers use their EOBRs.
The timeline for FMCSA’s EOBR rulemaking is yet to be specified, but there is new technical guidance to be used going forward . A new process has been used to involve industry subject matter experts to define EOBR standards. Working with the Motor Carrier Safety Advisory Committee (MCSAC), this group of experts and other stakeholders formed an EOBR subcommittee to provide recommendations to FMCSA for new EOBR technical guidelines. These recommendations should help FMCSA more quickly prepare accurate EOBR technical guidelines for the new EOBR rule.
An EOBR mandate bill has been reintroduced in the U.S. Senate as an essential safety initiative to be addressed by FMCSA. The bill identifies requirements for EOBRs that are consistent with the MCSAC recommendations, and it would require a EOBR rulemaking consistent with what FMCSA is planning for updates to EOBR technical requirements and then an industry-wide EOBR mandate.
My forecast for what’s next with EOBRs in 2012:
- The industry will continue to expand its use of EOBRs for HOS compliance management on a voluntary basis.
- CSA program focused investigations will increasingly identify underperforming HOS compliance management programs – getting many of these carriers to use EOBRs.
- FMCSA will initiate a new EOBR rulemaking that includes the new recommended technical guidelines and requirements to prevent and discourage driver harassment.