WASHINGTON, (Sept. 1, 2004) — Told by the U.S. Court of Appeals to re-evaluate several aspects of its final hours-of-service regulation, the Federal Motor Carrier Safety Administration has responded by issuing an advance notice of proposed rulemaking for electronic onboard recorders (EOBR).

The agency is requesting comments on potential amendments by Nov. 30 to its regulations concerning the use of on-board recording devices — or “black boxes” — to document compliance with the HOS rules. The purpose is to ensure any future mandate concerning EOBRs would be appropriate as well as reflect state-of-the-art communication and information management.

In July, the U.S. Court of Appeals threw out the federal government’s hours-of-service rule and sent it back to FMCSA for review because the agency failed to comply with a statute requiring the agency to consider the impact of the rule on “the physical condition of the operators.” While it didn’t officially rule on EOBRs, the court took the time to chide the FMCSA on several other troublesome aspects of the rule, including increasing the maximum driving time from 10 to 11 hours; the sleeper berth provision; the 34-hour “restart” provision; and the FMCSA’s decision not to include in the final rule the earlier proposal to require EOBRs.

The reasons the FMCSA gave in dismissing ‘black boxes’ — that neither the costs nor the benefits of EOBR systems are adequately known; that read-out procedures created by different EOBR vendors are incompatible; and that EOBRs are a direct assault on drivers’ privacy — were not sufficient, in the opinion of the court. “(We) cannot fathom why the agency has not even taken the seemingly obvious step of testing existing EOBRs on the road, or why the agency has not attempted to estimate their benefits on imperfect empirical assumptions,” the court said.

While the FMCSA has for years studied older black boxes, rapid developments in electronic technology have made them increasingly obsolete, the agency says, adding that the ANPRM therefore addresses the possibility of allowing motor carriers to use modern devices as part of the hours-of-service requirement. “The (July Court of Appeals case) vacated the 2003 final Rule for reasons unrelated to EOBRs. In dicta, however, the court said (the agency) is required, at a minimum, to collect and analyze data on the costs and benefits of requiring EOBRs. This ANPRM, which has been under development for some time, is an effort to do just that,” the FMCSA said.

The FMCSA is seeking comment on 14 different issues it is analyzing in respect to EOBRs. Some include:

Synchronization of Recorder to a Vehicle Operation Parameter: The agency wants to clarify synchronization with operation. For example, should a driver be able to revise a record to change the amount of on-duty driving time recorded over a very short period (for example, while dropping a trailer at the home terminal, or if he or she exits a vehicle while it is stopped in traffic upstream of a crash)?

Ensuring drivers are properly identified: A fundamental requirement would be to ensure that duty status data accurately identifies the driver. Many information technology applications use personal identification numbers and/or smart cards. FMCSA wants to further explore such I.D. processes, including biometric components.

Reporting and display formats: Analyzing new information technology applications that use personal identification numbers and/or interchange standards that would visually serve officials conducting roadside inspections and compliance reviews.

Audit trails: In connection with the necessity for tamper resistance EOBRs, the agency is carefully considering the process of recording and identifying information in the form of an audit trail or event log. An important design feature would be user-friendly interface that supports motor carriers’ internal reviews, FMCSA safety officials, and roadside inspectors.

Maintenance and repair: The agency wants a clearer understanding on the types or degree of
malfunction, such as loss of power source, loss of linkage to sensors, loss of ability to record, loss of ability to display. Also, current regulations do not address EOBR maintenance records, and the FMCSA is exploring a rule requiring motor carriers’ CMV maintenance records include document installation, malfunction, failure, repair, and
recalibration information.

Development of “Basic” EOBRs To Promote Increased Carrier Acceptance: The government is looking into the possibility of the development of a performance-based specification for a minimally compliant EOBR, which would provide the electronic-data equivalent of an accurate RODS yet be more affordable for small motor carriers and
independent drivers.

Incentives To Promote EOBR Use: FMCSA believes EOBRs have the potential to improve motor carriers’ compliance with the hours-of-service regulations, and to provide for more
efficient, effective, and economical documentation and review of drivers’ records of duty status. The group is therefore requesting comments on what other incentives
could help to promote the use of EOBRs.