Electronic On-Board Recorders

April 1, 2011

While Middle America was preparing for the massive snow storm that hit on February 1, 2011, FMCSA published in the Federal Register a Notice of Proposed Rulemaking regarding Electronic On-Board Recorders (EOBRs).  This Proposed Rule is in addition to the FMCSA’s April 2010 rule mandating Electronic Logging Devices for non-compliant carriers which will become effective on June 4, 2012.

The proposed rule would apply to every motor carrier who currently is required to keep records of duty status (RODS) for Hours of Service (HOS) and would mandate carriers to use EOBRs.  The rule also would end the requirement the carrier retain documentation that verifies the drive time for its drivers.  The Final Rule is expected sometime in 2012.

All carriers would need to be compliant within three years of the final rule effective date and to monitor their driver’s compliance under the HOS rules.  (The HOS rules are also currently being rewritten.)  The rule also sets forth the supporting documents that all motor carriers would still be required to obtain and keep as required by section 113(a) of the Hazardous Materials Transportation Authorization Act (HMTAA).  The rule does relieve the carriers of the requirements to retain supporting documents to verify driving time.

Supporting Documents required for carriers without qualifying electronic mobile communication/tracking technology are modified under the rule.  Documents no longer considered “supporting documents” and not required for motor carriers to keep and produce pursuant to 49 CFR § 395.8(k)(1) include: driver call-in records; international registration plan receipts; international fuel tax agreements receipts; trip permits; cash advance receipts; and driver fax reports (cover sheets).  FMCSA now provides the following updated list of documentation carriers are required to keep:  bills of lading, carrier pros, freight bills, dispatch records, electronic mobile communication/tracking records (as explained below), gate record receipts, weigh/scale tickets, fuel receipts, fuel billing statements, toll receipts, toll billing statements, port of entry receipts, delivery receipts, lumper receipts, interchange and inspection reports, lessor settlement sheets, over/short and damage reports, agricultural inspection reports, driver and vehicle examination reports, crash reports, telephone billing statements, credit card receipts, border crossing reports, customs declarations, traffic citations and overweight/oversize permits and traffic citations.

Supporting Documents for carriers using qualifying electronic mobile communication/tracking technology is reduced under the rule.  The following documents for this group of carriers are no longer required to be retained:  Gate record receipts;  Weigh/scale tickets;  Port of entry receipts;  Delivery receipts;  Toll receipts;  Agricultural inspection reports;  Over/short and damage reports;  Driver and vehicle examination reports;  Traffic citations;  Overweight/oversize reports and citations;  Carrier pros;  Credit card receipts;  Border Crossing Reports;  Customs declarations; and  Telephone billing statements.   Motor carriers that seek to take advantage of the less burdensome supporting documents retention requirements available under this Policy are precluded in HOS enforcement proceedings from challenging the accuracy of their own electronic mobile communication/tracking records.

Like any good government rule or regulation it also contains a very broad definition of a supporting document:  A supporting document is any document that is generated or received by a motor carrier or CMV driver in the normal course of business that could be used, as produced or with additional identifying information, to verify the accuracy of a driver’s RODS.  Said in non-government speak is that ANY DOCUMENT will be a supporting document and FMCSA will be able to require it and use it against the driver and or carrier should they so desire.

To qualify as an electronic mobile communication/tracking technology, the EOBR must have the following characteristics:  at least hourly positioning, synchronize with the vehicle, capable of generating upon demand a document, either paper or electronically, showing the information in the report and include at a minimum vehicle identification, date, time, proximity location, latitude and longitude.  Plus the carrier must maintain position history reports for six months in accordance with 49 CFR § 395.8(k) (1).
A carrier will be responsible to ensure the accuracy of its drivers RODS and is not limited by the list of examples of supporting documents.  A motor carrier is liable for false RODS submitted by its drivers and other HOS violations if the motor carrier had or should have had the means by which to detect the violations, regardless of whether the means to detect the violations is included in the list of examples of supporting documents.

I have several clients that already have a portion of their fleet on EOBRs.  Their response and the response of their drivers using EOBRs are very positive.  More than one carrier has drivers waiting in line to get and EOBR for their truck.  Feedbacks from the carriers I have spoken with go right to the productivity issue of using EOBRs.  EOBRs have allowed for increased productivity and planning which yields greater profit from their trucks and better relationships with their shippers.  Drivers say they get in and out of shippers faster and their favorite result is increased income.

Having EOBRs in all trucks will allow for fact-based HOS rules and safety issues which is a good thing.  I foresee increased safety and lower numbers of fatal crashes, plus increased shipping rates and better pay for drivers.

• You can contact Jim C. Klepper at www.interstatetrucker.com or

The information, advice and opinions in Legal Lane are entirely those of Jim C. Klepper.